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What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
MALONE v. BOWDOIN et al.
No. 113.
Argued March 20, 1962.
Decided May 14, 1962.
Daniel M. Friedman argued the cause for petitioner. On the briefs were Solicitor General Cox and Roger P. Marquis.
William Buford Mitchell argued the cause for respondents. With him on the briefs was John Burke Harris, Jr.
Mr. Justice Stewart
delivered the opinion of the Court.
This litigation began in a Georgia court when the respondents filed a common law action of ejectment against the petitioner, a Forest Service Officer of the United States Department of Agriculture. The basis for the suit was the respondents’ claim that they were the rightful owners of certain land occupied by the petitioner. The action was removed to a Federal District Court under the provisions of 28 U. S. C. § 1442 (a). The removal petition stated that the action “involves lands that were acquired by the United States of America by deed on June 6, 1936,” that the petitioner’s “official duties as a Forest Service Officer required him to be, and he was, in charge and in possession of the land described in said ejectment suit,” and that “all his acts in connection with the matters charged in said complaint were committed by him under color of his said office.”
The petitioner filed a motion to dismiss upon the ground that the suit was in substance and effect one against the United States, which had not consented to be sued or waived its immunity from suit. Noting that the respondents had conceded in a pretrial conference that the petitioner in occupying the land was acting solely as an official or employee of the United States, the District Court granted the motion to dismiss, relying upon Larson v. Domestic & Foreign Corp., 337 U. S. 682. On appeal, the judgment was reversed, one judge dissenting, 284 F. 2d 95. We granted certiorari to consider the scope of sovereign immunity in suits of this kind. 368 U. S. 811. We agree with the District Court that the doctrine of the Larson case required dismissal of this action, and we therefore reverse the judgment of the Court of Appeals.
For its view that the sovereign immunity of the United States did not bar the maintenance of this suit, the Court of Appeals found principal support in United States v. Lee, 106 U. S. 196. In that case the Virginia estate of General Robert E. Lee had been acquired by the United States for nonpayment of taxes, although the taxes had in fact been tendered by a third party. An ejectment action was brought against the governmental custodians of the land, upon which a federal military installation and a cemetery had been established. The trial court found that the tax sale had been invalid, and that title to the land was in the plaintiff. This Court upheld a judgment in favor of the plaintiff upon the trial court’s finding that the defendants’ possession of the land was illegal, holding that a suit against them under such circumstances was not a suit against the sovereign.
In a number of later cases, arising over the years in a variety of factual situations, the principles of the Lee case were approved. But in several other cases which came to the Court during the same period, it was held that suits against government agents, specifically affecting property in which the United States claimed an interest, were barred by the doctrine of sovereign immunity. While it is possible to differentiate many of these cases upon their individualized facts, it is fair to say that to reconcile completely all the decisions of the Court in this field prior to 1949 would be a Procrustean task.
The Court’s 1949 Larson decision makes it unnecessary, however, to undertake that task here. For in Larson the Court, aware that it was called upon to “resolve the conflict in doctrine” (337 U. S., at 701), thoroughly reviewed the many prior decisions, and made an informed and carefully considered choice between the seemingly conflicting precedents.
In that case a suit had been brought against the War Assets Administrator to enjoin him from selling surplus coal which, it was alleged, the Administrator had already sold to the plaintiff. The theory of the action was that where “an officer of the Government wrongly takes or holds specific property to which the plaintiff has title, then his taking or holding is a tort, and 'illegal’ as a matter of general law, whether or not it be within his delegated powers,” and that the officer “may therefore be sued individually to prevent the ‘illegal’ taking or to recover the property ‘illegally’ held.” 337 U. S., at 692. The Court held that this theory was not adequate to support a conclusion that the relief asked was not relief against the sovereign.
Cutting through the tangle of previous decisions, the Court expressly postulated the rule that the action of a federal officer affecting property claimed by a plaintiff can be made the basis of a suit for specific relief against the officer as an individual only if the officer’s action is “not within the officer’s statutory powers or, if within those powers, only if the powers, or their exercise in the particular case, are constitutionally void.” 337 U. S., at 702. Since the plaintiff had not made an affirmative allegation of any relevant statutory limitation upon the Administrator’s powers, and had made no claim that the Administrator’s action amounted to an unconstitutional taking, the Court ruled that the suit must fail as an effort to enjoin the United States.
While not expressly overruling United States v. Lee, supra, the Court in Larson limited that decision in such a way as to make it inapplicable to the case before us. Pointing out that at the time of the Lee decision there was no remedy by which the plaintiff could have recovered compensation for the taking of his land, the Court interpreted Lee as simply “a specific application of the constitutional exception to the doctrine of sovereign immunity.” 337 U. S., at 696. So construed, the Lee case has continuing validity only “where there is a claim that the holding constitutes an unconstitutional taking of property without just compensation.” Id., at 697.
No such claim has been advanced in the present case. Nor has it been asserted that the petitioner was exceeding his delegated powers as an officer of the United States in occupying the land in question, or that he was in possession of the land in anything other than his official capacity. This suit, therefore, is not within the class of cases in which, under Larson, specific relief can be obtained against a government officer. Accordingly, it was rightly dismissed by the District Court as an action which in substance and effect was one against the United States without its consent.
Reversed.
Mr. Justice Frankfurter took -no part in the decision of this case.
Mr. Justice White took no part in the consideration or decision of this case.
The original pleading was in the fictitious common law form in use in Georgia, Ga. Code Ann. § 33-111, alleging that John Doe, as a lessee of the respondents, had entered the land in question and had been forceably ejected by Richard Roe. The petitioner and the United States were served with process, which was accompanied by a “Notice to the Real Defendants,” stating that Richard Roe had “acted as casual ejector only.” The subsequent dismissal of the United States as a petitioner is not challenged here.
This assertion did not appear on the face of the original pleadings because of their fictitious form. In a subsequent brief, however, the respondents explained the basis of their claim. They alleged that an 1857 will had devised a life estate in the land to Martha A. Sanders, with remainder over to her children, and that in 1873 Mrs. Sanders had devised the land in fee to mesne grantors of the United States, which had acquired title in 1936. Mrs. Sanders died in 1928, and the respondents claimed to be the remaindermen under the 1857 will.
28 U. S. C. § 1442 (a) provides:
“A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
“(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
“(2) A property holder whose title is derived from any such officer, where such action or prosecution affects the validity of any law of the United States.
“(3) Any officer of the courts of the United States, for any act under color of office or in the performance of his duties;
“(4) Any officer of either House of Congress, for any act in the discharge of his official duty under an order of such House.”
The District Court’s opinion is reported sub nom. Doe v. Roe, 186 F. Supp. 407.
A petition for rehearing was denied, 287 F. 2d 282.
See Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446, 452; Tindal v. Wesley, 167 U. S. 204; Scranton v. Wheeler, 179 U. S. 141, 152-153; Philadelphia Co. v. Stimson, 223 U. S. 605, 619—620; Goltra v. Weeks, 271 U. S. 536, 545; Ickes v. Fox, 300 U. S. 82, 96; Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 50-51; Land v. Dollar, 330 U. S. 731.
See Stanley v. Schwalby, 162 U. S. 255; Oregon v. Hitchcock, 202 U. S. 60; Naganab v. Hitchcock, 202 U. S. 473; Louisiana v. Garfield, 211 U. S. 70; Goldberg v. Daniels, 231 U. S. 218; New Mexico v. Lane, 243 U. S. 52; Morrison v. Work, 266 U. S. 481; cf. Mine Safety Co. v. Forrestal, 326 U. S. 371, 374-375; Wells v. Roper, 246 U. S. 335.
See 337 U. S., at 697, n. 17. Unlike the situation in the Lee case, there has been at all relevant times a tribunal where the respondents could seek just compensation for the taking of their land by the United States. That tribunal is the Court of Claims. United States v. Causby, 328 U. S. 256, 267.
If such a claim is to be made, “it is necessary that the plaintiff set out in his complaint the statutory limitation on which he relies.” Larson v. Domestic & Foreign Corp., 337 U. S. 682, 690. While this requirement could probably not have been precisely complied with here because of the fictitious form of pleading involved, no such claim was ever suggested at any stage of the proceedings.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_state
|
50
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America v. Louis B. ADERMAN.
No. 11211.
United States Court of Appeals Seventh Circuit.
Nov. 5, 1954.
Louis B. Aderman, Milwaukee, Wis., for appellant.
Ellis J. Hughes, Asst. U. S. Atty., Milwaukee, Wis., for appellee.
Before MAJOR, LINDLEY, and SWAIM, Circuit Judges.
MAJOR, Circuit Judge.
This appeal is from a denial by the United States District Court for the Eastern District of Wisconsin of defendant’s motion, brought in the nature of a writ of error comm nobis, to void a judgment of conviction and sentence entered in the same court. The propriety of the action is sought to be sustained on authority of United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, which held that under certain circumstances, the validity of a conviction and sentence may be tested, in the court where entered, by a motion such as was made by the defendant in the instant matter.
Defendant was convicted in a trial by the court without a jury on a two-count indictment, the former charging a violation of Sec. 88, Title 18 U.S.C. (1946 ed.), and the latter of Sec. 80 of the same Title. Upon appeal to this court, the judgment was affirmed. United States v. Aderman, 7 Cir., 191 F.2d 980. The charges made in each count of the indictment are set forth in that opinion at page 982. As to the proof relied upon to sustain the judgment, this court stated at page 982:
“While the record in this case discloses considerable controversy over many of the details of the transaction here involved, there appears to be no dispute as to the essential facts, and the only question so far as the evidence is concerned ia whether it supports the court’s finding of guilt.”
We then set forth in considerable detail a statement of the evidence (commencing on page 982), reference to which is made in order to avoid repetition. We held that the facts disclosed supported the judgment.
Subsequent to denial of certiorari by the Supreme Court, 342 U.S. 927, 72 S.Ct. 366, 96 L.Ed. 691, defendant filed in the District Court a motion to reduce sentence, contending that the court had sentenced him under the wrong provisions of the statute, which contention was in part sustained. Thereafter, on February 18, 1953, defendant filed a motion for a new trial on the ground of newly discovered evidence under Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C. The District Court denied this motion and, upon appeal, this court affirmed. United States v. Aderman, 7 Cir., 209 F.2d 777. In doing so, we stated at page 778:
“We have examined at considerable length the original record, including the documentary and parol evidence, * * * and are of the opinion that this evidence, * * * amply sustained denial of the motion for a directed verdict at the end of the government’s evidence. In addition, the evidence was strengthened later by the admissions of defendant, himself, upon the witness stand.”
Defendant contends that the judgment and conviction were void because of a denial of due process of law resulting from the failure of the prosecutor (an Assistant United States District Attorney) to inform the District Court that the substantive offense charged against defendant contained the specific elements, (1) that the defendant had knowledge that a false certificate was to be used, (2) that the defendant had knowledge that such certificate contained a fraudulent or fictitious statement or entry and (3) that the prosecutor ignored the essential element of knowledge but tried the case and obtained the conviction on the theory that the offenses were established by proof that the defendant caused the certificate to be used by a trick, scheme or device.
Defendant, in connection with his motion, submitted a transcript of the proceedings of the trial, containing 720 pages, for the purpose, so he asserts, of demonstrating that there was no proof of the essential element of knowledge relative to the issuance or use of the certificate. In connection therewith, defendant in his brief asserts:
“The transcript of proceedings of the trial itself proves that Mr. Hughes as prosecutor contended that the appellant [defendant] was guilty of the alleged substantive offense of causing a false certificate by a trick, scheme or device. In convincing the District Court that the appellant was guilty of the alleged substantive offense of causing a false certificate by a trick, scheme or device, Mr. Hughes ignored the rule that penal statutes must be strictly construed.”
As a result of this alleged erroneous position assumed by the prosecutor, defendant in his brief states:
“The presentation of an irrelevant mistaken issue by the prosecutor and the admission of evidence in support of that issue caused the appellant to have an unfair trial and thereby there was a violation of the due process clause of the Fifth Amendment to the United States Constitution.”
Concerning this asserted “mistaken issue,” defendant in his brief states:
“* * * neither the District Court nor the counsel for the appellant [defendant] questioned the issue as presented and argued by the prosecutor * * *. That it occurred to no one to doubt the prosecutor’s construction of the penal offense at issue is evident from the nature of appellant’s defense at the trial in- which he consistently maintained good-faith and complete lack of criminal intent.”
Defendant in his original trial and in both former appeals to this court was represented by eminent counsel Of his own Choosing. On the instant occasion he appeárs as attorney pro se. Defendant ignores the fact, at any rate no mention is made of it, that the transcript of the- Original proceedings which he now seeks to utilize in support of his motion has twice been reviewed by this court, resulting, in a decision in one case that the evidence was sufficient to support the judgment of conviction and, in the other, that it was sufficient to justify the trial court’s denial of a motion for a new trial. The.-present position of the defendant simmers down, to nothing more than that there was a variance between the proof and the. allegations of the indictment, occasioned by an alleged misinterpretation'of -the law by the prosecutor, which deceived the trial court , as well as defendants own, eminent .‘counsel. Consistency would, justify the assertion, which is not made, that this, court for the same reason has been deceived on two occasions.
No good purpose could be served in a detailed analysis of the reasoning in United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, upon which defendant relies. Whatever may be said or thought of that opinion, we think it is without application to the instant situation. There, it was held that the writ was employable . to test the validity of a judgment wherein the defendant alleged that af the time of his conviction he was 19 years of age,, without counsel, without knowledge of law and not advised as to his rights. In 'the course of its discussion, the court stated in 346 U.S. at page 511, 74 S.Ct. at page 252:
“Continuation of "litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy, only under circumstances compelling such action to achieve justice.”
It is a far cry 'from'the facts of‘the Morgan case to those relied upon here, wherein the defendant, hims.elf a lawyer, represented by able counsel, had the opportunity in the trial- court and twice in this court to raise, the issue now relied upon. A recognition of defendant’s contention would demolish the time-honored rule that in every law suit, the stage is reached where a judgment becomes final. If the defendant' today, is permitted to litigate the issue now sought to be injected, tomorrow he would be entitled to litigate some other issue, and there would be no end.
The order appealed from is
Affirmed.
. Now 18 U.S.C.A. § 371.
. Now 18 U.S.C.A. §§ 287, 1001.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_immunity
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to reach the merits of the appeal because it concluded that the defendant had immunity (e.g., the governmental immunity doctrine)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Knowlton MERRITT, Plaintiff-Appellee, v. John E. MACKEY, Defendant-Appellant, and Jerry Howard, et al., Defendant. Knowlton MERRITT, Plaintiff-Appellant, v. John E. MACKEY; Steve Vincent, et al., Defendants-Appellees.
Nos. 89-35233, 89-35270.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 12, 1990.
Decided May 8, 1991.
Stephen L. Brischetto, Brischetto & Baldwin, Portland, Or., for plaintiff-appellee-ap-pellant.
Richard A. Olderman, Civ. Div., U.S. Dept, of Justice, Washington, D.C., for defendants-appellants-appellees.
Before CANBY, and TROTT, Circuit Judges, and LEGGE, District Judge.
The Honorable Charles A. Legge, United States District Judge for the Northern District of California, sitting by designation.
CANBY, Circuit Judge:
John Mackey appeals the district court’s judgment, following a bench trial on remand from this court, in favor of Knowlton Merritt in Merritt’s action against Mackey, et al. Merritt’s action charges that Mack-ey, a federal official, violated his due process rights in improperly coercing Merritt’s private employer to fire him. Merritt cross-appeals. We affirm all of the rulings of the district court except for the award of a multiplier in the award of attorney’s fees.
BACKGROUND
Merritt is a former counselor supervisor with Klamath Alcohol and Drug Abuse, Inc. (“KADA”), a private nonprofit corporation. He was fired from that position, partly as a consequence of actions taken by Mackey and Steven Vincent. Mackey was the Area Alcoholism Coordinator for Indian Health Services (“IHS”), a federal agency. Vincent was a Regional Alcohol Specialist with the State of Oregon’s Mental Health Division. Mackey and Vincent had jointly evaluated the management of KADA, and had concluded that Merritt had failed to perform adequately. Their report recommended that further funding of KADA be conditioned on Merritt’s dismissal. The KADA Board of Director’s dismissed Merritt without a pre-termination hearing. The circumstances of this dispute are related in this court’s earlier decision in this ease, Merritt v. Mackey, 827 F.2d 1368 (9th Cir.1987) (“Merritt I”).
Merritt brought this action against several defendants alleging various claims. Among those claims was one against Vincent under 42 U.S.C. § 1983, and one against Mackey pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Both of those claims alleged deprivation of liberty and property without due process. The district court granted summary judgment in favor of Vincent and Mackey on the ground that Merritt had not stated a claim for deprivation of liberty upon which relief could be granted. The court also decided, after this first trial, that Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), precluded Merritt’s claim that his property interest in continued employment could not be extinguished without a pretermination hearing. Finally, the district court ruled that Vincent and Mackey were protected from liability by the doctrine of qualified immunity.
On appeal, a divided panel of this court affirmed the grant of summary judgment as to the liberty deprivation claims, but reversed and remanded as to the property deprivation claims. Merritt I, 827 F.2d 1368 (9th Cir.1987). Merritt I first held that Merritt had a protected property interest in his continued employment with KADA. It then concluded that under the circumstances of this case, Merritt’s right to due process was not satisfied by a post-termination remedy, and that he was entitled to “a meaningful hearing at a meaningful time” to challenge his dismissal. Id. at 1371. This court also held that Vincent and Mackey were not entitled to qualified immunity because they knowingly acted outside the scope of their employment and violated a clearly established due process right. Id. at 1372-73.
On remand, the district court ruled that Merritt was entitled to a pretermination hearing and that his due process rights were violated because he had not received such a hearing. The court also found, however, that Merritt would have been terminated even if he had been provided with an adequate predeprivation hearing. Further, the district court concluded that Vincent and Mackey were not entitled to qualified immunity, under this court’s mandate in Merritt I.
After a bench trial, the district court awarded Merritt $35,000 in damages as compensation for emotional distress arising from the due process deprivation. It concluded that he was not entitled to either lost wages or punitive damages because he would have been terminated even if he had been afforded a pretermination hearing. In addition, the court awarded Merritt approximately $100,000 in attorney’s fees pursuant to 42 U.S.C. § 1988. The court reasoned that Mackey, although a federal official, was liable under Section 1988 because he acted jointly with Vincent, a state official, to • violate Merritt’s rights. The court awarded Merritt fees for 90% of the hours he requested at $125 per hour. It also enhanced the fee by one-third.
Mackey appeals the district court's rulings that he is not entitled to qualified immunity, and that he is liable for attorney’s fees under 42 U.S.C. § 1988. He also challenges as excessive the amount of damages and attorney’s fees awarded. Merritt cross-appeals, contending that the district court failed to recognize that his rights to due process were violated not only by the deprivation of a timely hearing, but also by unreasonable governmental interference with his property rights in his chosen occupation. Consequently, Merritt claims, the court improperly denied him damages for lost wages and punitive damages. We affirm the district court as to all issues raised by these appeals.
ANALYSIS
I. Qualified Immunity
In Merritt I, this court held that neither Vincent nor Mackey was entitled to qualified immunity because “their conduct exceeded the scope of their authority and because they violated Merritt’s clearly established constitutional rights.” 827 F.2d at 1373. On remand, the district court held that this court’s prior holding was “the law of the case.” Mackey now asks this court to reconsider the issue, and hold that Vincent and Mackey were entitled to qualified immunity. We agree with the district court that the ruling in Merritt I is the law of the case and decline to address the merits of qualified immunity, except as necessary to determine whether we ought to leave the matter as settled by Merritt I.
“[U]nder the ‘law of the case’ doctrine, one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case.” Kimball v. Callahan, 590 F.2d 768, 771 (9th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979). The doctrine is discretionary, not mandatory. United States v. Houser, 804 F.2d 565, 567 (9th Cir.1986). It merely expresses the practice of courts generally to refuse to reopen that which has been decided, and is not a limitation of the courts’ power. Id. (citing Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912)); United States v. Maybusher, 735 F.2d 366, 370 (9th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985). “[T]he prior decision of legal issues should be followed on a later appeal ‘unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.’” Kimball, 590 F.2d at 771-72 (citing White v. Murtha, 377 F.2d 428, 431 (5th Cir.1967)).
Mackey contends that two of these exceptions apply here. First, he contends that Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), effected a change in the appropriate standard for determining qualified immunity, which the panel in Merritt I failed to consider. Second, he contends that the decision in Merritt I court was clearly erroneous and would work a manifest injustice. We disagree with both arguments.
A. A change in the law
Anderson v. Creighton did not change controlling authority on this issue so as to require us to reconsider the merits of Mackey’s qualified immunity defense. First, Anderson was decided three months prior to Merritt, so there was no intervening change of law. More important, Anderson did not change the controlling standard as Mackey suggests. Anderson clarified and refined the law articulated in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In Merritt I, this court relied on Harlow. Examination of its analysis indicates that it complies with the Anderson “clarification.”
The Supreme Court in Anderson said, “our holding today does not extend official qualified immunity beyond the bounds articulated in Harlow and our subsequent cases_” 483 U.S. at 641-42 n. 3, 107 S.Ct. at 3039-40 n. 3. It was Harlow that first established that qualified immunity is based on the “objective legal reasonableness” of the defendant’s conduct. 457 U.S. at 818-19, 102 S.Ct. at 2738-39.
The Merritt I opinion recognized that immunity attaches to official action unless that action “ ‘violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” 827 F.2d at 1373 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). Anderson emphasized the level of specificity at which that inquiry must be made, requiring that “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.... [I]n the light of pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. Anderson goes on to require that the unlawfulness of the official’s activity must be apparent in light of “the circumstances with which [the official] was confronted.” Id.
The Merritt I court had the Anderson decision before it, and the language of its opinion indicates that it exercised the specificity of scrutiny required by Anderson:
Vincent and Mackey testified that they knew they had no authority to require KADA to fire Merritt. Because they knowingly acted outside the scope of their authority, they are not entitled to qualified immunity.... Vincent and Mackey should have known that they could not cause Merritt’s summary dismissal without violating his .due process rights.
Merritt I, 827 F.2d at 1373.
B. Clearly erroneous and manifest injustice
We also reject Mackey’s other argument that the Merritt I qualified immunity holding should not be considered the law of the case. Mackey contends that it is “manifestly unjust” to hold that he violated a clearly established right, when the dissent in Merritt I strongly disputed the very existence of that right. See Merritt I, 827 F.2d at 1374. In essence, Mackey asks how a right can be “clearly established” for government officials when appellate judges cannot agree to its existence.
Mackey poses a question with seductive implications for qualified immunity doctrine, but it is not the question upon which this appeal should turn. We are not presented as a matter of first impression with the question of which view in Merritt / — that of the majority or that of the dissent — was correct. That issue was thrashed out in Merritt I itself, and we owe a certain deference to the view that prevailed. The question before us on this appeal is whether the majority decision in Merritt I is so clearly incorrect that we are justified in refusing to regard it as the law of the case. See United States v. Houser, 804 F.2d at 568.
Although there was substantial prece-dential support for the Merritt I majority opinion, and it has been cited approvingly since, Mackey contends that the very fact of a dissent establishes manifest error in the majority’s conclusion that the right in issue was clearly established. We cannot accord a dissent that much probative power.
Dissent or no, two judges ruled that the right in question was clearly established and that reasonable officials would have known that their actions infringed that right. Those two judges may well have been correct. To hold that they could not have been correct simply because a dissent was filed would be to hold the majority hostage to the dissent. One judge would have a veto that would prevent any majority of two from denying a claim of qualified immunity.
The dissent alone does not compel us, therefore, to conclude that the decision in Merritt I was incorrect. Nor do we approach the qualified immunity question as if it were being presented for the first time. At this stage of the litigation, it is incumbent upon Mackey to convince us not only that the majority decision in Merritt I was wrong, but that it was clearly wrong. This he has failed to do. Mackey has not demonstrated clear error by the Merritt I majority in applying this principle to the specific facts of his case. We accordingly find no justification for departing from our usual policy of adhering to the law of the case.
II. Damages
A. Merritt’s appeal
The district court awarded Merritt damages for emotional suffering, but did not award him lost wages or punitive damages. Merritt cross-appeals, arguing that the district court erroneously identified the due process violation which he suffered.
The district court confined its finding of a due process violation to KADA’s failure to provide Merritt with a pretermination hearing. That finding was based on this court’s holding in Merritt I that Merritt “was deprived of his property interest in continued employment when the state and federal agents intentionally coerced KADA to fire him.” Merritt I, 827 F.2d at 1372. Merritt contends that such a holding requires that his compensable injury includes, not only the deprivation of his right to a pretermination hearing, but also the deprivation of his property interest in continuing employment itself.
The district court found, however, that Merritt would have been fired regardless of Mackey’s involvement. Unless that finding is clearly erroneous, it limits Merritt’s damages to those arising from the denial of procedural due process only, and precludes an award of damages for deprivation of the employment itself, a loss not caused by Mackey. Carey v. Piphus, 435 U.S. 247, 260-66, 98 S.Ct. 1042, 1050-54, 55 L.Ed.2d 252 (1977); See Alexander v. City of Menlo Park, 787 F.2d 1371, 1375 (9th Cir.1986), cert. denied, 479 U.S. 1032, 107 S.Ct. 879, 93 L.Ed.2d 833 (1987).
We cannot say that the district court s trading that Merritt would have been fired anyway was clearly erroneous. Although the evidence conflicted, there was ample support for the district court’s finding. We therefore conclude that the district court did not err in refusing to award Merritt damages for his loss of employment.
B. Mackey’s appeal
Mackey also appeals the district court’s damage award. He contends that Merritt is entitled to no damages, in spite of his loss of a pretermination hearing, because any injury sustained was caused by his loss of employment. Mackey contends that because the district court found that Merritt’s discharge was justified and would have occurred regardless of Mackey’s intervention, he is liable for no damages.
Merritt can recover for mental and emotional distress caused by the denial of procedural due process if he proves actual injury. Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 1052, 55 L.Ed.2d 252 (1977); Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (9th Cir.1985). Here, the district court reviewed extensive evidence of actual damages arising from Merritt’s “being terminated without adequate opportunity to be heard or to protest his termination.” It found Merritt’s evidence credible, and awarded $35,000 damages. The district court thus awarded damages, not for Merritt’s loss of employment, but for his denial of a hearing before he was discharged.
We review the district court’s computation of damages for clear error. See Galindo v. Stoody Co., 793 F.2d 1502, 1516 (9th Cir.1986). In light of the evidence offered by Merritt, we are not prepared to say that the district court’s award was clearly erroneous.
III. Attorney’s Fees
The district court ordered Mackey, as well as Vincent, to pay Merritt’s attorney’s fees, in the amount of $99,856.39, pursuant to 42 U.S.C. § 1988. Mackey contends that, as a federal official, he is not liable for attorney’s fees under 42 U.S.C. § 1988, and, alternatively, that the fees awarded here were excessive.
A. Mackey’s liability for fees under § 1988
Section 1988 allows the court to award attorney s fees to the prevailing party in an action brought under 42 U.S.C. § 1983. Actions filed under § 1983 require state action. Mackey, as an individual or as a federal official, is, thus, exempt from Section 1988 liability unless he “conspire[d] with or participate^] in concert with state officials who, under color of state law, act[ed] to deprive a person of protected rights.” Scott v. Rosenberg, 702 F.2d 1263, 1269 (9th Cir.1983), cert. denied, 465 U.S. 1078, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984). Such liability will not attach unless “the state or its agents significantly participated in the challenged activity.” Gibson v. United States, 781 F.2d 1334, 1343 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987).
The district court found that Mackey was acting under color of state law because he was involved in a joint action with Vincent, a state official. “Historical” factual findings underlying that holding are reviewed for clear error. The district court found that “Mackey and Vincent jointly evaluated KADA (and plaintiff), and jointly agreed to require plaintiffs termination.” Opinion, Mar. 6, 1989. The final report resulting in Merritt’s termination (and this litigation) was issued under state letterhead, signed by both Mackey and Vincent. The district court’s finding was not clearly erroneous; the form of that report accurately reflected what the investigation was — a joint collaboration between a state and federal official.
We review de novo the district court’s application of these facts to statutory and precedential authority leading to the district courts finding that “state action” was present here. United States v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We agree with the district court that Mackey is liable for attorney’s fees under Section 1988, because he acted in concert with Vincent, a state official. Vincent “significantly participated in the challenged activity.” Gibson v. United States, 781 F.2d 1334, 1343 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987).
B. Amount of attorneys’ fees awarded
Mackey alternatively argues that the fee award of nearly $100,000 was excessive. We review this award for an abuse of discretion. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983); Blum v. Stenson, 465 U.S. 886, 898-901, 104 S.Ct. 1541, 1548-50, 79 L.Ed.2d 891 (1984). The district court provided a thorough and thoughtful explanation of the lodestar fee at which it arrived. It discounted for hours that it deemed to be unreasonable. We reject Mackey’s claim that the district court abused its discretion in failing to find that more hours were excessive.
We conclude, however, that the district court granted a multiplier of 1.33 on improper grounds. Even though the district court properly recognized that some of the factors derived from Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976), were properly subsumed in the lodestar figure, see Cabrales v. County of Los Angeles, 864 F.2d 1454, 1464 (9th Cir.1988), it nevertheless relied on impermissible grounds for enhancement. The time involved is clearly subsumed in the lodestar figure, and the difficulty of the case is similarly inappropriate as a ground of enhancement. See Fadhl v. City and County of San Francisco, 859 F.2d 649, 651 n. 2 (1988). Finally, the district court relied upon the risk inherent in Merritt’s case. A majority of the Supreme Court has held, however, that risk in the individual case is not a proper ground for a multiplier. Pennsylvania v. Delaware Valley Citizens’ Council, 483 U.S. 711, 734, 107 S.Ct. 3078, 3091, 97 L.Ed.2d 585 (1987) (concurring opinion of Justice O’Connor); see Fadhl, 859 F.2d at 650 n. 1 (Justice O’Connor’s concurring opinion constitutes Court’s holding in Delaware Valley). Enhancements for risk are only appropriate when supported by a showing that such enhancement is “necessary to attract competent counsel in the relevant community” for the class of cases in question. Delaware Valley, 483 U.S. at 734, 107 S.Ct. at 3091 (concurring opinion of Justice O’Connor). There is neither a finding nor evidence here to establish that necessity. We therefore reverse that portion of the district court’s fee awards that includes multipliers of 1.33, and we remand the fee awards to the district court for recalculation and reentry of the awards without the multiplier.
CONCLUSION
The fee awards entered by the district court are reversed insofar as they include a multiplier of 1.33, and the fee awards are remanded to the district court for recalculation and reentry of the awards without the multiplier.
In all other respects, the judgment of the district court is affirmed. Each party will bear its own share of the regular costs on appeal.
As prevailing party in this litigation, Merritt is entitled to an award of fees on appeal pursuant to 42 U.S.C. § 1988, subject to reduction in light of Merritt’s unsuccessful cross-appeal. Application is to be made as provided in 9th Cir. Rule 39-1.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
. Vincent also appealed, but later voluntarily dismissed his appeal.
. This formulation has since been repeatedly quoted in this circuit. See, e.g., League of Women Voters of California v. F.C.C., 798 F.2d 1255, 1256 (9th Cir.1986); United States v. Houser, 804 F.2d 565, 568 (9th Cir.1986); Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir.1981).
. In support of his argument, Mackey cites Harris v. Young, 718 F.2d 620, (4th Cir.1983), where the Fourth Circuit stated, "It would not be fair to hold a state official liable for not fulfilling ‘clearly established’ obligations when a federal Circuit Court of Appeals was unable to unanimously decide the same issue.” Id. at 624. That case is inapposite because the Harris court was faced with the issue, in the first instance, of whether a government official had violated a clearly established right. To that issue of whether a right was "clearly established," the Harris court considered relevant an earlier split decision in a separate case. Harris is not relevant here, since it did not deal with the entirely separate concerns of whether an earlier appellate decision in the same case should be final.
. The majority opinion relied primarily on the Supreme Court's opinion in Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), that an employee of a private employer “has the right to be free from unauthorized actions of government officials which substantially impair his property interests.” Id.., at 493, n. 22, 79 S.Ct. at 1412, n. 22. The majority went on to conclude that Merritt's employment contract, including a "for cause” termination clause, was not simply a "unilateral expectation" of continued employment but a “legitimate claim of entitlement" to due process procedural protections as established by Oregon law (citing Board of Regents v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972)).
. See, e.g., Roth v. Veteran’s Administration of United States, 856 F.2d 1401, 1407 (9th Cir.1988) (citing Merritt I for proposition that qualified immunity does not protect public officials who deprive employees of a property interest in their employment); Love v. U.S., 871 F.2d 1488, 1495 (9th Cir.1989) (citing Merritt I for proposition that a deprivation of property in violation of the due process clause states a viable claim for damages under the constitution); Bateson v. Geisse, 857 F.2d 1300 (9th Cir.1988) (citing Merritt I for the proposition that interference that causes a due process violation may be actionable under 42 U.S.C. § 1983). All of these opinions were unanimous and none of them questioned the logic or holding of Merritt I.
Mackey contends that this court’s Memorandum Disposition in Johnson v. Serv-Air, Inc., 833 F.2d 1016 (9th Cir.1987), is directly in conflict with the Merritt I majority holding, demonstrating that that holding is "clearly erroneous.” Because Johnson is not directly “relevant under the doctrines of law of the case, res judicata, or collateral estoppel,” Ninth Circuit Rule 36-3 (1989), it cannot be considered as precedent. See DiMartini v. Ferrin, 889 F.2d 922, 929 (9th Cir.1989) (court refused to consider Johnson as support for the proposition that due process violations not clearly established).
. Mackey also argues that adhering to Merritt I will cause "manifest injustice." This argument is simply a reprise of his "clearly erroneous” argument. He argues that because the majority holding is "clearly erroneous" (by virtue of a dissent), for that reason it works a "substantial injustice" on Mackey. We reject that argument because we find no clear error in the majority decision in Merritt I. Moreover, we would depart from the law of the case only if we found clear and manifest injustice. See Houser, 804 F.2d at 568. See Moore v. James H. Matthews & Co., 682 F.2d 830, 833-34 (9th Cir.1982).
. Merritt also contends that the district court erred in failing to award punitive damages for Mackey’s violation of his right to continued employment. Without any evidence that Mackey acted willfully or recklessly in disregard of Merritt’s due process rights, we are unprepared to overturn the district court’s denial of punitive damages.
. Scott v. Rosenberg, 702 F.2d 1263 (9th Cir.1983), cert. denied, 465 U.S. 1075, 1078, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984), is inapposite. In Scott, this court held that federal officials had not participated in "state action" when the FCC and the California Attorney General separately investigated the plaintiff. In that case, any basis for a finding of joint activity was limited to the sharing of information: “At most, the [federal] employees requested information from, offered to exchange, and did exchange information with the California attorney general's office. ... This, without more, is not enough to establish that their conduct was under color of state law." Id. at 1269. See also Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 196 n. 16, 109 S.Ct. 454, 464 n. 16, 102 L.Ed.2d 469 (1984) (NCAA not liable under § 1988 as joint actor with state university; the two “were antagonists, not joint participants”).
Question: Did the court refuse to reach the merits of the appeal because it concluded that the defendant had immunity?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
KEITH v. CHARLES E. HIRES CO., Inc.
No. 19.
Circuit Court of Appeals, Second Circuit.
Dec. 6, 1940.
Frederick C. Randolph, of New York City (Theodore S. Kenyon and Douglas II. Kenyon, both of New York City, of counsel), for appellant. _
Ralph E. Slayton, of New York City (Lawrence Bristol, of New York City, of counsel), for appellee.
Before L. HAND, CHASE, and CLARK, Circuit Judges.
L. HAND, Circuit Judge.
This is an appeal from a judgment dismissing for nonmfringement a complaint upon two patents for a cardbox carrier of bottles. The first patent, No. 2,070,399, was granted on the application of Thomas H. Goldriug on February 9, 1937 (claims three and four are here in issue) ; the second, No. 2,094,744, was granted to Claude D. Keith on October 5, 1937 (claims one and two are in issue).
The Goldring Patent.
The Goldring patent disclosed a flat piece of cardboard which could be folded into a sort of sling to serve as a carrier for six bottles in two opposed tiers. Each bottle was held in place by an opening in the side of the holder, upright after folding, and by a separate hole through which its neck passed. The two ends of the cardboard sling were brought together so as to press together the two rows of bottles and hold them securely in place. The defendant’s supposed infringement is substantially like the disclosure except that instead of two separate openings, one for the side of each bottle and another for its neck, it has a single elongated oval slot through which the bottle protrudes, the bottom of of the slot being at about the middle of the body of the bottle, the top just below the top of the bottle. We shall assume arguendo that the patent was valid and address ourselves only to the claims. At one stage of the application the examiner suggested that claim''three, as allowed, and another claim (both quoted in the margin), were proper issues for interference, and the applicant accepted both by amendment. Claim three did not in fact go into interference, but the other claim did and Goldring won. Thereafter the examiner rejected that claim for reasons which do not appear, but allowed claim three. The situation is not therefore literally one' where a claim was first rejected and was afterwards amended to secure allowance. In that event it is of course well settled that the new element introduced cannot thereafter be disregarded upon the issue cif infringement. The origin of this doctrine appears to have been Leggett v. Avery, 101 U.S. 256, 25 L.Ed. 865, though the facts did not there exactly present the question; the patentee upon a second reissue had reintroduced limited claims which he had abandoned in the first. However, the decision was almost at once treated as a precedent in a case where the claim was amended to secure allowance (Goodyear Dental Vulcanite Co. v. Davis, 102 U.S. 222, 228, 26 L.Ed. 149) and that has always been the normal situation. Down to the present time the Supreme Court has shown no disposition to relax the rule then established. I. T. S. Rubber Co. v. Essex Rubber Co., 272 U.S. 429, 443, 47 S.Ct. 136, 71 L.Ed. 335; Smith v. Magic City Club, 282 U.S. 784, 789, 790, 51 S.Ct. 291, 75 L.Ed. 707; Smith v. Snow, 294 U.S. 1, 15, 55 S.Ct. 279, 79 L.Ed. 721. We can see no difference between that situation and one where as here the applicant files a limited and a broader claim at the same time and then cancels the broader one when it has been rejected. The theory of- the “estoppel,” as it is called, is that, by assenting to the cancellation of the claim and by amending it, the applicant has abandoned it as it stood. Certainly it cannot be necessary to this conclusion that he shall amend the cancelled claim, when he has already' filed a .claim which contains the necessary differentia.
The “estoppel” is itself important only as a bar to any resort to the doctrine of equivalents. Without that doctrine every claim, is indeed entitled to be interpreted in the light of the specifications as a whole, and not to be read merely with a dictionary. But often even with the most sympathetic interpretation the claim cannot be made to cover an infringement which in fact steals the very heart of the invention; no matter how auspiciously construed, the language forbids. It is then that the doctrine of equivalents intervenes to disregard the theory that the claim measures the monopoly and ignores the claim in order to protect the real invention. Claude Neon Lights v. Machlett & Son, 2 Cir., 36 F.2d 574; Otis Elevator Co. v. Atlantic Elevator Co., 2 Cir., 47 F.2d 545, 547; Oates v. Camp, 4 Cir., 83 F.2d 111; 116. The “estoppel” of the file-wrapper puts an end to the court’s power to do this; the applicant has abandoned his privilege to resort to an equivalent of the differentia, which all infringements must therefore embody. He may still insist that his claim shall be generously interpreted, but his monopoly stops where interpretation stops. So far-therefore as, but for the estoppel, Goldring might have been entitled to go beyond claim three in the case at bar, he lost that privilege as to the element by which that claim differs from the cancelled claim.
It will be - observed that the can-celled claim was merely for a “strip” with a “middle-part”' and “side-parts,” the first to support the bottles, and the second to be folded together to make a handle above the bottle tops. The “side-parts” had “apertures extending from the middle-part towards the free ends;” the apertures were opposite to each other on opposite sides of the holders, and embraced the sides of the bottles. Nothing was said about where the apertures were .to be in the “side-parts,” nor was there any mention of the holes (“apertures”) through which the necks of the bottles passed as described in the disclosure (page 1, lines 11, 14-20, 29-35). In claim three on the other hand the “side-parts” were divided into three “portions,” “lower,” “intermediate” and “upper.” The “lower” portions made “side walls for the carrier,” the “intermediate” portions were “folded inwardly and upwardly,” and the “upper” portions abutted upon each other to' make the handle. The “lower” portions were to have “apertures adapted to receive portions of the bottle sides.” So far there was no difference between the two claims except that the “apertures” of claim three did not have to start at the “middle-part,” i. e. at the base; that was not however a limitation, but an expansion of the claim. The only limitation was the following: “the intermediate portions having apertures aligned with the apertures in the adjacent lower portions and adapted to receive the tops of the bottles.” If it were possible to read this as not requiring two separate “apertures,” it might be possible to expand the claim under the doctrine of equivalents so as to include the defendant’s carrier; but we do not see how this can be done without assimilating claim three to the cancelled claim. “Apertures” in the “intermediate portions * * * aligned with *. * ■* apertures in the * * * lower portions” certainly cannot be read as a single vertical “aperture” running from one “portion” into the “portion” above it; an “aperture” cannot be “aligned” with itself. In such a case it is almost inevitable instinctively to resort to the doctrine of equivalents to escape such verbalism; but that is precisely what the “estoppel” forbids, as we have said. We hold therefore that the defendant did not infringe claim three; and what we have said applies equally to claim four.
We shall also assume arguendo that the Keith patent is valid, and the decision again turns on infringement. The next to last clause of claim one reads as follows: “a gripping contact of said edges of the neck-gripping apertures with the neck of the bottles to cause a part of the ■weight of the bottom to be carried by said neck-engaging member.” In claim two the same feature is expressed in the following language: “neck engaging sections having neck-insertion apertures * * * being arranged in erected condition of the carton to cause a gripping engagement * * * and a supporting of part of the weight of the bottles.” The issue was sharply fought at the trial whether the defendant’s putative grip did actually support any weight of the bottle. The plaintiff’s experimental tests did indeed make that appear probable but later the defendant’s tests seemed to show that this apparent grip had substantially depended upon the fact that the bottles used had been sticky. When clean bottles were substituted, they could not be lifted, and whatever grip there was became theoretical. It is possible that in the defendant’s carrier the clutch of the “aperture” upon the neck of the bottle above, and upon its body below, may take up an ounce or two of weight. We are not very well satisfied as to that, but we need not decide it, for it is not enough to satisfy the claims. They must be read upon that part of the specifications (page 2, lines 11. 33-37) which speak of “a pinching, gripping or clamping pressure to be applied at opposite sides of the neck of the bottle, thus greatly assisting in carrying the _ load, relieving the stress of the weight of the load on the bottom of the carton.” So far as we can tell as an original matter, that does not happen; but it was an issue primarily for the judge, depending as it did upon a conflict of testimony and the interpretation of experiments made before him. He has found (Finding 31) that “the neck-gripping engagement of the bottles by the apertures * * * is not found in the defendant’s cartons,” and it is plain that we should not be justified in declaring that this was “clearly erroneous,” which we must do in order to reverse. Rule 52(a) Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
We see no reason to discuss whether there is an “estoppel” as to the “neck-gripping” element of these claims. While it is sometimes said that every claim has some range of equivalents, it is as often said that one may not wholly disregard any element of a claim. Without seeking to reconcile that conflict, we can say here that, regardless of any “estoppel,” Keith’s advance beyond Goldring was not enough to justify onr ignoring the “gripping” element; indeed it would be very hard to find anything else upon which his invention could rest. Therefore, once it is settled that the defendant’s carrier has no “neck-grip” within the meaning of the claims, the plaintiff inevitably loses.
Judgment affirmed.
Cancelled Claim. A bottle carrier comprising a strip having a middle-part for supporting the bottoms of the bottles and side-parts extending oppositely from said middle-part and foldable upwardly, the free ends of said side-parts being adapted to be brought together adjacent the tops of the bottles and at least one of said free ends being apertured to serve as a carrying handle, and said side-parts having apertures extending from the middle-part towards the free ends of the side-parts ; said apertures being oppositely located to- receive and by their margins engage the sides of the bottles.
Claim three. A bottle carrier comprising a strip having a middle-part for supporting the bottoms of bottles and side-parts extending oppositely from said middle-part and foldable upwardly; said side-parts having lower portions forming side walls for the carrier, intermediate portions folded inwardly and upwardly and upper portions in abutting relation having registering apertures to provide a handle for the carrier; said lower portions having apertures adapted to receive portions of the bottle sides, and said intermediate portions having apertures aligned with the apertures in the adjacent lower portions and adapted to receive the tops of the bottles.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_authoritydecision
|
E
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
UNITED STATES et al. v. DRUM et al.
No. 23.
Argued October 11-12, 1961.
Decided January 15, 1962.
Robert W. Ginnane argued the cause for appellants in No. 23. With him on the briefs were Solicitor General Cox, Assistant Attorney General Loevinger, Richard A. Solomon and B. Franklin Taylor, Jr.
Roland Rice argued the cause and filed briefs for appellant in No. 24.
William L. Peterson, Jr. and Charles R. Iden argued the cause for appellees in both cases. With them on the briefs was Walter D. Hanson.
Together with No. 24, Regular Common Carrier Conference of American Trucking Associations, Inc., v. Drum et al., also on appeal from the same Court.
Mr. Justice Brennan
delivered the opinion of the Court.
In an investigation initiated by it under 49 U. S. C. § 304 (c), the Interstate Commerce Commission held that appellees who leased their motor vehicles and hired their services as drivers to the appellee Oklahoma Furniture Manufacturing Company (hereinafter “Oklahoma”) were contract carriers within 49 U. S. C. § 303 (a) (15) and subject to the permit requirements of 49 U. S. C. §309 (a)(1). 79 M. C. C. 403.
A three-judge court in the District Court for the Western District of Oklahoma, convened under 28 U. S. C. § 2325 in a proceeding commenced by appellees pursuant to 28 U. S. C. §§ 1336 and 1398, set aside the cease-and-desist order by which the Commission required the lessors to refrain from their operations unless and until they received appropriate authority therefor from the Commission. 193 F. Supp. 275. The District Court held that Oklahoma was engaged in private carriage as defined in 49 U. S. C. § 303 (a) (17). We noted probable jurisdiction of the appeals lodged here under 28 U. S. C. § 1253. 365 U. S. 839.
The Motor Carrier Act of 1935 subjected many aspects of interstate motor carriage — including entry of persons into the business of for-hire motor transportation and the oversight of motor carrier rates — to administrative controls, on the premise that the public interest in maintaining a stable transportation industry so required. However, although aware that “Both [contract carriers and common carriers] . . . are continually faced with actual or potential competition from private truck operation . . . ,” Congress took cognizance of a shipper’s interest in furnishing his own transportation, and limited the application of the licensing requirements to those persons who provide “transportation ... for compensation” or, under a 1957 Amendment, “for-hire transportation.” The Commission, therefore, has had to decide whether a particular arrangement gives rise to that “for-hire” carriage which is subject to economic regulation in the public interest, or whether it is, in fact, private carriage as to which Congress determined that the shipper’s interest in carrying his own goods should prevail. This case is a recent instance of the Commission’s developing technique of decision.
From the beginning underlying principles have been, and have remained, clear. A primary objective of the scheme of economic regulation is to assure that shippers generally will be provided a healthy system of motor carriage to which they may resort to get their goods to market. This is the goal not only of Commission surveillance of licensed motor carriers as to rates and services, but also of the requirement that the persons from whom shippers would purchase a transportation service designed to meet the shippers’ distinctive needs must first secure Commission approval. See Contracts of Contract Carriers, 1 M. C. C. 628, 629; Keystone Transportation Co., 19 M. C. C. 475, 490-492. The statutory requirement that a certificate or permit be issued before any new for-hire carriage may be undertaken bespeaks congressional concern over diversions of traffic which may harm existing carriers upon whom the bulk of shippers must depend for access to market. Accordingly, the statutory definitions, while confirming that a shipper is free to transport his own goods without utilizing a regulated instrumentality, at the same time deny him the use of “for compensation” or “for-hire” transportation purchased from a person not licensed by the Interstate Commerce Commission. Because the definitions must, if they are to serve their purpose, impose practical limitations upon unregulated competition in a regulated industry, they are to be interpreted in a manner which transcends the merely formal. Erom the outset the Commission has correctly interpreted them as importing that a purported private carrier who hires the instrumentalities of transportation from another must — if he is not to utilize a licensed carrier — assume in significant measure the characteristic burdens of the transportation business. The problem is one of determining — by reference to the clear but broad remedial purpose of a regulatory statute committed to agency administration — the applicability to a narrow fact situation of imprecise definitional language which delineates the coverage of the measure. Private carriers are defined simply as transporters of property who are neither common nor contract carriers; and the statute will yield up no better verbal guide to the reach of its licensing provisions than transportation “for compensation” or “for-hire.” Compare Bates & Guild Co. v. Payne, 194 U. S. 106; Rochester Tel. Corp. v. United States, 307 U. S. 125, 144-146; Gray v. Powell, 314 U. S. 402, 412-413; Labor Board v. Hearst Publications, 322 U. S. 111, 130-131. Because the Commission’s resolution of the issue does not seem to us to violate the coherence of the body of administrative and judicial precedents so far developed in this area, we are of the opinion that there was no occasion for the District Court to disturb the conclusion reached by the Commission. We therefore reverse the District Court’s judgment.
It was a wish to rid itself of certain burdens of its existing transportation operation which caused Oklahoma to enter into the arrangement here involved. Prior to 1952 Oklahoma, a manufacturer of low-cost furniture, had maintained a full fleet of tractors and trailers in which all its furniture was shipped. A full crew of drivers was employed. Oklahoma absorbed all the expenses, and carried all the risks, of its transportation operation. It utilized a system of delivered pricing which eliminated transportation charges as an identifiable element of the price of its furniture. Its status as a private carrier exempt from licensing requirements was never questioned under the- pre-1952 arrangement. But that method of operation was found to incorporate certain burdensome disadvantages. Oklahoma discovered that its employee-drivers were embezzling its funds through the misuse of credit arrangements which the company had established for the purchasing of fuel and minor repairs on the road. In addition, Oklahoma became convinced that its equipment was too often involved in accidents, and too often in need of repairs and maintenance which could have been avoided by careful operation.
In an effort to eliminate these disadvantages, Oklahoma in 1952 altered its modus opemndi. It decided to terminate its investment in tractors for long hauls and, instead, to lease them from the drivers. The original lease agreements encountered difficulty when, in 1956, the Supreme Court of Arkansas held that the resultant operation constituted for-hire carriage by the owner-operators which required licensing under the applicable Arkansas statutes. Following this turn of events, Oklahoma revised the leases, and also entered into a collective agreement with the union representing its workers setting forth the terms under which the owner-operators were to be employed as drivers. The current lease and collective agreement provide the factual predicate of the present litigation.
The Company presently owns 26 trailers and 6 tractors. It leases 11 tractors for long-haul use in connection with the trailers which it owns. It is solely in connection with the 11 leased tractors and the services of their owner-operators that the Commission discerned the provision of for-hire transportation. The leases are for renewable terms of one year, but they are terminable by either party on 30 days’ notice. Oklahoma is granted the sole right to control the use of the tractor through drivers employed by it; in return, it covenants that such use will be lawful and will be confined to the transportation of the Company’s property. Oklahoma pays for its use of the tractors strictly on a mileage basis. The owner receives weekly rental payments of 10 or 11 cents for each mile the vehicle is driven, plus an extra 3 cents per mile on the backhaul if there is a load of raw materials. Oklahoma does not guarantee any minimum mileage. Operating costs — including gasoline, oil, grease, parts, and registration fees — are paid by the owners. Oklahoma assumes no responsibility for wear and tear or damage to the tractors, nor does it provide collision or fire and theft insurance coverage — although it does pay for public liability and property damage insurance. The owners assume no responsibility to Oklahoma for damage to the cargoes.
Under agreement covering the drivers among its employees, the drivers enjoy certain common employment privileges such as collective bargaining, seniority rights, death benefits, immunity from discharge except for cause, military-service protection, and vacation pay in an amount based on their average weekly pay. Owner-drivers may be discharged for cause. Their remuneration is calculated strictly on a mileage basis, and they are obliged to pay their own living expenses while on the road. No minimum weekly pay or mileage is guaranteed. Drivers are required to maintain their trucks in good running condition at all times.
Oklahoma’s actual operations were a generally faithful reflection of the leases and the collective agreement. Certain matters, not explicitly or unambiguously covered by the written instruments, are of significance. Ordinarily the drivers were assigned to their own tractors, though there were occasional exceptions. Oklahoma’s truck superintendent testified that the owner-operators’ services were not utilized each day. The owners were required to pay for all repairs, though Oklahoma conducted safety inspections. The Company closely directed all details of loading and delivery routes. It instructed the drivers as to steps to be taken in emergencies. It administered physical examinations, supervised the preparation of reports required by the Interstate Commerce Commission, paid social security taxes and withheld income taxes, and provided workmen’s compensation.
In sum, Oklahoma’s operation possessed a number of the hallmarks of a genuine lease of equipment and a genuine employment arrangement.
Still, the Company was able to spare itself — and pass to the owner-operators — certain characteristic burdens of the transportation business. The large capital investment in the tractors and the risk of their premature depreciation or catastrophic loss, was borne by the owner-operators, not by the Company. The owner-operators, rather than Oklahoma, stood the risk of a rise in variable costs such as fuel, repairs and maintenance of the tractors in good operating condition, and living expenses, although the thirty-day cancellation privilege, taken together with the possible bargaining power of the owner-operators en bloc, may have affected the degree to which that burden was actually shifted. Finally, Oklahoma was able to divest itself, to a significant extent, of the risk of non-utilization of high-priced equipment. The owner-operators received neither rental payments nor wages when their tractors were not used and they did not drive. Oklahoma did, however, carry the risk of a nonproductive backhaul.
The question before the Commission was whether, under these particular facts, Oklahoma had so far emancipated itself from the burdens of transportation that to permit it, on such terms, to secure a transportation service from these unlicensed owner-operators would be inconsistent with the statutory scheme. The Commission resolved the issue adversely to Oklahoma and the owner-operators. Division 1, one Commissioner dissenting, held that the owner-operators were engaged in contract carriage and ordered them to cease and desist from the activities thus found to be unlawful until such time as they had secured the necessary permits from the Commission. Applications for such permits were invited, the Division’s Report observing that the activities presently condemned should not prejudice such applications. This disposition was approved by the full Commission on reconsideration.
The Commission dealt with the problem before it by setting out two inquiries which would have to be satisfied before the operations in question could be held to constitute private carriage: First, it would have to be found that no person other than Oklahoma had “any right to control, direct, and dominate” the transportation. Second, it would have to be found that no person before the Commission was “in substance, engaged in the business of . . . transportation of property ... for hire.” The Commission found against the respondents on both tests. In connection with the first, or “control,” test the Commission pointed out that earlier decisions had established a presumption of for-hire transportation whenever equipment was leased by a shipper, which presumption might be defeated by a showing that the shipper had retained the exclusive right to control the operation. Despite the evidence of actual shipper control in this case, the Commission held that the presumption of for-hire transportation remained in effect because “There is present, whenever the owner-operator drives his own equipment, the right and power of the lessor to defeat any supposed right to control that the shipper-lessee may believe exists.” The three-judge District Court reversed the Commission’s conclusion relative to shipper control, and that action of the District Court is not challenged by the Commission on this appeal.
But a finding of shipper control does not require a resolution of the ultimate issue in the shipper’s favor. It is true that until recently, “control” has been at the focus of the Commission’s efforts to delineate verbally the permissible area of non-licensed leases of transportation equipment. The initial technique of the Commission was to assess the lessee-shipper’s assumption of the burdens of transportation in terms of the degree to which he undertook to “control” or “dominate” it. The interest in “control” in turn generated an interest in whether the drivers of leased equipment were in substance treated as the shipper’s employees. Throughout, however, Commission reports have taken note of various factors which clearly transcend any narrow concept of physical direction of the details of the operation; and it has always been apparent that the vesting of such physical “control” in the shipper would not in itself suffice to render the transportation private carriage.
Latterly, the Commission has begun to move away from “control” as the verbal embodiment of its manifold inquiry. The Commission thus accords explicit recognition to a premise which has long been implicit in its decisions: That some indicia of private carriage may be assumed, and detailed surveillance of operations undertaken, without a shipper’s having significantly shouldered the burdens of transportation. The test of substance with which the Commission supplemented its “control” inquiry in this case thus betokens no heedless departure from the beaten track of administrative decision which might occasion a judicial curb upon the exercise of administrative discretion. No more so does the inclusion in the arrangement between Oklahoma and its owner-drivers of a number of particulars also discoverable in arrangements found to constitute private carriage m earlier Commission decisions. We deal in totalities; indicia are instruments of decision, not touchstones. The Commission allowably dealt with this novel situation as an integral and unique problem in judgment, rather than simply as an exercise in counting commonplaces. Nor did it leave the basis for its decision unarticulated.
The Commission's meaning in applying the test of substance in this case is clearly told in the following language in its report:
“Here each owner-operator assigns his motor vehicle for a continuing period of time to the exclusive use of the company, furnishing a service designed to meet the distinct need of the company. He provides a service in which the equipment is furnished, maintained, and driven by the owners thereof to transport property in interstate commerce. He guarantees a fixed and definite cost for the transportation, bears the risk of profit or loss from such transportation hazards as delays in transit, breakdowns of equipment, and highway detours, and meets all of the cost of operation including appropriate licenses and trip expenses.” 79 M. C. C., at 412.
It is evident that the Commission here refused to allow Oklahoma the status of a private carrier because of its belief that financial risks are a significant burden of transportation, and its belief that such risks had been shifted by Oklahoma to the owner-operators to an extent which rendered the sanctioning of the operation as private carriage a departure from the statutory design. We think that such conclusions were well within the range of the responsibility Congress assigned to the Commission. The District Court explicitly recognized the propriety of the Commission’s inquiring into the substance of the arrangements. Yet the court’s conclusion that “what is involved here is private carriage on the part of the Company, rather than transportation for-hire by the owner-operators,” 193 F. Supp., at 281, rests on no articulated premise other than that Oklahoma did have control. If the court intended to hold that the Commission is confined to the “control” test, we think it clearly in error in view of the statutory objectives which we have set forth above. If, on the other hand, the court meant to substitute its judgment for the Commission’s on the question of substance, we think that, on this record, it indulged in an unwarranted incursion into the administrative domain.
Reversed.
Interstate Commerce Act § 204 (c), 49 Stat. 547, as amended, 49 U. S. C. § 304 (c):
“Upon complaint in writing to the Commission by any person, State board, organization, or body politic, or upon its own initiative without complaint, the Commission may investigate whether any motor carrier or broker has failed to comply with any provision of this chapter, or with any requirement established pursuant thereto. If the Commission, after notice and hearing, finds upon any such investigation that the motor carrier or broker has failed to comply with any such provision or requirement, the Commission shall issue an appropriate order to compel the carrier or broker to comply therewith. Whenever the Commission is of opinion that any complaint does not state reasonable grounds for investigation and action on its part, it may dismiss such complaint.”
Interstate Commerce Act § 203 (a) (15), 49 Stat. 544, as amended, 49 U. S. C. § 303 (a) (15):
“The term ‘contract carrier by motor vehicle’ means any person which engages in transportation by motor vehicle of passengers or property in interstate or foreign commerce, for compensation (other than transportation referred to in paragraph (14) of this section and the exception therein), under continuing contracts with one person or a limited number of persons either (a) for the furnishing of transportation services through the assignment of motor vehicles for a continuing period of time to the exclusive use of each person served or (b) for the furnishing of transportation services designed to meet the distinct need of each individual customer.”
Interstate Commerce Act §203 (a) (14), 49 Stat. 544, as amended, 49 U. S. C. § 303 (a) (14), defines “common carrier” as follows:
“The term 'common carrier by motor vehicle’ means any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property or any class or classes thereof for compensation, whether over regular or irregular routes, except transportation by motor vehicle by an express company to the extent that such transportation has heretofore been subject to chapter 1 of this title, to which extent such transportation shall continue to be considered to be and shall be regulated as transportation subject to chapter 1 of this title.”
Interstate Commerce Act § 209 (a) (1), 49 Stat. 552, as amended, 49 U. S. C. §309 (a)(1);
“Except as otherwise provided in this section and in section 310a of this title [exceptions not here pertinent], no person shall engage in the business of a contract carrier by motor vehicle in interstate or foreign commerce on any public highway or within any reservation under the exclusive jurisdiction of the United States unless there is in force with respect to such carrier a permit issued by the Commission, authorizing such person to engage in such business . . . .”
See also Interstate Commerce Act §203 (c), 71 Stat. 411, as amended, 49 U. S. C. § 303 (c) :
“Except as provided in section 302 (c) of this title, subsection (b) of this section, in the exception in subsection (a) (14) of this section, and in the second proviso in section 306 (a) (1) of this title [none of which exceptions are here pertinent], no person shall engage in any for-hire transportation business by motor vehicle, in interstate or foreign commerce, on any public highway or within any reservation under the exclusive jurisdiction of the United States, unless there is in force with respect to such person a certificate or a permit issued by the Commission authorizing such transportation, nor shall any person engaged in any other business enterprise transport property by motor vehicle in interstate or foreign commerce for business purposes unless such transportation is within the scope, and in furtherance, of a primary business enterprise (other than transportation) of such person.'’
The United States intervened as defendant, 28 U. S. C. §2322, and appellee Weather-Seal and appellant Regular Common Carrier Conference intervened as plaintiff and defendant respectively, 28 U. S. C. § 2323.
Interstate Commerce Act § 203 (a) (17), 49 Stat. 545, 49 U. S. C. § 303 (a)(17):
“The term 'private carrier of property by motor vehicle’ means any person not included in the terms ‘common carrier by motor vehicle' or ‘contract carrier by motor vehicle’, who or which transports in interstate or foreign commerce by motor vehicle property of which such person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise.”
49 Stat. 543-567, as amended, 49 U. S. C. §§ 301-327.
See S. Rep. No. 482, 74th Cong., 1st Sess. 2; H. R. Rep. No. 1645, 74th Cong., 1st Sess. 3; S. Doc. No. 152, 73d Cong., 2d Sess. 14-15, 22-23 (Report of Federal Coordinator of Transportation on the Regulation of Transportation Agencies).
Id., at 14.
See S. Rep. No. 482, 74th Cong., 1st Sess. 1; H. R. Rep. No. 1645, 74th Cong., 1st Sess. 4; H. R. Doc. No. 89, 74th Cong., 1st Sess. 17 (Report of Federal Coordinator of Transportation on Transportation Legislation).
See notes 2, 5, supra.
See note 3, supra.
See S. Doc. No. 152, 73d Cong., 2d Sess. 33 (Report of Federal Coordinator of Transportation on the Regulation of Transportation Agencies). That concern has found recent legislative expression in a 1958 amendment designed to curb so-called “buy-sell” evasions by purported or “pseudo” private carriers. 72 Stat. 568, 574, amending the Interstate Commerce Act §203 (c), 49 U. S. C. §303 (c). See S. Rep. No. 1647, 85th Cong., 2d Sess. 23-24; H. R. Rep. No. 1922, 85th Cong., 2d Sess. 17-19.
Robinson v. Woodard, 227 Ark. 102, 296 S. W. 2d 672.
While such a discharge would not automatically terminate the affected driver’s truck-lease agreement, it seems obvious that he would immediately exercise his 30-day cancellation privilege and thus remove his truck from Oklahoma’s service.
In contrast, the short-haul drivers of company-owned tractors received $50 per week plus two cents per mile.
The provision of the collective agreement that the owner-drivers “shall be required to maintain the truck in good running condition” superseded, in the parties’ practice, Oklahoma’s undertaking in the lease agreement “to keep and maintain said motor vehicle equipment at all times while in operation under this lease agreement, in first class operating condition and in complete compliance with all safety rules and regulations of all State and Federal regulatory bodies.” See 79 M. C. C., at 406, 407; 193 F. Supp., at 278.
Oklahoma paid an extra three cents per mile rental when there was a load of raw materials in the backhaul. This differential was explained as covering the cost of additional wear and tear and fuel purchases occasioned by the heavier raw materials transported on the return trips. At least to the extent that the differential was in fact absorbed by such incremental costs, it cannot be said to have represented the shifting of any financial risk.
79 M. C. C., at 415. Appellees assert that there is no presently licensed carrier able or willing to provide the type of service essential to Oklahoma's survival as a competitor. See Brief for Henry E. Drum et al., at 3. That circumstance should be presented to and considered by the I. C. C. in passing on appellees’ permit applications ; but it is not a reason for bypassing the Commission’s licensing power if Oklahoma is not a private carrier.
R. 167.
79 M. C. C., at 409-410.
79 M. C. C., at 411.
193 F. Supp., at 281-282.
See Brief for the United States and Interstate Commerce Commission at 17, n. 8:
“In this appeal, we do not challenge the district court’s conclusion that the evidence did not warrant a finding that Oklahoma lacked full control of the details of the operation. Nor do we argue as to whether the court below gave too narrow a meaning to the Commission’s control test. We assume, for present purposes, that the court below correctly applied that test as relating only to the operational aspects of the transportation.”
We need not and we do not now pass on the Commission’s view that if the shipper does not direct the details of the operation he cannot be a private carrier.
The leading case is H. B. Church Truck Service Co., 27 M. C. C. 191, 195:
"Essentially the issue is as to who has the right to control, direct, and dominate the performance of the service. If that right remains in the carrier, the carriage is carriage for hire and subject to regulation. If it rests in the shipper, it is private carriage and not subject to regulation
It was the H. B. Church case which established the presumption that a lease of equipment results in for-hire carriage. The presumption was said to “yield to a showing that the shipper has the exclusive right and privilege of directing and controlling the transportation service, as, for example, if the equipment were operated by the shipper’s employee.” 27 M. C. C., at 196.
See, e. g., Watson Mfg. Co., 51 M. C. C. 223, 226; R. N. G. Commercial Auto Renters, Inc., 73 M. C. C. 665, 670.
Teamsters Union v. Oliver, 358 U. S. 283, did not, as appellees suggest (Brief for Henry E. Drum et al., at 29), hold that owner-operators are in any sense "employees.” That case held that a bargaining unit including an overwhelming majority of concededly employed drivers of carrier-owned equipment was entitled, under § 8 (d) of the National Labor Relations Act, 61 Stat. 142, 29 U. S. C. § 158 (d), to bargain to impasse concerning minimum rentals to be received by owner-drivers. It was not necessary to determine whether the owner-drivers were “employees” protected by the Act, since the establishment of the minimum rental to them was integral to the establishment of a stable wage structure for clearly covered employee-drivers. See id., at 294-295.
See, e. g., Edward Allen Carroll, 1 M. C. C. 788; Centre Trucking Co., 32 M. C. C. 313; William A. Shields, 41 M. C. C. 100; John J. Casale, Inc., 44 M. C. C. 45; Motor Haulage Co., 46 M. C. C. 107; Jacobs Transfer Co., 46 M. C. C. 265; John J. Casale, Inc., 49 M. C. C. 15; R. N. G. Commercial Auto Renters, Inc., 73 M. C. C. 665.
See Pacific Diesel Rental Co., 78 M. C. C. 161, 172-173:
“The primary question here . . . can be asked in two forms; namely (1) Is the transportation here involved such that any person or persons other than the purported private carriers have any right to control, direct, and dominate it, or (2) Are any persons here, in substance, engaged in the business of interstate or foreign transportation of property on the public highways for hire? . . . We are convinced here that, even if all the responsibilities of an employer with respect to the driver are assumed by a shipper, the service offered . . . is, in substance, for-hire motor carriage subject to regulation under part II of the act. To hold otherwise would be inconsistent with the remedial purpose of part II and would be in contravention of our duty, imposed by Congress .... It is evident that, were we to hold that the shipper’s assumption (as an employer) of certain responsibilities which more normally fall upon a carrier, transforms an operation which, apart from such assumption, is clearly a for-hire carrier service, into an operation different in substance, we would open the door to unfair and destructive competitive practices contrary to the national transportation policy declared by Congress.”
The courts have commonly articulated their plotting of the boundary between private and regulated carriage in leased equipment cases in terms of over-all substance, rather than simply in terms of “control.” See Georgia Truck System, Inc., v. I. C. C., 123 F. 2d 210, 212 (“[A]ppellant, in substance and in reality, operates a transportation business.”); A. W. Stickle & Co. v. I. C. C., 128 F. 2d 155, 160, 161 (test of “substance and reality”); Lamb v. I. C. C., 259 F. 2d 358, 360 (“Simply stated [the issue] ... is who was transporting the goods in question.”); B & C Truck Leasing, Inc., v. I. C. C., 283 F. 2d 163, 165 (test of “substance and effect"); I. C. C. v. Isner, 92 F. Supp. 582; United States v. La Tuff Transfer Service, 95 F. Supp. 375; I. C. C. v. Werner, 106 F. Supp. 497; cf. Bridge Auto Renting Corp. v. Pedrick, 174 F. 2d 733; John J. Casale, Inc., v. United States, 114 Ct. Cl. 599, 86 F. Supp. 167. But cf. Earle v. Babler, 180 F. 2d 1016; Vincze v. I. C. C., 267 F. 2d 577; Motor Haulage Co. v. United States, 70 F. Supp. 17, affirmed, 331 U. S. 784; I. C. C. v. Gannoe, 100 F. Supp. 790; Allen v. United States, 187 F. Supp. 625.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
sc_casedisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
GENERAL AMERICAN INVESTORS CO., INC. v. COMMISSIONER OF INTERNAL REVENUE.
No. 114.
Argued February 28, 1955.
Decided March 28, 1955.
Norris Darrell argued the cause for petitioner. With him on the brief was John F. Dooling, Jr.
Solicitor General Sobeloff argued the cause for respondent. With him on the brief were Assistant Attorney General Holland, Charles F. Barber, Ellis N. Slack and Melva M. Graney.
Mr. Chief Justice Warren
delivered the opinion of the Court.
The sole question presented by this case is whether a payment is taxable as gross income when received by a corporation pursuant to the “insider profits” provisions of the Securities Exchange Act of 1934 and the Investment Company Act of 1940. Subject to exceptions not presently relevant, § 16 (b) of the Securities Exchange Act provides that the profit realized from certain defined securities transactions undertaken by a director or major stockholder of the issuing corporation “shall inure to and be recoverable by the issuer.” This provision is made applicable to investment companies by § 30 (f) of the Investment Company Act of 1940. Under these provisions, petitioner, a registered closed-end investment company, received payments totalling $170,038.04. This sum represented the profits accruing to one of petitioner’s directors and a stockholder through dealings covered by § 16 (b); the money was paid over to petitioner on demand and without litigation. The payments were not reported as income on petitioner’s tax returns. The Commissioner of Internal Revenue allowed a $13,000 deduction for legal expenses incurred in recovering the amounts due but asserted á deficiency for the balance on the ground that the receipts constituted taxable gains under § 22 (a) of the Internal Revenue Code of 1939. The Tax Court, 19 T. C. 581, and the Court of Appeals for the Second Circuit, 211 F. 2d 522, sustained the Commissioner’s determination. We granted certiorari, 348 U. S. 812, because of an apparent similarity of issues here to those involved in Commissioner v. Glenshaw Glass Co., 211 F. 2d 928 (C. A. 3d Cir.), and the possible conflict between that case and this.
We have this day decided that the recovery of punitive damages for fraud or antitrust violation is reportable as gross income within the meaning of § 22 (a). Commissioner v. Clenshaw Glass Co., ante, p. 426. The reasons which dictated that result are equally compelling here. We see no significant difference in the nature of these receipts which might make that ruling inapplicable. As in Glenshaw, the taxpayer realized the money in question free of any restrictions as to use. The payments in controversy were neither capital contributions nor gifts. Cf. Texas & Pacific R. Co. v. United States, 286 U. S. 285. There is no indication that Congress intended to exempt them from coverage. In accordance with the legislative design to reach all gain constitutionally taxable unless specifically excluded, we conclude that the petitioner is liable for the tax and the judgment is
Affirmed.
Mr. Justice Douglas concurs in the result.
Mr. Justice Harlan took no part in the consideration or decision of this case.
48 Stat. 881,15 U. S. C. § 78a.
54 Stat. 789,15 U. S. C. § 80a-l.
48 Stat. 896,15 U. S. C. § 78p.
54 Stat. 837, 15 U. S. C. § 80a-29.
“SEC. 22. GROSS INCOME.
“(a) General Definition. — ‘Gross income’ includes gains, profits, and income derived from salaries, wages, or compensation for personal service ... of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or ■profits and income derived from any source whatever. . . .” (Emphasis added.) 53 Stat. 9, 53 Stat. 574, 26 U.S. C. § 22 (a).
There was, however, no disagreement among lower courts which faced the question of the taxability of a § 16 (b) recovery of “insider profits.” See Park & Tilford Distillers Corp. v. United States, 123 Ct. Cl. 509, 107 F. Supp. 941; Noma Electric Corp., 12 T. C. M. 1 (CCH Tax Ct. Mem., Dec. 1953).
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_appel1_1_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
CHICAGO & N. W. RY. CO. v. BEWSHER.
(Circuit Court of Appeals, Eighth Circuit.
July 28, 1925.)
No. 6831.
1. Carriers <§=3160 — Carriers might, prior to amendment of Interstate Commerce Act, limit time within which suits might be brought on contracts of carriage.
Prior to amendment by Act Feb. 28, 1920, §§ 436-438 (Comp. St. Ann. Supp. 1923, § 8604a), to Interstate Commerce Act, § 20, par. 11, carriers might limit time within which suits might be brought on contracts of carriage, subject only to reasonableness of the limitation.
2. Carriers <§=3160 — Carriers held unauthorized to place any fiat restriction on time within which suit may be brought on contracts of carriage, based on ti-me of delivery of the shipment.
Under Interstate Commerce Act, § 20, par. 11, as amended by Act Feb. 28, 1920, §§ 436-438 (Comp. St. Ann. Supp. 1923, § 8604a), carriers held unauthorized to place any flat restriction on time within which suit may be brought on contracts of carriage, based on time of delivery of the shipment, rather than time of giving of the notice prescribed therein.
3. Carriers <§=3160 — Limitation in bill of lading for institution of suits for loss, damage, or delay on contracts of carriage, held void, as contravening amendment of Interstate Commerce Act.
Provision of bill of lading that suits for loss, damage, or delay on contracts of carriage should be instituted only within two years and one day after • delivery of the property, or, in case of failure to make delivery within two years and one day, after a reasonable time for delivery has elapsed, held void, as contravening Interstate Commerce Act, § 20, par. 11, as amended by Act Feb. 28, 1920, §§ 439-438 (Comp. St. Ann. Supp. 1923, § 8604a).
4. Carriers <§=359 — Holder of order bill of lading not estopped to maintain action for damages for issuance of false bill of lading by redelivery of claim to shipper and shipper’s settlement with carrier.
In action by holder in good faith of order bill of lading, under Bill of Lading Act Aug. 29, 1916, § 22 (Comp. St. § 8604kk), for damages caused by carrier’s nonreceipt of part of carload of wheat described in bill of lading, plaintiff held not estopped to maintain his action by redelivering claim and supporting papers to shipper, and by shipper’s settlement, where claim made and filed was for wheat declared to have been lost in transit.
5. Carriers <§=>52(2) — Carrier may show that goods described in hill of jading were never delivered, and is not estopped by recitals in bill.
Carrier, issuing a bill of lading, may show that the goods described therein were never in fact delivered, and is not estopped by recitals in such bill.
6. Carriers <§=355 — Bill of Lading Act manifests congressional intention to make ordinary bills of lading fully negotiable.
Bill of Lading Act Aug. 29, 1916 (Comp. St. §§ 8604aaa-8604w), manifests a clear intention of Congress to malte ordinary bills of lading fully negotiable and they are to be considered so as to holders in good faith, unless they carry some of the notices or declarations specified in the act, or others of like import, or some notice or recitation inconsistent with negotiability.
7. Carriers <§=359— Carrier held liable to holder in good faith of order bill of lading for damages caused by nonreceipt of part of carload of wheat; “weight subject to correction."
Carrier held liable to holder in good faith of order bill of lading covering car of wheat for damages caused by carrier’s nonreceipt of part of the goods, in view of Bill of Lading Act Aug. 29, 1916, §§ 20, 22 (Comp. St. §§ 8604jj, 8604kk), notwithstanding that wheat was loaded by shipper, and that bill of lading recited that weight was “subject to correction”; such words not being of “like purport” to the words “shipper’s weight, load, and count,” or “shipper’s weight,” or that weight of wheat was “said to be” weight recited in bill of lading, within section 21 (Comp. St. § 8604k), prescribing what descriptions in bill of lading shall not render carrier liable.
In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.
Action by Augustus H. Bewsher, doing business as the Bewsher Company, against the Chicago & Northwestern Railway Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
Wymer Dressier, Robert D. Neely, and Paul S. Topping, all of Omaha, Neb., for plaintiff in error.
R. B. Schuyler, of Omaha, Neb., for defendant in error.
Before SANBORN and KENYON, Circuit Judges, and SCOTT, District Judge.
SCOTT, District Judge.
This is an action by Augustus H. Bewsher, doing business as the Bewsher Company, a grain dealer at Omaha, Neb., against the Chicago & Northwestern Railway Company, to recover $650.-75 damages alleged to be due on account of tbe issuance of an order bill of- lading to ene Albert Swick at Buffalo Gap, S. D., for 66,000 pounds of bulk wheat. Plaintiff in his petition alleges in substance that on or about the 27th day of December, 1920, Albert Swick loaded at Oral, S. D., defendant’s car No. 118,720 with wheat; that said wheat was consigned to the plaintiff at Omaha, Neb., and the duly authorized agent of defendant at Buffalo Gap, S. D., issued a bill of lading covering said wheat, a copy of which bill of lading is exhibited on plaintiff’s petition; that said bill of lading with draft attached was forwarded from the- Oral State Bank, of Oral, S. D., to the 'Merchants’ National Bank, of Omaha, Neb.; that said draft was drawn on the plaintiff for the amount of $1,900, which draft was honored and paid by the plaintiff on January 3, 1921; that at the time plaintiff honored said draft he was the holder in good faith of said order bill of lading and paid $1,900 to Merchants’ National Bank, agent'of Albert Swick, the shipper, relying upon the description set forth in said bill of lading, and at the time actually believed that there was 66,-000 pounds of wheat shipped in said car; that as a matter of fact said ear never contained 66,000 pounds of wheat, but only contained 45,590 pounds; that defendant company negligently failed to weigh the wheat at the time of shipment, and failed to notify plaintiff of the fact that said wheat was not weighed.
Plaintiff further pleads that on or about the 3d day of February, 1921, having prior thereto taken an assignment of the claim of said Albert Swick, he filed a daim for the account of plaintiff with defendant, together with proof of loss thereon, said claim being covered by defendant’s claim No. 201,977— Desk 1; that said claim was filed with defendant in less than 90 days from the date of delivery of said wheat at destination; that on or about the 14th day of May, 1921, defendant refused to pay said claim, but did offer to compromise the same for the amount of.$54.55. The bill of lading exhibited on plaintiff’s petition recites'the receipt at Buffalo Gap, S. D., from Albert Swick, C & NW ear No. 118,720, and under the description of articles, recites: “Bulk Wheat, 60 M car Ordered 80 M ear furnished Co C &NW Weight (subject to correction) 66,-000 Loaded at Oral SD.”
Defendant, answering, admits that on the date alleged. Albert Swick loaded the car in question with bulk wheat at Oral, S. D., and consigned same to himself at Omaha, Neb., notifying the plaintiff company;'admits that the bill of lading was issued as alleged; and concludes by denying all other allegations of plaintiff’s petition. Defendant, further answering, pleads four separate defensive paragraphs, the order of which we transpose somewhat, to meet what we deem to be the logical order of their consideration. These defenses are:
(1) That section 2 of said bill of lading provides that no suit shall be maintained thereon unless commenced within two years and one day from the delivery of the goods therein, and defendant alleges that this suit was not commenced within said time, and is therefore barred by the terms of said bill of lading.
(2) That plaintiff made claim against defendant on the 4th day of February, 1921, for $577.76 for alleged loss of grain from said ear during transportation, and among the papers presented to the defendant in support of said claim was a copy of an assignment made by Albert Swick to plaintiff; and on March 8, 1921, defendant wrote a letter to plaintiff, declining to recognize said claim, and defendant alleges that this suit was not commenced within two years from March 8, 1921, and is therefore barred by operation of law.
(3) That plaintiff is estopped to maintain this suit for the reason that, after plaintiff had made said claim upon defendant and said claim was declined by defendant, plaintiff delivered to Albert Swick all supporting papers, including the assignment which plaintiff had presented to defendant in support of said claim, and thereafter the said Albert Swiek again presented to the defendant said claim for alleged loss of grain in transit from said shipment, and Albert Swick and defendant entered into a compromise and settlement of said claim for the sum of $54.05, and the defendant on June 2,' 1921, paid to Albert Swick the sum of $54.05 in full settlement of all claims on account of said shipment; that by reason of said conduct plaintiff is now estopped to claim that he had any interest in said shipment or in said claim, other than ás the representative of Albert Swick, and defendant alleges that said claim has been fully compromised and settled.
(4) That the wheat mentioned in plaintiff’s petition was loaded by the shipper, on facilities furnished by the shipper, and was not loaded by the defendant, and same was received under the terms of said bill of lading, which provided that the weight of said shipment was subject to correction.
The ease was tried upon the issues as stated. The facts were largely stipulated, and from such stipulation and the testimony of plaintiff Bewsher, the following facts appear without controversy:
That about the date alleged Albert Swick loaded the car of bulk wheat at Oral, S. D., That as of the same date defendant’s agent at Buffalo Gap issued the bill of lading in question with the recitals as stated in plaintiff’s petition. That the ear was weighed on track scales at Chadron, and the weight of the grain, using the gross weight and then subtracting the stenciled weight on the ear, resulted in a net weight of 48,300 pounds, and that the weight ascertained at Omaha, when the grain was unloaded and weighed by the grain exchange weighmaster, was 45,590 pounds. That there was no actual loss of grain from the car, and the car was in good condition, and the difference between the indicated weight on the bill of lading and the unloading weight was never actually put into the ear. That on February 4, 1921, plaintiff presented a claim to defendant, having first taken an assignment from Albert Swick, for the sum of $577.76 for shortage in the shipment, supporting his claim by a copy of the bill of lading, weights, and the assignment of the claim from Swick. That on March 8, 1921, H. C. Howe, freight claim agent, claim department of defendant, wrote the Bewsher Company the following letter:
“Referring to your claim No. 746, our number as above, for $577.76, alleged loss of wheat shipped from Buffalo Gap, S. D., to Omaha, Neb., amount of wheat claimed to have been lost 20,780 pounds: From the investigation I have made of this matter, I find that this ear was weighed at Chadron, a short distance from Buffalo Gap,with a net weight of 48,300 pounds. Deducting 800 pounds for the grain doors would leave a net weight of 47,500 pounds, and as your weight at Omaha was 45,590, it is quite clear to me that there was no loss beyond the 1,910 pounds, and that an error has been made in weighing at point of shipment. There is no record of the car being in bad order. It arrived under proper seals, and therefore'I cannot see any greater loss than the 1,910 pounds, less 67 pounds for shrinkage, which, together with the freight on the shrinkage and the price, $1.65, would leave $54.05 due you, which I am willing to pay.”
That on April 5,1921, the Bewsher Company wrote defendant the following letter:
“Please refer to yours of March 8th, file Rr-201977-1. The shipper requests us to instruct you to return all papers filed in connection with this claim, so that he can turn them over to> an attorney, with instructions to bring suit. Your offer-of settlement is too ridiculously low to be given consideration, in view of the shipper’s contention that he can well substantiate the weight loaded into this car. Therefore be good enough to return these papers to us at once.”
That after some delay the supporting papers of the claim were returned by the defendant to the plaintiff, who transmitted the same to Albert Swick with the following letter:
“May 16, 1921.
“Mr. Albert Swick, Oral, So. Dak.— Dear Sir: Although we instructed the Northwestern, under date of April 5th, to return all papers we filed with them in your claim for shortage - on car 118720, shipped December 27, 1920, we only to-day received them, and herewith return them to you. The recall of these papers was due to the fact that, while this claim was filed for $577.76, as indicated by copy of invoice which we herewith attach, they made an offer of settlement of only $54.05, which we refused, and suggested to you that you place these papers in the hands of your attorney, and, if you are in a position to substantiate the weights as loaded into the ear beyond any question of a doubt, he can recover for you. We will be very glad to furnish any information your attorney may need from this end of the line, and assist in any way possible to help recover this money for you. We think you will find that your attorney will be willing to handle this on a contingency fee; that is, a percentage of the amount he collects, and, if he collects nothing, he will probably only ask you to pay the costs that he has been put to in the suit. We wish you luck in this collection, and, as before stated, if we can be of additional service in recovering this amount, let us know. We are also returning you the weight tickets you sent us at the time we asked you for a copy of your weights in connection with this claim.
“Yours very truly, Manager.”
That Albert Swick, following receipt of the supporting papers, communicated with the claim department of defendant, and made settlement of the claim for the sum of $54.05, being the amount of shortage ascertained by defendant.
In addition to the foregoing facts, which were stipulated, plaintiff testified in his own behalf to the custom and method of handling such transactions in his office, which was in substance that the clerk or bookkeeper, on presentation of the draft and bill of lading would figure out the value of the contents of the car, based on the existing state of the Omaha market, and if there was an apparent overdraft they would submit it to him, as to whether it should be paid; that if the car was clear, and no apparent overdraft, he would never see the papers; that his usual custom was to allow the shipper to draw from 75 to 85 per cent, of the value of a shipment; that a man whose eredit was without question could probably draw 90 or 95 per cent., and occasionally $100 or $150 overdraft would not be questioned; that Mr. Swiek was a customer that he would not allow to overdraw very much, but would try to hold his business by not telling him he doubted his credit, but at the same time would not like to pay an overdraft for him; that plaintiff procured the assignment of the claim from Albert Swiek and filed the claim with the defendant, calling attention to the assignment and requesting payment direct to him; that he was never advised of the settlement by Swiek until shortly before suit was begun.
The record shows without controversy that plaintiff honored the draft for $1,900 and paid the same, and has not been repaid; and it is stipulated that, if plaintiff is entitled to recover anything, he is entitled to recover $595. At the conclusion of defendant’s testimony both parties rested, and upon motion of the plaintiff the eourt directed a.verdict for the plaintiff for the amount above indicated, to which defendant excepted, and after entry of judgment sued out writ of error, and now assigns the following errors:
“I. The eourt erred in instructing the jury to return a verdict for the plaintiff and in refusing to instruct a verdict for defendant.
“II. The court erred in holding and deciding that the provision in the bill of lading involved m this suit, limiting the right to bring the suit to a period of two years from the time the claim, or any part thereof, was declined, was null and void.
“III. The court erred in holding and deciding that the letter written by H. C. Howe to the Bewsher Company and contained in the bill of exceptions did not constitute a declination of said claim, or any part thereof, within the meaning of the Interstate Commerce Act as amended.
“IY. The court erred in entering judgment in favor of the plaintiff and against the defendant.”
The foregoing assignment of errors was filed with the clerk at the time the writ of error was sued out. Assignment II above is now apparently abandoned, and we think properly so, as it had no foundation in the record. Counsel for plaintiff in error on their brief assign that error in the following language:
“The court erred in its ruling of law upon the proposition that the limitation in the bill of lading restricting the right to commence suit within two years, and not after, from the time of shipment, was null and void under the Interstate Commerce Act.”
Counsel in briefs and arguments have not followed the order of assignment of error, nor confined themselves strictly to the propositions involved therein. We are therefore of opinion that the questions presented for decision can be more logically discussed by following the order of the defenses as they appear in our statement of the issues. These questions are:
(1) Is the provision in section 3 of the bill of lading that “suits for loss, damage or delay, shall be instituted only within two years and one day after delivery of the property, or, in case of failure to make the delivery, then within two years and one day after a reasonable time for delivery has elapsed,” void as contravening the amendment of February 28, 1920, to paragraph 11 of section 20 of the Act to Regulate Commerce?
(2) May and should the eourt read out of the provision quoted the words, “after delivery of the property,” etc., and read into the contract the provision in said amendment that such period for institution of suits be computed from the date when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part thereof specified in the notice?
(3) Is plaintiff estopped to maintain the suit because he redelivered the claim and supporting papers to Albert Swiek with direction to commence suit, and the settlement of the claim by Albert Swiek?
(4) Is plaintiff concluded by the fact that the grain was loaded by the shipper and that the bill of lading recited that the weight was “subject to correction”?
We consider these questions in the order stated. It is well settled that, prior to the amendment approved February 28, 1920, it was entirely competent for carriers to limit the time within which suits might be brought on contracts of carriage, subject only to the reasonableness of the limitation. Indeed, we are not without authority on the subject as applied to the particular statute as it existed prior to the amendment. Leigh Ellis & Co. v. Payne (D. C.) 274 F. 443, affirmed by the Circuit Court of Appeals for the Fifth Circuit in Leigh Ellis & Co. v. Davis, 276 F. 400, and affirmed by the Supreme Court of the United States in Leigh Ellis & Co. v. Davis, 260 U. S. 682, 43 S. Ct. 243, 67 L. Ed. 460.
Under this statute, as it existed before the amendment, and other provisions relative to the filing of claims, hardship often occurred by reason of the delay of the carrier in giving notiee of its disapproval of the claim, often resulting in an unreasonable balance of time within which the shipper might institute his suit. This was at least one of the evils which Congress sought to remedy by the amendment of February 28, 1920. By that amendment the words, “such period for institution of suits to be computed from the day when notiee in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notiee,” were added to the previous paragraph, making the paragraph read as follows:
“Provided further, that it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notiee of claims than ninety days, for the filing of claims than four months, and for the institution of suits than two years, such period for institution of suits to be computed from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice.” Comp. St. Ann. Supp. 1923, § 8604a.
It seems to us clear that, after the amendment quoted, any flat restriction of time within which suit might be brought based upon the time of delivery of the shipment, rather than the time of the giving of the notice prescribed, would be in contravention of the amendment, and “be unlawful” within the purview of the amended paragraph.
But plaintiff in error, probably anticipating the possibility of the conclusion we here reach, contends that, notwithstanding the inconsistency of the language of the provision of the contract with the amended statute, the court should read out of the contract that part of its express language which initiates the time limit at the date of shipment, and read into the contract the provision of the amendment of 1920. In support of this contention counsel cites American Railway Express Co. v. Lindenburg, 260 U. S. 584, 43 S. Ct. 206, 67 L. Ed. 414. We do not think this ease in point on the question under consideration. In that ease the unlawful provision of the receipt could be readily separated from the remaining provisions, and that case merely holds that the presence of the unlawful provision did not render unlawful others which were separable from it. In the instant case, however, we are asked, not only to read out of the contract a particular expressed provision, but to substitute therefor another entirely different provision, and thereby to declare lawful and enforceable a form of contract which Congress deliberately undertook to and did prohibit. We are constrained to the conclusion that this cannot be done.
We come now to the question of estoppel. Is the plaintiff estopped by his conduct in redelivering the claim and supporting papers to Swick, and by Swick’s settlement? Examination of the claim filed with the defendant and its supporting papers makes clear that the claim made and filed was for wheat declared to have been lost in transit. The contention was for a disparity in weight between the time of loading and the time of unloading. There was a difference between the claim of the shipper and the fact' as ascertained by the defendant. That Swick, the shipper, and the plaintiff, proceeded upon the theory that 66,000 pounds of wheat had been loaded, is clearly indicated by plaintiff’s letter to Swick when he returned the claim and supporting papers. He says: “If you are in a position to substantiate the weights as loaded into the car beyond any question of a doubt, he can recover for you.” It is clear from the record that throughout all negotiations prior to the beginning of suit, all parties proceeded upon the theory that the controversy was over grain lost in transit, and that was plaintiff's thought at the time he returned the claim and supporting papers. But the plaintiff at least was mistaken in this assumption.
As to whether Swick was mistaken is a matter upon which the record throws no light. In any event, Swick on return of the papers reopened negotiations with the defendant, and promptly arrived at a settlement on the basis of the amount of grain actually lost in transit, and received in settlement full payment therefor. It is beyond question that the $54.05 received by Swick was all that he could possibly have recovered, had he instituted suit and prosecuted it to judgment. Under no theory suggested or advanced was the defendant liable to Swick for more grain than he actually loaded. And it was a claim for grain loaded that Swick undertook to assign, and that plaintiff undertook a redelivery, and for which settlement was made. We think such a settlement has no concluding effect upon the cause of action for damages for the issuance of a false bill of lading, liability for which is to be established under the provisions of section 22 of the Bill of Lading Act, approved August 29, 1916 (Comp. St. § 8604kk). The cause of action declared in the plaintiff’s petition is entirely different from that declared in the claim originally filed with the defendant. We therefore conclude that the plaintiff is not es-topped by the Swick settlement.
Finally, is plaintiff concluded by the fact that ’the grain was loaded by the shipper, and that the hill of lading recited that the weight was “subject to correction”? Examination of this question leads us to consider the legal character of bills of lading, and some mutations of such character brought about by national legislation. It has been almost universally held that a hill of lading is not only a receipt, but.a contract; and numerous decisions of state courts have clothed such instruments with a character of negotiability more or less complete. For examples of these decisions one may consult 6 Cyc. under head of “Carriers,” subhead “Bills of Lading,” and for a discussion of the principle of estoppel of the issuance of a bill of lading particularly, page 418 et seq. See, also, 1 Hutchinson on Carriers (3d Ed.) § 157 et seq. The Supreme Court of the United States, however, had long prior to the Act of Congress of August 29, 1916, commonly called the Bill of Lading Act, declared its own views with respect to these instruments, in Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998, Mr. Justice Miller, in speaking for that court, said:
“A bill of lading is an instrument well known in commercial transactions, and its character and effect have been defined by judicial decisions. In the hands of the holder it is evidence of ownership, special or general, of the property mentioned in it, and of the right to receive said property at the place of delivery. Notwithstanding it is designed to pass from hand to hand, with or without indorsement, and it is efficacious for its ordinary purposes in the hands of the holder, it is not a negotiable instrument or obligation in the sense that a bill of exchange or a promissory note is. Its transfer does not preclude, as in those cases, all inquiry into the transaction in which it originated, because it has come into hands of persons who have innocently paid value for it. The doctrine of bona fide purchasers only applies to it in a limited sense.
“It is an instrument of a twofold character. It is at once a receipt and'a contract. In the former character it is an acknowledgment of the receipt of property on board his vessel by the owner of the vessel. In the latter it is a contract to carry safely and deliver. The receipt of the goods lies at the foundation of the contract to carry and deliver. If no goods are actually ■ received, there can be no valid contract to' carry or to deliver.”
It was held in that case that, although innocent, the indorsee and holder of a bill of lading with draft attached could not recover; it being shown that the cotton for which the bill was issued was never delivered to the master of the boat. This decision was followed in Missouri Pacific R. Co. v. McFadden, 154 U. S. 155,14 S. Ct. 990, 38 L. Ed. 944, and in many other eases. So it seems to us to have been firmly established by decisions of the Supreme Court that the carrier issuing a bill of lading may show that the goods described therein were never in fact delivered, and that such carrier is not estopped by the recitals in such hill. It is not so well settled, however, that where a shipment has actually been delivered, but the goods fall short of the quantity declared in the bill of lading, that the carrier may with equal success urge such defense. This question is quite exhaustively discussed by Mr. Freeman in a note to Chandler v. Sprague, 38 Am. Dec. at pages 413 and 414. The conclusion there is apparently arrived at that the bill of lading is not conclusive as to quantity. The author of the note on page 414 criticizes the application of the rule where a portion of the goods have been delivered. It is there said:
“A plain distinction exists, as it seems to us, between the two classes of cases. There is some show of reason for holding that a bill of lading issued by a master or other agent, where no goods have been shipped, is beyond the agent’s authority, and therefore void even in the hands of a stranger who has in good faith advanced money on it. But where there is a shipment of goods, the master or agent has authority to sign a bill of lading, and if he misrepresents the quantity of goods, and an. innocent third person is thereby induced to part with his money ■on the faith of the representation, the principal ought certainly to be bound, because the agent has not acted outside of his authority, but has merely abused it. ”
Whatever may be the merits of the argument here under consideration of the doctrine of estoppel in pais, it has been sufficiently settled in the federal jurisdiction that no estoppel results by reason of the negotiable character of the instrument. This fact no doubt influenced in a measure the action of Congress in the enactment of the Bill of Lading Act. While that act does not in so many words declare bills of lading to be negotiable instruments, we think, from the implications of the various provisions of the act and the repeated declarations that things specified shall not render these instruments nonnegotiable, that it was the clear intention of Congress to so legislate that ordinary bills of lading may be fully negotiable, and are to be considered so as to holders in good faith, unless they carry some of the notices or declarations specified in the act or others of like import, or some notice or recitation inconsistent.with negotiability.
Three sections of the act, sections 20, 21, and 22 (Comp. St. Ann. Supp. 1923, §§ 8604jj — 8640kk), should be carefully analyzed in determining the question under consideration. Section 20 deals with goods loaded by the carrier, and prescribes certain duties of the carrier in such cases. In ease of package freight, the carrier must “count the packages,” and, if bulk freight, “ascertain the kind and quantity,” and then follows the provision that in such cases the carrier shall not insert in the bill of lading or in any notice, receipt, contract, rule, regulation, or tariff, the words, “Shipper’s weight, load, and count,” or other words of like purport, indicating that the goods are loaded by the shipper and the description made by him.
Section 21 deals with freight loaded by' the shipper, and prescribes when descriptions in the bill of lading shall not render the carrier liable, as, for instance, when “the goods are described in a bill of lading merely by a statement of marks or labels upon them or upon packages containing them, or by a statement that the goods are said to be goods of a -certain kind or quantity, or in a certain condition, or it is stated in the bill of lading that packages are said to contain goods of a certain kind or quantity or in a certain condition, or that the contents or condition of the contents of packages are unknown, or words of like purport are contained in the bill of lading.” It is further provided that, when these statements are contained in the bill, the description shall not render the carrier liable, “although the goods are not of the kind or quantity or in the condition which the marks or labels upon them indicate, or of the kind or quantity or in the condition they were said to be by the consignor.” This section further provides:
“The carrier may also by inserting in the bill of lading the words 'Shipper’s weight, load, and count,’ or other words of like purport indicate that the goods were loaded by the shipper and the description of them made by him; and if such statement be true, the carrier shall not be liable for damages caused by the improper loading or by the nonreceipt or by the misdescription of the goods described in the bill of lading.”
Section 22 is the section by which we think Congress intended to change the existing rule of liability as declared by the federal courts. That section provides:
“That if a bill of lading has been issued by a carrier or on his behalf by an agent or employee the scope of whose actual • or apparent authority includes the receiving of goods and issuing bills of lading therefor for transportation in commerce among the several States and with foreign nations, the carrier shall be liable to' (a) the owner of goods covered by a straight- bill subject to existing right of stoppage in transitu or (b) the holder of an order bill, who has given value in good faith, relying upon the description therein of the goods, for damages caused by the nonreeeipt by the carrier of all or part of the goods or their failure to correspond with the description thereof in the bill at the time of its issue.”
Now in the case at bar we are dealing with bulk freight loaded by the shipper, but the bill of lading does not contain any of the particular notices or recitals specified in section 21 of the Bill of Lading Act, and unless we are to hold that the mere words “weight subject to correction” are of “like purport” to the words “shipper’s weight, load and count,” or “shipper’s weight,” or are equivalent to a statement that the weight of the wheat is “said to be” 66,000 pounds, then it would seem clear that the defendant would be liable to a holder in good faith of the order bill in question “for damages caused by the nonreceipt by the carrier of all or part of the goods.”
We do not overlook the fact that there are some scattering judicial pronouncements of the fact that the insertion of the words “weight subject to correction” in a bill of lading is sufficient to avoid the effect of the estoppel which might otherwise result. In Brown v. Missouri, K. & T. R. Co., 83 Kan. 574, 112 P. 147, the Supreme Court of Kansas said: “Ordinarily bills of lading are prima facie evidence against the carrier issuing them of the amount of goods received. 4 A. & E. Encycl. of L. 522; 1 Hutchinson on Carriers, § 158. The defendant maintains that here they have not that effect, because of the insertion of the qualifying words, ‘in apparent good order’ and ‘
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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sc_lcdispositiondirection
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
SCHRIRO, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS v. LANDRIGAN, aka HILL
No. 05-1575.
Argued January 9, 2007
Decided May 14, 2007
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Auto, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 482.
Kent E. Cattani, Assistant Attorney General of Arizona, argued the cause for petitioner. With him on the briefs were Terry Goddard, Attorney General, Mary R. O’Grady, Solicitor General, and Patricia Nigro, Assistant Attorney General.
Donald B. Verrilli, Jr., argued the cause for respondent. With him on the brief were Jon M. Sands, Dale A. Baich, Sylvia J. Lett, Ian Heath Gershengorn, Elaine J. Golden-berg, and Scott B. Wilkens
Briefs of amici curiae urging reversal were filed for the State of California et al. by Bill Lockyer, Attorney General of California, Manuel M. Medeiros, State Solicitor General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Donald, E. De Nicola, Deputy State Solicitor General, Keith H. Borjon, Supervising Deputy Attorney General, and Kristofer Jorstad, and James William Bilderback II, Deputy Attorneys General, by Kevin T. Kane, Chief State’s Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Mike Beebe of Arkansas, John W. Suthers of Colorado, Thurbert E. Baker of Georgia, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, Jim Hood, of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Jon Bruning of Nebraska, George J. Chanos of Nevada, Kelly A. Ayotte of New Hampshire, Jim Petro of Ohio, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Greg Abbott of Texas, Mark L. Shurtleff of Utah, Robert F. McDonnell of Virginia, Rob McKenna of Washington, and Patrick J. Crank of Wyoming; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Rhonda C. Canby.
Briefs of amici curiae urging affirmance were filed for the American Bar Association by Karen J. Mathis, Lawrence J. Fox, and David, J. Kessler; and for the National Association of Criminal Defense Lawyers by Andrew J. Pincus, Charles A Rothfeld, Giovanna Shay, Christopher Lasch, and Pamela Harris.
Justice Thomas
delivered the opinion of the Court.
In cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary hearing by 28 U. S. C. § 2254(e)(2), the decision to grant such a hearing rests in the discretion of the district court. Here, the District Court determined that respondent could not make out a colorable claim of ineffective assistance of counsel and therefore was not entitled to an evidentiary hearing. It did so after reviewing the state-court record and expanding the record to include additional evidence offered by respondent. The Court of Appeals held that the District Court abused its discretion in refusing to grant the hearing. We hold that it did not.
I
Respondent Jeffrey Landrigan was convicted in Oklahoma of second-degree murder in 1982. In 1986, while in custody for that murder, Landrigan repeatedly stabbed another inmate and was subsequently convicted of assault and battery with a deadly weapon. Three years later, Landrigan escaped from prison and murdered Chester Dean Dyer in Arizona.
An Arizona jury found Landrigan guilty of theft, second-degree burglary, and felony murder for having caused the victim’s death in the course of a burglary. At sentencing, Landrigan’s counsel attempted to present the testimony of Landrigan’s ex-wife and birth mother as mitigating evidence. But at Landrigan’s request, both women refused to testify. When the trial judge asked why the witnesses refused, Landrigan’s counsel responded that “it’s at my client’s wishes.” App. to Pet. for Cert. D-3. Counsel explained that he had “advised [Landrigan] very strongly that I think it’s very much against his interests to take that particular position.” Ibid. The court then questioned Landrigan:
“THE COURT: Mr. Landrigan, have you instructed your lawyer that you do not wish for him to bring any mitigating circumstances to my attention?
“THE DEFENDANT: Yeah.
“THE COURT: Do you know what that means?
“THE DEFENDANT: Yeah.
“THE COURT: Mr. Landrigan, are there mitigating circumstances I should be aware of?
“THE DEFENDANT: Not as far as I’m concerned.” Id., at D-3 to D-4.
Still not satisfied, the trial judge directly asked the witnesses to testify. Both refused. The judge then asked counsel to make a proffer of the witnesses’ testimony. Counsel attempted to explain that the witnesses would testify that Landrigan’s birth mother used drugs and alcohol (including while she was pregnant with Landrigan), that Landrigan abused drugs and alcohol, and that Landrigan had been a good father.
But Landrigan would have none of it. When counsel tried to explain that Landrigan had worked in a legitimate job to provide for his family, Landrigan interrupted and stated, “If I wanted this to be heard, I’d have my wife say it.” Id., at D-6. Landrigan then explained that he was not only working but also “doing robberies supporting my family.” Id., at D-7. When counsel characterized Landrigan’s first murder as having elements of self-defense, Landrigan interrupted and clarified: “He didn’t grab me. I stabbed him.” Id., at D-9. Responding to counsel’s statement implying that the prison stabbing involved self-defense because the assaulted inmate knew Landrigan’s first murder victim, Landrigan interrupted to clarify that the inmate was not acquainted with his first victim, but just “a guy I got in an argument with. I stabbed him 14 times. It was lucky he lived.” Ibid.
At the conclusion of the sentencing hearing, the judge asked Landrigan if he had anything to say. Landrigan made a brief statement that concluded, “I think if you want to give me the death penalty, just bring it right on. I’m ready for it.” Id., at D-16.
The trial judge found two statutory aggravating circumstances: that Landrigan murdered Dyer in expectation of pecuniary gain and that Landrigan was previously convicted of two felonies involving the use or threat of violence on another person. Id., at D-23. In addition, the judge found two nonstatutory mitigating circumstances: that Landrigan’s family loved him and an absence of premeditation. Ibid. Finally, the trial judge stated that she considered Landrigan “a person who has no scruples and no regard for human life and human beings.” Ibid. Based on these findings, the court sentenced Landrigan to death. On direct appeal, the Arizona Supreme Court unanimously affirmed Landrigan’s sentence and conviction. In addressing an ineffective-assistance-of-counsel claim not relevant here, the court noted that Landrigan had stated his “desire not to have mitigating evidence presented in his behalf.” State v. Landrigan, 176 Ariz. 1, 8, 859 P. 2d 111, 118 (1993).
On January 31, 1995, Landrigan filed a petition for state postconviction relief and alleged his counsel’s “fail[ure] to explore additional grounds for arguing mitigation evidence.” App. to Pet. for Cert. F-3 (internal quotation marks omitted). Specifically, Landrigan maintained that his counsel should have investigated the “biological component” of his violent behavior by interviewing his biological father and other relatives. Id., at E-2. In addition, Landrigan stated that his biological father could confirm that his biological mother used drugs and alcohol while pregnant with Landrigan. Ibid.
The Arizona postconviction court, presided over by the same judge who tried and sentenced Landrigan, rejected Landrigan’s claim. The court found that “[Landrigan] instructed his attorney not to present any evidence at the sentencing hearing, [so] it is difficult to comprehend how [Landrigan] can claim counsel should have presented other evidence at sentencing.” Id., at F-4. Noting Landrigan’s contention that he “ ‘would have cooperated’ ” had other mitigating evidence been presented, the court concluded that Landrigan’s “statements at sentencing belie his new-found sense of cooperation.” Ibid. Describing Landrigan’s claim as “frivolous,” id., at F-5, the court declined to hold an evidentiary hearing and dismissed Landrigan’s petition. The Arizona Supreme Court denied Landrigan’s petition for review on June 19, 1996.
Landrigan then filed a federal habeas application under §2254. The District Court determined, after “expand[ing] the record to include . . . evidence of [Landrigan’s] troubled background, his history of drug and alcohol abuse, and his family’s history of criminal behavior,” id., at C-22, that Landrigan could not demonstrate that he was prejudiced by any error his counsel may have made. Because Landrigan could not make out even a “colorable” ineffective-assistance-of-counsel claim, id., at C-46, the District Court refused to grant him an evidentiary hearing.
On appeal, a unanimous panel of the Court of Appeals for the Ninth Circuit affirmed, but the full court granted rehearing en banc, Landrigan v. Stewart, 397 F. 3d 1235 (2005), and reversed. The en banc Court of Appeals held that Landrigan was entitled to an evidentiary hearing because he raised a “colorable claim” that his counsel’s performance fell below the standard required by Strickland v. Washington, 466 U. S. 668 (1984). 441 F. 3d 638, 650 (2006). With respect to counsel’s performance, the Ninth Circuit found that he “did little to prepare for the sentencing aspect of the case,” id., at 643, and that investigation would have revealed a wealth of mitigating evidence, including the family’s history of drug and alcohol abuse and propensity for violence.
Turning to prejudice, the court held the Arizona post-conviction court’s determination that Landrigan refused to permit his counsel to present any mitigating evidence was “an ‘unreasonable determination of the facts.’” Id., at 647 (quoting 28 U. S. C. § 2254(d)(2)). The Court of Appeals found that when Landrigan stated that he did not want his counsel to present any mitigating evidence, he was clearly referring only to the evidence his attorney was about to introduce — that of his ex-wife and birth mother. 441 F. 3d, at 646. The court further held that, even if Landrigan intended to forgo the presentation of all mitigation evidence, such a “last-minute decision cannot excuse his counsel’s failure to conduct an adequate investigation prior to the sen-tenting.” Id., at 647. In conclusion, the court found “a reasonable probability that, if Landrigan’s allegations are true, the sentencing judge would have reached a different conclusion.” Id., at 650. The court therefore remanded the case for an evidentiary hearing.
We granted certiorari, 548 U. S. 941 (2006), and now reverse.
II
Prior to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, the decision to grant an evidentiary hearing was generally left to the sound discretion of district courts. Brown v. Allen, 344 U. S. 443, 463-464 (1953); see also Townsend v. Sain, 372 U. S. 293, 313 (1963). That basic rule has not changed. See 28 U. S. C. § 2254, Rule 8(a) (“[T]he judge must review the answer [and] any transcripts and records of state-court proceedings ... to determine whether an evidentiary hearing is warranted”).
AEDPA, however, changed the standards for granting federal habeas relief. Under AEDPA, Congress prohibited federal courts from granting habeas relief unless a state court’s adjudication of a claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” § 2254(d)(1), or the relevant state-court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2). The question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold. See Williams v. Taylor, 529 U. S. 362,410 (2000). AEDPA also requires federal habeas courts to presume the correctness of state courts’ factual findings unless applicants rebut this presumption with “clear and convincing evidence.” § 2254(e)(1).
In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief. See, e.g., Mayes v. Gibson, 210 F. 3d 1284, 1287 (CA10 2000). Because the deferential standards prescribed by §2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate. See id., at 1287-1288 (“Whether [an applicant’s] allegations, if proven, would entitle him to habeas relief is a question governed by [AEDPA]”).
It follows that if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing. The Ninth Circuit has recognized this point in other cases, holding that “an evidentiary hearing is not required on issues that can be resolved by reference to the state court record.” Totten v. Merkle, 137 F. 3d 1172, 1176 (1998) (emphasis deleted) (affirming the denial of an evidentiary hearing where the applicant’s factual allegations “fl[ew] in the face of logic in light of... [the applicant’s] deliberate acts which are easily discernible from the record”). This approach is not unique to the Ninth Circuit. See Anderson v. Attorney General of Kan., 425 F. 3d 853, 858-859 (CA10 2005) (holding that no evidentiary hearing is required if the applicant’s allegations are contravened by the existing record); cf. Clark v. Johnson, 202 F. 3d 760, 767 (CA5 2000) (holding that no hearing is required when the applicant has failed to present clear and convincing evidence to rebut a state court’s factual findings); Campbell v. Vaughn, 209 F. 3d 280, 290 (CA3 2000) (same).
This principle accords with AEDPA’s acknowledged purpose of “reduc[ing] delays in the execution of state and federal criminal sentences.” Woodford v. Garceau, 538 U. S. 202, 206 (2003) (citing Williams v. Taylor, supra, at 386 (opinion of Stevens, J.) (“Congress wished to curb delays, to prevent ‘retrials’ on federal habeas, and to give effect to state convictions to the extent possible under law”)). If district courts were required to allow federal habeas applicants to develop even the most insubstantial factual allegations in evidentiary hearings, district courts would be forced to reopen factual disputes that were conclusively resolved in the state courts. With these standards in mind, we turn to the facts of this case.
Ill
For several reasons, the Court of Appeals believed that Landrigan might be entitled to federal habeas relief and that the District Court, therefore, abused its discretion by denying Landrigan an evidentiary hearing. To the contrary, the District Court was well within its discretion to determine that, even with the benefit of an evidentiary hearing, Landrigan could not develop a factual record that would entitle him to habeas relief.
A
The Court of Appeals first addressed the State’s contention that Landrigan instructed his counsel not to offer any mitigating evidence. If Landrigan issued such an instruction, counsel’s failure to investigate further could not have been prejudicial under Strickland. The Court of Appeals rejected the findings of “the Arizona Supreme Court (on direct appeal) and the Arizona Superior Court (on habeas review)” that Landrigan instructed his counsel not to introduce any mitigating evidence. 441 F. 3d, at 646. According to the Ninth Circuit, those findings took Landrigan’s colloquy with the sentencing court out of context in a manner that “amounts to an ‘unreasonable determination of the facts/” Id., at 647 (quoting 28 U. S. C. § 2254(d)(2)).
Upon review of record material and the transcripts from the state courts, we disagree. As a threshold matter, the language of the colloquy plainly indicates that Landrigan informed his counsel not to present any mitigating evidence. When the Arizona trial judge asked Landrigan if he had instructed his lawyer not to present mitigating evidence, Landrigan responded affirmatively. Likewise, when asked if there was any relevant mitigating evidence, Landrigan answered, “Not as far as I’m concerned.” App. to Pet. for Cert. D-4. These statements establish that the Arizona postconviction court’s determination of the facts was reasonable. And it is worth noting, again, that the judge presiding on postconviction review was ideally situated to make this assessment because she is the same judge who sentenced Landrigan and discussed these issues with him.
Notwithstanding the plainness of these statements, the Court of Appeals concluded that they referred to only the specific testimony that counsel planned to offer — that of Landrigan’s ex-wife and birth mother. The Court of Appeals further concluded that Landrigan, due to counsel’s failure to investigate, could not have known about the mitigating evidence he now wants to explore. The record conclusively dispels that interpretation. First, Landrigan’s birth mother would have offered testimony that overlaps with the evidence Landrigan now wants to present. For example, Landrigan wants to present evidence from his biological father that would “confirm [his biological mother’s] alcohol and drug use during her pregnancy.” Id., at E-2. But the record shows that counsel planned to call Landrigan’s birth mother to testify about her “drug us[e] during her pregnancy,” id., at D-10, and the possible effects of such drug use. Second, Landrigan interrupted repeatedly when counsel tried to proffer anything that could have been considered mitigating. He even refused to allow his attorney to proffer that he had worked a regular job at one point. Id., at D-6, D-7. This behavior confirms what is plain from the transcript of the colloquy: that Landrigan would have undermined the presentation of any mitigating evidence that his attorney might have uncovered.
On the record before us, the Arizona court’s determination that Landrigan refused to allow the presentation of any mitigating evidence was a reasonable determination of the facts. In this regard, we agree with the initial Court of Appeals panel that reviewed this case:
“In the constellation of refusals to have mitigating evidence presented . . . this case is surely a bright star. No other case could illuminate the state of the client’s mind and the nature of counsel’s dilemma quite as brightly as this one. No flashes of insight could be more fulgurous than those which this record supplies.” Landrigan v. Stewart, 272 F. 3d 1221, 1226 (CA9 2001).
Because the Arizona postconviction court reasonably determined that Landrigan “instructed his attorney not to bring any mitigation to the attention of the [sentencing] court,” App. to Pet. for Cert. F-4, it was not an abuse of discretion for the District Court to conclude that Landrigan could not overcome § 2254(d)(2)’s bar to granting federal habeas relief. The District Court was entitled to conclude that regardless of what information counsel might have uncovered in his investigation, Landrigan would have interrupted and refused to allow his counsel to present any such evidence. Accordingly, the District Court could conclude that because of his established recalcitrance, Landrigan could not demonstrate prejudice under Strickland even if granted an evidentiary hearing.
B
The Court of Appeals offered two alternative reasons for holding that Landrigan’s inability to make a showing of prejudice under Strickland did not bar any potential habeas relief and, thus, an evidentiary hearing.
1
The Court of Appeals held that, even if Landrigan did not want any mitigating evidence presented, the Arizona courts’ determination that Landrigan’s claims were “ ‘frivolous’ and ‘meritless’ was an unreasonable application of United States Supreme Court precedent.” 441 F. 3d, at 647 (citing 28 U. S. C. § 2254(d)(1)). This holding was founded on the belief, derived from Wiggins v. Smith, 539 U. S. 510 (2003), that “Landrigan’s apparently last-minute decision cannot excuse his counsel’s failure to conduct an adequate investigation prior to the sentencing.” 441 F. 3d, at 647.
Neither Wiggins nor Strickland addresses a situation in which a client interferes with counsel’s efforts to present mitigating evidence to a sentencing court. Wiggins, supra, at 523 (“[W]e focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable” (emphasis added and deleted)). Indeed, we have never addressed a situation like this. In Rompilla v. Beard, 545 U. S. 374, 381 (2005), on which the Court of Appeals also relied, the defendant refused to assist in the development of a mitigation case, but did not inform the court that he did not want mitigating evidence presented. In short, at the time of the Arizona post-conviction court’s decision, it was not objectively unreasonable for that court to conclude that a defendant who refused to allow the presentation of any mitigating evidence could not establish Strickland prejudice based on his counsel’s failure to investigate further possible mitigating evidence.
2
The Court of Appeals also stated that the record does not indicate that Landrigan’s decision not to present mitigating evidence was “informed and knowing,” 441 F. 3d, at 647, and that “[t]he trial court’s dialogue with Landrigan tells us little about his understanding of the consequences of his decision,” ibid. We have never imposed an “informed and knowing” requirement upon a defendant’s decision not to introduce evidence. Cf., e. g., Iowa v. Tovar, 541 U. S. 77, 88 (2004) (explaining that waiver of the right to counsel must be knowing and intelligent). Even assuming, however, that an “informed and knowing” requirement exists in this case, Landrigan cannot benefit from it, for three reasons.
First, Landrigan never presented this claim to the Arizona courts. Rather, he argued that he would have complied had other evidence been offered. Thus, Landrigan failed to develop this claim properly before the Arizona courts, and § 2254(e)(2) therefore barred the District Court from granting an evidentiary hearing on that basis.
Second, in Landrigan’s presence, his counsel told the sentencing court that he had carefully explained to Landrigan the importance of mitigating evidence, “especially concerning the fact that the State is seeking the death penalty.” App. to Pet. for Cert. D-3. Counsel also told the court that he had explained to Landrigan that as counsel, he had a duty to disclose “any and all mitigating factors ... to th[e] [c]ourt for consideration regarding the sentencing.” Ibid. In light of Landrigan’s demonstrated propensity for interjecting himself into the proceedings, it is doubtful that Landrigan would have sat idly by while his counsel lied about having previously discussed these issues with him. And as Landrigan’s counsel conceded at oral argument before this Court, we have never required a specific colloquy to ensure that a defendant knowingly and intelligently refused to present mitigating evidence. Tr. of Oral Arg. 26.
Third, the Court of Appeals overlooked Landrigan’s final statement to the sentencing court: “I think if you want to give me the death penalty, just bring it right on. I’m ready for it.” App. to Pet. for Cert. B-16. It is apparent from this statement that Landrigan clearly understood the consequences of telling the judge that, “as far as [he was] concerned,” there were no mitigating circumstances of which she should be aware. Id., at D-4.
IV
Finally, the Court of Appeals erred in rejecting the District Court’s finding that the poor quality of Landrigan’s alleged mitigating evidence prevented him from making “a colorable claim” of prejudice. Id., at C-46. As summarized by the Court of Appeals, Landrigan wanted to introduce as mitigation evidence
“[that] he was exposed to alcohol and drugs in útero, which may have resulted in cognitive and behavioral deficiencies consistent with fetal alcohol syndrome. He was abandoned by his birth mother and suffered abandonment and attachment issues, as well as other behavioral problems throughout his childhood.
“His adoptive mother was also an alcoholic, and Landrigan’s own alcohol and substance abuse began at an early age. Based on his biological family’s history of violence, Landrigan claims he may also have been genetically predisposed to violence.” 441 F. 3d, at 649.
As explained above, all but the last sentence refer to information that Landrigan’s birth mother and ex-wife could have offered if Landrigan had allowed them to testify. Indeed, the state postconviction court had much of this evidence before it by way of counsel’s proffer. App. to Pet. for Cert. D-21. The District Court could reasonably conclude that any additional evidence would have made no difference in the sentencing.
In sum, the District Court did not abuse its discretion in finding that Landrigan could not establish prejudice based on his counsel’s failure to present the evidence he now wishes to offer. Landrigan’s mitigation evidence was weak, and the postconviction court was well acquainted with Landrigan’s exceedingly violent past and had seen first hand his belligerent behavior. Again, it is difficult to improve upon the initial Court of Appeals panel’s conclusion:
“The prospect was chilling; before he was 30 years of age, Landrigan had murdered one man, repeatedly stabbed another one, escaped from prison, and within two months murdered still another man. As the Arizona Supreme Court so aptly put it when dealing with one of Landrigan’s other claims, ‘[i]n his comments [to the sentencing judge], defendant not only failed to show remorse or offer mitigating evidence, but he flaunted his menacing behavior.’ On this record, assuring the court that genetics made him the way he is could not have been very helpful. There was no prejudice.” 272 F. 3d, at 1229 (citations and footnote omitted).
V
The Court of Appeals erred in holding that the District Court abused its discretion in declining to grant Landrigan an evidentiary hearing. Even assuming the truth of all the facts Landrigan sought to prove at the evidentiary hearing, he still could not be granted federal habeas relief because the state courts’ factual determination that Landrigan would not have allowed counsel to present any mitigating evidence at sentencing is not an unreasonable determination of the facts under § 2254(d)(2), and the mitigating evidence he seeks to introduce would not have changed the result. In such circumstances, a District Court has discretion to deny an evidentiary hearing. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Although not at issue here, AEDPA generally prohibits federal habeas courts from granting evidentiary hearings when applicants have failed to develop the factual bases for their claims in state courts. 28 U. S. C. § 2254(e)(2).
Indeed, the Court of Appeals below, recognizing this point, applied § 2254(d)(2) to reject certain of the Arizona court’s factual findings that established a hearing would be futile.
Landrigan made this argument for the first time in a motion for rehearing from the denial of his postconviction petition. Under Arizona law, a defendant cannot raise new claims in a motion for rehearing. State v. Byers, 126 Ariz. 139, 142, 613 P. 2d 299, 302 (App. 1980), overruled on other grounds, State v. Pope, 130 Ariz. 253, 635 P. 2d 846 (1981).
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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sc_authoritydecision
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
LAMBRIX v. SINGLETARY, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS
No. 96-5658.
Argued January 15, 1997
Decided May 12, 1997
Matthew C. Lawry, by appointment of the Court, 519 U. S. 1005, argued the cause for petitioner. With him on the briefs was Mark Evan Olive.
Carol M. Dittmar, Assistant Attorney General of Florida, argued the cause for respondent. With her on the brief was Robert A. Butterworth, Attorney General.
Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.
Justice Scalia
delivered the opinion of the Court.
We granted certiorari in this case to consider whether a prisoner whose conviction became final before our decision in Espinosa v. Florida, 505 U. S. 1079 (1992) (per curiam), is foreclosed from relying on that decision in a federal habeas corpus proceeding because it announced a “new rule” as defined in Teague v. Lane, 489 U. S. 288 (1989).
I
On February 5, 1983, Cary Michael Lambrix and his girlfriend, Frances Smith, met Clarence Moore and Aleisha Bryant at a local tavern. The two couples returned to Lam-brix’s trailer for dinner, where Lambrix killed Moore and Bryant in brutal fashion. Lambrix was convicted on two counts of first-degree murder. In the sentencing phase of trial, the jury rendered an advisory verdict recommending that the trial court sentence Lambrix to death on both counts. The trial court, after finding five aggravating circumstances in connection with the murder of Moore, four aggravating circumstances in connection with the murder of Bryant, and no mitigating circumstances as to either murder, sentenced Lambrix to death on both counts. Lambrix’s conviction and sentence were upheld on direct appeal by the Florida Supreme Court. Lambrix v. State, 494 So. 2d 1143 (1986).
After the Florida courts denied his repeated efforts to obtain collateral relief, Lambrix v. Dugger, 529 So. 2d 1110 (Fla. 1988); Lambrix v. State, 534 So. 2d 1151 (Fla. 1988); Lambrix v. State, 559 So. 2d 1137 (Fla. 1990), Lambrix filed a petition for a writ of habeas corpus pursuant to 28 U. S. C. §2254 in the United States District Court for the Southern District of Florida; that court rejected all of his claims. While Lambrix’s appeal was pending before the Court of Appeals for the Eleventh Circuit, this Court decided Espinosa v. Florida, supra, which held that if the sentencing judge in a “weighing” State (i. e., a State that requires specified aggravating circumstances to be weighed against any mitigating circumstances at the sentencing phase of a capital trial) is required to give deference to a jury’s advisory sentencing recommendation, then neither the jury nor the judge is constitutionally permitted to weigh invalid aggravating circumstances. Since Florida is such a State, and since one of Lambrix’s claims was that his sentencing jury was improperly instructed on the “especially heinous, atrocious, or cruel” (HAC) aggravator, Espinosa had obvious relevance to his habeas petition. Rather than address this issue in the first instance, however, the Eleventh Circuit held its proceedings in abeyance to permit Lambrix to present his Espinosa claim to the Florida state courts.
The Florida Supreme Court rejected Lambrix’s Espinosa claim without considering its merits on the ground that the claim was procedurally barred. Lambrix v. Singletary, 641 So. 2d 847 (1994). That court explained that although Lam-brix had properly preserved his Espinosa objection at trial by requesting a limiting instruction on the HAC aggravator, he had failed to raise the issue on direct appeal. 641 So. 2d, at 848. The Florida Supreme Court also rejected Lambrix’s claim that the procedural bar should be excused because his appellate counsel was ineffective in failing to raise the forfeited issue, explaining that this claim was itself procedurally barred and was, in any event, meritless. Id., at 848-849.
After the Florida Supreme Court entered judgment against Lambrix, the Eleventh Circuit adjudicated his ha-beas petition. Without even acknowledging the procedural bar — which was expressly raised and argued by the State— the Court of Appeals proceeded to address the Espinosa claim, and determined that Espinosa announced a new rule which cannot be applied retroactively on federal habeas under Teague v. Lane, supra. 72 F. 3d 1500, 1503 (1996). We granted certiorari. 519 U. S. 958 (1996).
II
Before turning to the question presented m this case, we pause to consider the State’s contention that Lambrix’s Es-pinosa claim is procedurally barred because he failed to contend that the jury was instructed with a vague HAC aggra-vator on his direct appeal to the Florida Supreme Court. According to the State, the Florida Supreme Court “has consistently required that an Espinosa issue must have been objected to at trial and pursued on direct appeal in order to be reviewed in postconviction proceedings.” Brief for Respondent 30, citing Chandler v. Dugger, 634 So. 2d 1066, 1069 (Fla. 1994), Jackson v. Dugger, 633 So. 2d 1051, 1055 (Fla. 1993), and Henderson v. Singletary, 617 So. 2d 313 (Fla.), cert. denied, 507 U. S. 1047 (1993).
In Coleman v. Thompson, 501 U. S. 722, 729 (1991), we reaffirmed that this Court “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” See also Harris v. Reed, 489 U. S. 255, 262 (1989). We in fact lack jurisdiction to review such independently supported judgments on direct appeal: Since the state-law determination is sufficient to sustain the decree, any opinion of-this Court on the federal.question would be purely advisory. Herb v. Pitcairn, 324 U. S. 117, 125-126 (1945); see also Sochor v. Florida, 504 U. S. 527, 533-534, and n. (1992). The “independent and adequate state ground” doctrine is not technically jurisdictional when a federal court considers a state prisoner’s petition for habeas corpus pursuant to 28 U. S. C. §2254, since the federal court is not formally reviewing a judgment, but is determining whether the prisoner is “in custody in violation of the Constitution or laws or treaties of the United States.” We have nonetheless held that the doctrine applies to bar consideration on federal habeas of federal claims that have been defaulted under state law. Coleman, supra, at 729-730, 750; see also Wainwright v. Sykes, 433 U. S. 72, 81, 82 (1977), discussing Brown v. Allen, 344 U. S. 443, 486-487 (1953), and Ex parte Spencer, 228 U. S. 652 (1913); Harris, supra, at 262.
Application of the “independent and adequate state ground” doctrine to federal habeas review is based upon equitable considerations of federalism and comity. It “ensures that the States’ interest in correcting their own mistakes is respected in all federal habeas cases.” Coleman, 501 U. S., at 732. “[A] habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.” Ibid. If the “independent and adequate state ground” doctrine were not applied, a federal district court or court of appeals would be able to review claims that this Court would have been unable to consider on direct review. See id., at 730-731.
We have never had occasion to consider whether a federal court should resolve a State’s contention that a petitioner’s claim is procedurally barred before considering whether his claim is Teague barred. Our opinions, however — most particularly, Coleman — certainly suggest that the procedural-bar issue should ordinarily be considered first. It was speculated at oral argument that the Court of Appeals may have resolved the Teague issue without first considering procedural bar because our opinions have stated that the Teague retroactivity decision is to be made as a “threshold matter.” E. g., Penry v. Lynaugh, 492 U. S. 302, 329 (1989); Caspari v. Bohlen, 510 U. S. 383, 389 (1994). That simply means, however, that the Teague issue should be addressed “before considering the merits of [a] claim.” 510 U. S., at 389. It does not mean that the Teague inquiry is antecedent to consideration of the general prerequisites for federal habeas corpus which are unrelated to the merits of the particular claim— such as the requirement that the petitioner be “in custody,” see 28 U. S. C. § 2254(a), or that the state-court judgment not be based on an independent and adequate state ground. Constitutional issues are generally to be avoided, and as even a cursory review of this Court’s new-rule cases reveals (including our discussion in Part IV, infra), the Teague inquiry requires a detailed analysis of federal constitutional law. See, e. g., Sawyer v. Smith, 497 U. S. 227, 233-241 (1990); Penry, supra, at 316-319; Gilmore v. Taylor, 508 U. S. 333, 339-344 (1993); Saffle v. Parks, 494 U. S. 484, 488-494 (1990).
We are somewhat puzzled that the Eleventh Circuit, after having held proceedings in abeyance while petitioner brought his claim in state court, did not so much as mention the Florida Supreme Court’s determination that Lambrix’s Espinosa claim was procedurally barred. The State of Florida raised that point before both the District Court and the Court of Appeals, going so far as to reiterate it in a postjudgment Motion for Clarification and/or Modification of Opinion before the Court of Appeals, reprinted at App. 176. A State’s procedural rules are of vital importance to the orderly administration of its criminal courts; when a federal court permits them to be readily evaded, it undermines the criminal justice system. We do not mean to suggest that the procedural-bar issue must invariably be resolved first; only that it ordinarily should be. Judicial economy might counsel giving the Teague question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law. Cf. 28 U. S. C. § 2254(b)(2) (permitting a federal court to deny a habeas petition on the merits notwithstanding the applicant’s failure to exhaust state remedies).
Despite our puzzlement at the Court of Appeals’ failure to resolve this case on the basis of procedural bar, we hesitate to resolve it on that basis ourselves. Lambrix asserts several reasons why his claim is not procedurally barred, which seem to us insubstantial but may not be so; as we have repeatedly recognized, the courts of appeals and district courts are more familiar than we with the procedural practices of the States in which they regularly sit, see, e. g., Rummel v. Estelle, 445 U. S. 263, 267, n. 7 (1980); County Court of Ulster Cty. v. Allen, 442 U. S. 140, 153-154 (1979). Rather than prolong this litigation by a remand, we proceed to decide the case on the Teague grounds that the Court of Appeals used.
III
Florida employs a three-stage sentencing procedure. First, the jury weighs statutorily specified aggravating circumstances against any mitigating circumstances, and renders an “advisory sentence” of either life imprisonment or death. Fla. Stat. §921.141(2) (Supp. 1992). Second, the trial court weighs the aggravating and mitigating circumstances, and enters a sentence of life imprisonment or death; if the latter, its findings must be set forth in writing. §921.141(3). The jury’s advisory sentence is entitled to “great weight” in the trial court’s determination, Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975), but the court has an independent obligation to determine the appropriate punishment, Ross v. State, 386 So. 2d 1191, 1197 (Fla. 1980). Third, the Florida Supreme Court automatically reviews all cases in which the defendant is sentenced to death. §921.141(4).
Lambrix’s jury, which was instructed on five aggravating circumstances, recommended that he be sentenced to death for each murder. The trial court found five aggravating circumstances as to Moore’s murder and four as to Bryant’s, including that each murder was “especially heinous and atrocious”; it found no mitigating circumstances as to either murder; it concluded that the aggravating circumstances outweighed the mitigating, and sentenced Lambrix to death on each count. App. 20-21. Although Lambrix failed to raise any claims concerning the sentencing procedure on direct appeal, the Florida Supreme Court agreed with the trial court’s findings as to the aggravating circumstances. Lambrix v. State, 494 So. 2d, at 1148.
Lambrix contends that the jury’s consideration of the HAC aggravator violated the Eighth Amendment because the jury instructions concerning this circumstance failed to provide sufficient guidance to limit the jury’s discretion. Like the Eleventh Circuit, see 72 F. 3d, at 1503, we assume, arguendo, that this was so. Lambrix further contends (and this is at the heart of the present case) that the trial court’s independent weighing did not cure this error. Prior to our opinion in Espinosa v. Florida, 505 U. S. 1079 (1992), the State had contended that Lambrix was not entitled to relief because the sentencing judge properly found and weighed a narrowed HAC aggravator. In Espinosa, however, we established the principle that if a “weighing” State requires the sentencing trial judge to give deference to a jury’s advisory recommendation, neither the judge nor the jury is constitutionally permitted to weigh invalid aggravating circumstances. Lam-brix seeks the benefit of that principle; the State contends that it constitutes a new rule under Teague and thus cannot be relied on in a federal habeas corpus proceeding.
In Teague we held that, in general, “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” 489 U. S., at 310-311. To apply Teague, a federal court engages in a three-step process. First, it determines the date upon which the defendant’s conviction became final. See Caspari v. Bohlen, 510 U. S., at 390. Second, it must ‘“[s]urve[y] the legal landscape as it then existed,’ Graham v. Collins, [506 U. S. 461, 468 (1993)], and ‘determine whether a state court considering [the defendant’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution,’ Saffle v. Parks, 494 U. S. 484, 488 (1990).” Ibid. Finally, if the court determines that the habeas petitioner seeks the benefit of a new rule, the court must consider whether the reliéf sought falls within one of the two narrow exceptions to nonretroactivity. See Gilmore v. Taylor, 508 U. S., at 345.
IV
Lambrix’s conviction became final on November 24, 1986, when his time for filing a petition for certiorari expired. Thus, our first and principal task is to survey the legal landscape as of that date, to determine whether the rule later announced in Espinosa was dictated by then-existing precedent — whether, that is, the unlawfulness of Lambrix’s conviction was apparent to all reasonable jurists. See, e. g., Graham v. Collins, 506 U. S. 461, 477 (1993); Butler v. McKellar, 494 U. S. 407, 415 (1990); id., at 417-418 (Brennan, J., dissenting).
In Espinosa, we determined that the Florida capital jury is, in an important respect, a cosentencer with the judge. As we explained: “Florida has essentially split the weighing process in two. Initially, the jury weighs aggravating and mitigating circumstances, and the result of that weighing process is then in turn weighed within the trial court’s process of weighing aggravating and mitigating circumstances.” 505 U. S., at 1082. We then concluded that the jury’s consideration of a vague aggravator tainted the trial court’s sentence because the trial court gave deference to the jury verdict (and thus indirectly weighed the vague aggravator) in the course of weighing the aggravating and mitigating circumstances. Ibid. We reasoned that this indirect weighing created the same risk of arbitrariness as the direct weighing of an invalid aggravating factor. Ibid.
In our view, Espinosa was not dictated by precedent, but announced a new rule which cannot be used as the basis for federal habeas corpus relief. It is significant that Espinosa itself did not purport to rely upon any controlling precedent. The opinion cited only a single case, Baldwin v. Alabama, 472 U. S. 372, 382 (1985), in support of its central conclusion that indirect weighing of an invalid aggravator “creates the same potential for arbitrariness” as direct weighing of an invalid aggravator. Espinosa, 505 U. S., at 1082. And it introduced that lone citation with a “cf.” — an introductory signal which shows authority that supports the point in dictum or by analogy, not one that “controls” or “dictates” the result.
Baldwin itself contains further evidence that Espinosa set forth a new rule. Baldwin considered the constitutionality of Alabama’s death sentencing scheme, in which the jury’was required to “fix the punishment at death” if it found the defendant guilty of an aggravated offense, whereupon the trial court would conduct a sentencing hearing at which it would determine a sentence of death or of life imprisonment. 472 U. S., at 376. The defendant contended that because the jury’s mandatory sentence would have been unconstitutional standing alone, see Woodson v. North Carolina, 428 U. S. 280, 288-305 (1976) (plurality opinion), it was impermissible for the trial court to consider that verdict in determining its own sentence. We did not reach that contention because we concluded that under Alabama law the jury’s verdict formed no part of the trial judge’s sentencing calculus. Id., at 382. We noted, however, on the page of the opinion that Espinosa cited, that the defendant’s “argument conceivably might have merit if the judge actually were required to consider the jury’s ‘sentence’ as a recommendation as to the sentence the jury believed would be appropriate, cf. Proffitt v. Flor ida, 428 U. S. 242 (1976), and if the judge were obligated to accord some deference to it.” Baldwin, 472 U. S., at 382 (emphasis added); see also id., at 386, n. 8 (“expressing] no view” on the same point). This highly tentative expression, far from showing that Baldwin “dictate[sj” the result in Espinosa, see Sawyer v. Smith, 497 U. S., at 235, suggests just the opposite. Indeed, in Baldwin the Chief Justice, who believed that Alabama’s scheme did contemplate that the trial judge would consider the jury’s “sentence,” nonetheless held the scheme constitutional. 472 U. S., at 392 (opinion concurring in judgment).
The Supreme Court decisions relied upon most heavily by petitioner are Godfrey v. Georgia, 446 U. S. 420 (1980); Maynard v. Cartwright, 486 U. S. 356 (1988); and Clemons v. Mississippi, 494 U. S. 738 (1990). In Godfrey, we held that Georgia’s “outrageously or wantonly vile, horrible and inhuman” aggravator was impermissibly vague, reasoning that there was nothing in the words “outrageously or wantonly vile, horrible and inhuman” “that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence,” and concluded that these terms alone “gave the jury no guidance.” 446 U. S., at 428-429 (plurality opinion). Similarly, in Maynard v. Cartwright, applied retroactively to February 1985 in Stringer v. Black, 503 U. S. 222 (1992), we held that Oklahoma’s HAC aggravator, which is identically worded to Florida’s HAC aggravator, was impermissibly vague because the statute gave no more guidance than the vague aggravator at issue in Godfrey and the sentencing jury was not given a limiting instruction. 486 U. S., at 363-364.
Although Godfrey and Maynard support the proposition that vague aggravators must be sufficiently narrowed to avoid arbitrary imposition of the death penalty, these cases, and others, demonstrate that the failure to instruct the sentencing jury properly with respect to the aggravator does not automatically render a defendant’s sentence unconstitutional. We have repeatedly indicated that a sentencing jury’s consideration of a vague aggravator can be cured by appellate review. Thus, in Godfrey itself, we were less concerned about the failure to instruct the jury properly than we were about the Georgia Supreme Court’s failure to narrow the facially vague aggravator on appeal. Had the Georgia Supreme Court applied a narrowing construction of the aggravator, we would have rejected the Eighth Amendment challenge to Godfrey’s death sentence, notwithstanding the failure to instruct the jury on that narrowing construction. Godfrey, supra, at 431-432. Likewise in Maynard, we stressed that the vague HAC aggravator had not been sufficiently limited on appeal by the Oklahoma Court of Criminal Appeals “to cure the unfettered discretion of the jury.” 486 U. S., at 364.
We reached a similar conclusion in Clemons v. Mississippi, applied retroactively to February 1985 in Stringer. Clemons considered the question whether the sentencer’s weighing of a vague HAC aggravator rendered that sentence unconstitutional in a “weighing” State. The sentencing jury in Clemons, as in Maynard, was given a HAC instruction that was unconstitutionally vague. We held that “the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review.” Clemons, supra, at 741, 745; see also Stringer, supra, at 230.
The principles of the above-described cases do not dictate the result we ultimately reached in Espinosa. Florida, unlike Oklahoma, see Maynard, supra, at 360, had given its facially vague HAC aggravator a limiting construction sufficient to satisfy the Constitution. See Proffitt v. Florida, 428 U. S., at 255-256 (joint opinion of Stewart, Powell, and Stevens, JJ.); id., at 260 (White, J., concurring in judgment). Thus, unlike the sentencing juries in Clemons, Maynard, and Godfrey, who were not instructed with a properly limited aggravator, the sentencing trial judge in Espinosa did find the HAC aggravator under a properly limited construction. See Espinosa, 505 U. S., at 1082, citing Walton v. Arizona, 497 U. S. 639, 653 (1990). A close examination of the Florida death penalty scheme persuades us that a reasonable jurist considering Lambrix's sentence in 1986 could have reached a conclusion different from the one Espinosa announced in 1992. There were at least three different, but somewhat related, approaches that would have suggested a different outcome:
(1) The mere cabining of the trial court’s discretion would avoid arbitrary imposition of the death penalty, and thus avoid unconstitutionality. In Proffitt v. Florida, supra, we upheld the Florida death penalty scheme against the contention that it resulted in arbitrary imposition of the death penalty, see Gregg v. Georgia, 428 U. S. 153, 188 (1976), because “trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life” and because the Florida Supreme Court reviewed sentences for consistency. Proffitt, 428 U. S., at 253 (joint opinion of Stewart, Powell, and Stevens, JJ.); id., at 260-261 (opinion of White, J., joined by the Chief Justice and Rehnquist, J.). (In Proffitt itself, incidentally, the jury had not been instructed on an appropriately narrowed HAC aggravator, see Proffitt v. Wainwright, 685 F.2d 1227, 1264, n. 57 (CA11 1982), cert. denied, 464 U. S. 1002 (1983).) From what was said in Proffitt it would, as the en banc Eleventh Circuit noted, “sensibly follow that the judge’s proper review of the sentence cures any risk of arbitrariness occasioned by the jury’s consideration of an unconstitutionally vague aggravating circumstance.” Glock v. Singletary, 65 F. 3d 878, 886 (1995), cert. denied, 519 U. S. 888 (1996). It could have been argued, of course, as Justice Stevens contends, see post, at 543 (dissenting opinion), that prior constitutional error by a sentencing-determining jury would make a difference, but both the conclusion and the premise of that argument were debatable: not only whether it would make a difference, but even (as the succeeding point demonstrates) whether there was any constitutional error by a sentencing-determining jury.
(2) There was no error for the trial judge to cure, since under Florida law the trial court, not the jury, ivas the sen-tencer. In Espinosa we concluded, in effect, that the jury was at least in part a cosentencer along with the trial court. That determination can fairly be traced to our opinion in Sochor v. Florida, 504 U. S. 527 (1992), decided just three weeks earlier, where we explained that under Florida law the trial court “is at least a constituent part of ‘the sen-teneer,’ ” implying that the jury was that as well. Id., at 535-536. That characterization is in considerable tension with our pre-1986 view. In Proffitt, for example, after considering Tedder v. State, 322 So. 2d 908 (Fla. 1975), on which Espinosa primarily relied, the Court determined that the trial court was the sentences E. g., 428 U. S., at 249 (joint opinion of Stewart, Powell, and Stevens, JJ.) (“[T]he actual sentence is determined by the trial judge” (emphasis added)); id., at 251 (the trial court is “[t]he sentencing authority in Florida”); id., at 252 (“[T]he sentence is determined by the judge rather than by the jury”); id., at 260 (White, J., concurring in judgment). We even distinguished the Florida scheme from the Georgia scheme on the ground that “in Florida the sentence is determined by the trial judge rather than by the jury.” Id., at 252 (joint opinion) (emphasis added). Some eight years later, just two years before petitioner’s conviction became final, we continued to describe the judge as the sentencer. See Spaziano v. Florida, 468 U. S. 447 (1984); see also Barclay v. Florida, 463 U. S. 939, 952-954 (1983) (plurality opinion); id., at 962 (Stevens, J., concurring in judgment). (Although he now believes the jury is a co-sentencer, at the time Lambrix’s conviction became final Justice Stevens had explained that “the sentencing authority [is] the jury in Georgia, the judge in Florida.” Ibid.) It would not have been unreasonable to rely on what we had said in Proffitt, Spaziano, and Barclay — that the trial court was the sentencer — and to conclude that where the sentencer considered properly narrowed aggravators there was simply no error under Godfrey or Maynard. The Florida Supreme Court and the Eleventh Circuit held precisely that in 1989, see Smalley v. State, 546 So. 2d 720, 722; Bertolotti v. Dugger, 883 F. 2d 1503, 1526-1527, cert. denied, 497 U. S. 1032 (1990); and in 1985 the Eleventh Circuit foresaw the possibility of such a holding: “[Spaziano’s] reasoning calls into question whether any given error in such a merely ‘advisory’ proceeding should be considered to be of constitutional magnitude.” Proffitt v. Wainwright, 756 F. 2d 1500, 1502.
(3) The trial court’s weighing of properly narrowed ag-gravators and mitigators was sufficiently independent of the jury to cure any error in the jury’s consideration of a vague aggravator. Although the Florida Supreme Court had interpreted its statute — which provided that the judge was the sentencer, Fla. Stat. § 921.141(3) (Supp. 1992), and that the jury rendered merely an “advisory sentence,” § 921.141(2) — as requiring the trial judge to give “great weight” to a jury’s advisory recommendation, Tedder v. State, supra, that court nonetheless emphasized that the trial court must “independently weigh the evidence in aggravation and mitigation,” and that “[ujnder no combination of circumstances can th[e] [jury’s] recommendation usurp the judge’s role by limiting his discretion.” Eutzy v. State, 458 So. 2d 755, 759 (Fla. 1984), cert. denied, 471 U. S. 1045 (1985). In one case, the Florida Supreme Court vacated a sentence because the trial court had given “undue weight to the jury’s recommendation of death and did not make an independent judgment of whether or not the death penalty should be imposed.” Ross v. State, 386 So. 2d 1191, 1197 (1980) (emphasis added). In Spaziano v. Florida, supra, we acknowledged that the Florida trial court conducts “its own weighing of the aggravating and mitigating circumstances,” id., at 451, and that “[Regardless of the jury’s recommendation, the trial judge is required to conduct an independent review of the evidence and to make his own findings regarding aggravating and mitigating circumstances,” id., at 466 (emphasis added); see also Proffitt, 428 U. S., at 251. Given these precedents, it was reasonable to think that the trial court’s review would at least constitute the sort of “reweighing” that would satisfy Clemons v. Mississippi, 494 U. S. 738 (1990), see also Stringer, 503 U. S., at 237. In fact, given the view of some Members of this Court that appellate reweighing was inconsistent with the Eighth Amendment, see, e. g., Cabana v. Bullock, 474 U. S. 376, 400-401, 404 (1986) (Blackmun, J., dissenting, joined by Brennan and Marshall, JJ.); Clemons, supra, at 769-772 (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., concurring in part and dissenting in part), it would have been reasonable to think that trial-court reweighing was preferable. As one Court of Appeals was prompted to note, “Clemons’s holding, which arguably points in the opposite direction from Espinosa, indicates that even in 1990 Espinosa’s result would not have been dictated by precedent.” Glock v. Singletary, 65 F. 3d, at 887 (en banc).
That Espinosa announced a new rule is strongly confirmed by our decision in Walton v. Arizona, 497 U. S. 639 (1990). Although decided after petitioner’s conviction became final, Walton is a particularly good proxy for what a reasonable jurist would have thought in 1986, given that the only relevant cases decided by this Court in the interim were Maynard and Clemons, the holdings of both of which, we later held, were compelled by the law in 1985, see Stringer, supra. In Walton, we rejected a claim that Arizona’s HAC aggravator failed sufficiently to channel the sentencer’s discretion. Summarizing Godfrey and Maynard, we explained that “in neither case did the state appellate court, in reviewing the propriety of the death sentence, purport to affirm the death sentence by applying a limiting definition,” and this, we said, “w[as] crucial to the conclusion we reached in Maynard.” Walton, supra, at 653. This reasoning suggests that even following Maynard, a weighing-state death sentence would satisfy the Eighth Amendment so long as the vague aggravator was narrowed at some point in the process. Additionally, in the course of our opinion, we characterized Clemons as follows:
“[E]ven if a trial judge fails to apply the narrowing construction or applies an improper construction, the Constitution does not necessarily require that a state appellate court vacate a death sentence based on that factor. Rather, as we held in Clemons v. Mississippi, 494 U. S. 738 (1990), a state appellate court may itself determine whether the evidence supports the existence of the aggravating circumstance as properly defined or the court may eliminate consideration of the factor altogether and determine whether any remaining aggravating circumstances are sufficient to warrant the death penalty.” Walton, supra, at 653-654 (emphasis added).
Our use of the disjunctive suggests that as late as 1990, if a Florida trial court determined that the defendant’s conduct fell within the narrowed HAC aggravator, the sentence would satisfy the Eighth Amendment irrespective of whether the trial court reweighed the aggravating and mitigating factors. The holdings in Stringer, May
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_appel1_7_2
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Clifford RICE, Appellant, v. MERRITT-CHAPMAN & SCOTT, INC., Appellee.
No. 18444.
United States Court of Appeals Ninth Circuit.
Dec. 10, 1963.
Leavy & Taber, and Duane E. Taber, Pasco, Wash., for appellant.
Gavin, Robinson, Kendrick & Redman,, and John Galvin, Yakima, Wash., for appellee.
Before CHAMBERS and DUNIWAY,. Circuit Judges, and TAYLOR, District Judge.
DUNIWAY, Circuit Judge:
In this diversity ease, plaintiff appeals from a judgment notwithstanding the verdict. The case is governed by the law of Washington and was originally brought in the Washington State Court under Revised Code of Washington, section 51.24.010, which provides in part as follows:
“If the injury to a workman is due to negligence or wrong of an■other not in the same employ, the injured workman or, if death results from the injury, his widow, children, or dependents, as the case may be, shall elect whether to take under this title or seek a remedy against such other, * *
, _ . „ The pertinent facts may be briefly stated. Appellee was the general contractor on a construction job. Appellant was an iron worker and rigger employed as a foreman by a subcontractor on the job. On the day of the accident, appellee . •, was pouring concrete for a dam and apn j. • i • „„ pellant, m his capacity as an employee oí the subcontractor, was assisting. The concrete was brought by truck to the top ■of the dam, and was carried in large buckets which were owned and maintained by appellee. When a truck arrived at the top of the dam, appellant would climb upon it and hook the bucket to a crane operated by appellee. The bucket was then swung over to a hopper into which the concrete was to be discharged, and appellant would hook the bottom of the bucket to the hopper. This required that he go from the truck to the hopper, and he sometimes did this by riding the side of the bucket for a distance of about twenty feet. The bucket on which he was riding had handirons along the side, welded to the bucket and forming a ladder. They were intended for use in inspecting and cleaning the inside of the bucket, and in spreading grout. Appellant stood with his feet on the channel iron of the bucket and his hands grasping one of these handirons. While he was thus riding a bucket the handiron that he was holding separated from the bucket, causing him to fall and sustain serious injuries. The evidence indicated that the particular handiron, which was about one inch in diameter, had a poor weld at one end where it was fastened to the bucket and an old break about % of the way through at the other end near where it was fastened to the bucket. These defects, however, were not visible because concrete and dirt had been slopped over the handiron at the time that appellant took hold of it.
A regulation of the Department of Labor and Industries of the State of Washington contains the following provision:
“No employee shall ride, nor be permitted to ride upon the load, sling, hook, bail or block of any derrick or crane, or the bucket of any hoist or any materiai elevator, unlesg sudl equipment meets the re_ quirements of this code.”
„ , _ . ,. , . , H°w®ve^ there are n° regulations which esiafsh requirements, the meeting of which would permit an employee to ride ,, * , , , ., 1 , , , or to be permitted to ride upon a bucket, * *
In granting the judgment notwithstanding the verdict, the trial court con-eluded that there was no showing of negligence on the part of the appellee and that the rule that an employer has an affirmative duty to provide a safe place for his employees to work (see Greenleaf v. Puget Sound Bridge etc., Co., 1961, 58 Wash.2d 647, 364 P.2d 796) does not here apply because it would have been illegal for the employer to provide a bucket on which the employee would be required to work. As the trial court put it, the employer was not under a duty to provide a safe place on which the employee was not to work.
We need not decide whether the trial court was correct in this respect because we think that, in any event, it was negligence as a matter of law_ for appellant to ride on the bucket in violation of the quoted regulation,
Appellant argues that because the safety regulations do not establish requirements for buckets, the regulation that prohibits riding them is too vague to be a basis for a finding of negligence on his part, and is a nullity insofar as it relates to buckets. His principal relianee is on Bradshaw v. City of Seattle, 1953, 43 Wash.2d 766, 264 P.2d 265, 42 A.L.R.2d 800. There, the statute imposed on the city a duty to regulate traffic and to install such traffic devices as might be necessary to insure safety, and the plaintiff claimed that the city’s failure to install a light, at a corner at which he was injured, constituted negligence per se. The Washington Supreme Court held that the statute was too indefinite to enable the city officials to know when they might be violating it. There, however, the statute was an affirmative command, and its vagueness prevented the city from knowing how to comply with it.
The regulation here is in a negative form. It makes it clear that an employee may not ride a bucket unless it meets code requirements. Because the code establishes no requirements, the exception embodied in the unless clause does not operate, and the only fair reading of the regulation is that it is a flat prohibition of riding on buckets at all. Since Washington laws (Revised Code of Washington, § 49.16.040) expressly require that an employee comply with all regulations promulgated by the Department of Labor and Industries pertaining to his job, there can be no doubt that appellant was in violation of the regulation, whether he knew of its existence or not.
We do not say that if appellee required appellant to ride on the bucket, either directly or because that was the only way he could do the job, the regulation would immunize appellee from liability because of appellant’s contributory negligence. Appellant relies on a case in which the Washington Supreme Court has held that the doctrine of assumption of risk does not apply so as to deny recovery to an employee in an action against his employer. Siragusa v. Swedish Hospital, 1962, 60 Wash.2d 310, 373 P.2d 767. That case might apply here, if appellant had been required to ride the bucket, although the case deals with assumption of risk, not with contributory negligence. In that case the Supreme Court also said: “However, if the employee’s voluntary exposure to the risk is unreasonable under the circumstances, he will be barred from recovery because of his contributory negligence.” (60 Wash.2d at 319, 373 P.2d at 773) There is nothing in the record here to indicate that appellant was required to ride the bucket. It was not necessary for appellant to ride it in order to do his job, and his doing so was his own choice. Being in direct violation of the regulation, it was also, as a matter of law, contributory negligence.
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
In re IMPERIAL BREWING CO. HAMBURGER v. INTERNATIONAL HARVESTER CO.
No. 4900.
Circuit Court of Appeals, Fourth Circuit.
April 22, 1942.
M. William Adelson, of Baltimore, Md. (Louis J. Sagner, of Baltimore, Md., on the brief), for appellant.
John H. Hessey, of Baltimore, Md. (James J. Lee, of Baltimore, Md., on the brief), for appellee.
Before SOPER and DOBIE, Circuit Judges, and WARING, District Judge.
WARING, District Judge.
This is an appeal from the District Court of Maryland in the matter of Imperial Brewing Company, Bankrupt. The question before us is whether or not a conditional sales contract, held by the International Harvester Company covering certain automobile trucks, is valid as against certain other creditors of the bankrupt.
It appears that on October 1, 1940, Imperial Brewing Company ordered from the International Harvester Company two new trucks. The price agreed upon for these trucks was $1,787.26. This was to be paid by a cash payment of $327.26 and an allowance of $380 for two old trucks to be traded in, and the balance of $1,100, plus a finance charge of $66 was to be taken care of by deferred payments. All of this was set forth in a conditional contract of sale, which, among other things, provided “The title to all goods ordered and furnished hereunder shall remain in the seller until the full purchase price and all notes given therefor have been paid in full in cash, and nothing herein shall release the purchaser from paying therefor, and after delivery to the purchaser said property shall be held and used at his risk and expense with respect to loss or damages and taxes and charges of every kind.” (Italics added.) It further appears that this order was accepted on October 2, 1940, and on October '5, 1940, Imperial Brewing Company drew and delivered its check (dated October 4, 1940), to International Harvester Company for the agreed cash payment, namely: $327.26. It also gave its check for an additional sum of $40.73 payable to the Commissioner of Motor Vehicles for the tax and title transfer. Both of these checks were paid. Under date of October S, 1940, Imperial Brewing Company executed and delivered its note for the balance due, namely: $1,166. This note described the terms and conditions of payments to be made and the trucks purchased and among other things, provided that the maker agreed “that the title thereto and to all repairs, replacements of and accessions to said property shall remain in the payee until this note shall have been fully paid in money”.
The title certificates for the trucks were issued in the name of Imperial Brewing Company and showed a lien in favor of International Harvester Company and were delivered to such last named Company by the Commissioner of Motor Vehicles of the State of Maryland and were to be surrendered to the Imperial Brewing Company only on the payment of such lien. It is shown by the records of International Harvester Company’s work shop that some minor changes and painting of the trucks had to be done; and on October 7th, the trucks were sent to the Modem Auto Painting Service (an independent painting Company in Baltimore), for the purpose of painting thereon the name and address of Imperial Brewing Company. This work was done according to directions of the brewing company and the painting bill amounting to $30, was sent directly to and paid by it on October 18th. The painting job was completed on October 11th, and the painting company sent the trucks back to the International Harvester Company for some minor adjustments. In the agreed statement of facts on file in this case it is stated that this “was customary”. Thereafter on the same date, October 11, 1940, the Imperial Brewing Company obtained delivery of the two new trucks and turned over to the International Harvester Company one of the old trucks taken in trade and the other old truck was turned over on the next day.
The conditional sales contract was recorded by the International Harvester Company on October 11, 1940, the same date on which the trucks had been actually turned over by such company to the purchaser. It is admitted in the records that during the period between October 6, 1940, and October 11, 1940, six persons became creditors of Imperial Brewing Company and that such indebtedness still remains unpaid.
The foregoing facts appear in the record and there is no dispute whatsoever in regard to them. Some time thereafter Imperial Brewing Company went ■ into bankruptcy and Nathan Hamburger was appointed Trustee., The Trustee filed a petition for authorization to sell the trucks as assets of the estate and the International Harvester Company asserted title to the trucks by reason of the conditional contract of sale. With the consent of the parties the trucks were sold for the sum of $1,300, which said sum has been deposited subject to the further order of the court, it being understood that all questions of title passed from the trucks to the fund in hand. The amount claimed by the International Harvester Company was the sum of $1,000, and after a hearing before the Referee the Trustee was ordered to pay that sum. A petition for review was filed and the District Judge affirmed the Referee’s order and the case is now in this court on appeal therefrom.
The question presented to this court is whether or not the conditional sales contract is void as to those persons who became creditors of the bankrupt between the date of the execution of such contract, to-wit: October 5, 1940, and the date of its recording, October 11, 1940. This of course must be decided in the light of the Statutes of the State of Maryland and the laws applicable thereto. Section 71 of Article 21 of Flack’s Annotated Code of Public General Laws of Maryland is as follows:
“Conditional Contracts of Sale”
“71. Every note, sale or contract for the sale of goods and chattels, wherein the title thereto, or a lien thereon, is reserved until the same be paid in whole or in part, or the transfer of title is made to depend upon any condition therein expressed and possession is to be delivered to the vendee, shall, in respect to such reservation and condition, be void as to third parties without notice until such note, sale or contract be in writing, signed by the vendee, and be recorded in the Clerk’s office of the Superior Court of Baltimore City, or in the Clerk’s office of the Circuit Courts of the various counties, as the case may be, where the vendee resides, or in the case of a corporate or partnership vendee, then where such vendee has its principal place of business in the State of Maryland; and such recording shall be sufficient to give actual or constructive notice to third parties when a memorandum of the paper writing signed by the vendee or vendees, setting forth the date thereof, the amount due thereon, when and how payable and a brief description of the goods and chattels therein mentioned shall have been recorded with the Clerk aforesaid, but it shall not be necessary that said paper writing shall be acknowledged or an affidavit made to the consideration therein expressed as in the case of bills of sale.”
It will be noted that the language of the Maryland Statute is somewhat unusual, differing in many respects from the uniform statutes adopted in so many states and differing from the statutes of any other state, to which our attention has been called. Under these circumstances, we naturally must first turn to the courts of Maryland for construction of this Statute. However, it appears and is definitely admitted by all parties to this controversy that there are no decisions in the State of Maryland throwing light on the construction of this statute as applied to the particular case under consideration. Our own independent research also failed to reveal a Maryland case which governed this point. We are, therefore, cast upon our own resources in endeavoring to construe the statute.
The appellant admits, of course, that the contract is valid as to creditors whose claims arise after the date of the recording of the contract. But he further claims that the Harvester Company can not claim the protection of this conditional sales contract as against the six creditors above referred to, by reason of the fact that the trucks were delivered on October 5, 1940, but the contract was not recorded until October 11, 1940, and, therefore, the claims of the intervening creditors attach to the property during the period between delivery and recording. The primary question, therefore, is whether or not the trucks were delivered on October Sth or October •11th.
It will be noted that the Statute provides that in every case where title or a lien is reserved, and possession is to be delivered to the vendee, the conditional sales contract shall be void as to third parties without notice until the contract is recorded. It has been suggested by the appellant that the statute does not refer to the time of the actual delivery of possession and that the phrase “possession is to be delivered” applies solely to contracts wherein delivery has not been made and that therefore, the intendment of the statute is that the contract is to be recorded at the time of execution and not at the time of delivery. The argument is ingenious, but in our opinion, not sound. We do not believe that the phrase “possession is to be delivered” was intended to apply only to a transaction in futuro. We believe the only fair and reasonable deduction to be drawn from that language is that it is a general phrase referring to a conditional sale and delivery thereunder, and does not exclude a conditional sale when the delivery was either contemporaneous with, or subsequent to, the execution of the contract. If the expression in the statute had been “possession is delivered”, it could hardly be said that such an expression applied only to a present delivery and would not govern a delivery made either before or after the execution of the contract. Such being our construction of this language in the statute, the case, therefore, narrows down to the question of whether or not there was delivery on October Sth or on October 11th, and requires a re-examination of the facts and a decision as to what really occurred.
In a conditional sale of personal property, ordinarily possession and the right of use of the property is given to the buyer. The seller retains a certain measure of title to the property, which is often called security title, since it exists merely to secure the payment of any unpaid portion of the purchase price. The buyer receives what is often called a beneficial title, which ripens into full and absolute title when the buyer, according to the terms of the contract, has paid (or tendered) to the seller this unpaid portion of the purchase price.
At common law, the doctrine is well established that in conditional sales the mere transfer of possession of the property by the seller to the buyer, without any further elements on which an estoppel might be invoked against the seller, still leaves the claim of the seller in the property paramount to the claims of creditors of, or bona-fide purchasers from, the buyer. Sometimes this doctrine brought hardship to such creditors or purchasers; so that, to obviate this hardship, recordation statutes, similar to the instant Maryland Statute, have been enacted in many states.
Thus in 3 Jones on Chattel Mortgages and Conditional Sales, Section 1072, page 148, it is said: “The common-law rule being that in all cases the ownership of a conditional vendor of personal property is paramount to the claims of purchasers from, or creditors of, the conditional vendee irrespective of notice of any kind, the recording statutes were designed in derogation of this rule and to 'circumvent its supposed unjust operation to the detriment of persons dealing with the conditional buyer on the appearances of ownership which the possession of property indicates, and whom the law benevolently designates innocent purchasers and creditors.”
In Void on Sales, page 299, it is said: “In conditional sales transactions the problem of hardship on parties dealing with the conditional buyer in possession through the secret reserved interest of the conditional seller is very similar to that which is so familiar in connection with chattel mortgages” . . . “in a large majority of states at the present time the problem of the secret lien in favor of the conditional seller is met by statutes somewhat analagous to chattel mortgage recording acts requiring the filing or recording of conditional sale contracts.” (Italics added.)
In Williston on Sales, Section 327, page 512, it is said: “Conditional sales have become so common under modern methods of business and are so deceptive both to purchasers from the buyer and to the buyer’s creditors, since the buyer not only has possession of the property but ordinarily is entitled to use it and does use it as if it were his own, that recordings acts have been passed in many States.” (Italics added.)
But where the buyer has not acquired actual possession and, therefore, the general public or parties dealing with him in debtor and creditor transactions are not misled, there would seem to be no reason for recording of conditional sales contracts. Quoting again from Jones on Chattel Mortgages and Conditional Sales, supra: “If the buyer be not in possession, one dealing with him for the property could not be deceived by the appearances of ownership which possession and use present. The reasonable construction of such a statute is that unless, and until, possession has been transferred, recording is unnecessary.”
The same recording statute of Maryland was before this court in the case of Friedman v. Sterling Refrigerator Company, 4 Cir., 104 F.2d 837. There is nothing in that case, however, in any way inconsistent with the views which we have expressed in this opinion.
We, therefore, have reached the conclusion that the case finally comes down to the very narrow point as to when delivery was made of the two trucks in question. As heretofore stated, the actual facts are not in dispute and our only problem is to find the true meaning of these facts and determine when actual delivery was made. The signing of the contract of sale does not of course prove delivery. Much more had to be done before the transaction was completed. The purchase price consisted of a certain amount of cash and the delivery by the purchaser to the seller of two old trucks, which were being traded in as part of the purchase price. The new trucks had to be painted and had to be lettered with certain names or devices desired by the purchaser. Additional adjustments and conditioning had to be furnished by the seller. It is claimed that the fact that the licenses for the trucks and title transfers were issued in the name of the bankrupt shows that the seller had parted completely with its title and possession. This was a mere incident to the transfer of title and does not throw any light on the time of actual delivery and as a matter of fact, the certificates showed the seller retained a lien. The cash payments were made by the bankrupt when it executed the contract, but the delivery of the trucks to be traded in was not made until after the physical delivery of the new trucks. It is claimed that when the International Harvester Company sent the trucks to the Modern Auto Painting Service for painting thereon of the bankrupt’s name and address, which service was to be paid for by the bankrupt,' that this was a constructive delivery. However, the record clearly shows that upon completion of this painting work the Modern Auto Painting Service “as was customary”, returned the trucks to the International Harvester Company. The words quoted above, namely: “as was customary”, are taken from the agreed statement of facts and are most significant as showing the usual custom of business, namely: that where sales were made of trucks for business purposes and it was necessary that some painting job be done, such trucks were to be sent to a paint shop and then returned to the Harvester Company’s place of business, there to be finally' inspected and subjected to such adjustments as might be necessary before final and complete delivery. In this case the trucks came back, as was customary,- from the paint shop to the Harvester Company’s place of business and after making some minor adjustments the Harvester Company made actual delivery of the trucks upon the same day to the bankrupt and received from the bankrupt one of the old trucks, which was traded in, and the other of these trucks was delivered on the next day.
We think it clear from all of this that actual delivery was made on October 11th, the same day on which the conditional sales contract was recorded, and that the terms of the statute were, therefore, complied with fully and no creditors were misled or deceived into believing that the bankrupt was in possession of the property before the conditional sales contract had been recorded. The actual delivery of possession and the recording having been made upon the same date, the seller’s lien or title was complete and unbroken and it was entitled to exercise the same and to recover possession of the trucks for the purpose of satisfying its indebtedness. Such title or lien having passed in this case from the trucks themselves to the funds in the hands of the court we are clearly of the opinion that the seller, International Harvester Company, is entitled to be satisfied as to its debt from such funds and we fully concur with the conclusions reached by the District Judge in his order affirming the order of the Referee.
Affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_authoritydecision
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
MELENDEZ-DIAZ v. MASSACHUSETTS
CERTIORARI TO THE APPEALS COURT OF MASSACHUSETTS
No. 07-591.
Argued November 10, 2008
Decided June 25, 2009
Scalia, J., delivered the opinion of the Court, in which Stevens, Souter, Thomas, and Ginsburg, JJ., joined. Thomas, J., filed a concurring opinion, post, p. 329. Kennedy, J., filed a dissenting opinion, in which Roberts, C. J., and Breyer and Alito, JJ., joined, post, p. 330.
Jeffrey L. Fisher argued the cause for petitioner. With him on the briefs were Pamela S. Karlan, Amy Howe, Kevin K. Russell, Mary T Rogers, and Thomas C. Goldstein.
Martha Coakley, Attorney General of Massachusetts, argued the cause for respondent. With her on the brief were James J. Arguin and David S. Friedman, Assistant Attorneys General.
Lisa H. Schertler argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were former Solicitor General Garre, Acting Assistant Attorney General Friedrich, and Deputy Solicitor General Dreeben
Briefs of amici curiae urging reversal were filed for Law Professors by Donald B. Ayer, Christopher S. Perry, Samuel Estreicher, Meir Feder, and Paul C. Giannelli, Edward J. Imwinkelried, and Robert P. Mosteller, all pro se; for the National Association of Criminal Defense Lawyers et al. by Jeffrey T. Green, Leonard R. Stamm, Frances H. Pratt, Donna F. Coltharp, and Judith H. Mizner; for the National Innocence Network by Tim othy P. O’Toole and Andrew T. Wise; and for Richard D. Friedman by Mr. Friedman, pro se.
Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Troy King, Attorney General of Alabama, Corey L. Maze, Solicitor General, and Margaret L. Fleming, Assistant Attorney General, by Kevin T. Kane, Chief State’s Attorney of Connecticut, by Peter J. Nickles, Acting Attorney General of the District of Columbia, and by the Attorneys General for their respective States as follows: Talis J. Colberg of Alaska, Terry Goddard of Arizona, Dustin McDaniel of Arkansas, John W. Suthers of Colorado, Joseph R. Biden III of Delaware, Bill McCollum of Florida, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Steve Six of Kansas, Jack Conway of Kentucky, Douglas F. Gansler of Maryland, Michael A. Cox of Michigan, Lori Swanson of Minnesota, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Jon C. Bruning of Nebraska, Catherine Cortez Masto of Nevada, Kelly Ayotte of New Hampshire, Anne Milgram of New Jersey, Gary K King of New Mexico, Roy Cooper of North Carolina, Nancy H. Rogers of Ohio, W. A. Drew Edmond-son of Oklahoma, Patrick C. Lynch of Rhode Island, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, Robert F. McDonnell of Virginia, Robert M. McKenna of Washington, and Bruce A. Salzburg of Wyoming; and for the National District Attorneys Association et al. by Mathias H. Heck, Jr., Daniel F. Conley, John P. Zanini, Macy Lee, Helle Sachse, William D. Mason, Lisa Reitz Williamson, Lynne M. Abraham, Hugh J. Burns, Jr., Andrew P. Thomas, Kym L. Worthy, Timothy A. Baughman, David Roger, and Steven S. Owens.
Justice Scalia
delivered the opinion of the Court.
The Massachusetts courts in this case admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine. The question presented is whether those affidavits are “testimonial,” rendering the affiants “witnesses” subject to the defendant’s right of confrontation under the Sixth Amendment.
I
In 2001, Boston police officers received a tip that a Kmart employee, Thomas Wright, was engaging in suspicious activity. The informant reported that Wright repeatedly received phone calls at work, after each of which he would be picked up in front of the store by a blue sedan, and would return to the store a short time later. The police set up surveillance in the Kmart parking lot and witnessed this precise sequence of events. When Wright got out of the car upon his return, one of the officers detained and searched him, finding four clear white plastic bags containing a substance resembling cocaine. The officer then signaled other officers on the scene to arrest the two men in the car — one of whom was petitioner Luis Melendez-Diaz. The officers placed all three men in a police cruiser.
During the short drive to the police station, the officers observed their passengers fidgeting and making furtive movements in the back of the car. After depositing the men at the station, they searched the police cruiser and found a plastic bag containing 19 smaller plastic bags hidden in the partition between the front and back seats. They submitted the seized evidence to a state laboratory required by law to conduct chemical analysis upon police request. Mass. Gen. Laws, ch. 111, §12 (West 2006).
Melendez-Diaz was charged with distributing cocaine and with trafficking in cocaine in an amount between 14 and 28 grams. Ch. 94C, §§32A, 32E(b)(1). At trial, the prosecution placed into evidence the bags seized from Wright and from the police cruiser. It also submitted three “certificates of analysis” showing the results of the forensic analysis performed on the seized substances. The certificates reported the weight of the seized bags and stated that the bags “[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine.” App. to Pet. for Cert. 24a, 26a, 28a. The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health, as required under Massachusetts law. Mass. Gen. Laws, ch. 111, § 13.
Petitioner objected to the admission of the certificates, asserting that our Confrontation Clause decision in Crawford v. Washington, 541 U. S. 36 (2004), required the analysts to testify in person. The objection was overruled, and the certificates were admitted pursuant to state law as “prima facie evidence of the composition, quality, and the net weight of the narcotic... analyzed.” Mass. Gen. Laws, ch. 111, § 13.
The jury found Melendez-Diaz guilty. He appealed, contending, among other, things, that admission of the certificates violated his Sixth Amendment right to be confronted with the witnesses against him. The Appeals Court of Massachusetts rejected the claim, affirmance order, 69 Mass. App. 1114, 870 N. E. 2d 676, 2007 WL 2189152, *4, n. 3 (July 31, 2007), relying on the Massachusetts Supreme Judicial Court’s decision in Commonwealth v. Verde, 444 Mass. 279, 283-285, 827 N. E. 2d 701, 705-706 (2005), which held that the authors of certificates of forensic analysis are not subject to confrontation under the Sixth Amendment. The Supreme Judicial Court denied review. 449 Mass. 1113, 874 N. E. 2d 407 (2007). We granted certiorari. 552 U. S. 1256 (2008).
II
The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, 403 (1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” In Crawford, after reviewing the Clause’s historical underpinnings, we held that it guarantees a defendant’s right to confront those “who ‘bear testimony’ ” against him. 541 U. S., at 51. A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Id., at 54.
Our opinion described the class of testimonial statements covered by the Confrontation Clause as follows:
“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id., at 51-52 (internal quotation marks and citations omitted).
There is little doubt that the documents at issue in this case fall within the “core class of testimonial statements” thus described. Our description of that category mentions affidavits twice. See also White v. Illinois, 502 U. S. 346, 365 (1992) (Thomas, J., concurring in part and concurring in judgment) (“[T]he Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”). The documents at issue here, while denominated by Massachusetts law “certificates,” are quite plainly affidavits: “declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.” Black’s Law Dictionary 62 (8th ed. 2004). They are incontrovertibly a “ ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Crawford, supra, at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). The fact in question is that the substance found in the possession of Melendez-Diaz and his codefendants was, as the prosecution claimed, cocaine — the precise testimony the analysts would be expected to provide if called at trial. The “certificates” are functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination.” Davis v. Washington, 547 U. S. 813, 830 (2006) (emphasis deleted).
Here, moreover,, not only were the affidavits “ ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’” Crawford, supra, at 52, but under Massachusetts law the sole purpose of the affidavits was to provide “prima facie evidence of the composition, quality, and the net weight” of the analyzed substance, Mass., Gen. Laws, ch. 111, §13. We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose — as stated in the relevant state-law provision — was reprinted on the affidavits themselves. See App. to Pet. for Cert. 25a, 27a, 29a.
In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to “‘be confronted with’ ” the analysts at trial. Crawford, supra, at 54.
III
Respondent and the dissent advance a potpourri of analytic arguments in an effort to avoid this rather straightforward application of our holding in Crawford. Before addressing them, however, we must assure the reader of the falsity of the dissent’s opening alarum that we are “sweeping] away an accepted rule governing the admission of scientific evidence” that has been “established for at least 90 years” and “extends across at least 35 States and six Federal Courts of Appeals.” Post, at 330.
The vast majority of the state-court cases the dissent cites in support of this claim come not from the last 90 years, but from the last 30, and not surprisingly nearly all of them rely on our decision in Ohio v. Roberts, 448 U. S. 56 (1980), or its since-rejected theory that unconfronted testimony was admissible as long as it bore indicia of reliability, id., at 66. See post, at 357-358. As for the six Federal Courts of Appeals cases cited by the dissent, five of them postdated and expressly relied on Roberts. See post, at 349-350. The sixth predated Roberts but relied entirely on the same erroneous theory. See Kay v. United States, 255 F. 2d 476, 480-481 (CA4 1958) (rejecting Confrontation Clause challenge “where there is reasonable necessity for [the evidence] and where... the evidence has those qualities of reliability and trustworthiness”).
A review of cases that predate the Roberts era yields a mixed picture. As the dissent notes, three State Supreme Court decisions from the early 20th century denied confrontation with respect to certificates of analysis regarding a substance’s alcohol content. See post, at 349 (citing cases from Massachusetts, Connecticut, and Virginia). But other state courts in the same era reached the opposite conclusion. See Torres v. State, 113 Tex. Crim. 1, 2-4, 18 S. W. 2d 179, 180 (1929); Volrich v. State, 4 Ohio L. Abs. 253 (App. 1925) (per curiam). At least this much is entirely clear: In faithfully applying Crawford to the facts of this case, we are not overruling 90 years of settled jurisprudence. It is the dissent that seeks to overturn precedent by resurrecting Roberts a mere five years after it was rejected in Crawford.
We turn now to the various legal arguments raised by respondent and the dissent.
A
Respondent first argues that the analysts are not subject to confrontation because they are not “accusatory” witnesses, in that they do not directly accuse petitioner of wrongdoing; rather, their testimony is inculpatory only when taken together with other evidence linking petitioner to the contraband. See Brief for Respondent 10. This finds no support in the text of the Sixth Amendment or in our case law.
The Sixth Amendment guarantees a defendant the right “to be confronted with the witnesses against him.” (Emphasis added.) To the extent the analysts were witnesses (a question resolved above), they certainly provided testimony against petitioner, proving one fact necessary for his conviction — that the substance he possessed was cocaine. The contrast between the text of the Confrontation Clause and the text of the adjacent Compulsory Process Clause confirms this analysis. While the Confrontation Clause guarantees a defendant the right to be confronted with the witnesses “against him,” the Compulsory Process Clause guarantees a defendant the right to call witnesses “in his favor.” U. S. Const., Arndt. 6. The text of the Amendment contemplates two classes of witnesses — those against the defendant and those in his favor. The prosecution must produce the former; the defendant may call the latter. Contrary to respondent’s assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation.
It is often, indeed perhaps usually, the ease that an adverse witness’s testimony, taken alone, will not suffice to convict. Yet respondent fails to cite a single case in which such testimony was admitted absent a defendant’s opportunity to cross-examine. Unsurprisingly, since such a holding would be contrary to longstanding case law. In Kirby v. United States, 174 U. S. 47 (1899), the Court considered Kirby’s conviction for receiving stolen property, the evidence for which consisted, in part, of the records of conviction of three individuals who were found guilty of stealing the relevant property. Id., at 53. Though this evidence proved only that the property was stolen, and not that Kirby received it, the Court nevertheless ruled that admission of the records violated Kirby’s rights under the Confrontation Clause. Id., at 55. See also King v. Turner, 1 Mood. 347, 168 Eng. Rep. 1298 (1832) (confession by one defendant to having stolen certain goods could not be used as evidence against another defendant accused of receiving the stolen property).
B
Respondent and the dissent argue that the analysts should not be subject to confrontation because they are not “conventional” (or “typical” or “ordinary”) witnesses of the sort whose ex parte testimony was most notoriously used at the trial of Sir Walter Raleigh. Post, at 343-345; Brief for Respondent 28. It is true, as the Court recognized in Crawford, that ex parte examinations of the sort used at Raleigh’s trial have “long been thought a paradigmatic confrontation violation.” 541 U. S., at 52. But the paradigmatic case identifies the core of the right to confrontation, not its limits. The right to confrontation was not invented in response to the use of the ex parte examinations in Raleigh’s Case, 2 How. St. Tr. 1 (1603). That use provoked such an outcry precisely because it flouted the deeply rooted common-law tradition “of live testimony in court subject to adversarial testing.” Crawford, supra, at 43 (citing 3 W. Blackstone, Commentaries on the Laws of England 373-374 (1768)). See also Crawford, supra, at 43-47.
In any case, the purported distinctions respondent and the dissent identify between this case and Sir Walter Raleigh’s “conventional” accusers do not survive scrutiny. The dissent first contends that a “conventional witness recalls events observed in the past, while an analyst’s report contains near-contemporaneous observations of the test.” Post, at 345. It is doubtful that the analyst’s reports, in this case could be characterized as reporting “near-contemporaneous observations”; the affidavits were completed almost a week after the tests were performed. See App. to Pet. for Cert. 24a-29a (the tests were performed on November 28, 2001, and the affidavits sworn on December 4, 2001). But regardless, the dissent misunderstands the role that “near-contemporaneity” has played in our case law. The dissent notes that that factor was given “substantial weight” in Davis, post, at 345, but in fact that decision disproves the dissent’s position. There the Court considered the admissibility of statements made to police officers responding to a report of a domestic disturbance. By the time officers arrived the assault had ended, but the victim’s statements — written and oral — were sufficiently close in time to the alleged assault that the trial court admitted her affidavit as a “present sense impression.” 547 U. S., at 820 (internal quotation marks omitted). Though the witness’s statements in Davis were “near-contemporaneous” to the events she reported, we nevertheless held that they could not.be admitted absent an opportunity to confront the witness. Id., at 830.
A second reason the dissent contends that the analysts are not “conventional witnesses” (and thus not subject to confrontation) is that they “observe[d] neither the crime nor any human action related to it.” Post, at 345. The dissent provides no authority for this particular limitation of the type of witnesses subject to confrontation. Nor is it conceivable that all witnesses who fit this description would be outside the scope of the Confrontation Clause. For example, is a police officer’s investigative report describing the crime scene admissible absent an opportunity to examine the officer? The dissent’s novel exception from coverage of the Confrontation Clause would exempt all expert witnesses — a hardly “unconventional” class of witnesses.
A third respect in which the dissent asserts that the analysts are not “conventional” witnesses and thus not subject to confrontation is that their statements were not provided in response to interrogation. Post, at 345-346. See also Brief for Respondent 29. As we have explained, “[t]he Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation.” Davis, supra, at 822-823, n. 1. Respondent and the dissent cite no authority, and we are aware of none, holding that a person who volunteers his testimony is any less a “ 'witness against’ the defendant,” Brief for Respondent 26, than one who is responding to interrogation. In any event, the analysts’ affidavits in this case were presented in response to a police request. See Mass. Gen. Laws, ch. 111, §§ 12-13. If an affidavit submitted in response to a police officer’s request to “write down what happened” suffices to trigger the Sixth Amendment’s protection (as it apparently does, see Davis, 547 U. S., at 819-820; id., at 840, n. 5 (Thomas, J., concurring in judgment in part and dissenting in part)), then the analysts’ testimony should be subject to confrontation as well.
C
Respondent claims that there is a difference, for Confrontation Clause purposes, between testimony recounting historical events, which is “prone to distortion or manipulation,” and the testimony at issue here, which is the “resul[t] of neutral, scientific testing.” Brief for Respondent 29. Relatedly, respondent and the dissent argue that confrontation of forensic analysts would be of little value because “one would not reasonably expect a laboratory professional... to feel quite differently about the results of his scientific test by having to look at the defendant.” Id., at 31 (internal quotation marks omitted); see post, at 339.
This argument is little more than an invitation to return to our overruled decision in Roberts, 448 U. S. 56, which held that evidence with “particularized guarantees of trustworthiness” was admissible notwithstanding the Confrontation Clause. Id., at 66. What we said in Crawford in response to that argument remains true:
“To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination....
“Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” 541 U. S., at 61-62.
Respondent and the dissent may be right that there are other ways — and in some cases better ways — to challenge or verify the results of a forensic test. But the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available.
Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 183 (2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” Id., at 23-24. A forensic analyst responding to a request from a law enforcement official may feel pressure — or have an incentive — to alter the evidence in a manner favorable to the prosecution.
Confrontation,is one means of ensuring accurate forensic analysis. While it is true, as the dissent notes, that an honest analyst will not alter his testimony when forced to confront the defendant, post, at 339, the same cannot be said of the fraudulent analyst. See Brief for National Innocence Network as Amicus Curiae 15-17 (discussing cases of documented “drylabbing” where forensic analysts report results of tests that were never performed); National Academy Report 44-48 (discussing documented cases of fraud and error involving the use of forensic evidence). Like the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony. See Coy v. Iowa, 487 U. S. 1012, 1019 (1988). And, of course, the prospect of confrontation will deter fraudulent analysis in the first place.
Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that “[t]he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics.” Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 491 (2006). One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases. Garrett & Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 14 (2009). And the National Academy Report concluded:
“The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country.” National Academy Report, at xx.
Like expert witnesses generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination.
This case is illustrative. The affidavits submitted by the analysts contained only the bare-bones statement that “[t]he substance was found to contain: Cocaine.” App. to Pet. for Cert. 24a, 26a, 28a. At the time of trial, petitioner did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed. While we still do not know the precise tests used by the analysts, we are told that the laboratories use “methodology recommended by the Scientific Working Group for the Analysis of Seized Drugs,” App. to Brief for Petitioner la-2a. At least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination. See 2 P. Giannelli & E. Imwinkelried, Scientific Evidence §23.03[c], pp. 532-533, and ch. 23A, p. 607 (4th ed. 2007) (identifying four “critical errors” that analysts may commit in interpreting the results of the commonly used gas chromatography/mass spectrometry analysis); Shellow, The Application of Daubert to the Identification of Drugs, 2 Shepard’s Expert & Scientific Evidence Quarterly 593, 600 (1995) (noting that while spectrometers may be equipped with computerized matching systems, “forensic analysts in crime laboratories typically do not utilize this feature of the instrument, but rely exclusively on their subjective judgment”).
The same is true of many of the other types of forensic evidence commonly used in criminal prosecutions. “[T]here is wide variability across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material.” National Academy Report 6-7. See also id., at 138-139, 142-143, 154-155 (discussing problems of subjectivity, bias, and unreliability of common forensic tests such as latent fingerprint analysis, pattern/ impression analysis, and toolmark and firearms analysis). Contrary to respondent’s and the dissent’s suggestion, there is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology— the features that are commonly the focus in the cross-examination of experts.
D
Respondent argues that the analysts’ affidavits are admissible without confrontation because they are “akin to the types of official and business records admissible at common law.” Brief for Respondent 35. But the affidavits do not qualify as traditional official or business records, and even if they did, their authors would be subject to confrontation nonetheless.
Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. See Fed. Rule Evid. 803(6). But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. Our decision in Palmer v. Hoffman, 318 U. S. 109 (1943), made that distinction clear. There we held that an accident report provided by an employee of a railroad company did not qualify as a business record because, although kept in the regular course of the railroad’s operations, it was “calculated for use essentially in the court, not in the business.” Id., at 114. The analysts’ certificates — like police reports generated by law enforcement officials — do not qualify as business or public records for precisely the same reason. See Rule 803(8) (defining public records as “excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel”).
Respondent seeks to rebut this limitation by noting that at common law the results of a coroner’s inquest were admissible without an opportunity for confrontation. But as we have previously noted, whatever the status of coroner’s reports at common law in England, they were not accorded any special status in American practice. See Crawford, 541 U. S., at 47, n. 2; Giles v. California, 554 U. S. 353, 399-400 (2008) (Breyer, J., dissenting); Note, Evidence — Official Records — Coroner’s Inquest, 65 U. Pa. L. Rev. 290 (1917).
The dissent identifies a single class of evidence which, though prepared for use at trial, was traditionally admissible: a clerk’s certificate authenticating an official record — or a copy thereof — for use as evidence. See post, at 347. But a clerk’s authority in that regard was narrowly circumscribed. He was permitted “to certify to the correctness of a copy of a record kept in his office,” but had “no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.” State v. Wilson, 141 La. 404, 409, 75 So. 95, 97 (1917). See also State v. Champion, 116 N. C. 987, 988-989, 21 S. E. 700, 700-701 (1895); 5 J. Wigmore, Evidence §1678 (3d ed. 1940). The dissent suggests that the fact that this exception was “‘narrowly circumscribed’” makes no difference. See post, at 348. To the contrary, it makes all the difference in the world. It shows that even the line of cases establishing the one narrow exception the dissent has been able to identify simultaneously vindicates the general rule applicable to the present case. A clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do what the analysts did here: create a record for the sole purpose of providing evidence against a defendant.
Far more probative here are those cases in which the prosecution sought to admit into evidence a clerk’s certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it. Like the testimony of the analysts in this case, the clerk’s statement would serve as substantive evidence against the defendant whose guilt depended on the nonexistence of the record for which the clerk searched. Although the clerk’s certificate would qualify as an official record under respondent’s definition — it was prepared by a public officer in the regular course of his official duties — and although the clerk was certainly not a “conventional witness” under the dissent’s approach, the clerk was nonetheless subject to confrontation. See People v. Bromwich, 200 N. Y. 385, 388-389, 93 N. E. 933, 934 (1911); People v. Goodrode, 132 Mich. 542, 547, 94 N. W. 14, 16 (1903); Wigmore, supra, § 1678.
Respondent also misunderstands the relationship between the business-and-official-records hearsay exceptions and the Confrontation Clause. As we stated in Crawford: “Most of the hearsay exceptions covered statements that by their nature were not testimonial — for example, business records or statements in furtherance of a conspiracy.” 541 U. S., at 56. Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because — having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial. Whether or not they qualify as business or official records, the analysts’ statements here — prepared specifically for use at petitioner’s trial — were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.
E
Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power — whether pursuant to state law or the Compulsory Process Clause— is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. See, e. g., Davis, 547 U. S., at 820 (“[The witness] was subpoenaed, but she did not appear at... trial”). Converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.
F
Finally, respondent asks us to relax the requirements of the Confrontation Clause to accommodate the “'necessities of trial and the adversary process.’ ” Brief for Respond
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_habeas
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
Walter L. JONES and Walter L. Jones Development Corporation, Inc., Plaintiffs-Appellants, v. NIAGARA FRONTIER TRANSPORTATION AUTHORITY (NFTA) et al., Defendants-Appellees.
No. 271, Docket 87-7502.
United States Court of Appeals, Second Circuit.
Argued Nov. 18, 1987.
Decided Dec. 31, 1987.
Walter L. Jones, pro se.
James A.W. McLeod, Buffalo, N.Y., for plaintiff-appellant Walter L. Jones Development Corp., Inc.
Paul I. Perlman, Buffalo, N.Y. (Hodgson, Russ, Andrews, Woods & Goodyear, of counsel), for defendants-appellees Siegfried Const. Co., Inc., Siegfried/Slattery, Fruin-Colnon Corp., Traylor Bros. Inc., S & M/McHugh/Kenny, Nat. Elec. Contractors Ass’n, Plumbing Contractors Ass’n of Erie County, Marine Midland Bank, NA, Executor of Cornelius J. Cavanaugh, deceased, John J. Sanders, S.H. Bartholomew.
Dominic J. Terranova and Mary Perla, Buffalo, N.Y., for defendant-appellee Niagara Frontier Transp. Authority.
Roger P. Williams, U.S. Atty., and Joseph B. Mistrett, Buffalo, N.Y., for defendant-appellee Urban Mass Transp. Admin.
Richard A. Clack, Buffalo, N.Y. (Saper-ston & Day, P.C., of counsel), for defendants-appellees The John W. Cowper Co., Inc. and Irving Francis.
William J. McDermott, Niagara Falls, N.Y., for defendants-appellees Albert Elia Building Co., Inc. and Lawrence Elia.
Richard Lipsitz and Richard P. Weisbeck, Jr., Buffalo, N.Y. (Lipsitz, Green, Fahringer, Roll, Schuler & James, of counsel), for defendants-appellees Donald J. Blair and Building Trades Council of Buffalo and Vicinity, Ronald M. Fino and Laborers Local Union No. 210, Joseph F. Colern and Michael Fitzpatrick Iron Workers Local Union No. 6, Leonard S. Coniglio and Cement Masons Local Union No. 511, Leo Hopkins and Operating Engineers Local Union No. 17, 17A, 17B, Donald J. Blair as an Official of the Const. Industry Coalition for Economic Recovery of Western New York; Greater Buffalo Sheet Metal & Roofing Ass’n, Paul Gilbert (Official), Asbestos Workers Local Union No. 4, Jack Kelleher (Official), Boiler Makers Local Union No. 7, John Barry Jarzynski (Official), Bricklayers Local Union No. 45, James Joseph McGovern, Elec. Workers Local Union No. 41, Melborne H. Rich (Official), Elevator Constructors Local Union No. 14, Donald M. Winkle (Official), Glazers Local Union No. 660, James J. Coyle, Painters Dist. Council No. 4, Jim V. Griffo (Official), Plasterers Local Union No. 9, Samuel F. Antonio (Official), Roofers Local Union No. 74, Angelo Pagano (Official), Sheet Metals Workers Local Union No. 71, George J. Cuddihy (Official), Steamfitters Local Union No. 395, Donald J. Blair (Official), Tile, Marble & Terrazzo Workers Helpers Local Union No. 8, Daniel J. Mecca (Official).
Jerome C. Gorski, Buffalo, N.Y. (Gorski & Manias, of counsel), for defendants-ap-pellees Buffalo AFL-CIO Council and George L. Wessel.
E. Joseph Giroux, Jr., Buffalo, N.Y., for defendants-appellees Carpenters Dist., Council of Buffalo & Vicinity, U.A. Plumbers Local Union No. 36, Truck Drivers Local Union No. 449, Herman F. Bodewes, Lathers Local Union 32, Frank A. Sciabar-rasi, Ervin M. Walker, Larry Connelly.
Joseph L. Randazzo, Buffalo, N.Y. (Flah-erty, Cohen, Grande, Randazzo & Doren, P.C., of counsel), for defendants-appellees Const. Industry Coalition for Economic Recovery of Western New York, Const. Industry Employers Ass’n, Inc. and Bernard Shevlin.
Michael L. Beilewech, Jr., Buffalo, N.Y. (Magavern & Magavern, of counsel), for defendant-appellee Mechanical Contractors Ass’n of Buffalo & Vicinity, Inc.
Victor C. Silverstein, Buffalo, N.Y. (Lippes, Kaminsky, Silverstein, Porter, Mathias, Wexler & Calverley, of counsel), for defendants-appellees Boiler Makers Ass’n and Louis D. Madia.
Peter H. Schiff, Albany, N.Y., Deputy Sol. Gen. (Robert Abrams, Atty. Gen. of the State of N.Y., William J. Kogan, Ass’t Sol. Gen., John Q. Driscoll, Asst. Atty. Gen.), for defendant-appellee New York State Dept, of Transp.
Before LUMBARD, KEARSE and ALTIMARI, Circuit Judges.
ALTIMARI, Circuit Judge:
Walter L. Jones, pro se (“Jones”), and the Walter L. Jones Development Corp. (“the Corporation”), appeal from an order of the United States District Court for the Western District of New York, John T. Elfvin, Judge, dismissing appellants’ complaint pursuant to Fed.R.Civ.P. 37(b)(2)(C). Judge Elfvin dismissed the action because of Jones’ persistent refusal, in the face of warnings by the court and the Corporation’s attorney, to answer any questions at a duly scheduled deposition. We conclude that in light of Jones’ willful attempt to obstruct the course of discovery in this action, the district court was fully justified in imposing the harsh sanction of dismissal.
BACKGROUND
This lawsuit is no newcomer to our courts. Jones commenced the action in 1980; since then, Jones’ litigation has been the subject of several opinions, published and unpublished, in both the district and circuit courts. When the case was dismissed, however, discovery had barely begun.
Appellant Jones is the president and sole shareholder of the Corporation, a minority-owned construction business located in Buffalo, New York. Jones filed the first version of the complaint in this action on November 24, 1980, alleging that the defendants’ failure to award certain construction contracts to the Corporation violated federal constitutional and statutory law. A more detailed background statement is provided in an early district court opinion in this case, see Jones v. Niagara Frontier Transportation Authority, 524 F.Supp. 233 (W.D.N.Y.1981).
Jones filed the original complaint pro se, on behalf of both himself and the Corporation; the Corporation initially was unrepresented by counsel. On April 17,1981, after several defendants had moved to dismiss the action on various grounds, the district court dismissed Jones’ individual claims, holding that Jones did not have standing to challenge alleged injuries to the Corporation. The court also held that the Corporation would have to retain counsel in order to proceed with the action. Jones subsequently attempted to circumvent this ruling by assigning the Corporation’s claims to himself; the district court held, however, that a corporation could not assign its claims to a lay person in order for the lay person to prosecute the corporation’s claims. This court affirmed that ruling, see Jones v. Niagara Frontier Transportation Authority, 722 F.2d 20 (2d Cir.1983).
In July 1981, the attorney which the Corporation had then retained sought leave to amend the complaint. The amended complaint, filed in August 1981, omitted several of the defendants previously joined in the action. On October 8,1981, the district court issued an order to show cause why the claims against those defendants should not be dismissed. On the return date, no one appeared on behalf of the Corporation, and therefore on November 2, 1981, the court ordered the action dismissed as to those defendants, with prejudice. Judge Elfvin concluded that the decision to delete certain defendants was a strategic one on the part of plaintiff’s counsel.
Over the years, Jones made numerous attempts to have himself reinstated as a party, all of them unsuccessful. He also sought unsuccessfully to reinstate the defendants who had been dismissed from the action. The passing years were witness to a great flurry of paper-work — including several amended complaints, district court rulings and appeals — but not much progress. In addition, several different attorneys have represented the Corporation.
In October 1985, Judge Elfvin referred the case to Magistrate Maxwell for pre-trial proceedings. The Magistrate ruled on various motions and in January 1987, issued a scheduling order requiring all parties wishing to file deposition notices to do so by February 2, 1987. Both Jones and the Corporation appealed from the Magistrate’s rulings, first to the district court and then to this court.
On March 24, 1987, this court dismissed the Corporation’s appeals from the Magistrate’s orders due to lack of appellate jurisdiction. We awarded defendants double costs and attorneys’ fees, and warned the plaintiff that “the further filing of merit-less legal papers subjects them to the risk of severe sanctions.”
While the aforementioned appeal was still pending before this court, a deposition was scheduled for March 2, 1987, at which Jones was to appear and testify as president of the Corporation. Jones failed to appear for the scheduled deposition, taking the position that his appeal to this court had the effect of staying all discovery. Counsel for the Corporation subsequently conceded that discovery was not stayed and that there was no reason to postpone the deposition. Accordingly, the Magistrate issued an order on March 9, 1987, requiring Jones to appear and give deposition testimony commencing on March 16, 1987.
Both Jones and the Corporation’s counsel appeared on March 16, but Jones refused to answer any questions put to him by opposing counsel. Instead, he read from a prepared statement, the gist of which was that all orders entered in this action since the dismissal of his individual claims were unconstitutional, and that he would not answer questions until his individual rights were vindicated. Presumably, such vindication would include reinstating Jones as a party. The Corporation’s attorney stated that Jones’ refusal to respond was not in accordance with counsel’s advice.
After Jones initially refused to respond, defense counsel telephoned Magistrate Maxwell for advice on how to proceed. The Magistrate advised Jones that he was obligated to answer all questions unless there was a legitimate claim of privilege. He also warned Jones that defendants might move for sanctions, “because of what [he] construe[d] to be [Jones’] deliberate attempts to delay and frustrate the discovery in this case.” The deposition was adjourned briefly to give Jones an opportunity to confer with counsel. Following the adjournment, Jones still refused to answer any questions, and the proceeding was terminated.
Defendants moved to dismiss the complaint, pursuant to Fed.R.Civ.P. 37, based on Jones’ willful refusal to give deposition testimony. On April 15,1987, Judge Elfvin granted defendants’ motion and dismissed the action.
DISCUSSION
Rule 37(b)(2)(C) provides that if an officer of a party refuses to obey an order compelling discovery, the court may impose sanctions against that individual, including, where appropriate, dismissal of the action. A district court’s choice of sanction should not be disturbed on appeal unless that choice constitutes an abuse of discretion. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976) (per curiam).
Dismissal under Rule 37 is an extreme sanction, to be imposed only in extreme circumstances. See Israel Aircraft Industries, Ltd. v. Standard Precision, 559 F.2d 203, 208 (2d Cir.1977). “The sanction of dismissal should not be imposed under Rule 37 unless the failure to comply with a pretrial production order is due to ‘willfulness, bad faith, or any fault’ of the deponent.” Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d Cir.1986) (quoting Societe Internationale Pour Participations Industrielles et Commerciales v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1095, 2 L.Ed.2d 1255 (1958)). Nevertheless, this court observed in Cine Forty-Second, Street Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1068 (2d Cir.1979), that “in this day of burgeoning, costly and protracted litigation courts should not shrink from imposing harsh sanctions where ... they are clearly warranted.”
We conclude that the district court did not abuse its discretion in this case by electing to impose the harsh sanction of dismissal. Walter Jones, as president of the plaintiff corporation, refused willfully and repeatedly to answer any questions at a court-ordered deposition. Although Jones initially took the position that discovery was stayed pending his appeal from certain of the Magistrate’s orders, the district court made it clear that such was not the case. Moreover, the Corporation’s attorney conceded that discovery had not been stayed and that the court-ordered deposition could proceed.
Jones willfully chose, however, to ignore the advice of counsel, as well as earnest warnings by the Magistrate regarding the possibility of sanctions. In response to opposing counsel’s first question at the deposition, Jones stated in part:
[M]y answers to any and all questions are that I am not at liberty or free to answer any questions, at this time, based upon the grounds that it would be further violative of my individual constitutional rights to due process, which are caused by the Court’s — that’s appealed— prior and present decisions being entered in a manner inconsistent with due process of law, which precludes and restrains my individual participation in this meritorious civil rights case, which is now being challenged, on appeal, as being mandatorily void, including the Order that directed this instant proceeding.
Jones’ obstructionist conduct, moreover, occurred in the context of a lawsuit which had been pending for nearly seven years with almost no progress being made. It appeared to everyone else involved in the litigation, including the court, that Jones was concerned more with making frivolous motions than with moving the case forward. Instead of proceeding with the Corporation’s claims, Jones made numerous attempts to have the district court reconsider its ruling with respect to Jones’ lack of standing to press his individual claims. Jones also tried repeatedly to bring several defendants back into the action after the Corporation’s counsel had made a strategic decision to drop them. Jones sought to amend the complaint over a dozen times (and was granted permission to do so on several occasions) and persisted in filing appeals from non-appealable orders.
Against this background, Jones’ refusal to comply with the discovery order was simply the last straw. As the district court observed:
At a time when all others are working towards the resolution of the issues on the merits, Mr. Jones, the sole shareholder of the plaintiff corporation, has determined (thus far successfully) that the merits will not be reached and decided until he has coerced this court into reinstating him as a party plaintiff ... Mr. Jones’ refusal to obey the orders directing him to testify was knowing, intentional and willful.
In light of all the circumstances and history of this case, see Link v. Wabash Railroad Co., 370 U.S. 626, 634-35, 82 S.Ct. 1386, 1390-91, 8 L.Ed.2d 734 (1962), the district court was completely justified in choosing the sanction of dismissal. See Cine Forty-Second Street, 602 F.2d at 1068-69 (Oakes, J., concurring) (suggesting that dismissal is a particularly appropriate sanction where client rather than counsel is responsible for conduct leading to dismissal).
In addition to appealing from the Rule 37 dismissal, appellants also challenge several interlocutory rulings made by the district court during the pendency of this action. Most notable among these is the court’s April 1981 order dismissing Jones’ individual claims on the ground that he did not have standing to assert them. Since then, to the detriment of the Corporation, Jones has expended an inordinate amount of energy in an attempt to overturn or circumvent that ruling. Indeed, Jones’ refusal to comply with the discovery order was premised on his belief that he need not do so until he was reinstated as a party.
The district court held that Jones did not have standing as an individual because the claims asserted all involved injuries to the Corporation, stemming from its failure to obtain the construction contracts at issue. There were no allegations that defendants had taken any actions against Jones in his individual capacity.
A shareholder — even the sole shareholder — does not have standing to assert claims alleging wrongs to the corporation. See, e.g., Sherman v. British Leyland Motors, Ltd., 601 F.2d 429, 439-40 (9th Cir.1979); Sterngass v. Bowman, 563 F.Supp. 456, 458-59 (S.D.N.Y.), aff'd mem., 742 F.2d 1440 (2d Cir.1983), cert. denied, 469 U.S. 823, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984); see also Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (plaintiff “cannot rest his claim to relief on the legal rights or interests of third parties”). Even though Jones may have felt personally aggrieved by defendants’ failure to award contracts to the Corporation, and even though he may have faced the risk of financial loss as a result, the district court correctly dismissed Jones’ individual claims for lack of standing. We have examined the appellants’ remaining contentions regarding the interlocutory orders and find them all to be without merit.
Finally, appellants have filed a motion in this court, seeking permission yet again to amend the complaint. In light of our disposition of this appeal, the motion to amend is hereby denied as moot.
The judgment of the district court is affirmed.
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
|
songer_othcrim
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
James Emerson MORRIS, Appellant, v. UNITED STATES of America, Appellee.
No. 7120.
United States Court of Appeals Fourth Circuit.
Argued Jan. 4, 1956.
Decided Jan. 11, 1956.
No appearance for appellant.
Robert L. Gavin, Asst. U. S. Atty., Greensboro, N. C. (Edwin M. Stanley, U. S. Atty., Greensboro, N. C., on brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
This is an appeal in a criminal case in which appellant was indicted for sending threatening letters through the mail in violation of 18 U.S.C. § 876. He pleaded guilty to one of the counts of the two count indictment and not guilty to the other count, but was convicted on that count after a trial at which he was represented by competent counsel appointed by the court. He noted an appeal from the sentence and judgment of the court but has filed no brief as required by our rules. The United States Attorney has made a motion to dismiss or affirm. We have examined the record and find no ground for any contention that the appellant was not properly tried and sentenced or that he was not guilty of the crimes charged against him. The judgment appealed from will accordingly be affirmed.
Affirmed.
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_weightev
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
In the Matter of Bert F. Hinrichs Company, a Delaware corporation, Alleged Bankrupt. BERT F. HINRICHS COMPANY, a Delaware corporation, Appellant, v. William SCHANEBERG et al., Appellees.
No. 14533.
United States Court of Appeals Seventh Circuit.
Sept. 30, 1964.
Patrick A. Barton, John J. Dillon, Chicago, 111., for Bert F. Hinrichs Co., appellant.
Francis X. Mahoney, Harold R. Nettles, Freeport, 111., for John G. Harrington, Trustee in Bankruptcy of Bert F. Hinrichs Co.
Charles H. Davis, Rockford, 111., for Raymond A. Flynn, Trustee in Bankruptcy of Bert F. Hinrichs, a bankrupt, petitioning creditor.
Edward M. Sullivan, Amboy, Illinois, for William C. Sehaneberg, O. P. Dickinson, Faye Ellen Murphy, executrix of Will of Irene Anderson, deceased, Robert W. Smith and Le Roy Kreger, Sr., petitioning creditors.
Warren H. Badger, Dixon, 111., fox* Marvin Hartley, petitioning creditor.
Before HASTINGS, Chief Judge, and KNOCH and CASTLE, Circuit Judges.
PER CURIAM.
The appellant prosecutes this appeal from an order of the District Court ratifying and confirming the findings of fact, conclusions of law, and the order of the x'eferee in bankruptcy adjudicating it a bankrupt.
Two judgments were entered against appellant by an Illinois Justice of the Peace. Executions were issued on the judgments and delivered to the constable. Under Illinois law liens arose upon appellant’s personal property when the executions were issued and delivered. Appellant did not vacate or discharge the liens within a thirty day period. No levy and return having been made the liens expired after seventy days. The petition for adjudication was filed five days thereafter.
We conceive the main issue presented by the appeal to be whether an involuntary adjudication of bankruptcy premised on 11 U.S.C.A. § 21, sub. a(3) requix'es that the lien suffered or pex*mitted to remain unvacated and undischarged for the thirty day period also-remain unexpired at the time the petition is filed. We agx-ee with the conclusion reached by the referee and the District Court that it need not. In our opinion the “act of bankruptcy” is the failure-to vacate or discharge the lien during the thirty day period from the date of its-inception. Cf. Weinbrenner, Inc. v. Finne, 9 Cir., 105 F.2d 272.
The record amply suppox’ts the finding of insolvency as of the time of failure to vacate or discharge the liens, and at the time the petition was filed.
We have considered the additional and subsidiary issues raised, the arguments advanced by the appellant pertaining thereto, and the cases cited and relied upon in connection therewith, but we are of the view that none of them merit discussion.
The order of the District Court is affirmed.
Affirmed.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
UNITED STATES of America, Plaintiff-Appellee, v. Patrick Henry EARLEY, Defendant-Appellant.
No. 72-1803.
United States Court of Appeals, Tenth Circuit.
July 20, 1973.
Stephen K. Lester, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for plaintiff-appellee.
Peter H. Ney, Englewood, Colo., for defendant-appellant.
Before PHILLIPS, HILL and SETH, Circuit Judges.
ORIE L PHILLIPS, Circuit Judge.
On October 15, 1971, a 12-count indictment was returned in the United States District Court for the District of Kansas against Patrick Henry Earley and Wayne E. Porter.
Count I charged that Earley and Porter, together with 10 other persons who were named as coconspirators, but not named as defendants, were charged with conspiracy to commit offenses against the United States. Count I further charged that the object, purpose and intent of the conspiracy was to “travel in and cause the travel and use of the facilities of interstate commerce with intent to:
“(a) Distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, in which state such acts of arson were committed;
“(b) Commit crimes of violence to further the aforesaid unlawful activity; and
“(c) Otherwise promote, manage, establish, carry on, and to facilitate the promotion, management, establishment, and carrying on the unlawful activity of arson.”
We think it will be helpful if we set out the provisions of 18 U.S.C.A. § 1952, as follows:
Ҥ 1952. Interstate and foreign travel or transportation in aid of racketeering enterprises
“(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, * * * with intent to—
“(1) distribute the proceeds of any unlawful activity; or “(2) commit any crime of violence to further any unlawful activity ; or
“(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
“(b) As used in this section ‘unlawful activity’ means * * * (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.”
Count III charged that Earley on or about August 11, 1968, traveled “in interstate commerce from Wichita, Kansas, to Oklahoma City, Oklahoma, with intent to distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and to carry on and facilitate the carrying on of the unlawful activity of arson, and did thereafter distribute the proceeds of the unlawful activity of arson, and did thereafter at Wichita, Kansas, continue to carry on the unlawful activity of arson, in violation of 18 U.S.C. 1952.”
Count IV charged that Earley on or about November 17, 1968, made a firearm, “to wit: a destructive device as defined by 26 U.S.C. 5845(f), without having first filed with the Secretary of the Treasury or his delegate to make and register the destructive device on the form prescribed by the Secretary or his delegate, as required by 26 U.S.C. 5822(a), in violation of 26 U.S.C. 5861(f).”
Count V charged Earley with possession on or about November 17, 1968, of “a destructive device as defined by 26 U.S.C. 5845(f), which was not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. 5861(d).”
Count VII charged that Earley on or about June 30, 1969, “did transport in interstate commerce from Duncan, Oklahoma, to Wichita, Kansas, a firearm, to wit: a destructive device as defined by 26 U.S.C. 5845(f), which had not been registered to him in the National Firearms Registration and Transfer Record as required by Chapter 53 of the Internal Revenue Code of 1954, as amended, in violation of 26 U.S.C. 5861(j).”
Count VIII charged that Earley on or about July 1, 1969, possessed “a firearm, to wit: a destructive device as defined by 26 U.S.C. 5845(f), which was not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. 5861(d).”
Count IX charged that Earley traveled in interstate commerce “from Oklahoma City, Oklahoma, to Wichita, Kansas, with intent to carry on and facilitate the carrying on of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and did thereafter at Wichita, Kansas, carry on the unlawful activity of arson by bombing Ra-zook’s Thriftway Market, in violation of 18 U.S.C. 1952.”
Count X charged that Earley traveled “in interstate commerce from Wichita, Kansas, to Oklahoma City, Oklahoma, with intent to distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and to facilitate the carrying on of the unlawful activity of arson, and did thereafter at Oklahoma City, Oklahoma, distribute the proceeds of the unlawful activity of arson, in violation of 18 U.S.C. 1952.”
Earley was convicted on Counts I, III, IV, V, VII, VIII, IX, and X, and found not guilty on Counts II, VI, and XI. Therefore, we have not set out what Counts II, VI, and XI charged.
Count XII of the indictment charged that Wayne E. Porter traveled "“in interstate commerce from Wichita, Kansas, to Perry, Oklahoma, with intent to distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and to carry on and facilitate the carrying on of the unlawful activity of arson, and did thereafter distribute the proceeds of the unlawful activity of arson, in violation of 18 U.S.C. 1952.”
The case came on for trial on May 1, 1972. Earley appeared in person and by his counsel, Archibald Hill. Porter appeared in person and by his counsel, William C. Farmer and Everett C. Fet-tis. Mr. Hill informed the court that his home and his automobile had been burglarized early that morning, and that the papers he had prepared for use during the trial had been taken. He moved for a further continuance, which was denied.
The original transcript of the record of the trial consists of 10 volumes, which were filed in lieu of an appendix. If, instead of filing all of the original record, an appendix had been filed, much immaterial matter could have been omitted, and it would have greatly reduced the work of the court.
On the fifth day of the trial, out of the sight and hearing of the jury, Porter pleaded guilty to Count I, the conspiracy count, and Count XI was dismissed as to him and Count XII was dismissed.
After such pleas and dismissals, the jury were returned to the box and the court advised them that Mr. Porter had entered a plea of guilty; that he had conflicting engagements for Monday, May 8, 1972, and that the trial would be recessed until Tuesday, May 9,1972.
The court very carefully gave the jury the precautionary instruction usually given when there is a recess of a trial.
On Tuesday, May 9, 1972, the trial was resumed, and immediately after the jury had entered the box, the trial judge gave them this further precautionary instruction :
“The jury will recall that immediately preceding the recessing of the trial last Friday afternoon the Court at that time advised you that the Defendant Wayne Porter had entered a plea of guilty to count one of the indictment, that is, the conspiracy count, before the Court and that the Court had accepted it.
“I further specifically instruct you at this time that this jury may not in any way, in the smallest degree, consider the plea of the defendant Porter as creating any inference or aspect of guilt of the defendant Patrick Henry Earley as to the conspiracy charge set forth in count one of the indictment to which the defendant Porter has entered his plea of guilty, or as to the guilt of the defendant Patrick Henry Earley on any other count of the indictment with which he is charged in this case.
“The jury is reminded that the indictment charged numerous individuals, specifically ten persons, with being joint conspirators, and the admission of the Defendant Porter, as one of the alleged co-conspirators, cannot be considered in determining the guilt or innocence of the defendant Patrick Earley on any and all counts. You must consider only evidence produced in this courtroom from the witnesses in determining the guilt or innocence of the defendant Earley on each count upon which he is charged.”
The trial judge reiterated the above-quoted instruction in his general charge to the jury.
The evidence clearly warranted the jury in finding beyond a reasonable doubt the following facts:
Porter was the owner of several grocery stores situated in Wichita, Kansas. Three of such stores, respectively, known as University IGA Store, Grove IGA, and 21st Street IGA, were located in the northeast section of Wichita. Porter hired Earley, then a resident of Oklahoma, to set on fire or cause to be set on fire during the period extending from July 1968 through July 1969, and during a time of racial unrest in Wichita, the University IGA Store and two stores owned by Porter’s competitors. Earley, in turn, hired other persons to set on fire or assist him in setting on fire such three stores.
Such three stores were, in fact, set on fire by persons so hired by Earley, or were set on fire by Earley with the assistance of such other persons. Thus, three acts of arson were committed by Earley, as that offense is defined by the laws of Kansas.
Also, there was ample evidence to justify the jury in finding beyond a reasonable doubt that Earley committed the offenses charged in Counts I, III, IV, V, VII, VIII, IX, and X of the indictment. Earley does not challenge the sufficiency of the evidence adduced to warrant the jury in so finding, but bases his appeal on other alleged errors. Hence, we deem it unnecessary to set out the evidence at length.
Counsel for Earley contends that the trial court erred in overruling his oral motion for a continuance, made when the case was called for trial on May 1, 1972, on his stated ground that his automobile was broken into the preceding night and his briefcase, containing “all his notes, minutes, files, and questions of law and questions to be raised” at the trial, was stolen.
The indictment was returned on October 15, 1971. The arraignments were set for November 15, 1971. The history of the case from that day on reflects one postponement after another, made at the request of Archibald Hill, counsel for Earley, up to and including his motion for a continuance, made on May 1, 1972, on the eve of the trial.
At Hill’s request, the arraignments were postponed from November 15, 1971, to December 6, 1971. On the latter date, Earley was arraigned and entered pleas of not guilty as to Counts I to XI, inclusive, and the trial court stated that the case would be set for trial at some date in January 1972. Also, on that date, Hill was given 10 days by the court within which to file motions. On December 16, 1971, Hill filed a motion to extend the time for the filing of such motions until December 21, 1971, because of the fact he was engaged in a session of the Oklahoma Legislature, of which he was a member. On January 10, 1972, an order was made denying the last-mentioned motion. At that time, Hill had not filed any of such motions. Thereafter, argument on such motions was continued by the court until January 17, 1972, because Earley was in jail in Oklahoma on state charges. On January 17, 1972, Hill did not appear, and hearing on such motions was continued by the court until April 4,1972.
The trial of the case was set for April 18, 1972, but on that date the court was informed that Hill was ill and in a hospital, and the court continued the trial until May 1,1972.
So far as the record discloses, Hill filed no motions, except for postponements, until May 1, 1972, when he filed a motion for a severance, and on November 12, 1971, when he filed a motion to suppress physical evidence and to suppress evidence of a confession.
The granting of a motion for a continuance rests in the discretion of the trial court, and the denial thereof by such court will not be set aside on appeal in the absence of a clear showing of an abuse of discretion.
The records of the trial show that Hill conducted a vigorous and competent defense of Earley, and there is nothing to indicate that he suffered any handicap by his claimed loss of his “notes, minutes, files, and questions of law and questions to be raised” at the trial. We conclude that the court did not abuse its discretion in overruling such motion for a continuance.
Earley contends that the trial court erred in denying his motion for a severance. In passing on such a motion the trial court has a wide discretion, and the burden is on the movant to show that he suffered sufficient prejudice from the denial of his motion to warrant the appellate court in finding that the trial court clearly abused its discretion.
As a basis for his claim that there was an abuse of discretion, Earley asserts that had there been a severance he would have avoided the prejudice which resulted to him:
(1) When the trial court advised the jury on the fifth day of the trial that Porter had pleaded guilty to the conspiracy count, and
(2) When evidence was adduced at the trial of other criminal acts on the part of Earley.
Since Earley asserts (1) and (2) as separate grounds of error, and since all three claims of error are related, we will proceed to consider all of them at this point.
First, as to the statement by the court to the jury that Porter had pleaded guilty to the conspiracy count. On the fifth day of the trial, after the jury had retired to the jury room, out of the sight and hearing of the jury Porter entered such plea, and Count XI, which charged Earley and Porter jointly with an offense, was dismissed as to Porter, and Count XII, which charged an offense only by Porter, was also dismissed.
Before recessing the trial, which had begun on May 1, 1972, on Friday, May 5, 1972, the court advised the jury that Porter had pleaded guilty to the conspiracy count. He then gave the usual precautionary instruction to be observed by the jury during the recess of the trial, and advised them that he had made prior commitments for Monday and that the trial would be recessed until Tuesday morning, May 9, 1973.
The trial, as to Earley, continued from May 9 to May 15, 1972.
It has long been the law in this circuit and in other circuits that the trial court may inform the jury that a codefendant has entered a plea of guilty, provided the jury is clearly instructed that such a plea cannot be considered as evidence of the guilt of the remaining defendant or defendants.
The instruction given by the court on May 9, 1972, and reiterated in his general charge, fully advised the jury that such plea could not be taken or considered in any way as evidence against Earley, and that they should determine his guilt or innocence on each count by which he was charged with an offense solely on the evidence adduced on the witness stand.
The reasons for advising the jury that a codefendant has pleaded guilty, and for the instruction given, are obvious.
Porter did not further appear during the several days the trial continued as to Earley. Were not the jury advised and instructed, they might well conclude that Porter had pleaded guilty, and give an erroneous effect to that fact in passing on the guilt or innocence of Earley. In fact, the procedure followed and the instruction given might well have redounded to Earley’s benefit, instead of his prejudice.
We hold that Earley was not prejudiced by the procedure followed with respect to Porter’s plea.
We turn now to Earley’s claim that evidence of other crimes committed by him was erroneously admitted, and conclude that such claim is not well founded.
In a number of instances, where a witness testified with respect to other crimes committed by Earley, the testimony was brought out by Earley’s counsel, Hill, on cross-examination of the Government’s witness, Virginia McCool. She would have been called as a witness by the Government against Earley, even though there had been a severance.
In other instances, testimony was part of the whole story, only part of which was brought out by Hill in his cross-examination.
One matter with respect to which counsel for Earley complains occurred in the absence of the jury and could not have done him any harm. Another was a repetition brought out by counsel for Porter of matters theretofore brought out by Hill, counsel for Earley, in his cross-examination of the witness. Moreover, the court instructed the jury to disregard any evidence adduced which tended to show that Earley had been guilty of other crimes than those charged against him in the indictment.
In Count IV, Earley was charged with making a destructive device, without first having filed a written application to make and" register such a device. In Count V, Earley was charged with the possession of the unregistered device he had made. The evidence established that Earley made and possessed the device on November 17, 1968, as charged in the indictment.
In 1968, Congress amended the National Firearms Act and provided that it should be cited as the “National Firearms Act Amendments of 1968.” Such amendments became effective on November 1, 1968. The Congressional intent of the National Firearms Act Amendments was to correct the constitutional deficiencies of the former Act, which the Supreme Court held to be unenforceable in Haynes v. United States, 390 U. S. 85, because it required registration almost exclusively by those in illegal possession of a weapon and made this information available for prosecution purposes. The 1968 amendments avoided the problem by extending the registration to all possessors of the weapons, legitimate or otherwise, and “by providing that registration information may not be used directly or indirectly to prosecute a natural person for an offense prior to or concurrent with his registration.”
Since the acts charged in Counts IV and V occurred after November 1, 1968, a prosecution for such offenses was legal.
Accordingly, the judgment and sentences of the court on the counts on which Earley was found guilty are hereby affirmed.
. United States v. Fairchild, 10 Cir., 435 F.2d 972, 973; United States v. Harris, 10 Cir., 441 F.2d 1333, 1335-1336; Johnson v. United States, 8 Cir., 291 F.2d 150, 153, cert. denied 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80; United States v. Hartenfeld, 7 Cir., 113 F.2d 359, 362, cert. denied 311 U.S. 647, 61 S.Ct. 30, 85 L.Ed. 413; United States v. Eagleston, 10 Cir., 417 F.2d 11, 14.
. Carpenter v. United States, 10 Cir., 463 F.2d 397, 399; United States v. Mallory, 10 Cir., 460 F.2d 243, 248; United States v. Jorgenson, 10 Cir., 451 F.2d 516, 523, cert. denied 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793; United States v. Harris, 10 Cir., 441 F.2d 1333, 1336; United States v. Rogers, 10 Cir., 419 F.2d 1315, 1317.
. Wood v. United States, 8 Cir., 279 F.2d 359, 363; United States v. Aronson, 2 Cir., 319 F.2d 48, 52; Fahning v. United States, 5 Cir., 299 F.2d 579, 580; United States v. Soares, 10 Cir., 456 F.2d 431, 433; Jiron v. United States, 10 Cir., 306 F.2d 946, 947; Hines v. United States, 10 Cir., 131 F.2d 971, 974.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_geniss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Ronald D. VETETO, Appellant, v. H.G. MILLER and other named unidentified employees of the Bureau of Prisons.
No. 85-5553.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) May 8, 1986.
Decided June 19, 1986.
Ronald D. Veteto, pro se.
James J. West, U.S. Atty., Harrisburg, Pa., James W. Walker, Asst. U.S. Atty., Scranton, Pa., for appellees.
Before ADAMS, HIGGINBOTHAM and MARIS, Circuit Judges.
OPINION OF THE COURT
MARIS, Circuit Judge.
The plaintiff, Ronald D. Veteto, an inmate of the federal penitentiary at Lewis-burg, Pennsylvania, filed a complaint pro se in the District Court for the Middle District of Pennsylvania against Warden Miller and other unnamed employees of the federal Bureau of Prisons alleging violations of his constitutional rights. The principal violation alleged was denial of access to the courts by depriving him of writing materials, stationery and stamps and of access to the prison law library. The complaint also alleged deprivation of meals, clean clothes, showers and recreation periods. Alleging that plaintiff had “repeatedly requested administrative remedies” from the defendants with no response or success, the complaint sought injunctive relief and also compensatory and punitive damages. Stating that it did not agree with the plaintiff’s assertion that he had exhausted his administrative remedy, the district court dismissed the complaint for his failure to do so. The present appeal followed.
Pursuant to authority conferred on him by the Attorney General, 28 CFR § 0.96(t), the Director of the Bureau of Prisons has promulgated regulations providing for a three-stage system for considering prisoners’ grievances and granting relief when justified. 44 FR 62250, 28 CFR § 542.10 et seq. In Waddell v. Alldredge, 480 F.2d 1078 (3d Cir.1973), this court held that it is incumbent upon a federal prisoner seeking mandatory relief from the actions of prison authorities alleged to violate his constitutional rights to exhaust this administrative remedy before seeking judicial relief. Because it concluded that the facts asserted in the complaint did not show an exhaustion of the administrative remedy, the district court dismissed the complaint in the present case under the authority of the Waddell case.
In Muhammad v. Carlson, 739 F.2d 122 (3d Cir.1984), we held that a federal prisoner suing only for money damages for the alleged violation by prison authorities of his constitutional rights is not bound by the exhaustion of remedy requirement since he can obtain no monetary relief from the Bureau of Prisons against individual defendants. The basic question with which we are here confronted is whether in a case such as the present one in which both in-junctive relief and damages are claimed, the rule of the Muhammad case should apply or whether the Waddell rule is applicable.
While this court has not heretofore expressly ruled on this question, at least two other circuits have held the exhaustion requirement applicable in such a case. Miller v. Stanmore, 636 F.2d 986, 990-991 (5th Cir.1981); Brice v. Day, 604 F.2d 664 (10th Cir.1979). Indeed, it was implicitly so ruled in our Waddell case since that case also involved a claim for damages as is indicated by footnote 1 to the opinion. 480 F.2d at 1078. Moreover, to hold that the exhaustion rule is not to be applied in a case seeking injunctive or mandatory relief if the complaint also claims damages would render the rule a virtual nullity. For all that a prisoner claiming injunctive or mandatory relief need do to avoid application of the exhaustion rule would be to add a claim for damages. We hold that the requirement for exhaustion of the administrative remedy provided by the regulations applies to a prisoner’s suit for injunctive or mandatory relief whether or not it carries an added claim for damages.
It remains to consider whether the district court erred in dismissing the complaint on nonexhaustion grounds based solely on the allegations of that pleading and without service, answer or preliminary hearing on the question. We think that the court did err in so doing and that in line with the settled policy to construe pro se complaints liberally, the case should be remanded to enable the plaintiff, if so minded, to amend his complaint so as to supply more specific facts on this subject and to enable the court to hold a preliminary hearing, if needed, to establish the background facts with respect to the plaintiff’s claim to have exhausted the remedy provided for him by the Bureau of Prison regulations. If it is found that the administrative remedy has not been exhausted, the complaint should be dismissed without prejudice to its reinstatement if, upon completion of the administrative procedure, the plaintiff has not received the relief to which he believes himself to be entitled. If, on the other hand, it is found that the plaintiff has exhausted his remedy in the Bureau of Prisons without obtaining the relief to which he believes himself to be entitled, the court should hear the case and accord the plaintiff such relief as the facts and the law warrant.
The judgment of the district court will be vacated and the cause remanded for further proceedings not inconsistent with this opinion.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
sc_decisiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
CAREY et al. v. PIPHUS et al.
No. 76-1149.
Argued December 6, 1977
Decided March 21, 1978
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Rehnquist, and Stevens, JJ., joined. Marshall, J., concurred in the result. Blackmun, J., took no part in the consideration or decision of the case.
Earl B. Hoffenberg argued the cause for petitioners. With him on the briefs was Michael J. Murray.
John Elson argued the cause for respondents. With him on the brief was David Goldberg.
Leon Fieldman filed a brief for the National School Boards Assn, as amicus curiae urging reversal.
Mr. Justice Powell
delivered the opinion of the Court.
In this case, brought under 42 U. S. C. § 1983, we consider the elements and prerequisites for recovery of damages by students who were suspended from public elementary and secondary schools without procedural due process. The Court of Appeals for the Seventh Circuit held that the students are entitled to recover substantial nonpunitive damages even if their suspensions were justified, and even if they do not prove that any other actual injury was caused by the denial of procedural due process. We disagree, and hold that in the absence of proof of actual injury, the students are entitled to recover only nominal damages.
I
Respondent Jarius Piphus was a freshman at Chicago Vocational High School during the 1973-1974 school year. On January 23, 1974, during school hours, the school principal saw Piphus and another student standing outdoors on school property passing back and forth what the principal described as an irregularly shaped cigarette. The principal approached the students unnoticed and smelled what he believed was the strong odor of burning marihuana. He also saw Piphus try to pass a packet of cigarette papers to the other student. When the students became aware of the principal’s presence, they threw the cigarette into a nearby hedge.
The principal took the students to the school’s disciplinary office and directed the assistant principal to impose the “usual” 20-day suspension for violation of the school rule against the use of drugs. The students protested that they had not been smoking marihuana, but to no avail. Piphus was allowed to remain at school, although not in class, for the remainder of the school day while the assistant principal tried, without success, to reach his mother.
A suspension notice was sent to Piphus’ mother, and a few days later two meetings were arranged among Piphus, his mother, his sister, school officials, and representatives from a legal aid clinic. The purpose of the meetings was not to determine whether Piphus had been smoking marihuana, but rather to explain the reasons for the suspension. Following an unfruitful exchange of views, Piphus and his mother, as guardian ad litem, filed suit against petitioners in Federal District Court under 42 U. S. C. § 1983 and its jurisdictional counterpart, 28 U. S. C. § 1343, charging that Piphus had been suspended without due process of law in violation of the Fourteenth Amendment. The complaint sought declaratory and injunctive relief, together with actual and punitive damages in the amount of $3,000. Piphus was readmitted to school under a temporary restraining order after eight days of his suspension.
Respondent Silas Brisco was in the sixth grade at Clara Barton Elementary School in Chicago during the 1973-1974 school year. On September 11, 1973, Brisco came to school wearing one small earring. The previous school year the school principal had issued a rule against the wearing of earrings by male students because he believed that this practice denoted membership in certain street gangs and increased the likelihood that gang members would terrorize other students. Brisco was reminded of this rule, but he refused to remove the earring, asserting that it was a symbol of black pride, not of gang membership.
The assistant principal talked to Brisco’s mother, advising her that her son would be suspended for 20 days if he did not remove the earring. Brisco’s mother supported her son’s position, and a 20-day suspension was imposed. Brisco and his mother, as guardian ad litem, filed suit in Federal District Court under 42 U. S. C. § 1983 and 28 U. S. C. § 1343, charging that Brisco had been suspended without due process of law in violation of the Fourteenth Amendment. The complaint sought declaratory and injunctive relief, together with actual and punitive damages in the amount of $5,000. Brisco was readmitted to school during the pendency of proceedings for a preliminary injunction after 17 days of his suspension.
Piphus’ and Brisco’s cases were consolidated for trial and submitted on stipulated records. The District Court held that both students had been suspended without procedural due process. It also held that petitioners were not entitled to qualified immunity from damages under the second branch of Wood v. Strickland, 420 U. S. 308 (1975), because they “should have known that a lengthy suspension without any adjudicative hearing of any type” would violate procedural due process. App. to Pet. for Cert. A14. Despite these holdings, the District Court declined to award damages because:
“Plaintiffs put no evidence in the record to quantify their damages, and the record is completely devoid of any evidence which could even form the basis of a speculative inference measuring the extent of their injuries. Plaintiffs’ claims for damages therefore fail for complete lack of proof.” Ibid.
The court also stated that the students were entitled to declaratory relief and to deletion of the suspensions from their school records, but for reasons that are not apparent the court failed to enter an order to that effect. Instead, it simply dismissed the complaints. No finding was made as to whether respondents would have been suspended if they had received procedural due process.
On respondents’ appeal, the Court of Appeals reversed and remanded. 545 F. 2d 30 (1976). It first held that the District Court erred in not granting declaratory and injunctive relief. It also held that the District Court should have considered evidence submitted by respondents after judgment that tended to prove the pecuniary value of each day of school that they missed while suspended. The court said, however, that respondents would not be entitled to recover damages representing the value of missed school time if petitioners showed on remand “that there was just cause for the suspension [s] and that therefore [respondents] would have been suspended even if a proper hearing had been held.” Id., at 32.
Finally, the Court of Appeals held that even if the District Court found on remand that respondents’ suspensions were justified, they would be entitled to recover substantial “non-punitive” damages simply because they had been denied procedural due process. Id., at 31. Relying on its earlier decision in Hostrop v. Board of Junior College Dist. No. 515, 523 F. 2d 569 (CA7 1975), cert. denied, 425 U. S. 963 (1976), the court stated that such damages should be awarded “even if, as in the case at bar, there is no proof of individualized injury to the plaintiff, such as mental distress....” 545 F: 2d, at 31. We granted certiorari to consider whether, in an action under § 1983 for the deprivation of procedural due process, a plaintiff must prove that he actually was injured by the deprivation before he may recover substantial “non-punitive” damages. 430 U. S. 964 (1977).
II
Title 42 U. S. C. § 1983, Rev. Stat. § 1979, derived from § 1 of the Civil Rights Act of 1871, 17 Stat. 13, provides:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
The legislative history of § 1983, elsewhere detailed, e. g., Monroe v. Pape, 365 U. S. 167, 172-183 (1961); id., at 225-234 (Frankfurter, J., dissenting in part); Mitchum v. Foster, 407 U. S. 225, 238-242 (1972), demonstrates that it was intended to “[create] a species of tort liability” in favor of persons who are deprived of “rights, privileges, or immunities secured” to them by the Constitution. Imbler v. Pachtman, 424 U. S. 409, 417 (1976).
Petitioners contend that the elements and prerequisites for recovery of damages under this “species of tort liability” should parallel those for recovery of damages under the common law of torts. In particular, they urge that the purpose of an award of damages under § 1983 should be to compensate persons for injuries that are caused by the deprivation of constitutional rights; and, further, that plaintiffs should be required to prove not only that their rights were violated, but also that injury was caused by the violation, in order to recover substantial damages. Unless respondents prove that they actually were injured by the deprivation of procedural due process, petitioners argue, they are entitled at most to nominal damages.
Respondents seem to make two different arguments in support of the holding below. First, they contend that substantial damages should be awarded under § 1983 for the deprivation of a constitutional right whether or not any injury was caused by the deprivation. This, they say, is appropriate both because constitutional rights are valuable in and of themselves, and because of the need to deter violations of constitutional rights. Respondents believe that this view reflects accurately that of the Congress that enacted § 1983. Second, respondents argue that even if the purpose of a § 1983 damages award is, as petitioners contend, primarily to compensate persons for injuries that are caused by the deprivation of constitutional rights, every deprivation of procedural due process may be presumed to cause some injury. This presumption, they say, should relieve them from the necessity of proving that injury actually was caused.
A
Insofar as petitioners contend that the basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights, they have the better of the argument. Rights, constitutional and otherwise, do not exist in a vacuum. Their purpose is to protect persons from injuries to particular interests, and their contours are shaped by the interests they protect.
Our legal system’s concept of damages reflects this view of legal rights. “The cardinal principle of damages in Anglo-American law is that of compensation for the injury caused to plaintiff by defendant’s breach of duty.” 2 F. Harper & F. James, Law of Torts §25.1, p. 1299 (1956) (emphasis in original). The Court implicitly has recognized the applicability of this principle to actions under § 1983 by stating that damages are available under that section for actions “found... to have been violative of... constitutional rights and to have caused compensable-injury....” Wood v. Strickland, 420 U. S., at 319 (emphasis supplied); see C-odd v. Velger, 429 U. S. 624, 630-631 (1977) (Brennan, J., dissenting); Adickes v. S. H. Kress & Co., 398 U. S. 144, 232 (1970) (Brennan, J., concurring and dissenting); see also Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 397 (1971) (action for damages directly under Fourth Amendment); id., at 408-409 (Harlan, J., concurring in judgment). The lower federal courts appear generally to agree that damages awards under § 1983 should be determined by the compensation principle.
The Members of the Congress that enacted § 1983 did not address directly the question of damages, but the principle that damages are designed to compensate persons for injuries caused by the deprivation of rights hardly could have been foreign to the many lawyers in Congress in 1871. Two other sections of the Civil Rights Act of 1871 appear to incorporate this principle, and no reason suggests itself for reading § 1983 differently. To the extent that Congress intended that awards under § 1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent more formidable than that inherent in the award of compensatory damages. See Imbler v. Pachtman, 424 U. S., at 442 (White, J., concurring in judgment).
B
It is less difficult to conclude that damages awards under § 1983 should be governed by the principle of compensation than it is to apply this principle to concrete cases. But over the centuries the common law of torts has developed a set of rules to implement the principle that a person should be compensated fairly for injuries caused by the violation of his legal rights. These rules, defining the elements of damages and the prerequisites for their recovery, provide the appropriate starting point for the inquiry under § 1983 as well.
It is not clear, however, that common-law tort rules of damages will provide a complete solution to the damages issue in every § 1983 case. In some cases, the interests protected by a particular branch of the common law of torts may parallel closely the interests protected by a particular constitutional right. In such cases, it may be appropriate to apply the tort rules of damages directly to the § 1983 action. See Adickes v. S. H. Kress & Co., 398 U. S., at 231-232 (Brennan, J., concurring and dissenting). In other cases, the interests protected by a particular constitutional right may not also be protected by an analogous branch of the common law of torts. See Monroe v. Pape, 365 U. S., at 196, and n. 5 (Harlan, J., concurring) id., at 250-251 (Frankfurter, J., dissenting in part); Adickes v. S. H. Kress & Co., supra, at 232 (Brennan, J., concurring and dissenting); Bivens v. Six Unknown Fed. Narcotic Agents, 403 U. S., at 394; id., at 408-409 (Harlan, J., concurring in judgment). In those cases, the task will be the more difficult one of adapting common-law rules of damages to provide fair compensation for injuries caused by the deprivation of a constitutional right.
Although this task of adaptation will be one of some delicacy — as this case demonstrates — it must be undertaken. The purpose of § 1983 would be defeated if injuries caused by the deprivation of constitutional rights went uncompensated simply because the common law does not recognize an analogous cause of action. Cf. Jones v. Hildebrant, 432 U. S. 183, 190-191 (1977) (White, J., dissenting); Sullivan v. Little Hunting Park, 396 U. S. 229, 240 (1969). In order to further the purpose of § 1983, the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question — just as the common-law rules of damages themselves were defined by the interests protected in the various branches of tort law. We agree with Mr. Justice Harlan that “the experience of judges in dealing with private [tort] claims supports the conclusion that courts of law are capable of making the types of judgment concerning causation and magnitude of injury necessary to accord meaningful compensation for invasion of [constitutional] rights.” Bivens v. Six Unknown Fed. Narcotics Agents, supra, at 409 (Harlan, J., concurring in judgment). With these principles in mind, we now turn to the problem of compensation in the case at hand.
C
The Due Process Clause of the Fourteenth Amendment provides:
“[N]or shall any State deprive any person of life, liberty, or property, without due process of law....”
This Clause “raises no impenetrable barrier to the taking of a person’s possessions,” or liberty, or life. Fuentes v. Shevin, 407 U. S. 67, 81 (1972). Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property. Thus, in deciding what process constitutionally is due in various contexts, the Court repeatedly has emphasized that “procedural due process rules are shaped by the risk of error inherent in the truth-finding process....” Mathews v. Eldridge, 424 U. S. 319, 344 (1976). Such rules “minimize substantively unfair or mistaken deprivations of” life, liberty, or property by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests. Fuentes v. Shevin, supra, at 81.
In this case, the Court of Appeals held that if petitioners can prove on remand that “[respondents] would have been suspended even if a proper hearing had been held,” 545 F. 2d, at 32, then respondents will not be entitled to recover damages to compensate them for injuries caused by the suspensions. The court thought that in such a case, the failure to accord procedural due process could not properly be viewed as the cause of the suspensions. Ibid.; cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274, 285-287 (1977); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 270-271, n. 21 (1977). The court suggested that in such circumstances, an award of damages for injuries caused by the suspensions would constitute a windfall, rather than compensation, to respondents. 545 F. 2d, at 32, citing Hostrop v. Board of Junior College Dist. No. 515, 523 F. 2d, at 579; cf. Mt. Healthy City Board of Ed. v. Doyle, supra, at 285-286. We do not understand the parties to disagree with this conclusion. Nor do we.
The parties do disagree as to the further holding of the Court of Appeals that respondents are entitled to recover substantial — although unspecified — damages to compensate them for “the injury which is 'inherent in the nature of the wrong'” 545 F. 2d, at 31, even if their suspensions were justified and even if they fail to prove that the denial of procedural due process actually caused them some real, if intangible, injury. Respondents, elaborating on this theme, submit that the holding is correct because injury fairly may be “presumed” to flow from every denial of procedural due process. Their argument is that in addition to protecting against unjustified deprivations, the Due Process Clause also guarantees the “feeling of just treatment” by the government. Anti-Fascist Committee v. McGrath, 341 U. S. 123, 162 (1951) (Frankfurter, J., concurring). They contend that the deprivation of protected interests without procedural due process, even where the premise for the deprivation is not erroneous, inevitably arouses strong feelings of mental and emotional distress in the individual who is denied this “feeling of just treatment.” They analogize their case to that of defamation per se, in which “the plaintiff is relieved from the necessity of producing any proof whatsoever that he has been injured” in order to recover substantial compensatory damages. C. McCormick, Law of Damages § 116, p. 423 (1935).
Petitioners do not deny that a purpose of procedural due process is to convey to the individual a feeling that the government has dealt with him fairly, as well as to minimize the risk of mistaken deprivations of protected interests. They go so far as to concede that, in a proper case, persons in respondents' position might well recover damages for mental and emotional distress caused by the denial of procedural due process.. Petitioners' argument ■ is the more limited one that such injury cannot be presumed to occur, and that plaintiffs at least should be put to their proof on the issue, as plaintiffs are in most tort actions.
We agree with petitioners in this respect. As we have observed in another context, the doctrine of presumed damages in the common law of defamation per se “is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss.” Gertz v. Robert Welch, Inc., 418 U. S. 323, 349 (1974). The doctrine has been defended on the grounds that those forms of defamation that are actionable per se are virtually certain to cause serious injury to reputation, and that this kind of injury is extremely difficult to prove. See id., at 373, 376 (White, J., dissenting). Moreover, statements that are defamatory per se by their very nature are likely to cause mental and emotional distress, as well as injury to reputation, so there arguably is little reason to require proof of this kind of injury either. But these considerations do not support respondents’ contention that damages should be presumed to flow from every deprivation of procedural due process.
First, it is not reasonable to assume that every departure from procedural due process, no matter what the circumstances or how minor, inherently is as likely to cause distress as the publication of defamation per se is to cause injury to reputation and distress. Where the deprivation of a protected interest is substantively justified but procedures are deficient in some respect, there may well be those who suffer no distress over the procedural irregularities. Indeed, in contrast to the immediately distressing effect of defamation per se, a person may not even know that procedures were deficient until he enlists the aid of counsel to challenge a perceived substantive deprivation.
Moreover, where a deprivation is justified but procedures are deficient, whatever distress a person feels may be attributable to the justified deprivation rather than to deficiencies in procedure. But as the Court of Appeals held, the injury caused by a justified deprivation, including distress, is not properly compensable under § 1983. This ambiguity in causation, which is absent in the case of defamation per se, provides additional need for requiring the plaintiff to convince the trier of fact that he actually suffered distress because of the denial of procedural due process itelf.
Finally, we foresee no particular difficulty in producing evidence that mental and emotional distress actually was caused by the denial of procedural due process itself. Distress is a personal injury familiar to the law, customarily proved by showing the nature and circumstances of the wrong and its effect on the plaintiff. In sum, then, although mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983, we hold that neither the likelihood of such injury nor the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused.
D
The Court of Appeals believed, and respondents urge, that cases dealing with awards of damages for racial discrimination, the denial of voting rights, and the denial of Fourth Amendment rights support a presumption of damages where procedural due process is denied. Many of the cases relied upon do not help respondents because they held or implied that some actual, if intangible, injury must be proved before compensatory damages may be recovered. Others simply did not address the issue. More importantly, the elements and prerequisites for recovery of damages appropriate to compensate injuries caused by the deprivation of one constitutional right are not necessarily appropriate to compensate injuries caused by the deprivation of another. As we have said, supra, at 258-259, these issues must be considered with reference to the nature of the interests protected by the particular constitutional right in question. For this reason, and without intimating an opinion as to their merits, we do- not deem the cases relied upon to be controlling.
Ill
Even if respondents’ suspensions were justified, and even if they did not suffer any other actual injury, the fact remains that they were deprived of their right to procedural due process. “It is enough to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is at stake, whatever the ultimate outcome of a hearing....” Fuentes v. Shevin, 407 U. S., at 87; see Codd v. Velger, 429 U. S., at 632 (Stevens, J., dissenting); Coe v. Armour Fertilizer Works, 237 U. S. 413, 424 (1915).
Common-law courts traditionally have vindicated deprivations of certain “absolute” rights that are not shown to have caused actual injury through the award of a nominal sum of money. By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights.
Because the right to procedural due process is “absolute” in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed, see Boddie v. Connecticut, 401 U. S. 371, 375 (1971) ; Anti-Fascist Committee v. McGrath, 341 U. S., at 171-172 (Frankfurter, J., concurring), we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury. We therefore hold that if, upon remand, the District Court determines that respondents’ suspensions were justified, respondents nevertheless will be entitled to recover nominal damages not to exceed one dollar from petitioners.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Mr. Justice Marshall concurs in the result.
Mr. Justice Blackmun took no part in the consideration or decision of this case.
At the time of the suspensions, the Board of Education’s general rule governing suspensions provided:
“For gross disobedience or misconduct a pupil may be suspended temporarily by the principal for a period not exceeding one school month for each offense. Each such suspension shall be reported immediately to the District Superintendent and also to the parent or guardian of the pupil, with a full statement of the reasons for such suspension. The District Superintendent shall have authority to review the action of the principal and to return the suspended pupil.” Rule 6-9 of the Rules of the Board of Education of the city of Chicago (1973), quoted in District Court opinion, App. to Pet. for Cert. A9.
The District Court held that the terms “gross disobedience” and “misconduct” in this general rule are not unconstitutionally vague because they were narrowed by the school principals’ issuance of the particular rules allegedly violated here. Id., at A9-A10. Rule 6-9 was amended following this Court’s decision in Goss v. Lopez, 419 U. S. 565 (1975). See App. to Pet. for Cert. A10-A11, n. 3.
The complaint named as defendants, individually and in their official capacities, the principal of the school; the General Superintendent of Schools of the city of Chicago; and the members of the Board of Education of the city of Chicago.
Also- named as plaintiff in Brisco's suit was People United to Save Humanity (PUSH), a religious corporation organized under the laws of Illinois, the membership of which includes parents of children in the Chicago public schools. The District Court held that PUSH had standing to maintain this suit, a ruling not challenged on appeal.
In addition to the procedural due process claim, Brisco's, complaint alleged that enforcement of the “no-earring” rule violated his right to freedom of expression under the First and Fourteenth Amendments. Neither court below passed on this claim, nor do we.
The complaint named as defendants, individually and in their official capacities, the principal of the school; the General Superintendent of Schools of the city of Chicago; the members of the Board of Education of the city of Chicago; and the Illinois Superintendent of Public Instruction. The District Court granted the latter party’s motion to dismiss.
The District Court read Goss v. Lopez, supra, as requiring “more formal procedures” for suspensions of more than 10 days than for suspensions of less than 10 days, and it set forth a detailed list of procedural requirements. See App. to Pet. for Cert. A11-A12. Petitioners have not challenged either the holding that respondents were denied procedural due process, or the listing of rights that must be granted.
Although respondents’ suspensions occurred before Goss v. Lopez was decided, the District Court thought that petitioners' should have been placed on notice that the suspensions violated procedural due process by Linwood v. Board of Ed. of City of Peoria, 463 F. 2d 763 (CA7), cert. denied, 409 U. S. 1027 (1972). Petitioners have not challenged this holding.
The District Court expressly held that petitioners did not lose their immunity under the first branch of Wood v. Strickland, i. e., that they did not act “with the malicious intention to cause a deprivation of constitutional rights or other injury to the student,” 420 U. S., at 322:
“Here the record is barren of evidence suggesting that any of the defendants acted maliciously in enforcing disciplinary policies against the plaintiffs. Undoubtedly defendants believed that they were protecting the integrity of the educational process.” App. to Pet. for Cert. A13.
See also D. Dobbs, Law of Remedies § 3.1, pp. 135-138 (1973); C. McCormick, Law of Damages § 1 (1935); W. Prosser, Law of Torts §2, p. 7 (4th ed. 1971).
See, e. g., United States ex rel. Tyrrell v. Speaker, 535 F. 2d 823, 829-830, and n. 13 (CA3 1976); United States ex rel. Larkins v. Oswald, 510 F. 2d 583, 590 (CA2 1975); Magnett v. Pelletier, 488 F. 2d 33, 35 (CA1 1973); Stolberg v. Members of Bd. of Trustees for State Colleges of Conn., 474 F. 2d 485, 488-489 (CA2 1973); Donovan v. Reinbold, 433 F. 2d 738, 743 (CA9 1970).
See 1 F. Hilliard, Law of Torts, ch. 3, § 5 (3d ed. 1866); T. Sedgwick, Measure of Damages 25-35 (5th ed. 1869). Thus, one proponent of § 1 of the Civil Rights Act of 1871 asked during debate: “[W]hat legislation could be more appropriate than to give a person injured by another under color of... State laws a remedy by civil action?” Cong. Globe, 42d Cong., 1st Sess., 482 (1871) (remarks of Rep. Wilson). And one opponent of § 1 complained: “The deprivation may be of the slightest conceivable character, the damages in the estimation of any sensible man may not be five dollars or even five cents; they may be what lawyers call merely nominal damages; and yet by this section jurisdiction of that civil action is given to the Federal courts instead of its being prosecuted as now in the courts of the States.” Id,., at App. 216 (remarks of Sen. Thurman). See also Nahmod, Section 1983 and the “Background” of Tort Liability, 50 Ind. L. J. 5,10 (1974).
Section 2 of the Act, 17 Stat. 13-14, now codified at 42 U. S. C. § 1985 (3), made it unlawful to conspire, inter alia, “for the purpose of depriving any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws....” It further provided (emphasis supplied):
“[I]f any one or more persons engaged in any such conspiracy shall do', or cause to be done, any act in furtherance of the object of such conspiracy, whereby any person shall be injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the person so injured or deprived of such rights and privileges may have and maintain an action for the recovery of damages occasioned by such injury or deprivation of rights and privileges against any one or more of the persons engaged in such conspiracy....”
Section 6 of the Act, 17 Stat. 15, now codified at 42 U. S. C. § 1986, provided (emphasis supplied):
“[A]ny person or persons, having knowledge that any of the wrongs conspired to be done and mentioned in the second section of this act are about to be committed, and having power to prevent or aid in preventing the same, shall neglect or refuse to do so, and such wrongful act shall be committed, such person or persons shall be liable to the person injured, or his legal representatives, for all damages caused by any such wrongful act....”
This is not to say that exemplary or punitive damages might not be awarded in a proper case under § 1983 with the specific purpose of deterring or punishing violations of constitutional rights. See, e. g., Silver v. Cormier, 529 F. 2d 161, 163-164 (CA10 1976); Stengel v. Belcher, 522 F. 2d 438, 444 n. 4 (CA6 1975), cert. dismissed, 429 U. S. 118 (1976); Spence v. Staras, 507 F. 2d 554, 558 (CA7 1974); Caperci v. Huntoon, 397 F. 2d 799, 801 (CA1), cert. denied, 393 U. S. 940 (1968); Mansell v. Saunders, 372 F. 2d 573, 576 (CA5 1967); Basista v. Weir, 340 F. 2d 74, 84-88 (CA3 1965). Although we imply no approval or disapproval of any of these cases, we note that there is no basis for such an award in this case
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_procedur
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Ira TUCKER, Appellant, v. UNITED STATES of America, Appellee.
No. 17993.
United States Court of Appeals Fifth Circuit.
May 27, 1960.
Charles V. Silliman, Gladstone L. Kohloss, Orlando, Fla., for appellant.
Don M. Stichter, Special Atty., Robert F. Nunez, Asst. U. S. Atty., Tampa, Fla., E. Coleman Madsen, U. S. Atty., Miami, Fla., for appellee.
Before TUTTLE, CAMERON and JONES, Circuit Judges.
PER CURIAM.
The appellant was convicted of possession of moonshine liquor. He appeals, saying the evidence is insufficient to sustain a conviction. Across the street from appellant’s residence is a “jook”, the Moonlight Club, operated by appellant’s wife with some help from him. Behind the Club was an open tract supposedly owned by a person identified only as “Pete the Tailor”. The appellant and two others were each permitted to keep hogs in separate pens on these premises and each had a nearby cooking machine for preparing food for his hogs. A deputy sheriff found nine gallon jugs of unstamped whiskey near the appellant’s cooking machine. The appellant was charged with its possession. The deputy testified that he had taken moonshine “off a lot of customers at the jook.” No more than this was adduced to identify the appellant with the liquor. It is not enough. No control or dominion of the contraband by the appellant is shown. Construing the evidence most favorably to the verdict, we conclude it does not sustain a verdict of guilt. The court should have directed an acquittal of the appellant. The judgment and sentence of the district court is reversed and a judgment of acquittal is here rendered for the appellant.
Reversed and rendered.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appel1_1_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
MANUFACTURERS SYSTEMS, INC., Plaintiff-Appellant, v. ADM INDUSTRIES, INC., Indiana Tool & Mfg. Co., Inc., Drexell (Rex) L. Simpson and AMS of Indiana, Inc., Defendants-Appellees.
No. 78-1406.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 6, 1978.
Decided Jan. 19, 1979.
Kenneth D. Siegfried, Minneapolis, Minn., for plaintiff-appellant.
Granger Cook, Jr., Chicago, 111., for defendants-appellees.
Before FAIRCHILD, Chief Judge, TONE and BAUER, Circuit Judges.
The decision in this case was originally issued as an unpublished order on January 19, 1979. In response to a motion to publish, the court has decided to publish the introduction and Part I of the decision but not Part II.
PER CURIAM.
The District Court found that the patent claims asserted in this action by the appellant Manufacturers Systems’ patents, Claim 8 of 3,636,903 (the machine patent), Claim 22 of 28,088 (the method patent), and Claim 4 of 3,757,830 (the product patent) were invalid for obviousness under 35 U.S.C. § 103, and therefore entered judgment for the defendants in Manufacturers Systems’ infringement suit. [198 U.S.P.Q. (BNA) 223 (1978).] The facts are set forth in the findings of the District Court and will not be repeated here. For the reasons stated below, we affirm the judgment.
I.
The District Court found that the Vulcan, Wogerbauer, and Lockformer machines, methods, and products and the Tishken method and product were all prior art relevant to the patents in suit. Manufacturers Systems asserts in various ways throughout the argument that none of this prior art is relevant to any of those patents, because it relates to products different from the ducts which are the subject of those patents. The introductory paragraph of each of the patents refers to a specific kind of duct: “heat duct” (machine patent), “air duct” (method patent), and “heating, cooling, and ventilating air conduit” (product patent). The Vulcan machine and method produce porch enclosure frames. The Wogerbauer machine and method produce “fold flange tubing,” which is used to make doors, windows, and frames. The Lockformer machine and method produce “locks” used to connect sections of heating duet. The Tishken method produces tubing used in automobile air conditioner condensers. We agree with the District Court’s conclusion that this prior art is relevant to the patents in issue here.
The problems associated with producing a rectangular duct from two continuous sheets of metal that the teaching of the patents in suit was said to overcome were not unique to rectangular duct used for heating and ventilating. Cf., e. g., Exhibits, Book 1, 34. Whatever the intended end-use, the problems would be similar, if not identical; therefore, the relevant art would include machines and methods for forming and bending metals. Cf. Graham v. John Deere Co., 383 U.S. 1, 35, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966) (container lids for liquid containers having pouring spouts relevant to similar lids for containers with pump sprayers). As the District Court found, “the Patent Office . . . cited against the machine and method patents in suit, at least four patents disclosing machines and methods for making products other than heat ducts.” App. at 59 (emphasis in original). Indeed, the applicants “called to the attention of the Patent Office patents disclosing machines for making products other than heat ducts and never characterized them as ‘nonanalogous.’ ” Id. at 60. Finally, as to the product patent, we note that the applicants attempted to amend the claims by “restrictpng] the invention to the heating, cooling and ventilating fields [because] the broader form of the invention as presently covered by claim 14 [product patent claim 1] would cover, in effect, any conduit capable of conveying air, irrespective of its size or configuration.” Exhibits, Book 1 at 103. The Patent Office entered the proposed amendment as “to matters of form not affecting the scope of the invention.” Id. at 104.
We do not think that any of these facts determine the scope of the pertinent art or estop, Manufacturers Systems from contending that the relevant art is limited to machines and methods for producing heating or ventilating duct or that the relevant art as to the product patent is heating and ventilating duct. Nevertheless, that neither the Patent Office nor the applicants thought that the relevant art was limited to these areas at the time the patents were issued supports our conclusion that for the purposes of 35 U.S.C. § 103 the relevant art includes machines and methods for producing metal duct, whatever the intended use of the product. See Graham v. John Deere Co., supra, 383 U.S. at 35-36 & n. 18, 86 S.Ct. 684; Mandel Brothers v. Wallace, 335 U.S. 291, 294-96, 69 S.Ct. 73, 93 L.Ed. 12 (1948); Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 88-89, 62 S.Ct. 37, 86 L.Ed. 58 (1941).
Manufacturers Systems vigorously asserts that the District Court erred in not requiring the defendants to meet a standard of proof higher than clear and convincing in order to establish that the Vulcan machine, method, and product were prior to the alleged inventions of the patents. This argument seems to be based on the assumptions that before the Vulcan machine can be considered as prior art for purposes of § 103, it must first be shown to be within § 102(a) or (g), and that under those provisions proof must be such as to leave no reasonable doubt. Plaintiff cites Pleatmaster, Inc. v. J. L. Golding Mfg. Co., 240 F.2d 894, 898 (7th Cir. 1957). The passage in Pleatmaster relied upon dealt with establishing a date of invention earlier than the date on which the inventor applied for a patent. The Vulcan machine, method, and product were not claimed to be inventions but simply prior uses, so § 102(g) has no relevance. Assuming § 102(a) were involved here, see National Rolled Thread Die Co. v. E. W. Ferry Screw Products, Inc., 541 F.2d 593, 596 (6th Cir. 1976), there would be no reason to differentiate between the standard of proof under that subsection and the standard under § 102(b), id., which is clear and convincing evidence. Red Cross Manufacturing Corp. v. Toro Sales Co., 525 F.2d 1135, 1139 (7th Cir. 1975). That is also the standard under § 103. See, e. g., Chicago Rawhide Manufacturing Co. v. Crane Packing Co., 523 F.2d 452, 457-58 (7th Cir. 1975), cert. denied, 423 U.S. 1091, 96 S.Ct. 887, 47 L.Ed.2d 103 (1976). The evidence presented to the District Court, though primarily oral, was sufficient to meet this burden of proof, and therefore the court’s findings that the Vulcan machine, method, and product were prior to the alleged invention in suit are not clearly erroneous.
[Part II not published.]
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
sc_lcdisposition
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
REPUBLIC OF IRAQ v. BEATY et al.
No. 07-1090.
Argued April 20, 2009
Decided June 8, 2009
Jonathan S. Franklin argued the cause for petitioners in both cases. With him on the briefs were Robert A. Burgoyne, Tillman J. Breckenridge, and Timothy B. Mills.
Douglas Hallward-Driemeier argued the cause for the United States as amicus curiae urging reversal in both cases. With him on the brief were then-Acting Solicitor General Kneedler, Acting Assistant Attorney General Hertz, Douglas N. Letter, and Lewis S. Yelin.
Thomas C. Goldstein argued the cause for respondents in both cases. Andrew C. Hall, James Cooper-Hill, and Nelson M. Jones III filed a brief for Jordan Beaty et al., respondents in No. 07-1090. Michael Rips, Anthony A. Onorato, Justin B. Perri, and Stephen A Fennell filed a brief for Robert Simon et al., respondents in No. 08-539.
Together with No. 08-539, Republic of Iraq et al. v. Simon et al., also on certiorari to the same court.
Briefs of amici curiae urging affirmance in both cases were filed for Eleven Members of Congress et al. by Douglas W. Dunham, Ellen Quackenbos, Daniel J. Popeo, and Richard A Samp; and for James S. Vine et al. in support of respondents in No. 08-539 by Daniel Wolf.
Briefs of amici curiae urging affirmance in No. 08-539 were filed for the Center for Justice & Accountability by William J. Aceves and Kim J. Landsman; for the Human Rights Committee of the American Branch of the International Law Association by Jordan J. Paust; for St. Mary’s University School of Law, Center for Terrorism Law et al. by Jeffrey F. Addicott; for Tortured American Prisoners of War by John Norton Moore; for Dr. Louis Fisher et al. by Charles Swift and Ruth J. Vernet; and for Dr. Stephen Neale by Leslie E. Chebli.
Steven R. Perles and Thomas Fortune Fay filed a brief of amici curiae in No. 08-539 for Plaintiffs in Peterson v. Islamic Republic of Iran, CA 01-2094 (RCL) etc., in the United States District Court for the District of Columbia.
Justice Scalia
delivered the opinion of the Court.
We consider in these cases whether the Republic of Iraq remains subject to suit in American courts pursuant to the terrorism exception to foreign sovereign immunity, now repealed, that had been codified at 28 U. S. C. § 1605(a)(7).
I
A
Under the venerable principle of foreign sovereign immunity, foreign states are ordinarily “immune from the jurisdiction of the courts of the United States and of the States,” § 1604. See generally Schooner Exchange v. McFaddon, 7 Cranch 116 (1812). But the statute embodying that principle — the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U. S. C. § 1602 et seq. — recognizes a number of exceptions; if any of these is applicable, the state is subject to suit, and federal district courts have jurisdiction to adjudicate the claim. § 1330(a); Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 489 (1983).
In 1996, Congress added to the list of statutory exceptions one for state sponsors of terrorism, which was codified at 28 U. S. C. § 1605(a)(7). Subject to limitations not relevant here, that exception stripped immunity in any suit for money damages
“against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources ... for such an act... except that the court shall decline to hear a claim under this paragraph—
“(A) if the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 U. S. C. App. 2405(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U. S. C. 2371) at the time the act occurred ....”
In brief, § 1605(a)(7) stripped immunity from a foreign state for claims arising from particular acts, if those acts were taken at a time when the state was designated as a sponsor of terrorism.
B
In September 1990, Acting Secretary of State Lawrence Eagleburger formally designated Iraq, pursuant to § 6(j) of the Export Administration Act of 1979, as redesignated and amended, 99 Stat. 135, 50 U. S. C. App. § 2405(j), as “a country which has repeatedly provided support for acts of international terrorism,” 55 Fed. Reg. 37793. Over a decade later, in March 2003, the United States and a coalition of allies initiated military action against that country. In a matter of weeks, the regime of Iraqi dictator Saddam Hussein collapsed and coalition forces occupied Baghdad. American attention soon shifted from combat operations to the longer term project of rebuilding Iraq, with the ultimate goal of creating a stable ally in the region.
Toward that end, Congress enacted in April 2003 the Emergency Wartime Supplemental Appropriations Act (EWSAA), 117 Stat. 559. Section 1503 of that Act authorized the President to “make inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism.” Id., at 579. President George W. Bush exercised that authority to its fullest extent in May 2003, declaring “inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961... and any other provision of law that applies to countries that have supported terrorism.” 68 Fed. Reg. 26459.
Shortly thereafter, the United States Court of Appeals for the District of Columbia Circuit had occasion to consider whether that Presidential action had the effect of rendering inapplicable to Iraq the terrorism exception to foreign sovereign immunity. The court concluded in a divided panel decision that the President’s EWSAA authority did not permit him to waive § 1605(a)(7), and thereby restore sovereign immunity to Iraq, for claims arising from acts it had taken while designated as a sponsor of terror. Acree v. Republic of Iraq, 370 F. 3d 41, 48 (2004). Because Iraq succeeded in having the claims against it dismissed on other grounds, id., at 59-60, it could not seek certiorari to challenge the D. C. Circuit’s interpretation of the EWSAA.
C
There is yet another legislative enactment, and yet another corresponding executive waiver, that bear on the question presented. The National Defense Authorization Act for Fiscal Year 2008 (NDAA), 122 Stat. 3, was passed in January 2008. That Act (1) repealed the FSIA’s terrorism exception, § 1083(b)(l)(A)(iii); (2) replaced it with a new, roughly similar exception, § 1083(a); (3) declared that nothing in § 1503 of the EWSAA had “ever authorized, directly or indirectly, the making inapplicable of any provision of chapter 97 of title 28, United States Code, or the removal of the jurisdiction of any court of the United States” (thus purporting to ratify the Court of Appeals’ Aeree decision), § 1083(c)(4), 122 Stat. 343; and (4) authorized the President to waive “any provision of this section with respect to Iraq” so long as he made certain findings and so notified Congress within 30 days, § 1083(d), id., at 343-344.
The last provision was added to the NDAA after the President vetoed an earlier version of the bill, which did not include the waiver authority. The President’s veto message said that the bill “would imperil billions of dollars of Iraqi assets at a crucial juncture in that nation’s reconstruction efforts.” Memorandum to the House of Representatives Returning Without Approval the “National Defense Authorization Act for Fiscal Year 2008,” 43 Weekly Comp, of Pres. Doc. 1641 (2007). Only when Congress added the waiver authority to the NDAA did the President agree to approve it; and on the same day he signed it into law he also officially waived “all provisions of section 1083 of the Act with respect to Iraq,” 73 Fed. Reg. 6571 (2008).
II
We consider today two cases that have been navigating their way through the lower courts against the backdrop of the above-described congressional, military, Presidential, and judicial actions. Respondents in the Simon case are American nationals (and relatives of those nationals) who allege that they were captured and cruelly mistreated by Iraqi officials during the 1991 Gulf War. The Beaty respondents are the children of two other Americans, Kenneth Beaty and William Barloon, who are alleged to have been similarly abused by the regime of Saddam Hussein in the aftermath of that war. Each set of respondents filed suit in early 2003 against Iraq in the United States District Court for the District of Columbia, alleging violations of local, federal, and international law.
Respondents invoked the terrorism exception to foreign sovereign immunity, and given Aeree’s holding that the President had not rendered that statutory provision inapplicable to Iraq, the District Court refused to dismiss either case on jurisdictional grounds. In Beaty, after the District Court denied Iraq’s motion to dismiss, 480 F. Supp. 2d 60, 70 (2007), Iraq invoked the collateral order doctrine to support an interlocutory appeal. See Mitchell v. Forsyth, 472 U. S. 511, 524-529 (1985). In Simon, the District Court determined that the claims were time barred and dismissed on that alternative basis, Vine v. Republic of Iraq, 459 F. Supp. 2d 10, 25 (2006), after which the Simon respondents appealed.
In the Beaty appeal, Iraq (supported by the United States as amicus) requested that the Court of Appeals for the District of Columbia Circuit reconsider Aeree's holding en banc. The court denied that request over the dissent of Judges Brown and Kavanaugh, and a panel then summarily affirmed in an unpublished order the District Court’s denial of Iraq’s motion to dismiss. No. 07-7057 (Nov. 21, 2007) (per curiam), App. to Pet. for Cert. in No. 07-1090, pp. 1a-2a.
While the Simon appeal was still pending, Congress enacted the NDAA, and the Court of Appeals requested supplemental briefing addressing the impact of that legislation on the court’s jurisdiction. Iraq contended, as an alternative argument to its position that Aeree was wrongly decided, that even if 28 U. S. C. § 1605(a)(7)’s application to Iraq survived the President’s EWSAA waiver, the provision was repealed by § 1083(b)(l)(A)(iii) of the NDAA, 122 Stat. 341; and that the new terrorism exception to sovereign immunity — which was created by the NDAA and codified at 28 U. S. C. § 1605A (2006 ed., Supp. Ill) — was waived by the President with respect to Iraq pursuant to his NDAA authority.
The Court of Appeals rejected that argument, holding instead, based on a close reading of the statutory text, that “the NDAA leaves intact our jurisdiction over cases ... that were pending against Iraq when the Congress enacted the NDAA.” 529 F. 3d 1187, 1194 (2008). The panel then reversed the District Court’s determination that the Simon respondents’ claims were untimely, id., at 1195-1196, and rebuffed Iraq’s request for dismissal under the political question doctrine, id., at 1196-1198.
Iraq sought this Court’s review of both cases, asking us to determine whether under current law it remains subject to suit in the federal courts. We granted certiorari, 555 U. S. 1092 (2009), and consolidated the cases.
III
A
Section 1503 of the EWSAA consists of a principal clause, followed by eight separate proviso clauses. The dispute in these cases concerns the second of the provisos. The principal clause and that proviso read:
“The President may suspend the application of any provision of the Iraq Sanctions Act of 1990: . . . Provided further, That the President may make inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism . . . .” 117 Stat. 579.
Iraq and the United States both read the quoted proviso’s residual clause as sweeping in the terrorism exception to foreign sovereign immunity. Certainly that reading is, as even the Aeree Court acknowledged, “straightforward.” 370 F. 3d, at 52.
Title 28 U. S. C. § 1605(a)(7)’s exception to sovereign immunity for state sponsors of terrorism stripped jurisdictional immunity from a country unless “the foreign state was not designated as a state sponsor of terrorism.” This is a “provision of law” (indisputably) that “applies to” (strips immunity from) “countries that have supported terrorism” (as designated pursuant to certain statutory provisions). Of course the word “any” (in the phrase “any other provision of law”) has an “expansive meaning,” United States v. Gonzales, 520 U. S. 1, 5 (1997), giving us no warrant to limit the class of provisions of law that the President may waive. Because the President exercised his authority with respect to “all” provisions of law encompassed by the second proviso, his actions made § 1605(a)(7) “inapplicable” to Iraq.
To a layperson, the notion of the President’s suspending the operation of a valid law might seem strange. But the practice is well established, at least in the sphere of foreign affairs. See United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 322-324 (1936) (canvassing precedents from as early as the “inception of the national government”). The granting of Presidential waiver authority is particularly apt with respect to congressional elimination of foreign sovereign immunity, since the granting or denial of that immunity was historically the case-by-case prerogative of the Executive Branch. See, e. g., Ex parte Peru, 318 U. S. 578, 586-590 (1943). It is entirely unremarkable that Congress, having taken upon itself in the FSIA to “free the Government” from the diplomatic pressures engendered by the case-by-case approach, Verlinden, 461 U. S., at 488, would nonetheless think it prudent to afford the President some flexibility in unique circumstances such as these.
B
The Court of Appeals in Aeree resisted the above construction, primarily on the ground that the relevant text is found in a proviso. We have said that, at least presumptively, the “grammatical and logical scope [of a proviso] is confined to the subject-matter of the principal clause.” United States v. Morrow, 266 U.S. 531, 534-535 (1925). Using that proposition as a guide, the Aeree panel strove mightily to construe the proviso as somehow restricting the principal clause of EWSAA §1503, which authorized the President to suspend “any provision of the Iraq Sanctions Act of 1990,” 117 Stat. 579.
In the Court of Appeals’ view, the second proviso related to that subsection of the Iraq Sanctions Act (referred to in the principal provision) which dictated that certain enumerated statutory provisions, including §62QA of the Foreign Assistance Act of 1961 and “all other provisions of law that impose sanctions against a country which has repeatedly provided support for acts of international terrorism,” shall be fully enforced against Iraq. § 586F(e), 104 Stat. 2051 (emphasis added). The panel understood the second EWSAA proviso as doing nothing more than clarifying that the authority granted by the principal clause (to suspend any part of the Iraq Sanctions Act) included the power to make inapplicable to Iraq the various independent provisions of law that § 586F(c) of the Iraq Sanctions Act instructed to be enforced against Iraq — which might otherwise continue to apply of their own force even without the Iraq Sanctions Act. However, the residual clause of §586F(c) encompasses only provisions that “impose sanctions”; and, in the Court of Appeals’ view, that excludes § 1605(a)(7), which is a rule going instead to the jurisdiction of the federal courts. Thus, the EWSAA proviso swept only as broadly as §586F(e), and therefore did not permit the President to waive the FSIA terrorism exception.
This is a highly sophisticated effort to construe the proviso as a limitation upon the principal clause. Ultimately, however, we think that effort neither necessary nor successful. It is true that the “general office of a proviso is to except something from the enacting clause, or to qualify and restrain its generality.” Morrow, supra, at 534. But its general (and perhaps appropriate) office is not, alas, its exclusive use. Use of a proviso “to state a general, independent rule,” Alaska v. United States, 545 U. S. 75, 106 (2005), may be lazy drafting, but is hardly a novelty. See, e. g., McDonald v. United States, 279 U. S. 12, 21 (1929). Morrow itself came with the caveat that a proviso is sometimes used “to introduce independent legislation.” 266 U. S., at 535. We think that was its office here. The principal clause granted the President a power; the second proviso purported to grant him an additional power. It was not, on any fair reading, an exception to, qualification of, or restraint on the principal power.
Contrasting the second EWSAA proviso to some of the other provisos illustrates the point. For example, the first proviso cautioned that “nothing in this section shall affect the applicability of the Iran-Iraq Arms Non-Proliferation Act of 1992,” 117 Stat. 579, and the third forbade the export of certain military equipment “under the authority of this section,” ibid. Both of these plainly sought to define and limit the authority granted by the principal clause. The fourth proviso, however, mandated that “section 307 of the Foreign Assistance Act of 1961 shall not apply with respect to programs of international organizations for Iraq,” ibid., and it is impossible to see how that self-executing suspension of a distinct statute in any way cabined or clarified the principal clause’s authorization to suspend the Iraq Sanctions Act.
There are other indications that the second proviso’s waiver authority was not limited to the statutory provisions embraced by § 586F(c) of the Iraq Sanctions Act. If that is all it was meant to accomplish, why would Congress not simply have tracked § 586F(c)’s residual clause? Instead of restricting the President’s authority to statutes that “impose sanctions” on sponsors of terror, the EWSAA extended it to any statute that “applies” to such states. That is undoubtedly a broader class.
Even if the best reading of the EWSAA proviso were that it encompassed only statutes that impose sanctions or prohibit assistance to state sponsors of terrorism, see Acree, 370 F. 3d, at 54, we would disagree with the Court of Appeals’ conclusion that the FSIA exception is not such a law. Allowing lawsuits to proceed certainly has the extra benefit of facilitating the compensation of injured victims, but the fact that § 1605(a)(7) targeted only foreign states designated as sponsors of terrorism suggests that the law was intended as a sanction, to punish and deter undesirable conduct. Stripping the immunity that foreign sovereigns ordinarily enjoy is as much a sanction as eliminating bilateral assistance or prohibiting export of munitions (both of which are explicitly mandated by § 586F(c) of the Iraq Sanctions Act). The application of this sanction affects the jurisdiction of the federal courts, but that fact alone does not deprive it of its character as a sanction.
It may well be that when Congress enacted the EWSAA it did not have specifically in mind the terrorism exception to sovereign immunity. The Court of Appeals evidently found that to be of some importance. Id., at 56 (noting there is “no reference in the legislative history to the FSIA”). But the whole value of a generally phrased residual clause, like the one used in the second proviso, is that it serves as a catchall for matters not specifically contemplated — known unknowns, in the happy phrase coined by Secretary of Defense Donald Rumsfeld. Pieces of Intelligence: The Existential Poetry of Donald H. Rumsfeld 2 (H. Seely comp. 2003). If Congress wanted to limit the waiver authority to particular statutes that it had in mind, it could have enumerated them individually.
We cannot say with any certainty (for those who think this matters) whether the Congress that passed the EWSAA would have wanted the President to be permitted to waive § 1605(a)(7). Certainly the exposure of Iraq to billions of dollars in damages could be thought to jeopardize the statute’s goal of speedy reconstruction of that country. At least the President thought so. And in the “vast external realm, with its important, complicated, delicate and manifold problems,” Curtiss-Wright Export Corp., 299 U. S., at 319, courts ought to be especially wary of overriding apparent statutory text supported by executive interpretation in favor of speculation about a law’s true purpose.
c
Respondents advance two other objections to the straightforward interpretation of the EWSAA proviso. First, in a less compelling variant of the D. C. Circuit’s approach, the Simon respondents argue that “section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism” means § 620A of the Foreign Assistance Act or any other provision of law cited therein. The provision would thus allow the President to make inapplicable to Iraq the statutes that §620A precludes from being used to provide support to terror-sponsoring nations. Not to put too fine a point upon it, that is an absurd reading, not only textually but in the result it produces: It would mean that the effect of the EWSAA was to permit the President to exclude Iraq from, rather than include it within, such beneficent legislation as the Food for Peace Act of 1966, 7 U. S. C. § 1691 et seq.
Both respondents also invoke the canon against implied repeals, TVA v. Hill, 437 U. S. 153, 190 (1978), but that canon has no force here. Iraq’s construction of the statute neither rests on implication nor effects a repeal. The EWSAA proviso expressly allowed the President to render certain statutes inapplicable; the only question is its scope. And it did not repeal anything, but merely granted the President authority to waive the application of particular statutes to a single foreign nation. Cf. Clinton v. City of New York, 524 U. S. 417, 443-445 (1998).
D
We must consider whether anything in the subsequent NDAA legislation changes the above analysis. In particular, § 1083(c)(4) of that statute specifically says that “[n]othing in section 1503 of the [EWSAA] has ever authorized, directly or indirectly, the making inapplicable of any provision of chapter 97 of title 28, United States Code, or the removal of the jurisdiction of any court of the United States.” 122 Stat. 343. This looks like a ratification by Congress of the conclusion reached in the Aeree decision.
Is such a ratification effective? The NDAA is not subsequent legislative history, as Iraq claims, cf. Sullivan v. Finkelstein, 496 U. S. 617, 632 (1990) (Scalia, J., concurring in part); rather, it is binding law, approved by the Legislature and signed by the President. Subsequent legislation can of course alter the meaning of an existing law for the future; and it can even alter the past operation of an existing law (constitutional objections aside) if it makes that retroactive operation clear. Landgraf v. USI Film Products, 511 U. S. 244, 267-268 (1994). To tell the truth, however, we are unaware of any case dealing with the retroactive amendment of a law that had already expired, as the EWSAA had here. And it is doubtful whether Congress can retroactively claw back power it has given to the Executive, invalidating Presidential action that was valid when it was taken. Thankfully, however, we need not explore these difficulties here.
In § 1083(d)(1) of the NDAA, the President was given authority to “waive any provision of this section with respect to Iraq.” 122 Stat. 343. The President proceeded to waive “all” provisions of that section as to Iraq, including (presumably) § 1083(c)(4). 73 Fed. Reg. 6571. The Act can therefore add nothing to our analysis of the EWSAA. Respondent Beaty objects that the President cannot waive a fact. But neither can Congress legislate a fact. Section 1083(e)(4) could change our interpretation of the disputed EWSAA language only if it has some substantive effect, changing what would otherwise be the law. And if the President’s waiver does anything, it eliminates any substantive effect that the NDAA would otherwise have on cases to which Iraq is a party.
IV
Having concluded that the President did render 28 U. S. C. § 1605(a)(7) “inapplicable with respect to Iraq,” and that such action was within his assigned powers, we consider respondents’ argument that the inapplicability of the provision does not bar their claims, since they arise from Iraq’s conduct prior to the President’s waiver. Any other interpretation, they say, would cause the law to operate in a disfavored retroactive fashion.
This argument proceeds as follows: The FSIA exception becomes “applicable” to a foreign state when that foreign state is designated as a sponsor of terrorism. In parallel fashion, rendering the exception “inapplicable” should be equivalent to removing the state’s designation. And under § 1605(a)(7), jurisdiction turned on the foreign state’s designation “at the time the act [giving rise to the claim] occurred.” On this reading, the President’s waiver meant only that Iraq could not be sued pursuant to § 1605(a)(7) for any future conduct, even though it technically remained designated as a state sponsor of terrorism.
Respondents support this interpretation with a policy argument and a canon of construction. First, why would Congress have sought to give Iraq better treatment than any other state that saw the error of its ways, reformed its behavior, and was accordingly removed from the list of terror-sponsoring regimes? See Acree, 370 F. 3d, at 56 (calling such a result “perplexing”). Providing immunity for future acts is one thing, but wiping the slate clean is quite another. Second, this Court has often applied a presumption that, absent clear indication to the contrary, statutory amendments do not apply to pending cases. Landgraf, supra, at 280. A narrow reading of “inapplicable” would better comport with that presumption.
As a textual matter, the proffered definition of “inapplicable” is unpersuasive. If a provision of law is “inapplicable” then it cannot be applied; to “apply” a statute is “[t]o put [it] to use.” Webster’s New International Dictionary 131 (2d ed. 1954). When the District Court exercised jurisdiction over these cases against Iraq, it surely was putting § 1605(a)(7) to use with respect to that country. Without the application of that provision, there was no basis for subject-matter jurisdiction. 28 U. S. C. §§ 1604, 1330(a). If Congress had wanted to authorize the President merely to cancel Iraq’s designation as a state sponsor of terrorism, then Congress could have done so.
As a policy matter, moreover, we do not find that result particularly “perplexing.” As then-Judge Roberts explained in his separate opinion in Aeree, Congress in 2003 11 for the first time confronted the prospect that a friendly successor government would, in its infancy, be vulnerable under Section 1605(a)(7) to crushing liability for the actions of its renounced predecessor.” 370 F. 3d, at 61 (opinion concurring in part and concurring in judgment) (emphasis in original). The Government was at the time spending considerable sums of money to rebuild Iraq, see Rogers, Congress Gives Initial Approval for War Funding, Airline Aid, Wall Street Journal, Apr. 4,2003, p. A10. What would seem perplexing is converting a billion-dollar reconstruction project into a compensation scheme for a few of Saddam’s victims.
As for the judicial presumption against retroactivity, that does not induce us to read the EWSAA proviso more narrowly. Laws that merely alter the rules of foreign sovereign immunity, rather than modify substantive rights, are not operating retroactively when applied to pending cases. Foreign sovereign immunity “reflects current political realities and relationships,” and its availability (or lack thereof) generally is not something on which parties can rely “in shaping their primary conduct.” Republic of Austria v. Altmann, 541 U. S. 677, 696 (2004); see also id., at 703 (Scalia, J., concurring).
In any event, the primary conduct by Iraq that forms the basis for these suits actually occurred prior to the enactment of the FSIA terrorism exception in 1996. See Saudi Arabia v. Nelson, 507 U. S. 349, 351 (1993). That is, Iraq was immune from suit at the time it is alleged to have harmed respondents. The President’s elimination of Iraq’s later subjection to suit could hardly have deprived respondents of any expectation they held at the time of their injury that they would be able to sue Iraq in United States courts.
V
Accordingly, the District Court lost jurisdiction over both suits in May 2003, when the President exercised his authority to make § 1605(a)(7) inapplicable with respect to Iraq. At that point, immunity kicked back in and the cases ought to have been dismissed, “the only function remaining to the court [being] that of announcing the fact and dismissing the cause.” Ex parte McCardle, 7 Wall. 506, 514 (1869).
In respondents’ view, that is not fatal to their claims. They point to the eighth proviso in § 1503 of the EWSAA:
“Provided further, That the authorities contained in this section shall expire on September 30, 2004, or on the date of enactment of a subsequent Act authorizing assistance for Iraq and that specifically amends, repeals or otherwise makes inapplicable the authorities of this section, whichever occurs first.” 117 Stat. 579.
The effect of this provision, they contend, is that the EWSAA waiver expired in 2005, and that when it did so § 1605(a)(7) was revived, immunity was again stripped, and jurisdiction was restored. If that is true, then at the very least they ought to be permitted to refile their suits and claim equitable tolling for the period between 2005 and the present, during which time they understandably relied on Aereés holding.
The premise, however, is flawed. It is true that the “authorities contained in” §1503 of the EWSAA expired, but expiration of the authorities (viz., the President’s powers to suspend and make inapplicable certain laws) is not the same as cancellation of the effect of the President’s prior valid exercise of those authorities (viz., the restoration of sovereign immunity). As Iraq points out, Congress has in other statutes provided explicitly that both the authorities granted and the effects of their exercise sunset on a particular date. E.g., 19 U. S. C. § 2432(c)(3) (“A waiver with respect to any country shall terminate on the day after the waiver authority granted by this subsection ceases to be effective with respect to such country”). The EWSAA contains no such language.
We think the better reading of the eighth EWSAA proviso (the sunset clause) is that the powers granted by the section could be exercised only for a limited time, but that actions taken by the President pursuant to those powers (e. g., suspension of the Iraq Sanctions Act) would not lapse on the sunset date. If it were otherwise, then the Iraq Sanctions Act — which has never been repealed, and which imposes a whole host of restrictions on relations with Iraq — would have returned to force in September 2005. Nobody believes that is so.
* * *
When the President exercised his authority to make inapplicable with respect to Iraq all provisions of law that apply to countries that have supported terrorism, the exception to foreign sovereign immunity for state sponsors of terrorism became inoperative as against Iraq. As a result, the courts below lacked jurisdiction; we therefore need not reach Iraq’s alternative argument that the NDAA subsequently stripped jurisdiction over the cases. The judgments of the Court of Appeals are reversed.
It is so ordered.
The eighth proviso of EWSAA §1503 says that absent further congressional action, “the authorities contained in this section shall expire on September 30, 2004.” 117 Stat. 579. The Court of Appeals expressed doubt that Congress would have wanted federal-court jurisdiction to disappear for a year and then suddenly return. Acree v. Republic of Iraq, 370 F. 3d 41, 56-57 (CADC 2004). Our analysis of the sunset provision, see Part Y, infra, disposes of that concern.
Respondents contend that the NDAA waiver is irrelevant because the President’s veto of the initial version of the hill — which did not include the waiver authority — was defective. We need not inquire into that point, since Congress (evidently thinking the veto effective) enacted a new bill that was identical in all material respects but for the addition of Presidential waiver authority. Since that authority would be nugatory, and the rest of the new law utterly redundant, if a law resulting from the former bill remained in effect, that law would have been effectively repealed.
The sunset date was extended by one year in a later bill. §2204(2), 117 Stat. 1230.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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songer_casetyp1_7-3-2
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F
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts".
CENTURY INDEMNITY CO. v. ARNOLD et al.
No. 104.
Circuit Court of Appeals, Second Circuit.
Feb. 6, 1946.
John Wilson Hood, of New York City, for appellant.
Glenney, Mathews & Hampton, of New York City (Walter L. Glenney, of New York City, of counsel),, for appellees.
' Before L. HAND, SWAN and FRANK, Circuit Judges. ¡
SWAN, Circuit Judge.
This is the second time this case has come before us. On the first trial the complaint was dismissed at the close of the plaintiff’s case. On appeal, 2 Cir., 145 F.2d 164, the judgment was reversed on the ground that the res ipsa loquitur doctrine required submission of the case to the jury. The present appeal is from a judgment entered upon verdict of the jury in favor of the defendants after a second trial.
The action was brought by an insurance carrier, the statutory assignee under § 29 of the Workmen’s Compensation Law of New York, Consol.Laws c. 67, on the cause of action of a workman who suffered personal injuries while working in an apartment house owned by the defendants. Federal jurisdiction rests upon diversity of citizenship. The facts as stipulated or testified to by the plaintiff’s witnesses are as follows: The workman, Abe Kalman, was an experienced painter employed by Essie Cohen, the plaintiff’s insured, who was under contract with the defendants to redecorate one of the apartments in their building. Kalman was injured by falling from a stepladder on which he was standing to repair cracks in the ceiling preparatory to painting. One of the legs of the ladder broke through a floor board causing the ladder to tip against the wall and the workman to fall. He claimed that the fall injured his leg upon which he previously had had a series of ulcers that finally had healed, and- produced a new ulcer which resulted in a disability claim under the workmen’s compensation policy issued by the plaintiff to his employer. Compensation was paid him by the plaintiff, and by reason of the workman’s failure to bring suit within a year after the accident, plaintiff became subrogated by virtue of § 29 of the Workmen’s Compensation Law to his right of action. The apartment had been vacant for several months and was under the control of the defendants who had purchased the building sixty days before the accident. They continued the agent of the prior owners in charge of the building and retained the services of the former superintendent of the building. No inspection of the floor was made by the defendants, and the only attention their superintendent had given it was such as was incidental to sweeping and cleaning. While cleaning he saw nothing wrong with the floor; nor did the workman observe any defect when setting up his ladder. After the accident the superintendent examined the board which broke, replaced it with another piece of wood and threw the broken piece away. He gave no testimony regarding its condition, but said the broken piece was about an inch wide and two feet long. The photograph in evidence appears to show that the broken piece was at least two inches wide. Defendants presented only medical testimony. The jury returned a verdict in favor of the defendants and the plaintiff appeals. Denial of the plaintiff’s motion for a directed verdict, and alleged errors in the conduct of the trial and in the instructions to the jury are urged by the appellant as grounds for reversal.
The appellant contends that by the'law of New York, in a case where the res ipsa loquitur doctrine is applicable, the plaintiff is entitled to a directed verdict if the defendant offers no'evidence on the issue of liability. Apparently at one time that was the New York rule. Hogan v. Manhattan R. Co., 149 N.Y. 23, 43 N.E. 403. But the later cases, as we understand them, hold that the res ipsa loquitur doctrine means no more than that a plaintiff who brings himself within it makes a prima facie case which entitles him to go to the jury, but he must still persuade the jury that the defendant was negligent, even though the defendant has presented no explanation of the accident. Foltis v. City of New York, 287 N.Y. 108, 38 N.E.2d 455; Dittiger v. Isal Realty Co., 290 N.Y. 492, 49 N.E.2d 980. In the Foltis case, 287 N.Y. 108, at page 119, 38 N.E.2d 461, Chief Judge Lehman quoted with apparent approval the following statement from Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 57 L.Ed. 815, Ann.Cas.1914D, 905:
“Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff.”
Although the defendants offered no testimony in explanation of why the board broke, they did bring out on cross-examination of the injured workman and of the superintendent of their building, whom the plaintiff had called as a witness, that no defect in the floor was apparent to casual observation. Whether the defendants were negligent and whether their negligence caused injury to the plaintiff were issues for the jury to decide. No error was committed in denying the plaintiff’s motion for a directed verdict.
Numerous errors are asserted with respect to the court’s charge to the jury. One relates to the court’s refusal to charge as to the workman’s interest in the suit. In a suit brought by an insurance carrier as statutory assignee of the workman’s cause of action, if the recovery exceeds the compensation awarded and the expenses of the suit, two-thirds of the excess goes to the workman. The instructions given told the jury that the insurance company had a right under the law to bring this action, and that having paid Kalman his compensation it was subrogated to his cause of action, “so there shouldn’t be any prejudice one way or the other because the plaintiff is an insurance company.” The judge refused a request to instruct that any excess recovery above the compensation payments and expenses of suit would be divided two-thirds to the employee and one-third to the insurance company: We think such an explanation might well be given in a suit of this character, but in this case the jury had already had it from the plaintiff’s counsel on his opening. Although on objection by defendant’s counsel the court then said “We are not concerned with that,” we think under the circumstances the charge as given was sufficient, and no reversible error was committed in denying the requested instruction.
The appellant complains also that the defendant’s attorney in his summation to the jury made remarks calculated to arouse prejudice against the plaintiff as an insurance company. The offending summation was not taken down and the trial judge in denying a motion for a new trial stated that he had “no recollection of what was said.” Since under rule 75(h) Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, he must settle the record in case of dispute as to what occurred, we cannot consider the attorneys’ affidavits as to what was said. All we know from the record is that during the summation something was said to which the plaintiff’s attorney made objection and the court replied: “We are not concerned with that at all. Go ahead with the case. The jury will be guided by the evidence.” No further objection nor motion for a mistrial was noted and apparently the plaintiff’s attorney was content with the court’s disposition of his objection.
It is urged that the court erred in not instructing the jury that section 78 of the Multiple Dwelling Law, Consol. Laws, c. 61-A required the defendants to keep the floor in good repair. The court gave a long colloquial charge in which it said that the owners were under a duty to use reasonable care to provide a safe place in which the painter could work, and it repeatedly referred to that duty and to the necessity of finding that the accident was caused by the defendants’ negligence, if a verdict was to be returned for the plaintiff. We think the charge as a whole was adequate and that further elaboration would only have tended to confuse the jury. Thus request No. 6, based on section 78 of the Multiple Dwelling Law seems to imply that the defendants were under an absolute duty to keep the premises in good repair. This is not the New York law. Actual or constructive notice of the dangerous condition is an essential element of liability. See Altz v. Leiberson, 233 N.Y. 16, 18, 134 N.E. 703; Becker v. Manufacturers Trust Co., 262 App.Div. 525, 527, 30 N.Y.S.2d 542; reargument denied 263 App.Div. 810, 32 N.Y.S.2d 126; Collins v. Noss, 258 App.Div. 101, 15 N.Y.S.2d 475, affirmed 283 N.Y. 595, 28 N.E.2d 20; Dittiger v. Isal Realty Corp., 290 N.Y. 492, 496, 49 N.E.2d 980.
Similarly, it was not necessary to give request No. 8 that “failure to make proper and diligent inspection constitutes negligence on tire part of the defendants.” This would be true only if such inspection would have disclosed the defect. The charge already given that the defendants must use due care to provide a safe place to work implies a duty of reasonable inspection.
Request No. 5 which stated that, in the absence of a satisfactory explanation of why the board broke, the plaintiff “is entitled to recovery” went too far, and is in effect a plea for a directed verdict which we have already discussed. The point was adequately covered by the following charge: “ * * * accordingly if you find that one of the supports of the stepladder broke through this small board in the floor, and this condition of the floor was such a thing as ordinarily would not have happened if the defendants had used reasonable care to prevent it, that makes what is termed a prima facie case, and you may infer therefrom, if there has been no explanation by the defendants, that it was the failure of the defendants to use reasonable care to provide a safe place for the painter to work that caused the accident and which caused such injury as you find followed. Such unrebutted inference would then justify a verdict in favor of the plaintiff.”
None of the other refused requests to charge appears to us necessary in view of the colloquial charge, nor of sufficient importance to require separate discussion. Nor was it obligatory on the court to give an instruction that the jury might drawn an adverse inference against the defendants from their non-production of material witnesses. The agent and sub-agent were as available to the plaintiff as to the defendants. If their interest was more on the side of the defendants than of the plaintiff, this was matter for argument to the jury. See United States v. Cotter, 2 Cir., 60 F.2d 689, 692, certiorari denied 287 U.S. 666, 53 S.Ct. 291, 77 L.Ed. 575.
Finding no error in the record we affirm the judgment.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"?
A. motor vehicle
B. airplane
C. product liability
D. federal employer liability; injuries to dockworkers and longshoremen
E. other government tort liability
F. workers compensation
G. medical malpractice
H. other personal injury
I. fraud
J. other property damage
K. other torts
Answer:
|
songer_method
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
INGRAM v. UNITED STATES.
No. 9181.
Circuit Court of Appeals, Ninth Circuit.
Sept. 16, 1939.
Fred McDonald, E. J. Dunning, and Sol Abrams, all of San Francisco, Cal., for appellant.
Frank J. Hennessy, U. S. Atty., and S. P. Murman, Asst. U. S. Atty., both of San Francisco, Cal.
Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.
DENMAN, Circuit Judge.
This is an appeal from a judgment upon conviction of appellant for having morphine in his possession in violation of Section 2c of the Jones-Miller Act, 42 Stat. 596 (21 U.S.C. § 174, 21 U.S.C.A. § 174), and for conspiring in the violation with one Joseph A. Woods. Appellant seeks reversal for a claimed prejudicial cross-examination of his principal witness, his wife, Ann Ingram, tending to degrade her in matters having no relevant connection with the prosecution. The objections to the questions asked and exceptions to the court’s rulings sufficiently present for our consideration appellant’s contentions.
The morphine was found in an apartment of Woods in an apartment house in San Francisco; also in the apartment were some of appellant’s clothing and household linen and his suitcase containing a scale, usable for measuring narcotics, empty capsules, and a radio claimed to be his. The presence of these articles in Woods’ rooms and the fact that appellant had a key to the apartment which he used to enter shortly after the federal agents, who were waiting there, had discovered the drug, constituted an important part of the evidence leading to his conviction.
Appellant’s defense was that the apartment was leased by Woods and his visit there at the time of his arrest was to obtain his clothes which had been deposited there; that the morphine and other articles were not his and none had been placed by him in his suitcase.
To sustain her husband’s defense, Mrs. Ingram testified that she had known appellant’s co-defendant Woods since' February, 1938, when appellant and herself moved to South San Francisco Auto Court, where they lived in a trailer until April 1, 1938, at which time they moved into an apartment house adjacent to that in which Woods lived. There they stayed until the end of July, 1938. Woods visited them both at the trailer and at the apartment. According to the witness, when appellant and herself moved back to the trailer in the latter part of July, 1938, Woods borrowed appellant’s linen for his own apartment.. The radio, she said, belonged to Woods. She further testified that appellant’s discarded wearing apparel was also taken by Woods to his apartment in appellant’s suitcase. Mrs. Ingram stated that on August 16, 1938, appellant, Woods, herself and her sister went on a fishing trip. Before leaving, Woods gave appellant the key to his apartment because appellant wanted to get his clothes. On returning, appellant left Mrs. Ingram at the trailer and went to get his clothes in Woods’ apartment. She did not see him again because he was arrested, the agents later arresting her too.
The prosecuting attorney states he feared Mrs. Ingram had made an impression on the jury unfavorable to his case. For some reason not appearing in the record, Mrs. Ingram was permitted to leave the stand at the end of her direct examination. On her return the prosecutor entered into an attempt to impeach the witness. However, the questions addressed to her were not a cross of her direct examination. Instead of being cross-examination, they introduced an entirely new field of discussion, not relevant to the direct examination, namely, the private life of Mrs. Ingram. The method used was an inquiry as to the continuity of the wife’s living with her husband during years prior to the charged offense and then questioning as to claimed improprieties in her conduct, inconsistent with that of a continued marital relationship. It is obvious that the main purpose of entering into this area, irrelevant to the direct examination, was to degrade her in the minds of the jury. The prejudicial effect of the questions is obvious. Also it is our opinion that had they not been asked the jury well could have believed her explanation of her husband’s presence and that of his belongings in Woods’ rooms.
The law is well stated in § 2051 of the California Code of Civil. Procedure: “§ 2051. How Impeached. A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he had been convicted of a felony.” McKune v. United States, 9 Cir., 296 F. 480, 481; Conner v. United States, 9 Cir., 7 F.2d 313, 314; People v. Bell, 96 Cal.App. 503, 506, 274 P. 393, question as to chastity of a prosecutrix for rape; People v. Fleming, 166 Cal. 357, 381, 136 P. 291, Ann.Cas.1915B, 881, use of assumed name.
We hold that the cross-examination was improper, and that, in permitting it, the court committed prejudicial error.
Reversed.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SHELLIDAY et al. v. UNITED STATES.
Circuit Court of Appeals, Fourth Circuit.
April 10, 1928.
No. 2673.
1. Intoxicating liquors <3=251 — Burden was on claimant to show want of, notice or knowledge of facts putting her on inquiry that automobile was being used in violating prohibition law (National Prohibition Act, tit. 2, § 26 [27 USCA § 40]).
Burden was on one claiming automobile, sought to be forfeited under National Prohibition Act, tit. 2, § 26 (27 USCA § 40) to show not only her ownership thereof, but good cause why it should not be forfeited, that is, that she was without notice or knowledge of facts sufficient to put her on inquiry that it was being used in violating law.
2. Intoxicating liquors <3=251 — Evidence that wife was living with husband and violating prohibition law held to support judgment forfeiting her automobile used by him in transporting liquor (National Prohibition Act, tit. 2, § 26 [27 USCA '§ 40]).
Judgment forfeiting automobile, under National Prohibition Act, tit. 2, § 26 (27 USCA § 40), held supported as to wife of one arrested while transporting intoxicating liquor therein by evidence that she was living with husband, and had also been violating act, though it was shown that she was purchaser of automobile.
3. Intoxicating liquors <3=246 — -Indorsee of purchase-money notes held entitled to protection of lien, in absence of notice, or knowledge of facts leading to discovery, that automobile was to be used to transport liquor (National Prohibition Act, tit. 2, § 26' [27 USCA § 40]).
Acceptance corporation,.to which purchase-money notes, secured by lien on automobile for balance of price, were indorsed by seller, held entitled to protection of its lien, under National Prohibition Act, tit. 2, § 26 (27 USCA § 40), against forfeiture of automobile, in absence of evidence that either such corporation or seller had notice! or knowledge of any facts which would have put them on inquiry leading to discovery, that automobile was being* used, or to be used, for illegal transportation of liquor.
4. Intoxicating liquors <§=251 — Burden is on intervener in forfeiture proceedings to establish creation of bona fide lien without notice that automobile was to be used in violating prohibition law (National Prohibition Act, tit. 2, § 26 [27 USCA § 40]).
Under National Prohibition Act, tit. 2, § 26 ' (27 USCA § 40), burden is on lienor, intervening in proceedings to forfeit automobile, to establish that lien claimed is bona fide, and was created without notice that vehicle was being used, or to be used, in violation of such act.
5. Intoxicating liquors <§=246 — Seller, knowing of facts which should put him on inquiry as to fact that automobile is to be used to transport liquor, is not bona fide lienholder (National Prohibition Act, tit. 2, § 26 [27 USCA § 40]).
Seller, having knowledge of facts which ought to put him on inquiry as to fact that automobile sold is to be used for transporting intoxicating liquor, in violation of National Prohibition Act, cannot willfully shut his eyes thereto and claim to be bona fide lienholder without notice under National Prohibition Act, tit. 2, § 26 (27 USCA § 40).
6. intoxicating liquors <§=246 — Seiler’s failure to investigate court records showing buyer’s convictions of violating prohibition law is not equivalent to notice that automobile is to be used in transporting liquor (National Prohibition Act, tit. 2, § 26 [27 USCA § 40]).
Failure of seller of automobile to investigate court records showing purchaser’s convictions of violating National Prohibition Act or make inquiry as to purchaser’s character held not equivalent to notice that automobile was to be used for illegal transportation of liquor, under National Prohibition Act, tit. 2, § 26 (27 USCA § 40).
7. Intoxicating liquors <®=132 — Prohibition statute must be strictly construed (National Prohibition Act tit. 2, § 26 [27 USCA § 40]).
A penal statute, such as National Prohibition Act, tit. 2, § 26 (27 USCA § 40), authorizing forfeiture of automobile used for transporting intoxicating liquors, in violation of National Prohibition Act, is to be strictly construed.
8. Intoxicating liquors <§=250 — Forfeiture of automobile, used in transporting liquor by one convicted under prohibition law, was properly decreed under such act (National Prohibition Act, tit. 2, § 26 [27 USCA § 40]; 26 USCA §§ 1181, 1182).
Where person in charge of automobile, being used to transport intoxicating liquor, was proceeded against and convicted under National Prohibition Act, forfeiture of automobile was properly decreed under title 2, § 26, thereof (27 USCA § 40), rather than Rev. St. 3450 (26 USCA §§ 1181, 1182; Comp. St. § 6352).
In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; George W. McClintic, Judge.
Libel by the United States of America to forfeit an automobile under the National Prohibition Act, in which Pearl Eva Shelliday, the General Motors Acceptance Corporation, and another intervened as claimants. To review an order of forfeiture, interveners bring error. Affirmed as to first-named intervener, reversed as to named corporation, and remanded.
Claude L. Smith, of Charleston, W. Va. (J. Raymond Gordon and Fred W. Goshorn, both of Charleston, W. Va., on the brief), for plaintiffs in error.
Lawrence L. McClure, Asst. U. S. Atty., of Huntington, W. Va. (B. J. Pettigrew, Acting U. S. Atty., of Charleston, W. Va., on the brief), for the United States.
Before WADDILL and PARKER, Circuit Judges, and SOPER, District Judge.
PARKER, Circuit Judge.
On February 13, 3927, at Charleston, W. Va., one O. C. Shelliday was arrested by federal prohibition agents while transporting intoxicating liquor in an automobile, in violation of the National Prohibition Act (27 USCA), and the automobile was seized. Subsequently, upon an information filed against him, he entered a plea of guilty to a charge of violating the Prohibition Act. A libel was filed by the district attorney asking Cor a forfeiture of the automobile under section 26 of the Prohibition Act (27 USCA § 40), and thereupon intervening petitions were filed by Shelli day’s wife, claiming the automobile, and by the Charleston Buick Company and the General Motors Acceptance Corporation claiming a lien thereon. Upon waiver of jury trial, the court found the facts, and entered an order-denying the claims of the interveners, adjudging a forfeiture of the automobile, and directing that it be sold, and that the proceeds of sale be paid into the Treasury of the United States. The correctness of this order is the matter challenged by the assigtaments of error.
On that branch of the ease which presents the claim of Mrs. Shelliday, we think that the judgment of the court below should be affirmed. It is true that it is shown that she was the purchaser of the automobile, but it also appears that she and her husband were living together, and that she, as well as he, had been violating the Prohibition Act. When the automobile was captured while being used in the unlawful transportation of liquor, the burden rested upon her to show, not only her ownership, but also good cause why the car should not be forfeited, i. e., that she was without notice and without knowledge of facts sufficient to put her upon inquiry that it was being used in violating the law. We think that she did not meet this burden, and that the finding of the District Judge, so far as she is concerned, was supported by the evidence. See United States v. One Dodge Coupé, Tennessee License 81-976 (D. C.) 13 F.(2d) 1019; United States v. One Cadillac Town Car Automobile, 57 App. D. C. 183, 18 F.(2d) 1005, 1006.
On the branch of the case presented by the petition of the Charleston Buiek Company and the General Motors Acceptance Corporation, however, we think that the action of the judge was erroneous, and must be reversed. It appears that the Charleston Buiek Company sold the automobile in question to Mrs. Shelliday on the 4th day of January 1927, taking in exchange a ear which she had purchased from that company some two years before, and purchase-money, notes secured by lien on the automobile for the remainder of the purchase priee amounting to $774. These notes were indorsed to the General Motors Acceptance Corporation, and the first one was paid when due, leaving a balapee of $709.50, none of which was due at the time of the seizure. There is no evidence whatever that either the Charleston Buiek Company or the General Motors Acceptance Corporation had any notice that the automobile “was being used, or was to be used,” for illegal transportation of liquor, or that either corporation or any of its officers had knowledge of any facts-which would have put it upon inquiry that would have led to the discovery of that fact. The manager of the Charleston Buiek Company testified that, when he made the trade, he had no knowledge of such facts, and no reason to suspect that the ear was to be used for such purpose; and there is nothing which impeaches or contradicts his evidence. He further testified that, when Mrs. Shelliday purchased the first car from him, he made investigation as to her financial standing, and found it good; that she met satisfactorily the obligations which she assumed with regard to that car;' that -he did not deem it necessary to make further investigation when'she made the purchase in January, 1927; and that he had no knowledge of her having been convicted of violating the liquor laws. He admitted, however, that he did not examine the court records or make inquiry as to whether she was engaged in the liquor business before selling her the car; and for this reason the judge denied the petition of the Charleston Buiek Company and the Acceptance Corporation, holding “that there was insufficient investigation as to the character of the purchaser of the car prior to and at the time of the sale.”
The statute under which the forfeiture was declared protects liens according to their priorities, where it is shown that they are established as bona fide liens and. as having been created “without the lienor having any notice that the carrying vehicle was being used or was to be used for illegal transportation of liquor.” USCA tit. 27, § 40. And there can be no question that the burden of proof rests upon an intervening lienor to establish that the lien claimed is bona fide, and also that it was-created without notice that the vehicle was being used, or was to be used, in violation of the statute. See United States v. Masters (D. C.) 264 F. 250. In this case, however,-the evidence clearly establishes the bona tides of the lien, and it also establishes that, at the time of its creation, the, lienor had no notice that the automobile was to be used in the transportation of liquor. Under such circumstances, the lienor was entitled to -have its lien protected. Oakland Motor Car Co. v. United States (C. C. A. 9th) 295 F. 626; Jackson v. United States (C. C. A. 9th) 295 F. 620; United States v. Sylvester (D. C.) 273 F. 253.
The learned trial judge seems to have based his decision upon the fact that the purchaser of the automobile had been engaged in violating the liquor law, and that there were . court records showing her conviction in a number of- cases; but, assuming, without deciding, that knowledge of these facts would have been sufficient to put the seller upon inquiry and tp have rendered it chargeable with knowledge of what an inquiry would have disclosed, there is no evidence that the seller had knowledge of them, and there is positive testimony that it did not have such knowledge. We do not think that the seller of an automobile is chargeable with knowledge of the fact that the purchaser has been guilty of violating the Prohibition Act merely because there is a court record to that effect.
Of course, if the seller has knowledge of facts which ought to put him on inquiry as to the -purpose for which the automobile is to be used, he cannot willfully shut his eyes to such facts and claim to be a bona fide lien-holder without. notice under the statute. United States v. Kane (D. C.) 273 F. 275. In this ease, however, there is nothing upon which to base a conclusion that the seller had knowledge of any such facts. The forfeiture of the interest of the lienor must be reversed, therefore, unless we are prepared to hold that the failure of the seller to investigate the court records or to make inquiry as to the character of the purchaser was equivalent to notice on his part that the automobile was to be used for the illegal transportation of liquor. It is manifestly not the equivalent of such notice; and to so hold would he to broaden the terms of a penal statute, which, of course, is to be strictly construed. United States v. One Cadillac Town Car Automobile, supra, 57 App. D. C. 183, 18 F.(2d) 1005.
It should he noted that the forfeiture in this case was decreed under section 26 of the National Prohibition Act, and not under the Internal Revenue Act, section 3450 of the Revised Statutes (26 USCA §§ 1181, 1182; Comp. St. § 6352). If forfeiture had been sought under the latter section, the interest of innocent lienors would not have been protected. United States v. One Ford Coupé, 272 U. S. 321, 325, 47 S. Ct. 154, 71 L. Ed. 279, 47 A. L. R. 1025; Commercial Credit Co. v. United States, 48 S. Ct. 232, 72 L. Ed. -. As the person in charge of the automobile was proceeded against and convicted under the National Prohibition Act, however, it was not permissible to proceed against the automobile under section 3450. Commercial Credit Co. v. United States, supra; Port Gardner Co. v. United States, 272 U. S. 564, 47 S. Ct. 165, 71 L. Ed. 412; United States v. Commercial Credit Co. (C. C. A. 4th) 20 F.(2d) 519.
The order of the District Court is affirmed in so far as it affects the rights of Mrs. Shelliday, but reversed in so far as it affects the lien asserted by tile General Motors Acceptance Corporation; and the ease is remanded for further proceedings not inconsistent with this opinion.
Affirmed as to Mrs. Shelliday.
Reversed as to General Motors Acceptance Corporation.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_usc2
|
26
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 26. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
HELVERING, Commissioner of Internal Revenue, v. OBICI et ux.
No. 4304.
Circuit Court of Appeals, Fourth Circuit.
June 6, 1938.
W. Croft Jennings, Sp. Asst, to the Atty. Gen. (James W. Morris, Asst. Atty. Gen., and J. Louis Monarch, Sp. Asst, to the Atty. Gen., on the brief), for petitioner.
Edwin T. Coulbourn and G. A. Harris, both of Suffolk, Va., for respondents.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
PARKER, Circuit Judge.
This is a petition to review a decision of the Board of Tax Appeals. The facts are undisputed and are as follows: Respondents, husband and wife, acquired a boat, boat house and pier in the year 1925 at a cost of $5,025 for the boat house and pier, and $300 for the boat. In August, 1933, the property was totally destroyed by storm. The property was not used by the respondents in a trade or business. The actual value of the property immediately prior to its destruction was $3,905 and it was this amount which tlie respondents originally claimed as a loss in their returns and the Commissioner allowed as a deduction. The respondents later claimed that the measure of loss was the cost of the property. The Commissioner denied the latter claim, and from the ruling of the Commissioner the respondents appealed to the Board of Tax Appeals. The Board overruled the Commissioner’s decision and upheld the contention of the respondents. From this ruling the Commissioner has appealed.
The position of respondents is that loss on account of destruction of property not used for business purposes is allowable under Section 23(e) (3) of the Revenue Act of 1932, 47 Stat. 169, 180, 26 U.S.C.A. § 23(e) (3); that the basis for determining the amount of the deduction is prescribed by Section 23(g), 26 U.S.C.A. § 23(h) as the adjusted basis prescribed by Section 113(b), 26 U.S.C.A. § 113 note, for determining gain or loss from the sale or other disposition of property; that the adjusted basis prescribed by Section 113(b) is the cost (unadjusted basis) less wear, tear, obsolescence, amortization and depletion to the extent allowed (but riot less than the amount allowable) under this act or prior income tax laws; and that, since no wear, tear, obsolescence or depreciation' was allowable with respect to non-business property under any of these laws, the adjusted basis was the same as the unadjusted basis, i. e. the cost of the property destroyed, although it was worth less than cost at the time of its destruction. This position was the one taken by the Board and is sustained by the decision of the Circuit Court of Appeals of the Second Circuit in the case of Helvering, Commissioner, v. Owens, 95 F.2d 318.
With due respect to the decision of the Second Circuit,-we do not feel able to follow it. Non-business property is consumed or worn out by use, just as is business property; but the depreciation resulting from use is not allowed as a deduction because it is in the nature of a personal and not a business expense. See Klein Federal Income Taxation 620 par. 21:9. When such property is destroyed after depreciation by use, the loss is manifestly not the original cost of the property, but its value at the time of destruction; and it is not reasonable to suppose that Congress intended to permit deduction in excess of actual loss. If the loss here had been fully covered by insurance, respondents would have sustained no actual loss of any sort; and yet, under their interpretation of the statute, they would have been entitled to deduct a loss of $1,420. If the property had been an old automobile which had originally cost $2,000 but which was worth $100 at the time of destruction and for the loss of which they were fully compensated by insurance, they would have been entitled to a deduction of $1,900. This would be to allow as a deduction the depreciation of the property accruing in other years when there had been no loss whatever in the year of the return. It is clear that an interpretation of the statute which leads to such consequences should be avoided. Sorrells v. United States, 287 U.S. 435, 447, 53 S.Ct. 210, 214, 77 L.Ed. 413, 86 A.L.R. 249; United States v. Kirby, 7 Wall. 482, 19 L.Ed. 278; Hawaii v. Mankichi, 190 U.S. 197, 212-214. 23 S.Ct. 787, 47 L.Ed. 1016. And particularly is this true of a provision relating to deductions, which are allowable only where plainly authorized. Helvering v. Inter-Mountain Life Ins. Co., 294 U.S. 686, 688, 55 S.Ct. 572, 574, 79 L.Ed. 1227; New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 790, 78 L.Ed. 1348.
The federal revenue laws have been consistent in allowing the deduction of only actual losses. See United States v. White Dental Co., 274 U.S. 398, 47 S.Ct. 598, 71 L.Ed. 1120; New Colonial Ice Co. v. Helvering, supra. To authorize deduction, the loss must be actual and present. Weiss v. Weiner, 279 U.S. 333, 335, 49 S.Ct. 337, 73 L.Ed. 720. It must be determined by practical tests. Burnet v. Huff, 288 U.S. 156, 160, 53 S.Ct. 330, 331, 77 L.Ed. 670; Lucas v. American Code Co., 280 U.S. 445, 450, 50 S.Ct. 202, 203, 74 L.Ed. 538, 67 A.L.R. 1010. And only losses sustained during the year are deductible. United States Cartridge Co. v. United States, 284 U.S. 511, 520, 52 S.Ct. 243, 246, 76 L.Ed. 431; Burnet v. Sanford & Brooks Co., 282 U.S. 359, 51 S.Ct. 150, 75 L.Ed. 383; Dayton Co. v. Commissioner, 8 Cir., 90 F.2d 767; Gowen v. Commissioner, 6 Cir., 65 F.2d 923. In view of the settled policy of the revenue laws not to allow depreciation of non-business property as a deduction and to permit deduction only of actual losses' and only in the year sustained, it is hardly reasonable to suppose that Congress intended to allow a deduction as loss for the full cost of non-business property destroyed, notwithstanding such property had been depreciated through use.
And we think that it sufficiently appears from the statute itself that it was not intended that the cost of property depreciated through use should be allowed as a deduction. It is the “adjusted” basis which is prescribed by 23(g), 26 U.S.C.A. § 23(h), as the basis for deduction and the adjusted basis is not cost, but cost adjusted to allow for‘exhaustion, wear and tear, obsolescence, etc. The provision of Section 113(b) (1) (B), 26 U.S.C.A. § 113 note, limiting such adjustment to the extent allowed, but not less than the amount allowable under that and prior revenue laws, was obviously intended to have reference to the gain or loss attributable to the sale of business property, as to which such depreciation was allowable as a deduction, not to loss attributable to the destruction of non-business property, as to which no such depreciation was allowable. Section 23(g) adopts the adjusted basis as the proper deduction for loss of property destroyed, not the unadjusted basis of 113(a), 26 U.S.C.A. § 113 note, which is cost.
It must be remembered that Section 23(g) prescribes the basis for determining losses, not merely with respect to non-business property, but also with respect to all losses incurred by individuals or corporations. Sections 23(e) and (f), 26 U.S.C.A. § 23(e, f). Only an insignificantly small part of such losses would occur as the result of the destruction of non-business property covered by 23(e) (3) ; and it probably did not occur to anyone to provide that the limitation on adjustment contained in 113(b) (1) (B) should not apply to adjustment of depreciation of non-business property for which deduction is claimed on account of loss. The rule is well settled, however, that in such case the statute should be construed as containing such exception where necessary to avoid a consequence which Congress clearly did not intend. Sorrells v. United States, supra; United States v. Kirby, supra. As said in the case last cited (7 Wall, page 486):
“All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.”
For the reasons stated, the decision of the Board will be reversed and the cause will be remanded for further proceedings not inconsistent herewith.
Reversed.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 26. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_adminaction
|
066
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
A. L. MECHLING BARGE LINES, INC., et al. v. UNITED STATES et al.
No. 58.
Argued February 18, 1964.
Decided March 23, 1964.
Edward B. Hayes argued the cause and filed briefs for appellants in No. 58.
Harold E. Spencer argued the cause for appellant in No. 59. With him on the briefs was Richard M. Freeman.
Frank J. Goodman argued the cause for the United States. On the brief were Solicitor General Cox, Assistant Attorney General Orrick, and Robert B. Hummel.
H. Neil Garson argued the cause for the Interstate Commerce Commission, appellee in both cases. With him on the brief was Robert W. Ginnane.
Richard J. Murphy argued the cause and filed a brief for New York Central Railroad Co., appellee in No. 59. Leo P. Day filed a brief for McNabb Grain Co. et al., appellees in No. 59.
Together with No. 59, Board of Trade of the City of Chicago v. United States et al., also on appeal to the same court.
Mr. Justice Clark
delivered the opinion of the Court.
This direct appeal from a final judgment of a three-judge District Court is but another episode in the long and continued struggle between the railroads and competing barge lines. In 1960 the Interstate Commerce Commission issued an order permitting a departure from the long- and short-haul provision of § 4 of the Interstate Commerce Act. 310 I. C. C. 437. This order permitted the New York Central and connecting carriers to inaugurate a rate structure on its Belt Line west of Kankakee, Illinois, to eastern destinations under which lower rates were charged for some long hauls than for shorter ones on the same route. The District Court approved this action by dismissing a complaint to set aside the order. 209 F. Supp. 744. We noted probable jurisdiction, 374 U. S. 823, and now reverse the judgment with directions that the District Court vacate the order of the Commission and remand for further consideration in light of this opinion.
I.
The New York Central operates the Kankakee Belt Line, which extends from South Bend, Indiana, through Kankakee, Illinois, and westward to Zearing, Illinois. That portion of the line west of Kankakee to Moronts, Illinois, roughly parallels the Illinois River in Northern Illinois and is used, in large part, to transport corn toward eastern markets. In the mid-1930’s, the Illinois River was developed for barge movement and almost all of the corn traffic was drawn away from the rails to the river, corn being moved to Chicago by barge and then shipped to the East by rail. Prior to 1957, barge rates from ports along the Illinois River to Chicago averaged 4.625(4 per hundred pounds of corn. From Chicago to eastern destinations, rail rates were 49(4 per hundred pounds of corn and 49.5(4 for corn products, so that the total shipping cost from ports on the Illinois River to the East was 53.625(4 for corn and 54.125(4 for corn products. At the same time, rates for shipping corn via all-rail routes from origins on the Belt Line to eastern markets averaged 72(4 for corn and 72.5(5 for corn products, computed either as through rates or as a combination of a 23(4 rail rate to Chicago and the 490 or 49.5(5 rate from Chicago to the East.
The railroads chose to meet the barge competition by establishing a new rate structure on December 15, 1956, with a proportional rate for rail shipments of corn to Kankakee which was competitive with the barge rate to Chicago. The railroads continued the regular rates for transportation of corn to Kankakee from points on the Belt Line but allowed credit on reshipment from Kan-kakee to eastern points which resulted in a net rate of 60 for transportation from Belt Line points to Kankakee. The 60 proportional rate applies only if the corn is milled in transit and only if it is reshipped to the East. Because of the credit, the resulting rate system favors eastbound shipments of corn from Belt Line points west of Kanka-kee over similar shipments via the same route starting at Kankakee. For this reason the rate structure violates the long- and short-haul prohibition of § 4 of the Act and the railroads had to apply for authority for fourth-section departures. In 1957 a temporary fourth-section order was entered authorizing the filing and immediate application of the rates but not approving them, “all such rates being subject to complaint, investigation and correction if in conflict with any provision of the Interstate Commerce Act.” The application was set down for hearing, but the Commission did not exercise its power to enter into a general investigation of the lawfulness of the rates under §15(1) or §15(7) of the Act, 41 Stat. 484-487, as amended, 49 U. S. C. §§ 15 (1), 15 (7). Nor did the appellants file a formal complaint under § 13 of the Act, 24 Stat. 383-384, as amended, 49 U. S. C. § 13, assailing the lawfulness of the rates.
Subsequently the Examiner denied § 4 relief because Belt Line rates to Kankakee were less than the out-of-pocket cost and were “lower than necessary to meet the barge competition.” The Commission reversed, holding that the proportional rate from origins along the Kankakee Belt Line to Kankakee “has no independent existence, but is an integral part of the rate which applies on the through transportation from Belt origin” to the East. The Commission found that the through combination rate was compensatory and that since the barges attracted the corn grown adjacent to the river and the rails attracted that along the Belt Line, the rates were not lower than necessary to meet the barge rates and did not constitute destructive competition.
The Chicago Board of Trade, which had intervened in the proceeding, charged that the rates violated § 3 (1) of the Act (as well as § 4) because they discriminated against Chicago grain merchants and processors. The Commission refused to pass upon the question as not being relevant to a § 4 proceeding. Nor did the Commission consider Mechling’s contention that the rates violated § 3 (4) of the Act because they discriminated between connecting carriers. Other objections that the rates violated § 1 (5) of the Act as not being just and reasonable were likewise refused consideration. While the Commission found that the railroad’s action was not a competitively destructive practice, it made no direct finding that the action did not violate the National Transportation Policy, despite the appellants’ insistence that it did.
The District Court approved the Commission’s action in all respects and dismissed the complaint, holding “that the order in question was within the statutory power of the Commission, that it is supported by findings and conclusions based on substantial evidence, and that no prejudicial error occurred in the hearings before the Examiner and Commission.” 209 F. Supp., at 749.
We have concluded that there is error in the holding in two respects: (1) The Commission should have passed upon the questions raised and evidence offered that the rates violated other sections of the Act; (2) the Commission erred in failing to specifically consider and pass upon the question of whether the rates violated the National Transportation Policy.
II.
Contentions were made and proof was offered by the Chicago Board of Trade of discriminatory violations of § 3 (1) of the Act, especially discrimination against whole corn by the milling-in-transit limitation. Under the conclusion of the Examiner that the fourth-section application should be denied, it was not necessary to pass upon the § 3 (1) contention. However, when the Commission took the opposite view on the § 4 application, the claim under § 3 (1) was ripe for decision. The Commission found that “[although the New York Central intends to remove the milling-in-transit limitation, these issues do not directly deal with the fourth-section principles here involved, but are properly matters which may be raised in investigation or complaint proceedings.” 310 I. C. C. 437, 451.
Likewise, appellant Mechling claims discrimination against the barge lines at Chicago in violation of § 3 (4) of the Act, which prohibits carriers from practicing rate discrimination between connecting lines, including common carriers by water. The gist of the grievance is the assertion that the New York Central rate structure results in lower reshipping rates for ex-rail corn eastbound from Chicago than for ex-barge corn. Mechling urges that the Commission should have allowed full inquiry into this contention and should have determined whether § 3 (4) is being violated.
In defense of its position the Commission says that it does not grant relief under § 4 when the rates proposed result in violations of other sections of the Act. However, the Commission does not believe that this policy requires it to consider and decide, in a fourth-section proceeding, every allegation of rate unlawfulness, no matter how remote. Continuing, the Commission argues that since the attack on the rates was on a proportional factor, the 60, and not on the through charge, these other claims of unlawfulness were beyond the immediate § 4 issues. We cannot agree that the mechanism of the rate under attack permits of such easy dismemberment. Indeed, there is a definite tie-in that prevents the compartmentalization of the elements going into the combination. The 60 is not a separate charge but is the result of the railroad’s combination rate. The shipper is charged 230 for the transportation of corn from points west to Kan-kakee, with milling-in-transit, and is allowed a 170 credit on the rate from Kankakee to the East, either direct or via Chicago, on the transportation of the resulting corn products. This combination rate has a real impact on the freight originating along the Belt Line. Further, the rate is not “remote,” as is shown by the undisputed statement of counsel at argument that the barges have lost 53% of their carriage since it was made effective in 1957.
If the proceeding is splintered, contestants will be obliged to await the conclusion of § 4 proceedings before raising claims of violations under other sections of the Act. Not only would this be poor administration but it would result in manifest inequities and allow potential windfalls to some carriers.
Moreover, such splintering appears to be contrary to the consistent policy of the Commission in fourth-section proceedings. Over 50 years ago the Commission said:
“[T]he proviso authorizing this Commission to permit exceptions to the general prohibition of . . . [Section 4] is not a grant of arbitrary or absolute power, but its exercise must be limited and conditioned upon the presence in special cases of conditions and circumstances which would make such exceptions legal and proper and in no wise antagonistic to other provisions of the act.” Railroad Comm’n of Nevada v. Southern Pac. Co., 21 I. C. C. 329, 341 (1911).
In at least 10 subsequent cases, as well as in its annual reports, the Commission has re-emphasized the same principle. See 34 I. C. C. Ann. Rep. 47. Furthermore, the application of all of the Act’s prohibitions against discrimination “as a whole” furthers the purpose of the Congress in its enactment. The Senate Committee on Interstate Commerce once stated it this way:
“The provisions of the . . . [Interstate Commerce Act] are based upon the theory that the paramount evil chargeable against the operation of the transportation system of the United States as now conducted is unjust discrimination between persons, places, commodities, or particular descriptions of traffic. The underlying purpose and aim of the measure is the prevention of these discriminations, both by declaring them unlawful and adding to the remedies now available for securing redress and enforcing punishment . . . .” S. Rep. No. 46, 49th Cong., 1st Sess., 215-216 (1886).
In accordance with this policy, this Court declared in New York v. United States, 331 U. S. 284, 296 (1947), that “[t]he principal evil at which the Interstate Commerce Act was aimed was discrimination in its various manifestations.” In the Intermountain Rate Cases, 234 U. S. 476, 485-486 (1914), the Court held that the Commission's power to relieve carriers from the requirements of § 4 depends upon
“the facts established and the judgment of that body in the exercise of a sound legal discretion as to whether the request should be granted compatibly with a due consideration of the private and public interests concerned and in view of the preference and discrimination clauses of the second and third sections.” (Emphasis added.)
The fact that the long- and short-haul prohibition of § 4 is particularized does not require any different interpretation. The Congress might well have concluded that such a practice was so pernicious that it required specific condemnation.
Finally, by hearing and determining, in a single proceeding, all charges of discrimination bearing upon the formal § 4 application, the Commission would further the legislative purpose as declared by the National Transportation Policy. It directed that the Interstate Commerce Act “shall be administered and enforced with a view to carrying out” its purpose “to encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discrimina-tions, undue preferences or advantages, or unfair or destructive competitive practices . . . .” 54 Stat. 899, 49 U. S. C., note preceding § 1.
We do not say that such a rule of consolidation is an absolute. Many of these applications are filed each year and the Commission summarily disposes of the majority of them. Certainly where issues are not raised or brought to adversary position there is no need to consolidate. Likewise, where consolidation would inordinately delay the § 4 proceeding, good administration would require its denial. However, in the instant case, we see no practical reason why the merits of the several contentions should not have been reached. To require the parties to begin anew and thus spawn several cases, all of which might have been easily disposed of in the § 4 proceeding, needlessly subjects appellants' claims to the rigors of circumlocution so deadly to effective administrative and judicial processes. This proceeding is now in its seventh year— during all of which period the rate under attack has been in force — and, still, basic questions as to the validity of the rate have not been considered by the Commission.
III.
The Examiner entered a finding, which is uncontested, that the proportional rate here under attack did not cover the out-of-pocket costs of the railroad. In spite of this finding, the Commission gave little, if any, consideration to any resulting violation of the National Transportation Policy. There is no economic analysis, no expert testimony, no supporting data. Instead, the Commission found that the through rate, which it thought compensatory, rather than the Belt Line proportional rate, was controlling. Viewed in this manner, the Commission determined that the rate was not a destructively competitive practice. However, it supported this conclusion only with passing references to the first-year experience under the rate of two Illinois elevators and 10 Illinois River ports. One of the elevators had experienced no adverse effects from the rate while the other had lost some grain grown closer to the Belt Line. The 10 ports experienced about a 23% larger corn shipment to Chicago but the proportion of this increase to the whole grain movement is not shown. Nevertheless, the Commission concluded from this “that while corn grown adjacent to the Belt was attracted to the rails, that grown adjacent to the river remained with the barges. Thus, it is evident that the proposed rates are not lower than necessary to meet the barge competition.” 310 I. C. C. 437, 452. In contradiction to this we have the undenied statement of counsel at argument, quoting statistics of the Chicago Board of Trade, that much corn traffic has been diverted from barge to rail since the rate went into effect, so that the barge lines carried 53% less corn to Chicago in 1963 than they did in 1957. The finding that the through rate was compensatory does not answer the question of whether the direct effect of the below-cost proportional rate on the Belt Line traffic is wholly at odds with the National Transportation Policy. Prior to the establishment of the rate, the barge lines enjoyed practically all of the traffic. However, the combination rate appears to have diverted appreciable traffic from the barge lines without any apparent profit to the railroad. Indeed, the Commission has not indicated whether any additional trafile resulted on the rail haul between Chicago or Kankakee and New York. We, therefore, do not believe it sufficient for the Commission to approve such a rate simply on a finding that the through rate is reasonably compensatory and no lower than necessary to meet competition. In light of the facts present here, the claim of violation of the National Transportation Policy, raised and insisted upon by the appellants at all stages of the proceedings, must be specifically considered.
The judgment is, therefore, reversed and the cases are remanded to the District Court with directions to vacate the order of the Commission and remand for further proceedings consistent with this opinion.
It is so ordered.
24 Stat. 380, as amended, 71 Stat. 292, 49 U. S. C. § 4 (1):
“(1) It shall be unlawful for any common carrier subject to this part or part III to charge or receive any greater compensation in the aggregate for the transportation of passengers, or of like kind of property, for a shorter than for a longer distance over the same line or route in the same direction, the shorter being included within the longer distance, or to charge any greater compensation as a through rate than the aggregate of the intermediate rates subject to the provisions of this part or part III, but this shall not be construed as authorizing any common carrier within the terms of this part or part III to charge or receive as great compensation for a shorter as for a longer distance: Provided, That upon application to the Commission and after investigation, such carrier, in special cases, may be authorized by the Commission to charge less for longer than for shorter distances for the transportation of passengers or property, and the Commission may from time to time prescribe the extent to which such designated carriers may be relieved from the operation of the foregoing provisions of this section, but in exercising the authority conferred upon it in this proviso, the Commission shall not permit the establishment of any charge to or from the more distant point that is not reasonably compensatory for the service performed; and no such authorization shall be granted on account of merely potential water competition not actually in existence: Provided further, That any such carrier or carriers operating over a circuitous line or route may, subject only to the standards of lawfulness set forth in other provisions of this part or part III and without further authorization, meet the charges of such carrier or carriers of the same type operating over a more direct line or route, to or from the competitive points, provided that rates so established over circuitous routes shall not be evidence on the issue of the compensatory character of rates involved in other proceedings: And provided further, That tariffs proposing rates subject to the provisions of this paragraph requiring Commission authorization may be filed when application is made to the Commission under the provisions hereof, and in the event such application is approved, the Commission shall permit such tariffs to become effective upon one day’s notice.”
Reshipment of a commodity which has previously been shipped by barge is termed “ex-barge.” When prior transportation is by rail, reshipment is termed “ex-rail.”
Raised to 4.8250 in December 1957.
A rate which covers only a portion of the total transportation and is therefore only a portion of the total transportation charge.
The net rate was 50 when the plan was established, later 5%0, and now 60.
Proposed report, sheet 26.
310 I. C. C. 437, 450.
24 Stat. 380, as amended, 54 Stat. 902, 49 U. S. C. § 3 (1):
“It shall be unlawful for any common carrier subject to the provisions of this part to make, give, or cause any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic, in any respect whatsoever; or to subject any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever: Provided, however, That this paragraph shall not be construed to apply to discrimination, prejudice, or disadvantage to the traffic of any other carrier of whatever description.”
24 Stat. 380, as amended, 54 Stat. 903-904, 49 U. S. C. § 3 (4):
“All carriers subject to the provisions of this part shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distribution of traffic that is not specifically routed by the shipper. As used in this paragraph the term ‘connecting line’ means the connecting line of any carrier subject to the provisions of this part or any common carrier by water subject to part III.”
24 Stat. 379, as amended, 41 Stat. 475, 49 U. S. C. § 1 (5):
“All charges made for any service rendered or to be rendered in the transportation of passengers or property ... as aforesaid, or in connection therewith, shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful.”
National Transportation Policy, 54 Stat. 899, 49 U. S. C., note preceding § 1:
“It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this act (chapters 1, 8, 12, 13 and 19 of this title), so administered as to recognize and preserve the inherent advantages of each; to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers; to encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices; to cooperate with the several States and the duly authorized officials thereof; and to encourage fair wages and equitable working conditions — all to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense. All of the provisions of this act (chapters 1, 8, 12, 13 and 19 of this title), shall be administered and enforced with a view to carrying out the above declaration of policy.”
Transcontinental Cases of 1922, 74 I. C. C. 48, 71; Commodity Rates on Lumber and Other Forest Products, In Carloads, From South Pacific Coast Territory To Points In Central Freight Association Territory, 165 I. C. C. 561, 569; Differential Routes To Central Territory, 211 I. C. C. 403, 421; Bituminous Coal to Buffalo, N. Y., 219 I. C. C. 554, 560; Pig Iron To Butler, Pa., 222 I. C. C. 1, 2; Iron and Steel to Minnesota, 231 I. C. C. 425, 428; Iron and Steel from Minnequa to Kansas, Nebraska, and South Dakota, 278 I. C. C. 163, 168-169; Coal and Coal Briquets in the South, 289 I. C. C. 341, 376-377; Passenger Fares, Hell Gate Bridge Route, New York, N. Y., 296 I. C. C. 147, 153; Nepheline Syenite from Ontario. Canada, to the East, 308 I. C. C. 561, 564-565.
Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards, 75 Harv. L. Rev. 863, 884.
On Mechling’s claimed violation of § 3 (4), proof on cross-examination was offered before the Examiner and refused as being relevant only in a “division case.” The report of the Commission is silent on the point. It was stated before the Examiner that the record “made fairly plain” the contention which, if true, should permit the Commission to proceed on remand to pass upon it; if not, then the record should be supplemented by stipulation or by additional evidence before the Examiner, if necessary.
Question: What is the agency involved in the administrative action?
001. Army and Air Force Exchange Service
002. Atomic Energy Commission
003. Secretary or administrative unit or personnel of the U.S. Air Force
004. Department or Secretary of Agriculture
005. Alien Property Custodian
006. Secretary or administrative unit or personnel of the U.S. Army
007. Board of Immigration Appeals
008. Bureau of Indian Affairs
009. Bureau of Prisons
010. Bonneville Power Administration
011. Benefits Review Board
012. Civil Aeronautics Board
013. Bureau of the Census
014. Central Intelligence Agency
015. Commodity Futures Trading Commission
016. Department or Secretary of Commerce
017. Comptroller of Currency
018. Consumer Product Safety Commission
019. Civil Rights Commission
020. Civil Service Commission, U.S.
021. Customs Service or Commissioner or Collector of Customs
022. Defense Base Closure and REalignment Commission
023. Drug Enforcement Agency
024. Department or Secretary of Defense (and Department or Secretary of War)
025. Department or Secretary of Energy
026. Department or Secretary of the Interior
027. Department of Justice or Attorney General
028. Department or Secretary of State
029. Department or Secretary of Transportation
030. Department or Secretary of Education
031. U.S. Employees' Compensation Commission, or Commissioner
032. Equal Employment Opportunity Commission
033. Environmental Protection Agency or Administrator
034. Federal Aviation Agency or Administration
035. Federal Bureau of Investigation or Director
036. Federal Bureau of Prisons
037. Farm Credit Administration
038. Federal Communications Commission (including a predecessor, Federal Radio Commission)
039. Federal Credit Union Administration
040. Food and Drug Administration
041. Federal Deposit Insurance Corporation
042. Federal Energy Administration
043. Federal Election Commission
044. Federal Energy Regulatory Commission
045. Federal Housing Administration
046. Federal Home Loan Bank Board
047. Federal Labor Relations Authority
048. Federal Maritime Board
049. Federal Maritime Commission
050. Farmers Home Administration
051. Federal Parole Board
052. Federal Power Commission
053. Federal Railroad Administration
054. Federal Reserve Board of Governors
055. Federal Reserve System
056. Federal Savings and Loan Insurance Corporation
057. Federal Trade Commission
058. Federal Works Administration, or Administrator
059. General Accounting Office
060. Comptroller General
061. General Services Administration
062. Department or Secretary of Health, Education and Welfare
063. Department or Secretary of Health and Human Services
064. Department or Secretary of Housing and Urban Development
065. Administrative agency established under an interstate compact (except for the MTC)
066. Interstate Commerce Commission
067. Indian Claims Commission
068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
069. Internal Revenue Service, Collector, Commissioner, or District Director of
070. Information Security Oversight Office
071. Department or Secretary of Labor
072. Loyalty Review Board
073. Legal Services Corporation
074. Merit Systems Protection Board
075. Multistate Tax Commission
076. National Aeronautics and Space Administration
077. Secretary or administrative unit or personnel of the U.S. Navy
078. National Credit Union Administration
079. National Endowment for the Arts
080. National Enforcement Commission
081. National Highway Traffic Safety Administration
082. National Labor Relations Board, or regional office or officer
083. National Mediation Board
084. National Railroad Adjustment Board
085. Nuclear Regulatory Commission
086. National Security Agency
087. Office of Economic Opportunity
088. Office of Management and Budget
089. Office of Price Administration, or Price Administrator
090. Office of Personnel Management
091. Occupational Safety and Health Administration
092. Occupational Safety and Health Review Commission
093. Office of Workers' Compensation Programs
094. Patent Office, or Commissioner of, or Board of Appeals of
095. Pay Board (established under the Economic Stabilization Act of 1970)
096. Pension Benefit Guaranty Corporation
097. U.S. Public Health Service
098. Postal Rate Commission
099. Provider Reimbursement Review Board
100. Renegotiation Board
101. Railroad Adjustment Board
102. Railroad Retirement Board
103. Subversive Activities Control Board
104. Small Business Administration
105. Securities and Exchange Commission
106. Social Security Administration or Commissioner
107. Selective Service System
108. Department or Secretary of the Treasury
109. Tennessee Valley Authority
110. United States Forest Service
111. United States Parole Commission
112. Postal Service and Post Office, or Postmaster General, or Postmaster
113. United States Sentencing Commission
114. Veterans' Administration or Board of Veterans' Appeals
115. War Production Board
116. Wage Stabilization Board
117. State Agency
118. Unidentifiable
119. Office of Thrift Supervision
120. Department of Homeland Security
121. Board of General Appraisers
122. Board of Tax Appeals
123. General Land Office or Commissioners
124. NO Admin Action
125. Processing Tax Board of Review
Answer:
|
songer_procedur
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
INFORMATION RESOURCES, INC., a Corporation, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 91-1188.
United States Court of Appeals, Fifth Circuit.
Jan. 16, 1992.
W.D. Masterson, Kilgore & Kilgore, Dallas, Tex., for plaintiff-appellant.
Marvin Collins, U.S. Atty., Louise P. Hytken, Asst. U.S. Atty., Tax Div., Dept, of Justice, Dallas, Tex., Gary R. Allen, Chief, Mary F. Clark, Robert S. Pomerance, Appellate Sec., Tax Div., Dept, of Justice, Washington, D.C., for defendant-appellee.
Before WILLIAMS, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
The Internal Revenue Service (“I.R.S.”) erroneously filed tax liens against Information Resources, Inc. Information Resources brought suit for damages for both the erroneous filing of the liens and the failure to issue a timely release of the liens pursuant to 26 U.S.C. §§ 7432 and 7433. The district court granted the government’s motion for summary judgment because Information Resources failed to exhaust its administrative remedies. Information Resources admits that it did not exhaust its administrative remedies but urges that an exception to the doctrine of exhaustion of administrative remedies should apply. Because the administrative remedy is inadequate under Section 7432, and because there were no applicable administrative remedies to exhaust under Section 7433, we reverse the summary judgment.
I. FACTS
Information Resources, Inc. is a Texas corporation engaged in the business of selling computer software. The company failed to pay on time its federal withholding taxes for the fourth quarter of 1988. As of March 20, 1989, Information Resources had paid less than $23,000 of its tax liability of $44,837.82. On or before April 10, 1989, Information Resources made a further payment of $10,000 in satisfaction of its tax liability. This left an unpaid balance of $16,403.87. On April 10, 1989, it received a Letter 1058-Notice of Intent to Levy from the I.R.S. The letter granted Information Resources ten days to pay the amount owed or a lien would be filed against the company’s property.
On April 20,1989, David Salinas, a representative of Information Resources, met with I.R.S. Officer Kriss Brooks to discuss payment of the obligation. Information Resources claims the parties entered into the following agreement: Information Resources offered to pay the full amount of taxes owed on April 21, 1991, but Brooks stated he would not be in his office that day because it was his scheduled day off. Therefore, the parties agreed that Information Resources would pay the full amount on April 24,1991. Pursuant to this alleged agreement, Brooks agreed not to institute any enforced collection action against the company. The government denies the existence of any such agreement. Whether there was an agreement is, of course, an issue of fact which ultimately must be determined by a trial court if it is relevant.
On April 24,1989, Information Resources delivered to Brooks a check in the amount of $16,785.44, representing full satisfaction of its tax liability plus accrued interest. Brooks accepted the check and duly noted his initials either upon the check or upon a copy of the check.
Despite the alleged agreement between the parties, Brooks instituted an enforced collection action on April 21 by filing a request for a Notice of Federal Tax Lien. The liens were filed on April 25 and 26, the first two days immediately following full payment of the debt. On April 25, the federal tax liens were filed in the Dallas County Clerk’s Office and on April 26, in the Office of the Secretary of State of Texas in Austin. Even upon receipt of payment in full for the taxes on April 24, Brooks did not attempt to prevent the filing of the liens on April 25 and 26. Information Resources became aware of the existence of the liens when notice of the liens was published on April 27, 1989, in the Daily Commercial Record, a Dallas legal newspaper.
At this time in early 1989, Information Resources was competitively bidding against several other companies to sell a software package to Ward Petroleum, Inc. Due to the filing of the liens, Ward Petroleum became concerned with the continuing operation of Information Resources, and Ward Petroleum, therefore, decided to reject the company as a bidder. In a deposition, Richard Tozzi, Chief Financial Officer for Ward Petroleum, testified that Ward Petroleum’s evaluation of Information Resources was significantly influenced by the filing of the Federal tax lien. Upon learning of the tax lien, Ward Petroleum then solicited an additional bid for the software application from Artesia and ultimately awarded the project to Artesia.
On or about April 27,1989, David Salinas spoke to Sherene Johnson, an advisor at the Special Procedures Section-Lien Section of the I.R.S., and requested a description of the administrative remedies to obtain a release of an erroneously filed tax lien. Johnson informed Salinas that Information Resources should send a letter to the Internal Revenue Service requesting a release of the lien. Johnson was incorrect as to the precise procedures to follow.
On May 1, 1989, Information Resources sent a letter to Brooks at the Internal Revenue Service in Farmers Branch, Texas, respectfully requesting that Certificates of Release be issued for the tax liens. Both the company and the federal government now recognize that this was not the correct method for obtaining a Certificate of Release. The letter should have been sent to the District Director of the I.R.S., and it should have been accompanied by proof of payment of the tax. The liens were not removed until September 22, 1989, nearly five months after Information Resources requested their removal.
On or about October 25, 1989, Information Resources received a letter written on behalf of the District Director of the I.R.S. apologizing for the concern and inconvenience caused by the “erroneous” filing of the liens on April 25, 1989. Information Resources claims that by the time the release was granted and the apology letter was sent, substantial damages had already occurred.
Information Resources filed a complaint in the district court against the I.R.S. for recovery under 26 U.S.C. §§ 7432 and 7433. Section 7432 provides for the recovery of damages for the I.R.S.’s failure to give a timely release of a federal tax lien and Section 7433 provides for the recovery of damages for the I.R.S.’s intentional or reckless disregard for the provisions of the Internal Revenue Code or regulations promulgated thereunder.
The government filed a motion for summary judgment claiming the district court lacked jurisdiction over the suit because Information Resources had failed to exhaust its administrative remedies. On January 28,1991, the district court granted the government’s motion for summary judgment. It is this dismissal from which Information Resources now appeals.
II. 26 U.S.C. § 7432
Information Resources filed suit pursuant to 26 U.S.C. § 7432 for the LR.S.’s failure to release a federal tax lien within the requirements of timeliness:
“(a) If any officer or employee of the Internal Revenue Service knowingly, or by reason of negligence, fails to release a lien under section 6325 on property of the taxpayer, such taxpayer may bring a civil action for damages against the United States in a district court of the United States.
(b) In any action brought under subsection (a), upon a finding of liability on the part of the defendant, the defendant shall be liable to the plaintiff in an amount equal to the sum of—
(1) actual, direct economic damages sustained by the plaintiff which, but for the actions of the defendant, would not have been sustained, plus
(2) the costs of the action.”
26 U.S.C. § 7432 (1988). Section 7432, however, requires exhaustion of all administrative remedies prior to the filing of a lawsuit. The administrative remedies for release of a tax lien are detailed in 26 C.F.R. § 401.6325-1 (1983). A request must be submitted to the district director of the district in which the notice of lien was filed, and it must be marked for the attention of the Chief, Special Procedures Function. 26 C.F.R. § 401.6325-l(f). The request must contain (1) the name and address of the taxpayer; (2) a copy of the notice of federal tax lien; and (3) the grounds upon which the issuance of a release is sought. Id.
Information Resources does not claim that it followed the requisite procedures precisely. David Salinas sent a letter to the I.R.S. requesting the release of the erroneously filed lien, but the letter was not sent to the appropriate person. It also was unaccompanied by the necessary supporting materials. The company does allege, however, that it has constructively exhausted the administrative remedies, and to exhaust the remedies now would be futile. Exhausting the administrative remedies would entail obtaining the release of a lien which has already been released.
Information Resources cites numerous cases establishing exceptions to the exhaustion doctrine. Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir.1985) (“Exceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavoidable or are wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action”); Coit Independence Joint Venture v. Federal Savings and Loan Insurance Corporation, 489 U.S. 561, 109 S.Ct. 1361, 1375, 103 L.Ed.2d 602 (1989) (“Administrative remedies that are inadequate need not be exhausted”); Spannaus v. U.S. Dept. of Justice, 824 F.2d 52, 58 (D.C.Cir.1987) (“Once constructive exhaustion [of administrative remedies] occurs, any available administrative appeal— i.e. actual exhaustion—becomes permissive in the sense in which the term is used here; the requester may pursue it, but his failure to do so does not bar a lawsuit”).
Although Information Resources is correct as to the numerous exceptions which the courts have applied to the doctrine of exhaustion of administrative remedies, the cases it cites apply only to the judicially created doctrine. There is a distinct difference between statutorily mandated exhaustion of administrative remedies and the judicially created doctrine of exhaustion of administrative remedies. See Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 2467, 45 L.Ed.2d 522 (1975); Power Plant Division, Brown & Root, Inc. v. Occupational Safety and Health Review Commission, 673 F.2d 111, 115 (5th Cir. Unit B 1982) (“[A]s the Supreme Court reasoned concerning the analogous statutory requirement of a final agency decision, the statutory codification of the agency objection requirement distinguishes the requirement from the classical exhaustion doctrine”).
While courts may exercise discretion in applying the judicially created doctrine of exhaustion, such discretion is severely limited with respect to a statutory exhaustion requirement because failure to exhaust deprives courts of jurisdiction. Townsend v. U.S. Department of Justice I.N.S., 799 F.2d 179 (5th Cir.1986) (“When exhaustion is statutorily mandated, the requirement is jurisdictional”); Central States Southeast and Southwest Areas Pension Fund v. T.I.M.E.-DC, Inc., 826 F.2d 320, 326-27 (favorably quoting the Townsend case). This circuit, for example, has expressly disavowed the futility exception with respect to statutory exhaustion. Power Plant Division, Brown & Root v. Occupational Safety and Health Review Commission, 673 F.2d at 115.
An exception to a statutorily mandated exception requirement, however, does exist, and it is applicable to the present facts. In Ramirez-Osorio v. I.N.S., 745 F.2d 937, 939 (5th Cir.1984), we held that “exhaustion is not required when administrative remedies are inadequate.” In the present case, administrative remedies are inadequate because the lien has already been released. Although the administrative procedure in question is normally adequate, it has been rendered inadequate by the I.R.S. itself. Had the I.R.S. truly believed it was mandatory that the administrative procedures be followed precisely, it should not have released the lien until Information Resources followed the proper procedures. Information Resources did not intentionally disregard the administrative process. In fact, it contacted Sher-ene Johnson of the I.R.S. in an attempt to ascertain the proper procedures to follow. While Information Resources appears to have acted in good faith, it is questionable whether the I.R.S. similarly acted in good faith. Although Information Resources’ request for release of the liens was sent to the wrong person, it is difficult to understand why it still took the I.R.S. over five months to release the liens. Note, however, that Information Resources may not be fully excused for utilizing the wrong procedures. Any potential damages for the I.R.S.’s failure to make a timely release of the lien may be diminished by Information Resources’ pursuit of the wrong procedures.
We appreciate the importance of the exhaustion requirement and its purpose of preserving the integrity of the administrative process, and we will excuse the exhaustion requirement only in extraordinary circumstances. This case, however, presents just such a circumstance. Requiring Information Resources to exhaust the administrative procedures would be a useless formality, and the law does not require a party to pursue a useless formality.
A decision to the contrary would allocate to the I.R.S. a power which would be subject to abuse. If we required Information Resources to obtain a release of a lien which has previously been released, this would allow the I.R.S. to release liens in an unorthodox manner, and if a party later brought suit, the I.R.S. could then require them to expend time and money having the lien released through the proper administrative procedures. We do not insinuate that this is what the I.R.S. did. But it is at least passing strange that after the I.R.S. is on record as apologizing for its error in filing the liens it continues to demand a useless procedure to remove them. We do suggest that forcing Information Resources to exhaust this useless procedure, which has no available remedy, would provide the I.R.S. with the potential for abuse.
The purpose of administrative procedures is to allow an agency to grant relief. The administrative procedures in question enable a party to have a lien released. Because the I.R.S. has already granted the relief provided by the administrative procedures, they now provide no remedy at all. The district court, therefore, erred in granting the summary judgment as to Section 7432 for failure to exhaust administrative remedies.
III. 26 U.S.C. § 7433
Information Resource also brought suit pursuant to 26 U.S.C. § 7433. Section 7433, like Section 7432, requires that all administrative procedures be exhausted prior to filing a lawsuit. The government again alleges that the administrative remedies have not been exhausted because the lien in question was not properly released. Information Resources, however, is suing the government under Section 7433, not because of delay in the removal of the lien, but, instead, because Brooks, in filing the lien, recklessly or intentionally disregarded 26 U.S.C. §§ 6321 and 6331. Information Resources claims that it did not refuse to pay its taxes after a demand by the I.R.S. Instead, it allegedly made arrangements with Brooks to pay the full amount. Thus, by filing a lien on the company’s property after the taxes had already been paid, Brooks, according to Information Resources, recklessly or intentionally violated the Code.
The government contends that Information Resources’ complaint alleges damages only due to failure to release the lien, not damages due to the filing of the lien. The government asserts that this means Sections 6321 and 6331 are not at issue in this case. While it is true that the company’s complaint did not specifically mention either Section 6321 or Section 6331, the complaint did set out facts sufficient to give the government fair notice of a claim under Section 7433 based on alleged violations of Sections 6321 and 6331.
Asserting facts sufficient to give the government notice is all that is required in the federal system. O’Quinn v. Manuel, 773 F.2d 605, 608 (5th Cir.1985) (“[W]e remain faithful to the liberal notice-pleading requirement of the Federal rules and note that often the litigants may plead generally and discover the precise factual basis for their claim through equally liberal pretrial discovery procedures”); Jamieson By and Through Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir.1985) (“The policy of the federal rules is to permit liberal pleading and amendment, thus facilitating adjudication on the merits while avoiding an excessive formalism”); Rathborne v. Rathborne, 683 F.2d 914, 917 n. 8 (5th Cir.1982) (“[A] complaint need not correctly categorize the legal theories giving rise to the claims; it must merely allege facts upon which relief can be granted”). Information Resources’ complaint is sufficient to include a claim under Section 7433 based on violations of 26 U.S.C. §§ 6321 and 6331 for improper filing of a lien.
The I.R.S. argues that even if the complaint includes violations of Sections 6321 and 6331, the I.R.S. did not violate either of those sections. Whether those sections were violated, as well as whether Information Resources reached an agreement with Brooks as to payment of its obligations, are questions of fact to be decided by a trial court.
We now turn to whether Information Resources has properly exhausted its administrative remedies under Section 7433. Because Information Resources is suing for damages caused by the erroneous filing of a lien, as opposed to damages caused by non-removal of the lien, it is unnecessary for the lien to be removed through administrative procedures prior to the filing of this suit. The damages claimed were caused by filing the lien, not by maintaining it. Thus, 26 C.F.R. 401.-6325.1 is not a jurisdictional prerequisite to this cause of action under 26 U.S.C. § 7433. Furthermore, we can find no administrative remedies which Information Resources needed to exhaust prior to filing of this suit. The IRS was not being asked to take any remedial action, the core of any administrative process. A private cause of action for damages under 26 U.S.C. § 7433 was Information Resources’ only remedy for intentional or reckless filing of an erroneous lien. Therefore, the district court does have jurisdiction to hear this claim.
IV. CONCLUSION
Although exhaustion of administrative remedies is statutorily mandated, the present case beyond cavil can call forth no administrative remedy at all. Thus, the district court erred in granting the summary judgment as to claims under 26 U.S.C. § 7432 and 26 U.S.C. § 7433. We reverse the summary judgment granted by the district court.
REVERSED.
. "A judgment for damages shall not be awarded under subsection (b) unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service." 26 U.S.C. § 7432(d)(1) (1988).
. It should be noted that subsequent to the events at issue in this case, administrative remedies with respect to the erroneous filing of notice of a federal tax lien were promulgated and are contained in 26 C.F.R. § 301.6326-1T (1989). Information Resources claims that because new remedies were promulgated, the old remedy — i.e. 26 C.F.R. § 401.6325-1 — was necessarily inadequate. This argument is without merit. The administrative remedies promulgated at the time the liens in question were filed are the remedies which Information Resources must exhaust.
."(a) If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. Except as provided in section 7432, such civil action shall be the exclusive remedy for recovering damages resulting from such action.
(b) In any action brought under subsection (a), upon a finding of liability on the part of the defendant, the defendant shall be liable to the plaintiff in an amount equal to the lesser of $100,000 or the sum of—
(1) actual, direct economic damages sustained by the plaintiff as a proximate result of the reckless or intentional actions of the officer or employee, and
(2) the costs of the action.” 26 U.S.C. § 7433 (1988).
. “A judgment for damages shall not be awarded under subsection (b) unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service.” 26 U.S.C. § 7433(d)(1) (1988).
. 26 U.S.C. § 6321 (1986) provides: "If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount ... shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.” Under Section 6331, if the taxpayer’s neglect or refusal to pay the tax persists for ten days after notice and demand, the IRS may levy upon his property in order to collect the tax. 26 U.S.C. § 6331 (1988).
. In the section of the Plaintiff s Complaint entitled “I.R.C. Section 7433 Liability,” Taxpayer makes the following assertions:
4.02. In connection with the collection of Plaintiff, IRI’s 941 Tax liability for the tax period ending 12/31/88, Defendant caused a Federal Tax Lien to be filed as hereinbefore alleged and more fully set forth.
4.03. Defendant caused such Federal Tax Lien to be filed on April 25, 1988.
4.04. Defendant was not authorized to file such a Federal Tax Lien for the reason that Plaintiff had already satisfied the full amount of the liability at a time prior to the filing of the Federal Tax Lien.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_othcrim
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Plaintiff-Appellee, v. Robert Wyman BOYD, Defendant-Appellant.
No. 29793.
United States Court of Appeals, Fifth Circuit.
Aug. 3, 1971.
Floyd M. Buford, Macon, Ga., for defendant-appellant.
William J. Schloth, U. S. Atty., D. L. Rampey, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
Before RIVES, GOLDBERG and MORGAN, Circuit Judges.
RIVES, Circuit Judge:
Robert Wyman Boyd was convicted of receiving, concealing and retaining two stolen mechanic’s tool boxes containing tools, all the property of the United States Government and having a value in excess of $100, in violation of 18 U.S.C. § 641. Boyd was named in the second count of a two-count indictment. Count one charged Bobby Gene Goble, George Lewis Winburn and Charley Wright, Jr., with the theft of the tool boxes and tools. Boyd was tried alone, and the co-indictees testified against him.
Boyd’s principal defense was that he was not aware that the property, which he concedes he received, was stolen. He also challenged the Government’s proof that the property in question was in fact Government property and that it had a value in excess of $100. While we find that the evidence was sufficient on all elements of the offense, the conviction must be reversed and remanded because the jury, in determining whether Boyd received stolen property and whether it had a value in excess of one hundred dollars, was allowed to consider property other than that included in the indictment. This was an improper use of “other crime” evidence.
I. The Government’s Case.
There was evidence from which the jury could have found that Boyd received up to seven tool boxes containing tools, plus other individual items — a pneumatic or impact wrench, several micrometers, a pressure gauge, sun glasses, wrist watch, and sleeping bag — from an Air Force sergeant, Bobby Gene Goble. Goble testified as to his part in procuring the tool boxes and selling them to Boyd. The other two indictees, Wright and Winburn, corroborated Goble’s testimony that they stole the items for Goble from the tool issue center at the Base.
In the course of his employment as a sound equipment technician, Boyd had met Goble, who was moonlighting as a projectionist at a drive-in theatre. On one of his repair calls Boyd noticed some tools laying around the projection booth. Goble informed him that the tools were from the Air Base, and that he had others in a tool box at his home. The men discussed the possible purchase of tools from Goble by Boyd or anyone he might know, but there was no inquiry or mention of whether Goble was offering to sell stolen property. Boyd eventually purchased the tool box containing tools, which Goble had at his home, and got from Goble other boxes with tools which Boyd in turn sold to acquaintances.
Boyd admitted receiving at least five tool boxes, and conceded that it was possible he had handled seven in all. He purchased the first for himself, sold the second to a friend, and the rest, whether three or five in number, were passed on to another friend who sold them to mechanics at that friend’s place of employment. There is no evidence that Boyd received any profit from these transactions other than the retention of the first tool box for his own use. The Government’s witnesses testified that all money Boyd received from the other sales was turned over to Goble.
Boyd claimed he was not aware that the tool boxes were stolen, but thought Goble was purchasing them legitimately as surplus property. However, there was sufficient evidence from which the jury could have found guilty knowledge. Goble testified that when he delivered the second and third boxes to Boyd, they were still in their original cardboard crates which bore Government markings. Goble tore up the crates, put the scrap material in Boyd’s car, and told Boyd he did not want anyone to see the crates. Also, Goble testified that on the day Boyd went to Goble’s home (located on the Air Base) to purchase the first tool box, Goble showed him the flight equipment issue center where he worked. When Goble pointed out the tool issue center located in the same building, Boyd asked him if he could get a pneumatic wrench. Goble said he procured the wrench from the tool issue center in Boyd’s presence, and turned it over to him when the two men got outside the building. Boyd did not pay Goble for this wrench or the other individual items mentioned above.
Goble never specifically informed Boyd that the property involved was stolen from the Air Base. However, Boyd testified that when he asked Goble if the tools were “hot,” he got an equivocal answer. “I would ask him where he was getting them from. And he would say, ‘From the getting place,’ or some other fancy answer like that.”
There was ample evidence from which the jury could have concluded beyond a reasonable doubt that Boyd was aware that the tools and tool boxes were stolen property. Government ownership was sufficiently established. The evidence showed that property was taken from the tool issue center and that this was the property Boyd received.
II. Other Crime Evidence.
There are two types of other crime evidence involved. The first concerns the individual items Boyd received from Goble, independent of any tool box transaction. Testimony concerning these items was timely objected to by the defendant as constituting evidence of other criminal actions. The objections were overruled and the evidence was admitted on the theory that it was relevant on the issue of intent.
The second type of other crime evidence was the testimony concerning the receipt of tool boxes other than those boxes specified in the indictment. No objection was made to this evidence. However some discussion is appropriate for purposes of re-trial.
The prohibition of the use of other crime evidence is stated in Rule 55 of the Uniform Rules of Evidence (drafted by the National Conference of Commissioners on Uniform State Laws):
“[E] vidence that a person committed a crime or civil wrong on a specified occasion is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but * * * such evidence is admissible when relevant to prove some other material fact including absence of mistake or accident, motive, opportunity, intent, preparation, plan, knowledge or identity.”
The rationale supporting this rule is that while evidence of other crimes is often relevant, such evidence may unduly prejudice the accused in the eyes of the jury, and there may be a tendency to vote for conviction because the accused is a “bad man.” The Fifth Circuit has often recognized exceptions to the rule against admissibility of other crime evidence.
The list of exceptions to the other crime evidence rule is extensive, and in most situations evidence of other crimes — if closely connected in time and nature to the offense charged — can fit within at least one of the exceptions. But the mere categorizing of the evidence should not overshadow the rationale of the rule. It has been stated that the admissibility of such evidence is not to be determined entirely by its relevancy and its categorization, but that there must also be a balancing of the need for the evidence against the possible prejudice to the accused. Bearing in mind the other crime evidence rule and its exceptions, we turn to a consideration of the evidence in this particular ease.
A. Evidence of Independent Items.
Evidence of the individual items received by Boyd was properly admitted to establish the element of intent. The fact that he received a number of items of value for no remuneration, and the circumstances of the acquisition of the pneumatic wrench, were strong evidence indicating Boyd was aware that he was dealing with stolen property.
Whether this evidence was properly limited to the element of intent will be discussed later.
B. Evidence of the Tool Boxes Not Specified in the Indictment.
The admissibility of other crime evidence is largely governed by the discretion of the trial court, but the discretion is not without limit.
Once the Government had introduced the testimony concerning Boyd’s receipt of the two tool boxes, including the testimony about the crates bearing Government markings and the destruction of these crates, and had introduced evidence of Boyd’s receipt of individual items for which he paid nothing, there was sufficient evidence upon which the jury could base a finding of criminal intent.
The evidence of the other tool boxes was merely cumulative. It was provided by the same witnesses who testified concerning the first boxes. The jury’s assessment of the credibility of these witnesses would not likely be affected by the additional testimony. If the jury believed the initial testimony, the relating of the subsequent testimony added little, if anything, to a revelation of Boyd’s state of mind.
In United States v. Byrd, 2 Cir. 1965, 352 F.2d 570, the Second Circuit indicated, in dictum, that the testimony of a witness concerning a transaction similar to the ones in the indictment, was cumulative, unnecessary, and prejudicial since he was the witness who had already testified about events covered by the indictment. That Court felt that the additional testimony could have added little to the issue of intent and was prejudicial, as evidence of another criminal act, even though the act was not in itself infamous (the prosecution was under 26 U.S.C. § 7214(a) (2), receipt by an internal revenue auditor of a fee not prescribed by law).
In a case where the evidence indicates that if the accused engaged in felonious activity, he did so at considerable risk but with little ascertainable profit to himself, great care should be exercised to insure that the accused is not unfairly prejudiced. United States v. Matot, 2 Cir. 1944, 146 F.2d 197, 198.
III. Jury Instructions in Evidence.
The District Court’s charge to the jury on the elements of the crime contained the following language:
“Now, let’s see what are the essential ingredients of this charged crime which the Government must prove. First of all, the Government must prove that the property involved here, including some tool boxes and including some tools — and you have heard the evidence about it — whether there was five of them or four of them or three of them or two of them or one of them. However many were the number, the Government must prove that some of the property alleged, not all of it but some considerable amount of it, was stolen and that it belonged to the Government before it was stolen. The Government doesn’t have to prove he stole, that two of them were stolen or that three, four or five were stolen, but that one or more tool boxes with a substantial amount of tools belonged to the Government and that it was stolen from the Government. The Government doesn’t have to prove that the defendant stole it. The Government doesn’t charge that the defendant stole it. But the Government must prove that some such property of some considerable value belonged to the Government and was stolen by somebody, and that after it was stolen this defendant had knowledge that it was stolen.” [T. 272, 273.]
When charging on the issue of value the District Court said:
“Of course, you have heard all of the evidence as to the value and you have seen some of the property. You have seen G-l and G-2. The Government contends that other property was also received, retained and concealed by the defendant. You have heard the contentions and you know what they are on both sides, and you have heard the evidence with respect to the value.” [T. 275.]
The charge as to value permitted the jury to consider all of the property Boyd allegedly received, not merely Exhibits G-l and G-2, in determining that the value of the property exceeded one hundred dollars. No limiting instruction is to be found elsewhere in the charge. This alone would require that the judgment of conviction be modified, reducing the possible maximum sentence and fine.
While mindful that the jury instructions must be considered as a whole, we hold that the first paragraph quoted above constituted error. True, this portion of the charge was intended to inform the jury of the difference between larceny and the crime charged— reception, retention and concealment. Also, since Goble identified some of the tools contained in G-l as his legitimate personal property, the Court was properly telling the jury that this factor would not mean that the Government had failed to prove its case, i. e., all of the evidence exhibited did not have to be stolen. But the fact remains that the jury was never instructed, either at the time the evidence and testimony was introduced or during the charge, that the evidence of other crimes was to be limited only to the element of intent and could not be used as the basis for a guilty verdict. The part of the charge quoted above indicates an absence of any such limitation.
We need not decide whether the failure to so limit the use of other crime evidence is reversible error in all cases, or whether in some instances it may be termed harmless error, for it is certain that Boyd’s rights were substantially affected in this case.
We have found no precedent in the federal courts for permitting the Government to formally accuse a person of one act and then, as proof that he is guilty, introduce evidence of similar criminal acts, closely related in time and nature. Evidence of such acts has been sanctioned in this Circuit only when its use is strictly limited to one of the exceptions to the other crime evidence rule.
Boyd was charged with only one crime, and once intent to commit the crime charged was sufficiently established, the Government had no need to prove the commission of other crimes. In the present case the only possible legitimate purpose of introducing other crime evidence was to prove intent, and the evidence was not limited to that purpose.
Specific prejudice is shown by the proof that Boyd received a pneumatic wrench, dial indicator and micrometer from Goble for no payment. The inventory of G-l, introduced as G-3, lists three such items with a combined value of over one hundred dollars. We cannot say that the jury’s verdict was not based on these three items, since the evidence that they were improperly received by Boyd seems stronger than the evidence as to any other property.
The unrestricted use of the other crime evidence did more than establish Boyd’s guilty knowledge and intent — it tended to demonstrate that Boyd was guilty of more than he stood accused of in the indictment and it was permitted to be used as basis for conviction. This is, of course, the use that the other crime evidence rule is intended to prohibit. That this type of procedure should not be permitted was stated well by Judge Hutcheson — the case “was presented and tried too much on the theory, ‘Give a dog an ill name and hang him.’ ” Olinger v. Commissioner of Internal Revenue, 5 Cir. 1956, 234 F.2d 823, 824. For improper use of other crime evidence, the judgment of conviction must be reversed.
IV. Issues Which May Arise at Retrial.
Since there may be a retrial, some discussion of other points raised by the appellant is warranted..
A. Evidence as to Value.
Boyd contends that the verdict finding the value of the stolen property to be in excess of one hundred dollars was unwarranted. But his argument is merely that the jury disbelieved his witnesses who testified to lower values. Of course, questions of credibility are for the jury.
The tool boxes and the tools they contained, Exhibits G-l and G-2, were inventoried by David Lee Cunningham, an inventory management specialist in charge of the tool issue center from which the thefts were allegedly made. Cunningham testified that he ascertained the value of each item by getting its stock number from a federal stock list and then looking up the stock number in the federal catalog to get the price. By this method he placed the value of G-l and G-2 at $324.38 and $148.92, respectively.
Though not grounds for reversal, it should be pointed out that this testimony was not solidly based.
Cunningham identified the source of the federal catalog, but did not know how the price was determined. His job did not involve any buying or selling of tools, and there was no other evidence that he regularly used the catalog for its price list aspect.
Further, there is nothing in the record to indicate when the catalog was published or when its price list was compiled. See United States v. Horning, 4 Cir. 1969, 409 F.2d 424, 426, holding analogous testimony inadmissible as hearsay.
B. Knowledge That the Stolen Property Belonged to the United States as an Element of the Crime.
The defense requested that the jury be instructed that Boyd could not be eon-victed unless it found he was aware the property he received belonged to the United States. The requested instruction was refused, and the refusal is asserted as error.
Appellant’s interpretation of the statute is apparently the rule in the Tenth Circuit. Nonetheless, we do not think that 18 U.S.C. § 641 requires that the accused be aware that the stolen property belongs to the United States or to one of its departments or agencies.
This exact issue has apparently not been decided by the Fifth Circuit, and, while we speak only for purposes of possible retrial, we think the Ninth Circuit has the better of the argument. That Court decided in United States v. Howey, 9 Cir. 1970, 427 F.2d 1017, that the fact of United States ownership must be established as an element of the crime, but that the accused’s knowledge of this element is irrelevant in an 18 U.S.C. § 641 prosecution. It is sufficient that he know that the property is stolen.
C. Denial of Request for Bill of Particulars.
Boyd asserts that the District Court erred in refusing his request that the Government furnish him with information concerning the date the tools were purchased by the Government, from whom they were purchased, and the cost of the tools. In light of the evidence introduced at the trial below, the issue as to the cost of the tools may not arise again.
We do not think there was error in refusing the other information. One theory of the defense was that the tools in question may have been purchased years before, and that the purchase price might have been far less than the current price. But a lower purchase price would not preclude a conviction based on the current value of the tools exceeding one hundred dollars. The term “value” is defined in 18 U.S.C. § 641 as meaning “face, par, or market value, or cost price, either wholesale or retail, whichever is greater.”
D. Jurors Employed at Air Base.
Boyd contends that the District Court committed error in refusing to strike for cause four persons from the venire who were listed as employees of the Air Force Base from which the thefts were made. A timely motion to strike was made and overruled. Boyd concedes that governmental employ does not automatically disqualify a juror, and that such jurors may be removed for cause only on the basis of actual bias. He argues, however, that employment at this particular base is sufficient to establish actual bias.
Factors such as the size of the Base, any connection between the jurors and base security or the department from which the property was stolen, or their removability from employ would have a bearing on actual bias. But no offer of proof was made on such matters, nor does the record reflect any questions propounded to the jurors on these matters, or that the defense was prevented from having such questions put to the jurors.
If it were established that the employees concerned had a closer connection to the circumstances of this prosecution than mere employment at the military base, a case of implied bias might be presented. But, on this record, we are unable to say that the District Court abused its discretion in refusing to strike the Base employees for cause.
E. Other Objections to Jury Instructions.
Appellant contends that the jurors were instructed to conform to an impossible standard when the Court told them to lay aside their “human emotions.” We think this contention has no merit. This part of the charge was merely the standard instruction that the jurors should not be swayed by bias or prejudice. See Daniel v. United States, 5 Cir. 1959, 268 F.2d 849.
Appellant also objects to a paragraph of the charge in which the District Court instructed the jury that a person cannot close his eyes to what is obvious to him. Appellant feels that this charge was argumentative, and that the Court was telling the jury that the defendant had closed his eyes to obvious facts.
We do not agree. The paragraph objected to was a part of the instruction concerning the use of circumstantial evidence to establish intent. The jury was told that intent could be seen in a person’s actions and that one cannot avoid becoming aware of circumstances by consciously looking in the opposite direction. The Court did not interweave into this charge the Government’s factual allegations as to intent, and it cannot be said that the Court was suggesting to the jury that Boyd could not have been unaware that he was dealing with stolen property. Cf. Boatright v. United States, 8 Cir. 1939, 105 F.2d 737, 739. There was no error as to these aspects of the charge to the jury.
Reversed and remanded.
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
. “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
“Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
“Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.
“The word ‘value’ means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.”
. “THE GRAND JURY CHARGES:
“COUNT TWO
“That on or about the 30th day of April, 1969, in the Macon Division of the Middle District of Georgia and within the jurisdiction of this court, ROBERT WYMAN BOYD did receive, conceal and retain two (2) stolen mechanic’s tool boxes containing hand and power tools and instruments of a value in excess of $100.00, of the goods and jn'operty of the United States, with intent to convert the same to his use and gain, and he then knew the mechanic’s tool boxes to have been stolen; all in violation of 18 U.S.C. 641.”
. See Mora v. United States, 5 Cir. 1951, 190 F.2d 749, a case involving the theft of shirts belonging to the Government. The evidence there that a crime had been committed was similar to that in the instant case, and it was held that recovery of any of the stolen property was not necessary to prove the corpus delicti.
. McCormick, Law of Evidence, 1954, § 157, p. 327 n. 2; Matthews v. United States, 5 Cir. 1969, 407 F.2d 1371, 1381 (listing exceptions); Swann v. United States, 4 Cir. 1952, 195 F.2d 689 (discussion of different form of rule, Rule 311, American Law Institute’s Model Code of Evidence).
. Weiss v. United States, 5 Cir. 1941, 122 F.2d 675, 687; McCormick, supra, § 155, p. 324.
. 2 Wright, Federal Practice & Procedure, 1969, Criminal, § 409, pp. 114, 115; Gordon v. United States, 1967, 127 U.S.App.D.C. 343, 383 F.2d 936, 940.
. See United States v. Restrepo, 5 Cir. 1969, 417 F.2d 927; United States v. Chapman, 5 Cir. 1969, 413 F.2d 440, 444; Matthews v. United States, 5 Cir. 1969, 407 F.2d 1371, 1381; Sutton v. United States, 5 Cir. 1968, 391 F.2d 592; Gilstrap v. United States, 5 Cir. 1968, 389 F.2d 6, 9; Pardo v. United States, 5 Cir. 1966, 369 F.2d 922, 924; Condrey v. United States, 5 Cir. 1965, 351 F.2d 456; Roe v. United States, 5 Cir. 1963, 316 F.2d 617; Ahrens v. United States, 5 Cir. 1959, 265 F.2d 514; Ehrlich v. United States, 5 Cir. 1956, 238 F.2d 481, 484; Weiss v. United States, 5 Cir. 1941, 122 F.2d 675, 687.
. See, United States v. Byrd, 2 Cir. 1965, 352 F.2d 570, 575; United States v. Phillips, 7 Cir. 1967, 375 F.2d 75, 81-85 (dissenting opinion); Gordon v. United States, 1967, 127 U.S.App.D.C. 343, 383 F.2d 936; Brown v. United States, 1966, 125 U.S.App.D.C. 220, 370 F.2d 242; Luck v. United States, 1965, 121 U.S.App.D.C. 151, 348 F.2d 763; McCormick, supra, § 157, pp. 332, 333.
. The Government’s proof was that Boyd requested the wrench from Goble, that Goble procured it from the tool issue center in Boyd’s presence, and that Boyd was not required to pay anything for the wrench.
. When other crime evidence is admitted for the purpose of proving intent, the jury must be instructed that the evidence is to be so limited. Ahrens v. United States, 5 Cir. 1959, 265 F.2d 514.
. See, McCormick, supra, § 157, pp. 332, 333, for the suggestion that the district court’s discretionary powers do not permit the introduction of prejudicial evidence if it is not needed. McCormick suggests that the discretionary power runs in the opposite direction, i. e., to exclude relevant evidence where its probative value is outweighed by the possible prejudicial effect on the accused.
. By necessity this included evidence that Boyd received at least three tool boxes. The Government produced two tool boxes at the trial. The chain of evidence was adequate to establish that one of the tool boxes (Exhibit G-l) was the one which Boyd retained for bis own use, and the other (Exhibit G-2) was the one Boyd personally sold to a friend. Since G-2 was delivered to Boyd at the same time as a third box, it must be conceded for the purposes of this discussion that it was proper to admit testimony concerning the three tool boxes.
. The Government’s evidence showed that Boyd received no profit for handling the tool boxes which were sold to others. While the Goveniment’s evidence indicated that he did purchase the first box for himself at a price far below what the Government contends is its actual value, and received other property gratis, there is no evidence that the benefit to Boyd was conditioned on his assisting Goble in future sales.
. See, Theriault v. United States, 5 Cir. 1970, 434 F.2d 212; Robinson v. United States, 8 Cir. 1964, 333 F.2d 323; United States v. Wilson, 4 Cir. 1960, 284 F.2d 407.
. Harris v. United States, 1 Cir. 1966, 367 F.2d 633; Beck v. United States, 5 Cir. 1963, 317 F.2d 865.
. Fed.R.Crim.P. 52(a).
. United States v. Restrepo, 5 Cir. 1969, 417 F.2d 927; Sutton v. United States, 5 Cir. 1968, 391 F.2d 592; Hurst v. United States, 5 Cir. 1967, 370 F.2d 161; Condrey v. United States, 5 Cir. 1965, 351 F.2d 456; Ahrens v. United States, 5 Cir. 1959, 265 F.2d 514; Weiss v. United States, 5 Cir. 1941, 120 F.2d 472, reh. denied 122 F.2d 675, cert. denied 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550.
. The Government sought to show that such instruments contained in the tool box labeled <3 — 1, were the ones Boyd received on independent occasions. It is consistent with the Government’s theory, both at trial and on appeal, that these items were not in the tool box when Boyd received it. It is clear that the indictment did not charge Boyd with receiving anything other than two tool boxes and the tools they contained at the time of receipt. (See indictment, quoted in footnote 2).
. The wrench alone, which the Government’s proof showed Boyd requested while at the tool issue center, is listed as having a value of $81.00.
. Defense counsel strenuously attacks Cunningham’s testimony, but there was no objection to his qualifications nor suggestion that his use of sources constituted improper reliance on hearsay. The questioning of Cunningham went only to the weight of. his testimony. Further, even if Cunningham’s testimony had been stricken, there was sufficient evidence for the jury to find that the stolen property had a thieves’ market value in excess of one hundred dollars. See Montgomery v. United States, 8 Cir. 1968, 403 F.2d 605.
. Cunningham testified that the catalog price represented the cost to the Government, but there is nothing to demonstrate his qualifications to make that statement. Similarly, his statement that he was unaware of any difference between the cata- • log price and the retail price is entitled to no weight.
. Findley v. United States, 10 Cir. 1966, 362 F.2d 921; United States v. Baltrunas, 10 Cir. 1969, 416 F.2d 401.
. This Circuit has sustained convictions where the accused was unaware of the factor which made his action a federal rather than a state offense. See United States v. Licausi, 5 Cir. 1969, 413 F.2d 1118; Clark v. United States, 5 Cir. 1954, 213 F.2d 63.
. The defense was allowed to inspect tlie evidence, and most of the tools apparently were imprinted with the manufacturers’ names. The evidence shows that the tools were commonly sold in the area, and their retail or wholesale value could have been ascertained by the defense, though, admittedly, this process would be tedious and time-consuming.
. Frazier v. United States, 1948, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187; Dennis v. United States, 1950, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734.
. In Frazier v. United States, 1948, 335 U.S. 497, 512, 69 S.Ct. 201, 93 L.Ed. 187, it was held that persons employed by the United States Treasury Department were competent to sit as jurors in a criminal prosecution for violating narcotics laws, so long as their employment was not connected with the Narcotics Bureau within the Department. In United States v. Wood, 1936, 299 U.S. 123, 141, 57 S.Ct. 177, 183, 81 L.Ed. 78, it was held that the “mere fact of a governmental employment, unrelated to the particular issues or circumstances of a criminal prosecution” did not disqualify the employee as a juror.
. The Government has filed a supplemental record on this appeal consisting of the original jury list from the Clerk’s file. This document purportedly shows that the four jurors objected to were peremptorily stricken, and it is therefore contended that Boyd was not harmed by the refusal to strike them for cause. But on its face the document indicates that these peremptory strikes were made by the defense, and that the defense used all of its challenges authorized by Fed.R.Crim.P. 24 (b). Under these circumstances, if the refusal to strike for cause had been erroneous, this action by the defense would not liave cured the error. Franeone, et al. v. Southern Pac. Co., 5 Cir. 1944, 145 F. 2d 732. The effect of this action would have been the reduction in the number of peremptory challenges allowed the defense, an impairment of a substantial right which would require reversal.
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES v. CERTAIN LANDS IN CITY OF NEWARK, N. J., etc., et al.
No. 9932.
United States Court of Appeals Third Circuit.
Argued Oct. 13, 1949.
Decided June 15, 1950.
Arthur E. Dienst, Newark, N. J., for appellant.
G. Dixon Speakman, Newark, N. J. (Toner, Speakman & Crowley, Newark, N. J., on the brief), for appellees.
Before BIGGS, Chief Judge, KALOD-NER, Circuit Judge and FEE, District Judge.
KALODNER, Circuit Judge.
Dissatisfaction with the amount of compensation awarded in the court below as “just” for the taking of a leasehold by the United States is the source of this appeal. The only issue raised is whether the learned trial judge applied the evidence submitted to him in such a way as to have commited reversible error.
On February 13, 1946, the United States, exercising its sovereignty and pursuant to 40 U.S.C.A. § 258a, upon a Declaration of Taking and deposit of $650,000, condemned the title in fee simple to the office building known as the Globe Indemnity Building at 20 Washington Place, Newark, New Jersey. Since then, the “just compensation” for the building has been determined and settled and the court below has been concerned with the distribution of the fund to various parties in interest. One of such parties is the appellant, Martin Tittman, who at the time of the condemnation was a tenant in possession operating a luncheonette in an area consisting of approximately 507 square feet at the westerly end of the Halsey Street corridor on the first floor of the Globe Indemnity Building. Tittman’s lease, which was originally executed on November 29, 1944, and which he acquired by assignment from the original lessee in October, 1945, was due to expire on November 30, 1947, without right of renewal. The United States required Tittman to vacate, and he in fact vacated the premises on March 29, 1946. Quite clearly, the remaining nineteen months of the leasehold were appropriated by the United States, and it is for this remainder that Tittman seeks “just compensation”. United States v. Westinghouse Electric & Manufacturing Co., 1950, 70 S.Ct. 644.
The total rental provided for in the lease was $85.00 per month. Upon the evidence submitted, the trial court concluded that the market value of the remaining term was $1926.60. This sum, less the rent reserved, $1615, i. e., $311.60, constitutes the amount awarded to Tittman and which he now contests as inadequate.
Tittman acquired the lease involved from his assignor as part of a transaction, in August, 1945, whereby he purchased from his assignor the luncheonette on the premises. For the price of $5500 Tittman received the equipment, stock, good will and business, a limited guarantee of minimum business, a promise on the part of the seller not to engage in a similar business within 700 yards of the premises for three years, and a promise on the part of the seller to aid Tittman in obtaining either a new lease or the consent of the owner to the assignment of the existing lease. At the time of the purchase, the luncheonette was grossing about $500 per week, but soon after Tittman took over, the gross sales increased to $625 per week, upon which Tittman realized a net return of $100 per week.
The law is clear and settled that since the entire balance of Tittman’s leasehold interest was taken, “The measure of damages is the difference between the value of the use and occupancy of the leasehold for the remainder of the * * term * * * less the agreed rent which the tenant would pay for such use and occupancy.” United States v. Petty Motor Co., 1946, 327 U.S. 372, 381, 66 S.Ct. 596, 601, 90 L.Ed. 729. And despite Tittman’s testimony that he would have earned $8400 in the remaining months of tenancy due him under the lease, “evidence of loss of profits, damage to good will, the expense of relocation and other such consequential losses are refused in federal condemnation proceedings.” United States v. Petty Motor Co., supra, 327 U.S. at pages 377-378, 66 S.Ct. at page 599.
Because leases like that here involved are generally included in the sale of businesses operated on the premises, as indeed occurred in this instance, the difficulty of separating the leasehold value from the business value was especially hard to overcome. At least one of the three witnesses who testified on Tittman’s behalf was unable to express a value of the lease apart from the business; he did say that the short remainder would decrease the value of the business by 50%, and consequently estimated the value of the business at $6000. Another of his experts attempted to fix a value for the lease based on a percentage of the gross receipts of the business, estimating that value at approximately $3000. The third expert estimated the value of the lease at $4000. But the basis for this estimate was under any account confused, being premised primarily on a comparison with sales of business which included leases. Moreover, this witness expressed the view that good will was part of the lease. On the other hand, the expert produced by the owner testified that rentals of premises like those covered by the lease in this case were, in the vicinity, mostly determined on a - flat rental, and it was his opinion that the instant lease had no value in excess of the rent reserved.
The controversy sub judice is in this Court one to which Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A., applies. Rule 81 (a) (7) so provides: United States v. Lambert, 2 Cir., 1944, 146 F.2d 469, 471. We should not, therefore, reverse the factual determination of value made by the District Judge unless it is clearly erroneous: unless on the entire record we are definitely and firmly convinced that a mistake has been committed. United States v. U. S. Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746; Cf. United States v. Yellow Cab Co., 1949, 338 U.S. 338, 70 S.Ct. 177; Graver Tank & Mfg. Co. v. Linde Air Products Co., 1950, 70 S.Ct. 854. That conviction we do not have. The District Judge did, not find Tittman’s experts, whom he saw and heard, convincing, and certainly his judgment' in this respect should not be lightly set aside. The evidence clearly indicates that the value of the lease was substantially affected by its short unexpired term. There was evidence that the percentage method which Tittman advocated involves a breakdown of the gross receipts into categories of merchandise sold, and this was not attempted. Likewise, the evidence certainly supports the conclusion that a flat rental rate is a method of evaluation of the leased premises properly employable in this instance. Finally, it is difficult to see that clear error exists, for the evidence of value was highly conflicting and the compensation awarded is within the range of the evidence. Porrata v. United States, 1 Cir., 1947, 158 F.2d 788, 791. Although Tittman relies to some extent upon the fact that the court below stated the value of the lease in terms of dollars per square foot, we deem this without significance since it is plainly a medium of expression chosen to frame the ultimate conclusion.
For the reasons stated, the judgment of the District Court will be affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_respond2_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
SUPERIOR OIL COMPANY et al. v. Stewart L. UDALL, Secretary of the Interior, Appellant, Union Oil Company of California. SUPERIOR OIL COMPANY et al. v. Stewart L. UDALL, Secretary of the Interior, Union Oil Company of California, Appellant.
Nos. 22192, 22194.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 8, 1968.
Decided Jan. 6, 1969.
Mr. Robert M. Perry, Atty., Department of Justice, with whom Messrs. Edmund B. Clark and Thomas L. McKevitt, Attys., Department of Justice, were on the brief, for appellant in No. 22,192.
Mr. Roger H. Doyle with whom Mr. E. W. Cole was on the brief, for appellant in No. 22,194.
Mr. Abe Krash, Washington, D. C., with whom Messrs. Thurman Arnold and Daniel A. Rezneck, Washington, D.C., were on the brief, for appellees, Superi- or Oil Company, et al.
Before Burger, Tamm and Robinson, Circuit Judges.
BURGER, Circuit Judge:
These appeals challenge a judgment of the District Court which permanently enjoined the Secretary of the Interior from issuing an oil and gas lease on certain public lands to Union Oil Company of California and directed that such lease be issued to Superior Oil Company, Ashland Oil and Refining Company, Canadian Superior Oil Company (U.S.) Ltd., General Crude Oil Company, Highland Oil Company, Kerr-McGee Corporation, Texas Eastern Transmission Corporation and Transocean Oil, Inc., collectively described hereafter as Superior.
Sealed bids were duly called for by the Secretary of the Interior for the sale of certain oil leases and when bids were opened it developed that the document purporting to be Union’s sealed bid of $13,600,000 was not signed but that the next highest offer made by Superior, was $11,628,691.20 and was signed and otherwise in full compliance with the statute, the regulations and the Notice of Sale. At this point the officer opening the bids announced: “[T]he next bid, gentlemen, I regret to announce * * * is not acceptable * * * it has not been signed.” The bidding officer nevertheless retained the checks submitted by both Union and Superior and subsequently the Secretary declared that Union was the highest qualified responsible bidder. After the District Court entered a temporary restraining order which prevented the Secretary from issuing a lease to Union, the Secretary tendered return of Superior’s funds which he had deposited in a “suspense account.” Superior refused the tender and demanded that a lease be issued to it as the highest bidder.
(D
The detailed facts essential to our consideration can best be reflected in a summary of the Findings of Fact of District Judge Sirica, which are as follows:
(1) That the Department of the Interior duly published a Notice of Sale of leases for the tracts in question pursuant to statutes and regulations fixing the time and place for filing an opening of bids as May 21, 1968 at 10:30 a.m.;
(2) The Notice required bids to be filed pursuant to the regulations (43 C.F.R. § 3382, j.) which provides that “leases will be awarded to the highest qualified bidder on the basis specified in the notice of lease offer.” The Notice called for sealed bids and required that the bid for each tract be in a separate sealed envelope. The notice also set forth a sample form of bid and prescribed that it be signed by an authorized officer. One fifth of the bid price was to accompany each bid.
(3) Superior’s bid complied with all requirements of the Notice, statutes and regulations.
(4) Union submitted a document in a sealed envelope offering $13,600,000 with a tendered check of $2,720,000 in the envelope but the purported bid within the sealed envelope was not signed by any officer of Union; a cover or transmittal letter accompanied the sealed envelope and described the latter as Union’s bid.
(5) Pursuant to the Notice of Sale all bids were opened May 21, 1968, at 10:30 a. m. in a public meeting in New Orleans conducted by a Mr. Rankin, Manager of the Bureau of Land Management Department of the Interior. Order No. 575 of the Department, dated October 13, 1954 (19 Fed.Reg. 6720) authorized Rankin to take all actions in connection with leases. Pursuant to regulation, he also had the power to reject bids (43 C.F.R. § 3382.5).
(6) Nine bids were received and after the opening Rankin announced that Union’s tender [although apparently the highest] was “not an acceptable bid” because it “had not been signed.” At the same time Rankin stated that Union’s tender was an “unacceptable bid.”
(7) Superior’s bid was higher than any tender except that of Union.
(8) On the sixth day thereafter, May 27, the draft submitted by Superior for $2,325,738.24 was deposited for collection in a bank with the endorsement of the Department of the Interior for the account of the United States. In accordance with practice and regulations, checks of all bidders lower than Superior were returned uncashed to unsuccessful bidders. The draft tendered by Union was similarly held and deposited by the Secretary in a suspense account pending the Secretary’s administrative decision as to the status of Union’s bid.
(9) A right to an administrative appeal is provided by the regulations for those whose bids are rejected but Union did not take an appeal from Rankin’s announced decision of May 21, 1968 that Union’s documents were “unacceptable” because unsigned.
(10) On June, 1968 the Secretary announced his decision that the bid made by Union was valid. The District Court on June 18, 1968 per Chief Judge Curran issued a Temporary Restraining Order enjoining the Secretary from executing a lease to Union and on July 3 this was made a preliminary injunction by an order of Judge Corcoran.
Other findings related to the irreparable injury to Superior if Union secured a lease, took possession and began drilling operations and in' light of our disposition they need only be noted by reference to the more detailed Findings of Judge Sirica.
From these Findings of Fact the District Court concluded that:
(a) Sealed bids must be signed authoritatively.
(b) Signing of the sealed bid is a matter of substance and failure to do so cannot be waived by the Secretary nor supplied by amendment of the bid after opening.
(c) Union did not submit a valid bid and was not a “qualified bidder” under the statute, the regulations and the Notice of Sale.
(d) Union’s purported bid was rejected by an authorized officer of the Department of the Interior on May 21, 1968.
(e) Superior complied with all provisions of the statute, the regulations and Notice of Sale.
(f) Superior was the “highest responsible bidder” and hence the “successful bidder.”
(g) Superior's bid was accepted by endorsing and cashing its draft and it is entitled to receive the lease and that the Secretary has a duty to issue the. lease.
(h) Other conclusions related to Superior’s standing to sue, that the United States was not an indispensable party and that Superior would be irreparably injured unless it received the lease.
If the dispositive Findings of Fact are supported by evidence this court is obliged to affirm; indeed we are bound to affirm unless the District Court is “clearly erroneous.” F.R.Civ.P. 52(a).
Union contends its bid consists of the paper containing an offer of $13,600,000.-00 under seal and the transmittal letter which was signed by an authorized officer.
Superior contends that a valid bid responsive to the Secretary’s Notice of Sale must be complete in the papers which are sealed and cannot be aided by an extraneous paper; that the bidding officer rejected Union’s bid by declaring it “unacceptable” because it was unsigned; and, finally, that the Secretary accepted its bid by retaining the Superior check and depositing it to the account of the Treasury of the United States after returning bid checks to all bidders whose bids were lower than those of Superior and Union.
The Secretary contends that he is not bound by the acts or utterances of Rankin, Manager of the New Orleans Outer Continental Shelf Office, Bureau of Land Management, at the time of opening the bids. The section of the regulations applicable to the award of leases, 43 C.F.R. 3382.5, provides:
Following the public opening of the sealed bids as provided in the notice of lease offer, the authorized officer, subject to his right to reject any and all bids will award the lease to the successful bidder.
The language of this provision demonstrates that it is the “authorized officer” who has the right to reject bids. The only inquiry then becomes one of discerning the individual who is clothed with the rights of the “authorized officer.” For this determination, we turn to Department of the Interior Order No. 575, October 13, 1954, 19 Fed.Reg. 6720:
[T]he Manager Outer Continental Shelf Office is authorized to take all actions in connection with the following:
(1) Mineral leases of submerged lands of the Outer Continental Shelf.
(b) Mineral leases pursuant to the act of August 7, 1953 (67 Stat. 462; 43 U.S.C. 1331 et seq.), and the regulations under 43 CFR Part 201 (now 43 C.F.R. Subpart 3382).
We therefore see that Rankin was in fact the “authorized officer” who had the authority to “reject any and all bids” and that his characterization of Union’s bid as “not an acceptable bid” was not subject to correction as the Secretary asserts. We will later deal with the question whether the Secretary expressly or impliedly accepted Superior’s bid.
Having in mind the large sums involved, the large public interest in precision and secrecy of bids for the sale of public land leases, and in the careful procedures called for, the bidders and the public have a substantial interest in certainty. This underlies the detailed procedures provided in the regulations. The need for precision, care and certainty is underscored by the fact that the interest at current permissible rates on the funds of Union and Superior which are immobilized during the pendency of this litigation amount to more than $800 per day; thus bidders and the public have an acute economic interest in having bids resolved surely and swiftly. This consideration caused Chief Judge Curran to expedite the trial of this case and Judge Sirica as trial judge to expedite its disposition. We have similarly given priority to these appeals.
(2)
The controlling regulations specifically contemplate that bids must be sealed and signed. 43 C.F.R. 3382.4 (a) (1). Likewise, the Notice of Sale specifically required all bids to be submitted in accordance with the regulations and set out a form bid which contained a provision for the signature of the bidder. Indeed, the Secretary acknowledged in his opinion in this case that signing of bids
“is a matter of substance. Thus, the deficiency in Union’s bid cannot be waived, nor can it be supplied after the time for receipt of the bids.”
We think these authorities and the Secretary’s entirely correct conclusion as to “substance” and “waiver” undermine his present argument that he has the power to make an unreviewable administrative determination as to the legal consequence of Union’s unsigned sealed bid. Judicial deference to administrative agencies when dealing with matters peculiarly within their expert experience is appropriate but the regulations involved here raise questions of interpretation of statutes, regulations and bids which are obviously well within the competence of courts.
Not surprisingly the subject of bidding procedures has been given close attention by the Comptroller General whose view is that
“the strict maintenance of the competitive bidding procedures required by law is infinitely more in the public interest than obtaining a pecuniary advantage in individual cases by permitting practices which do violence to the spirit and purpose of the law. Conditions or reservations which give a bidder a chance to second-guess his competitors after bid-opening must be regarded as fatal to the bid.” 34 Comp.Gen. 82, 84, B-1204S6 (1954). (Emphasis supplied.)
Thereafter, dealing specifically with the signature problem the Comptroller General said
“If the bidder chooses to remain silent after the opening of bids he could disavow the bid because of the absence of a signature. This would place him in a position to make an election either to abide by his bid or to claim that the bid was submitted in error by a person without authority to enter into contracts on behalf of a bidder. This would give him more than one chance under the same invitation, [citation omitted] Moreover, when a bid is non-responsive in a material respect, it cannot be corrected even though the nonresponsiveness may be due to mistake or oversight.” Comptroller General, B-160856, March 16, 1967, p. 3 (emphasis supplied).
It is not inconceivable that a high bidder in circumstances such as here who found he had made an improvident bid substantially higher than that of other bidders could well seek to exploit every arguable thesis to rid himself of the burden of what he concluded was an undesirable offer.
The Secretary’s staff has acknowledged the importance of strict adherence to procedure, ruling in another case
“The responsibility for filing a proper offer is the offeror’s. Only by rigid enforcement of the rules can the Department insure orderly procedure and fairness to all applicants.” W. R. Stephens, Department of the Interior, Bureau of Land Management, Misc. 85801, August 15, 1962.
The Secretary points to the fact that Union’s bid will produce approximately two million dollars mere in immediate revenue for the government. Obviously this is of substantial importance. By the same token it may well be that if the Secretary now rejected all bids and began anew, the bidders, having exposed their interest and evaluation of the leases, might decide to submit higher bids on a new notice of sale. However there are other significant considerations which must be weighed and which have important implications beyond this particular transaction; they are factors which affect the integrity of the entire governmental program of selling oil leases on public lands and indirectly indeed the whole process of making public contracts by the process of sealed bids. In the area of public contracts where billions are involved in public building, an accretion to the government of even two million dollars can be a manifestation of a short-sighted “penny-wise, pound-foolish” policy if it is allowed to control all decisions.
The Secretary’s concern over the differential between Union and Superior is understandable but we think it misses the central legal issues and the important public policy underlying strict rules in bidding. It is also very important that bidders who comply faithfully and scrupulously with bidding regulations should not in effect be penalized by the errors of less careful bidders who fail to- follow correct procedures. This would be a consequence of the Secretary’s now casting out all bids and beginning again because of the infirmity in Union’s bid.
The requirement of steadfast compliance with competitive bidding procedures comports best with the need to promote the integrity of the bidding process. Although such a stance may entail some limitation on the Secretary’s discretion, it seems clear that this is an indispensable ingredient to the maintenance of competitive bidding processes which will engender public confidence and that of persons dealing with the Government.
For similar reasons we reject the argument that Union’s “deficiency” may be cured by incorporation by reference to the signed transmittal letter which was not submitted with the secrecy-guaranteed by sealing. It is quite true, as argued by the Secretary, that a valid contract can be spelled out of multiple papers, some unsigned, if they are referred to in a signed document and thus become incorporated by reference. But this hornbook principle of contract law does not control over specific regulations implementing a carefully constructed scheme of sealed bids in public contracts.
No authority has been cited and we discover none which compels or even contemplates the use of materials extraneous to the sealed bid to remedy deficiencies in the sealed bid itself. In support of his position, the Secretary calls forth the “settled rule of Government contract law that an unsigned bid may be considered for an award if accompanied by a letter, bond, or other document signed by the bidder clearly evidencing his intent to submit the bid.” The short answer to this is that the cases relied on by the Secretary did not involve bidding under regulations such as are controlling here. General rules of Government contract law must give way to the specific regulations and Notice of Sale governing this kind of transaction in the same way that common law contract principles must yield to the extent that they are inconsistent with governing regulations.
We hold that in the context of competitive bidding the Secretary may not resuscitate an unsigned bid either by construing the regulations or by relying on general principles of Government contract law.
(3)
The only remaining question is the propriety of the District Court’s ordering the Secretary to issue the lease to Superior. Section 8 of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1337(a) (1964), provides that the Secretary of the Interior “is authorized to grant to the highest responsible qualified bidder by competitive bidding * * (emphasis added). The use of the word “authorized” indicates that the Secretary has discretion in granting leases and is not required to do so. He might for example have rejected all bids on the ground that none was in the public interest, but if this had been indicated it was a decision which he was obliged to make at the time, not as an afterthought with the result that Union and other bidders would have “another bite at the apple.” It seems clear on this record that had Union submitted no bid at all, Superior would have been awarded this lease as the highest responsible qualified bidder since it is implicit in the retention of both Union’s and Superior’s checks and returning all others, that the Secretary determined that both Union and Superior were responsible qualified bidders. This was a reasonable course to follow so that if the Secretary ultimately decided that Union’s bid was defective he had another bid on which to rely to make an award. It would be plainly inequitable to Superior and damaging to the long range public interest in the integrity of the bidding process to allow Union, whose error has created this problem, to have a second opportunity to bid against Superior and all other bidders.
We therefore hold that the District Court findings and conclusion that Superior was the “highest responsible qualified bidder” are amply supported by the evidence of the Secretary’s action in accepting and holding Superior’s check in the circumstances shown by this record. The judgment of the District Court is therefore
Affirmed.
. Excerpts from a tape recording of the opening of the bids contains the following remarks made by Mr. Rankin, referring to Union’s bid:
“The next bid * * * Gentlemen, I regret to announce that the next bid is not an acceptable bid. It has not been signed.
Gentlemen, the * * * the * * * unsuccessful bid, or rather the * * * the * * * unacceptable bid, was a bid that was not signed and it was * * * ah * * * in an amount greater than the highest bid that I read.”
JA 16 & 84.
. Appellant Union also urges that the United States is an indispensable party but nowhere in the briefs of the Attorney General filed on behalf of the Secretary is this claim urged. Apart from all other aspects, including the need to have the United States before us in order to afford relief, the absence of any contention on this point by the Attorney General suggests we need not deal with the claim.
. The Secretary has cited the following cases to this court: “Girard [Life] Insurance Company v. Cooper, 162 U.S. 529, 543 [16 S.Ct. 879, 40 L.Ed. 1062] (1896); Commercial Standard Ins. Co. v. Garrett, 70 F.2d 969, 974 (C.A. 10, 1934); Woodbury v. United States, 192 F.Supp. 924, 935 (D.Ore.1961), aff’d, 313 F.2d 291 (C.A. 9, 1963); Hillcrest Inv. Co. v. United States, 55 F.Supp. 147, 149 (W.D.Mo.1944), aff’d, 147 F.2d 194 (C.A. 8, 1945).” (Reply Brief for Secretary at 3).
In his memorandum, which he described as constituting “a final departmental decision” (JA 193), directing the Bureau of Land Management to issue a lease to Union should the consideration be found adequate, the Secretary stated:
It is a settled rule of Government contract law that an unsigned bid may be considered for an award if accompanied by a letter, bond or other document signed by the bidder clearly evincing his intent to submit the bid. 17 Comp.Gen. 497 (1937), 34 Comp.Gen. 439 (1955), 36 Comp.Gen. 523 (1957). (JA 192).
. The nine bids were as follows:
Union................ $13,600,000.00
Superior ............. 11,628,691.20
Shell Oil ............. 6,804,691.00
Atlantic Richfield...... 4,221,460.00
Texaco ............... 3,386,880.00
Humble .............. 2,805,120.00
Marathon ............ 1,503,360.00
Chevron .............. 1,186,560.00
Sun Oil .............. 744,710.40
JA 16, 84, 195
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_r_bus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Abraham Arnold WILLIS, Appellant.
No. 15389.
United States Court of Appeals Third Circuit.
Argued Dec. 14, 1965.
Decided Jan. 17, 1966.
Gibson Smith, Jr., York, Pa., for appellant.
Carlon M. O’Malley, Jr., Asst. U. S. Atty., Scranton, Pa. (Bernard J. Brown, U. S. Atty., Scranton, Pa., on the brief), for appellee.
Before McLAUGHLIN, HASTIE and SMITH, Circuit Judges.
PER CURIAM.
Our own examination of the trial record in this appeal satisfies us that Government Exhibit No. 8 was properly introduced into evidence; that the case was correctly submitted to the jury and that the verdict was justified under the evidence.
The judgment of the district court will be affirmed.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. KREBS ENGINEERS, Defendant-Appellee, Cross-Appellant. and Midwesco, Inc. and United States Fidelity & Guarantee Company, Defendants-Appellants, Cross-Appellees.
Nos. 87-1236, 87-1306.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 30, 1987.
Decided Oct. 5, 1988.
Rehearing and Rehearing In Banc Denied Nov. 30,1988.
Aram A. Hartunian, Hartunian, Futter-man & Howard, Chicago, Ill., for defendants-appellants, cross-appellees.
C. Lee Cook, Jr., Chadwell & Kayser, Ltd., Chicago, III., for defendant-appellee, cross-appellant.
Before CUMMINGS, WOOD, Jr. and MANION, Circuit Judges.
MANION, Circuit Judge.
In the early 1970’s, two Wisconsin towns hired Scotty Smith Construction Company (“Scotty”) to build an incinerator to burn their garbage. That action spawned a series of events that eventually resulted in a lawsuit that now has been in the federal courts for almost ten years. This is the suit’s second appearance before this court. See Fidelity & Deposit Co. of Maryland v. Sheboygan Falls, 713 F.2d 1261 (7th Cir.1983). Unfortunately, we are unable to put the suit to rest.
I.
When the towns hired Scotty to build the incinerator, they required Scotty to post a performance bond for $710,000, the amount of the contract price. Fidelity and Deposit Company of Maryland (“Fidelity”) was the bond surety. To acquire the bond, Scotty agreed to indemnify Fidelity if Fidelity had to pay on the bond. The indemnity agreement provided, among other things, that Scotty would pay any litigation expenses, including attorneys’ fees, that Fidelity incurred in paying the bond.
Scotty subcontracted with Midwesco, Inc. to build the incinerator’s pollution-control system. Midwesco had provided Scotty with a bond issued by United States Fidelity and Guarantee Company (“USF & G”). Under that bond, Midwesco agreed to indemnify Scotty for any costs Scotty incurred (including attorneys’ fees) that might arise from Midwesco’s performance of the subcontract.
Midwesco obtained the scrubber for the pollution-control system from Krebs Engineers and installed it in the system. Unfortunately, the scrubber did not scrub as well as it was supposed to. Emissions from the incinerator exceeded the maximum levels allowed by Wisconsin law, and also exceeded the limits set by the contract between Midwesco and Krebs. Midwesco, Krebs, and Scotty made efforts to get the scrubber to perform up to snuff, but to no avail. The towns had paid all but about $38,000 on the contract with Scotty, and were stuck with an incinerator they could not use.
Understandably perturbed by this turn of events, the towns asserted that the scrubber’s failure was a breach of contract by Scotty, and notified Fidelity that it must pay under the bond. A few months after the towns notified Fidelity of their claim, Fidelity filed a declaratory judgment action against the towns, Scotty, Midwesco, Krebs, and several other defendants. The complaint sought a declaration that Scotty had not breached the contract and that Fidelity was thus not liable to the towns on the bond. Alternatively, the complaint sought a declaration that if Fidelity was liable on the bond, Scotty was liable to Fidelity under the indemnity agreement.
Soon after Fidelity filed its complaint, other claims, cross-claims, and counterclaims began to fly amongst a number of parties. We mention only those claims relevant here. The towns sued Scotty, Mid-wesco, and Krebs for breach of contract. Scotty sued the towns for the $38,000 contract balance, and Midwesco, USF & G, and Krebs for indemnity. Midwesco sued the towns and Scotty for the amounts they owed Midwesco for its work, and also sued Krebs for breach of contract, negligence, and products liability. Finally, Krebs sued Midwesco for the balance due on their contract.
After a trip to this court, where we reversed the district court’s grant of summary judgment against the towns, see 713 F.2d at 1268-72, the district court set the case for a jury trial. During the first day of the trial, before any evidence was taken, the parties settled all claims involving the towns. This left Scotty, Midwesco, and Krebs—mainly Midwesco and Krebs—to fight among themselves to determine who would ultimately bear the costs caused by the scrubber’s failure. Those issues were tried to the court.
After trial, the district court held that Midwesco had to reimburse Scotty for attorneys’ fees that Fidelity had incurred and that Scotty had reimbursed to Fidelity under Scotty’s and Fidelity’s indemnification agreement. The district court also held, however, that Krebs had breached its contract with Midwesco, as well as certain implied and express warranties. Applying Wisconsin law, the court held that Midwes-co was entitled to consequential damages from Krebs, despite a consequential damages disclaimer in the contract. The court awarded Midwesco: 1) the out-of-pocket expenses it incurred in attempting to solve the scrubber problem; 2) Fidelity’s attorneys’ fees that Scotty had reimbursed to Fidelity and that Midwesco had reimbursed to Scotty; and 3) thirty-three percent of Midwesco’s own attorneys’ fees. Both Midwesco and Krebs have appealed.
II.
In its cross-appeal, Krebs challenges the damages the district court awarded to Mid-wesco. Krebs first contends that the district court erred by awarding Midwesco any consequential damages at all. Before deciding that issue, however, we must determine what state’s law to apply. The district court applied Wisconsin law; on appeal Krebs argues that California law applies because the contract between it and Midwesco specifically provided that California law would govern the contract.
Wisconsin courts have recognized the general rule that parties to a contract may select the law governing their contract. See Bush v. National School Studios, Inc., 139 Wis.2d 635, 407 N.W.2d 883, 886 (Wis.1987) (citing cases); see generally Restatement (Second) of Conflicts of Laws §§ 186 & 187 (1971); E. Scoles & P. Hay, Conflict of Laws § 18.1 (1984). But Krebs has waived any dependence on California law. In arguing the consequential damages issue in the district court, Mid-wesco relied solely on Wisconsin law. Krebs’ briefs below did not assert that California law controlled or cite any California cases. The only time Krebs mentioned California law was in noting that Wisconsin and California law were substantially the same, so that the district court’s choice between Wisconsin or California law was “immaterial.” Krebs cannot blame the district court for not digging up the California law it failed to cite, particularly after telling the court that the choice of law was “immaterial.” It is not the trial judge’s job to do the parties’ work for them. See International Administrators v. Life Ins. Co., 753 F.2d 1373, 1377 n. 4 (7th Cir.1985). Krebs took the risk that in applying the Wisconsin law the parties did cite, the district court would reach a different result than it might have had it applied California law. For better or worse, Krebs must live with the district court’s choice of Wisconsin law. Cf. Muslin v. Frelinghuysen Livestock Managers, 777 F.2d 1230, 1231 n. 1 (7th Cir.1985).
The contract between Krebs and Midwes-co provided that Midwesco’s exclusive remedy for any breach by Krebs was repair or replacement of defective parts. The contract also specifically provided that Krebs would not be liable for any consequential damages. The Uniform Commercial Code, as adopted in Wisconsin, allows parties to limit a buyer’s remedies and exclude consequential damages. Wis.Stat.Ann. § 402.719 (West 1964 & Supp.1987); see Murray v. Holiday Rambler Corp., 83 Wis.2d 406, 265 N.W.2d 513, 517, 519-20 (Wis.1978). But “[wjhere circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in [the UCC].” Wis.Stat. Ann. § 402.719(2). The district court held that since replacing any parts, or even the entire scrubber, could not cure the scrubber problem, the exclusive repair or replace remedy failed of its essential purpose. Therefore, the court disregarded the limitations of remedies in the contract and awarded Midwesco consequential damages.
Krebs does not contest the district court’s finding that the exclusive contract remedy failed of its essential purpose. Krebs does argue, though, that the district court erred by refusing to give effect to the consequential damages disclaimer. According to Krebs, a consequential damages disclaimer should be considered separately from a clause limiting remedies to repair or replacement. Even if the limited remedy fails of its essential purpose, the consequential damages exclusion should remain in effect unless no other effective remedy (for example, incidental damages, Wis.Stat. Ann. § 402.715(1) or difference-in-value damages, Wis.Stat.Ann. § 402.714(2)) remains.
Other courts have given effect to consequential damages disclaimers even when exclusive remedies failed of their essential purposes. E.g., Chatlos Systems v. National Cash Register Corp., 635 F.2d 1081, 1085-86 (3d Cir.1980); S.M. Wilson & Co. v. Smith International Inc., 587 F.2d 1363, 1374-76 (9th Cir.1978). But whatever the merits of Krebs’ argument as an original matter, it is not Wisconsin law. In Murray v. Holiday Rambler Corp., supra, the Wisconsin Supreme Court held:
Where the exclusive limited remedy of the contract fails of its essential purpose... the buyer is entitled to invoke any of the remedies available under the UCC. This includes the right to recover consequential damages under sec. 402.715.
Thus, although an express warranty excludes consequential damages, when the exclusive contractual remedy fails, the buyer may recover consequential damages... as though the limitation had never existed.
265 N.W.2d at 525, 526 (citations omitted).
Krebs argues that Murray is factually distinguishable from this case. The contract between Krebs and Midwesco specifically excluded consequential damages; the contract in Murray contained a clause excluding all remedies except the exclusive contract remedy without specifically mentioning consequential damages. But a clause excluding all remedies does exclude consequential damages. Also, as we have seen, Murray was quite explicit in its holding concerning consequential damages. And in reaching that holding, the Murray court cited with approval a case allowing plaintiffs to recover consequential damages despite a clause excluding all remedies except the exclusive remedy, Ehlers v. Chrysler Motor Corp., 88 S.D. 612, 226 N.W.2d 157 (1975) and cases allowing plaintiffs to recover consequential damages despite clauses specifically excluding consequential damages, e.g., Koehring Co. v. A.P.I., Inc., 369 F.Supp. 882 (E.D.Mich.1974); Adams v. J.I. Case Co., 125 Ill.App.2d 388, 261 N.E.2d 1 (1970). See Murray, 265 N.W.2d at 526; cf. S.M. Wilson & Co., 587 F.2d at 1374 (noting that Adams and Koehring Co. belong to a family of cases supporting the proposition that a limited remedy’s failure “does remove from the contract the bar to the recovery of consequential damages”). Murray’s explicit holding, its reasoning, and the cases it cited lead us to conclude that the Wisconsin courts would find the distinction Krebs argues to be insignificant, and would award consequential damages to Midwesco, if proved.
Krebs also cites Phillips Petroleum Co. v. Bucyrus-Erie Co., 131 Wis.2d 21, 388 N.W.2d 584 (Wis.1986) to support its argument that consequential damages are available when an exclusive remedy fails only if no other effective remedy remains. In Bu-cyrus, the Wisconsin Supreme Court allowed a plaintiff to collect consequential damages when the limited repair and replacement remedy failed. Although Bucy-rus referred to “the underlying philosophy of the Uniform Commercial Code that there be at least a fair quantum of remedy for breach of obligations,” the court emphasized that “[t]he essential purpose of any damage award is to make the injured party whole,” and equated an effective, or “minimum quantum of remedy” with making the injured party whole. Here, the limited remedy failed of its essential purpose; replacing or repairing the scrubber would not have solved the incinerator problem. This failure exposed Midwesco, the innocent party, to liability and litigation expense, and Krebs could make Midwesco whole only by compensating it for that liability and expense. Allowing Midwesco to recover consequential damages is consistent with Wisconsin law, as stated in Murray and Bucy-rus.
III.
Aside from contending that Midwesco was not entitled to any consequential damages, Krebs does not challenge the district court’s decision to award Midwesco damages for the expenses it incurred in attempting to solve the scrubber problem. Krebs does, however, challenge the district court’s decision to award certain attorneys’ fees to Midwesco.
Wisconsin generally follows the “American Rule” regarding attorneys’ fees and litigation expenses. Absent a specific statutory or contractual provision allowing recovery, a litigant may not recover from an opponent the attorneys’ fees and expenses the litigant incurred in litigating its claim against the opponent. Murray, 265 N.W. 2d at 527. But where a defendant’s breach of contract causes the non-breaching party to become involved in litigation with third parties, a different situation arises. In that case, the non-breaching party may recover as consequential damages the amount of any judgment, along with his reasonable attorneys’ fees and litigation expenses, incurred in the third-party litigation. City of Cedarburg L. & W. Com’n v. Glens Falls Ins. Co., 42 Wis.2d 120, 166 N.W.2d 165, 167-68 (Wis.1969) (citing Restatement (First) of Contracts § 334, at 531 (1932), and 5 Corbin on Contracts § 1037, at 225-26 (1965)); see also Murray, 265 N.W.2d at 527 n. 11 and 528 n. 12; Restatement (Second) of Contracts § 351, comment c (1981); J. White and R. Summers, Uniform Commercial Code § 10-4, at 392 (1980).
Cedarburg and Murray place two general limits on a plaintiff’s recovering its expenses from third-party litigation. First, those expenses must be the “natural and proximate result” of the breach. See Mur ray, 265 N.W.2d at 527 n. 11. This standard comports with the UCC’s general requirement that consequential damages be reasonably foreseeable. Compare J. White & R. Summers, supra § 10-4, at 389 (“ ‘the test is one of reasonable foreseeability of probable consequences’ ”) (citation omitted) with Cedarburg, 166 N.W.2d at 167 (plaintiff may recover expenses for third-party litigation “that the defendant had reason to foresee when the contract was made”).
Besides being reasonably foreseeable, the plaintiff’s third-party litigation expenses must be reasonable. Id. at 167—68; see also Restatement (Second) of Contracts § 351, comment c. A plaintiff may not unnecessarily run up its legal bill in the expectation that the breaching party will ultimately pick up the entire tab.
Krebs proposes two other limits on recovering third-party litigation expenses. Krebs “suggests” that in a ease such as this “where there are claims and counterclaims and charges and countercharges running every which way amongst the parties,” third-party litigation expenses should not be recoverable. Krebs also argues that because the towns, Scotty, and Fidelity were connected with the original transaction from which Krebs’ liability arose (that is, the building of the incinerator and sale of the scrubber), they are not really third parties, so the expenses that Midwesco incurred in defending their claims are not expenses resulting from third-party litigation. See Armstrong Construction Co. v. Thomson, 64 Wash.2d 191, 390 P.2d 976 (1964).
Krebs cites no Wisconsin authority applying these limits to recovery. In Murray, however, the Wisconsin Supreme Court noted that a litigant may recover its expenses from third-party litigation in a “proper case.” Murray, 265 N.W.2d at 528 n. 12. Krebs seizes upon the Murray court’s reference to a “proper case” to argue that the Wisconsin courts would adopt the two limitations it proposes.
Krebs reads too much into the Wisconsin Supreme Court’s reference to a proper ease. The entire sentence in which the “proper case” language appears states: “This [holding that a plaintiff may not recover attorneys’ fees resulting from his litigation against the defendant] is not to suggest that expenses of third-party litigation may not, in a proper case, be recovered under sec. 402.715, stats., in accordance with the principles generally applicable to contract damages. ” Id. (emphasis added). Read in context, we believe that all the Wisconsin Supreme Court meant by referring to a “proper case” was that third-party litigation expenses are recoverable only where they are reasonable and reasonably foreseeable. Those are the “principles generally applicable to contract damages.”
Krebs offers no other reason why the Wisconsin courts would adopt the Armstrong holding. Certainly Scotty, Fidelity, and the towns were not parties to the contract between Krebs and Midwesco. Krebs does state that a multi-party case involving several different claims, counterclaims, and cross-claims presents problems in allocating fees and expenses between litigation with the breaching party and litigation with the third party. We agree that allocation can be a serious problem (and, as we shall see, in this case it is). But difficulty in calculation should not deny an innocent party all damages caused by a defendant’s breach of contract. Courts and juries are capable of sorting out compensable third-party expenses from non-compensable expenses incurred in litigating against the breaching party. See, e.g., Campus Sweater and Sportswear Co. v. M.B. Kahn Construction Co., 515 F.Supp. 64, 111-13 (D.S.C.1979), aff'd, 644 F.2d 877 (4th Cir.1981). The allocation need not be accurate to the last dollar; all that is required is that the plaintiff prove the proper amount of third-party fees to a “reasonable probability.” See Murray, 265 N.W.2d at 526.
Given the Wisconsin Supreme Court’s emphasis on making the injured party whole in awarding consequential damages, see Bucyrus, 388 N.W.2d 592, it is reasonable to conclude that that court would allow Midwesco to recover its reasonably foreseeable third-party litigation expenses caused by Krebs’ breach. Had Krebs not breached its contract with Mid-wesco, Midwesco would not have had to defend suits by the towns, Scotty, and Fidelity. Midwesco had to spend a good deal of money to defend those suits, and the only way to make it whole is to reimburse it for those costs, to the extent that they are reasonable and may be properly allocated.
The district court awarded two amounts to Midwesco as expenses resulting from third-party litigation: $44,203, which represented thirty-three percent of Midwesco’s total legal bill for the litigation; and $86,-223 (later increased to $144,686.75 pursuant to an agreement between Midwesco and Scotty), which represented the attorneys’ fees that Scotty had reimbursed to Fidelity and then passed on to Midwesco. Krebs contends that Fidelity’s attorneys’ fees are not proper consequential damages because Midwesco’s liability for those fees was not a natural and proximate result— that is, a foreseeable result—of Krebs’ breach.
Under the UCC, a seller is liable for consequential damages “resulting from general or particular requirements of which the seller at the time of contracting had reason to know_” Wis.Stat.Ann. § 402.715 (emphasis added); see also Murray, 265 N.W.2d at 528; J. White & R. Summers, supra § 10-4, at 389-90. The test for recovering consequential damages is not whether the seller actually foresaw or contemplated the resulting damages when it made the contract; instead, the test is whether the seller, knowing or having reason to know the buyer’s needs, could have reasonably foreseen the loss as a probable consequence of a breach. Id. at 389. This test is consistent with the standard Wisconsin courts generally apply in determining whether damages for a breach of contract are foreseeable. See, e.g., Reiman Associates v. R.A. Advertising, Inc., 102 Wis.2d 305, 306 N.W.2d 292, 300 (Wis.Ct.App.1981) (damages must “reasonably to be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach”); Hale v. Stoughton Hospital Ass’n, 126 Wis.2d 267, 376 N.W.2d 89, 95 (Wis.Ct.App.1985) (same).
We agree with Midwesco that the Fidelity fees were a reasonably foreseeable element of damage. Krebs knew when it sold the scrubber to Midwesco that Midwesco was going to install it as part of a pollution control device in a municipal incinerator. It should have been reasonably foreseeable to Krebs that if the scrubber did not work as it should, and the incinerator could not meet applicable emissions standards, litigation would be a likely result. It should also have been reasonably foreseeable to Krebs that Scotty would require Midwesco to supply a performance bond. Midwesco was.supplying a major component in the incinerator project; if the pollution control system failed, the entire project would probably fail (as it did), potentially exposing Scotty to substantial liability and litigation expense. In those circumstances, it would have been imprudent for Scotty not to require a performance bond from Midwesco. Thus, at the time it contracted with Mid-wesco, Krebs could have reasonably foreseen that breaching that contract, by supplying an inadequate scrubber, would result in Midwesco paying Scotty’s expenses in any litigation resulting from the scrubber’s failure.
IV.
While we have rejected all of Krebs’ general objections to the district court’s decision to award Midwesco third-party litigation expenses as consequential damages, we must remand to the district court to redetermine the amounts it should award. There are two problems with the $44,203 award for a portion of Midwesco’s own attorneys’ fees. First, it is not clear exactly what the district court was compensating Midwesco for by this award. The court stated simply that Krebs must “pay a portion of the legal fees and expenses not excluded by the traditional rule against cost-shifting.” The court also stated, however, that Midwesco could not recover expenses “incurred pursuing its own claims and defending Midwesco’s own liability against Scotty and the municipalities.... ” One of Midweseo’s “own claims” was against Krebs; Midwesco cannot recover the expenses it incurred solely in pursuing that claim. Similarly, Midwesco cannot recover expenses it incurred solely for defending Krebs’ claim against it for the balance due on their contract. But Midwesco may recover expenses it incurred in defending claims by third parties (the towns, Scotty, and Fidelity), and in pursuing its claims against third parties, as long as those claims were a foreseeable result of Krebs’ breach. On remand, the district court will have to allocate Midwesco’s fees and expenses between claims for which Midwesco may not.
To allow the district court to properly allocate the litigation expenses, Mid-wesco must present evidence to support an allocation. See Funding Systems Leasing v. King Louie Int’l, 597 S.W.2d 624, 637 (Mo.Ct.App.1979). The only evidence Mid-wesco presented regarding the fees and expenses it paid was testimony by one of its officers that it had incurred certain fees and expenses. This evidence was not sufficient to support a finding that the district court’s allocation was proper or that the fees incurred and awarded were reasonable. Although we have found no Wisconsin cases directly on point, the Wisconsin Supreme Court has stated that “the burden of proving consequential damages is on the buyer,” and that “[d]amages may not be awarded on speculation or conjecture alone.” Murray, 265 N.W.2d at 526. The United States Supreme Court has held that in cases in which a prevailing party in a civil rights case seeks attorneys’ fees under 42 U.S.C. § 1988, the prevailing party must “submit evidence supporting the hours worked,” including billing records documenting those hours, so that the district court may properly determine the hours reasonably spent. Hensley v. Eckerhart, 461 U.S. 424, 433-34, 437, 103 S.Ct. 1933, 1939, 1941, 76 L.Ed.2d 40 (1983); see also id. at 441-42, 103 S.Ct. at 1943-44 (Burger, C.J., concurring) (“[T]he party who seeks payment must keep records in sufficient detail that a neutral judge can make a fair evaluation of the time expended, the nature and need for the service, and the reasonable fees to be allowed.”). We believe the same standard is appropriate in this case.
We also must remand for the district court to redetermine the amount of Fidelity’s attorneys’ fees chargeable to Krebs. Midwesco is entitled to recover only the fees that Fidelity reasonably incurred and passed on to Scotty; although Krebs could reasonably foresee that it might have to pay these fees, it could not reasonably foresee having to pay an excessive fee. The only evidence concerning Fidelity’s fees was testimony by one of Fidelity’s attorneys about the billing rates of the lawyers who worked on the case and about some of his activities in the case, and testimony from an official at Fidelity that it had received and paid statements from its attorneys. The record contains no billing records documenting the hours expended.
Another problem exists with the Fidelity attorneys’ fee award. The district court originally awarded $86,223. Scotty then filed a motion to reconsider, claiming that the amount Midwesco owed it (and Krebs, in turn, owed Midwesco) was $62,374 more. The district court agreed that a higher amount was appropriate, but instead of determining the precise amount the court allowed Midwesco, Scotty, and Krebs to engage in “informal discovery” regarding the reasonableness of the amount. Mid-wesco examined Fidelity’s attorneys’ billing records and disputed certain amounts; Krebs did neither. Midwesco and Scotty eventually agreed on an amount and informed the district court. The court entered judgment based on Midwesco’s and Scotty’s agreement.
There was no evidence taken in court to support the modified amount. Midwesco contends that Krebs has waived any objection it might have to the modified amount because Krebs refused to participate in discovery. We think not. The modified amount was not litigated; it was the result of an agreement between Scotty and Midwesco. The district court had no power to force Krebs to take discovery, or to agree to the amount of damages it had to pay to Midwesco. Cf. Kothe v. Smith, 771 F.2d 667, 669 (2d Cir.1985) (district court may not coerce parties into settling); Identiseal Corp. of Wisconsin v. Positive Identification, 560 F.2d 298, 301-02 (7th Cir.1977) (district court has no authority to make a party take discovery); J.F. Edwards Construction Co. v. Anderson Safeway Guard Rail Corp., 542 F.2d 1318 (7th Cir.1976) (per curiam) (district court has no authority to force a party to stipulate facts). Krebs was entitled to its day in court to contest the increase in the amount of Fidelity’s fees it had to pay.
Finally, regarding the Fidelity fees, we believe it would be inappropriate to award Midwesco fees from Krebs that are allocable to direct litigation between Fidelity and Krebs. It is true that these are third-party expenses in the sense that they do not relate to litigation between Midwes-co and Krebs. But to have Krebs reimburse Midwesco for those fees would be to, in effect, have Krebs reimburse Fidelity (through Scotty and Midwesco) for fees that arose from litigation between Fidelity and Krebs. The American Rule, which Wisconsin follows, see Murray, 265 N.W. 2d at 527-28, would not allow Fidelity to recover those fees directly from Krebs. It would be inappropriate to allow Fidelity to recover those fees indirectly from Krebs.
In determining the proper amounts to award on remand, the district court should keep in mind that there may be some overlap between recoverable and nonrecoverable fees. This should not prevent the court from reaching a proper allocation. Mathematical precision in awarding damages is not necessary. See Wis.Stat.Ann. § 402.715, official UCC comment 4. Also, as long as reasonable evidence exists, we believe it is consistent with Wisconsin law for the district court to resolve any doubts about allocation or reasonableness in favor of Midwesco, the party to be made whole. See id.; Bucyrus, 388 N.W.2d at 592 (emphasizing that the purpose of consequential damages is to make the injured party whole); see also Restatement (Second) of Contracts § 352, comment a; cf. In re Central Ice Cream Co., 841 F.2d 732, 735 (7th Cir.1988) (in determining the reasonableness of attorneys’ fees in a sanctions case, benefit of the doubt is normally resolved in the innocent party’s favor).
V.
Midwesco raises one damages-related issue in its appeal. Midwesco paid $90,000 (as did Krebs and Donohue and Associates, the project engineers) to the towns to settle all claims involving the towns. In its post-trial brief, Midwesco argued that its settlement payment was a proper element of consequential damages, and that the district court should have ordered Krebs to reimburse Midwesco for the $90,000 it paid in the settlement. The district court refused to order Krebs to pay Midwesco the $90,000, stating:
As to the settlement expense, each side bought a pig in a poke. To get rid of some pesky claims, Krebs, Donohue and Midwesco each paid $90,000 to the municipalities. Liability to the municipalities was questionable... but each side thought it best to avoid a bigger risk by working out a settlement. Although the settling parties exercised good judgment, I find no reason why Krebs should pay Midwesco’s $90,000 share of the settlement in addition to its own.
Midwesco contends the district court erred.
Generally, an injured party may recover from a breaching party any reasonable payments the injured party makes to Settle third-party litigation. Restatement (Second) of Contracts § 351, comment c. Although the parties have not cited, and we have not found, any Wisconsin cases on point, we believe that the Wisconsin courts would follow the general rule stated in the Restatement. The general rule is consistent with the make-whole rationale behind consequential damages. The general rule ¡also promotes the policy favoring private dispute settlements, see id.; if an injured party could not pass on the cost of a settlement but could pass on the cost of a litigated judgment in the third-party litigation, injured parties would rationally fight to the bitter end rather than accept reasonable settlements.
If Midwesco had settled the towns’ claims on its own, we would not hesitate to hold that Krebs should pay to Midwesco the amount Midwesco paid to the towns. The twist here, however, is that Midwesco, Krebs, and Donohue jointly settled with the towns—and we believe this twist makes a difference. The settlement was a contract between the towns, Krebs, Midwesco, Scotty, and Donohue that was intended to end all litigation involving the towns. That contract bound Midwesco. As part of that Contract, Midwesco agreed with each of the parties that it would pay $90,000 to the towns. Krebs, Scotty, and Donohue also agreed with each other, the towns, and Midwesco, to pay a certain amount (in Krebs’ case, $90,000) to the towns. The towns agreed to release all their claims against all parties—not just their claims against Midwesco. Midwesco is now asking the courts, in effect, to reform the parties’ contract to provide that Krebs shall pay $180,000 and Midwesco shall pay nothing.
We read the district court’s opinion as interpreting the settlement as we have discussed above. Given what the record reveals that the district court had before it when deciding, we think that is a proper interpretation. Midwesco, however, argues that the district court erred because the written settlement documents expressly preserved all of Midwesco’s rights against Krebs.
The “Mutual Release and Agreement” the parties signed did, in fact, state that:
Nothing in this Agreement is intended to impair, impede or in any way affect those claims and defenses which exist among [Midwesco, Scotty, and Krebs] and each or any of them, and the contractors and each of them specifically reserve any and all rights which they have or may have against one another.
The separate “Release of All Claims” document the parties signed contained similar reservation of rights language.
Krebs argues that the reservation of rights language did not preserve Midwes-eo’s right to seek reimbursement of its settlement payment from Krebs, a right which, as we have seen, undoubtedly would have existed had Midwesco settled the towns’ claims against it on its own. While the reservation of rights language appears to preserve Midwesco’s right to reimbursement, there is language in the settlement documents supporting Krebs’ argument. We need not go into detail, though, because the record does not show that Midwesco ever brought the precise language in the written documents to. the district court’s attention. Midwesco did not introduce the written documents into evidence, nor did it argue the settlement’s terms when discussing damages in its post-trial brief. Moreover, on the morning the parties settled, the district court asked each party to comment about the settlement agreement on the record. At that time, Midwesco uttered not a peep about reservation of rights language in the settlement agreement, much less about that language’s effect on Midwesco’s right to seek reimbursement of its settlement payment from Krebs. If Midweseo had commented, Krebs could have voiced its view that the reservation of rights language did not preserve Midwes-co’s right to seek reimbursement, and the district court could have decided the issue (or the parties could have agreed on what the settlement meant).
Midweseo argues that the district court’s comments “confirm[ J what is contained in the release.” We think not. The court noted:
And, in fact, a settlement of this nature is not, at least from my standpoint, entirely welcome because the case isn’t going away. I am still going to be trying the issues between the defendants, all except Donohue, as to their respective responsibility in this case.
So, although we are settling the case, it is only going to be a portion of it. And it is my understanding that the remaining portions of this case are going to be tried to the court.
The trial judge’s comments are not necessarily inconsistent with the view that the judge took on reimbursement. The district court knew that other claims and possible elements of damages existed, and it was not unreasonable for the court to assume that Midweseo could give up its right to reimbursement of the settlement payment without giving up its other damages. The important point is that the record does not show that Midweseo raised the reservation of rights language in the district court; we will not reverse the district court based on an argument that was not presented in that court.
VI.
Krebs raises one non-damages issue. According to Krebs, the district court erred in admitting Dr. Eric Aynsley’s testimony because Dr. Aynsley was not listed as a witness in the final pretrial report. The final pretrial order stated that “a witness not listed [in the final pretrial report] will not be permitted to testify absent a showing of cause or surprise.”
Dr. Aynsley was the president of Almega Corporation. Late in 1979, Midweseo, Scotty, and Krebs had hired Almega Corporation to conduct tests on the emissions from
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_usc2
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35
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What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 28. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
WHAM-O-MFG. CO., a corporation, Appellant, v. PARADISE MANUFACTURING CO., a corporation, Appellee.
No. 18442.
United States Court of Appeals Ninth Circuit.
Jan. 31, 1964.
Christie, Parker & Hale, and Robert R. Thornton, Pasadena, Cal., for appellant.
William C. Babcock and G. Merle Bergman, Long Beach, Cal., for appel-lee.
Before MERRILL and KOELSCH, Circuit Judges, and BOWEN, District Judge.
KOELSCH, Circuit Judge.
Wham-O-Mfg. Co., the owner of Carrier patent [U.S. Letters Patent #2982547, issued May 2, 1961] brought this suit against Paradise Manufacturing Co. for patent infringement and unfair competition. Both parties are corporations organized under the laws of California and have their principal places of business in that state.
The district court, concluding that the patent was invalid and not infringed, dismissed the infringement claim on defendant’s motion for summary judgment; and at the same time the court acting sua sponte dismissed the claim for unfair competition. Plaintiff has appealed. Finding no reversible error, we affirm the judgment.
The patent relates to an amusement device in the form of a slide. The patent claims comprise a combination consisting of a smooth strip of flexible material, such as vinyl plastic, and a sprinkler or “irrigating means” to moisten the surface of the material. The two components are integrated by attachment of the water conduit, either along a side or at an end of the strip. The contrivance is useful for a sport (?) referred to as “body planing.” Thus, when the slide is laid out and the surface wetted a player can hurl his body in a horizontal plane upon it and slide like a flat stone skipping upon a pond.
The district court declared that the presumption of validity arising from the grant of the Carrier patent [35 U.S.C.A. § 282, Neff Inst. Corp. v. Cohu Electronics Inc., 298 F.2d 82 (9th Cir. 1962)] was “upset” because the patent examiner had failed to consider the latest pertinent prior art during the prosecution of the patent application. Gomez v. Granat Bros., 177 F.2d 266 (9th Cir. 1949), cert. den. 338 U.S. 937, 70 S.Ct. 351, 94 L.Ed. 578 (1950). We disagree. It appears that the Carrier patent did not list as references any patents which disclosed an irrigating means like the one comprising an element of the claimed combinations, but the defendant in support of its motion submitted as an exhibit an earlier patent to one Summers (U.S. Letters Patent #2,314,525 issued May 13, 1943). We do not understand how this omission could in any way affect the presumption. In Nordell v. International Filter Co., 119 F.2d 948 (7th Cir. 1949) and Himmel Bros. Co. v. Serrick Corp., 122 F.2d 740 (7th Cir. 1941), eases relied upon by the defendant, it appeared that the combination itself was anticipated by a single patent not listed as a reference in the patent under attack. See also A. R. Inc. v. Electro-Voice Inc., 311 F.2d 508 (7th Cir. 1952). That is not true here, for Summers at best discloses only one of the constituent parts of the patented combination. And indeed, plaintiff readily acknowledges that these parts individually are all old.
It has long been settled that the separate presence in the prior art of each of the elements of a combination will not prevent the finding of invention. But the question remains whether the concept of the joinder of the parts evidences invention. In Great Atlantic and Pacific Tea Corp. v. Supermarket Equipment Corp., 340 U.S. 147, 150, 71 S.Ct. 127, 129, 95 L.Ed. 162 (1950) the Supreme Court said that: “While this Court has sustained combination patents, it has never ventured to give a precise and comprehensive definition of the test to be applied in such cases.” And numerous decisions demonstrate that the Court’s inquiries have proceeded along at least two different lines. For example, in Great Atlantic and Pacific Tea Co. v. Supermarket Equipment Corporation, supra, Hailes v. Van Wormer, supra, and Pickering v. McCullough, 104 U.S. 310, 26 L.Ed. 749, the Court looked to find whether all the component parts of the combination cooperated with one another to produce a single new and useful result and, having ascertained that each operated independently, held the claims invalid for lack of invention. However, in Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 86 L.Ed. 58 (1941), Altoona Publix Theatres v. Tri-Ergon Corp., 294 U.S. 477, 55 S.Ct. 455, 79 L.Ed. 1005 (1937) and Concrete Appliance Corp. v. Gomery, 269 U.S. 177, 46 S.Ct. 42, 70 L.Ed. 222 (1925), the inquiry was not so much directed to the functioning of the various elements as it was to the degree of skill evidenced by their assemblage into the new combinations; and in those cases the Court invalidated the patents on the ground that to conceive such combinations required no more than ordinary mechanical skill (35 U.S.C.A. § 103).
We need not pause in the case at bar to determine whether the material and the sprinkler operate in combination to produce the requisite new unitary result. Even if we were of the opinion'— which we are not — [See Grinnell Washing Machine Co. v. E. E. Johnson Company, 247 U.S. 426, 38 S.Ct. 547, 62 L.Ed. 1196 (1918)] that they do, it is clear to us beyond any doubt that bringing them together did not evidence the “inventive genius,” often spoken of by the Supreme Court as a test for invention. See Mr, Justice Douglas, concurring in Great Atlantic & Pacific Tea Co., 340 U.S. 154, 71 S.Ct. 131, 95 L.Ed. 162.
Slides, of course, are not novel and we have no hesitancy in recognizing that they were a common type of amusement device long before the date of Carrier’s patent (May 2, 1961). The fact is likewise well known that a film of water will lower the co-efficient of friction of a smooth surface — in short, that a slide can be made more slippery than it otherwise would be by adding lubricant through means of a sprinkler. We think, as did the trial court, that the combination was obvious. Particularly apt are the following extracts from Glagovsky v. Bowcraft Trimming Co., 267 F.2d 479 (1st Cir. 1959), cert. den. 361 U.S. 884, 80 S.Ct. 155, 4 L.Ed.2d 120 (1959), a case very much like the one before us: “The prior art and the patent claims are so simple that they can be readily understood by any normally intelligent person without the aid of expert testimony. There was, therefore, no error below in disposing of the plaintiff’s suit on the motions for summary judgment and their supporting affidavits, depositions and exhibits.” (267 F.2d p. 480). “* * * The plaintiff’s advance may well be useful and ingenious. But making full allowance for the presumption that the patent is valid and placing the burden of establishing its invalidity on the defendant, 35 U.S.C. § 282, it does not seem to us that even in the light of plaintiff’s commercial success it can be said that the plaintiff’s contribution, viewed either against the background of the allied prior arts * * * or against the background of the particular prior art * * * can be called an invention without defining that term to describe no more than the sort of advance to be expected from any ordinarily skillful mechanic conversant with any of the arts involved.” (267 F.2d p. 482).
By its judgment the District Court also determined and decreed that defendant’s slide, marketed under the name “Surf N’Glide” did not infringe any claims of the Carrier patent. In view of our conclusion that the patent was invalid, we do not reach the issue of infringement. A valid patent is essential to such a claim. Bergman v. Aluminum Lock Shingle Corp., 251 F.2d 801 (9th Cir. 1958); Diversey Corp. v. Charles Pfizer & Co., 255 F.2d 60 (7th Cir. 1958).
The propriety of the district court’s dismissal of the claim of unfair competition presents a more difficult question. Plaintiff had alleged in its complaint that the subject matter was within the pendent jurisdiction of the district court by virtue of 28 U.S.C.A. § 1338(b). That section provides that a district court may entertain and adjudicate “a claim of unfair competition when joined with a substantial and related claim under the * * * patent * * laws.” The district court clearly was of the view that loss of jurisdiction over the dependent claim was a necessary corollary of its ruling of patent invalidity. It opined that “The second count being for unfair competition finds no jurisdictional support in 28 U.S.C.A. 1338 (b), inasmuch as judgment goes against the plaintiff on the first count [i. e. patent infringement] and hence there is no ‘substantial and related claim’ under the patent law to support jurisdiction of the unfair competition count.” In this the court erred.
The Supreme Court in Hurn v. Ours-ler, 289 U.S. 238, 243, 53 S.Ct. 586, 77 L.Ed. 1148 (1933) said: “This court [has] held that the circuit court, having acquired jurisdiction by reason of the federal questions involved, ‘had the right to decide all the questions in the case, even though it decided the Federal questions adversely to the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only.’ ” It is true that this statement was made with reference to a complaint disclosing two grounds, one federal and the other local, for recovery on a single cause of action and not to a complaint covering two distinct claims— one of which was non-federal. But Section 1338(b) was thereafter enacted. And as we noted in Stauffer v. Exley, 184 F.2d 962, 964 (9th Cir. 1950), “In construing the sections of title 28 weight should be given to the reviser’s notes which were included in the committee reports when the legislation was before Congress. See Ex parte Collett, 1949, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed.1207, 10 A.L.R.2d 921; United States v. National City Lines, 1949, 337 U.S. 78, 69 S.Ct. 955, 93 L.Ed. 1226. The reviser’s note to § 1338 states: ‘Subsection (b) is added and is intended to avoid' “piecemeal” litigation to enforce common-law and statutory copyright, patent,, and trade-mark rights by specifically permitting such enforcement in a single civil action in the district court. While this is the rule under Federal decisions, this section would enact it as statutory authority. The problem is discussed at length in Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, and in Musher Foundation v. Alba Trading Co., 2 Cir., 1942, 127 F.2d 9, majority and dissenting opinions.’ ”
Thus, in O’Brien v. Westinghouse Electric Corp., 293 F.2d 1, (3d Cir. 1961) it was recognized that the involuntary dismissal of the claim of patent infringement, at the conclusion of plaintiff’s evidence, did not oust the trial court of jurisdiction to continue with the non-federal claim of unfair competition. And in Schreyer v. Casco Products Corp., 190 F.2d 921 (2d Cir. 1951), cert. den. 342 U.S. 913, 72 S.Ct. 360, 96 L.Ed. 683 (1952), the Second Circuit held that where the federal claim of patent infringement was “substantial” and “related” to its non-federal companion claim of unfair competition so as to bring it within the purview of § 1338(b), the reversal of the judgment holding the patent valid and infringed would not deprive of jurisdictional support that part of the judgment determining the defendant liable for unfair competition. But as Judge Magruder, concurring in Strach-inan v. Palmer, 177 F.2d 427, 433 (1st Cir. 1949) aptly stated: “Federal courts should not be overeager to hold onto the determination of issues that might be more appropriately left to settlement in state court litigation merely because they have ‘jurisdiction’ to do so by virtue of a complaint making an unfounded claim of federal right. In Hurn v. Oursler, supra, there was a persuasive practical reason for the exercise of such pendent jurisdiction, for in that case the district court, in order to dispose of the federal claim of copyright infringement, was required to take the entire evidence necessary to resolve the almost parallel non-federal claim of unfair competition, and it would obviously serve everyone’s convenience for the court to adjudicate the whole case, both in its federal and non-federal aspects. But in the present case it was not necessary to go to trial to dispose of the federal claim on its merits. That claim could have been disposed of as a matter of law upon motion to dismiss. If such motion had been made, I am not prepared to say that the district court would have been in error in dismissing the whole case. * * * ”
And in the case before us, although we are satisfied the district court did have jurisdiction over the non-federal subject matter, we believe that on this record the court, in the exercise of a sound discretion, had no choice but to dismiss the complaint with respect to that claim. Unlike Hurn v. Oursler, commented upon by Judge Magruder, or Telechron, Inc. v. Parissi, 197 F.2d 757 (2d Cir. 1952) where dismissal was ordered after sixteen days of trial during which plaintiff had adduced evidence covering both federal and non-federal claims and where the federal claim was still before the court, here neither the plaintiff’s energy nor the court’s time had been so occupied, the federal claim no longer existed and the claim remaining was one more appropriately belonging in a state rather than a federal court. Moynahan v. Pari-Mutuel Employees Guild of Calif., 317 F.2d 209 (9th Cir. 1963).
The district court dismissed the unfair competition claim, but since the merits were not reached, the dismissal should have been of the complaint and not the claim. This will permit plaintiff, if it so desires, to litigate the competition claim in an appropriate state court. The judgment is modified to recite that plaintiff’s complaint, as to the Second Count, is dismissed without prejudice to litigate any such cause of action in an appropriate state forum.
As modified, the judgment is affirmed. Costs to appellee.
. The Summers patent teaches that a length of garden hose having one end closed and the other fitted with a coupling for attachment to a hydrant; holes at intervals along the hose permits discharge of water along the adjoining area.
. “Where a thing patented is an entirety consisting of a single device or combination of old elements incapable of division or separate use, the respondent cannot escape the charge of infringement by alleging or proving that a part of the entire thing is found in one prior art patent or printed publication or machine and another part in another prior exhibit and still another part in a third one, and from the three, or any greater number of such exhibits, draw the conclusion that the patentee is not the original and first inventor of the patented improvement.” Bates v. Coe, 98 U.S. 31, 48, 25 L.Ed. 68 (1878). See also Hailes v. Van Wormer, 87 U.S. 353, 20 Wall. 353, 22 L.Ed. 241 (1873).
. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, p. 152, 71 S.Ct. 127, p. 129, 95 L.Ed. 162: “The conjunction or concert of known elements must contribute something ; only when the whole in some way exceeds the sum of its parts is the accumulation of old devices patentable.”
Hailes v. Van Wormer, 87 U.S. 353, p. 368, 22 L.Ed. 241: “It must be conceded that a new combination, if it produces new and useful results, is patentable, though all the constituents of the combination were well known and in common use before the combination was made. But the results must be a product of the combination, and not a mere aggregate of several results each the complete product of one of the combined elements. * * * Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect without the production of something novel, is not invention.”
Pickering v. McCullough, 104 U.S. 310, p. 318, 26 L.Ed. 749: “In a patentable combination of old elements, all the constituents must so enter into it as that each qualifies every other; to draw an illustration from another branch of the law, they must be joint tenants of the domain of the invention, seised each of e*'ery part, per my et per tout, and not mere tenants in common, with separate interests and estates. It must form either a new machine of a distinct character and function, or produce a result due to the joint and co-operating action of all the elements, and which is not the mere adding together of separate contributions. Otherwise it is only a mechanical juxtaposition, and not a vital union.”
. Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, pp. 89-90, 62 S.Ct. 37, p. 39, 86 L.Ed. 58: “More must be done than to utilize the skill of the art in bringing old tools into new combinations. * * * We may concede that the functions performed by Mead’s combination were new and useful. But that does not necessarily make the device patentable. Under the statute (35 U.S.C. § 31; r. s. § 4886) the device must not only be ‘new and useful,’ it must also be an ‘invention’ or ‘discovery.’ Thompson v. Boisselier, 114 U.S. 1, 11 [5 S.Ct. 1042, 1047, 29 L.Ed. 76], Since Hotchkiss v. Greenwood, 11 How. 248, 267, 13 L.Ed. 683, decided in 1851, it has been recognized that if an improvement is to obtain the privileged position of a patent more ingenuity must be involved than the work of a mechanic skilled in the art.”
Altoona Publix Theatres v. Tri-Ergon Corp., 294 U.S. 477, p. 486, 55 S.Ct. 455, p. 458, 79 L.Ed. 1005: “An improvement to an apparatus or method, to be patentable, must be the result of invention, and not the mere exercise of the skill of the calling or an advance plainly indicated by the prior art. Electrie Cable Joint Co. v. Brooklyn Edison Co., 292 U.S. 69, 79, 80 [54 S.Ct. 586, 78 L.Ed. 1131]. The inclusion of a flywheel in any form of mechanism to secure uniformity of its motion has so long been standard procedure in the field of mechanics and machine design that the use of it in the manner claimed by the present patent involved no more than the skill of the calling.”
Concrete Appliances Corp. v. Gomery, 269 U.S. 177, p. 185, 46 S.Ct. 42, p. 45, 70 L.Ed. 222: “This progressive adaptation, much of which preceded and some of which was contemporaneous with the Callahan adaptation, of well known devices to new but similar uses ‘is but the display of the expected skill of the calling, and involves only the exercise of the ordinary faculties of reasoning upon the materials supplied by a special knowledge, and the facility of manipulation which results from its habitual and intelligent practice.’ Hollister v. Benedict Manufacturing Co., supra, 113 U.S. 59, at page 73, 5 S.Ct. 717 at page 724, 28 L.Ed. 901. No novel elements were used by Callahan in his device. We are unable to find that their use in combination in it was more than the application to them of mechanical skill in the course of a natural development and expansion of the art.”
. Defendant readily acknowledges that the claim of patent infringement was “substantial” but suggests it was not “re: lated” to the competition claim, as is also required by § 1338(b); the suggestion is made that such deficiency afforded the basis for the trial court’s dismissal. The term “related” refers to probative facts; it means that part of the proof in support of one claim be common to the other. The amount of the proof required varies among the several circuits, this circuit being among those that has adopted a liberal construction in order to facilitate joinder. Pursche v. Atlas Scraper Engineering Co., 300 F.2d 467 (9th Cir. 1962) cert. den. 371 U.S. 911, 83 S.Ct. 251, 9 L.Ed.2d 170, rehearing denied, 371 U.S. 959, 83 S.Ct. 499, 9 L.Ed.2d 507. In this case, the summary judgment motion was not directed against the competition claim, and the materials before the district court were not concerned with it; consequently the nature of that claim and the proof' was not asserted. There, the claim was-not enlightening, since the claims against it were very general. On this record it would require speculation to conclude-that the claim was not “related.”
. We accept this statement as setting out the test of substantiality: “Presumably § 1338(b) means nothing more than the claim under the patent law must satisfy the test of substantiality generally exacted when a jurisdictional challenge is asserted in a federal court. In such instances the question is whether the claim jurisdietionally assailed is ‘obviously without merit’ or its unsoundness ‘ “clearly results from previous decisions” ’ of the Supreme Court. Levering & Garrigues Co. v. Morrin, 1933, 289 U.S. 103, 105, 53 S.Ct. 549, 550, 77 L.Ed. 1062. Jurisdiction to adjudicate is wanting only where the federal claims stated in the complaint are so unsubstantial as ‘to be frivolous or * * * plainly without color of merit.’ Binderup v. Pathe Exchange, 1923, 263 U.S. 291, 306, 44 S.Ct. 96, 98, 68 L.Ed. 308. If it appears that a plaintiff is ‘not really relying upon the patent law for his alleged rights’ then the claim does ‘not really and substantially involve a controversy within the jurisdiction of the court’; otherwise jurisdiction exists regardless of whether the claim ultimately be held good or bad. The Pair v. Kohler Die & Specialty Co., 1913, 228 U.S. 22, [24], 25, 33 S.Ct. 410, 411, 57 L.Ed. 716.” O’Brien v. Westinghouse Electric Corp., 293 F.2d 1, at 11 (1961) quoting with approval American Securit Co. v. Shatterproof Glass Corp., D.C.D.Del.1958, 166 F.Supp. 813, affirmed 3 Cir. 1959, 268 F.2d 769.
. This view was subsequently approved as the rule of the first circuit in Massachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F.2d 497 (1st Cir. 1950).
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 28. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_genapel2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
WEYERHAEUSER COMPANY, Plaintiff-Appellee, v. Richard GERSHMAN and Harry Gershman, Defendants-Appellants.
No. 102, Docket 28225.
United States Court of Appeals Second Circuit.
Argued Oct. 16, 1963.
Decided Nov. 6, 1963.
William Warner of Symmers, Fish & Warner, New York City, for plaintiffappellee.
David Haar of Kleiger & Kleiger, New York City, for defendants-appellants.
Before WATERMAN, HAYS and MARSHALL, Circuit Judges.
HAYS, Circuit Judge.
This is an appeal by defendants, Richard and Harry Gershman, from a summary judgment awarding plaintiff, Weyerhaeuser Company, $136,007.97 plus interest, the amount of certain notes of the Richard Lumber Corporation that defendants, officers and stockholders of the corporation, had guaranteed.
Between December, 1961, and April 27, 1962, the Weyerhaeuser Company sold to the Richard Lumber Corporation lumber priced at $136,007.97. In May, 1962, at the request of Weyerhaeuser, the defendants signed guaranties of “any notes, bills or accounts due or to become due to said Weyerhaeuser Company for merchandise heretofore or hereafter at anytime sold or delivered by it” to Richard Lumber Corporation. At the end of August, 1962, Richard Lumber Corporation executed two notes in favor of Weyerhaeuser for $136,007.97. When the corporation defaulted on the notes, Weyerhaeuser proceeded against the Gershmans on their guaranties.
In their answer defendants alleged three affirmative defenses: (1) that the guaranties were given without consideration, (2) that Weyerhaeuser’s agent agreed when the notes were executed that Weyerhaeuser would not bring suit to enforce the notes, and (3) that another action was pending between Weyerhaeuser and defendants on the same cause of action. In opposition to plaintiff’s motion for summary judgment, defendants contended that the issues thus raised by their answer were triable issues of fact, and that therefore summary judgment was improper. After reviewing the pleadings, affidavits submitted by both sides, the notes and the guaranty, and depositions taken in the other action, the court concluded that there were no genuine issues of fact requiring trial. We affirm that determination.
Defendants’ contention that there is a disputed issue of fact concerning whether consideration was given for the guaranties is supported only by formal allegations in their pleadings. These allegations are insufficient to prevent entry of summary judgment. Moreover, the notes here in issue consolidated prior notes and extended their due date, as Harry Gershman testified in a deposition taken for the other action. This extension of credit constituted consideration for the guaranties.
Defendants asserted in their answer and in an affidavit filed in opposition to the motion for summary judgment that Weyerhaeuser’s credit manager, Gallo, assured them at the time of the execution of the notes that Weyerhaeuser would not present the notes for payment at maturity nor bring any action on them. In his deposition, however, Harry Gershman stated that when he indicated his doubts that Richard Lumber Corporation would be able to make payment on the due date, Mr. Gallo replied: “Let’s not worry about that. I want to consolidate the whole account to show your indebtedness, and when we arrive, when we get to December 28th, we will see what we can do.” This detailed description of the statements upon which defendants rely refutes their conclusionary allegations of an agreement not to sue. Moreover, the alleged agreement was contemporaneous with the execution of the notes and is inconsistent with the definite due date on the notes. Proof of such an agreement is excluded by the parol evidence rule. Oleet v. Pennsylvania Exchange Bank, 285 App.Div. 411, 137 N.Y.S.2d 773, 782 (1st Dep’t 1955); Camardella v. Eastern Parkway Roller Skating Rink, Inc., 271 App.Div. 985, 68 N.Y.S.2d 82 (2d Dep’t 1947).
The defense that another action is pending on the same cause of action is equally without merit. The prior action was also on the Gershmans’ guaranties but was based on different notes. Defendants acknowledged the difference in the claims involved in the two suits by defending the first on the ground that the notes sued upon there had been superseded by other notes, the notes sued on here.
Affirmed.
. The use of these depositions was proper under Rule 56(c), and under Rule 26(d) (4), which provides that “when an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties * * * all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.” Under Rule 26(d) (4) dismissal of the prior action is not required. Batelli v. Kagan & Gaines Co., 236 F.2d 167, 169 (9th Cir. 1956).
. Subsequent to the entry of the summary judgment below, the following two sentences were added to Rule 56(e):
“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”
The Advisory Committee on Rules explained that the amendment was in keeping with the original purpose of Rule 56 but was necessary to overcome the restrictive interpretation accorded Rule 56 in the Third Circuit. See United States Code Annotated, July, 1963 pamphlet, p. 512.
. Past consideration consisting of Weyerhaeuser’s prior extension of credit to Richard Lumber Corporation is sufficient under New York law where the guaranty is in writing and states the consideration. N. Y. Personal Property Law, McKinney’s Consol.Laws c. 41, § 33(3).
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_circuit
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
OHIO LOCOMOTIVE CRANE CO. v. DENMAN. SAME v. UNITED STATES.
Nos. 6420-6423.
Circuit Court of Appeals, Sixth Circuit.
Nov. 16, 1934.
E. J. Brunenkant, of Cleveland, Ohio, for Ohio Locomotive Crane Co.
Morton K. Rothschild, of Washington, D. C. (Emerieh B. Freed, of Cleveland, Ohio, Lee N. Murlin and Herman A. Krueger, both of Toledo, Ohio, and E. Barrett Pretty'man and Henry L. Young, both of Washington, D. C., on the brief), for Denman and United States.
Before HICKS and SIMONS, Cirenit Judges, and RAYMOND, District Judge.
HICKS, Circuit Judge.
On February 12,1930, appellant, the Ohio Locomotive Crane Company, herein called Corporation No. 2, brought suit against Nauts, Collector of Internal Revenue, to recover the sum of $124,714.27 and $22,270.85, with interest, which sums it alleged had been wrongfully exacted from it as income and profits taxes for the year 1918, and for the period from January 1 to September 30, 1919, respectively. Nauts died and the pending suit was revived against Denman, the administrator of his estate.
On August 6, 1930, appellant brought suit directly against the United States upon similar causes of action and for similar amounts. For the purposes of the trial, the causes were consolidated and tried by the court without a jury. The court dismissed the suits as to the larger amount, but rendered a joint judgment against the two defendants for the smaller. Hence the appeals by Corporation No. 2, and cross-appeals by the Administrator and the United States.
Corporation No. 2 and cross-appellants each requested special findings of fact and conclusions of law. In response, the court found that Corporation No. 2> was organized in 1916 under the name “The Ohio Crane Company”; that in 1923 it changed its name to “'The Ohio Locomotive Crane Company”; that all its tax liabilities for 1918 and 1919 based upon its returns under the name, “The Ohio Crane Company,” were completely settled in 1923 and that no further controversy thereover has arisen; that in L909 another corporation had been organized under the laws of Ohio, having the identical name, “The Ohio Locomotive Crane Company,” herein called Corporation No. 1; that it engaged in business until October 1, 1919, when it transferred its assets to a newly organized partnership styled “Ohio Locomotive Crane Company” and that thereafter, though it owned no property and transacted no- business, it existed as a corporation until February 15> 1927, when its charter was canceled for failure to pay its state corporation franchise taxes; that about December 39, 1922, Corporation No. 2 purchased from the partnership, “Ohio Locomotive Crane Company,” assets valued at $263,161.50 for which it paid $451.-50 in cash and 1,390 shares of its common stock valued at $189 per share; that included in the purchase were assets of the value of $4,502.25, originally owned by Corporation No. 1, and acquired by the partnership on September 30, 1919; that the remaining assets sold by the partnership were created as a result of the partnership operations during the period from September 30, 1919, to December 1, 1922; that the members of the partnership were stockholders in both corporations; that during 1923 the partnership and both corporations occupied a single office in Bueyrus, Ohio, with a single office force; that from September 15, 1923, until February 15, 1927, the corporations coexisted with identical names and addresses and substantially identical officers, though but one was active.
The court further found that on June 14, 1919, at which time C. F. Michael was its president, Corporation No. 1 filed its income tax return for 1918 as a personal service corporation, reporting no tax liability, and on March 19, .1920, it made a similar return for 1919; that on December 9, 1920, a revenue agent, after an examination of these returns, reported that personal service classification should ho denied and that the taxes of Corporation No. 1 for 1918 and 1919 should he $172,126.07 and $20,622.78, respectively; that from that date until the beginning of the year 1926, Corporation No. 1 continuously contested this determination before the Commissioner, with the result that on April 10, 1926, an assessment was made in the sum of $124,712.27 for taxes for the year 1918, and on March 6,1926, an assessment was made in the sum of $22,270.85 for that portion of the year 19.19 above indicated.
These assessments were against “Ohio Locomotive Crane Company.” As between the Commissioner and Corporation No. 2, the question is, whether these assessments, actually made in the name of the partnership, constituted an assessment against Corporation No. 1. Corporation No. 2 requested the court to find that they were against the partnership as a matter of law. We think this request was properly denied. These assessments were obviously intended to he against Corporation No. 1. The argument to the contrary is based on the omission of the word “The” at the beginning of the corporate name of No. 1.
This is a highly technical objection. We have been cited to no authority requiring that in an assessment the name of the taxpayer must he letter perfect. The symbols appearing upon the assessment list for each year indicate that the assessment was against the corporation rather than the partnership.
From the findings of fact supported by the evidence, it is clear that appellant knew that the Commissioner was proceeding against Corporation No. 1 only, because (1) the tax of that corporation was the only tax in controversy; (2) Michael, as president of Corporation No. 1, who was also president of Corporation No. 2, not only executed a series of waivers extending the time for the assessment of the tax until November 7, 1926, but on May 22, 1925, signed the petition of that corporation for an appeal to the Board of Tax Appeals from the Commissioner’s determination of the deficiency in its taxes for 1918; and (3) Michael had himself executed a power of attorney to one George A. Smith to represent Corporation No. 1 before the Bureau. Moreover, it is apparent that there was no intention to assess the partnership. The statute (section 218(a), Revenue Acts 1918, 1921, 40 Stat. 1070, 42 Stat. 245; Revenue Acts 1924, 1926, § 218 (a), 26 USCA § 959 and note) requiring that an assessment against a partnership should be made against the members thereof in their individual names was not followed.
The above-mentioned appeal of Corporation No. 1 to -the Board of Tax Appeals was ma'de from the ruling in the Commissioner’s deficiency letter which carried the same mistake in name as the assessments. It is manifest that Corporation No. 2 assumed that the assessments were against Corporation No. 1 and ignored the error until the refund claims were filed on July 13,1929, at which time the statute of limitations precluded the making of corrected assessments. Corporation No. 2 was not misled, and, so far as it is concerned, the assessments must be regarded as against Corporation No. 1.
On April 7 and May 7,1926, respectively, notice and demand in the usual form for the payment of the taxes for the year and portion of year involved were mailed. In each instance the name of the taxpayer was given as “Ohio Locomotive Crane Company” and not “The Ohio Locomotive Crane Company.” The court found that these notices and demands were received by Corporation No. 2 in the consolidated offices of appellant and Corporation No. 1 at Bueyrus and that Corporation No. 2 voluntarily paid the taxes.
Whether the payments were voluntary is the second question. -There is ample evidence to support the finding that they were. Mr. Michael, president of Corporation No. 2, testified that when the notices and demands were received he went to Toledo, saw the Collector and protested their payment, but his protest did not go beyond a statement to the Collector, “that it would work a hardship upon us if we had to pay them at that time.” To whom he referred by the pronoun “us” is doubtful, but he made no claim that the taxes were either illegally assessed or erroneously demanded. No warrant of distraint was ever issued against Corporation No. 2 and it paid the taxes for 1919 on April 15, 1926, and for 1918 in four installments between May 15 and June 1, 1926. The payments were made by checks and in the accompanying letters the following expressions are found:
“We would like to arrange to send you our cheek for $34,714.27 by Monday of next week. * * * ”
“We also take pleasure in mailing to you herewith our additional cheek for $30,000.00. * * * ” “and take pleasure in mailing to you herewith our cheek for $50,000.00. * * *»
“Enclosed please -find Bueyrus City Bank check for $10,000.00. * * * ” And, “We take pleasure in enclosing our check No. 4689 in the amount of $142.96 covering accrued interest.” •
It is true that Mr. Michael testified that at the time he issued the checks he thought he was paying the tax liability of Corporation No. 2, but his testimony is not convincing. Its uncertain nature is illustrated by the following excerpts therefrom:
“Q. Then at the time you issued those-cheeks, whose tax liability did you think you-were paying? A. The Ohio Crane Company.
“Q. Ohio Crane Company? A. Ohio Locomotive Crane Company.
“Q. Corporation No. 1 or Corporation No. 2? A. Well, Corporation No. 2.
“Q. You knew as a matter of fact that Corporation No. 1, bearing the same name, The Ohio Locomotive Crane Company, tax liability was under dispute from the year 1920 up to 1926, did you not? A. It was under dispute.
“Q. Yes. A. Yes, sir.
“Q. In the Treasury Department. You went to Washington? A. Yes, sir.
“Q. And conferred relative to the tax liability of Corporation No. 1, bearing the name The Ohio Locomotive Crane Company, did you not? A. Yes, sir. I didn’t go to Washington ; Mr. Stoltz went. * * *
“Q. Now, Sir. Michael, 1 again hand you this notice and demand for tho year 1918, in the amount of $123,790.08. Now, in view of that petition, and in view of tho notice and demand, when you paid that tux, you knew you were paying the taxes for Corporation No. 1, did vou not? A. No, I can’t say that I did.
“Q. You can’t say that yon did, — in view of the fact that less than a year previous you filed a petition with the Board of Tax Appeals in which that very amount was in dispute? A. The amounts arc alike, but I don’t ■ — I can’t say definitely as to that.”
But, regardless of the weight to be given to Mr. Michael’s testimony, there is substantial evidence, as indicated above, to sustain the findings of the court to tho contrary.
Corporation No. 2 urges upon us the case of Moore Ice Cream Co. v. Rose, Collector, 289 U. S. 373, 53 S. Ct. 620, 77 L. Ed. 1265. Nothing in that ease benefits it. It construes certain provisions of section 1014 of the Revenue Act of 1924, c. 234 (43 Stat. 253, 343), 26 USCA § 156 and note, amending Revised Statutes, § 3226. The amendment permits the recovery of taxes illegally assessed or collected regardless of whether the payment was voluntary or otherwise, but it gives no aid to one who “pays another’s tax actually due, with full knowledge of what lie is doing, ■s «■ » gce Clift & Goodrich, Inc., v. United States, 56 F.(2d) 751, 753 (C. C. A. 2). There is little room for doubt that Corporation No. 2 willingly made the payments upon the belief that it was itself liable therefor as a transferee; or that several of its largest stockholders, being the original transferees from Corporation No. 1, would be liable therefor as individuals. See Phillips v. Commissioner, 283 U. S. 589, 51 S. Ct. 608, 75 L. Ed. 1289. It was not seriously contended that Corporation No*. 1 did not owe the tax for 1918. That question was foreclosed when its appeal to the Board of Tax Appeals was dismissed and we find nothing unconscionable, under the circumstances, for the government to retain the tax. Lewis v. Reynolds, 284 U. S. 281, 283, 52 S. Ct. 145, 76 L. Ed. 293; Cary v. Curtis, 3 How. 236, 246, 11 L. Ed. 576; American Security & Trust Co. v. Tait, 5 F. Supp, 337, 344 (D. C.).
As to the taxes for the year 1919, the court held that they were not assessed within the time permitted by law, that tho amount thereof was not therefore collectible from anybody, and that appellant was entitled to recover therefor. We think the holding should be sustained in view of our conclusion that the assessment was really against Corporation No. 1. That corporation had by waivers extended the time for assessment to March 1, 1926, only, and the assessment was not made until March 6, 1926. Cross-appellant claims that the period for assessment was extended for one year from March 1, 1.926, because Corporation No. 1 had dispossessed itself of its assets by a sale to the partnership and that the period for assessment did not therefore expire until March 1, 1927.
Cross-appellants misconstrue the effect of section 280 (b) (1) of the Revenue Act of 1926, 26 USCA § 1069 (b) (1). The extension of one year therein permitted applies not to the transferor but to the transferee (here the partnership). See City National Bank v. Commissioner, 55 F.(2d) 1073 (C. C. A. 5).
Cross-appellant United States makes the point that the joint judgment for $22,270.85 with interest was invalid; that the suit should have been dismissed against it' for lack of jurisdiction; that the District Court in virtue of USC tit. 28, § 41(20), 28 USCA § 41(20), had only concurrent jurisdiction with the Court of Claims; that if the suit against the United States had been brought in the Court of: Claims, it would have had no jurisdiction because the suit against tho Collector was then pending in the District Court. See U. S. C. tit. 28, § 260 (28 USCA § 2:60). The point is well made, but a direct dismissal against the United States is not required. Corporation No. 2 is entitled to its judgment for the amount exacted from it for the year 1919, which it may have against one or the other of appellees or cross-appellants at its election. Matson Navigation Co. v. U. S., 284 U. S. 352, 356, 52 S. Ct. 162, 76 L. Ed. 336; Stark v. U. S., 14 F.(2d) 616, 618 (D. C.).
The result is that the judgment of the District Court denying a recovery in the sum of , $124,714.27, the taxes in dispute for the year 1918, is affirmed, but the judgment against cross-appellants, Denman, Administrator, and the United States of America, for $22,270.85 with interest, is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
James A. HEACKER and wife Marie Heacker, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellees.
No. 17623.
United States Court of Appeals Fifth Circuit.
Sept. 25, 1959.
Edward J. Dees, Dallas, Tex., for appellants.
Donald K. King, Whitney R. Harris, Dallas, Tex., Grover Sellers, Sulphur Springs, Ark., for appellees.
Before RIVES, Chief Judge, and CAMERON and JONES, Circuit Judges.
CAMERON, Circuit Judge.
Appellant James A. Heacker, individually and in behalf of his wife, Marie Heacker, instituted this action for damages in the district court alleging negligence of the agents, servants and employees of the appellee Southwestern Bell Telephone Company resulting in injuries to Marie Heacker when she fell on the ice-covered sidewalk along the front of the appellee’s premises in Greenville, Texas. This is an appeal from a summary judgment granted by the court below in favor of defendant-appellee. The determinant questions presented are whether appellant Marie Heacker, at the time of the accident, was within the scope of her employment, and whether the filing of a claim for Workmen’s Compensation, receipt of medical expenses and other compensation' thereunder, constitutes an election of remedies or estops the appellant from maintaining a common law action.
We think the facts involved in these questions are uncontroverted and are revealed clearly by the pleadings, the deposition of Marie Heacker (attached to the motion for summary judgment), and statements and argument of counsel before the district court which appear in the record.
Marie Heacker was a career employee of Southwestern Bell Telephone Company employed in 1935, assigned to the telephone exchange in Dennison, Texas in 1943. In the latter part of January, 1956, having attained the position of service assistant, she was temporarily assigned on an expense account covering meals, lodging and travel, to the exchange in Greenville, Texas, there to instruct the local operators in problems which would arise in connection with the pending conversion to the dial system.
After arrival in Greenville, Mrs. Heacker found accommodations in a local hotel situated several blocks from the telephone exchange. The injury involved in this case was suffered a few minutes before 8:00 a. m. on' Feb. 3rd. Mrs. Heacker, on that morning, left the hotel at approximately 7:40 a. m. with another employee and began walking to the telephone office, as she had done on two or three previous mornings. It was a cold and icy day and the sidewalks between the hotel and the exchange were, for the most part, difficult of travel due to the accumulation of ice and snow thereon. Because of the treacherous condition of the sidewalk, the two employees of Southwestern chose to walk in the streets a substantial portion of the journey between the hotel and the exchange building.
Upon arrival at a point directly in front of the Southwestern Building, the two ladies crossed the street and, after Mrs. Heacker had stepped from the street onto the sidewalk running across the front of the exchange building, she attempted to take a second step on the sidewalk, slipped and fell on the icy surface, fracturing the radius and ulna bones of her right wrist.
Within a short period of time after her injury, she was taken to a local clinic and placed under the care of an orthopedist. Three days later she was visited by two representatives of Southwestern, at which time she signed a completed printed form entitled “Notice of Injury and Claim for Compensation, Texas Workmen’s Compensation,” in which she gave notice of her injury, filed a claim for compensation due under the Workmen’s Compensation Law of Texas, and requested that the Industrial Accident Board take action on her claim as soon as possible. On the basis of this claim, the Texas Compensation Insurance Company paid to Mrs. Heacker $1,810.71, which sum represents compensation due from the date of the injury until the time of her return to work on June 23, 1957, computed at the rate of $25 per week for a total of seventy-two weeks and three days. Medical expenses based upon this claim in the amount of $1,467.64 were also paid by the Texas Compensation Insurance Company. Later surgery was performed January 14, 1957. On June 24, 1957, Mrs. Heacker resumed her duties with the appellee. During her absence from work she had received full pay for the first year, and half pay thereafter.
This action was brought by her husband on Feb. 3, 1958. The complaint alleges that Southwestern and those acting in its behalf were guilty of negligence with respect to Marie Heacker relating generally to the condition of the sidewalk in front of the premises of said company at Greenville, Texas on the day of the accident and that Marie Heacker, because of said negligence and the injury resulting therefrom, was permanently incapacitated from performing her usual duties of employment and suffered damages in the amount of $50,500. Southwestern filed its answer denying the charge of negligence and disclaiming any liability to plaintiff by reason of the accident and injuries.
Southwestern thereafter filed its motion for a summary judgment upon the grounds (1) that the exclusive remedy of the employee in this controversy for the accidental injury was under the Workmen’s Compensation Law of Texas against the insurance carrier of Southwestern Bell Telephone Company, and (2) that by filing her claim for compensation with the Industrial Accident Board and accepting compensation thereunder, Marie Heacker elected to pursue her remedy under the Workmen’s Compensation Law of Texas, and is thereby precluded from maintaining this common law action against her employer.
Generally, the question of whether an employee was acting within the scope of his employment is an issue of fact to be resolved by the jury. Texas Indemnity Insurance Co. v. Hubbard, Tex.Civ.App.1940, 138 S.W.2d 626; New Amsterdam Casualty Co. v. Hosch, Tex. Civ.App.1935, 78 S.W.2d 633. Where, however, as here, the relevant evidence is so indisputed and so conclusive that reasonable minds cannot reach different conclusions, the question becomes one of law. See Croswell v. Commercial Standard Ins. Co., Tex.Civ.App.1933, 56 S.W.2d 918; Maryland Casualty Co. v. Williams, Tex. Civ.App.1932, 47 S.W.2d 858; Texas Employers’ Insurance Association v. Sewell, Tex.Civ.App.1930, 32 S.W.2d 262.
Out of the phenomenal industrial growth of this century arose the conviction among the public that the common law rules of liability were unsuitable to afford adequate relief to the countless number of persons sustaining injury in their employment. The belief became widespread that the burden of employment-connected deaths and injuries should rest with employers.
Workmen’s Compensation statutes have been quite generally enacted whereunder compensation is paid without regard to common law rules of liability to those injured in the course of their employment. 58 American Jurisprudence, Workmen’s Compensation, § 2, p. 575. Either by statute or by court decision, it is generally established that such statutes should be liberally construed as to coverage. This is true in Texas whose law governs. Hooper v. Great American Indemnity Co., 5 Cir., 1939,102 F.2d 739; Federal Surety Co. v. Ragle, Tex.Civ. App.1930, 25 S.W.2d 898; Vernon’s Annotated Texas Statutes, Article 8306 et seq. While there are many cases from Texas courts denying coverage to employees while going to and from the place of their employment, there are many holding the other way and this case, in our opinion, falls within the latter group. It is clear that under the Texas Statute, injuries are compensable which result from risks inherent in, or incident to, the conduct of the employer's business without regard to the time or place the accident occurred.
In National Surety Corp. v. Bellah, 5 Cir., 1957, 245 F.2d 936, we held that an employee injured in a restaurant on the company premises during her lunch period was entitled to compensation notwithstanding the fact that the injury occurred outside of her normal hours of service and that she was not discharging any specific duties connected with her employment at the time of the accident.
In Federal Surety Co. v. Ragle, supra, the employee was injured while attempting to crank an automobile in which he was to ride home after work. The Texas Commission of Appeals, in affirming the action of the Court of Civil Appeals in granting compensation, said: “Since it was not required * * * that Ragle should spend the nights or time not at work at the well * * * it was necessary * * * that he leave the well and go somewhere for rest and sleep and return thereto for duty. Whatever dangers or perils he encountered in leaving or approaching the premises were encountered in the usual and customary manner that he might perform the duties imposed by his contract of service.” And later, in the same opinion: “It is also equally well established that all dangers and perils incident to the usual and customary methods of entrance to and retirement from employer’s premises or zone of employment were perils incident to and ‘arising out of employment,’ as provided for under article 8309 R.S. 1925.”
In Ragle, the Commission dealt at length with Texas cases on the subject of whether injuries sustained going to and from work were compensable and leaned heavily upon the Supreme Court case of Cudahy Packing Co. of Nebraska v. Par-ramore, 1923, 263 U.S. 418, 426, 44 S.Ct. 153, 155, 68 L.Ed. 366. That case, in the words of the Commission, “involved the construction of a similar statute enacted by the state of Utah.” There, the customary method of ingress and egress to the Cudahy Packing Plant was down a road and across some railroad tracks. Parramore, an employee of Cudahy was killed at this crossing on his way to work one morning. The Supreme Court, in holding that the accident resulting in the death of Parramore arose out of the course of his employment, made the following observation:
“Here the location of the plant was at a place so situated as to make the customary and only practical way of immediate ingress and egress one of hazard. Parramore could not, at the point of the accident, select his way. He had no other choice than to go over the railway tracks in order to get to his work; and he was in effect invited by his employer to do so and this he was obliged to do regularly and continuously as a necessary concomitant of his employment, resulting in a degree of exposure to the common risk beyond that to which the general public was subjected. The railroad over which the way extended was not only immediately adjacent to the plant, but, by means of switches, was connected with it, and in principle it was as though upon the actual premises of the employer.
“We attach no importance to the fact that the accident happened a few minutes before the time Parra-more was to begin work, and was therefore, to that extent, outside the specific hours of employment. The employment contemplated his entry upon and departure from the premises as much as it contemplated his working there, and must include a reasonable interval of time for that purpose.” [263 U.S. 426, 44 S.Ct. 155.]
In the case before us, the hazards of the snow and ice were perils confronting the public in general. Persons utilizing the streets and sidewalks in the ordinary course of their day’s activities were free, as was Mrs. Heacker most of the distance between the hotel and the Southwestern Building, to choose the routes they would take, avoiding those areas which in their judgment appeared to be impassable. In her deposition, Mrs. Heacker stated that on several occasions between the hotel and the exchange, it was necessary to walk in the street to avoid particularly dangerous areas. It appears from her deposition that this power of selection terminated upon her arrival in front of appellee’s premises. In order to reach the premises where her employment required her to be, she was required to negotiate the icy sidewalk in front of the Southwestern Building. It was a hazard or peril incident to her employment on the day of the accident.
In Texas Employers Insurance Association v. Cobb, 1938, 118 S.W.2d 375, the Texas Court of Civil Appeals declared that where an employee, whose duties required that he travel from place to place collecting accounts, was asphyxiated in a motel on a Sunday night, the accident causing his death was within the coverage envisioned by the Texas Workmen’s Compensation Statute. The court, in that case, concluded that the duty imposed upon him by the character of his employment to go from place to place at the instance of his employer formed a causal connection between the accident and the employment.
The responsibilities and duties imposed upon Marie Heacker by virtue of her employment required that she travel from Dennison, Texas to Greenville, to ñnd lodging in the latter city and to pass back and forth between her chosen place of lodging and the telephone exchange building. On the day of the accident, the weather was cold and the sidewalks covered with snow and ice, but the responsibilities of Marie Heacker remained the same. It is not necessary for us to decide whether an injury resulting from an accident occurring a block or more away could be said to have arisen from her employment. The place of accident was, for all practical purposes, a part of the premises of the appellee. Marie Heacker had no alternative but to attempt to- cross the hazardous sidewalk fronting these premises. Her employment contemplated her doing just that before the hour on which her duties would commence.
In our view, the danger inherent in any attempt of Marie Heacker to cross the ice-bound sidewalk in front of appellee’s premises on her way to work cannot be other than a peril or hazard incident to or connected with her employment, and we hold that the injury was within the coverage of the Texas statute. Under Article 8306, § 3, Vernon’s Texas Civil Statutes, employees injured within the scope of their employment and their representatives have no right of action against their employer, and their sole remedy is under the Workmen’s Compensation Statute of Texas. It is, therefore, clear that the court below did not err in granting the motion of the company for a summary judgment. The judgment is, therefore,
Affirmed.
. Cf. Republic Underwriters v. Terrell, Tex.Civ.App.1939, 126 S.W.2d 752.
. Federal Surety Co. v. Ragle, Tex.Com. App.1931, 40 S.W.24 63, 64; and Federal Surety Co. v. Ragle, Tex.Civ.App.1930, 25 S.W.2d 898.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
HALL v. UNITED STATES.
No. 13871.
United Slates Court of Appeals Eighth Circuit.
June 9, 1950.
Frank J. O’Leary, Kansas City, Mo., for appellant.
Richard H. Musser, Assistant United States Attorney, Kansas City, Mo. (Sam M. Wear, United States Attorney, Kansas City, Mo., was with him on the brief), for appellee.
Before SANBORN, JOHNSEN and RIDDICK, Circuit Judges.
SANBORN, Circuit Judge.
LeRoy Neeley and Milton Hall were charged, by an indictment, with having, on June 24, 1948, stolen a case of Camel cigarettes from the Missouri Pacific Railroad docks at Kansas City, Missouri, while the cigarettes were moving in interstate commerce as a portion of a shipment from R. J. Reynolds Tobacco Company, Kansas City, Missouri, to Rohlfmg & Company, Leavenworth, Kansas. The indictment was based on § 409, Title 18 U.S.C., now § 659, Title Both defendants were, on June 24, 1948, employees of the Missouri 18 U.S.C.A. Pacific Railroad Company, working on its docks in Kansas City, Missouri.
Neeley entered a plea of guilty. Hall stood trial and was convicted by a jury. The court had denied his motion for a directed verdict of acquittal. From the judgment and sentence entered upon the verdict, Hall has appealed. ,
The grounds upon which Hall seeks reversal are: (1) lack of evidence that the case of cigarettes allegedly stolen by him from the railroad docks was from the interstate shipment referred to in the indictment; (2) the failure of the court to direct the jury to disregard an improper remark of the prosecutor made during the cross-examination of one of Hall’s character witnesses ; and (3) the instruction of the court that Hall’s certificate of Honorable Discharge from the Army, which had been received in evidence without objection, had no probative force.
It is not a federal offense to steal a case of Camel cigarettes from the Missouri Pacific Railroad docks in Kansas City, Missouri, unless the theft is from a shipment moving in interstate commerce. It was therefore incumbent upon the Government to prove not only that Hall stole or participated in the stealing of a case of Camel cigarettes from the docks, but that the case stolen was from the interstate shipment specified in the indictment.
The evidence of the Government established that, at about four- or five o’clock in the afternoon of June 24, 1948, there was delivered at the railroad docks in Kansas City a shipment of 15 cases of Camel cigarettes consigned by R. J. Reynolds Tobacco Company to Rohlfing & Company, Leavenworth, Kansas; that the carrier received and accepted this shipment; that in transferring the shipment to a platform truck, the railroad checker found that one of the cases “was partly open at the tip”; that he directed that the entire shipment be taken to the Cooper Shop at the docks for repair of the one case; that the shipment came to the Cooper Shop.on a truck; that the split seam of the one defective case was mended with white tape, and it was put back on the truck; that the shipment was turned over to Jesse Childs, a “line-up man,” whose duty it was to place the truck in position to be hauled by a tractor man to the location on the docks for loading the shipment into the car destined to Leavenworth; that the car, when loaded, was sealed, apparently between 5 and 6 o’clock p. m.; that it arrived in Leavenworth the following morning with seals intact; and that the shipment of cigarettes was then found to be one case short. This evidence was concededly sufficient to support a finding that the missing case of cigarettes had not been loaded into the car at Kansas City.
Two apparently disinterested Government witnesses testified that, at about 5 :35 p. m. on June 24, 1948, they saw Neeley hand or throw a case of Camel cigarettes from the dock to Hall, who was on the ground, and who put the case in his automobile, parked nearby, and drove away.
Neeley testified for the Government. On direct examination, his testimony was, in part, as follows:
„ “Q. Now, referring your recollection to June 24, 1948 what did you and Milton Hall do together that day? A. Well, some cigarettes came open there and so, they were setting there when I went up there to put the stuff down on the floor there, so I seen them there.
“Q. Where were they setting? A. On the jack [platform truck],
“Q. About where from Gate 29? A. Oh, maybe about five feet.
“Q. From Gate 29? A. Yes. So he says to me, he says, ‘Something is coming up here. What can we do about it ? ’ I said ‘All right.’ He said, told me to hand him the carton, so I did.”
Neeley also testified that Hall took the case of cigarettes and put it in his car, and a day or two later gave Neeley ten dollars as his share of the proceeds. On cross-examination, Neeley gave the following testimony :
“Q. Now, tell us what he [Hall] said. A. Well, he said he had those cigarettes up there. He said there was some cigarettes up there, and he wanted me to give them to him, on this jack, and I gave them to him.
“Q. Where was he when he told you that? A. In the freight house.
* >}< * * * *
“Q. And what did you do? A. Well, I walked up to him — I looked for them and found them.
“Q. What did you find ? A. That case of cigarettes.
“Q. Is that all you found? A. That is all.
“Q. Just one case of cigarettes? A. Just one case of cigarettes.”
There is no indication in Neeley’s testimony that he knew from what shipment the case of cigarettes he handed to Hall was taken, or that the case was broken or taped up, or that it bore any number indicating the car for which it was intended or had any marks showing its destination. Apparently, all that Neeley knew was that he took a case of cigarettes from a truck and handed it to Hall, at Hall’s request. Whether the truck contained 15 cases or one case cannot be determined from the record. The other two Government witnesses who testified to the theft said that they saw Neeley hand Hall a case of Camel cigarettes. Neither of them said anything about a broken case or a taped-up case, or furnished any information as to the shipment from which the case was taken.
If Camel cigarettes were a rare commodity or if the evidence showed that the only cases of Camel cigarettes on the railroad docks at 5 :35 p. m. June 24, 1948, were the 15 cases destined to Leavenworth, an inference that the case stolen by Neeley and Hall was one of those 15 cases would, no doubt, be justified. We think, however, that the Government failed to prove that the cigarettes handed to Hall by Neeley were taken from the interstate shipment in suit. The situation in the instant cáse is analogous to that which resulted in a reversal in Cox v. United States, 8 Cir., 96 F.2d 41. While the evidence of the Government in the instant case is consistent with the theory that the theft was from the interstate shipment, it is not inconsistent with the theory that the theft was not from that shipment and was a State offense.
There is another reason why there must be a retrial of this case, although the point is not specified or argued in the appellant’s brief. The court charged the jury as follows: “Now, as to the law of the case. If you shall find and believe from the evidence in this case that the defendant on or about the 24th of June, this year, 1948, willfully and unlawfully, knowingly and feloniously took a case of cigarettes from the station, from the loading docks in Kansas City, Missouri, the loading docks of the Missouri Pacific Railroad Company, then it would be your duty to return a verdict of Guilty in this case. As I have indicated to you, if there should be any doubt in your mind, if you should believe reasonably he did not do it, you should return a verdict for the defendant.”
That instruction was obviously erroneous. Counsel for Hall took an exception to it at the trial, and assigned it as error in a motion for a new trial. The instruction was, as a practical matter, fatal to Hall’s defense, since the jury could hardly have found from the evidence that Hall had not participated in stealing a case of cigarettes from the railroad docks. This error in the court’s instructions is too plain and vital to be overlooked. See Ayers v. United States, 8 Cir., 58 F.2d 607, 609, and cases cited.
The other points relied upon by the appellant need not be discussed. The questions raised by them are unlikely to recur upon a retrial of this case. The opinion of the Supreme Court in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168, furnishes an adequate guide in dealing with the subject of character evidence.
The judgment appealed from is reversed and the case is remanded for a new trial.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_lcdisposition
|
D
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
GENERAL MOTORS CORP. v. DISTRICT OF COLUMBIA.
No. 352.
Argued March 10, 1965.
Decided April 27, 1965.
Donald K. Barnes argued the cause for petitioner. With him on the briefs were Aloysius F. Power, Thomas J. Hughes, Seymour S. Mintz, William T. Plumb, Jr., and E. Barrett Prettyman, Jr.
Henry E. Wixon argued the cause for respondent. With him on the brief were Chester H. Cray and Milton D. Korman.
Mr. Justice Stewart
delivered the opinion of the Court.
The District of Columbia Income and Franchise Tax Act of 1947 imposes a tax of 5% on the taxable income of every corporation, foreign or domestic, for the privilege of engaging in any trade or business within the District. The Act further provides that “[t]he measure of the franchise tax shall be that portion of the net income of the corporation ... as is fairly attributable to any trade or business carried on or engaged in within the District and such other net income as is derived from sources within the District.” The Act does not attempt to define a specific method whereby the portion of income “fairly attributable” to the District is to be determined, but authorizes the District Commissioners to prescribe regulations for such determination. However, the Commissioners’ discretion in devising such regulations is not unfettered, as the Act further commands: “If the trade or business of any corporation ... is carried on or engaged in both within and without the District, the net income derived therefrom shall ... be deemed to be income from sources within and without the District.”
Acting pursuant to the authority delegated to formulate regulations governing the allocation of income, the District Commissioners promulgated regulations which provide: “Where income for any taxable year is derived from the manufacture and sale or purchase and sale of tangible personal property, the portion thereof to be apportioned to the District shall be such percentage of the total of such income as the District sales made during such taxable year bear to the total sales made everywhere during such taxable year.”
The petitioner, General Motors Corporation (G. M.), seeks reyiew of an en banc decision of the Court of Appeals for the District of Columbia Circuit which approved the application of these regulations in determining the proportion of its total net income allocable to the District for the purpose of computing the franchise tax due. General Motors attacks this method of computation on the grounds that it attributes to the District an unreasonably high proportion of its total income and that it is therefore both unauthorized by the relevant sections of the statute, and violative of the Interstate Commerce and Due Process Clauses of the Constitution. We agree that this method of allocation is not authorized by the D. C. Code and therefore reverse the judgment of the Court of Appeals without reaching the constitutional questions raised.
General Motors is engaged in the manufacture and sale of motor vehicles, parts, and accessories. A Delaware corporation, the petitioner maintains its principal offices in New York and Detroit. It carries on no manufacturing operations within the District of Columbia, but it makes substantial sales to customers located within the District, chiefly retail automobile dealers. During the years in question, 1957 and 1958, its volume of sales to such customers aggregated $37,185,704 and $32,542,519, respectively. Orders for these sales were received and filled outside the District, and the products were shipped to customers from G. M. manufacturing plants in Maryland, Delaware, and Michigan.
It is the claim of G. M. that the use of the “sales-factor formula” in the regulations is beyond the authority of the statute, because that formula taxes more of its net income than is “fairly attributable” to its District of Columbia business, particularly in light of the statutory provision which provides that the net income of a business carried on both within and without the District shall be deemed to be from sources within and without the District. We agree that the Commissioners exceeded their statutory authority by allocating income to the District in disregard of the express restrictions of the law.
We are normally content to leave undisturbed decisions by the Court of Appeals for the District of Columbia Circuit concerning the import of legislation governing the affairs of the District. However, at times application of the District Code has an impact not confined to the Potomac’s shores, but reaching far beyond. This is such a case, for approval of the District Commissioners’ regulations lends sanction to an apportionment formula seriously at variance with those prevailing in the vast majority of States and creates substantial dangers of multiple taxation. Where a decision is of such significance to interstate commerce, and where the result reached involves statutorily unsupportable exertions of administrative power, the traditional reasons underlying our customary refusal to review interpretations of District law do not apply.
It is of course clear that the District Code does not expressly prescribe the use of any particular formula for the apportionment of income to sources within and without the District. On the contrary, the Code expressly authorizes the District Commissioners to promulgate regulations for the detailed apportionment of the income of multistate enterprises. But neither does the Code leave the Commissioners wholly unguided in their exercise of this authority. The Commissioners’ authority is clearly limited by the provision (§ 47-1580a) which requires that the net income of a corporation doing business inside and outside the District be deemed to arise from sources situated in like fashion. To understand the meaning of this limitation, we need but take the simple example of a corporation which has its manufacturing facilities located wholly in Maryland and sells all of its products in the District of Columbia. Application of the Commissioners’ formula would result in the allocation of 100% of the corporation’s income to the District. Yet there can be no doubt that the business of the corporation is carried on both within and without the District, viz., manufacture in Maryland and sales in the District. The statute does not say that net income shall be deemed to be derived from sources within and without the District only where the sales of any corporation are made both within and without the District, which is the effect of the Commissioners’ regulation. The statute is phrased more broadly and commands apportionment of income to sources within and without the District whenever “the trade or business of any corporation ... is carried on or engaged in both within and without the District.” As it is clear that some part of the trade or business of this hypothetical corporation is carried on without the District, the conclusion follows that the Commissioners must “deem” some part of the income of this corporation to be derived from sources outside the District.
It is said that the Commissioners’ regulations are within the statutory grant of authority because the language “the net income derived therefrom” in § 47-1580a must be read to mean the total income of the corporation and not the “net income arising from activities in the District.” The section must be so read, it is argued, because this reading least restricts the discretion of the Commissioners in devising apportionment formulae, and the traditional canon of broad construction of revenue measures demands that restrictions on the Commissioners’ discretion be minimized. Applying this approach to the case at hand, it is argued that the Commissioners fulfilled their statutory obligation in apportioning the total income of G. M. to sources inside and outside the District in accordance with the geographical distribution of the company’s sales.
Where, as in this case, some portion of a corporation’s income is derived from manufacture and sale outside the District, there is no question that the statute requires the Commissioners to allocate that portion to sources outside the District. However, it does not follow that the malting of.that kind of allocation alone relieves the Commissioners of their statutory responsibility to apportion that part of a corporation’s income arising from manufacture outside and sale inside the District limits. As to this segment of its income, G. M. is in precisely the same situation as the hypothetical corporation manufacturing wholly in Maryland and selling solely in the District; that is, it is carrying on a business partly within and partly without the District limits. It is not enough under the statute to require apportionment of income derived from District sales only in the case where the taxed corporation has no sales outside the District. The inescapable and determinative fact in both the hypothetical case and the case before us is that the company carries on business both inside and outside the District with respect to the income which it derives from the sales made within the District. Consequently, § 47-1580a requires that some portion of this income be deemed to arise from sources outside the District.'
The conclusion which we reach by analysis of the plain language of the statute also finds support in the consequences which a contrary view would have for the overall pattern of taxation of income derived from interstate commerce. The great majority of States imposing corporate income taxes apportion the total income of a corporation by application of a three-factor formula which gives equal weight to the geographical distribution of plant, payroll, and sales. The use of an apportionment formula based wholly on the sales factor, in the context of general use of the three-factor approach, will ordinarily result in multiple taxation of corporate net income; for the States in which the property and payroll of the corporation are located will allocate to themselves 67% of the corporation’s income, whereas the jurisdictions in which the sales are made will allocate 100% of the income to themselves. Conversely, in some cases enterprises will have their payroll and plant located in the sales-factor jurisdictions and make their sales in the three-factor jurisdictions so that only 33% of their incomes will be subject to state taxation. In any case, the sheer inconsistency of the District formula with that generally prevailing may tend to result in the unhealthy fragmentation of enterprise and an uneconomic pattern of plant location, and so presents an added reason why this Court must give proper meaning to the relevant provisions of the District Code.
Moreover, the result reached in this case is consistent with the concern which the Court has shown that state taxes imposed on income from interstate commerce be fairly apportioned. In upholding taxes imposed on corporate income by Connecticut and New York and apportioned in accordance with the geographical distribution of a corporation’s property, this Court carefully inquired into the reasonableness of the apportionment formulae used.
“The profits of the corporation were largely earned by a series of transactions beginning with manufacture in Connecticut and ending with sale in other States. In this it was typical of a large part of the manufacturing business conducted in the State. The legislature in attempting to put upon this business its fair share of the burden of taxation was faced with the impossibility of allocating specifically the profits earned by the processes conducted within its borders. . . . There is . . . nothing in this record to show that the method of apportionment adopted by the State was inherently arbitrary, or that its application to this corporation produced an unreasonable result.” Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, 120-121.
See also Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm’n, 266 U. S. 271. While the Court has refrained from attempting to define any single appropriate method of apportionment, it has sought to ensure that the methods used display a modicum of reasonable relation to corporate activities within the State. The Court has approved formulae based on the geographical distribution of corporate property and those based on the standard three-factor formula. See, e. g., Underwood Typewriter Co. v. Chamberlain, supra; Butler Bros. v. McColgan, 315 U. S. 501. The standard three-factor formula can be justified as a rough, practical approximation of the distribution of either a corporation’s sources of income or the social costs which it generates. By contrast, the geographic distribution of a corporation’s sales is, by itself, of dubious significance in indicating the locus of either factor. We of course do not mean to take any position on the constitutionality of a state income tax based on the sales factor alone. For the present purpose, it is sufficient to note that the factors alluded to by this Court in justifying apportionment measures constitutionally challenged in the past lend little support to the use of an exclusively sales-oriented approach. In construing the District Code to prohibit the use of a sales-factor formula, we sacrifice none of the values which' our scrutiny of state apportionment measures has sought to protect.
In sum, we find that the language of the authorizing statute does not permit the application of an apportionment formula which makes use of the sales factor alone. The conclusion which we draw from examination of the statutory language finds support in the conflict with other taxing jurisdictions which would result from a contrary view. It finds further support in the continuing concern for fair apportionment which this Court has displayed over the years in scrutinizing state taxing statutes. As the District Code confides in the Commissioners the authority to prescribe detailed regulations, it is not for us to make specific prescription, and we limit ourselves to holding that the present regulation is unauthorized by the statute. Accordingly, the judgment of the Court of Appeals for the District of Columbia Circuit is reversed and the case remanded for proceedings consistent with this opinion.
Reversed and remanded.
Mr. Justice Black and Mr. Justice Douglas, agreeing with the Court of Appeals that the tax here is authorized by the controlling statute, would affirm the judgment.
D. C. Code 1961, §47-1571a.
D. C. Code 1961, §47-1580.
D. C. Code 1961, §47-1580a.
Ibid.
Section 10.2 (c) of the District of Columbia Income and Franchise Tax Regulations, relettered by amendment of July 24, 1956.
118 U. S. App. D. C. 381, 336 F. 2d 885, certiorari granted, 379 U. S. 887. An earlier decision (91 Wash. Law Rep. 650) of a panel of the Circuit Court, reversed by the decision here reviewed, had reached a contrary conclusion in affirming the decision of the'District of Columbia Tax Court (CCH D. C. Tax Rep. ¶ 200-006).
Out of total sales of $9,461,855,874 in 1957 and $7,853,393,381 in 1958.
This is not to say that the Commissioners need engage in detailed segmentation of corporate income to source and specific allocation thereof. All that is required is that the formula adopted for general application take account of the geographical spread of the major dimensions of a business.
Of the 38 States requiring payment of such taxes, 26 employ varieties of a three-factor formula which takes into account the geographical distribution of a corporation’s payroll, property and sales, generally giving equal weight to each factor. Another three use substantially the same formula, replacing the payroll factor with the broader category of manufacturing costs. Yet another three make, use of a formula which incorporates the sales and property factors. Only four taxing jurisdictions use formulae based solely on the geographic distribution of corporate sales. See H. R. Rep. No. 1480, 88th Cong., 2d Sess., at 119.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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songer_casetyp1_3-2
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "First Amendment".
Robert C. GUCCIONE, Plaintiff-Appellee, v. HUSTLER MAGAZINE, INC. and Flynt Distributing Company, Inc., Defendants-Appellants.
No. 1478, Docket 86-7277.
United States Court of Appeals, Second Circuit.
Argued June 26, 1986.
Decided Aug. 29, 1986.
Alan L. Isaacman, Beverly Hills, Cal. (David O. Carson, Cooper Epstein & Hu-rewitz, Beverly Hills, Cal., Anderson Russell Kill & Click, New York City, on the brief), for defendant-appellant Hustler Magazine, Inc.
John H. Gross, New York City (Ann V. Kramer, Anderson Russell Kill & Olick, New York City, on the brief), for defendant-appellant Flynt Distributing Co., Inc.
Norman Roy Grutman, New York City (Jeffrey H. Daichman, Thomas V. Marino, Grutman Miller Greenspoon & Hendler, New York City, on the brief), for plaintiff-appellee.
Before NEWMAN, CARDAMONE and PIERCE, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
Publishers of pornography are, not surprisingly, often criticized and scorned and, on occasion, may even be libeled. This libel action brought by Robert Guecione, the publisher of Penthouse magazine, is noteworthy because the alleged libel was authored not by a righteous crusader against smut but by Larry Flynt, the publisher of Hustler magazine. An article printed in Hustler in 1983 stated that Guecione “is married and also has a live-in girlfriend, Kathy Keeton.” In what the District Court for the Southern District of New York (Robert J. Sweet, Judge) characterized as a “grudge match,” Guecione sued for libel. The undisputed facts disclosed at the trial revealed that Guecione had been notoriously living with Miss Keeton while still married to Muriel Guecione for thirteen of the seventeen years prior to the article’s publication, though he and Mrs. Guecione were divorced four years before the article appeared. Guecione emerged from the fray with a judgment in his favor of $1 in nominal damages and $1.6 million in punitive damages.
We must be careful in cases such as this not to accord either the pornographer plaintiff or the pornographer defendant less protection than would be accorded libel litigants who publish more traditional works of literature or journalism. Bearing that point firmly in mind, we conclude, for reasons that follow, that Guccione’s claim fails as a matter of law, both because the statement at issue was substantially true and because Guecione was “libel-proof” with respect to an accusation of adultery. We therefore reverse.
Background
In the “Bits & Pieces” section of its November 1983 issue, Hustler printed a half-page article by Flynt that commented on Guccione’s practice of being photographed, fully clothed, with naked Penthouse models. The article, entitled “What a Ham!” and labeled “Editorial Opinion,” was accompanied by a photo from the September 1983 issue of Penthouse, depicting a clothed Guecione with his arm around an unclothed model sitting on his knee. The article included the following sentence: “Considering he is married and also has a live-in girlfriend, Kathy Keeton ... we wonder if he would let either of them pose nude with a man” (elipsis in original). Guccione contends primarily that the quoted language falsely accuses him of committing adultery in 1983, when the article appeared. He also suggests that it falsely implies that he was then living with his wife and girlfriend simultaneously. It is undisputed that Robert and Muriel Guccione married in 1956, separated in 1964, and divorced in 1979; Guecione has not remarried. It is also undisputed that Guccione has cohabited with Kathy Keeton since 1966.
Guccione, who is a public figure, sued Hustler Magazine, Inc. (“HMI”) and Flynt Distributing Company, Inc. (“FDC”), alleging defamation, invasion of privacy, and copyright infringement. The privacy and copyright claims were dismissed and are not pursued on appeal. The defendants unsuccessfully sought summary judgment, alleging the absence of actual malice and the substantial truth of the publication.
At a boisterous trial that gave new meaning to the term “adversary proceeding,” Guecione contended that the article was libelous per se because adultery is a crime in New York, N.Y. Penal Law § 255.17 (McKinney 1980), and that he was entitled to nominal damages even if he had not demonstrated injury to reputation. He further claimed that the defendants printed the libel with actual malice, that is, knowledge of its falsity or reckless disregard for whether it was true or not. In support of this claim, Guccione presented evidence that he had testified about his 1979 divorce at the televised Ohio trial of a previous libel suit against HMI, that Flynt attended much of the trial, and that in connection with that trial Muriel Guccione discussed the divorce during the course of a deposition attended by HMI’s attorneys. Guc-eione also elicited testimony that Flynt and his business associates are self-professed “Guccione watchers” with excessive interest in the details of the Penthouse publisher’s private life. Finally, Guccione offered excerpts from other issues of Hustler to show that Flynt bore ill will toward Guc-cione. Guccione sought compensatory and punitive damages and, at the damages phase of the trial, offered into evidence the entire November 1983 issue of Hustler.
Throughout both the liability and damages phases of the bifurcated trial, Guccione’s attorney, Norman Roy Grutman, whose melodramatic appeals to jurors’ passions and prejudices have previously been criticized by this Court, see Lerman v. Flynt Distributing Co., 745 F.2d 123, 141 (2d Cir.1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985), demonstrated the inadequacy of our prior cautions. Grutman described Flynt as “the Son of Sam among publishers,” a “Philistine Goliath,” and “Quasimodo”; he called Flynt’s and Hustler’s attacks on Guccione “torture” and “death by a thousand cuts”; he said those connected with the alleged libel were trying “to poke Mr. Guccione in the eye with a sharp stick, just as they have been doing for 10 years.” At the close of his summation in the damages phase of trial, Grutman urged the jurors, “[i]n the name of the Almighty,” to award Guccione large sums in compensatory and punitive damages.
The defense case was presented with equal vigor, though with less flamboyance. In addition to maintaining throughout that Guccione’s adultery for thirteen years— from 1966, when he began living with Kathy Keeton, until he was divorced in 1979— made the printed statement substantially true, HMI and FDC argued that the alleged libel was published without actual malice and that in any event Guccione could not recover because his reputation had not been damaged. To support the latter argument, the defendants elicited from Guccione testimony that he suffered no mental anguish since his parents, children, social friends, and business associates knew he had been living with Kathy Keeton while still married. In addition, the defendants introduced into evidence numerous issues of Penthouse and excerpts from other magazines published by Guccione containing articles describing or advocating extramarital sexual relations. The purpose of this evidence was presumably to demonstrate that Guccione views adultery as acceptable conduct. Indeed, he testified that in his opinion he was not committing adultery from 1966 to 1979 and that he sees no social stigma attached to adultery.
The defendants also attempted to show that Guccione’s reputation for matters relating to his marriage and adultery is so bad that he is “libel-proof” with respect to the Hustler article. The defendants attempted to offer as evidence, in addition to the articles and excerpts mentioned above, several articles from major publications in which the fact of Guccione’s marriage and his contemporaneous relationship with Kathy Keeton are described. The District Court refused to allow into evidence articles probative of Guccione’s reputation pri- or to 1978 during either the liability or the damages phase of the trial.
At the end of the trial s liability phase, the jury concluded that the statement “Considering he is married and also has a live-in girlfriend, Kathy Keeton” constituted libel per se as defined by the District Court, was false, and was published and distributed with actual malice. At the damages phase, the jury found HMI and FDC liable to Guccione for one dollar nominal damages for injury to reputation, the minimum allowed by the Court, but gave no award for mental or emotional distress. In addition, the jury awarded Guccione punitive damages of $900,000 from HMI and $700,000 from FDC. The defendants then moved for judgment notwithstanding the verdict and for a new trial. The District Court denied these motions, 632 F.Supp. 313 (S.D.N.Y.1986), and this appeal followed.
Discussion
On appeal, HMI and FDC raise a host of issues. They argue that the District Court misdefined libel per se and improperly allowed the jury to return a finding of liability without any proof of injury to reputation, that the published statement was substantially true as a matter of law and that the District Court’s instruction erroneously eliminated the substantial truth defense, that Guccione is libel-proof as regards an accusation of adultery, that the record contains insufficient evidence to support the jury’s finding of actual malice, that the punitive damages are excessive, that punitive damages in libel cases involving public figure plaintiffs and media defendants are unconstitutional, that the jury verdicts on liability and damages were based on prejudicial evidence that should have been excluded by the District Court, and that misconduct by Grutman warrants a new trial. We consider only the substantial truth and libel-proof issues and conclude that on each ground summary judgment in HMI’s and FDC’s favor was required.
Under New York law, which applies to this diversity suit, it is “fundamental that truth is an absolute, unqualified defense to a civil defamation action,” Commonwealth Motor Parts Ltd. v. Bank of Nova Scotia, 44 A.D.2d 375, 378, 355 N.Y. S.2d 138, 141 (1st Dep’t 1974) (citation omitted), aff'd, 37 N.Y.2d 824, 377 N.Y.S.2d 482, 339 N.E.2d 888 (1975), and “substantial truth” suffices to defeat a charge of libel, Fairley v. Peekskill Star Corp., 83 A.D.2d 294, 297, 445 N.Y.S.2d 156, 159 (2d Dep’t 1981). If the statement at issue in this case was substantially true, the claim of libel was legally insufficient and the complaint should have been dismissed, regardless of any impact the statement might have had on Guccione’s reputation.
The burden of proving the falsity of the alleged libel rested with Guccione. See Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 380, 397 N.Y.S.2d 943, 950, 366 N.E.2d 1299, 1306, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977). He maintains that because the statement was phrased in the present tense it accused him of committing adultery at the very time the statement was printed, that is, in late 1983, and that the fact of his 1979 divorce rendered the statement false. Guccione concedes that the substantial truth defense permits a certain amount of leeway as to accuracy. He argues, however, that whether the statement at issue was substantially true was a jury question resolved in his favor by a properly instructed jury. We disagree.
The District Court gave the following jury instruction on substantial truth:
Guccione must ... establish that the statement was false. If the statement is true or substantially true, it cannot be libelous. It’s not necessary of course that a statement be literally true. The test is whether the statement, as it was published, had a different effect on the mind of the reader than the actual literal truth. The facts which are offered to support a claim of substantial truth must be as broad as the alleged libel. Therefore, you have to determine the scope of the alleged libel before you can determine whether or not the statement was substantially true.
632 F.Supp. at 322. To this point, the charge was unexceptional. Unfortunately, however, the next paragraph improperly permitted the jury to disregard the substantial truth defense. The trial judge continued:
Put another way, if you determine that the libel in question should be read as accusing Guccione of committing adultery only in 1983, the fact that Guccione might have committed adultery at another time is not going to make the statement substantially true. However, if you determine that the libel should only be read as accusing Guccione more generally of being an adulterer, you can then consider the evidence of Guccione’s prior actions in relation to this issue of substantial truth.
Id. at 623.
This portion of the instruction permitted the jury to read the alleged libel as accusing Guccione of committing adultery “only” in 1983, in which event the jury was not to consider whether his past adultery made the statement substantially true. Though such a consequence would follow from such a reading of the statement, that reading is not within the range of reasonable interpretations requiring the jury’s resolution. The statement was not an allegation of a specific act, like robbing a bank, that might in some circumstances be fairly interpreted either to mean that the act was committed at a time immediately prior to the publication or to mean that commission occurred at some time considerably earlier. The statement about Guccione alleged ongoing relationships — marriage to his wife and cohabitation with his girlfriend. There is not the slightest indication from the statement, or from any evidence offered that might aid in interpreting the statement, that it may fairly be read to mean that the marriage and the cohabitation existed simultaneously only at a moment or brief interval just prior to the article’s publication. The statement can be read to mean only that the marriage and the cohabitation existed simultaneously throughout an undefined span of time that included the period immediately prior to publication.
On this reading, the undisputed facts establish the defense of substantial truth as a matter of law. New York law recognizes that an alleged libel is not actionable if the published statement could have produced no worse an effect on the mind of a reader than the truth pertinent to the allegation. See Fleckenstein v. Friedman, 266 N.Y. 19, 23, 193 N.E. 537 (1934). The published statement read, “Considering he is married and also has a live-in girlfriend, Kathy Keeton ... we wonder if he would let either of them pose nude with a man.” Substituting the truth for the false statement yields the following: “Considering that from 1966 to 1979 he was married and also had a live-in girlfriend, Kathy Keeton ... we wonder if he would let either of them pose nude with a man.” The only difference in effect between the two statements worked in Guccione’s favor; as printed, the statement merely points out the fact of his adultery, without calling attention to its duration for thirteen of the preceding seventeen years.
This is not to suggest that every person guilty of even a single episode of marital infidelity has no recourse if, years after the fact, he is accused in print- of currently committing adultery. However, the undisputed facts of this case — the extremely long duration of Guccione’s adulterous conduct, which he made no attempt to conceal from the general public, and the relatively short period of time since his divorce— make it fair to say that calling Guccione an “adulterer” in 1983 was substantially true. Of course, “former long-time adulterer” would have been more precise. But on the facts of this case, to require such a level of accuracy is unreasonable. The article labels Guccione an adulterer. The average reader would understand that term to include a man who unabashedly committed adultery for thirteen of the last seventeen years and whose adulterous behavior ended only because his wife ultimately divorced him. Where, as here, “the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel, no legal harm has been done.” Cafferty v. Southern Tier Publishing Co., 226 N.Y. 87, 93, 123 N.E. 76 (1919).
The undisputed facts also establish that Guccione’s libel complaint fails because Guccione was “libel-proof” with respect to the accusation of adultery printed in the Hustler article. We have recognized that a plaintiff’s reputation with respect to a specific subject may be so badly tarnished that he cannot be further injured by allegedly false statements on that subject. See Cardillo v. Doubleday & Co., Inc., 518 F.2d 638, 639-40 (2d Cir.1975). It has also been recognized that a plaintiff may have had his reputation so badly damaged by true statements in a particular publication that minor false accusations within the same publication cannot result in further meaningful injury. See Simmons Ford, Inc. v. Consumers Union, 516 F.Supp. 742 (S.D.N.Y.1981) (Weinfeld, J.). The libel-proof plaintiff doctrine is to be applied with caution, see Buckley v. Littell, 539 F.2d 882, 889 (2d Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 786, 50 L.Ed.2d 777 (1977), since few plaintiffs will have so bad a reputation that they are not entitled to obtain redress for defamatory statements, even if their damages cannot be quantified and they receive only nominal damages. But in those instances where an allegedly libelous statement cannot realistically cause impairment of reputation because the person’s reputation is already so low or because the true portions of a statement have such damaging effects, even nominal damages are not to be awarded. Instead, the claim should be dismissed so that the costs of defending against the claim of libel, which can themselves impair vigorous freedom of expression, will be avoided. See generally Note, The Libel-Proof Plaintiff Doctrine, 98 Harv.L.Rev. 1909 (1985).
Guccione argues that the libel-proof plaintiff doctrine may not be applied to him with respect to the subject of adultery because he has not been convicted of the crime of adultery. Though criminal convictions were the principal basis for the low reputation of the libel-proof plaintiff in Cardillo, the doctrine is not limited to plaintiffs with criminal records. See Simmons Ford, Inc. v. Consumers Union, supra.
In Wynberg v. National Enquirer, Inc., 564 F.Supp. 924, 928-29 (C.D.Cal.1982), the Court recognized that a plaintiff may be rendered libel-proof by evidence apart from criminal convictions. In Wynberg, the National Enquirer published an article stating that the plaintiff had used his relationship with Elizabeth Taylor for financial gain. In finding Wynberg libel-proof, the District Court first noted the plaintiff’s string of convictions for crimes that damaged his reputation for his treatment of women in general. The Court then relied equally, however, on Wynberg’s “specific reputation for. taking financial advantage of Elizabeth Taylor,” citing numerous articles, printed prior to the National Enquirer piece, that ascribed to Wynberg a profit motive in his relationship with Taylor. Id. No criminal convictions related to Wynberg’s dealings with Taylor. The non-criminal evidence was perhaps the more appropriate basis for the determination that Wynberg was libel-proof, since it showed that his reputation was already severely damaged with respect to the precise point of the alleged libel.
In the present case, the District Court based its ruling that Guccione was not libel-proof on the absence of criminal convictions and the lack of publicity regarding Guccione’s adultery. 632 F.Supp. at 323-24. We have rejected the first basis and also conclude that undisputed evidence sufficiently established that Guccione’s reputation regarding adultery rendered him libel-proof on this subject. Guccione testified that from 1966 until 1979 his relatives, friends, and business associates knew that he was living with Keeton while still legally married. He acknowledged that he never hid either his marriage or his relationship with Keeton from anyone. Guccione on several occasions told reporters both that he was separated from his wife and that he was living with Kathy Keeton.
Defendants offered magazine and newspaper articles as evidence of Guccione’s poor reputation on the subject of adultery. These articles, which describe both Guccione’s marital status and his contemporaneous relationship with Keeton, appeared in widely circulated publications such as Newsweek, New York magazine, and the Washington Post. With one exception, a 1978 article in Maclean’s, a Canadian magazine, the District Court excluded this evidence, apparently because it viewed the publications, printed in the early- to mid-1970’s, as being too remote in time to be relevant to the state of Guccione's reputation in 1983.
In our view, this evidence, the authenticity of which is undisputed, was improperly excluded. The articles were extremely probative of Guccione’s notoriety for adultery during the period when his adultery was most newsworthy — while it was occurring. The articles, in combination with Guc-cione’s testimony, show wide dissemination of the information that Guccione was living with Keeton while still married. The damage to Guccione’s reputation occurred a decade before Hustler published its November 1983 article and stemmed from truthful reporting of facts freely admitted by Guccione himself. Any subsequent reporting accusing Guccione of adultery prior to his 1979 divorce could not further injure his reputation on the subject.
Nor is it tenable to maintain that Guc-cione, though libel-proof as to adultery from 1966 to 1979, somehow succeeded in restoring his reputation during the four years prior to the Hustler statement. As with the defense of substantial truth, the pertinent circumstances are the long duration of a widely known adulterous relationship combined with the relatively short period between its end and the article’s publication. Moreover, the evidence provided no adequate basis for concluding that those who knew of the adulterous relationship from 1966 to 1979 became aware that the divorce occurred in 1979, thereby ending the adultery. Guccione’s reputation for adultery could not have been further damaged by the publication of the alleged libel in 1983.
Conclusion
Both the substantial truth of the alleged libel and Guccione’s libel-proof status as to adultery in 1983 provided independent bases for granting summary judgment to HMI and FDC. The judgment of the District Court is reversed.
. Larry Flynt, the publisher of Hustler, was named in the complaint but was dismissed before trial for lack of personal jurisdiction in New York.
. The excluded articles were also relevant to the appellants’ defense of lack of actual malice, since Flynt and other Hustler personnel claimed to have had no specific source for the allegation of adultery but to have read in various magazines that Guccione was living with Keeton while still married. Grutman repeatedly emphasized to the jury appellants’ failure to substantiate their story with specific magazine articles, leaving the jury to assume that no such articles existed, when in fact he knew that the articles had been excluded by the District Court. Admission of the articles would not likely have changed the jury’s ruling on actual malice, however, since the evidence suggesting that appellants knew of Guccione’s divorce prior to publishing the alleged libel — testimony regarding the Ohio libel trial — related to appellants’ knowledge as of 1981, whereas the excluded articles were published between 1972 and 1974.
. The Supreme Court has recently demonstrated its willingness to dispose of libel claims brought by public figure plaintiffs on summary judgment. See Anderson v. Liberty Lobby, Inc., — U.S.-, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Question: What is the specific issue in the case within the general category of "First Amendment"?
A. religion, press, commercial
B. speech and other expression
Answer:
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songer_applfrom
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J
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Melita MILLER, Appellee, v. Allan A. CHRISTIAN, Appellant.
No. 91-3410.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Dec. 3, 1991.
Decided March 23, 1992.
Allan A. Christian, pro se.
STAPLETON, HUTCHINSON and NYGAARD, Circuit Judges.
OPINION OF THE COURT
HUTCHINSON, Circuit Judge.
I.
Appellant, Allan A. Christian (Christian), is appellee Melita Miller’s (Miller) former landlord. He appeals an order of the Appellate Division of the District Court of the Virgin Islands affirming a judgment of the small claims division of the Territorial Court of the Virgin Islands for $450.00 in Miller’s favor. The territorial court based the $450.00 damage award on its finding that personal property Miller owned was injured when a chronically faulty sewage system serving the leased premises backed up and overflowed into her apartment. It held in a bench trial that Christian was liable to Miller despite a finding that Christian’s immediate efforts to remedy the sewage problem were reasonable. After the territorial court entered judgment for Miller, Christian filed a timely appeal to the appellate division of the district court and, after that court affirmed the territorial court’s judgment, Christian filed a timely notice of appeal to this Court.
Christian contends the territorial court’s finding that he acted reasonably to fix the immediate sewage problem by August 4, 1989 precludes liability. He also argues that the evidence presented by Miller was insufficient to place a dollar value on the injury to Miller’s personal property. We disagree. Christian is liable to his tenant Miller under governing principles of the Restatement (Second) of Property. They impose liability for damages to a tenant’s personal property caused by a dangerous condition resulting from either a landlord’s breach of an implied warranty of habitability or his unreasonable failure to correct a condition that violates local housing regulations. While the territorial court found Christian’s August 4, 1989 efforts to correct the immediate sewage problem that damaged Miller’s property may have been reasonable, it also impliedly found the recurrent nature of the sewage problem was caused by his unreasonable failure to correct a chronic violation of the local housing code or a breach of his implied warranty of habitability. Accordingly, Miller can recover from her landlord Christian for the property damage she suffered in this case. Therefore, since Christian’s argument that Miller’s evidence on damages was speculative lacks merit, we will affirm the order of the district court.
II.
Miller, with her children and grandchildren, lived in a two bedroom, one bathroom apartment she rented from Christian. There was no written lease, and Miller was a month-to-month tenant. See V.I.Code Ann. tit. 28, §§ 241, 242 (1975) (oral leases of duration less than one year permissible). On August 2, 1989, a plumbing problem caused Miller’s bathtub to back up and release sewage into her apartment. This was not the first time sewage had backed up in the tub in Miller’s apartment. Christian was' aware of the recurrent problem and had temporarily fixed it on prior occasions. This time Christian was notified on the same day it happened. Almost at once he tried to get in touch with several plumbers in an effort to get the problem fixed. He was not at first successful. As a result, the problem persisted for a day or two. In the meantime, fetid material from the blocked system had overflowed the tub and percolated from the bathroom into a bedroom in Miller’s apartment. There, it damaged some of Miller’s clothing, linens and bedding. Some bedding and clothing were also damaged when Miller used them to soak up the overflow in an effort to reduce the danger and nuisance the percolating filth and its stench posed to her and the children who occupied the apartment with her. Finally, after the efforts of several plumbers, the sewage problem was fixed on August 4, 1989.
The territorial court rejected Christian’s contention that he was not liable because he had done everything reasonably possible to correct the sewage problem. Specifically, it found:
I find from the testimony that this had been an ongoing problem. It had been reported and had been fixed before. I also find that the defendant made reasonable efforts to repair the problem on this occasion in August of 1989. But that he is, nevertheless, liable for the damages which the plaintiff sustained as a result of the sewage backup.
Appellant’s Appendix (App.) at 86.
III.
We have jurisdiction over Christian’s appeal pursuant to 28 U.S.C.A. § 1291 (West Supp.1991). The district court had jurisdiction over Christian’s appeal from the judgment of the territorial court under V.I.Code Ann. tit. 4, § 33 (Supp.1990).
Whether Virgin Islands law allows a tenant of residential premises to recover damages for injury to personal property caused by a recurring problem that adversely affects the use of an apartment for residential purposes is a legal question over which we exercise plenary review. See Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102-03 (3d Cir.1981). We review the district court’s factual findings under the clearly erroneous standard. See Allegheny Int’l, Inc. v. Snyder, 954 F.2d 167, 172-73 (3d Cir.1992). Thus, we apply the same standard as the district court in reviewing the judgment against Christian. See Semper v. Santos, 845 F.2d 1233, 1235 (3d Cir.1988).
iv.
On liability, Christian contends the territorial court’s finding that his efforts to correct the sewage problem between August 2-4, 1989 were reasonable precludes judgment against him. Specifically, he argues that the district court erred in concluding that the judgment of the territorial court is not contrary to its finding that he “made reasonable efforts to repair the problem” on that date. App. at 36. Since the parties had no written lease expressly stating Christian’s obligations to Miller, his duties to her are those which all landlords owe their tenants. Christian says that a Virgin Islands landlord, in the absence of negligence, is not liable to his or her tenant for failure to make repairs unless there is a statute or agreement to the contrary. He cites no Virgin Islands case law or statutory authority that either supports that general proposition or relates it to the facts of this case.
Where there is no governing local law or precedent, V.I.Code Ann. tit. 1, § 4 (1984) “directs us to examine the common law first as expressed in the Restatements, and then as generally understood and applied in the United States.” Polius v. Clark Equip. Co., 802 F.2d 75, 77 (3d Cir.1986). Thus, our decision in this case is informed by the Restatement (Second) of Property (hereinafter Restatement). See Allaire v. United States Trust Co., 478 F.Supp. 826, 827 (D.V.I.1979) (applying Restatement in property dispute); The Lodge, Inc. v. Caravelle Restaurant, Inc., 20 V.I. 268, 273 (Terr.Ct.1984) (same). Where the Restatement expresses no opinion and a split of authority exists, courts should select the sounder rule. Polius, 802 F.2d at 77; Vidal v. Virgin Islands Housing Auth., 20 V.I. 3, 4 (Terr.Ct.1983) (in absence of opinion of drafters of Restatement, reference must be made to United States case law).
Section 5.5(1) of the Restatement states that the landlord of leased residential property
is obligated to the tenant to keep the leased property in a condition that meets the requirements of governing health, safety, and housing codes, unless the failure to meet those requirements is the fault of the tenant or is the consequence of a sudden non-manmade force or the conduct of third persons.
Restatement § 5.5(1). Section 5.5 also provides for an “implied warranty of habitability” which goes beyond the requirement of section 5.5(1). See Restatement § 5.5 cmt. f. Under the implied warranty of habitability, a landlord must keep the premises in a “safe and sanitary condition,” see Hagglund v. American Motors Inn, 18 V.I. 376, 378 (D.V.I.1981), and fit for habitation. See Allen v. Housing Auth. of the County of Chester, 683 F.2d 75, 78 (3d Cir.1982). Under these principles, Christian had a duty to keep the apartment in a state of repair sufficient to meet the standards of the local housing code or minimum standards of habitability.
The evidence before the territorial court was sufficient to permit it to find Miller’s apartment was not kept in a condition that met minimum local health and safety requirements. The purpose of the Virgin Islands Housing Code “is to promote public safety, health and general welfare through the establishment and enforcement of minimum standards of occupancy, sanitation, light and ventilation, -and safety to life and property incident to the use and occupancy of places of residence.” V.I.Code Ann. tit. 29, § 331 (1976). Under V.I.Code Ann. tit. 29, § 333(b), Minimum Standards for Health and Sanitation, a landlord is responsible for the care and maintenance of an apartment’s sewage system. Id. § 333(b)(1). The evidence before the territorial court showed the sewage problem was recurrent. It also showed the presence of raw sewage in a quantity sufficient to overflow a bathtub and graphically demonstrated its offensive and pervasive nature. It showed additionally that Christian was fully aware of the continuing problem with back-up in the building’s sewage lines and that his efforts to correct it permanently were ineffective. After Miller called the Department of Health with a complaint on the fourth recurrence, Christian was informed by the local sanitation inspector that the property was in “deplorable” condition. The sanitation inspector told Christian he would help him find a plumber to fix the sewage problem, but Christian himself finally managed to get one to fix the problem.
We have little difficulty in concluding that the presence of raw sewage in Miller’s apartment also violated minimum standards of habitability. See, e.g., Allen, 683 F.2d at 78 (overflowing sewage from toilet and sink rendered apartment uninhabitable); Schaefer v. Murphey, 131 Ariz. 295, 640 P.2d 857, 860 (1982) (inoperative toilet is “condition materially affecting health and safety”). Thus, Christian breached the implied warranty of habitability the Restatement incorporates into residential leases.
Section 5.5 of the Restatement, however, does not fully determine whether Miller can recover damages for injury to her personal property. In practice, the implied warranty of habitability permits a tenant to raise the landlord’s breach of the warranty as an affirmative defense if the landlord brings an eviction proceeding against a tenant for failure to pay rent or, if a breach exists, allows the tenant to pay rent under protest and sue the landlord to recover for any decrease in value of the leased premises caused by the landlord’s breach. Conille v. Secretary of HUD, 840 F.2d 105, 111 (1st Cir.1988); see Javins v. First Nat’l Realty Corp., 428 F.2d 1071, 1082 (D.C.Cir.1970) (in order to determine rent owed to landlord, tenants must be given opportunity to prove breach of implied warranty of habitability). The District of Columbia Circuit first held in Jav-ins that “leases of urban dwelling units should be interpreted and construed like any other contract” and conditioned the tenant’s obligation to pay rent upon the landlord’s fulfillment of the implied warranty. Javins, 428 F.2d at 1075. The Jav-ins court stated that its holding extended all contract remedies to the tenant for the landlords’s breach of the implied warranty of habitability. Id. at 1082 n. 61.
While section 5.5 of the Restatement recognizes the theory set forth in Javins and its progeny, it limits the tenant to the remedies set out in section 5.4 of the Restatement. Section 5.4 states:
[If] a change in the condition of the leased property caused by the landlord’s conduct or failure to fulfill an obligation to repair ... makes the leased property unsuitable for the use contemplated by the parties and the landlord does not correct the situation within a reasonable time after being requested by the tenant to do so.... [T]he tenant may:
(1) terminate the lease in the manner prescribed in § 10.1 and if the change in condition is due to the landlord’s fault, recover damages to the extent prescribed in § 10.2; or
(2) if the change in condition is due to the landlord’s fault, continue the lease and obtain equitable and legal relief including:
(a) the recovery of damages to the extent prescribed in § 10.2;
(b) an abatement of the rent [until the default is eliminated] to the extent prescribed in § 11.1;
(c) the use of the rent to eliminate the unsuitable condition [after notice to the landlord] to the extent prescribed in § 11.2; and
(d) the withholding of the rent in the manner and to the extent prescribed in § H.3.
Restatement § 5.4 (emphasis added).
Section 10.2, the section cross-referenced by section 5.4(1), does not even mention damages for injury to a tenant’s personal property. It states in pertinent part:
If the tenant is entitled to recover damages from the landlord for his failure to fulfill his obligations under the lease, absent a valid agreement as to the measure of damages, damages may include one or more of the following items as may be appropriate so long as no double recovery is involved:
(1) if the tenant is entitled to terminate the lease and does so, the fair market value of the lease on the date he terminates the lease;
(3) if the tenant is entitled to terminate the lease and does so, reasonable relocation costs;
(4)if the lease is not terminated, reasonable additional costs of substituted premises incurred by the tenant as a result of the landlord’s default while the default continues;
(6) if the tenant eliminates the default, the reasonable costs incurred by the tenant in eliminating the default; and
(7) interest on the amount recovered at the legal rate for the period appropriate under the circumstances.
Restatement § 10.2 (emphasis added).
Here, Miller is not using Christian’s breach as a defense to payment of rent nor is she seeking any costs since she did not pay to repair the plumbing problem nor was she, due to the short duration of the condition, forced to seek substitute premises for herself and her family. Her complaint seeks only “property damages due to failure of [Christian] to make repairs to [her] apartment.” App. at 2. Despite the Restatement’s limitation of remedies, some courts have held that a tenant may rely on a breach of the implied warranty of habitability in bringing an affirmative cause of action for damages. See George Washington Univ. v. Weintraub, 458 A.2d 43, 46-48 (D.C.1983); Old Town Dev. Co. v. Langford, 349 N.E.2d 744 (Ind.Ct.App.1976), superseded by, 267 Ind. 176, 369 N.E.2d 404 (1977).
In Langford, the Indiana Court of Appeals considered at length a landlord’s liability for injuries and property damage resulting from an apartment fire caused by a defective heating system. Applying the teaching of Hadley v. Baxendale, 9 Exch. 341 (1854), it held such items could be recovered as consequential damages. Langford, 349 N.E.2d at 761, 765; see Mease v. Fox, 200 N.W.2d 791, 797 (Iowa 1972) (consequential damages allowable for breach of implied warranty of habitability); Teller v. McCoy, 162 W.Va. 367, 253 S.E.2d 114, 125 (1978) (same).
In Weintraub, the tenants sought to recover damages for the landlord’s alleged breach of the implied warranty of habitability. Their apartment was flooded by water coming from the apartment above them. Weintraub, 458 A.2d at 45. The court of appeals rejected strict liability for breach of the warranty of habitability but agreed with the trial court’s ruling that the implied warranty “may be used as a sword [to collect damages] as well as a shield [to contest the obligation to pay rent].” Id. at 46. Applying the holding in Javins that leases should be interpreted as contracts, the court held that the tenants could sue for damages under the lease with its implied warranty. Id. at 47. The court declined to hold the landlord liable under this contract theory, however, because “the [District of Columbia] Housing Regulations impose only a duty of reasonable care upon owners of rental property.” Id. at 48. It rejected the tenants’ position that liability for losses caused by breach of the implied warranty should be imposed “without regard to whether a landlord has been negligent in maintaining defective premises,” id., because that position would “render a landlord an insurer of his tenant’s property.” Id. The court noted that “[liability for breach of warranty ‘is a curious hybrid, bom of the illicit intercourse of tort and contract_’” Id. (quotation omitted). Since the flooding was a “one time thing” and not a defective condition the landlord had actual or constructive notice of, he was not held liable for damages caused by breach of the implied warranty. Id. at 49. Because Restatement section 10.2 does not provide that injuries to a tenant’s personal property are recoverable as consequential damages, Miller is not entitled to contract damages under this theory.
Under certain conditions, however, section 17.6 of the Restatement imposes tort liability on a landlord both for breach of the implied warranty of habitability and violation of housing codes. Section 17.6 speaks to a landlord’s duty to repair a “dangerous condition” and sets forth the circumstances under which a landlord may be liable to his tenant for “physical harm.” It states:
A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of:
(1) an implied warranty of habitability; or
(2) a duty created by statute or administrative regulation.
For a definition of “physical harm,” we are referred to the Restatement (Second) of Torts. See Restatement Part 6 introd. note at 154. Section 7(3) of the Restatement (Second) of Torts defines “physical harm” to include harm to land and chattels as well as harm to the person. Restatement (Second) of Torts § 7.3 (1965); see also Restatement (Second) of Torts § 497 cmt. b (1965) (rules of negligence “applicable to harm to property as well as harm to the person”). Several courts have recognized that a tenant may recover damages for injuries to both person and property under either section 17.6 or general principles of negligence. See Keck v. Doughman, 392 Pa.Super. 127, 572 A.2d 724, 727 (1990) (stating general .principle); see also Keller-Loup Constr. Co. v. Gerstner, 476 P.2d 272, 274 (Col.Ct.App.1970) (landlord liable for damage to tenant’s personal property caused by burst water pipe); State Farm Fire & Cas. Co. v. Home Ins. Co., 88 Wis.2d 124, 276 N.W.2d 349, 352 (Ct.App.1979) (same).
Thus, under section 17.6, a landlord’s violation of a local statute or ordinance may be negligence per se. See Restatement § 17.6 cmt. a. With respect to a landlord’s breach of the implied warranty of habitability, the comment to section 17.6 states:
The implied warranty of habitability is the basis of a duty on the landlord to maintain the property in a habitable condition. By analogy to the negligence per se doctrine, when the landlord violates this duty, he becomes subject to liability for physical harm resulting from such violation.
Id. (emphasis added).
We have already demonstrated that Christian breached the implied warranty of habitability when he failed to correct the recurrent sewage problem. The present record also allows the territorial court to infer that the recurrent presence of sewage in Miller’s apartment violated the statutory duty V.I.Code Ann. tit. 29, § 333(b)(1) imposes on all landlords to maintain an adequate sewage system. As previously mentioned, the August 2,1989 problem was not an isolated incident. Christian knew that similar problems had occurred in the past and that such problems had not been permanently fixed. Christian testified that, “[w]e try to keep a plumber because we find there is a continuing problem, persons have leak or sewage in there. But may have a backup problem. Usually some type of leak.” App. at 30. Christian admits that the sanitation inspector himself noted that the apartment was in a “deplorable condition.” Id. at 33. The unsanitary nature of the problem warrants its characterization as a “dangerous condition.”
As noted above, section 17.6 imposes liability only if the landlord has “failed to exercise reasonable care” to repair the condition. This essential element of Miller’s case is not contradicted by the territorial court’s finding that Christian made reasonable efforts to correct the problem on August 4, 1989 after the fourth recurrence. That finding relates only to the immediate problem as it acutely appeared on August 4, 1989, not the chronic condition of the sewage system that served Miller’s apartment. Here, the condition was a faulty sewage system which caused overflow in Miller’s apartment no less than four times. Each time, Miller notified Christian of the problem but he failed to prevent its recurrence. Christian is subject to liability “after he has had a reasonable opportunity to discover the condition and to remedy it.” Restatement (Second) of Property § 17.6 cmt. b. The territorial court recognized this was an “ongoing problem [that] had been reported before.” App. at 36. We cannot say this finding is clearly erroneous.
Simply because Christian called in a plumber each time does not mean that he corrected the defective condition within a reasonable time. The recurrent presence of overflowing sewage is a breach of both the local housing code and the implied warranty of habitability entitling Miller to damages. See Simon v. Solomon, 385 Mass. 91, 431 N.E.2d 556, 562 (1982) (landlord liable for breach of implied warranty for failure to permanently correct sewage and flooding problem despite fact that he pumped out water each time); Nepveu v. Rau, 155 Vt. 373; 583 A.2d 1273, 1274 (1990) (landlord breached warranty by failing to adequately repair clogged toilet despite fact that plumbers made two attempts at repair); Gokey v. Bessette, 154 Vt. 560, 580 A.2d 488, 492 (1990) (landlord’s response to recurrent sewage problem inadequate); see also Wade v. Jobe, 818 P.2d 1006, 1011 (Utah 1991) (remand for finding whether landlord’s failure to permanently correct sewage problem despite fact that he pumped out tenant’s basement on several occasions was breach of implied warranty). The sewage problem in this case was not a “sudden occurrence” or “one time thing” of which Christian had no notice or ability to control. See Weintraub, 458 A.2d at 49; Dwyer v. Skyline Apartments, Inc., 123 N.J.Super. 48, 301 A.2d 463 (App.Div.1973) (landlord not liable for injuries caused when faucet came out of wall because defect not reasonably discoverable).
We hold that Christian did breach his duty to maintain Miller’s apartment in a habitable condition and that the sewage problem was a dangerous condition. We reject Christian’s contention that the damages award of $450.00 was speculative. Miller presented sufficient evidence to permit a factfinder to award damages in that amount. Accordingly, we will affirm the order of the district court affirming the territorial court’s entry of judgment in Miller’s favor.
V.
For the foregoing reasons, we will affirm the order of the district court.
. V.I.Code Ann. tit. 4, § 111 (Supp.1990) states:
There is in the Territorial Court a small claims division, in which the procedure shall be as informal and summary as is consistent with justice.
. That section states:
The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall he the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.
V.I.Code Ann. tit. 1, § 4 (1984).
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_counsel2
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
BASS v. COMMISSIONER OF INTERNAL REVENUE.
No. 3769.
Circuit Court of Appeals, First Circuit.
June 24, 1942.
Edward C. Thayer, of' Boston, Mass., and Erwin N. Griswold, of Cambridge, Mass. (E. Barton Chapin, of Boston, Mass., on the brief), for petitioner.
Samuel H. Levy, Sp. Asst, to the Atty. Gen., and J. P. Wenchel, Chief Counsel, allel Claude R. Marshall, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Gerald L. Wallace, Sp. Assts. to the Atty. Gen., on the brief), for Commissioner.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAGRUDER, Circuit Judge.
Edith B. Bass, petitioner herein, brings for review a decision of the Board of Tax Appeals upholding the Commissioner’s determination that there is a deficiency of $150,596.51 in petitioner’s income tax for the calendar year 1937. Rractically the entire amount of the deficiency resulted from a ruling that an issue of preferred stock by Bird & Son, Inc. to its shareholders incident to a readjustment of the corporation’s capital structure constituted a taxable stock dividend under the Revenue Act of 1936, 49 Stat. 1648. Relevant provisions of the Act are copied in the footnote.
Bird & Son, Inc. was incorporated under the laws of Massachusetts in 1918, and has been profitably engaged in the biisiness of manufacturing and selling paper and paper products. On September 14, 1937, its authorized and outstanding capital stock consisted of 600,000 shares of common stock without par value, representing a stated capital of $6,000,000. The earned surplus, as then shown on the books, stood at the figure of $5,701,003.82. All of the stock was held in a voting trust which was to terminate on October 9, 1937. The voting trust certificates for most of the stock were held by officers and employees of the corporation and by members of the Bird family.
In anticipation of the expiration of the voting trust, consideration was given to revising the capital structure of the corporation. There was no market for the voting trust certificates and many holders thereof had requested that some arrangement be made to afford a satisfactory market on which they could sell a portion of the holdings. On May 3, 1937, the board of directors appointed a committee to consider the matter. This committee made its report on August 17, 1937. The plan which it proposed was ultimately approved and carried out.
The plan called for the authorization of an issue of 50,000 shares of cumulative preferred stock with a par value of $100 each. 30,000 of such shares, representing $3,000,-000 of capital, were to be issued in place of 300,000 common shares, the common stock to he simultaneously reduced by such amount. There was further to be a split-up of the remaining 300,000 of common shares, which represented $3,000,000 of capital, on a basis of two for one; 600,000 common shares representing a stated capital of $5 each were to be issued in exchange for the said 300,000 of common shares representing a stated capital of $10 each. The remaining 20,000 shares of preferred stock were to be held in reserve, to be issued later at the discretion of the directors. Application was to be made for listing the preferred and common stock on the Boston Stock Exchange.
In all the formal steps which were duly taken by the directors and the stockholders to effectuate the plan, it was made clear that the readjustment of the capital structure was to be carried through “without any capitalization or impairment of any existing surplus or accumulated and undivided profits”. As the Board specifically found, the directors “believed that $6,000,-000 was a sufficient and proper capitalization for the corporation and surplus should not be changed but should be left as it was for future corporate purposes”.
The plan as proposed by the committee was prompted by a desire, first, to provide marketable shares and thus to satisfy the needs of the shareholders and, second, to provide the corporation with some additional marketable shares which might later be sold to liquidate large bank loans theretofore incurred by one of the corporation’s subsidiaries, or which might be issued as stock dividends so as to capitalize accumulated profits, if that should later prove to be desirable. It was felt that an issue of preferred stock would be more likely than the common stock to command a market price approximating its intrinsic value. The establishment of a market for the shares would tend to benefit the corporation in case it should desire later to sell the remaining 20,000 of preferred shares. It does not appear just what business reason moved the directors to propose the two-for-one split-up of the common shares.
On September 14, 1937, the Commissioner of Corporations and Taxation approved the certificate of the directors setting forth the amendment to the articles of association as duly voted by the stockholders in accordance with the plan. Thereupon the directors proceeded immediately to execute the plan. The single certificate for 600,000 shares of the outstanding common stock held by the voting trustees was surrendered and cancelled, in exchange for which there were issued in the names of the voting trustees a temporary certificate for 30,000 shares of the preferred stock and a temporary certificate for 300,000 shares of common stock without par value. In effectuation of the split-up of the common shares, this temporary certificate for 300,000 shares of common was in turn cancelled and a temporary certificate for 600,000 shares of common was issued in the names of the voting trustees. This all took place on September 15, 1937. Appropriate entries were made on the books of the corporation. The capital stock account, which on September 14, 1937, had showed a stated capital of $6,000,000 represented by 600,000 shares of common stock without par value, was changed to indicate a stated capital of $3,000,000 represented by 600,000 shares of common stock without par value and $3,000,000 represented by 30,000 shares of preferred stock with a par value of $100 per share. No entries were made in the surplus account as a result of the transactions; the earned surplus, as shown on the books, remained at $5,701,-003.82.
The holders of the voting trust certificates, at the termination of the voting
trust on October 9, 1937, turned in these certificates for their proportionate amounts of common and preferred stock. The petitioner, who had held voting trust certificates for 54,510 shares received in exchange therefor certificates for 54,'510 shares of common stock and 2,725% shares of preferred stock. The fair market value of the preferred stock at the time Mrs. Bass received it was agreed to be $86 per share.
It was ruled by the Commissioner that receipt by petitioner of these 2,725% shares of preferred stock constituted income derived from a taxable stock dividend during the year 1937 in the sum of $234,393. The Board took the same view.
We assume in favor of the Government, without deciding, that where a corporation having only common stock outstanding declares a stock dividend of preferred stock, the stockholders thereby receive taxable income. It was so held in Strassburger v. Commissioner, 2 Cir., 1941, 124 F.2d 315, now pending before the Supreme Court on certiorari. But that decision is not controlling in the case at bar, because here the corporation declared no stock dividend, either avowedly or in disguised form. See Hood Rubber Co. v. Commonwealth, 1921, 238 Mass. 369, 371, 372, 131 N.E. 201. So far as we are aware, the present case and Jacob Fischer v. Commissioner, 46 B.T.A. -, decided April 28, 1942, are the only cases where the Commissioner has laid claim to tax an alleged stock dividend though there had been no capitalization of earnings. The Government’s position here is not supported by any court decision.
“A stock dividend always involves a transfer of surplus (or profit) to capital stock.” Graham and Katz, Accounting in Law Practice, 2d ed. 1938, § 80. As the court said in United States v. Siegel, 8 Cir., 1931, 52 F.2d 63, 65, 78 A.L.R. 672: “A stock dividend is a conversion of surplus or undivided profits into capital stock, which is distributed to stockholders in lieu of a cash dividend.” Congress itself has defined the term “dividend” in § 115(a) of the Act as meaning any distribution made by a corporation to its shareholders, whether in money or in other property, out of its earnings or profits. In Eisner v. Macomber, 1920, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521, 9 A.L.R. 1570, both the prevailing and the dissenting opinions recognized that within the meaning of the revenue acts the essence of a stock dividend was the segregation out of surplus account of a definite portion of the corporate earnings or profits theretofore available for dividends, the freezing of such segregated earnings as part of the permanent capital resources of the corporation by the device of capitalizing the same, and the issuance to the stockholders of additional shares of stock representing the profits so capitalized. See 252 U.S. at.pages 210, 211, 220, 221, 228, 229, 40 S.Ct. at pages 194, 197, 198, 200, 201. Where the court divided was on the question whether a stock dividend was equivalent to a distribution of earnings. Compare page 211 with pages 227-229.
Whether profits are to be capitalized is not a mere matter of bookkeeping; there are important business differences according as one course or the other is pursued. If profits are capitalized by means of a stock dividend such profits are no longer available for the declaration of a dividend at the discretion of the directors but become part of the permanent capital of the corporation, thereby tending to enhance the corporation’s credit. If profits are not capitalized they may be distributed as dividends some time in the future; and it would be a contradiction in terms to say there has been in any sense a “distribution” out of “earnings or profits” when such earnings have been expressly held intact in the surplus account for possible future distribution.
In the present case the directors were satisfied that there was no business need for increasing the capitalization of the corporation, and the Board so found. The corporation deliberately refrained from increasing its capital, and deliberately kept its surplus account unchanged. The business reasons which dictated the above described rearrangement of corporate structure had no relation to the existence of this surplus, and would have been equally valid even had there been no surplus in existence at the time. There is nothing in the record to warrant any suspicion that the corporation sought to make a surreptitious distribution of earnings to the shareholders in any form, direct or indirect.
Mr. Justice Brandeis, dissenting in Eisner v. Macomber, 1920, 252 U.S. 189, pages 230, 231, 40 S.Ct. 189, 202, 64 L.Ed. 521, 9 A.L.R. 1570, suggested that Congress might have constitutional power to tax as income of the stockholder his pro rata share of undistributed profits earned, even if no stock dividend representing it had been paid. He pointed out, however, that Congress has chosen to limit the income tax “to that share of the stockholder in the earnings which is, in effect, distributed by means of the stock dividend paid. In other words to render the stockholder taxable there must be both earnings made and a dividend paid.” When no dividend is paid, but the shareholder receives preferred stock representing different rights and interests in the corporation in exchange for common stock theretofore held by him, this does not constitute a realization of income in the amount of the market value of the preferred shares. If this value is' in excess of the shareholder’s basis of the common stock surrendered up, the gain upon such exchange might be taxed under §§ 22(a), 111 and 112(a) unless the transaction falls within § 112(b) (3), in which case the gain upon the exchange is not recognized. The Government is not here proceeding on the theory that there was a taxable gain on an exchange. Rather, it insists that there was in substance no exchange.
We think the Commissioner and the Board attached undue emphasis to the fact that after the transaction was completed the shareholders still had 600,000 shares of common stock, and, in addition, had received 30,000 shares of preferred stock worth $86 a share. From this it was concluded that the preferred stock must have been received as a stock dividend, and that the transaction could not have been an exchange governed by the provisions of § 112. The Board thought that the corporation had taken a “devious route” in rearranging its capital structure for no reason other than to give the transaction the semblance of an exchange and to disguise the distribution of a stock dividend. In this connection the Board said:
“The same result could have been reached, so far as this record shows, by merely issuing a certificate for 30,000 shares of preferred stock, allowing the voting trustees to retain the original certificate for 600,000 shares of no par common, and making book entries showing that 30,000 shares of preferred represented $3,000,000 of capital and the 600,000 common shares without par value had henceforth a stated value of $3,000,000. The stated value of the common stock could have been reduced without changing the certificate. All semblance of an exchange disappears if the steps taken in regard to the certificates for the common stock are disregarded.”
But the,explanation of the form in which the transaction was cast is found in the technical requirements of the Massachusetts corporation law. Mass.Gen.Laws (Ter. Ed.) 1932, c. 156, § 41A, authorizes a corporation having shares without par value, by vote of a majority of all its stock at a meeting duly called for the purpose, to “change such shares or any class thereof into a greater number of shares without par value, or provide for the exchange thereof pro rata for a greater number of shares without par value”, without increasing the corporation’s stated capital. There seems to be no other statutory provision permitting any rearrangement of the capital structure without increase or reduction of capital and the issue and surrender of shares pursuant to formal amendment of the articles of association approved by the Commissioner of Corporations and Taxation. At the argument before us the Government did not contend otherwise. It was necessary for the corporation to execute the plan of recapitalization in the form it followed, namely, increasing the capital by the provision for new preferred shares and simultaneously and correspondingly decreasing the capital by surrender and cancellation of half of the original common shares. Since § 16 of chapter 156 provides that no stock shall be issued at any time unless the cash, or the property, services or expenses for which it was authorized to be issued, “has been actually received or incurred by, or conveyed or.rendered to, the corporation, or is in its possession as surplus”, and since the preferred stock was not paid for by transferring earnings from surplus account to capital, the issuance of the preferred stock would have been void unless there had been surrendered up in exchange an equivalent amount of the common stock. See Teehan v. United States, D.C.D.Mass. 1928, 25 F.2d 884.
Even had the Massachusetts statute permitted the revision of the corporate structure in the more direct way suggested by the Board, still the transaction would not have had to be regarded as a stock dividend. Section 112 of the Revenue Act does not require an actual exchange of physical certificates. It is enough if there has been an exchange of stock; and that there would have been if the Board’s suggested method of readjustment had been followed. The substance of the transaction then would have been, an exchange of 600,000 shares of non-par stock representing a capital of $6,000,000 for 30,000 shares of preferred stock representing $3,000,000 of capital and 600,000 shares of common stock representing $3,000,000 of capital, with no increase of the corporation’s capital by the capitalization of earnings or profits.
In our opinion the transaction was a “recapitalization” within the meaning of § 112(g)(1)(D). It was no more than the “reshuffling of a capital structure within the framework of an existing corporation contemplated by the term ‘recapitalization’.” Helvering v. Southwest Consolidated Corp., U. S. Supreme Court, Feb. 2, 1942, 62 S.Ct. 546, 552, 86 L.Ed. -. Art. 112(g)-2, Treasury Regulations 94, gives the issuance of preferred stock for outstanding common stock as an example of a recapitalization and therefore a reorganization. See Elmer W. Hartzel v. Commissioner, 1939, 40 B.T.A. 492, 499, 501, acquiesced in by the Commissioner, 1939-2 Cum.Bull. 16. This regulation would have fitted the case at bar like a glove if the corporation had omitted the second step in the transaction, that is, the two-for-one split-up of the common shares remaining in the shareholders’ hands after they had surrendered up 300,000 shares of common for 30,000 shares of preferred. This second step might have been omitted without detriment to the essential purpose of the reorganization. The fact that it was deemed convenient to have $3,000,000 of capital represented by 600,000 common shares instead of by 300,000 common shares did not render the first step any less a genuine exchange of common stock for preferred in pursuance of a plan of reorganization (recapitalization) within the meaning of § 112(b)(3). Suppose the steps had been taken in the reverse order, and with an interval of time between. For instance, in May, 1937, there might have been a two-for-one split-up so as to have the $6,000,000 of stated capital represented by 1.200.000 shares of common instead of by 600.000 shares of common. The receipt of such additional shares by way of split-up admittedly would have been non-taxable. See § 112(b)(2). Then suppose that in September, 1937, the corporation had decided to issue 30,000 preferred shares of a par value of $3,000,000 in exchange for 600,000 shares of common, with no increase of capital. This would certainly have been a non-taxable exchange within § 112(b) (3) ; and hence the preferred stock would not have represented a taxable dividend to the shareholders within the meaning of § 115(a) and § 115(f)(1). Jacob Fischer v. Commissioner, 46 B.T.A. -, decided April 28, 1942, a decision hardly reconcilable with that of the Board in the case at bar. See also § 115(h)(1). We cannot see what difference it makes in the case at bar that the two steps were taken simultaneously as part of a single plan of reorganization.
If the corporation had not had accumulated earnings available for dividends on September 15, 1937, the Government of course could not have made the contention that the issuance of preferred stock on that date constituted a stock dividend, nor could it have been doubted that the execution of the plan of recapitalization would have been a tax-free exchange within § 112(b) (3) in which neither gain nor loss would have been recognized. But the Board’s view is that the mere existence of such accumulated earnings converted the transaction, for income tax purposes, into a taxable stock dividend, by virtue of the presumption in § 115(b), even though the corporation did not in fact capitalize any part of such earnings and, indeed, had no need for any increase of capital. As to this, the petitioner rightly observes : “From this suggestion it would have to follow that it is impossible for a corporation having any earnings to reclassify its existing capital stock without becoming involved in a dividend and that the recapitalizations permitted to be made without deterrent recognition of gain under Section 112 would frequently be subject to far more deterrent tax as on a dividend.” Congress, in § 115(h)(1), seems to have provided expressly against this result. See the elaboration of this subsection in Treasury Regulations 94, Art. 115-11.
There is no need to adopt the narrow construction of § 112 urged by the Commissioner in order to harmonize it with § 115(b). The latter subsection attributes a source to distributions when distributions are made; for purposes of the Revenue Act every distribution to shareholders is deemed to be made out of earnings or profits to the extent thereof, despite the effort of the corporation to earmark such distribution as coming from some other source, such, for example, as paid-in surplus, or unrealized appreciation in value of capital assets. The decisions cited by the Commissioner as applying § ll'5(b) were all cases where an undoubted distribution had taken place, most of them in cash. Leland v. Commissioner, 1 Cir., 1931, 50 F.2d 523; Baker v. Commissioner, 2 Cir., 1936, 80 F.2d 813; Faris v. Helvering, 9 Cir., 1934, 71 F.2d 610; Commissioner v. Sansome, 2 Cir., 1932, 60 F.2d 931, certiorari denied Sansome v. Burnet, 287 U.S. 667, 53 S.Ct. 291, 77 L.Ed. 575; United States v. Kauffmann, 9 Cir., 1933, 62 F.2d 1045; Murchison’s Estate v. Commissioner, 5 Cir., 1935, 76 F.2d 641; Walker v. Hopkins, 5 Cir., 1936, 12 F.2d 262. Section 115(b) does not, however, prescribe the criteria for determining when a distribution has taken place, as distinguished from an exchange, which is governed by § 112.
The Commissioner contends that there is “no more justification for treating a situation, otherwise covered by Section 115(b), as a ‘recapitalization’ because earnings had not been capitalized, than there would be for treating stock dividends as a ‘recapitalization’ when the corporation had capitalized earnings”; that the taxpayer, in order to sustain her position, “is put to the necessity of contending that all stock dividends are ‘recapitalizations’.” We think this argument is specious. A stock dividend may be a recapitalization, because it does involve a change of the capital structure, but the issuance of additional stock representing capitalized earnings does not involve an “exchange” and hence does not fall within § 112(b)(3).
Gregory v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, 97 A.L.R. 1355, cited by the Board, is no authority for the position taken. There, the creation of the ephemeral new corporation was simply an operation having no business or corporate purpose — “a mere device which put on the form of a corporate reorganization as a disguise for concealing its real character, and the sole object and accomplishment of which was the consummation of a preconceived plan, not to reorganize a business or any part of a business, but to transfer a parcel of corporate shares” to the stockholders. Page 469 of 293 U.S., page 267 of 55 S.Ct., 79 L.Ed. 596, 97 A.L.R. 1355. In substance, assets of the corporation were distributed to its shareholders and the corporation’s surplus was correspondingly reduced. In these circumstances the distribution was held taxable as a dividend. In the case at bar, however, there was a permanent revision of the capital structure pursuant to a plan of recapitalization having a genuine business purpose. The transaction was not a tax-dodging subterfuge. There was in fact no “distribution” out of ■“earnings or profits”.
It is quite true that to a certain extent the transaction in the present case had the same effect as if $3,000,000 of profits had been capitalized and 30,000 shares of preferred stock had been issued as a stock dividend; that is, in both situations the aggregate book value of each stockholder’s holdings would remain unchanged, because the book value of 600,000 shares of common necessarily is reduced by an amount equal to the book value of the new 30,000 shares of preferred. Of course, the fact that there has been no increase in the aggregate wealth of the shareholders does not in itself establish that they have not received a dividend. United States v. Phellis, 1921, 257 U.S. 156, 171, 42 S.Ct. 63, 66 L.Ed. 180. On the other hand, neither does this fact establish that the stockholders have received a dividend. On that issue the fact is colorless. What distin- „ guishes the, present transaction from a stock dividend is that here no portion of the surplus was capitalized.
That this is the significant distinction may be tested in another way. We are told that the Government plans to ask the Supreme Court to overrule Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521, 9 A.L.R. 1570. Let us suppose that the Government succeeds in this endeavor. Then compare these two situations in the case of Bird & Son, Inc., having a stated capital of $6,000,000 represented by 600,000 shares of common stock without par value, and having an earned surplus at the round figure of $6,000,000: (1) The corporation, without capitalizing any of its earn ings, splits up its 600,000 shares of common two for one into 1,200,000 shares of common ; (2) the corporation capitalizes all the $6,000,000 profits by means of a stock dividend of 600,000 additional shares of common to the shareholders. Case (1) is admitted by the Government not to involve a taxable dividend, even though the corporation did have on hand accumulated profits out of which a dividend might have been de dared. Yet in both cases the aggregate book value of each shareholder’s holdings remains unchanged. In each case upon consummation of the transaction the shareholders have in the aggregate 1,200,000 common shares of a book value of $10 a share, in place of 600,000 common shares having a book value of $20 a share. Case (2) would be a taxable stock dividend if Eisner v. Macomber were overruled. Case (1) is concededly not taxable. The only difference is that in Case (2) there has been a transfer to capital account of the funds in the surplus account and the issuance to the stockholders of additional shares of stock representing the profits so capitalized; whereas in Case (1) the accumulated earnings remain intact, available for future dividend distributions. The latter is the fact in the case at bar, and, we think, the controlling fact.
The decision of the Board of Tax Appeals is vacated and the case is remanded to the Board for further proceedings not inconsistent with this opinion.
Ҥ 22. Gross Income
“(a) General Definition. ‘Gross income’ includes gains, profits, and income derived from * * * sales, or dealings in property * * * also from * * * dividends * *
Ҥ 111. Determination of Amount of, and Recognition of, Gain or Loss
“(a) Computation of gain or loss. The gain from the sale or other disposition of property shall be the excess of the amount realized therefrom over the adjusted basis provided in section 113(b) for determining gain, and the loss shall - be the excess of the adjusted basis provided in such section for determining loss over the amount realized.”
“§ 112. Recognition of Gain or Loss “(a) General rule. Upon the sale or exchange of property the entire amount of the gain or loss, determined under section 111, shall be recognized, except as hereinafter provided- in this section. -
“(b) Exchanges solely in kind ífc ífc iji J¡í
“(2) Stock for stock of same corporation. No gain or loss shall be recognized if common stock in a corporation is exchanged solely for common stock in the same corporation, or if preferred stock in a corporation is exchanged solely for preferred stock in the same corporation.
“(3) Stock for stock on reorganization. No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization.
* * * * * *
“(g) Definition of reorganization. As used in this section and section 113—
“(1) The term ‘reorganization’ means * * * (D) a recapitalization * *
Ҥ 115. Distributions by Corporations
“.(a) Definition of dividend. The term ‘dividend’ when used in this title (except in section 203(a) (3) and section 207 (c) (1), relating to insurance companies) means any distribution made by a corporation to its shareholders, whether in money or in other property, (1) out of its earnings or profits accumulated after February 28, 1913, or (2) out of the earnings or profits of the taxable year (computed as of the close of the taxable year without diminution by reason of any distributions made during the taxable year), without regard to the amount of the earnings and profits at the time the distribution was made.
“(b) Source of distributions. For the purposes of this Act every distribution is made out of earnings or profits to the extent thereof, and from the most recently accumulated earnings or profits. Any earnings or profits accumulated, or increase in value of property accrued, before March 1, 1913, may be distributed exempt from tax, after the earnings and profits accumulated after February 28, 1913, have been distributed, but any such tax-free distribution shall be applied against and reduce the adjusted basis of the stock provided in section 113.
“(f) Stock dividends
“(1) General rule. A distribution made by a corporation to its shareholders in its stock or in rights to acquire its stock shall not be treated as a dividend to the extent that it does not constitute income to the shareholder within the meaning of the Sixteenth Amendment to the Constitution.
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“(g) Redemption of stock. If a corporation cancels or redeems its stock (whether or not such stock was issued as a stock dividend) at such time and in such manner as to make the distribution and cancellation or redemption in whole or in part essentially equivalent to the distribution of a taxable dividend, the amount so distributed in redemption or cancellation of the stock, to the extent that it represents a distribution of earnings or profits accumulated after February 28, 1913, shall be treated as a taxable dividend.
“(h) Effect on earnings and profits of distributions of stock. The distribution (whether before January 1, 1936, or on or after such date) to a distributee by or on behalf of a corporation of its stock or securities or stock or securities in another corporation shall not be considered a distribution of earnings or profits of any corporation—
“(1) if no gain to such distributee from the receipt of such stock or securities was recognized by law.
******
“(j) Valuation of dividend. If the whole or any part of a dividend is paid to a shareholder in any medium other than money the property received other than money shall be included in gross income at its fair market value at the time as of which it becomes income to the shareholder.” 26 U.S.C.A.Int.Rev.Acts, pages 825, 854, 855, 859, 868, 870, 871.
See footnote 5, infra.
It is possible for a corporation to payout a taxable dividend by means of a distribution of its own stock to shareholders without increasing its stated capital. Thus the corporation might use a portion of its surplus earnings to make purchases of its own stock, and might later distribute this treasury stock to the remaining shareholders as a dividend. No increase of capital is involved, since there is merely a reissue of existing paid-up shares. Such a distribution of treasury stock would not be a stock dividend within the ordinary meaning of that term. Accepting to the full the authority of Eisner v. Macomber, 1920, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521, 9 A.L.R. 1570, suck a distribution would nevertheless seem to be quite clearly a distribution out of corporate earnings or profits taxable as income to the shareholders in the amount of the market value of the shares when received by the shareholders. For present purposes it is the same as if the corporation had used accumulated earnings to buy any other property — say, the stock of another corporation — and had distributed such substituted property in specie as a dividend to its shareholders.
This is in no way inconsistent with § 112(b) (2). The implication of that subsection is that it does not cover an exchange of common for preferred or of preferred for common. But § 112(b) (2) does not require that an exchange must be in pursuance of a plan of reorganization, which distinguishes it from § 112 (b) (3). If A owns common stock and B preferred stock in the X corporation and they exchange their securities, gain or loss upon the exchange will be recognized because the exchange is not pursuant to a plan of reorganization within § 112(b) (3), nor is it the kind of exchange described in § 112(b) (2). In view of the difference in scope of the two subsections there is no reason to read into § 112 (b) (2) the implication that the issuance of preferred stock for outstanding common stock should not be deemed a “recapitalization” within the meaning of § 112(b) (3).
In Jacob Fischer v. Commissioner the corporation had outstanding an issue of 7,000 shares of common of a par value of $100 per share, or $700,000. During 1936 a plan of recapitalization was duly executed under which the corporation’s charter was amended so that, instead of its outstanding stock, its authorized stock would consist of 35,000 shares of new common of a par value of $10 per share, or $350,000, and 14,000 shares of new preferred of the par value of $25 per share, or $350,000. The corporation’s capitalization, the amount of its surplus, and the amount of its undivided profits remained the same as before the readjustment of the capital structure. Each shareholder received 5 shares of new common and 2 shares of new preferred for the surrender of each share of old common previously held. In effect this was an exchange of 3500 old common shares for 14,000 shares of new preferred, and a simultaneous 10-for-one split-up of the remaining 3500 shares of old common. It was held that the receipt of the preferred stock was neither a stock dividend under § 115(f) (1) nor essentially equivalent to a dividend under § 115(g).
If in the Fischer case referred to in the preceding footnote, the split-up had been on a two-for-one basis so that the remaining 3500 shares of old common of a par value of $100 per share were exchanged for 7,000 shares of new common at $50 a share, then the net result would have been the same as in the case at bar; after the recapitalization the shareholders would have had the same number of common shares as before and in addition would have had 14,000 shares of new preferred.
Art. 115-11 reads in part as follows:
“The general rule provided in section 115(b) that every distribution is made out of earnings or profits to the extent thereof and from the most recently accumulated earnings or profits, does not apply to:
“(1) The distribution, in pursuance of a plan of reorganization, by or on behalf of a corporation a party to the reorganization, to its shareholders of stock or securities in such corporation or in another corporation a party to the reorganization—
“(B) in any taxable year (beginning before January 1, 1936, or on or after such date) in exchange for its stock or securities (see section 112(b) (3)) if no gain to the distributees from the receipt of such stock or securities was recognized by law.”
The Commissioner would have been on the other side of the fence if this had been a case where Bird & Son, Inc., was claiming a dividends paid credit under § 27 of the Revenue Act of 1936, 49 Stat. 1665
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America v. PINTO, Biagio a/k/a Bob Pinto, Appellant.
No. 80-2420.
United States Court of Appeals, Third Circuit.
June 10, 1981.
See also, D.C., 486 F.Supp. 578.
Jacob Kossman (argued), Philadelphia, Pa., for appellant.
Peter F. Vaira, Jr., U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Stanley Weinberg, Asst. U. S. Atty. (argued), Philadelphia, Pa., for appellee.
SUR PETITION FOR REHEARING
Before SEITZ, Chief Judge, and ALDI-SERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.
The petition for rehearing, 3 Cir., 646 F.2d 833, filed by Appellee in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
Circuit Judge ADAMS votes for rehearing. He believes that the result reached by the opinion represents a crabbed and unrealistic interpretation of § 18 U.S.C. § 2113(b), and is also at variance with the interpretation set forth by the Second, Fourth, Fifth and Eighth Circuits. The panel here specifically determined that the defendant did, in fact, take the excess money with the intent to steal or purloin it, but then proceeded to conclude that a “fraud type” stealing or purloining is not encompassed by § 2113(b). Nothing in the legislative history of the statute demonstrates that Congress sought to exclude “fraud type” stealing.
The petition for rehearing suggests that in 1979 the Federal Reserve System alone handled approximately 35,000,000 interbank transactions. 66th Annual Report, Board of Governors of the Federal Reserve System, 300, 323 Table 9. Undoubtedly, the overwhelming majority of these transactions were processed without error. But, as the present case illustrates, errors sometimes occur. The interpretation reached by the panel would exclude from coverage of § 2113(b) an individual’s knowing exploitation of errors arising in connection with interbank transfers, to the detriment of the banking system and the public generally.
Circuit Judge GARTH also votes for rehearing and joins Circuit Judge ADAMS’ statement.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_appel2_7_5
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Michael IRVINE, Sally Peisner, J. Ray Permenter and Richard Stuart, Plaintiffs-Appellants, v. CARGILL INVESTOR SERVICES, INC., Defendant-Appellee.
No. 85-5526.
United States Court of Appeals, Eleventh Circuit.
Sept. 22, 1986.
Rehearing and Rehearing En Banc Denied Oct. 27, 1986.
Marsha L. Lyons, Lisa Bennett, Coral Gables, Fla., Douglas S. Lyons, Miami, Fla., for plaintiffs-appellants.
Stuart J. McGregor, Kimbrell & Ham-ann, P.A., Jeffrey H. Sloman, Miami, Fla., for defendant-appellee.
Before VANCE and ANDERSON, Circuit Judges, and PITTMAN, Senior District Judge.
Honorable Virgil Pittman, Senior U.S. District Judge for the Southern District of Alabama, sitting by designation.
VANCE, Circuit Judge:
This case concerns four disappointed customers of Cargill Investor Services who had placed money with Cargill with instructions that the funds be invested prudently and conservatively. The four signed acknowledgment of risk statements and received regular communications from Car-gill on the state of their accounts. They claim to have been assured by their brokers that the pattern of commodities investing they had chosen had, in fact, very little risk. Over a period of several months, however, the accounts were significantly depleted under unusual circumstances, including assurances by the account executives that reports sent to appellants showed only “paper losses”, the mysterious replacement of funds into one account when one of the plaintiffs complained about a margin call, the severe cocaine problem and eventual suicide of Jackson King, one of the responsible account executives, and a letter from King to Mr. Peis-ner, the husband of one plaintiff, confessing mishandling of his wife’s account and promising repayment from either Cargill or himself.
Plaintiffs sued Cargill in Florida state court, alleging violation of the Commodities Exchange Act, 7 U.S.C. § 6(b), violations of the discretionary trading regulations of the Commodities Futures Trading Commission, 17 C.F.R. § 166.2 (CFTC), common law fraud, negligence and breach of fiduciary duty in handling their commodities futures accounts. Cargill removed to federal court. In its answer, Cargill then pled a number of affirmative defenses, including estoppel, waiver and ratification. The judge granted summary judgment for Car-gill on the CFTC regulations count on the ground that there was no private cause of action arising from violation of those regulations. The jury found that Cargill had breached its fiduciary duty to plaintiffs but that plaintiffs were barred by the estoppel, waiver and ratification defenses. Plaintiffs appeal, claiming a wide variety of trial errors, including permitting the affirmative defenses to go to the jury. Because our disposition of the latter claim leaves standing the jury’s finding of Cargill’s liability, we need not reach the rest of plaintiffs’ claims of error though we consider several of them meritorious.
The affirmative defenses of estoppel waiver and ratification are variations on a theme in that they all serve to prevent plaintiffs from taking unfair advantage of a defendant’s misdeeds or from compounding damage resulting from them. The defenses are, however, not favored and may not be used to bring about ends contrary to public policy. Northwestern National Casualty Co. v. McNulty, 307 F.2d 432, 442-43 (5th Cir.1962) (applying Florida law); Travelers Insurance Co. v. Spencer, 397 So.2d 358, 361 (Fla.Dist.Ct.App.1981); Corporation de Gestion Ste-Foy v. Florida Power & Light Co., 385 So.2d 124, 126 (Fla.Dist.Ct.App.1980). There is an obvious public policy interest in holding brokers to a high level of fiduciary duty. Defendants have cited no case in which a defense of estoppel, waiver or ratification has been successfully maintained against charges of fraud or against breaches of fiduciary duty. Even assuming that these defenses could be appropriately invoked against such claims, the record before us shows insufficient evidence to support giving the instruction on affirmative defenses to the jury. The facts show that the only significant act on plaintiffs’ part was their failure immediately to contact Cargill’s higher authorities in Chicago. Their acknowledgment of risk statement instructed them to contact Cargill at a Chicago phone number if they had questions. Plaintiffs, however, did not know early on that their losses were due to unusual circumstances, and when they did have questions their account executives Toronsoe and King provided them with plausible explanations. Their acceptance of explanations, which themselves are part of the wrongdoing alleged against Cargill, is not evidence sufficient to make a jury question of any of the affirmative defenses.
In Florida law, the defense of equitable estoppel requires a showing of (1) a representation as to a material fact contrary to a later asserted position; (2) reliance on that representation; and (3) a detrimental change in position in reliance on that representation. State Department of Revenue v. Anderson, 403 So.2d 397, 400 (Fla.1981). The burden of proving all facts essential to working an estoppel rests on the party asserting it. Garner v. Pearson, 545 F.Supp. 549, 567 (M.D.Fla.1982). The doctrine is applied with great caution, and if the conduct is ambiguous and thus susceptible of two constructions, only one of which is inconsistent with the right asserted by the party sought to be estopped, there is no estoppel. Capital Bank v. Schuler, 421 So.2d 633, 638 (Fla.Dist.Ct.App.1982). Estoppel is applied against wrongdoers and not against victims. Appalachian Inc. v. Olson, 468 So.2d 266, 269 (Fla.Dist.Ct.App.1985). It is applied only when refusal to do so would be virtually to sanction fraud. Schuler, 421 So.2d at 638. Neither implied waiver nor estoppel by acquiescence are supported by lapse of time alone. Dooley v. Weil (In re Garfinkle), 672 F.2d 1340, 1347 (11th Cir.1982) (applying Florida law); City of Miami Beach v. State ex rel. Wood, 56 So.2d 520, 521 (Fla.1952). The party sought to be estopped must be guilty of conduct which amounts to a concealment of material facts at a time when he has knowledge of those facts. Minerals & Chemicals Philipp Corp. v. Milwhite Co., 414 F.2d 428, 430 (5th Cir.1969) (applying Florida law). The party seeking to assert estoppel must have neither knowledge nor a reasonable means or opportunity of obtaining knowledge of the facts and must have relied upon the other party’s representations to his detriment. Robertson v. Robertson, 61 So.2d 499, 503-04 (Fla.1952). Because Cargill is charged with the knowledge of the actions of its agents, it cannot claim ignorance of material facts. There is therefore no detrimental reliance.
Waiver requires (1) the existence at the time of waiver of a right, privilege, advantage or benefit which may be waived; (2) the actual or constructive knowledge thereof; and (3) an intention to relinquish such right, privilege, advantage or benefit. Dooley, 672 F.2d at 1347. It may be express, or implied from conduct. When it is implied, the acts, conduct or circumstances relied upon must make out a clear case. Id.; Taylor v. Renco Chemical & Manufacturing Corp., 465 So.2d 581, 587 (Fia.Dist.Ct.App.1985). The person against whom waiver is invoked must be in possession of all material facts. Wilds v. Parmenter, 228 So.2d 408, 410 (Fla.Dist.Ct.App.1969); Fireman’s Fund Insurance Co. v. Vogel, 195 So.2d 20, 24 (Fla.Dist.Ct.App.1967). Our reading of the record reveals no action that shows intentional relinquishment, nor is there evidence that plaintiffs were aware of the material facts that would have shown them that their trades were improperly done. Whatever doubts they had were met with reasonable explanations from their trusted brokers. Neither failure immediately to suspect wrongdoing nor an attempt to cooperate with a broker demonstrates waiver of rights. As noted above, mere delay supports neither waiver nor estoppel.
Ratification is an intentional act. To find ratification, the court instructed the jury, the defendants must demonstrate that plaintiffs accepted the benefits of defendants’ act, had full knowledge of material facts, including knowledge of the right to disavow a trade at no cost, and made an affirmative election showing their intention to adopt the unauthorized arrangement. We have discovered no significant facts beyond mere delay that could justify presenting this defense to the jury. The only evidence of “benefit” pointed out to us is temporary profits in some of the accounts. These profits apparently occurred before plaintiffs had reason to think anything amiss. Neither toleration of the losses suffered when plaintiffs were not yet aware of wrongdoing, nor their attempt to cooperate with their brokers in correcting error suffices to show ratification.
We hold that there is insufficient evidence for the district court properly to have instructed the jury on these affirmative defenses. Our reversal on this question leaves standing the jury’s finding of Cargill’s liability for breach of fiduciary duty. Because plaintiffs could recover on this count alone all the damages that they sought, including punitive damages, there is no need for a new trial on the other liability counts. We therefore remand this case for a new trial on the issue of damages only.
AFFIRMED in part, REVERSED in part and REMANDED for a new trial on the issue of damages.
. Plaintiffs Irvine, Fermenter and Peisner each initially deposited $10,000. Stuart opened his account with $20,000.
. Cargill agents Jackson King and Harry Toron-soe serviced their accounts. King and Toronsoe were trading partners jointly responsible for the accounts they serviced. Stuart dealt directly with Toronsoe, the other three plaintiffs with King.
. Plaintiffs object that the trial court improperly found there to be no private cause of action under CFTC regulations and improperly refused to instruct on violation of those regulations either as negligence per se or evidence of negligence. We believe there probably is such a cause of action, and that even if not, the jury should have received instruction on the violation of the regulations as negligence per se or evidence of negligence. Reversal is thus justified on at least the regulation and negligence claims. Plaintiffs claim that the trial judge abused her discretion by refusing for lack of relevance to admit evidence of King’s drug abuse or to admit the daily account runs of Cargill’s office. We consider both to be relevant and at least a portion of the proffered testimony admissible. Plaintiffs had argued that Cargill sent them copies of their risk statements after losses occurred thereby showing their awareness that the losses might cause suspicion or displeasure on the part of plaintiffs. Cargill denied sending the statements. Plaintiffs challenge the district court’s refusal to permit rebuttal witnesses who would testify that Cargill did send out the forms when losses were suffered. Since these witnesses’ testimony reached Car-gill’s credibility on a key point, it was admissible, and the court’s refusal to do so is also probably reversible error. Plaintiffs also challenge the court's refusal to have read to the jury an affidavit by Irvine explaining his absence from the trial. This decision was well within her discretion.
. Defendants claim that plaintiffs have failed to move for a directed verdict or a JNOV and that therefore we are barred from reviewing the sufficiency of the evidence except to determine whether there was a complete absence of evidence to support the affirmative defenses. Plaintiffs did, however, object to the giving of affirmative defense instructions and moved for a new trial on those grounds. We conclude that plaintiffs’ objections sufficiently preserved their right to have the sufficiency of evidence to support the affirmative defenses reviewed.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_injunct
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellant, v. AMERICAN WASTE FIBERS CO., INC., Defendant-Appellee, UNITED STATES of America, Plaintiff-Appellant, v. Mark SALTZMAN, Defendant-Appellee,
Nos. 86-5043(L), 86-5057.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 14, 1986.
Decided Jan. 30, 1987.
Roy Theodore Englert, Jr., Dept, of Justice (Samuel T. Currin, U.S. Atty., Kieran Joseph Shanahan, Asst. U.S. Atty., on brief), for plaintiff-appellant.
Thomas K. Maher (David S. Rudolf, Beskind & Rudolph, P.A., Thomas K. McQueen, Jenner & Block, on brief), for defendants-appellees.
Before SPROUSE and WILKINSON, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
PER CURIAM:
American Waste Fibers Co., Inc. (AWF) was indicted on six counts related to the theft of military property. Mark Saltzman, an employee, was also indicted. The only count of the indictment at issue here is Count I, which alleges that AWF and Saltzman violated 18 U.S.C. §§ 371 and 641 by conspiring to purchase stolen ammunition, food, and camping equipment. During the pendency of this appeal, all counts of Saltzman’s indictment were dismissed pursuant to a plea agreement with the government. The indictment against AWF was not affected.
Before trial, AWF argued that Count I of the indictment should be dismissed for vagueness. The district court agreed. We reverse.
I.
Count I of the indictment states that AWF and Saltzman conspired “with each other and with divers other persons known and unknown to the grand jury.” It then describes nine overt acts of conspiracy, including the purchase and transport of 2,700 M-16 machine gun magazines, 305 cases of C-rations, 2,400 canteen covers, 3,350 tent stakes, and 960 rucksack liners. The goods were allegedly bought by Saltzman from General Jackson’s Surplus in Fayetteville, North Carolina; sent by Saltzman and AWF to Chicago, Illinois; and finally received in Chicago by AWF. Saltzman and AWF allegedly knew the goods were stolen from the military.
On April 7, 1986, the trial court dismissed Count I as to AWF. The trial court ruled that a conspiracy cannot exist between a corporation and a single employee, such as Saltzman, acting on its behalf. The court went on to rule that the indictment failed to name any other conspirators and hence did not allege a conspiracy offense. The reference to “divers other persons,” which indicated that conspirators other than AWF and Saltzman were involved, was held to fail the clarity requirement of Fed.R.Crim.P. 7(c)(1).
II.
Fed.R.Crim.P. 7(c)(1) requires that an indictment “shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” The Fifth Amendment states that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” The Sixth Amendment provides that the accused has the right “to be informed of the nature and cause of the accusation.” The government argues that the indictment in this case is not vague and thus meets the requirements of Rule 7 and of the Fifth and Sixth Amendments. We agree.
The fact that the indictment refers to “divers other persons” rather than naming the co-conspirators does not automatically render the indictment invalid. United States v. Indorato, 628 F.2d 711, 717-18 (1st Cir.1980); United States v. Kramer, 711 F.2d 789, 796 (7th Cir.1983). The existence of the conspiracy, rather than the particular identity of the conspirators, is the essential element of the crime. United States v. Davis, 679 F.2d 845, 851 (11th Cir.1982). While two persons are necessary to constitute a conspiracy, “one person can be convicted of conspiring with persons whose names are unknown.” Rogers v. United States, 340 U.S. 367, 375, 71 S.Ct. 438, 443, 95 L.Ed. 344 (1951). Indeed, giving the name of an unindicted co-conspirator in an indictment may be undesirable, as it impugns the person’s name without giving him a chance to refute the allegations in court.
The only question before us, then, is whether the indictment as a whole is so vague that it violates defendants’ rights. To answer this question, we look to the dual purposes of an indictment. First, an indictment apprises the accused of the charge against him so he can prepare his defense; second, an indictment enables the accused to plead the Double Jeopardy bar to reprosecution if he is later charged with the same offense. United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 1814, 85 L.Ed.2d 99 (1985); Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240 (1962).
The indictment in this case is sufficiently detailed to serve those purposes. It alerts AWF to the elements of the offenses by following the language of the statute and listing nine overt acts together with locations and dates. The listed acts include the purchase on three different occasions of specified quantities of stolen property from David Jackson of General Jackson’s Surplus. Further acts include the transportation of specified quantities of stolen goods from Fayetteville, North Carolina to Chicago, Illinois as well as AWF’s receipt of the goods in Chicago.
Such an indictment gives defense counsel adequate notice of the charges and is sufficient to allow defendants to plead it in another prosecution. It is therefore not surprising that a highly similar indictment was upheld by the First Circuit in Indorato, supra. In fact, an indictment that merely tracks the statutory language is ordinarily valid:
It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.’
Hamling, 418 U.S. at 117, 94 S.Ct. at 2907. See also United States v. Amend, 791 F.2d 1120, 1125 (4th Cir.1986); United States v. Lurz, 666 F.2d 69, 78 (4th Cir.1981). In Amend, we recently upheld against a vagueness challenge an indictment that neither specified the acts that violated the cited statutes nor identified any of the five other persons whom defendant, to be guilty of a Continuing Criminal Enterprise, was required to manage, organize, or supervise. By comparison, the indictment in this case is a model of particularity.
AWF claims nonetheless that the indictment does not provide enough information to enable it to prepare its defense. If so, AWF’s proper course is to seek a bill of particulars. The indictment notifies AWF of the offenses with which it has been charged; the bill of particulars, if granted, serves to supply the evidentiary details needed to prepare a defense. United States v. Duncan, 598 F.2d 839, 848 (4th Cir.1979). See also United States v. Freeman, 619 F.2d 1112, 1118 (5th Cir.1980); United States v. Haas, 583 F.2d 216, 221 (5th Cir.1978); United States v. Cole, 755 F.2d 748, 760 (11th Cir.1985).
In this regard, the government has already identified David Jackson in open court as a co-conspirator. Whether AWF now possesses sufficient information to prepare a defense is, as always, a matter committed to the sound discretion of the trial court.
We note finally that an indictment need not be so detailed that it can, standing alone, bar a later prosecution. When a Double Jeopardy bar is claimed, the court must examine not just the indictment from the prior proceeding but the entire record. Russell v. United States, 369 U.S. 749, 764, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962); United States v. Roman, 728 F.2d 846, 853-54 (7th Cir.1984); United States v. Haldeman, 559 F.2d 31, 126 (D.C.Cir.1976).
In sum, it is incorrect to require, as AWF appears to suggest, that the indictment must enumerate every possible legal and factual theory of defendants’ guilt. The indictment returned by the grand jury against AWF was quite sufficient. The judgment of the district court in No. 86-5043 is therefore reversed and the case is remanded with directions to reinstate Count I of the indictment.
REVERSED AND REMANDED.
Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Arnold L. CAMPBELL, Appellant, v. UNITED STATES of America, Appellee.
Nos. 14309-14311.
United States Court of Appeals District of Columbia Circuit.
Argued May 28, 1958.
Decided June 26, 1958.
Mr. James M. Earnest, Washington, D. C. (appointed by this court) for appellant.
Mr. Harry T. Alexander, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Carl W. Belcher and Thomas A. Flannery, Asst. U. S. Attys., were on the brief, for appellee.
Before Edgerton, Chief Judge, and Fahy and Burger, Circuit Judges.
PER CURIAM.
These are appeals' from the denial without a hearing of a motion which had been filed in the District Court under 28 U.S.C. § 2255 (1952). The motion attacked the validity of certain sentences which had been imposed upon appellant, as now explained. He had been indicted in case No. 804-54 on two counts for robbery, in violation of section 22-2901, D. C.Code (1951), in case No. 805-54 on four counts for robbery in violation of the same statute, and in case No. 806-54 for attempted robbery in violation of section 22-2902, D.C.Code (1951), on one count. He entered pleas of guilty and was sentenced on the first indictment from two to six years, on each of the four counts of the second indictment from one to three years, these sentences to take effect consecutively with one another and consecutively also with the sentence on the first indictment, and on the third indictment from one to three years, concurrently with the sentences already referred to.
His motion is to the effect, inter alia, that he actually pleaded to only one count in each of the three indictments. An examination of the transcript of the proceedings at the time he entered his pleas convinces us that he is correct in this respect. The result is that the sentence on the last indictment of one count (No. 806-54) should not be disturbed; the sentence on the second indictment (No. 805-54) should be set aside except as to one sentence from one to three years; and, as to the first indictment (No. 804-54), the District Court may resentence appellant if it so desires since the present sentence under that indictment of two to six years is a general sentence covering two counts, and might have been less if imposed with respect to only one count.
It is so ordered.
. 31 Stat. 1322 (1901).
. Ibid.
. The sentence in No. 804-54 may not be increased, since it was valid and has been partially served. Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872; Hayes v. United States, 102 U.S.App. D.C. 1, 249 F.2d 516
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
WELLS FARGO BANK & UNION TRUST CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 10662.
Circuit Court of Appeals, Ninth Circuit.
Oct. 11, 1944.
F. M. McAuliffe, L. C. Baker, and Heller, Ehrman, White & McAuliffe, all of San Francisco, Cal., for petitioner.
Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Helen R. Carloss, Joseph S. Platt, and Melva Graney, Sp. Assts. to Atty. Gen., for respondent.
Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.
STEPHENS, Circuit Judge.
Petitioner, as executor of the estate of Ben F. Sternheim, deceased, seeks the re-determination of a deficiency in federal estate taxes held payable by the Tax Court.
Decedent created a revocable inter vivos trust, knows as the Ben F. Sternheim trust, of which Wells Fargo Bank was named trustee. The income from the trust property was to be paid to his sister, Blanche Sternheim, from the date of decedent’s death until the sister’s death at which time the corpus was to be distributed to certain charitable institutions. For the duration of the life estate the trustee was authorized to use the principal, up to ten per cent of its valu’e each year, in the event of sickness, accident, want, or other emergency to the life beneficiary.
When her brother died in 1940, Blanche Sternheim was receiving $7000 a year as life beneficiary of a trust which she herself had previously established and as to which Ben F. Sternheim was trustee. At the time of Ben F. Sternheim’s death (1940) Blanche Sternheim was sixty years old, in good health, and thrifty in habit; her living expenses amounted to $250 or $300 a month, and she saved to her own account about an equal sum each month.
After the death of Ben F. Sternheim the Ben F. Sternheim trust was invaded for the benefit of the income beneficiary. Several payments were made from the Ben F. Sternheim trust to relieve a temporary cessation of income to Blanche Sternheim from her own trust caused by the commingling of assets belonging to Ben F. Sternheim’s estate and to Blanche Sternheim’s trust. Upon partition of the properties, repayment to the Ben F. Sternheim trust was made in full. On another occasion income distributions from both trusts were suspended pending the settlement of a tax controversy. Again Blanche Sternheim received payments from the corpu's of the Ben F. Sternheim trust over a period of several months. In final settlement of the matter, $8,999.16 was paid to the collector of internal revenue out of the Ben F. Sternheim trust.
The Tax Court intimated in its written opinion that, but for the evidence of these payments out of the Ben F. Sternheim trust corpus, it would have found resort to the corpus for payment to Blanche Sternheim so unlikely that the full sum of the trust corpus would be allowable as a charitable deduction for tax purposes. But with this evidence before it the court found that the corpus was liable to be invaded to the extent of the 10% permissible under the trust terms and entered its decision accordingly.
The Tax Court was wrong when it permitted evidence of such actual invasion of the trust corpus to influence its decision. In Ithaca Trust Co. v. United States, 1929, 279 U.S. 151, 155, 49 S.Ct. 291, 73 L.Ed. 647, the court says: “The estate so far as may be is settled as of the date of the testator’s death. [Citing cases.] The tax is on the act of the testator not on the receipt of property by the legatees. [Citing cases.] Therefore the value of the thing to be taxed must be estimated as of the time when the act is done.” Similarly, the court commented in United States v. Provident Trust Co., 1934, 291 U.S. 272, 281, 54 S.Ct. 389, 390, 78 L.Ed. 793, that in making a deduction for a charitable remainder “the valu'e thereof must be determined from data available at the time of the death of decedent.” See oitr opinion in Commissioner of Internal Revenue v. Wells Fargo Bank & Union Trust Co., 9 Cir., 145 F. 2d 130.
Reversed and remanded.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
sc_authoritydecision
|
D
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
LOCAL 144 NURSING HOME PENSION FUND et al. v. DEMISAY et al.
No. 91-610.
Argued January 11, 1993
Decided June 14, 1993
Henry Rose argued the cause for petitioners. With him on the briefs was Linda E. Rosenzweig.
Ronald E. Rickman argued the cause for respondents. With him on the brief were Mark E. Brossman and Eileen M. Fields.
Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Christopher J. Wright, Ronald J. Mann, Allen H. Feldman, Mark S. Flynn, Carol Connor Flowe, and Jeffrey B. Cohen; for the Central States, Southeast and Southwest Areas Health and Welfare and Pension Funds by Thomas C. Nyhan and Terence G. Craig; for the National Coordinating Committee for Multiemployer Plans by Gerald M. Feder and David R. Levin; and for the Western Conference of Teamsters Pension Trust Fund by Robert M. Westberg and Kirke M. Hasson.
Justice Scalia
delivered the opinion of the Court.
This case presents the question whether a federal district court may issue an injunction pursuant to § 302 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 157, as amended, 29 U. S. C. § 186 (1988 ed. and Supp. Ill), requiring the trustees of a multiemployer trust fund to transfer assets from that fund to a new multiemployer trust fund established by employers who broke away from the first fund.
I
Respondents include a group of employers that, until 1981, were members of a multiemployer bargaining association, the Greater New York Health Care Facilities Association, Inc. (Greater Employer Association). Two trust funds — the Local 144 Nursing Home Pension Fund and the New York City Nursing Home-Local 144 Welfare Fund (collectively, Greater Funds) — were established pursuant to collective-bargaining agreements between the Greater Employer Association and the relevant union, Local 144 of the Hotel, Hospital, Nursing Home and Allied Services Employees Union, Service Employees International Union, AFL-CIO (Local 144). Prior to 1981, the respondent employers made contributions to the Greater Funds on behalf of their employees in accordance with the terms of collective-bargaining agreements negotiated between the Greater Employer Association and Local 144.
In 1981, the respondent employers broke away from the Greater Employer Association and executed independent collective-bargaining agreements with Local 144. The initial agreements required continuing employer contributions to the Greater Funds, but those concluded in 1984 provided for establishment of a new set of trust funds, the Local 144 Southern New York Residential Health Care Facilities Association Pension Fund and the Local 144 Southern New York Residential Health Care Facilities Association Welfare Fund (Southern Funds). At approximately the same time, the respondent employers ended their participation in the Greater Funds.
In negotiating the transfer from the Greater Funds to the Southern Funds, the “primary concern” of Local 144 was to make sure that the shift would not cause its members to lose benefits. 935 F. 2d 528, 530 (CA2 1991). To address that concern, the respondent employers guaranteed in their collective-bargaining agreements that the Southern Funds would recognize all credited service time earned under the Greater Funds and, more generally, that employees would not lose any benefits as a result of the withdrawal from the Greater Funds. See 710 F. Supp. 58, 60-61 (SDNY 1989). That guarantee obviously created some peculiar liabilities for the Southern Funds. For example, an employee who had earned nine years’ credited service time under the Greater Funds would, after just one more year of service, acquire vested rights to pension benefits pursuant to the 10-year vesting requirement of the Southern Funds — even though the Southern Funds had received only one year of employer contributions for that employee. See id., at 61, n. 4. The Southern Funds’ assumption of these liabilities, however, did not alter the obligations of the Greater Funds, which were not parties to the collective-bargaining agreements: They remained liable to the departing employees for all vested benefits. See id., at 61, and n. 5, 65; 935 F. 2d, at 530-531.
To help cover the Southern Funds’ liabilities and in general to help finance the change from the Greater Funds to the Southern Funds, the respondent employers — joined by several of their employees and the trustees of the Southern Funds — brought this action to compel petitioners, the Greater Funds and the Greater Funds’ trustees, to transfer an appropriate fractional share of the Greater Funds’ assets to the Southern Funds. They asserted right to relief under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S. C. §1001 et seq. (1988 ed. and Supp. Ill), and under §302 of the LMRA; only the latter claim is at issue here.
The relevant portions of §302 are set forth in the margin. To describe respondents’ claim, it is necessary to sketch the structure of that provision. Subsection (a) prohibits an employer (or an association of employers, such as the Greater Employer Association) from, inter alia, making payments to any representative of its employees, including the employees’ union and union officials. Paragraph (b)(1) is the “reciprocal” of subsection (a), Arroyo v. United States, 359 U. S. 419, 423 (1959), making it unlawful for employee representatives to receive the payments prohibited by subsection (a). The prohibitions of subsection (a) and paragraph (b)(1) are drawn broadly and would prevent payments to union employee health and welfare funds such as those at issue here. See generally United States v. Ryan, 350 U. S. 299, 304-305 (1956); Goetz, Employee Benefit Trusts under Section 302 of Labor Management Relations Act, 59 Nw. U. L. Rev. 719, 723-731 (1965). Subsection 302(c), however, provides exceptions to the prohibitions. Most significantly for our purposes, paragraph (c)(5) excepts payments to an employee trust fund so long as certain conditions are met, including that the trust fund be “established ... for the sole and exclusive benefit of the employees,” and that the payments be “held in trust for the purpose of paying” employee benefits.
Respondents’ theory is that the Greater Funds cannot meet those last quoted conditions unless they transfer to the Southern Funds the portion of their reserves that is attributable to the respondents’ past contributions. If they fail to do so, according to respondents, they will suffer from a “structural defect” which can be remedied by federal courts pursuant to the power conferred by § 302(e) to “restrain violations of this section.”
The District Court granted petitioners’ motion for summary judgment. Though it agreed with respondents that it had power to “review a challenge that the Greater Funds are structurally deficient under [§ 302(c)(5)’s] ‘sole and exclusive’ benefit standard,” 710 F. Supp., at 61, 62, it found no “structural defect,” since there was no allegation of corruption in the Greater Funds and since the transfer of assets would not further any collective-bargaining policies. Id., at 64. The Court of Appeals reversed, holding that the Greater Funds “would suffer from a ‘structural defect’ ” unless the funds transferred a portion of their assets to the Southern Funds. 935 F. 2d, at 534. It remanded for the District Court “to shape an appropriate remedy guided by the principle that a fair portion of the reserves reflecting contributions made to the Greater Funds on behalf of the [respondents’ employees] should be reallocated to the Southern Funds.” Ibid. We granted certiorari, 505 U. S. 1203 (1992).
II
Both the District Court and the Court of Appeals relied on the Second Circuit’s earlier decision in Local 50, Bakery and Confectionery Workers Union, AFL-CIO v. Local 3, Bakery and Confectionery Workers Union, AFL-CIO, 733 F. 2d 229 (1984), which held that federal courts have “‘jurisdiction under [§ 302(e)] to enforce a trust fund’s compliance with the statutory standards set forth in subsection (c)(5) by eliminating those offensive features in the structure or operation of the trust that would cause it to fail to qualify for a (c)(5) exception.’ ” Id., at 234 (quoting Associated Contractors of Essex Cty., Inc. v. Laborers Int’l Union of North America, 559 F. 2d 222, 225 (CA3 1977)). Local 50 and the decision below are among a large body of conflicting cases bearing upon federal courts’ powers under § 302(e) to supervise the administration of § 302(c)(5) trust funds. A number of courts have held that § 302(e) confers broad supervisory powers. See, e. g., Ponce v. Construction Laborers Pension Trust for Southern California, 628 F. 2d 537, 541-542 (CA9 1980); Lewis v. Mill Ridge Coals, Inc., 298 F. 2d 552, 558 (CA6 1962). Others have held that it confers no supervisory powers at all. See, e. g., Ader v. Hughes, 570 F. 2d 303, 306 (CA10 1978); Bowers v. Ulpiano Casal, Inc., 393 F. 2d 421 (CA1 1968); Moses v. Ammond, 162 F. Supp. 866, 871-872 (SDNY 1958). Still others have acknowledged supervisory powers limited in various respects. See Riley v. MEBA Pension Trust, 570 F. 2d 406, 412-413 (CA2 1977); Knauss v. Gorman, 583 F. 2d 82, 86-87 (CA3 1978). Our most recent case in this area expressly reserved the question. See Mine Workers Health and Retirement Funds v. Robinson, 455 U. S. 562, 573, n. 12 (1982).
We hold today that § 302(e) does not provide authority for a federal court to issue injunctions against a trust fund or its trustees requiring the trust funds to be administered in the manner described in § 302(c)(5). By its unmistakable language, § 302(e) provides district courts with jurisdiction “to restrain violations of this section.” A “violation” of §302 occurs when the substantive restrictions in §§ 302(a) and (b) are disobeyed, which happens, not when funds are administered by the trust fend, but when they are “pa[id], len[t], or deliver[ed]” to the trust fend, § 302(a), or when they are “reeeive[d], or accepted] ” by the trust fond, or “requested], [or] demand[ed]” for the trust fond, § 302(b)(1). And the exception to violation set forth in paragraph (c)(5) relates, not to the purpose for which the trust fond is in fact used (an unrestricted fond that happens to be used “for the sole and exclusive benefit of the employees” does not qualify); but rather to the purpose for which the trust fund is “established,” § 302(c)(5), and for which the payments are “held in trust,” § 302(e)(5)(A). The trustees’ failure to comply with these latter purposes may be a breach of their contractual or fiduciary obligations and may subject them to suit for such breach; but it is no violation of §302.
A few courts and some academic commentators have drawn an analogy between §§301 and 302 of the LMRA and have suggested that, as §301 has been held to create a federal common law governing labor contracts, see Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448 (1957), so too should §302 be viewed as authorizing the development of “a specialized body of federal common law of trust administration. ” Goetz, Developing Federal Labor Law of Welfare and Pension Plans, 55 Cornell L. Rev. 911, 930 (1970). One court has said, quoting Lincoln Mills, supra, at 457, that “jurisdiction in a case of this kind can be found within the ‘penumbra of express statutory mandate’ of Section 302.” Lugo v. Employees Retirement Fund of Illumination Products Industry, 366 F. Supp. 99, 103 (EDNY 1973), quoted approvingly in Alvares v. Erickson, 514 F. 2d 156, 166 (CA9), cert. denied, 423 U. S. 874 (1975). See also Nedd v. United Mine Workers of America, 556 F. 2d 190, 203 (CA3 1977), cert. denied, 434 U. S. 1013 (1978). A comparison of § 302(e) with § 301(a) shows that the analogy to Lincoln Mills is inapt. The latter provides a federal cause of action for any “violation of contracts between an employer and a labor organization.” Subsection § 302(e), by contrast, provides no cause of action for a “violation of the fiduciary duties imposed pursuant to an employee benefit trust fund”; rather, it allows federal courts to “restrain violations” of § 302, which, as we have explained, occur when payments to a nonqualifying trust are made or received.
The text of §302 requires that, if payments are to be exempt from its prohibition, they must be “held in trust for the purpose of paying” employee benefits and the trust must be “established” for the sole and exclusive benefit of the employees. There is nothing to suggest that this had the ambitious purpose of establishing an entire body of federal trust law, rather than merely describing the character of the trust to which payments are allowed, leaving it to state law to determine when breaches of that trust have occurred and how they may be remedied. As observed by the court in Moses v. Ammond, 162 F. Supp., at 872, n. 14, § 302(e)(5) is akin to a provision such as § 401(a) of the Internal Revenue Code, 26 U. S. C. § 401(a) (1988 ed. and Supp. III), which (in connection with 26 U. S. C. § 501 (1988 ed. and Supp. III)) provides a tax exemption for employer-created pension trust funds so long as, inter alia, they are “created ... for the exclusive benefit of [the employer’s] employees or their beneficiaries.” No one would contend that that provision confers upon the federal courts authority to govern and enforce the trusts, and there is no more reason to reach such a conclusion here.
Respondents point to our statement in Arroyo v. United States, 359 U. S., at 426-427, that “[continuing compliance with [the standards of § 302(c)(5)] in the administration of welfare funds was made explicitly enforceable in federal district courts by civil proceedings under § 302(e).” See also Robinson, 455 U. S., at 573, n. 12 (referring to this passage). The statement is perhaps susceptible of the reading that “compliance” was “made ... enforceable” by authorizing district courts to prohibit further payments to an entity that was not established, or does not hold its funds in trust, for the requisite purposes. But in any case, Arroyo was a criminal prosecution brought under § 302(d), and the statement was therefore pure dictum. Also dictum was our statement in NLRB v. Amax Coal Co., 453 U. S. 322, 331 (1981), later quoted in Robinson, supra, at 570, that “the ‘sole purpose’ of § 302(c)(5) is to ensure that employee benefit trust funds ‘are legitimate trust funds, used actually for the specified benefits to the employees of the employers who contribute to them....’” (Emphasis added.) This obiter quotation of a line from the floor debate on the LMRA cannot convert (1) a statutory statement of trust obligations that must exist to obtain an exemption into (2) a statutoiy authorization to enforce trust obligations.
Consistently with the text of § 302(c)(5), and the structure of § 302 in general, we view the “sole and exclusive benefit” and “held in trust” provisions of that paragraph as neither creating nor imposing a federal trust law standard, but rather as simply requiring a trust obligation for the specified purposes, defined and enforced originally under state law, see Restatement (Second) of Trusts § 170(1) (1959), and now under ERISA. Cf. Amax Coal, supra, at 329-330. Respondents do not deny that the Greater Funds are held subject to such a trust obligation. The fiduciaries of the Greater Funds are subject to the fiduciary obligations of ERISA, including the so-called exclusive benefit requirement of 29 U. S. C. § 1104(a)(l)(i), and are liable under 29 U. S. C. § 1109(a) to legal and equitable remedies for failure in those obligations. Since the Greater Funds are entities that qualify under § 302(c)(5), equitable relief under § 302(e) restraining future payments to them would not be appropriate.
In addition to the §302 claim, respondents’ complaint asserted two ERISA claims, one based on ERISA’s asset transfer rules, 29 U. S. C. § 1414, and the other on ERISA’s above-mentioned fiduciary duty provision, § 1104. The District Court ruled against respondents on both claims but, because of its ruling on §302, the Court of Appeals did not reach them. Neither do we and, on remand, the Court of Appeals will be free to consider them.
The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
Section 302,29 U. S. C. § 186 (1988 ed. and Supp. Ill), provides in part: “(a)... It shall be unlawful for any employer or association of employers ... to pay, lend, or deliver ... any money or other thing of value—
“(1) to any representative of any of his employees who are employed in an industry affecting commerce; or
“(2) to any labor organization, or any officer or employee thereof, which represents, seeks to represent, or would admit to membership, any of the employees of such employer ...;
“(b) ... (1) It shall be unlawful for any person to request, demand, receive, or accept, or agree to receive or accept, any payment, loan, or delivery of any money or other thing of value prohibited by subsection (a) of this section.
“(c)... The provisions of this section shall not be applicable ... (5) with respect to money or other thing of value paid to a trust fund established by [the representative of the employees], for the sole and exclusive benefit of the employees of such employer, and their families and dependents (or of such employees, families, and dependents jointly with the employees of other employers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying ... for the benefit of employees, their families and dependents, for medical or hospital care, pensions on retirement or death of employees, . . . (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer . . . ; and (C) such payments as are intended to be used for the purpose of providing pensions or annuities for employees are made to a separate trust which provides that the funds held therein cannot be used for any purpose other than paying such pensions or annuities;...
“(e) The district courts of the United States and the United States courts of the Territories and possessions shall have jurisdiction, for cause shown, and subject to the provisions of section 381 of title 28 (relating to notice to opposite party) to restrain violations of this section, without regard to the provisions of section 17 of title 15 and section 52 of this title, and the provisions of chapter 6 of this title.”
Justice Stevens asserts that our holding is “uninvited,” post, at 601, was “quite unanticipated by the submissions of the parties” post, at 595, and has been reached “[wjithout the benefit of argument ... by either litigant,” ibid. That is not so. The Summary of Argument in petitioners’ brief began with the assertion that § 302(c)(5) was only “a narrow exception to a broad criminal prohibition.” Brief for Petitioners 1. The first subdivision of the Argument elaborated on that point, arguing that the provision conferred no authority “to oversee the administration of employee benefit plans.” Id., at 8. And the next subdivision, entitled “Lower Federal Courts Have Misconstrued Section 302(c)(5) in Asserting Broad Jurisdiction over the Regulation of Employee Benefit Plans,” systematically criticized the lower court jurisprudence permitting regulation of benefit plans, including cases from almost every Circuit. Id., at 11-18. The subdivision concluded: “[T]he federal courts simply do not have the power, by reason of Section 302(c)(5), to restructure and regulate employee benefit plans.” Id., at 18 (footnote omitted). By attacking the basic authority of federal courts to regulate § 302(c)(5) trust funds, petitioners raised the issue we decide here, and amply discussed the considerations bearing upon it. Respondents evidently understood the import of petitioners’ argument. They devoted an entire subdivision of their brief to the topic “Federal Courts Have Authority To Remedy Violations Of Section 302(c)(5) In Civil Cases.” See Brief for Respondents 17-19. In response to our point here, Justice Stevens quotes a passage from a different section of petitioners’ brief and claims that it is “disingenuous” to characterize that argument as a broad attack on a federal court’s power. Post, at 598, n. 4. We do not do so.
Justice Stevens concludes that “it is perfectly clear that funds are no longer ‘held in trust for the purpose’ of benefiting employees if, immediately after deposit into a legitimate trust fund, they are diverted for some improper purpose.” Post, at 597-598, n. 3. It is true that funds are “no longer” held in trust if they are misappropriated (just as it is true that funds are “no longer” held in trust when they are paid out in the form of pensions), but it is also irrelevant. If the payments, when received by the relevant employee representative, “are held in trust” and that trust satisfies the other requirements of § 302(c)(5) (including that it have been “established” for the proper purposes), the exception in § 302(c)(5) applies and the payments do not violate §302. This was our precise holding in Arroyo v. United States, 359 U. S. 419 (1959). The union official in that case, immediately upon receiving the employer’s contributions to the trust fund, had begun diverting the funds to improper purposes. See id., at 422. Indeed, “the evidence could properly support an inference that the [union official’s] purpose from the outset-was to appropriate the [contributions to the fund] for his own use.” Id., at 423 (emphasis added). Nevertheless, we held that the employer’s payments were “within the precise language of § 302(c).” Ibid. We deemed the payments to have been “held in trust for the purpose” of benefiting employees since they were made to a trust fund established for that purpose. See id., at 421, 423. Justice Stevens criticizes us for relying on this “half” of Arroyo while disregarding the other “half,” see, post, at 595, n. 1, but the “half” to which we adhere is holding, and the “half” we disregard, dictum.
While Justice Stevens does not dispute that this statement was dictum, he argues that “the reasoning that led us to [that] conclusion... is not so easily dismissed.” Post, at 596 (emphasis added). We disagree. As one will see by reading the relevant passage from Arroyo (set forth in the concurrence, post, at 596-597), the “reasoning” consisted of leaping from the correct premise, that Congress limited the purposes for which exempt trust funds could be used, to the entirely unsupported conclusion, that § 302(e) rather than state trust law was to be the means by which that limitation was enforced. It is an ipse dixit, rather than a reasoned conclusion — and, to boot, an ipse dixit contradicted by the very holding of the case in which it was pronounced. Arroyo held that malfeasance in the administration of trust funds did not create federal criminal liability under §302, and there is no basis in either text or reason why it should nonetheless create federal civil liability.
Justice Stevens’ concluding words are that our action today is “a radical departure from the doctrine of judicial restraint.” Post, at 601. We have already refuted his claim that our ruling is reached uninvited and without benefit of argument. See supra, at 588-589, n. 2. His lack-of-restraint criticism seems principally directed, however, at our “departure from [the] understanding” of § 302(c)(5), post, at 601, reflected in the dicta of earlier cases — such as the excerpt that he quotes from Mine Workers Health and Retirement Funds v. Robinson, 455 U. S. 562, 573, n. 12 (1982) (Stevens, J.), see post, at 600. This seems to us a topsy-turvy version of judicial restraint. It was, if anything, those dicta themselves — uninvited, unargued, and unnecessary to the Court’s holdings — which insulted that virtue; and we would add injury to insult by according them precedential effect.
Title 29 U. S. C. § 1104(a)(1) (1988 ed. and Supp. III) provides: “[A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and — (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan.”
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_appfed
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0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
In re Irwin HYMAN; Janice Hyman, Debtors. Irwin HYMAN; Janice Hyman, Appellants, v. Gary A. PLOTKIN, Trustee, Appellee.
No. 91-55300.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 7, 1992.
Decided June 22, 1992.
Richard M. Moneymaker, Moneymaker & Kelley, Los Angeles, Cal., for appellants.
Amy L. Goldman, Plotkin & Rapaport, Encino, Cal., for appellee.
Before: TANG, KOZINSKI and TROTT, Circuit Judges.
KOZINSKI, Circuit Judge.
More than 40 states, including California, have statutes that place a debtor’s homestead or a portion thereof beyond the reach of creditors. This protection carries over into bankruptcy to shelter the debtor from forced sale of his homestead by a bankruptcy trustee unless certain conditions are satisfied. In this case we explore the conditions to be met before a bankruptcy trustee may sell a debtor’s homestead in accordance with California’s homestead exemption statute and the United States Bankruptcy Code.
Facts
On November 21, 1988, Appellants Irwin and Janice Hyman filed a voluntary petition for bankruptcy under Chapter 7 of the Bankruptcy Code. Appellee Gary Plotkin was appointed as trustee to liquidate the Hymans’ estate pursuant to 11 U.S.C. § 704.
The only real property the Hymans owned was their home, which they valued at $415,000 and which was encumbered by $347,611 in consensual liens. On their bankruptcy schedule of exempt property, the Hymans claimed their “homestead” as exempt under Cal.Civ.Proc.Code § 704.720, listing the value of the exemption as $45,-000. The trustee did not object to this claim of exemption within the 30-day window created by Bankruptcy Rule 4003(b), or at anytime thereafter. Instead, on January 18, 1989, he applied to the bankruptcy court to employ a real estate broker to assist in the marketing and sale of the Hymans’ home; the court granted the application twelve days later.
Unpleasantly surprised by the trustee’s actions, the Hymans filed for declaratory judgment, claiming their home was not an asset of the estate because of its exempt status, and thus was beyond the reach of the trustee. In the alternative, they claimed all post-petition appreciation in the value of their home inured to them, not to the estate; they were therefore entitled, in their eyes, to the $45,000 exemption under Cal.Civ.Proc.Code § 704.730 plus the increase in the value of their home from the bankruptcy filing date to the sale date. The bankruptcy court, Bankruptcy Judge Geraldine Mund presiding, granted summary judgment in favor of the trustee, and a divided Bankruptcy Appellate Panel affirmed. 123 B.R. 342 (9th Cir. BAP 1991).
Discussion
This case turns largely on the proper interpretation of California’s homestead exemption statute. That statute defines “homestead” as a judgment debtor’s principal dwelling place, Cal.Civ.Proc.Code § 704.710(c), and “homestead exemption” as a fixed dollar amount generated from the sale of the homestead. Id., § 704.730. For the Hymans that amount is $45,000. Id., § 704.730(a)(2). State law also provides that a judgment debtor’s homestead may not be sold by judgment creditors unless the sale price of the homestead “exceeds the amount of the homestead exemption plus any additional amount necessary to satisfy all liens and encumbrances on the property_” Id,., § 704.800(a). If the sale price does exceed these amounts, the homestead may be sold and the judgment debtor is entitled to a sum equal to his homestead exemption from the proceeds of the sale. Id., § 704.720(b).
Of course, the Hymans were not “judgment debtors” under California law, but bankruptcy petitioners under federal law. Nevertheless, section 522(b)(2)(A) of the Bankruptcy Code excludes from a debtor’s bankruptcy estate “any property that is exempt under ... State or local law that is applicable ... at the place in which the debtor’s domicile has been located....” Because the Hymans had been domiciled in • California “for the 180 days immediately preceding the date of the filing of [their] petition,” id., section 522 entitled them to exempt from their estate any property qualifying under California’s homestead exemption statute.
A. The Hymans first argue that by listing “homestead” instead of “homestead exemption” on their schedule of exempt property, they were claiming as exempt property their entire homestead, not just $45,000. Because the trustee did not object to this listing within the time allowed by Bankruptcy Rule 4003(b), the Hymans claim that their entire homestead became exempt property by operation of law. 11 U.S.C. § 522(1) (“The debtor shall file a list of property that the debtor claims as exempt- Unless a party in interest objects [within the time allowed by Rule 4003], the property claimed as exempt on such list is exempt.”).
However, “[w]e have reviewed Debtor’s bankruptcy petition, ‘Schedule B-4 — Property claimed as exempt,’ and find this assertion to be erroneous.” In re Reed, 940 F.2d 1317, 1321 n. 3 (9th Cir.1991). The Hymans’ schedule of exempt property listed “homestead” as an exemption under Cal.Civ.Proc.Code § 704.720, and valued the exemption at $45,000. Based on this information, the Hymans did not sufficiently notify others that they were claiming their entire homestead as exempt property; their schedule only gave notice that they claimed $45,000 as exempt, which is the proper amount of their homestead allowance under sections 704.720 and 704.730. See Reed, 940 F.2d at 1321 n. 3. Thus, the trustee had no basis for objecting, and could well have suffered the bankruptcy judge’s ire had he objected to the $45,000 exemption to which the Hymans were clearly entitled.
B. Next, the Hymans argue that even if they were limited to a $45,000 homestead exemption, they were still entitled to summary judgment. Their bankruptcy petition listed the value of the home as $415,000 and encumbrances as $347,611; the trustee never objected to these valuations. Assuming, as the Hymans would have us, that the trustee sold the home for $415,000 and the sale costs were 8%, or $33,200, this would leave only $34,189 after the encumbrances ($347,611) were paid off. Because this amount is below the Hymans’ homestead exemption allowance of $45,000, they argue that California’s homestead exemption statute does not allow the trustee to sell the homestead. See Cal.Civ.Proc. § 704.800(a).
The flaw in the Hymans’ argument is that it is not supported by the statutory language upon which they rely. Section 704.800 permits the forced sale of a homestead if its sale price “exceeds the amount of the homestead exemption plus any additional amount necessary to satisfy all liens and encumbrances on the property.” There is no statutory requirement that the sale price also account for selling costs, and there is no doubt that the formula contained in section 704.800 is satisfied.
Independent of the trustee’s obligation under section 704.800 is his obligation under 11 U.S.C. § 704(1) to act in “the best interest of parties in interest” in reducing estate property to cash. It’s doubtful this obligation would be satisfied if the trustee sold the Hymans’ home for less than the homestead exemption, encumbrances, selling costs and trustee’s own fees. However, nothing in 11 U.S.C. § 704 or elsewhere in the Bankruptcy Code requires that the trustee demonstrate in advance of attempting a sale that the market price will exceed all costs and encumbrances. The sale of encumbered property is a relatively complex financial transaction and the trustee cannot be certain of what he will reap until he has taken bids on the property. Some of the variables involved are known in advance, such as the amounts of the homestead exemption and encumbrances. Other variables remain unknown until the-bids are in, such as the sale price and, to a lesser extent, the sale costs. Little would be gained by prohibiting the trustee from attempting a sale in the sound belief that there will be something left for the estate after the liens, sale expenses and homestead exemption are covered. This is especially true because the trustee is not bound to accept a bid that does not enable him to satisfy his obligations, and may simply refuse to go through with a sale if none of the bids proves sufficiently advantageous;
C. Finally, the Hymans argue that the bankruptcy court erred in holding that they are only entitled to $45,000 upon the sale of the home. According to the Hy-mans, they are entitled to $45,000 plus the home's appreciation in value since the filing of the bankruptcy petition. As a fallback, they argue that they're entitled at least to that part of the appreciation which stands in the same proportion to the total appreciation as their homestead exemption stands to the value of their home.
We note initially that this argument is somewhat premature. The question squarely before us is not what is the exact amount to which the Hymans will be entitled upon final distribution of the proceeds of sale, but whether a sale will be held at all. On that issue alone, the bar against forced sale embedded in California Code of Civil Procedure § 704.800 speaks only in terms of the amount of the exemption itself, not any appreciation or depreciation due to the passage of time. Thus, even if it turns out that the Hymans would be entitled to some amount in excess of the $45,000 at the time of the final accounting, only the $45,000 itself may be considered in determining whether a sale may be held under section 704.800.
In any event, the Hymans' claim for appreciation is without merit. The California statute gives the Hymans a $45,000 exemption as of the time of sale, not a $45,000 equity interest in the property. In the normal situation where section 704.800 is called into play-a sale of property to satisfy a judgment lien-the concept of an interest that fluctuates in value makes no sense because all the relevant events occur on the date of sale. Only in the bankruptcy context, where an appreciable period of time usually passes between filing of the petition and sale of the property, can the property rise or fall in value. Yet, we see no basis for treating a sale by a trustee in bankruptcy any different from a sale by a judgment lienholder. The debtor's right to use the exemption comes into play not upon the filing of the petition, but only if and when the trustee attempts to sell the property. At that point, and not before, the debtor first faces the possibility of being dispossessed of his home, and the grim prospect of having to use the exemption money to find alternative housing.
Were we to accept the Hymans' argument that they're entitled to post-filing appreciation, we would also have to hold that a debtor is subject to post-filing depreciation, which would give debtors in falling property markets less than the $45,000 guaranteed them by state law. Nothing in the bankruptcy law compels (or even suggests) such a drastic interference with the operation of the state homestead exemption statute. In fact, our caselaw strongly suggests the opposite result. See Reed, 940 F.2d at 1323 (stating that post-filing "appreciation enures to the bankruptcy estate, not the debtor"). The policies of both federal and state law (as well as the interest in simplifying bankruptcy estate administration) are best served if the debtor is guaranteed the full exemption amount on the date of sale, regardless of the vicissitudes of the real estate market or the timing of the sale.
AFFIRMED.
. The exemption appeared on the Hymans' "Schedule EM — Property claimed as exempt" as follows:
Type of Specific Statute creating Value Claimed
Property the exemption Exempt
Homestead C.C.P. 704.720 45,000.00
. Although Cal.Civ.Proc.Code § 704.730(a)(2) was amended to increase the homestead exemption to $75,000, the Hymans are only entitled to a $45,000 homestead exemption because an exemption amount is determined on the date the petition is filed. See In re Herman, 120 B.R. 127, 130 (9th Cir. BAP 1990).
. Of the 43 states and two federal territories that have homestead exemption statutes, 29 limit the dollar amount of the homestead allowance in a manner similar to the California statute; 6 limit the acreage amount of the homestead allowance; and 10 limit both the dollar and the acreage amounts of the homestead allowance. In addition, Delaware, Maryland and Virginia, while having no express homestead statute, permit judgment debtors to exempt a set dollar value of property, which may include the debt- or’s homestead. Of the nine states in the Ninth Circuit, seven limit the dollar amount of the homestead allowance (Alaska, Arizona, California, Idaho, Montana, Nevada and Washington), while two limit both the dollar and the acreage amounts of the homestead allowance (Hawaii and Oregon). See generally Collier Bankruptcy Exemption Guide (1991).
. To use the Hymans’ own words, they argue that under the definition of "homestead” contained in Cal.Civ.Proc.Code § 704.710, ”[t]he Homestead is the dwelling house.... [Thus, w]hen the Trustee failed to object to the claim that the entire dwelling house was exempt, pursuant to section 522(a) of the Bankruptcy Code, the dwelling house revested in the Debtors and was no longer a part of the Bankruptcy Estate and thus, cannot be sold.” Opening Brief of Appellants Irwin and Janice Hyman, at 6-7.
. To the extent the Hymans argue that sections 704.710-.800 entitle them to claim their entire homestead as exempt regardless of their equity value in the homestead or any objection to the claimed exemption, their argument has already been rejected. In Reed, we held that "California does not permit a debtor to exempt his entire interest in a homestead, but specifically limits the dollar amount up to which a homestead exemption can be claimed." 940 F.2d at 1321.
. Unless there is a timely objection from a party in interest, any property claimed as exempt by a debtor — regardless of whether the claimed exemption is valid — is automatically exempt under section 522(l). See Taylor v. Freeland & Kronz, — U.S. -, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992). Because the time to object is relatively short, see Bankr.Rule 4003(b), it is important that trustees and creditors be able to determine precisely whether a listed asset is validly exempt simply by reading a debtor’s schedules. Given that the debtor controls the schedules, we construe any ambiguity therein against him.
. The Hymans cannot plausibly claim that "any additional amount necessary to satisfy all liens and encumbrances on the property” includes the cost of sale. The California homestead exemption statute specifically differentiates between sales costs on the one hand and homestead liens and encumbrances on the other. See Cal.Civ.Proc.Code §§ 704.840, 704.850.
. Accepting the Hymans' valuation for the purpose of summary judgment, that value ($415,-000) "exceeds the amount of the homestead exemption [$45,000] plus any additional amount necessary to satisfy all liens and encumbrances on the property [$347,611]" by $25,389. Cal.Civ. Proc.Code § 704.800(a).
. In making these calculations, the relevant figure is the actual sale price of the property, not the valúe of the property listed by the debtor on his schedule of assets. The Hymans’ argument that the trustee is bound by the value listed on their schedule of assets because he did not object to that value within the 30 days allowed by Rule 4003 is misplaced. According to their own schedule of exemptions, the Hymans only claimed a $45,000 homestead exemption. See page 1318 supra. That figure is fixed "as of the date of the filing the petition.” 11 U.S.C. § 522(a)(2). However, nothing in section 522, or anywhere else in the Bankruptcy Code for that matter, requires that non-exempt assets have their values frozen on the petition date. Cf. 11 U.S.C. § 506 & Bankr.Rule 3012 (value of property encumbered by a lien determined at time of hearing before the court); 11 U.S.C. §§ 1124, 1129 (value of property determined on effective date of plan of reorganization).
.The Hymans base their argument in part on the assumption that sale costs will be 8% of the selling price. This figure is not legally required or otherwise inflexible. To the contrary, the primary component of sale costs is the sale commission, and the trustee has the right — indeed, the obligation — to negotiate the lowest commission rate he can.
. To the extent the trustee delays selling the home to wait for it to appreciate, the debtor gets to live in it for free. If the debtor believes he is being prejudiced by the trustee's delay, he can move for abandonment. 11 U.S.C. § 554(b); Bankr.RuIe 6007.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
sc_jurisdiction
|
I
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
CALIFORNIA v. WASHINGTON.
No. 12,
Original.
Argued October 15-16, 1958
Decided November 10, 1958.
Wallace Howland, Assistant Attorney General of California, argued the cause for plaintiff. With him on the brief were Edmund G. Brown, Attorney General, and Leonard M. Sperry, Jr., Deputy Attorney General.
John J. O’Connell, Attorney General of Washington, and Thomas R. Garlington argued the cause for defendant. With them on the brief was Franklin K. Thorp, Assistant Attorney General.
Louis J. Lefkowitz, Attorney General, and Paxton Blair, Solicitor General, filed a brief for the State of New York, as amicus curiae, in support of the position taken by the plaintiff in its complaint.
Per Curiam.
The motion for leave to file bill of complaint is denied. U. S. Const., Amend. XXI, § 2; Indianapolis Brewing Co. v. Liquor Control Commission, 305 U. S. 391; Joseph S. Finch & Co. v. McKittrick, 305 U. S. 395; Mahoney v. Joseph Triner Corp., 304 U. S. 401; State Board of California v. Young’s Market Co., 299 U. S. 59.
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
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sc_jurisdiction
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
GREAT ATLANTIC & PACIFIC TEA CO. v. SUPERMARKET EQUIPMENT CORP.
No. 32.
Argued October 18-19, 1950.
Decided December 4, 1950.
John H. Glaccum argued the cause for petitioner. With him on the brief was Edwin J. Balluff.
Townsend F. Beaman argued the cause for respondent. With him on the brief was Lloyd W. Patch.
Mr. Justice Jackson
delivered the opinion of the Court.
Two courts below have concurred in holding three patent claims to be valid, and it is stipulated that, if valid, they have been infringed. The issue, for the resolution of which we granted certiorari, is whether they applied correct criteria of invention. We hold that they have not, and that by standards appropriate for a combination patent these claims are invalid.
Stated without artifice, the claims assert invention of a cashier’s counter equipped with a three-sided frame, or rack, with no top or bottom, which, when pushed or pulled, will move groceries deposited within it by a customer to the checking clerk and leave them there when it is pushed back to repeat the operation. It is kept on the counter by guides. That the resultant device works as claimed, speeds the customer on his way, reduces checking costs for the merchant, has been widely adopted and successfully used, appear beyond dispute.
The District Court explicitly found that each element in this device was known to prior art. “However,” it found, “the conception of a counter with an extension to receive a bottomless self-unloading tray with which to push the contents of the tray in front of the cashier was a decidedly novel feature and constitutes a new and useful combination.”
The Court of Appeals regarded this finding of invention as one of fact, sustained by substantial evidence, and affirmed it as not clearly erroneous. It identified no other new or different element to constitute invention and overcame its doubts by consideration of the need for some such device and evidence of commercial success of this one.
Since the courts below perceived invention only in an extension of the counter, we must first determine whether they were right in so doing. We think not. In the first place, the extension is not mentioned in ¿he claims, except, perhaps, by a construction too strained to be consistent with the clarity required of claims which define the boundaries of a patent monopoly. 38 Stat. 958, 35 U. S. C. § 33; United Carbon Co. v. Binney & Smith Co., 317 U. S. 228; General Electric Co. v. Wabash Corp., 304 U. S. 364. In the second place, were we to treat the extension as adequately disclosed, it would not amount to an invention. We need not go so far as to say that invention never can reside in mere change of dimensions of an old device, but certainly it cannot be found in mere elongation of a merchant’s counter — a contrivance which, time out of mind, has been of whatever length suited the merchant’s needs. In the third place, if the extension itself were conceded to be a patentable improvement of the counter, and the claims were construed to include it, the patent would nevertheless be invalid for overclaiming the invention by including old elements, unless, together with its other old elements, the extension made up a new combination patentable as such. Bassick Mfg. Co. v. Hollingshead Co., 298 U. S. 415, 425; Carbice Corp. v. American Patents Development Corp., 283 U. S. 27. Thus, disallowing the only thing designated by the two courts as an invention, the question is whether the combination can survive on any other basis.- What indicia of invention should the courts seek in a case where nothing tangible is new, and invention, if it exists at all, is only in bringing old elements together?
While this Court has sustained combination patents, it never has ventured to give a precise and comprehensive definition of the test to be applied in such cases. The voluminous literature which the subject has excited discloses no such test. It is agreed that the key to patent-ability of a mechanical device that brings old factors into cooperation is presence or lack of invention. In course of time the profession came to employ the term “combination” to imply its presence and the term “aggregation” to signify its absence, thus making antonyms in legal art of words which in ordinary speech are more nearly synonyms. However useful as words of art to denote in short form that an assembly of units has failed or has met the examination for invention, their employment as tests to determine invention results in nothing but confusion. The concept of invention is inherently elusive when applied to combination of old elements. This, together with the imprecision of our language, have counselled courts and text writers to be cautious in affirmative definitions or rules on the subject.
The negative rule accrued from many litigations was condensed about as precisely as the subject permits in Lincoln Engineering Co. v. Stewart-Warner Corp., 303 U. S. 545, 549: “The mere aggregation of a number of old parts or elements which, in the aggregation, perform or produce no new or different function or operation than that theretofore performed or produced by them, is not patentable invention.” To the same end is Toledo Pressed Steel Co. v. Standard Parts, Inc., 307 U. S. 350, and Cuno Engineering Corp. v. Automatic Devices Corp., 314 U. S. 84. The conjunction or concert of known elements must contribute something; only when the whole in some way exceeds the sum of its parts is the accumulation of old devices patentable. Elements may, of course, especially in chemistry or electronics, take on some new quality or function from being brought into concert, but this is not a usual result of uniting elements old in mechanics. This case is wanting in any unusual or surprising consequences from the unification of the elements here concerned, and there is nothing to indicate that the lower courts scrutinized the claims in the light of this rather severe test.
Neither court below has made any finding that old elements which made up this device perform any additional or different function in the combination than they perform out of it. This counter does what a store counter always has done — it supports merchandise at a convenient height while the customer makes his purchases and the merchant his sales. The three-sided rack will draw or push goods put within it from one place to another — just what any such a rack would do on any smooth surface— and the guide rails keep it from falling or sliding off from the counter, as guide rails have ever done. Two and two have been added together, and still they make only four.
Courts should scrutinize combination patent claims with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements. The function of a patent is to add to the sum of useful knowledge. Patents cannot be sustained when, on the contrary, their effect is to subtract from former resources freely available to skilled artisans. A patent for a combination which only unites old elements with no change in their respective functions, such as is presented here, obviously withdraws what already is known into the field of its monopoly and diminishes the resources available to skillful men. This patentee has added nothing to the total stock of knowledge, but has merely brought together segments of prior art and claims them in congregation as a monopoly.
The Court of Appeals and the respondent both lean heavily on evidence that this device filled a long-felt want and has enjoyed commercial success. But commercial success without invention will not make patentability. Toledo Pressed Steel Co. v. Standard Parts, Inc., supra. The courts below concurred in finding that every element here claimed (except extension of the counter) was known to prior art. When, for the first time, those elements were put to work for the supermarket type of stores, although each performed the same mechanical function for them that it had been known to perform, they produced results more striking, perhaps, than in any previous utilization. To bring these devices together and apply them to save the time of customer and checker was a good idea, but scores of progressive ideas in business are not patentable, and we conclude on the findings below that this one was not.
It is urged, however, that concurrence of two courts below, in holding the patent claims valid, concludes this Court. A recent restatement of the “two-court rule” reads, “A court of law, such as this Court is, rather than a court for correction of errors in fact finding, cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error.” Graver Tank Co. v. Linde Co., 336 U. S. 271, 275. The questions of general importance considered here are not contingent upon resolving conflicting testimony, for the facts are little in dispute. We set aside no finding of fact as to invention, for none has been made except as to the extension of the counter, which cannot stand as a matter of law. The defect that we find in this judgment is that a standard of invention appears to have been used that is less exacting than that required where a combination is made up entirely of old components. It is on this ground that the judgment below is
Reversed.
Claims 4, 5, and 6 of the Turnham patent No. 2,242,408, which are involved in the controversy, read as follows:
“4. A checker’s stand including a counter of the character described, an open bottom pusher frame thereon, means to guide said frame in sliding movement so that goods placed on the end of said counter within said frame may be pushed along the counter in a group to a position adjacent the checker by movement of said frame.
“5. A cashier’s counter for cash and carry type of grocery comprising a portion spaced from the cashier’s stand and upon which the merchandise may be deposited and arranged, a bottomless three sided frame on said portion and within which the merchandise is deposited and arranged, means whereby said frame is movable on said counter from said portion to a position adjacent the cashier’s stand so that the merchandise may thus be moved as a group to a point where it may be conveniently observed, counted and registered by the cashier.
“6. A cashier’s counter for cash and carry type of grocery comprising a portion spaced from the cashier’s stand and upon which the merchandise may be deposited and arranged, a bottomless frame on said portion and within which the merchandise is deposited and arranged, means whereby said frame is movable on said counter from said portion to a position adjacent the cashier’s stand so that the merchandise may thus be moved as a group to a point where it may be conveniently observed, counted and registered by the cashier, said frame being open at the end adjacent the cashier’s stand and readily movable to be returned over said portion so as to receive the merchandise of another customer while the cashier is occupied with the previous group.”
339 U. S. 947.
Finding of Fact No. 15 of District Judge Picard, whose opinion appears at 78 F. Supp. 388.
E. g., Keystone Mfg. Co. v. Adams, 151 U. S. 139; Diamond Rubber Co. v. Consolidated Tire Co., 220 U. S. 428.
The Index to Legal Periodicals reveals no less than sixty-four articles relating to combination patents and the theory and philosophy underlying the patent laws. Among the many texts are 1 Walker on Patents (Deller’s ed. 1937); Stedman, Patents; Toulmin, Handbook of Patents; Merwin, Patentability of Inventions; Amdur, Patent Law and Practice; and 1 Roberts, Patentability and Patent Interpretation.
With respect to the word “invention,” Mr. Justice Brown said: “The truth is the word cannot be defined in such manner as to afford any substantial aid in determining whether a particular device involves an exercise of the inventive faculty or not. In a given case we may be able to say that there is present invention of a very high order. In another we can see that there is lacking that impalpable something which distinguishes invention from simple mechanical skill. Courts, adopting fixed principles as a guide, have by a process of exclusion determined that certain variations in old devices do or do not involve invention; but whether the variation relied upon in a particular case is anything more than ordinary mechanical skill is a question which cannot be answered by applying the test of any general definition.” McClain v. Ortmayer, 141 U. S. 419, 427.
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
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songer_fedvst
|
A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court rule that federal law should take precedence over state or local laws in a case involving the conflict of laws (i.e, which laws or rules apply)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES v. STATE OF MINNESOTA.
No. 11689.
Circuit Court of Appeals, Eighth Circuit.
July 29, 1940.
John F. Cotter, Atty., Department of Justice, of Washington, D. C. (Norman M. Littell, Asst. Atty. Gen., Victor E. Anderson, U. S. Atty., of St. Paul, Minn., Charles R. Denny, Jr., Atty., Department of Justice, and W. Robert Koerner, Atty., Department of Justice, both of Washington, D. C., on the brief), for appellant.
Chester S. Wilson, Deputy Atty. Gen. (J. A. A. Burnquist, Atty. Gen., Arthur Christofferson, Deputy Atty. Gen., and Sam W. Campbell and Bert McMullen, Sp. Asst. Attys. Gen., on the brief), for appellee.
Before GARDNER and SANBORN, Circuit Judges, and COLLET, District Judge.
GARDNER, Circuit Judge.
This matter is before us on an appeal from two orders of the lower court, one denying the motion of the United States to dismiss the proceedings and the other from an order granting the petition of the State of Minnesota for condemnation of certain lands for highway purposes.
The land involved is a tract of allotted Indian land held in trust by the United States, subject to the restrictions against alienation contained in Section 5 of the General Allotment Act of February 8, 1887, 24 Stat. 388, 389, 25 U.S.C.A. § 348. The Indian owners of the allotment are members of the Minnesota Chippewa tribe. The proceeding was brought to acquire a right of way for State Trunk Highway No. 61, established under Article 16 of the Minnesota Constitution and laws passed pursuant thereto. This highway has been permanently located, improved, maintained and traveled from the City of Duluth northeasterly along the shore of Lake Superior to a point within the Grand Portage Indian Reservation. From this point the proposed new route, which has not yet been improved, continues in a northeasterly course following generally the lake shore, through the Reservation, and beyond to a point on the international boundary. All of the right of way for the proposed new route has been acquired by the State of Minnesota by purchase or condemnation, except the one parcel of Indian land involved in this case and other parcels of Indian lands which were involved in State of Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235. Except for these parcels of Indian lands, all the lands traversed by the route were in private ownership when the right of way was acquired. A large part of the land within the Reservation is owned by white persons and much other land in the Reservation, including the parcel involved in this proceeding, has been allotted to Indians in severalty.
The State has not secured permission or authority from the Secretary of the In-terror for the construction of the highway-in question, nor for the institution of this proceeding. The United States appeared specially and moved to dismiss the proceeding on the ground that the court was without jurisdiction because the Secretary of the Interior had not consented to the establishment of the highway, and the United States had not consented to be sued. The court having denied this motion and entered an order granting the petition for condemnation, the United States prosecutes this appeal.
That the State of Minnesota is vested with the power of eminent domain is not challenged. The question involved is whether the State may by virtue of Section 3 of the Act of March 3, 1901, 25 U. S.C.A. § 357, maintain this proceeding to condemn an easement' over the allotted land for the establishment of a public highway, without having first secured from the Secretary of the Interior permission for the opening and establishment of such public highway through allotted Indian land, as provided by Section 4 of the Act of March 3, 1901, 25 U.S.C.A. § 311. Section 3 of the Act of March 3, 1901, 25 U.S.C.A. § 357, provides as follows: “Lands allotted in severalty to Indians may be condemned for any public purpose under the laws of the State or Territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee.” "
If this statute stood alone there could scarcely be any doubt of the right to condemn Indian lands allotted in severalty. But it is urged that Section 4 of this Act must be considered in connection with Section 3.' Section 4 reads as follows: “That the Secretary of the Interior- is hereby authorized to grant permission, upon compliance with such requirements as he may deem necessary, to the proper State or local authorities for the opening and establishment of public highways,' in accordance with the laws of the State or Territory in which the lands are situated, through any Indian reservation or through any lands which have been allotted in severalty to any individual Indians under any laws or treaties but which have not been conveyed to the allottee with full power of alienation.” 25 U.S.C.A. § 311.
It is contended by the United States that the apparent absolute right of condemnation granted by 'Section 3 is modified by the provisions óf Section 4, to the extent that such right can be exercised only on permission granted by the Secretary of the Interior.
In United States v. State of Minnesota, 95 F.2d 468, this court, on the authority of United States v. Colvard, 4 Cir., 89 F.2d 312, sustained this contention. In that case the proceeding had been instituted in the State court and removed to the Federal-Court. We held the lower court was without jurisdiction because the United Stales had not consented to the maintenance of the condemnation suit. The Supreme Court (Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 296, 83 L.Ed. 235) sustained our decision but based its decision upon the sole ground that the suit had been' commenced in a State court, and that the act did not authorize the maintenance of such a suit in the State court; that as the State court was without jurisdiction, the Federal court was likewise without jurisdiction upon its removal. The court specifically declined to consider “whether, as a matter of substantive law, the lack of assent by the Secretary of the Interior precluded maintenance of the condemnation proceeding.” In denying the right of the State to maintain condemnation proceedings affecting Indian allotted land, except on permission granted by the Secretary of the Interior, this court followed what on its- face seemed to be the teaching of the decision of the Fourth Circuit in United States v. Colvard, supra [89 F.2d 314], where it was said that, “If a roadway over the Indian lands was desired, application should have been made to the Secretary of the Interior pursuant to provision of.the Act of March 3, 1901, § 4, 31 Stat. 1058, 1084 (25 U.S.C.A. § 311). A right of way could no more be acquired over these lands by proceedings against the Indians than title to lands embraced in a government forest could be tried by suit against the forester, nor than post office property could be condemned for purposes of a street by proceedings against the postmaster.”
In presenting this authority, the -Government contended that the lands concerned in the Colvard case were allotted lands, and it was upon this assurance that the Colvard case was accepted and followed as persuasive authority. But when the case from this court went to the Supreme Court of the United States, the Attorney General filed a supplemental memorandum on behalf of the United States, in which it was frankly recited that, “The reply brief filed on behalf of the State of Minnesota correctly points out that United States v. Colvard, 89 F.2d 312 (CCA 4) was erroneously summarized in the brief for the United States in opposition. The land concerned there was, as the Attorney General of Minnesota points out, tribal rather than allotted lands.” This vital fact was not disclosed by the opinion in the Colvard case, and this court assumed that the attorneys for the United States were correct in asserting that the lands there concerned were allotted lands.
Section 3 does not purport to authorize the maintenance of condemnation proceedings affecting tribal lands, but only “lands allotted in severalty to Indians,” and, confessedly, without specific authorization condemnation proceedings could not be maintained. As has already been noted, the Supreme Court did not pass upon the question so that the only authority sustaining the present contention of the United States is the decision of this court based, as we have observed, upon the erroneous assumption that the decision of the Fourth Circuit in the Colvard case was authority supporting the proposition that condemnation proceedings could not be maintained to condemn lands allotted in severalty to Indians, without permission granted by the Secretary of the Interior. Our prior decision, therefore, finds no support in the Colvard case; neither is it supported by the decision of the Supreme Court (Minnesota v. United States, supra). Because of the special circumstances, we are urged to review our prior decision, the correctness of which is vigorously assailed.
The land involved, being allotted in severalty, is no longer a part of the reservation, nor is it tribal land. The virtual fee is in the allottee, with certain restrictions on the right of alienation. This restriction, consistent with the Government’s paternal policy toward the Indians, was doubtless to protect the Indian from being overreached in the sale of his land. The statutes seem definitely to offer two methods of procedure for the acquisition of a right of way for public highway. Section 3, 25 U.S.C.A. § 357, authorizes the maintenance of condemnation proceedings. Ordinarily, the owner of a fee title to real estate may grant a right of way over his land, but although the allottee is vested with fee title, his right of alienation is restricted, and hence, it would not be possible to secure a right of way from such allottee by purchase, however desirable it might be, and however advantageous to the allottee. By Section 4 of the Act, 25 U.S.C.A. § 311, the Secretary of the Interior is authorized to grant permission for the opening and establishment of a public highway through lands allotted in severalty. Thus, it was made possible to acquire such a right of way by either of two methods, the Government having consented to each of these methods. So considered, each of these sections is an effective and reasonable provision in the procedure for the acquisition of a right of way, neither dependent upon the other.
It is observed that the compilers of the United States Code divided the Act of March 3, 1901, into three sections. The first paragraph of Section 3 became Section 319, the second paragraph became Section 357, while section 4 became Section 311. Sections 311 and 319 were placed in Chapter 8, which relates to various rights of way and easements over Indian lands, while Section 357 was placed in Chapter 9, which relates to lands allotted in severalty to individual Indians. The compilers treated the three sections as separate independent provisions.
The administrative officers of the Government, charged with the administration of this Act, have consistently construed it as authorizing the condemnation of allotted lands without the consent of the Secretary of the Interior. The Department of the Interior, in its booklet entitled “Regulations of the Department of the Interior Concerning Rights of Way over Indian Lands,” published in 1929, pointed out the various laws applicable to the granting of rights of way through Indian lands, tribal and allotted, and gave direction for procedure. Sections 68, 69 and 70, under the heading of “Condemnation of Allotted Lands,” provide :
“68. The condemnation of allotted Indian lands for any public purpose in accordance with the laws of the State wherein the lands are situated is authorized by the last paragraph of section 3 of the Act of March 3, 1901 (31 Stat. 1, 1058-1083-1084).
“69. Any project for which private lands could be condemned under State laws is held to be a public purpose within the meaning of the Act of March 3, 1901, above cited.
“70. The superintendent or other officer in charge is expected to keep in close touch with matters affecting the interests of the Indians within his jurisdiction and to report immediately through the Commissioner of Indian Affairs when any condemnation proceedings are instituted. All information available regarding such proceedings, particularly a description of the lands involved, should be given so that the Department of Justice may be requested to enter an appearance in such proceedings in behalf of the owners, and to take such other action for their protection as may be warranted hv the law and the facts.”
The Land Decisions of the Department of. the Interior clearly indicate that that department construed Section 3 of the Act as granting the right of condemnation. Thus, in Condemnation of Lands Allotted in Severalty to Indians, 49 L.D. 396, rendered January 2, 1923, it was said: “The fact remains, however, that allotted Indian lands can still be condemned for public purposes where necessary under the provisions'of the Act of March 3, 1901, supra. In other words, the remedy rising there is simply an alternative one rather than a concurrent or an exclusive procedure. Even prior to the Act of March 3, 1901, this department held that a State could condemn allotted Indian lands for public purposes. See 19 L.D. 24. Again, the provisions of that Act came before this Department in 1905 and in an opinion dated May 11, 1905 (unreported) the then Assistant Attorney General for this Department held that under the provisions of that Act and of certain statutes of the State of Utah, lands allotted to the Indians within the Uintah Reservation could be condemned in favor of persons or corporations desiring to acquire rights of way for canals, ditches, etc. In concluding that opinion it was said: ‘These quotations from the law of Congress and the laws of the State answer the inquiry and leave no room for discussion or argument. Indian allotments are subject to be condemned for public purposes under the laws of the State or territory where located, before the issue óf final patent, ■ to the same extent as if the allottee held the fee to the land.”
The contemporaneous construction placed upon these statutes by the department charged with the duty of executing them, and which has been acted upon for many years, should not be lightly overturned or disregarded. Swendig v. Washington Water Power Co., 265 U.S. 322, 44 S.Ct. 496, 68 L.Ed. 1036; Logan v. Davis, 233 U.S. 613, 34 S.Ct. 685, 58 L.Ed. 1121; Wisconsin v. Illinois, 278 U.S. 367, 49 S.Ct. 163, 73 L.Ed. 426; Brewster v. Gage, 280 U.S. 327, 50 S.Ct. 115, 74 L.Ed. 457; McLaren v. Fleischer, 256 U.S. 477, 41 S.Ct. 577, 65 L.Ed. 1052.
In Swendig v. Washington Water Power Co., supra [265 U.S. 322, 44 S.Ct. 498, 68 L.Ed. 1036], in which easements over Indian lands were involved, the Supreme Court, in referring to the constructio'n placed upon the Acts of Congress by fhe Department of the Interior, said: “The construction and application of the act so made and provided for have been followed since that time. If the meaning of the act were not otherwise plain, this interpretation would be a useful guide to the ascertainment of the legislative intention. It is a ‘settled rule that the practical inter-' pretation of an ambiguous or uncertain statute by the Executive Department charged with its administration is entitled to the highest respect, and, if acted upon for a number of years, will not be disturbed except for very cogent reasons.’ ”
We are clear that this court was in error in basing its conclusion in United States v. Minnesota, 8 Cir., 95 F.2d 468, upon the ground that the lower court was without jurisdiction because consent of the Secretary of the Interior for the maintenance of the procedure had not been obtained, instead of on the ground that the .court lacked jurisdiction because the proceeding had been commenced in the State court. We are not unmindful of the doctrine of stare decisis, but recognize that it is entitled to great weight and should ordinarily be adhered to, unless the reasons therefor no longer exist, are clearly erroneous, or manifestly wrong. The strong respect for precedent which inheres in our 'legal system has its qualifications and limitations. It does not call for a blind, arbitrary and implicit following of precedent, but recognizes, no vested rights nor rule of property being involved, that it is more important as to far reaching judicial principles that the court should be right than that, it merely be in harmony with its previous decisions. Such a respect for precedent balks at the perpetuation of error, and the doctrine of stare decisis is, after all, subordinate to legal reason and is properly departed from if and when such departure is necessary to avoid the perpetuation of error.
Our decision in United States v. Minnesota, supra, in so far as it conflicts with the views herein expressed, is therefore overruled and the judgment appealed from is affirmed.
Question: Did the court rule that federal law should take precedence over state or local laws in a case involving the conflict of laws (i.e, which laws or rules apply)?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_typeiss
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
EASTERN VENETIAN BLIND CO. v. ACME STEEL CO.
No. 6176.
United States Court of Appeals Fourth Circuit.
Argued Jan. 8, 1951.
Decided April 5, 1951.
John Vaughan Groner, New York City (Fish, Richardson & Neave, New York City, William .H. Webb, Morton Burden, Jr., Pittsburgh, Pa., and Morton M. Robinson, Baltimore, Md., on the brief), for appellant.
Glen E. Smith, Harold Olsen, and Edward R. Johnston, Chicago, Ill. (R. Dorsey Watkins, Baltimore, Md., on the brief), for appellee.
Before PARKER, SOPER and DOBIE, Circuit Judges. - ■
DOBIE, Circuit Judge.
Acme Steel Company (hereinafter called Acme) instituted in- the United States District Court for the District of Maryland, against The Eastern Venetian Blind Company (hereinafter called Eastern) a civil action for patent infringement. The four patents in suit, owned by Acme and all covering slats for Venetian blinds, were in chronological order: (1) Wilson, No. 2,294,434, (1942) (hereinafter called First Wilson); Morse, No. 2,315,640, (1943); Hunter, No. 2,337,047, (1943); and Wilson, No. 2,338,678, (1944) (hereinafter called Second Wilson).
Infringement of all four patents was admitted by Eastern, but Eastern attacked the validity of all the patents and interposed other defenses. The District Court held all the patents valid and infringed, and decided against Eastern on all the defenses interposed by Eastern. The case is before us on. Eastern’s appeal.
We first consider the inherent validity of the four patents in suit, apart from the defenses interposed by defendant — Acme’s alleged misuse of the patents to secure a monopoly of unpatented material and the defense that Acme is foreclosed from any relief on the ground of laches and estoppel.
First Wilson, No. 2,294,434, presents, we think, the clearest case of validity of any of the patents in suit. This is a method and apparatus patent for forming Venetian blind slats and material therefor. This patent is described as follows in the District Judge’s opinion: “As stated in this patent, the invention which it is alleged to embody involves the discovery that metal Venetian blind slats, having a concave cross section, may be quickly and economically formed by a rolling and bending process which is carried out in two stages, in the first of which the metal strip is stretched in the region between its edges, leaving the edges substantially unstretched; while in the second stage the metal is bent transversely and the edges are stretched, thus producing a properly concave straight strip having parallel edges.” [93 F.Supp. 234.] We think that the two-step process of first deliberately producing the buckling of the slat by center stretching and then removing the buckle by edge stretching, and the mechanism for carrying out this two-step process was entirely new. Its commercial success should also be considered to resolve any doubts as to its novelty and utility.
There is not merit in Eastern’s contentions that this patent is a mere aggregation of known elements or that there is insufficient disclosure in the claims and specifications of the patent. Nor is this patent invalid under the prior art. There is nothing in Potter, Westaway, Bailey or Ainsworth which in reality could be said to read on First Wilson.
We think the Morse patent, No. 2,315,640, is invalid for lack of invention. There are two claims in this patent which are very brief and which we think are too broad. These two claims read as follows:
“1. A metal Venetian blind slat comprising a strip of material having a single convex-concave curve from edge to edge, the curve being about a single center, the material being normally substantially straight in a longitudinal line, and the material having sufficient resilience to be coiled upon itself and when released to resume its original, substantially straight form by its inherent resilience.
“2. A metal Venetian blind slat comprising a strip of material of single thickness from edge to edge and continuously and gradually curved from edge to edge, the material being normally substantially straight in a longitudinal line and of sufficient resilience to be coiled upon itself and when released to resume its original, substantially straight form by its inherent resilience.”
This is a product patent. All that Morse really contributed was a requirement that the steel should be resilient so that when coiled, it would spring back to its original shape. While none of the prior patents seemed to specify in precise terms that the steel should be resilient, this is rather implied in the prior art and one skilled in the art would conclude that the more resilient the steel, the better it would be suited for Venetian blind slats. As we said in Goldman v. Polan, 4 Cir., 93 F.2d 797, 799: “It is well settled that ‘it is not invention to substitute superior for inferior materials.’ ” See, also, Slayter Co. v. Stebbins-Anderson Co., 4 Cir., 117 F.2d 848, 851. In the Far-rand product, though it is in a somewhat different field, there is the requirement that the metal be sufficiently flexible to permit its being rolled or coiled, its stiffness and resiliency being sufficient to cause it to remain in, or to return to a straight or unrolled condition, when it is released or free to move. Stiffness and resiliency are characteristics of high carbon steel. Particularly germane in the prior art here is the Moore patent, No. 1,949,653, which discloses a metal slat strikingly similar to Morse. Also might be cited here the Buck, the Ainsworth and the Potter patents. The claims of Morse are not directed to any combination but rather to a single homogeneous article, and see again the Goldman case, where we said: “it is not invention to apply an old material to a new or analogous use or subject.” Finally, the very broad claims of the Morse patent are not appreciably limited by the rather brief specifications.
We think the Hunter patent, No. 2,337,047,. is valid. This is a method and apparatus patent. Hunter’s use of die blocks set at different angles is sufficiently novel to constitute invention. In the prior art, there is nothing similar to Hunter with the exception of First Wilson, and Hunter’s mechanism and process present patentable differences from First Wilson. Any conflict between Hunter and First Wilson is academic for the purposes of this suit, since both patents are owned by Acme. Hunter proceeds on the theory of starting with more perfectly formed steel than Wilson and asserts that the Hunter die blocks, compared with the First Wilson crowned rollers, provide an improved method of selectivity stretching as well as easier adjust-ability of the amount of stretch. We find no merit in Eastern’s contentions that Hunter was not really the inventor and that Hunter involves inadequate disclosure.
Claim 3 of Hunter (a typical apparatus claim) and Claim 8 of Hunter (a typical method claim) are here set out:
“3. The combination in apparatus for stretching a longitudinal portion of a long substantially flat metal strip, of a plurality of sets of die blocks each having a longitudinal passage therethrough which is of such non-planar cross section transversely of the strip that said strip may be moved through said passages without affecting the permanent transverse forming of the strip, said passages in said die blocks being relatively inclined longitudinally.
“8. The method of producing a substantially flat elongated metal strip having its central portion elongated with respect to its edge portions, which consists in feeding the strip endwise and maintaining longitudinal tension therein while moving the strip through a plurality of successive longitudinally straight, transversely bowed confining passages which are relatively inclined longitudinally of the strip, maintaining the transversely acting stresses in the strip during said movement below the elastic limit of said metal, and compelling different portions of the strip which are laterally displaced from each other to follow paths of different lengths in passing from one of said passages to the other.”
Second Wilson, No. 2,338,678, ap: pears to us to be a valid patent. This is a method and apparatus patent, designed as an improvement on First Wilson. This improvement consists essentially of adding a third stage to the two-stage process of First Wilson. Under this third stage, the transversely curved strip material, after passing through the forming rolls of the second stage, is flexed in a direction transverse to its line of travel, whereby it becomes buckled or progressively flattened by the removal from its successive portions of a large part of the transverse curvature that had been imparted by the forming rolls. After passing through the flattening operation, the transverse curvature returns, but to a lesser degree, to the strip, due to its resiliency. In this manner a greater degree of curvature is removed from the strip material which has a greater thickness, thus producing the result that the strip material is caused to assume approximately the same transverse curvature. There is nothing in the prior art that anticipates this disclosure. Second Wilson seems to embody a rather clear advance over First Wilson and Hunter, and there is certainly nothing anticipatory in Morse. There is no merit in the defense here again asserted that Second Wilson is a mere aggregation as opposed to a combination. We think the District Judge was right in upholding the assertion that Second Wilson produces a uniformity of the lateral arc in a manner not previously disclosed. Nothing in the prior art discloses that by merely changing the direction of the strip, its gauge would then be flattened, but that when released the strip would snap back with a uniform lateral arc to a straight longitudinal form.
The defendant seeks to escape the effects of its infringement by setting up the contention that Acme has not come into court with clean hands in that it has established a sham licensing system under the patents designed to secure for it a monopoly in the sale of unpatented goods and has thereby violated the established rule that a patent owner may not exact as a condition of a license that unpatented materials used in connection with the invention shall be purchased only from the licensor, and if he does so, relief against an infringer will be denied. Carbice Corp. v. Am. Patents Corp., 283 U.S. 27, 31, 51 S.Ct. 334, 75 L.Ed. 819; Mercoid Corp. v. Mid-Continent Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376.
The First Wilson patent, as we have seen, describes a process which is carried out in two stages, in the first of which the metal strip is stretched between the edges while in the second stage the edges are stretched, thus producing the concave strip which constitutes the slat in the finished product. Acme was not equipped to manufacture, sell and install completed blinds, and did not desire to do so. It was, however, qualified to carry on the first stage of the process and to produce the slat stock to be used in the second stage of the process. There were very few blind manufacturers in the country who were able to make the substantial investment to carry on the first stage of the process. Hence it was decided that in order to maintain the high quality of the material, it would be best to confine the practice of the first stage to Acme and to a limited number of reliable steel producers; and since neither Acme nor the other steel producers desired to make and install the finished article, it was decided to grant to the blind manufacturers licenses to practice the second stage of the process with the use of the product of the first stage manufactured by Acme or the other steel producers.
The result was that on June 10, 1944, Acme granted to the Thomas Steel Company a license to practice the first stage only of the process under the First Wilson patent and the Hunter patent in the production of slat stock, provided that the stock so produced should be sold only to second stage licensees. On February 23, 1944, Acme granted licenses to a number of blind manufacturers to practice the second stage of the First Wilson patent with the use of slat stock produced by the practice of the first stage of the process and required an agreement from the licensees to purchase this stock either from the licensor or from producers of slat stock licensed by it. The feature in these licenses which limited second stage licensees to the purchase of steel stock from first stage licensees forms the basis of the defendant’s attack upon the license system on the ground that slat stock is not itself patented and therefore the restriction upon the purchase of the material in the second stage licenses was an attempt to extend the monopoly of the patent to cover the sale of unpatented goods.
The 1944 licenses, however, were modified by Acme prior to the trial of the case in the District Court. The evidence shows that in negotiations with a steel manufacturer with regard to the grant of a first stage license, objection was made to the restriction on the sales of slat stock to second stage licensees. Accordingly it was determined to modify the first stage licenses and subsequently to modify the original second stage licenses to eliminate this provision. On December 1, 1948, a new form of license was granted to the Thomas Steel Company wherein the proviso that the slat stock produced by the licensee should be sold only to second stage licensees was omitted; and on July 1, 1948, the second stage licenses were modified so as to eliminate the agreement that the licensee should purchase its requirements of slat stock from the licensor or second stage licensees, but in the new license the licensor agreed to furnish the licensee from time to time the names and addresses of its first stage licensees.
The present action was instituted, in the District Court on December 8, 1948, and the contention now made was advanced on the basis of a motion by the defendant for summary judgment. This motion, however, was overruled. The defendant contended that although the restriction upon the purchase of slat stock contained in the second stage licenses had been removed, nevertheless the requirement still remained as the result of the control which Acme was able to exercise over the second stage licensees. The court rejected this contention but directed that certain paragraphs of the license agreement be rephrased so as to make it entirely clear that the licensee had the right to practice the process with the use of slat stock no matter where procured, provided it was produced by the first stage process, and a provision to this effect was inserted in the judgment of the court rendered on May 19, 1950. Acme accepted this direction, cancelled the outstanding licenses, offered new licenses which incorporated the changes directed by the court, and accompanied the agreement by a letter of June 9, 1950, containing the express statement that the' change was intended to make it impossible for the license agreement to be misinterpreted as requiring that the second stage licensees purchase their requirements of slat stock either from Acme or from its first stage licensees.
Notwithstanding the verbal changes in the most recent license agreements, the defendant still contends that the second stage licensees remain under the domination of Acme and are in fact compelled to continue the purchase of slat stock from it or its first stage licensees for the reasons which may be stated as follows: There is no need for the second stage licenses unless the purpose is to compel the sale of unpatented material, from which Acme derives its chief benefit under the patent. Acme charges only a flat fee of $25.00 for each second stage license and has derived only $30,000.00 in the aggregate from this source; ¡but the sales of slat stock by Acme and its first stage licensee Thomas have amounted to thirty million dollars and the royalty paid by Thomas to Acme on sales is 4% of the selling price. A sale of slat stock by a first stage licensee carries with it under the rule of United States v. Univis Lens Co., 316 U.S. 241, 62 S.Ct. 1088, 86 L.Ed. 1408, a license to the purchaser to> finish the article, even though the purchaser has no license from the owner of the patent. Hence the second stage licenses were neither profitable to Acme nor necessary to protect the manufacturer of the finished article, but were designed to compel the manufacturers-to buy their supplies from Acme or Thomas. To this end other provisions were inserted in the license agreements to strengthen Acme’s control, and therein the licensee is still advised that first stage licensees are engaged in the manufacturing and selling of slat stock for use in making Venetian blinds and the license covers only the use of slat stock produced by the practice of the first stage and does not include the right to practice the first stage of the process. Moreover, the licensor agrees to furnish the licensee with the names and addresses of the first stage licensees. The licensor agrees to , furnish slat stock of high quality and the licensee agrees to maintain an equal quality in the manufacturing operation and the lessor reserves the right to cancel the license if the quality is not maintained. The .licensee also acknowledges the validity of the letters patent and agrees to inform the licensor of every instance of infringement which comes,to the licensee’s attention; and this agreement would require the licensee to report to Acme the name of any unlicensed person selling slat stock. It is contended that these provisions effectually continue Acme’s control over the second stage ■licensees and hence it does not clearly appear that the improper practices have been fully abandoned or that the consequences of the misuse of the patent have been dissipated and therefore the patentee is not entitled to enforce its patent rights under the rules laid down by the courts.
The defendant relies particularly on United States v. Univis Lens Co., 316 U.S. 241, 62 S.Ct. 1088, 86 L.Ed. 1408, and upon the established rule prohibiting the extension of the monopoly of a patent to cover unpatented goods, which is laid down in a line of cases of which Mercoid Corp. v. Mid-Continent Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376, is the most striking example. It is contended in the first place that in the Univis case the court condemned the sort of licensing system which Acme has installed. With this position we are unable to agree. It is true that the Univis system is strikingly similar to that of Acme in that it covered a two-step process which included the manufacture of lens blanks for eyeglass lenses, and also the process of grinding and polishing them in the finished lenses; and separate licenses were issued to different persons for the two steps with the provision that one licensee should make and sell the blanks to other licensees who in turn were authorized to buy them and finish them according to the patent and to sell them to other licensees who in turn were authorized to sell to the public, the prices in all cases being fixed by the owner of the patent. The decision turned on the price fixing feature.which the court condemned; but the court did not criticize the issuance of two classes of licenses. It held that the sale of the lens blanks which were capable of use only in practicing the patent, was a complete transfer of ownership within the protection of the patent law and a license to practice the final step ; but it assumed that the sale of blanks by an unlicensed manufacturer to an unlicensed finisher would constitute contributory infringement, and did not question that stipulations for royalties or otherwise might have been exacted as a part of the entire transaction so long as they did not seek to control the disposition of the article after the sale.
There is no illegal price-fixing feature in the Acme licenses and no impropriety in authorizing one class of licensees to manufacture slat stock and another class to finish it under such conditions as will protect the owner of the patent and procure for it the rewards incident to ownership. Furthermore, it is not true that the second stage licenses serve no lawful purpose; for even if the mere sale of slat stock by the owner or its licensee would authorize the purchaser to finish the goods under the process of the patent, the imposition of a royalty or license fee in connection therewith would not be unlawful. Indeed the license would protect the finisher from the charge of contributory infringement in case he should buy his material from an unlicensed producer, and if no second stage licenses were issued, competition in the sale of slat stock would be diminished, because the finishers wouid be obliged to buy their material from Acme or a first stage licensee to avoid the charge of contributory infringement. The infringer, in the instant case, is not being sued for contributory infringement because it sold the slat stock that is unpatentable material but because it completely infringed the patent.
Even if it is legal to establish a license system in which different persons are licensed to practice separate stages of the patented process, such a system nevertheless cannot be sustained insofar as it may be used to restrict competition in unpatented material. The Mercoid decision lays down the rule that even if an unpatented device has no use other than in the combination of the patent and is itself an integral part of the patented structure, it may not be subjected to a limited monopoly by restrictions upon its purchase by licensees under the patent. It may be questioned whether the rule extends to the present situation in which the unpatented article, that is, the slat stock, has been subjected to a part of the process covered by the patent and is to be finished in accordance therewith; but that question need not be decided since Acme, recognizing the strict limits within which the patent monopoly must be exercised, released its second stage licensees from any restriction upon their purchase of slat stock before the trial of the case in the District Court, and has also complied with and put into effect the modification of its license agreements, in accordance with the judgment of the District Court, and has notified all of its second stage licensees that they may purchase slat stock wherever they see fit. By these actions whatever defect was found in the early licenses has now been removed and the case falls within the rule which is equally well established that even if a patentee has in the past misused his patents, he is entitled to equitable relief after the misuse has been fully abandoned. See the following decisions of this court and the cases therein cited. Sylvania Industrial Corp. v. Visking Corp., 4 Cir., 132 F.2d 947, 958; Westinghouse Elec. Corp. v. Bulldog Electric Products Co., 4 Cir., 179 F.2d 139, 145-146; Baker-Cammack Hosiery Mills v. Davis Co., 4 Cir., 181 F.2d 550, 571. See, also, Novadel-Agene Corp. v. Penn, 5 Cir., 119 F.2d 764; Campbell v. Mueller, 5 Cir., 159 F.2d 803.
Eastern has also interposed the defenses of laches and estoppel based on the conversation between Wilson, representing Acme, and Rosenbaum, representing Eastern. According to the testimony of Rosenbaum, Eastern sought a complete license under Acme’s patents but this request was denied because Eastern was a Venetian blind manufacturer and- therefore entitled only to a Number Two license. Rosenbaum testified further that Wilson “explained to me, no, they don’t want me in the steel business,” and that Wilson also said to Rosenbaum: “You are going ahead anyhow. Why don’t you go ahead? We haven’t got the steel to support the industry anyhow. Go ahead. However I will let you know before bringing suit and we will have .another discussion about this.” See, in this connection, the following cases all decided by our Court: Baker-Cammack Hosiery Mills v. Davis Co., 4 Cir., 181 F.2d 550, 564—567; Florence-Mayo Nuway Co. v. Hardy, 4 Cir., 168 F.2d 778, 782-783; Ambrosia Chocolate Co. v. Ambrosia Cake Bakery, 4 Cir., 165 F.2d 693, 695; Union Shipbuilding Co. v. Boston Iron & Metal Co., 4 Cir., 93 F.2d 781, 783.
The effect of all the foregoing, we think, is not to preclude plaintiff with respect to -the future, but is merely to bar the right of -plaintiff to recover damages for infringement of the three patents held to be valid until plaintiff had purged the licenses of the objectionable restrictions. Since this purge was not completely accomplished until June 9, 1950, damages are not recoverable for any infringement prior to this date.
The decree of the District Court is affirmed in so far as it holds the First Wilson patent, the Hunter patent and the second Wilson patent to be valid and infringed and in so far is it holds Acme to be entitled to an injunction against future infringement of these three patents by Eastern. The District Court’s decree must be reversed in so far as it holds the Morse patent valid and in so far as it holds Acme entitled to damages for the infringement, up to the date of the complete purge, June 9, 1950, by Eastern of the three patents which we have held to be valid and infringed by Eastern.
The decree of the District Court, when modified according to this opinion, will be affirmed.
Modified and affirmed.
. Under the direction of the court a recital in the 1948 license agreement that the licensee desired to purchase slat stock from the licensor or its first stage licensees was eliminated.
. The evidence does not show that the second, stage licensees felt obliged .to purchase only from Acme or Thomas; and there is some evidence that they actually made purchases from others.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_r_subst
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ESTATE of Edward N. OPAL, Deceased, Mae Opal, Executrix, now by remarriage known as Mae Konefsky, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 35, Docket 35310.
United States Court of Appeals, Second Circuit.
Argued Oct. 6, 1971.
Decided Nov. 1, 1971.
Louis J. Opal, New York City, for appellant.
Ann E. Belanger, Washington, D. C. (Johnnie M. Walters, Asst. Atty. Gen., Meyer Rothwaeks and Richard W. Perkins, Tax Div., Dept, of Justice, Washington, D. C., of counsel), for appellee.
Before FRIENDLY, Chief Judge, WATERMAN and SMITH, Circuit Judges.
FRIENDLY, Chief Judge:
The Estate of Edward N. Opal appeals from a decision reviewed by the Tax Court holding that a bequest by the decedent to his wife under a joint will constituted a terminable interest under I.R.C. § 2056(b) (1) which was not within the exception provided by I.R.C. § 2056(b) (5) and therefore did not qualify for the marital deduction provided for by I.R.C. § 2056(a).
The joint will, executed on August 29, 1961, began by reciting that:
We, EDWARD N. OPAL and MAE OPAL, his wife, both residing at 85-19 Avon Street, Jamaica, Queens County, New York, both of us being of sound and disposing mind and memory and mindful of the uncertainty of this life, do make, publish and declare this to be our joint LAST WILL AND TESTAMENT, hereby agreeing, each of us with the other in consideration of the dispositive provisions hereinafter set forth, that this Will shall be irrevocable by either of us without the written consent of the other, and hereby revoking any and all former Wills and Codicils by us or either of us at any time heretofore made.
It continued:
Second: In the event Edward N. Opal predecease Mae Opal,
A. We direct that his just debts and funeral expenses be paid as soon after his decease as may be practicable;
B. All the rest, residue and remainder of the estate of Edward N. Opal, real, personal and mixed, and wheresoever the same may be situate, is hereby given, devised and bequeathed unto the said Mae Opal, absolutely and forever;
C. Thereafter and upon the death of said Mae Opal, and after the payment of her just debts and funeral expenses, all the rest, residue and remainder of the estate of said Mae Opal, real, personal and mixed, and wheresoever the same may be situate, is hereby given, devised and bequeathed unto our beloved son Warren Ian Opal, absolutely and forever.
There was a precisely similar provision, mutatis mutandis, to cover the event in which Mae predeceased Edward. A third article provided that if Edward and Mae died in a common accident or under circumstances leaving any doubt as to who had died first, their entire estates, after payment of debts and funeral expenses, should pass to Warren. Edward died on November 16, 1961; Mae survived. The estate tax return claimed the maximum marital deduction. The Commissioner disallowed this, a divided Tax Court affirmed, 54 T.C. 154 (1970), and this appeal followed.
In providing for the marital deduction, § 2056 of the Internal Revenue Code of 1954 lays down, in subsection (b) (1), the following general rule:
(1) General rule. — Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest — •
(A) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or • money's worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and
(B) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse;
* * * * * *
If this section stood alone it would be plain that the bequest to Mae did not qualify. The language in the preamble of the joint will is so clear as to render supererogatory any citation of New York authority that a binding contract was created. Despite the gifts to the surviving spouse “absolutely and forever,” the manifest intention of the spouses was that everything the survivor owned on death should go to their son. It would be absurd to read these clauses as dictating the devolution of the property the surviving spouse , owned of her or his own right, but not that which such spouse had received from the other. While a subsequent will made by the survivor in breach of the contract would be admitted to probate, a New York court would compel the executors to perform the contract. Tutunjian v. Vetzigian, 299 N.Y. 315, 319, 87 N.E.2d 275 (1949); Rich v. Mottek, 11 N.Y.2d 90, 226 N.Y.S.2d 428, 181 N.E.2d 445 (1962). It follows from this that “on the occurrence of an event or contingency,” to wit, Mae’s death, her interest in any of Edward’s property that she still owned would necessarily pass to Warren regardless of any contrary desire on her part, and Warren might “possess or enjoy” such part of Edward’s estate. With respect to any property of Edward’s^ remaining in Mae’s hands at her death, she would have had, and was intended to have, only a life interest. Although this portion of Edward’s property might ultimately prove to be small or even non-existent, § 2056(b) (1) looks at the possibilities as of the date of the first death. Jackson v. United States, 376 U.S. 503, 508, 84 S.Ct. 869, 11 L.Ed.2d 871 (1964); Allen v. United States, 359 F.2d 151, 154 (2 Cir.), cert, denied, 385 U.S. 832, 87 S.Ct. 71, 17 L.Ed.2d 67 (1966).
Congress somewhat tempered the severity of the “general rule” by an exception, § 2056(b) (5). This reads:
(5) Life estate with power of appointment in surviving spouse.—
In the case of an interest in property passing from the decedent, if his surviving spouse is entitled for life to all the income from the entire interest, or all the income from a specific portion thereof, payable annually or at more frequent intervals, with power in the surviving spouse to appoint the entire interest, or such specific portion (exercisable in favor of such surviving spouse, or of the estate of such surviving spouse, or in favor of either, whether or not in each case the power is exercisable in favor of others), and with no power in any other person to appoint any part of the interest, or such specific portion, to any person other than the surviving spouse—
(A) the interest * * * so passing shall, for purposes of subsection (a), be considered as passing to the surviving spouse, and
(B) no part of the interest so passing shall, for purposes of paragraph (1) (A), be considered as passing to any person other than the surviving spouse.
This paragraph shall apply only if such power in the surviving spouse to appoint the entire interest, * * * whether exercisable by will or during life, is exercisable by such spouse alone and in all events.
* * * * ■ * *
This provision in the 1954 Code replaced § 812(e) (1) (F) of the Internal Revenue Code of 1939 as amended by the Act of April 2, 1948. The 1948 statute was generally similar except that in terms it was limited to property left in trust with the life income payable to the surviving spouse where such spouse had power “to appoint the entire corpus free of the trust (exercisable in favor of such surviving spouse, or of the estate of such surviving spouse, or in favor of either, whether or not in each case the power is exercisable in favor of others) * * (emphasis supplied) In Pipe’s Estate v. C. I. R., 241 F.2d 210, 213 (2 Cir.), cert, denied, 355 U.S. 814, 78 S.Ct. 15, 2 L.Ed.2d 31 (1957), a case governed by the 1948 statute, this court dealt with a will giving the widow, during her natural life, “full power to use, enjoy, sell or dispose of the income and principal” of the residuary estate “for such purposes or in such manner, as she in her uncontrolled discretion may choose, it being my desire to place no restraint on her in any respect concerning the absolute right of full disposition and use of the whole or any part of said income or principal of my residuary estate, except that she shall have no power over the disposition of such part thereof as remains unexpended at the time of her death.” This interest was of the same sort as Mrs. Opal’s under what we believe would be a New York court’s construction of the joint will. This court held that the bequest did not qualify under § 812(e) (1) (F) since in order to comply with that provision, “the surviving spouse must be able to appoint the entire corpus ‘free of the trust’ to herself or her estate.” Mrs. Pipe could not do that “because as long as any of the corpus of her estate remains, it will be held ‘in trust’ for the named remaind-ermen.” 241 F.2d at 213 (footnote omitted). See also May’s Estate v. C. I. R., 283 F.2d 853 (2 Cir. 1960), cert, denied, 366 U.S. 903, 81 S.Ct. 1045, 6 L.Ed.2d 202 (1961), and United States v. Lincoln Rochester Trust Co., 297 F.2d 891 (2 Cir.), cert, denied, 369 U.S. 887, 82 S.Ct. 1160, 8 L.Ed.2d 287 (1962), both also arising under the 1948 statute.
The legislative history shows that the changes made in § 812(e) (1) (F) of the 1948 amendment to the 1939 Code in the course of its transformation into § 2056(b) (5) of the 1954 Code were meant to accomplish two objectives. One was to provide that the exception should be available for legal life estates as well as trusts, an issue over which this court had been troubled in Pipe’s Estate but which we assumed in the taxpayer’s favor; the other was to make clear “that a right to income plus a general power of appointment over only an undivided part of the property will qualify that part of the property for the marital deduction.” See House Report No. 1337, 83d Cong., 2d Sess. in 3 U.S. Code Cong. & Admin. News (1954) pp. 4118-4119, 4461-4462 (1954), and Senate Report No. 1622, id. at 4758-4759, 5118-5119. Although the former purpose required elimination of the words “free of the trust,” the committee reports make it plain that Congress did not intend to abandon the requirement, stated plainly enough in the new statute, that, in order for the bequest to qualify for the marital deduction, the surviving spouse must have power not only to consume the property or to give it to others but to vest it in herself or her estate, either during her life or by will. Under what we believe would be a New York court’s reading of the joint will, Mrs. Opal could not do this. Any lifetime “gift” of Edward’s property to herself would have been meaningless, since she already had complete power to consume it or, even taking a view of New York law most favorable to the appellant to give it away, whereas any unconsumed portion of the “gift” to herself would remain part of her estate and would pass to Warren. Still more plainly she could not give the property to her estate, either by deed or by will, in any meaningful sense, since she had agreed that her entire estate should pass to Warren. As the statute requires that she have power to vest the property in herself or her estate, we need not consider whether, as urged by the Commissioner, New York law would forbid her giving the property to someone else in a manner that would frustrate the joint plan. See Ras-tetter v. Hoenninger, 214 N.Y. 66, 74, 108 N.E. 210 (1915).
Appellant fares no better if we look to the Estate Tax Regulations, although these do treat the problem in a curiously convoluted fashion. Treasury Regulation § 20.2056(b)-5(g) (1) (i) says that the statutory test is not met unless the power falls within one of several categories, including:
(1) A power so to appoint fully exercisable in her own favor at any time following the decedent’s death (as, for example, an unlimited power to invade) * * *
If this were all, the interest here bequeathed to Mae would qualify, since the will imposed no restrictions on her devoting Edward’s property to her own use. However, what this subsection would seem to give, others take away. Regulation § 20.2056(b)-5(g) (2) says:
(2) The power of the surviving spouse must be a power to appoint the entire interest * * * as unqualified owner (and free of the trust if a trust is involved, or free of the joint tenancy if a joint tenancy is involved) or to appoint the entire interest * * * as a part of her estate (and free of the trust if a trust is involved), that is, in effect, to dispose of it to whomsoever she pleases. * * *
And Regulation § 20.2056(b)-5(g) (3) says, among other things, that:
(3) * * * In order for a power of invasion to be exercisable in all events, the surviving spouse must have the unrestricted power exercisable at any fime during her life to use all or any part of the property subject to the power, and to dispose of it in any manner, including the power to dispose of it by gift (whether or not she has power to dispose of it by will).
The “power to appoint the entire interest * * * as unqualified owner” must include the power to appoint to one’s self or one’s estate in such a manner that the property will be free of conditions imposed by the testator upon the devolution of the property on the survivor’s death. Since Mrs. Opal did not have this, the exception does not apply.
Affirmed.
. The case was tried before Judge Forrester, who wrote the prevailing opinion; Judge Dawson wrote a concurring opinion that was joined by two other judges; Judge Simpson filed a separate concurring opinion that was joined by another judge; Chief Judge Drennan and another judge dissented.
. It seems clear from the plain words of the statute, as well as our decision in Pipe, that a will giving the surviving spouse a life interest in the income, full power to invade the principal for her own use, and power to give the principal to anyone except herself or her estate, would not meet the statutory test.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
sc_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
GENERAL TELEPHONE COMPANY OF THE NORTHWEST, INC., et al. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al.
No. 79-488.
Argued March 25, 26, 1980
Decided May 12, 1980
White, J., delivered the opinion of the Court, in which Brennan, Stewart, Marshall, and Blackmun, JJ., joined. Burger, C. J., and Powell, Rehnquist, and Stevens, JJ., filed a dissenting statement, post, p. 334.
James R. Dickens argued the cause for petitioners. With him on the briefs were C. Lee Coulter and N. Huntley Holland.
Deputy Solicitor General Wallace argued the cause for respondents. With him on the brief for the federal respondent were Solicitor General McCree, Leroy D. Clark, Joseph T. Eddins, and Lutz Alexander Prager. Herman L. Wacker filed a memorandum for Local Union No. 89, International Brotherhood of Electrical Workers, respondent under this Court’s Buie 21 (4).
Avrum M. Goldberg, William R. Weissman, Robert E. Williams, Douglas S. McDowell, and Philip Elman filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal.
Barry L. Goldstein and Jack Greenberg filed a brief for the N. A. A. C. P. Legal Defense and Educational Fund, Inc., as amicus curiae urging affirmance.
Mr. Justice White
delivered" the opinion of the Court.
The issue in this case is whether the Equal Employment Opportunity Commission (EEOC) may seek classwide relief under §706 (f)(1) of Title VII of the Civil Rights Act of 1964 (Title VII) without being certified as the class representative under Rule 23 of the Federal Rules of Civil Procedure. The Court of Appeals for the Ninth Circuit held that certification was not required. 599 F. 2d 322 (1979). Because this is a recurring issue on which the federal courts are divided, we granted certiorari, 444 U. S. 989 (1979). We affirm the judgment.
I
Four employees of General Telephone Company of the Northwest, Inc. (General Telephone), filed charges with the EEOC complaining of sex discrimination in employment. After investigation, the EEOC found reasonable cause to suspect discrimination against women, and in April 1977 brought suit in the United States District Court for the Western District of Washington under § 706 (f)(1) of Title VII, as amended, § 4, 86 Stat. 105, 42 U. S. C. § 2000e-5 (f) (l). The EEOC named as defendants General Telephone and its subsidiary, West Coast Telephone Company of California, Inc. (hereinafter collectively referred to as General Telephone), as well as the certified bargaining agent, Local Union No. 89, International Brotherhood of Electrical Workers. The complaint alleged discrimination against female employees in General Telephone’s facilities in the States of California, Idaho, Montana, and Oregon, in the form of restrictions on maternity leave, access to craft jobs, and promotion to managerial positions; it sought injunctive relief and backpay for the women affected by the challenged practices.
The complaint did not mention Federal Rule of Civil Procedure 23, and the EEOC did not seek class certification pursuant to that Rule. In August 1977, the EEOC moved pursuant to Federal Rule of Civil Procedure 42 (b) “for an order bifurcating the issue of class liability from the issue of individual damages.” The District Court referred the motion to a Magistrate, see Title VII, §706 (f)(5), and General Telephone moved “for an order dismissing the class action aspects” of the complaint.
The Magistrate concluded that the EEOC was hot required to comply with Rule 23 and recommended that the motion be denied. The District Court adopted the recommendation, denied the motion to dismiss, and then certified the issue for interlocutory appeal to the Ninth Circuit. The Court of Appeals accepted the appeal, see 28 U. S. C. § 1292 (b), and affirmed the District Court’s ruling.
II
We agree with the Court of Appeals that Rule 23 is not applicable to an enforcement action brought by the EEOC in its own name and pursuant to its authority under § 706 to prevent unlawful employment practices. We rely on the language of Title VII, the legislative intent underlying the 1972 amendments to Title VII, and the enforcement procedures under Title VII prior to the amendments.
A
Title VII protects all employees of and applicants for employment with a covered employer, employment agency, labor organization, or training program against discrimination based on race, color, religion, sex, or national origin. Section 706 (a) empowers the EEOC “to prevent any person from engaging in any unlawful . . . practice” as set forth in the Title. Section 706 (f)(1) specifically authorizes the EEOC to bring a civil action against any respondent not a governmental entity upon failure to secure an acceptable conciliation agreement, the purpose of the action being to terminate unlawful practices and to secure appropriate relief, including “reinstatement or hiring . . . , with or without back pay,” for the victims of the discrimination. See § 706 (g).
Title VII thus itself authorizes the procedure that the EEOC followed in this case. Upon finding reasonable cause to believe that General Telephone.had discriminated against female employees, the EEOC filed suit seeking a permanent injunction against the discriminatory practices, remedial action to eradicate the effect of past discrimination, and “make whole” backpay, with interest, for persons adversely affected by the unlawful practices. Given the clear purpose of Title VII, the EEOC’s jurisdiction over enforcement, and the remedies available, the EEOC need look no further than § 706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals. Its authority to bring such actions is in no way dependent upon Rule 23, and the Rule has no application to a § 706 suit.
Of course, Title VII defendants do not welcome the prospect of backpay liability; but the law provides for such liability and the EEOC’s authority to sue for it. Moreover, the EEOC here requested relief only on behalf of “those persons adversely affected” and “in an amount to be proved at trial.” App. 11. There is no claim or suggestion of unjustified, windfall backpay awards. That backpay relief is authorized is no basis- for imposing the Rule 23 framework in an EEOC enforcement action. We do no more than follow a straightforward reading of the- statute, which seems to us to authorize the EEOC to sue in its own name to enforce federal law by obtaining appropriate relief for those persons injured by discriminatory practices forbidden by the Act.
B
This understanding of the statute is supported by the purpose of the 1972 amendments of providing the EEOC with enforcement authority. The purpose of the amendments, plainly enough, was to secure more effective enforcement of Title VII. As Title VII was originally enacted as part of the Civil Rights Act of 1964, the EEOC’s role in eliminating unlawful employment practices was limited to “informal methods of conference, conciliation, and persuasion.” Civil actions for enforcement upon the EEOC’s inability to secure voluntary compliance could be filed only by the aggrieved person. § 706 (e), 78 Stat. 260. Congress became convinced, however, that the “failure to grant the EEOC meaningful enforcement powers has proven to be a major flaw in the operation of Title VII.” S. Rep. No. 92-415, p. 4 (1971). The 1972 amendments to § 706 accordingly expanded the EEOC’s enforcement powers by authorizing the EEOC to bring a civil action in federal district court against private employers reasonably suspected of violating Title VII. In so doing, Congress sought to implement the public interest as well as to bring about more effective enforcement of private rights. The amendments did not transfer all private enforcement to the EEOC and assign to that agency exclusively the task of protecting private interests. The EEOC’s civil suit was intended to supplement, not replace, the private action. Cf. Alexander v. Gardner-Denver Co., 415 U. S. 36, 45 (1974). The EEOC was to bear the primary burden of litigation, but the private action previously available under § 706 was not superseded. Under § 706 (f)(1), the aggrieved person may bring his own action at the expiration of the 180-day period of exclusive EEOC administrative jurisdiction if the agency has failed to move the case along to the party’s satisfaction, has reached a determination not to sue, or has reached a conciliation or settlement agreement with the respondent that the party finds unsatisfactory. The aggrieved person may also intervene in the EEOC’s enforcement action. These private-action rights suggest that the EEOC is not merely a proxy for the victims of discrimination and that the EEOC’s enforcement suits should not be considered representative actions subject to Rule 23. Although the EEOC can secure specific relief, such as hiring or reinstatement, constructive seniority, or damages for backpay or benefits denied, on behalf of discrimination victims, the agency is guided by “the overriding public interest in equal employment opportunity . . . asserted through direct Federal enforcement.” 118 Cong. Rec. 4941 (1972). When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.
c
Prior to 1972, the only civil actions authorized other than private lawsuits were actions by the Attorney General upon reasonable cause to suspect “a pattern or practice” of discrimination. These actions did not depend upon the filing of a charge with the EEOC; nor were they designed merely to advance the personal interest of any particular aggrieved person. Prior to 1972, the Department of Justice filed numerous § 707 pattern-or-practice suits. 118 Cong. Rec. 4080 (1972) (remarks of Sen. Williams). In none was it ever suggested that the Attorney General sued in a representative capacity or that his enforcement suit must comply with the requirements of Rule 23; and this was true even though specific relief was awarded to individuals not parties to the suit.
The 1972 amendments, in addition to providing for a § 706 suit by the EEOC pursuant to a charge filed by a private party, transferred to the EEOC the Attorney General’s authority to bring pattern-or-practice suits on his own motion. In discussing the transfer, Senator Hruska described § 707 actions as “in the nature of class actions” 118 Cong. Rec. 4080 (1972). Senator Williams then noted that, upon the transfer, “[t]here will be no difference between the cases that the Attorney General can bring under section 707 as a 'pattern or practice’ charge and those which the [EEOC] will be able to bring.” Id., at 4081. Senator Javits agreed with both Senators: “The EEOC . . . has the authority to institute exactly the same actions that the Department of Justice does under pattern or practice.” Senator Javits further noted that “if [the EEOC] proceeds by suit, then it can proceed by class suit. If it proceeds by class suit, it is in the position of doing exactly what the Department of Justice does in pattern and practice suits. . . . [T] he power to sue . . . fully qualifies the [EEOC] to take precisely the action now taken by the Department of Justice.” Id., at 4081-4082. As we have said, the Department of Justice brought its suits in the name of the United States and without obtaining certification under Rule 23 — it did not sue as a representative of the persons aggrieved — and we must assume Congress’ familiarity with the procedure. It is clear that with the 1972 amendments Congress intended the EEOC to proceed in the same manner; and thus, given the context, it is similarly clear that the references in debate to “class” suits referred to the availability of relief and not the procedure that would be applicable in such actions.
Ill
It is also apparent that forcing EEOC civil actions into the Rule 23 model would in many cases distort the Rule as it is commonly interpreted and in others foreclose enforcement actions not satisfying prevailing Rule 23 standards but seemingly authorized by § 706 (f) (1). The undesirability of doing either supports our conclusion that the procedural requirements of the Rule do not apply.
A
Rule 23 (a), see n. 3, supra, imposes the prerequisites of numerosity, commonality, typicality, and adequacy of representation. When considered in the light of these requirements, it is clear that the Rule was not designed to apply to EEOC actions brought in its own name for the enforcement of federal law. Some of the obvious and more severe problems are worth noting.
The numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations. Title VII, however, applies to employers with as few as 15 employees. When judged by the size of the putative class in various cases in which certification has been denied, this minimum would be too small to meet the numerosity requirement. In such cases, applying Rule 23 would require the EEOC to join all aggrieved parties despite its statutory authority to proceed solely in its own name.
The typicality requirement is said to limit the class claims to those fairly encompassed by the named plaintiff’s claims. If Rule 23 were applicable to EEOC enforcement actions, it would seem that the Title VII counterpart to the Rule 23 named plaintiff would be the charging party, with the EEOC serving in the charging party’s stead as the representative of the class. Yet the Courts of Appeals have held that EEOC enforcement actions are not limited to the claims presented by the charging parties. Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable. See, e. g., EEOC v. General Electric Co., 532 F. 2d 359, 366 (CA4 1976); EEOC v. McLean Trucking Co., 525 F. 2d 1007, 1010 (CA6 1975). The latter approach is far more consistent with the EEOC’s role in the enforcement of Title VII than is imposing the strictures of Rule 23, which would limit the EEOC action to claims typified by those of the charging party.
We note finally that the adequate-representation requirement is typically construed to foreclose the class action where there is a conflict of interest between the named plaintiff and the members of the putative class. In employment discrimination litigation, conflicts might arise, for example, between employees and applicants who were denied employment and who will, if granted relief, compete with employees for fringe benefits or seniority. Under Rule 23, the same plaintiff could not represent these classes. But unlike the Rule 23 class representative, the EEOC is authorized to proceed in a unified action and to obtain the most satisfactory overall relief even though competing interests are involved and particular groups may appear to be disadvantaged. The individual victim is given his right to intervene for this very reason. The EEOC exists to advance the public interest in preventing and remedying employment discrimination, and it does so in part by making the hard choices where conflicts of interest exist. We are reluctant, absent clear congressional guidance, to subject §706 (f)(1) actions to requirements that might disable the enforcement agency from advancing the public interest in the manner and to the extent contemplated by the statute.
B
We observe that General Telephone does not urge application of Rule 23 to EEOC enforcement actions in the expectation or hope that the agency could not comply and would be forced to drop its action against General Telephone. Indeed, petitioners urge that the EEOC, in proper cases, would be able to meet the Rule 23 requirements. Brief for Petitioners 16-22. As we understand, petitioners’ objective in seeking to invoke Rule 23 is aimed at securing a judgment in the EEOC’s suit that will be binding upon all individuals with similar grievances in the class or subclasses that might be certified. We are sensitive to the importance of the res judicata aspects of Rule 23 judgments, but we are not free to depart from what we believe the statutory design to be.
We have noted in a related context the interface between employment discrimination remedies under a collective-bargaining agreement and those under Title VII. Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), held that the employee did not forfeit Title VII relief by invoking the grievance and arbitration procedures under the collective-bargaining contract. We noted that "federal courts have been assigned plenary powers to secure compliance with Title VII.” Id., at 45. Similarly, the courts retain remedial powers under Title VII despite a finding by the EEOC of no reasonable cause to believe that Title VII has been violated. McDonnell Douglas Corp. v. Green, 411 U. S. 792, 798-799 (1973). We have also stressed the strong congressional intent to provide “make whole” relief to Title VII claimants: “ ‘The provisions of this subsection are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible. . . .’ 118 Cong. Rec. 7168 (1972).” Albemarle Paper Co. v. Moody, 422 U. S. 405, 421 (1975).
The 1972 amendments retained the private right of action as “an essential means of obtaining judicial enforcement of Title VII,” Alexander v. Gardner-Denver Co., supra, at 45, while also giving the EEOC broad enforcement powers. In light of the “general intent to accord parallel or overlapping remedies against discrimination,” 415 U. S., at 47, we are unconvinced that it would be consistent with the remedial purpose of the statutes to bind all “class” members with discrimination grievances against an employer by the relief obtained under an EEOC judgment or settlement against the employer. This is especially true given the possible differences between the public and private interests involved. Cf. Occidental Life Ins. Co. v. EEOC, 432 U. S. 355 (1977).
The courts, however, are not powerless to prevent undue hardship to the defendant and should perform accordingly. The employer may, by discovery and other pretrial proceedings, determine the nature and extent of the claims that the EEOC intends to pursue against it. Here, as we have noted, the EEOC moved to try initially the issue of liability, not to avoid proving individual claims, but merely to postpone such proof. It also goes without saying that the courts can and should preclude double recovery by an individual. Cf. Alexander v. Gardner-Denver Co., supra, at 51, n. 14. Also, where the EEOC has prevailed in its action, the court may reasonably require any individual who claims under its judgment to relinquish his right to bring a separate private action. The Title VII remedy is an equitable one; a court of equity should adjust the relief accordingly.
IV
We hold, therefore, that the EEOC may maintain its § 706 civil actions for the enforcement of Title VII and may seek specific relief for a group of aggrieved individuals without first obtaining class certification pursuant to Federal Rule of Civil Procedure 23. The judgment of the Ninth Circuit is accordingly
Affirmed.
The Chief Justice, Mr. Justice Powell, Mr. Justice Rehnquist, and Mr. Justice Stevens, for the reasons that are well stated by the Court of Appeals for the Fifth Circuit in EEOC v. D. H. Holmes Co., Ltd., 556 F. 2d 787 (1977), cert. denied, 436 U. S. 962 (1978), would reverse the judgment in this case.
The Fifth Circuit previously addressed this same issue and held that certification was required. EEOC v. D. H. Holmes Co., Ltd., 556 F. 2d 787 (1977), cert. denied, 436 U. S. 962 (1978). The District Courts have decided the issue both ways.
Section 706 (f)(1) provides in pertinent part:
“If within thirty days after a charge is filed with the Commission . . . , the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. . . . The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission .... If a charge filed with the Commission pursuant to subsection (b) is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d), whichever is later, the Commission has not filed a civil action under this section ... or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice.”
Rule 23 provides in pertinent part:
“(a) Prerequisites to a Class Action.
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
"(b) Class Actions Maintainable.
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
“(1) the prosecution of separate actions by or against individual members of the class would create a risk of
“(A) inconsistent or varying adjudications' with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
“(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
“(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
"(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.”
Local Union No. 89, International Brotherhood of Electrical Workers, did not join in this motion. Discussions were underway between the union and the EEOC to resolve the allegations in the complaint against the union. The union also did not participate in the appeal to the Ninth Circuit following the denial of the motion to dismiss. On December 18, 1978, the District Court entered a consent decree against the union; General Telephone’s cross-claim for judgment against the union if General Telephone is found liable on the sex discrimination claims is still pending.
The union also did not join in General Telephone’s petition for certiorari and is, therefore, a respondent in this Court. See this Court’s Rule 21 (4).
Petitioners characterize this action as a “class action”; the EEOC characterizes it as an action “affecting a class of individuals.” We need not choose between these characterizations. The issue is whether an action, however it is styled, brought by a Government agency to enforce the federal law with whose enforcement the agency is charged is subject to the requirements of Rule 23.
The Attorney General is authorized to bring suit against a governmental entity.
The Senate Report on the amendments notes:
“The most striking deficiency of the 1964 Act is that the EEOC does not have the authority to issue judicially enforceable orders to back up its findings of discrimination. . . .
“As a consequence, unless the Department of Justice concludes that a pattern or practice of resistance to Title VII is involved, the burden of obtaining enforceable relief rests upon each individual victim of discrimination, who must go into court as a private party, with the delay and expense that entails, in order to secure the rights promised him under the law.” S. Rep. No. 92-415, p. 4 (1971).
The Senate Committee contemplated EEOC enforcement through an administrative proceeding followed by a cease-and-desist order with review in the appropriate United States court of appeals. Although a floor amendment changed the procedure to a civil suit in the district court, the policy remained the same.
Cf. Occidental Life Ins. Co. v. EEOC, 432 U. S. 355, 368 (1977) (“[U]nder the procedural structure created by the 1972 amendments, the EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties; it is a federal administrative agency charged with the responsibility of investigating claims of employment discrimination and settling disputes, if possible, in an informal, noncoercive fashion”). Cf. also Porter v. Warner Holding Co., 328 U. S. 395, 397-398 (1946) (The Price Administrator “invoke[s] the jurisdiction of the District Court to enjoin acts and practices made illegal by the [Emergency Price Control Act of 1942] and to enforce compliance with the Act. . . . [S]inee the public interest is involved in a proceeding of this nature, [the District Court's] equitable powers assume an even broader and more flexible character than when only a private controversy is at stake”).
Nor has it been so suggested in § 707 suits brought since 1972. In fact, the only Court of Appeals to hold that the EEOC must comply with Rule 23 in its § 706 actions has intimated that the procedural requirements would not apply in a § 707 action. The Fifth Circuit, in EEOC v. D. H. Holmes Co., although imposing the Rule 23 strictures on § 706 actions, noted “emphatically that this is not a situation in which application of procedural rules will thwart any substantive right whatsoever.
“If, for any reason, EEOC is not certified below but still believes a pattern or practice of discrimination exists in the Holmes Company, its recourse is to file a suit under § 707. . . .” 556 F. 2d, at 792, n. 8.
See, e. g., United States v. Chesapeake & O. R. Co., 471 F. 2d 582, 589-590 (CA4 1972) (constructive seniority), cert. denied sub nom. Railroad Trainmen v. United States, 411 U. S. 939 (1973); United States v. St. Louis-S. F. R. Co., 464 F. 2d 301, 309-311 (CA8 1972) (en banc) (preferential hiring and constructive seniority), cert. denied sub nom. Transportation Union v. United States, 409 U. S. 1107 (1973); United States v. Ironworkers Local 86, 443 F. 2d 544, 548, 552-554 (CA9) (preferential hiring), cert. denied, 404 U. S. 984 (1971).
Since 1972, backpay has also been awarded in pattem-or-practice suits, and without suggestion that Rule 23 is implicated. E. g., EEOC v. Detroit Edison Co., 515 F. 2d 301, 314-315 (CA6 1975); United States v. Georgia Power Co., 474 F. 2d 906, 919-920 (CA5 1973); cf. United States v. N. L. Industries, Inc., 479 F. 2d 354, 378-380 (CA8 1973). And we see nothing to indicate that prior to 1972, in cases where backpay was requested and denied, the result rested on the ground that the Government could not obtain individual relief in its enforcement action without compliance with Rule 23. See, e. g., United States v. St. Louis-S. F. R. Co., supra, at 311; United States v. Hayes Int’l Corp., 456 F. 2d 112, 121 (CA5 1972).
The legislative debate at this point focused on whether and when to make the transfer. The issue arose in the wake of the decision the day before to empower the EEOC to proceed by civil action and not cease-and-desist order. As finally agreed upon, the transfer was to occur two years after the effective date of the amendments.
Senator Javits goes on here to note that “[t]hese are essentially class actions, and if they can sue for an individual claimant, then they can sue for a group of claimants.” Given its juxtaposition between the discussion of the Department of Justice’s pattern-or-practice actions and the EEOC’s newly granted ability to sue, it is unclear whether the Senator’s characterization here as “class actions” referred to § 707 or § 706.
Petitioners rely heavily on the statement by Senator Javits immediately following the quotation set out in n. 12, supra, that “this is provided for by the rules of civil procedure in the Federal courts.” The Senator then elaborated:
“I have referred to the rules of civil procedure. I now refer specifically to rule 23 of those rules, which is entitled Class Actions and which give[s] the opportunity to engage in the Federal Court in class actions by properly suing parties. We ourselves have given permission to the EEOC to be a properly suing party.” 118 Cong. Rec. 4082 (1972).
Again, given the context, the point that emerges most clearly is that the Senator’s comments merely compare the effect of the amendments to § 706 with the Rule 23 procedure; the comments were not intended to impose the requirements of the Rule on the § 706 action. Indeed, the idea that the EEOC’s enforcement suits were to be subject to the full range of Rule 23 requirements is completely inconsistent with the Senator’s own comparisons, noted in text, between the EEOC’s authority under § 706 as amended and the authority of the Department of Justice under the original version of § 707.
See, e. g., Monarch Asphalt Sales Co. v. Wilshire Oil Co. of Texas, 511 F. 2d 1073, 1077 (CA10 1975) (37 class plaintiffs); Peterson v. Albert M. Bender Co., 75 F. R. D. 661, 667 (ND Cal. 1977) (35-45); Murray v. Norberg, 423 F. Supp. 795, 798 (RI 1976) (fewer than 20); Chmieleski v. City Products Corp., 71 F. R. D. 118, 150-151 (WD Mo. 1976) (22); Lopez v. Jackson County Bd. of Supervisors, 375 F. Supp. 1194, 1196-1197 (SD Miss. 1974) (16); Moreland v. Rucker Pharmacal Co., 63 F. R. D. 611, 613-614 (WD La. 1974) (26); Anderson v. Home Style Stores, Inc., 58 F. R. D. 125, 130-131 (ED Pa. 1972) (18).
An acceptance of the benefits under an EEOC-negotiated settlement could be drafted to provide for a similar relinquishment.
We by no means suggest that the Federal Rules generally are inapplicable to the EEOC's §706 actions. Title VII itself refers to Rule 63, see §706 (f)(5), and the Court itself has discussed Rule 54(c). See Albemarle Paper Co. v. Moody, 422 U. S. 405, 424 (1975). We hold only that the nature of the EEOC’s enforcement action is such that it is not properly characterized as a “class action” subject to the procedural requirements of Rule 23.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America, Appellee, v. Raymond Earl HUDSON, Appellant.
No. 77-1045.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 11, 1977.
Decided Dec. 1, 1977.
Will T. Dunn, Jr., Greenville, S. C., for appellant.
William A. Coates, Asst. U. S. Atty., Greenville, S. C. (Thomas E. Lydon, Jr., U. S. Atty., Columbia, S. C., on brief), for appellee.
Before BUTZNER, Circuit Judge, FIELD, Senior Circuit Judge, and HALL, Circuit Judge.
PER CURIAM:
Raymond E. Hudson appeals from a judgment convicting him of multiple counts involving stolen motor vehicles in violation of 18 U.S.C. §§ 2313 and 2. He alleges that the government failed, as a matter of law, to carry its burden of proving sanity beyond a reasonable doubt once he had placed his sanity in issue. The government produced no expert testimony to rebut Hudson’s expert testimony tending to show insanity. Instead, it relied on cross-examination of Hudson’s experts, on the testimony of a lay witness who was acquainted with Hudson at the time he committed the offense, and on Hudson’s demeanor on the witness stand when he testified in his own behalf.
Although the use of expert witnesses by the government in this type of situation is usually desirable, it is not always a prerequisite for withstanding a motion for a judgment of acquittal. Mims v. United States, 375 F.2d 135, 140-44 (5th Cir. 1967); cf. United States v. Wilson, 399 F.2d 459, 462-63 (4th Cir. 1968). Federal Rule of Criminal Procedure 12.2, which pertains to giving notice of a defense based on mental condition, does not alter this substantive law. While Rule 12.2 is designed to give the government an opportunity to obtain the expert witnesses they ordinarily will need, it does not require such testimony.
Hudson presented enough evidence to place on the government the burden of proving his sanity. Upon a review of the whole record, however, we conclude that the government’s rebuttal evidence was sufficient to allow a jury to find that, beyond a reasonable doubt, Hudson was legally sane at the time of the offenses.
We find no error in the court’s instructions on the issue of insanity when they are read, as they must be, in the context of all the instructions given. Nor did the court’s own examination of Hudson’s experts inject error into the proceeding.
The judgment is affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_genapel1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES v. ONE 1937 MODEL STUDEBAKER SEDAN AUTOMOBILE, MOTOR NO. D 136774 (MORGAN, Intervener).
No. 1616.
Circuit Court of Appeals, Tenth Circuit.
April 6, 1938.
Richard P. Shanahan, Sp. Asst., U. S. Department of Justice, of Washington, D. C. (William C. Lewis, U. S. Atty., and Wade II. Loofbourrow, Asst. U. S. Atty., both of Oklahoma City, Okl., on the brief), for the United States.
John W. Tyree, of Lawton, Old., for appellees.
Before LEWIS, BRATTON, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge.
The appellant (United States of America) instituted this proceeding under section 3450 of the Revised Statutes, 26 U.S. C.A. § 1441, for forfeiture of an appropriately described Studebaker automobile which had been seized by federal agents on the ground that it contained and concealed intoxicating liquor upon which the tax had not been paid, it being averred in the information that one George H. Morgan claimed some right, title, and interest in such automobile. After being permitted to intervene, said Morgan filed a motion to suppress all of the evidence taken and acquired in the course of the search and seizure of the automobile on the ground that the search and seizure were unlawful and illegal, in that same was made without a search warrant and in violation of his rights under the Fourth Amendment to the Constitution of the United States. A jury having been waived, the cause was tried by the court. The facts relative to the search and seizure were partly stipulated.
Soon after a federal investigator, named Harris, arrived in Lawton, Oklahoma, on December 1, 1936, he in person received reliable information verbally and by telephone that said intervener and his son, Herman Morgan, and his son-in-law Lee Roy Walker, were engaged in or carrying on an active illicit business in said city in both taxpaid and nontaxpaid intoxicating liquors. Further investigation by him disclosed that each of said parties had been convicted of violation of the liquor laws of the United States and that said Herman Morgan and said Walker were each holders of current Retail Liquor Dealer’s .Special Tax Stamps, and were illicitly handling such taxpaid as well as nontaxpaid liquor. Further investigation followed.
On January 13, 1937, said Harris observed Walker deliver to a known and notorious bootlegger a paper carton which resembled a whiskey carton. Two days later said Harris again saw said Walker deliver a paper sack which he thought contained two half-gallon jars of whisky and following this delivery he saw Walker drive to the residence of intervener. Said Harris received further evidence about that time to the effect that Walker was selling nontaxpaid liquor from his residence and thereafter undertook to watch said Walker’s premises. While engaged in that task on February 4, 1937, the said officer, Harris, accompanied by his wife, observed a green Buick automobile back out from the said Walker’s residence at about 3:15 in the afternoon and start northward, it being the same automobile that Walker had used in making the two prior deliveries.
Said Harris followed said green Buick automobile, which was driven over the streets and along a driveway to a point near a garage of intervener’s, located 35 feet from his residence, where the said green Buick car was then located in the driveway five feet from said garage, when said officer and his wife saw the intervener sitting under the steering wheel of a Studebaker car located in said driveway five feet from said garage, the said Walker then and there standing between the two cars about three feet apart in said driveway. The said officer having followed said Buick car and driving in on said driveway behind said car and the Studebaker car, announced his identity as being an Alcoholic Tax Unit United States officer, and inquired of Walker whether he had any liquor in his car, who replied in the negative, at which time, the officer seeing intervener remove a paper sack from the seat in the Studebaker car beside him and place it on the floor of said car near his feet, then and there heard glass clink in said sack. Thereupon the officer opened the door of the said Studebaker car, took hold of the sack, and found that it contained two half-gallon jars of nontaxpaid whisky, whereupon he asked intervener where he obtained the whisky, who replied from a man that he did not know and that he got it for his son, Herman Morgan. Following this, the said investigator’s wife called the Sheriff. Another United States Alcoholic Tax Unit investigator, E. T. Smith, shortly thereafter arrived upon the scene.
The intervener, George H. Morgan, was then arrested and charged with possession of whisky, the car being seized and the libel action instituted.
The evidence further disclosed that after the seizure of the whiskey in said car, said officers going to the premises of Lee Roy Walker there found that he was the holder of a Retail Liquor Dealer’s Special Tax Stamp, and seized a quantity of moonshine whisky, Walker being arrested and charged in a separate case. Said officer Smith testified that the said Herman Morgan and said Walker were known bootleggers witli prior convictions therefor in the federal court.
No search warrant was had by the said officer, Harris, for said premises or Studebalcer car, and no warrant had been issued for the arrest of George H. Morgan or said Walker, the arrest of George H. Morgan being made after the seizure of the whisky in the car. The first time that Harris saw the package in Morgan’s car was when he heard the clinking of the glass as he saw Morgan moving the package from the seat of the car to its floor.
In this investigation Harris was in the discharge of his duty as such federal officer in that city and had been since ábout December 1, 1936, during which period said officer having made investigation as 'to the two Morgans and the said Walker, which disclosed the facts to Harris as herein set out.
Said Harris' with his wife in his car coasted along behind said green Buick car with the evident expectation of finding whiskey therein. Flis identifying himself as such officer, and interrogating Walker as to whether he had liquor in said car so discloses. The movement of intervener at that time as to removal of the package from the seat of his car to its floor and the clinking of the glass attracting Harris’ attention obviously diverted him from further attention then as to Walker and the green Buick car. With the facts and information before him he was justified in reaching the conclusion that Walker had probably delivered the paper package to intervener. Harris in thus coasting behind said green Buick car down said driveway, Walker would not have been permitted to complain as to a search of same as the evidence discloses that he had no interest in intervener’s premises. Occinto v. U. S., 8th Cir., 54 F.2d 351; Kelley v. U. S., 8th Cir., 61 F.2d 843, 845, 86 A.L.R. 338, 346; Wida v. U. S., 8th Cir., 52 F.2d 424; Nelson v. U. S., 8th Cir., 18 F.2d 522; U. S. v. Messina, 2d Cir., 36 F.2d 699; Whitcombe v. U. S., 3rd Cir., 90 F.2d 290; Chepo v. U. S., 3rd Cir., 46 F.2d 70; U. S. v. Crushiata, 2d Cir., 59 F.2d 1007; In re Dooley, 2d Cir., 48 F.2d 121.
In Wida v. U. S., supra, in paragraph 1 of the syllabus, it is said: “Officers receiving information accused had still at his home held authorized to go there to investigate without search warrant (27 USCA, § 39; 18 USCA, § 53).” In the opinion, it is said: “The validity of this arrest is beyond successful challenge. Before going to this place, the officers had received information and complaints that Wida had a still in operation at his home and they went about one hundred and twenty miles to investigate the accuracy of this information. They had a right to go to the house for this purpose, and when they arrived there, and before entering the house, they received unmistakable evidence * * * that their information was correct.” Further in the opinion, at the top of page 426, of 52 F.2d, it is said: “We hold: (1) That where officers have reasonable information that a felony is being committed at a certain place they are justified in making a proper investigation at that place to ascertain whether such information is correct.”
This evidence on motion was suppressed by the trial court as being illegally obtained, from which action of the court the government prosecutes this appeal.
There is a well-recognized difference in the application of the constitutional provision between the search of a dwelling, store, or other structure, and that of a boat, wagon, or automobile, of necessity arising- out of a dissimilarity of conditions. A warrant may be readily obtained for search of a dwelling, store, or other structure, where the information is at hand before the structure is visited, there being little excuse or justification for a search without it, but emergencies justifying a search of a structure may arise so as to render the search without a search warrant excusable or justifiable. However, as to the search of a boat, wagon, or automobile in time to accomplish a lawful result, it may be impracticable or impossible to secure a writ to practically meet an emergency. While the writ is being obtained the boat, or wagon, or automobile, may be rushed out of the locality and even beyond the jurisdiction of the process, or the contraband secreted or destroyed so as to defeat the purposes of the law. Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790.
The indiscriminate stopping and searching of automobiles on the .highways on the mere chance of finding contraband liquor is within the prohibition of the Fourth Amendment. However, an automobile may be searched without a search warrant upon probable cause. In order to warrant a valid search the officer must have such information as to cause a reasonable, discreet, and prudent person to believe in good faith that the automobile is being used for the purpose of concealment or transportation of contraband liquor. Carroll v. U. S., supra; Husty v. U. S., 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629, 74 A.L.R. 1407; Hester v. U. S., 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; Eierman v. U. S., 10th Cir., 46 F.2d 46; Underhill v. U. S., 10th Cir., 47 F.2d 891; Moore v. U. S., 10th Cir., 56 F.2d 794 ; Mulrooney v. U. S., 4th Cir., 46 F.2d 995; Fisher v. U. S., 4th Cir., 46 F.2d 994; Milam v. U. S., 4th Cir., 296 F. 629; Van Eeckhoute v. U. S., 8th Cir., 79 F.2d 827; Kaiser v. U. S., 8th Cir., 60 F.2d 410;. McInes v. U. S., 9th Cir., 62 F.2d 180; Rodriguez v. U. S., 5th Cir., 80 F.2d 646; Whitcomb v. U. S., supra; and Kopp v. U. S., 7th Cir., 55 F.2d 878.
Intervener lays stress upon the point that search was made within his curtilage. The Studebaker was located in the driveway five feet from the said garage and 35 feet from the dwelling. The officer had the right under the circumstances to go to the point where these cars were located for the purpose of investigating. Being there for a rightful purpose, facts and circumstances coming to his attention while in the performance and lawful discharge of his duty, in connection with his previously acquired information, the search of the car belonging to the intervener was justifiable.
In intervener’s (appellee) brief it is asserted that after the bearing of the clinking of the glass and seeing the package removed by intervener from the car seat and placed upon its floor, officer Harris could have sent his wife to call Smith, for him to procure a search warrant, Harris to leave the premises but to remain in view of both Walker and intervener, Morgan, and that if intervener left the premises in the Studebaker automobile then Harris might have been justified in searching said Studebaker automobile. The record is that the “officer then opened the door of the Morgan car, took out the paper sack and found that it contained two half-gallon jars of nontaxpaid whiskey. Fie asked Morgan where he obtained it and Morgan said from a man he did not know, that he was getting it for Herman Morgan. Following this, the officer’s wife called the Sheriff, and another Federal officer, E. T. Smith, shortly joined the officer Harris.”
There is nothing in the record to the effect that Harris sent his wife to call Smith or that he knew where Smith was, or that the sheriff was contacted over the phone by his wife, or that the sheriff responded at any time on that occasion whilst the officer Flarris was there, or why Smith appeared upon the scene, and the further statement in appellees’ brief is that by Harris leaving the premises but remaining in view of both Walker and the intervener, if intervener had left the premises in the Studebaker automobile then Harris might have been justified in searching said Studebaker automobile, is tantamount to an admission that his motion to suppress the evidence is -without merit.
The Studebaker car in which intervener was sitting on the seat on which by his side was the paper sack in which the glass clinked, said jars containing two half-gallons of nontaxpaid whisky, was 35 feet from his residence or house and if Harris withdrew from the driveway by which he had followed the green Buick car which Walker was driving, with the evident purpose of discovering him in the delivery of nontaxpaid whiskey, what was to prevent' said intervener, Morgan, from taking said paper sack in which the whisky was contained and going into his house, 35 feet away, where he had a right to go and making away with the whisky, as he was attempting to do when Harris, in following the green Buick car as he had a right to do, happened upon him, or to drive in the Studebaker down the driveway to the street and out into the city ? To have forcibly kept him (Morgan) there would have been in effect taking him in custody. Intervener’s theory that he should have withdrawn and then if intervener had attempted to leave in the Studebaker that then Harris would have been justified in searching him, would have then meant to forcibly stop the car.
The judgment of the lower court is reversed, and the case remanded with directions to overrule motion to suppress and to proceed with a new trial.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
COMMONWEALTH EDISON CO. et al. v. MONTANA et al.
No. 80-581.
Argued March 30, 1981
Decided July 2, 1981
Marshall, J., delivered the opinion of the Court in which Burger, C. J., and BreNNAN, Stewart, White, and Rehnquist, JJ., joined. White, J., filed a concurring opinion, post, p. 637. Blackmun, J., filed a dissenting opinion, in which Powell and Stevens, JJ., joined, post, p. 638.
William, P. Rogers argued the cause for appellants. With him on the briefs were William R. Olendon, Stanley Godof-sky, Stephen Froling, James N. Benedict, Patrick F. Hooks, William J. Carl, and George J. Miller.
Mike Greely, Attorney General of Montana, argued the cause for appellees. With him on the brief were Mike Mc-Crath and Mike McCarter, Assistant Attorneys General, and A. Raymond Randolph, Jr
Briefs of amici curiae urging reversal were filed for the State of Minnesota et al. by Warren Spannaus, Attorney General of Minnesota, and Kent G. Harbison and Karen G. Schanfield, Special Assistant Attorneys General, Thomas J. Miller, Attorney General of Iowa, and Bronson C. La Follette, Attorney General of Wisconsin; for the State of Kansas by Robert T. Stephan, Attorney General, and Bruce E. Miller, Deputy Attorney General; for the State of New Jersey et al. by John J. Degnan, Attorney General of New Jersey, Stephen Skillman, Assistant Attorney General, and Claude E. Solomon, Deputy Attorney General, Frank J. Kelley, Attorney General of Michigan, Robert A. Derengoski, Solicitor General, and Arthur E. D’Hondt and John M. Dempsey, Assistant Attorneys General; for the State of Texas by Mark White, Attorney General, John Stuart Fryer, James R. Meyers, and Justin Andrew Kever, Assistant Attorneys General, John W. Fainter, Jr., First Assistant Attorney General, and Richard E. Gray III, Executive Assistant Attorney General; and for Robert W. Edgar et al. by Lewis B. Kaden.
Briefs of amici curiae urging affirmance'were filed for the United States by Solicitor General McCree, Acting Assistant Attorney General Liotta, Deputy Solicitor General Claiborne, Edwin S. Kneedler, Edward J. Shawaker, and Christopher Kirk Harris; for the State of New Mexico by Jefj Bingaman, Attorney General, Thomas L. Dunigan, Deputy Attorney General, Denise Fort, Assistant Attorney General, and Paul L. Bloom, Special Assistant Attorney General; for the State of North Dakota et al. by Robert O. Welfald, Attorney General of North Dakota, and Leo F. J. Wilking, Assistant Attorney General, and Chauncey H. Browning, Jr., Attorney General of West Virginia; for the State of Wyoming et al. by John D. Troughton, Attorney General of Wyoming, Mary B. Guthrie and Dennis M. Boal, Assistant Attorneys General, Nancy D. Freudenthal, Special Assistant Attorney General, and Steven F. Freudenthal, J. D. MacFarlane, Attorney General of Colorado, Richard H. Bryan, Attorney General of Nevada, David H. Leroy, Attorney General of Idaho, Kenneth O. Eikenberry, Attorney General of Washington, and Dave Frohnmayer, Attorney General of Oregon; for Max Baucus et al. by R. Stephen Browning, Hamilton P. Fox III, and Peter Van N. Lockwood; for the Environmental Defense Fund et al. by David B. Roe; for Malcolm Wallop et al. by Ann B. Vance and Dennis Charles Stickley; for the Western Conference of the Council of State Governments by John E. Thorson.
Briefs of amici curiae were filed by Richard Anthony Baenen, Edward M. Fogarty, and Thomas J. Lynaugh, for the Crow Tribe of Indians; and by David E. Engdahl for the Western Governors’ Policy Office.
Justice Marshall
delivered the opinion of the Court.
Montana, like many other States, imposes a severance tax on mineral production in the State. In this appeal, we consider whether the tax Montana levies on each ton of coal mined in the State, Mont. Code Ann. § 15-35-101 et seq. (1979), violates the Commerce and Supremacy Clauses of the United States Constitution.
I
Buried beneath Montana are large deposits of low-sulfur coal, most of it on federal land. Since 1921, Montana has imposed a severance tax on the output of Montana coal mines, including coal mined on federal land. After commissioning a study of coal production taxes in 1974, see House Resolutions Nos. 45 and 93, Senate Resolution No. 83, 1974 Mont. Laws 1619-1620, 1653-1654, 1683-1684 (Mar. 14 and 16, 1974); Montana Legislative Council, Fossil Fuel Taxation (1974), in 1975, the Montana Legislature enacted the tax schedule at issue in this case. Mont. Code Ann. § 15-35-103 (1979). The tax is levied at varying rates depending on the value, energy content, and method of extraction of the coal, and may equal, at a maximum, 30% of the “contract sales price.” Under the terms of a 1976 amendment to the Montana Constitution, after December 31, 1979, at least 50% of the revenues generated by the tax must be paid into a permanent trust fund, the principal of which may be appropriated only by a vote of three-fourths of the members of each house of the legislature. Mont. Const., Art. IX, § 5.
Appellants, 4 Montana coal producers and 11 of their out-of-state utility company customers, filed these suits in Montana state court in 1978. They sought refunds of over $5.4 million in severance taxes paid under protest, a declaration that the tax is invalid under the Supremacy and Commerce Clauses, and an injunction against further collection of the tax. Without receiving any evidence, the court upheld the tax and dismissed the complaints.
On appeal, the Montana Supreme Court affirmed the judgment of the trial court. -Mont.-, 615 P. 2d 847 (1980). The Supreme Court held that the tax is not subject to scrutiny under the Commerce Clause because it is imposed on the severance of coal, which the court characterized as an intrastate activity preceding entry of the coal into interstate commerce. In this regard, the Montana court relied on this Court’s decisions in Heisler v. Thomas Colliery Co., 260 U. S. 245 (1922), Oliver Iron Mining Co. v. Lord, 262 U. S. 172 (1923), and Hope Natural Gas Co. v. Hall, 274 U. S. 284 (1927), which employed similar reasoning in upholding state severance taxes against Commerce Clause challenges. As an alternative basis for its resolution of the Commerce Clause issue, the Montana court held, as a matter of law, that the tax survives scrutiny under the four-part test articulated by this Court in Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977). The Montana court also rejected appellants’ Supremacy Clause challenge, concluding that appellants had failed to show that the Montana tax conflicts with any federal statute.
We noted probable jurisdiction, 449 TJ. S. 1033 (1980), to consider the important issues raised. We now affirm.
II
A
As an initial matter, appellants assert that the Montana Supreme Court erred in concluding that the Montana tax is not subject to the strictures of the Commerce Clause. In appellants’ view, Heisler’s “mechanical” approach, which looks to whether a state tax is levied on goods prior to their entry into interstate commerce, no longer accurately reflects the law. Appellants contend that the correct analysis focuses on whether the challenged tax substantially affects interstate commerce, in which case it must be scrutinized under the Complete Auto Transit test.
We agree that Heisler’s reasoning has been undermined by more recent cases. The Heisler analysis evolved at a time when the Commerce Clause was thought to prohibit the States from imposing any direct taxes on interstate commerce. See, e. g., Helson & Randolph v. Kentucky, 279 U. S. 245, 250-252 (1929); Ozark Pipe Line Corp. v. Monier, 266 U. S. 555, 562 (1925). Consequently, the distinction between intrastate activities and interstate commerce was crucial to protecting the States’ taxing power.
The Court has, however, long since rejected any suggestion that a state tax or regulation affecting interstate commerce is immune from Commerce Clause scrutiny because it attaches only to a “local” or intrastate activity. See Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 350 (1977); Pike v. Bruce Church, Inc., 397 U. S. 137, 141-142 (1970); Nippert v. Richmond, 327 U. S. 416, 423-424 (1946). Correspondingly, the Court has rejected the notion that state taxes levied on interstate commerce are per se invalid. See, e. g., Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., 435 U. S. 734 (1978); Complete Auto Transit, Inc. v. Brady, supra. In reviewing Commerce Clause challenges to state taxes, our goal has instead been to “establish a consistent and rational method of inquiry” focusing on “the practical effect of a challenged tax.” Mobil Oil Corp. v. Commissioner of Taxes, 445 U. S. 425, 443 (1980). See Moorman Mfg. Co. v. Bair, 437 U. S. 267, 276-281 (1978); Washington Revenue Dept. v. Association of Wash. Stevedor ing Cos., supra, at 743-751; Complete Auto Transit, Inc. v. Brady, supra, at 277-279. We conclude that the same “practical” analysis should apply in reviewing Commerce Clause challenges to state severance taxes.
In the first place, there is no real distinction — in terms of economic effects — between severance taxes and other types of state taxes that have been subjected to Commerce Clause scrutiny. See, e. g., Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157 (1954); Joseph v. Carter & Weekes Stevedoring Co., 330 U. S. 422 (1947), Puget Sound Stevedoring Co. v. State Tax Comm’n, 302 U. S. 90 (1937), both overruled in Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., supra. State taxes levied on a “local” activity preceding entry of the goods into interstate commerce may substantially affect interstate commerce, and this effect is the proper focus of Commerce Clause inquiry. See Mobil Oil Corp. v. Commissioner of Taxes, supra, at 443. Second, this Court has acknowledged that “a State has a significant interest in exacting from interstate commerce its fair share of the cost of state government,” Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., supra, at 748. As the Court has stated, “ ‘[e]ven interstate business must pay its way.’ ” Western Live Stock v. Bureau of Revenue, 303 U. S. 250, 254 (1938), quoting Postal Telegraph-Cable Co. v. Richmond, 249 U. S. 252, 259 (1919). Consequently, the Heisler Court’s concern that a loss of state taxing authority would be an inevitable result of subjecting taxes on “local” activities to Commerce Clause scrutiny is no longer tenable.
We therefore hold that a state severance tax is not immunized from Commerce Clause scrutiny by a claim that the tax is imposed on goods prior to their entry into the stream of interstate commerce. Any contrary statements in Heisler and its progeny are disapproved. We agree with appellants that the Montana tax must be evaluated under Complete Auto Transit’s four-part test. Under that test, a state tax does not offend the Commerce Clause if it “is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to services provided by the State.” 430 U. S., at 279.
B
Appellants do not dispute that the Montana tax satisfies the first two prongs of the Complete Auto Transit test. As the Montana Supreme Court noted, “there can be no argument here that a substantial, in fact, the only nexus of the severance of coal is established in Montana.” -Mont., at-, 615 P. 2d, at 855. Nor is there any question here regarding apportionment or potential multiple taxation, for as the state court observed, “the severance can occur in no other state” and “no other state can tax the severance.” Ibid. Appellants do contend, however, that the Montana tax is invalid under the third and fourth prongs of the Complete Auto Transit test.
Appellants assert that the Montana tax “discriminate [s] against interstate commerce” because 90% of Montana coal is shipped to other States under contracts that shift the tax burden primarily to non-Montana utility companies and thus to citizens of other States. But the Montana tax is computed at the same rate regardless of the final destination of the coal, and there is no suggestion here that the tax is administered in a manner that departs from this evenhanded formula. We are not, therefore, confronted here with the type of differential tax treatment of interstate and intrastate commerce that the Court has found in other “discrimination” cases. See, e. g., Maryland v. Louisiana, 451 U. S. 725 (1981); Boston Stock Exchange v. State Tax Comm’n, 429 U. S. 318 (1977); cf. Lewis v. BT Investment Managers, Inc., 447 U. S. 27 (1980); Philadelphia v. New Jersey, 437 U. S. 617 (1978).
Instead, the gravamen of appellants’ claim is that a state tax must be considered discriminatory for purposes of the Commerce Clause if the tax burden is borne primarily by out-of-state consumers. Appellants do not suggest that this assertion is based on any of this Court’s prior discriminatory tax cases. In fact, a similar claim was considered and rejected in Heisler. There, it was argued that Pennsylvania had a virtual monopoly of anthracite coal and that, because 80% of the coal was shipped out of State, the tax discriminated against and impermissibly burdened interstate commerce. 260 U. S., at 251-253. The Court, however, dismissed these factors as “adventitious considerations.” Id., at 259. We share the Heisler Court’s misgivings about judging the validity of a state tax by assessing the State’s “monopoly” position or its “exportation” of the tax burden out of State.
The premise of our discrimination cases is that “[t]he very purpose of the Commerce Clause was to create an area of free trade among the several States.” McLeod v. J. E. Dilworth Co., 322 U. S. 327, 330 (1944). See Hunt v. Washington Apple Advertising Comm’n, 432 U. S., at 350; Boston Stock Exchange v. State Tax Comm’n, supra, at 328. Under such a regime, the borders between the States are essentially irrelevant. As the Court stated in West v. Kansas Natural Gas Co., 221 U. S. 229, 255 (1911), “‘in matters of foreign and interstate commerce there are no state lines.’ ” See Boston Stock Exchange v. State Tax Comm’n, supra, at 331-332. Consequently., to accept appellants’ theory and invalidate the Montana tax solely because most of Montana’s coal is shipped across the very state borders that ordinarily are to be considered irrelevant would require a significant and, in our view, unwarranted departure from the rationale of our prior discrimination cases.
Furthermore, appellants’ assertion that Montana may not “exploit” its “monopoly” position by exporting tax burdens to other States, cannot rest on a claim that there is need to protect the out-of-state Consumers of Montana coal from discriminatory tax treatment. As previously noted, there is no real discrimination in this case; the tax burden is borne according to the amount of coal consumed and not according to any distinction between in-state and out-of-state consumers. Rather, appellants assume that the Commerce Clause gives residents of one State a right of access at “reasonable” prices to resources located in another State that is richly endowed with such resources, without regard to whether and on what terms residents of the resource-rich State have access to the resources. We are not convinced that the Commerce Clause, of its own force, gives the residents of one State the right to control in this fashion the terms of resource development and depletion.in a sister State. Cf. Philadelphia v. New Jersey, supra, at 626.
In any event, appellants’ discrimination theory ultimately collapses into their claim that the Montana tax is invalid under the fourth prong of the Complete Auto Transit test: that the tax is not “fairly related to the services provided by the State.” 430 U. S., at 279. Because appellants concede that Montana may impose some severance tax on coal mined in the State, the only remaining foundation for their discrimination theory is a claim that the tax burden borne by the out-of-state consumers of Montana coal is excessive. This is, of course, merely a variant of appellants’ assertion that the Montana tax does not satisfy the “fairly related” prong of the Complete Auto Transit test, and it is to this contention that we now turn.
Appellants argue that they are entitled to an opportunity to prove that the amount collected under the Montana tax is not fairly related to the additional costs the State incurs because of coal mining. Thus, appellants’ objection is to the rate of the Montana tax, and even then, their only complaint is that the amount the State receives in taxes far exceeds the value of the services provided to the coal mining industry. In objecting to the tax on this ground, appellants may be assuming that the Montana tax is, in fact, intended to reimburse the State for the cost of specific services furnished to the coal mining industry. Alternatively, appellants could be arguing that a State’s power to tax an activity connected to interstate commerce cannot exceed the value of the services specifically provided to the activity. Either way, the premise of appellants’ argument is invalid. Furthermore, appellants have completely misunderstood the nature of the inquiry under the fourth prong of the Complete Auto Transit test.
The Montana Supreme Court held that the coal severance tax is “imposed for the general support of the government.” -Mont., at-, 615 P. 2d, at 856, and we have no reason to question this characterization of the Montana tax as a general revenue tax. Consequently, in reviewing appellants’ contentions, we put to one side those cases in which the Court reviewed challenges to “user” fees or “taxes” that were designed and defended as a specific charge imposed by the State for the use of state-owned or state-provided transportation or other facilities and services. See, e. g., Evans ville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U. S. 707 (1972); Clark v. Paul Cray, Inc., 306 U. S. 583 (1939); Ingels v. Morf, 300 U. S. 290 (1937).
This Court has indicated that States have considerable latitude in imposing general revenue taxes. The Court has, for example, consistently rejected claims that the Due Process Clause of the Fourteenth Amendment stands as a barrier against taxes that are “unreasonable” or “unduly burdensome.” See, e. g., Pittsburgh v. Alco Parking Corp., 417 U. S. 369 (1974); Magnano Co. v. Hamilton, 292 U. S. 40 (1934); Alaska Fish Salting & By-Products Co. v. Smith, 255 U. S. 44 (1921). Moreover, there is no requirement under the Due Process Clause that the amount of general revenue taxes collected from a particular activity must be reasonably related to the value of the services provided to the activity. Instead, our consistent rule has been:
“Nothing is more familiar in taxation than the imposition of a tax upon a class or upon individuals who enjoy no direct benefit from its expenditure, and who are not responsible for the condition to be remedied.
“A tax is not an assessment of benefits. It is, as we have said, a means of distributing the burden of the cost of government. The only benefit to which the taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes. Any other view would preclude the levying of taxes except as they are used to compensate for the burden on those who pay them, and would involve abandonment of the most fundamental principle of government — that it exists primarily to provide for the common good.” Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 521-523 (1937) (citations and footnote omitted).
See St. Louis & S. W. R. Co. v. Nattin, 277 U. S. 157, 159 (1928); Thomas v. Gay, 169 U. S. 264, 280 (1898).
There is no reason to suppose that this latitude afforded the States under the Due Process Clause is somehow divested by the Commerce Clause merely because the taxed activity has some connection to interstate commerce; particularly when the tax is levied on an activity conducted within the State. “The exploitation by foreign corporations [or consumers] of intrastate opportunities under the protection and encouragement of local government offers a basis for taxation as unrestricted as that for domestic corporations.” Ford Motor Co. v. Beauchamp, 308 U. S. 331, 334-335 (1939); see also Ott v. Mississippi Valley Barge Line Co., 336 U. S. 169 (1949). To accept appellants’ apparent suggestion that the Commerce Clause prohibits the States from requiring an activity connected to interstate commerce to contribute to the general cost of providing governmental services, as distinct from those costs attributable to the taxed activity, would place such commerce in a privileged position. But as we recently reiterated, “‘[i]t was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing business.’ ” Colonial Pipeline Co. v. Traigle, 421 U. S. 100, 108 (1975), quoting Western Live Stock v. Bureau of Revenue, 303 U. S., at 254. The “just share of state tax burden” includes sharing in the cost of providing “police and fire protection, the benefit of a trained work force, and The advantages of a civilized society.’.” Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U. S. 207, 228 (1980), quoting Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 445 (1979). See Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., 435 U. S., at 750-751; id., at 764 (Powell, J., concurring in part and concurring in result); General Motors Corp. v. Washington, 377 U. S. 436, 440-441 (1964).
Furthermore, there can be no question that Montana may constitutionally raise general revenue by imposing a'severance tax on coal mined in the State. The entire value of the coal, before transportation, originates in the State, and mining of the coal depletes the resource base and wealth of the State, thereby diminishing a future source of taxes and economic activity. Cf. Maryland v. Louisiana, 451 U. S., at 758-759. In many respects, a severance tax is like a real property tax, which has never been doubted as a legitimate means of raising revenue by the situs State (quite apart from the right of that or any other State to tax income derived from use of the property). See, e. g., Old Dominion S.S. Co. v. Virginia, 198 U. S. 299 (1905); Western Union Telegraph Co. v. Missouri ex rel. Gottlieb, 190 U. S. 412 (1903); Postal Telegraph Cable Co. v. Adams, 155 U. S. 688 (1895). When, as here, a general revenue tax does not discriminate against interstate commerce and is apportioned to activities occurring within the State, the State “is free to pursue its own fiscal policies, unembarrassed by the Constitution, if by the practical operation of a tax the state has exerted its power in relation to opportunities which it has given, to protection which it has afforded, to benefits which it has conferred by the fact of being an orderly, civilized society.” Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444 (1940). As we explained in General Motors Corp. v. Washington, supra, at 440-441:
“[T]he validity of the tax rests upon whether the State is exacting a constitutionally fair demand for that aspect of interstate commerce to which it bears a special relation. For our purposes, the decisive issue turns on the operating incidence of the tax. In other words, the question is whether the State has exerted its power in proper proportion to appellant’s activities within the State and to appellant’s consequent enjoyment of the opportunities and protections which the State has afforded.... As was said in Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444 (1940), ‘[t]he simple but controlling question is whether the state has given anything for which it can ask return.’ ”
The relevant inquiry under the fourth prong of the Complete Auto Transit test is not, as appellants suggest, the amount of the tax or the value of the benefits allegedly bestowed as measured by the costs the State incurs on account of the taxpayer’s activities. Rather, the test is closely connected to the first prong of the Complete Auto Transit test. Under this threshold test, the interstate business must have a substantial nexus with the State before any tax may be levied on it. See National Bellas Hess, Inc. v. Illinois Revenue Dept., 386 U. S. 753 (1967). Beyond that threshold requirement, the fourth prong of the Complete Auto Transit test imposes the additional limitation that the measure of the tax must be reasonably related to the extent of the contact, since it is the activities or presence of the taxpayer in the State that may properly be made to bear a “just share of state tax burden,” Western Live Stock v. Bureau of Revenue, 303 U. S., at 254. See National Geographic Society v. California Board of Equalization, 430 U. S. 551 (1977); Standard Pressed Steel Co. v. Washington Revenue Dept., 419 U. S. 560 (1975). As the Court explained in Wisconsin v. J. C. Penney Co., supra, at 446 (emphasis added), “the incidence of the tax as well as its measure [must be] tied to the earnings which the State... has made possible, insofar as government is the prerequisite for the fruits of civilization for which, as Mr. Justice Holmes was fond of saying, we pay taxes.”
Against this background, we have little difficulty concluding that the Montana tax satisfies the fourth prong of the Complete Auto Transit test. The “operating incidence” of the tax, see General Motors Corp. v. Washington, 377 U. S., at 440-441, is on the mining of coal within Montana. Because it is measured as a percentage of the value of the coal taken, the Montana tax is in “proper proportion” to appellants’ activities within the State and, therefore, to their “consequent enjoyment of the opportunities and protections which the State has afforded” in connection with those activities. Id., at 441. Cf. Nippert v. Richmond, 327 U. S., at 427. When a tax is assessed in proportion to a taxpayer’s activities or presence in a State, the taxpayer is shouldering its fair share of supporting the State’s provision of “police and fire protection, the benefit of a trained work force, and 'the advantages of a civilized society.’ ” Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U. S., at 228, quoting Japan Line, Ltd. v. County of Los Angeles, 441 U. S., at 445.
Appellants argue, however, that the fourth prong of the Complete Auto Transit test must be construed as requiring a factual inquiry into the relationship between the revenues generated by a tax and costs incurred on account of the taxed activity, in order to provide a mechanism for judicial disapproval under the Commerce Clause of state taxes that are excessive. This assertion reveals that appellants labor under a misconception about a court’s role in cases such as this. The simple fact is that the appropriate level or rate of taxation is essentially a matter for legislative, and not judicial, resolution. See Helson & Randolph v. Kentucky, 279 U. S. 245, 252 (1929); cf. Pittsburgh v. Alco Parking Corp., 417 U. S. 369 (1974); Magnano Co. v. Hamilton, 292 U. S. 40 (1934). In essence, appellants ask this Court to prescribe a test for the validity of state taxes that would require state and federal courts, as a matter of federal constitutional law, to calculate acceptable rates or levels of taxation of activities that are conceded to be legitimate subjects of taxation. This we decline to do.
In the first place, it is doubtful whether any legal test could adequately reflect the numerous and competing economic, geographic, demographic, social, and political considerations that must inform a decision about an acceptable rate or level of state taxation, and yet be reasonably capable of application in a wide variety of individual cases. But even apart from the difficulty of the judicial undertaking, the nature of the factfinding and judgment that would be required of the courts merely reinforces the conclusion that questions about the appropriate level of state taxes must be resolved through the political process. Under our federal system, the determination is to be made by state legislatures in the first instance and, if necessary, by Congress, when particular state taxes are thought to be contrary to federal interests. Cf. Mobil Oil Corp. v. Commissioner of Taxes, 445 U. S., at 448-449; Moorman Mfg. Co. v. Bair, 437 U. S., at 280.
Furthermore, the reference in the cases to police and fire protection and other advantages of civilized society is not, as appellants suggest, a disingenuous incantation designed to avoid a more searching inquiry into the relationship between the value of the benefits conferred on the taxpayer and the amount of taxes it pays. Rather, when the measure of a tax is reasonably related to the taxpayer’s activities or presence in the State — from which it derives some benefit such as the substantial privilege of mining coal — the taxpayer will realize, in proper proportion to the taxes it pays, “[t]he only benefit to which the taxpayer is constitutionally entitled...[:] that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes.” Carmichael v. Southern Coal & Coke Co., 301 U. S., at 522. Correspondingly, when the measure of a tax bears no relationship to the taxpayers’ presence or activities in a State, a court may properly conclude under the fourth prong of the Complete Auto Transit test that the State is imposing an undue burden on interstate commerce. See Nippert v. Richmond, 327 U. S., at 427; cf. Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157 (1954). We are satisfied that the Montana tax, assessed under a formula that relates the tax liability to the value of appellant coal producers’ activities within the State, comports with the requirements of the Complete Auto Transit test. We therefore turn to appellants’ contention that the tax is invalid under the Supremacy Clause.
Ill
A
Appellants contend that the Montana tax, as applied to mining of federally owned coal, is invalid under the Supremacy Clause because it “substantially frustrates” the purposes of the Mineral Lands Leasing Act of 1920, ch. 85, 41 Stat. 437, 30 U. S. C. § 181 et seg. (1976 ed. and Supp. Ill) (1920 Act), as amended by the Federal Coal Leasing Amendments Act of 1975, Pub. L. 94-377, 90 Stat. 1083 (1975 Amendments). Appellants argue that under the 1920 Act, the “economic rents” attributable to the mining of coal on federal land — i. e., the difference between the cost of production (including a reasonable profit) and the market price of the coal— are to be captured by the Federal Government in the form of royalty payments from federal lessees. The payments thus received are then to be divided between the States and the Federal Government according to a formula prescribed by the Act. In appellants’ view, the Montana tax seriously undercuts and disrupts the 1920 Act’s division of revenues between the Federal and State Governments by appropriating directly to Montana a major portion of the “economic rents.” Appellants contend the Montana tax will alter the statutory scheme by causing potential coal producers to reduce the amount they are willing to bid in royalties on federal leases.
As an initial matter, we note that this argument rests on a factual premise — that the principal effect of the tax is to shift a major portion of the relatively fixed “economic rents” attributable to the extraction of federally owned coal from the Federal Treasury to the State of Montana — that appears to be inconsistent with the premise of appellants’ Commerce Clause claims. In pressing their Commerce Clause arguments, appellants assert that the Montana tax increases the cost of Montana coal, thereby increasing the total amount of “economic rents,” and that the burden of the tax is borne by out-of-state consumers, not the Federal Treasury. But even assuming that the Montana tax may reduce royalty payments to the Federal Government under leases executed in Montana, this fact alone hardly demonstrates that the tax is inconsistent with the 1920 Act. Indeed, appellants’ argu-ment is substantially undermined by the fact that in § 32 of the 1920 Act, 41 Stat. 450, 30 U. S. C. § 189, Congress expressly authorized the States to impose severance taxes on federal lessees without imposing any limits on the amount of such taxes. Section
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_usc2
|
26
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 28. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
William Brady TRIGG, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 17587.
United States Court of Appeals, Seventh Circuit.
July 30, 1970.
John A. Waters, Chicago, 111., for petitioner-appellant.
Thomas A. Foran, U. S. Atty., Kenneth R. Siegan, Asst. U. S. Atty., Chicago, 111., for respondent-appellee; John Peter Lulinski, Jeffrey Cole, Michael B. Cohen, Asst. U. S. Attys., of counsel.
Before SWYGERT, Chief Judge, and CUMMINGS and KERNER, Circuit Judges.
CUMMINGS, Circuit Judge.
Petitioner and Weldon Burris were named in a six-count indictment charging narcotics offenses. Three counts alleged that they sold heroin to William B. Turnbou on July 20, July 29, and August 27, 1964, in Chicago, Illinois, without the requisite order blank, in violation of 26 U.S.C. § 4705(a). The other three counts charged them with knowing possession of heroin on the same occasions, in violation of 21 U.S.C. § 174. Trigg was convicted on all six counts after a jury trial. His conviction was affirmed on appeal, United States v. Trigg, 392 F.2d 860 (7th Cir. 1968), certiorari denied, 391 U.S. 961, 88 S.Ct. 1863, 20 L.Ed.2d 874.
The present appeal is from an order denying Trigg’s petition for post-conviction relief under 28 U.S.C. § 2255, seeking vacation of his sentence. Petitioner offered four grounds for this relief in the district court. On appeal, however, he challenges primarily the introduction into evidence of rebuttal testimony offered by agent Turnbou relating to events allegedly occurring after termination of the joint venture which was the subject of the instant indictment.
The testimony at issue comprised the Government’s rebuttal to the direct testimony of Trigg’s codefendant, Weldon Burris, which was received into evidence without objection from either the Government or defendant Trigg’s counsel. Burris first denied any role in any of the alleged sales of narcotics to agent Turnbou. He testified that he acted as an unwitting errand boy for one Rupert Kelly, the Government’s informer. He also disavowed any relations with Trigg pertaining to the sale of narcotics to Turnbou. According to Burris’ recollection, Trigg was only involved in dealing in clothes and jewelry, not narcotics.
Burris undertook to narrate the occurrences of August 28, 1964, the day after the date of the final sale mentioned in the indictment. On that date, at the request of agent Turnbou, he arranged a meeting between Trigg and Turnbou in Trigg’s automobile regarding a purchase of clothing by Turnbou. During that meeting, Turnbou inquired of Trigg concerning the possible purchase of narcotics. According to Burris, Trigg responded: “I don’t know what the devil you are talking about,” and “You got the wrong man. I don’t deal in that stuff." Trigg then stopped the ear and ordered Turnbou to “[g]et out.”
After conclusion of the Government’s cross-examination of Burris, both defendants rested. Trigg, who had been offered an opportunity to cross-examine his codefendant prior to the Government’s cross-examination, declined to do so. He did not take the stand himself and did not call any witnesses in his own behalf but relied upon the exculpatory testimony given by Burris. In rebuttal of Burris' testimony, the prosecution recalled agent William Turnbou.
Turnbou described the events of August 28, 1964, and related a version of the meeeting with Burris and Trigg which completely contradicted Burris’ testimony. He testified that Burris called upon him to complete a sale of narcotics, stating that “Bill” [Trigg] was waiting and that Turnbou would get the drugs “after you see Bill.” The two men then joined Trigg in his car and drove off. After driving around the block, Trigg reportedly drew a ballpoint pen and wrote on the glove compartment, looking at Turnbou, “[t]he man” (indicating a narcotics agent). Trigg then returned to Burris’ motel and told Turnbou to get out of the automobile. After indicating that he would call later, Trigg drove off.
During the course of this testimony, Trigg’s counsel vigorously objected to the harmful implications of the evidence as to Trigg. In response to the claim by Trigg’s counsel that the testimony of agent Turnbou was improper rebuttal, the prosecution argued that it was necessary to refute Burris’ testimony and indicated that it was limited to that purpose. Additionally, the Government urged that the matters elicited would be admissible against Trigg as well as Burris in the event that a joint venture was established. The objections were overruled and the evidence admitted.
At the conclusion of the evidence, the parties submitted requests for instructions. The Government included an instruction on the joint venture theory. Each defendant’s counsel lodged a general objection to the instruction and made several suggestions concerning the specific form of the instruction. None of the discussion was directed toward the special problems posed by the rebuttal testimony of agent Turnbou. On his direct appeal from the ensuing conviction, Trigg failed to challenge the evidentiary rulings or the instructions. Petitioner now raises these matters as violative of his right to confrontation under the Sixth Amendment and his Fifth Amendment right to Due Process.
Petitioner’s Sixth Amendment Claim
Petitioner first argues that the hearsay statements of Burris related by Turnbou on rebuttal were inadmissible as to Trigg. Since these statements were contradictory to the story told by Burris on direct examination, petitioner claims he could not cross-examine Burris regarding the truth of those statements. This inability to cross-examine the source of the statements allegedly deprived Trigg of his right to confront the witness against him under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934. We find this contention without merit.
Regardless of the inadmissibility against Trigg of these hearsay statements, petitioner suffered no infringement of his constitutional right to confront and cross-examine the witnesses against him. Misapplication of an exception to the hearsay rule which leads to the erroneous admission of evidence in a criminal trial “does not lead to the automatic conclusion that confrontation rights have been denied.” California v. Green, 399 U.S. 149, 156, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489. Unlike Bruton and Douglas, Trigg was never barred from cross-examining the source of any incriminating hearsay evidence. See United States ex rel. Long v. Pate, 418 F.2d 1028, 1030 (7th Cir. 1970); Santoro v. United States, 402 F.2d 920, 923-924 (9th Cir. 1968); Harris v. Smith, 418 F.2d 899 (6th Cir. 1969); United States v. Marine, 413 F.2d 214, 217-218 (7th Cir. 1969); Hawkins v. United States, 417 F.2d 1271, 1273 (5th Cir. 1969), certiorari denied, 397 U.S. 914, 90 S.Ct. 917, 25 L.Ed.2d 95; United States v. Weston, 417 F.2d 181, 187 (4th Cir. 1970), certiorari denied, 396 U.S. 1062, 90 S.Ct. 756, 24 L.Ed.2d 755. Petitioner initially waived cross-examination of his codefendant regarding these matters and rested his defense. After Turnbou’s contradictory testimony, no effort was made to procure further testimony by Burris either in denial or explanation of the statements attributed to him. Petitioner’s failure to examine his codefendant was the product of his own inaction and not the result of governmental improprieties.
Our conclusion that no constitutional infringement can be traced to Turnbou’s testimony is bolstered by our scrutiny of the content and context of that testimony. Turnbou’s rebuttal must be judged in light of the previous direct testimony of Burris who voluntarily raised the matter of the August 28 events. Burris’ version of those events, of tenuous relevancy in any event, was introduced to support his claims that no joint venture for illicit sales existed between himself and Trigg, and that he was lacking any guilty knowledge or intent. Inquiry thus having been initiated by the defense without objection by Trigg, the Government was clearly entitled to impeach and contradict the exculpatory testimony which benefited Trigg equally with Burris. Burris’ direct testimony had already placed Trigg as a participant in the contemplated deal. The prosecution introduced contradictory evidence as to the commercial purpose of the meeting held that day. Where Burris testified that the object of the meeting was the sale of clothing, Turnbou indicated that the commodity involved was “15 ounces” of illicit drugs. The necessary effect of the direct testimony of Turnbou regarding the deal was to inculpate Trigg, just as the necessary consequence of Burris’ earlier statements had been to exculpate his codefendant. The only hearsay statements attributed
to Burris which directly mentioned Trigg were either neutral or a necessary means of proving the illegal intent of that party. They were thus largely outside the coverage of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, or United States v. Guajardo-Melendez, 401 F.2d 35, 38-39 (7th Cir. 1968). See United States v. Rizzo, 418 F.2d 71, 80 (7th Cir. 1969); United States v. Lawler, 413 F.2d 622, 628 (7th Cir. 1969); United States v. Lipowitz, 407 F.2d 597, 602-603 (3d Cir. 1969), certiorari denied, 395 U.S. 946, 89 S.Ct. 2026, 23 L.Ed.2d 466; Santoro v. United States, 402 F.2d 920, 923 (9th Cir. 1968).
Nor does Section 2255 permit petitioner to redress any failure of the trial judge properly to limit the effect of Turnbou’s rebuttal. In Sunal v. Large, 332 U.S. 174, 179, 67 S.Ct. 1588, 91 L.Ed. 1982, the Court indicated that Section 2255 did not create additional channels of review of “errors of law committed by the trial court” such as “errors in trial procedure which do not cross the jurisdictional line.” As noted in Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, “instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. ‘A defendant is entitled to a fair trial but not a perfect one.’ Lutwak v. United States, 344 U.S. 604, 609, 73 S.Ct. 481, 97 L.Ed. 593.” We find no basis for considering any error in this respect as other than waived by the failure to present it on direct appeal, despite the objections taken at the trial.
Petitioner’s Due Process Claim
Petitioner also attacks the propriety of the procedures followed by the trial judge in submitting the evidence to the jury. Petitioner argues that Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, as well as Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, displays a constitutional distrust of a conditional submission of evidence of guilt to a jury accompanied by cautionary instructions. This principle, he urges, applies to the admission against one defendant of statements of coconspirators where a common scheme or plan of design is being shown. In this case, he contends, the Constitution required an independent determination by the district judge that the evidence established beyond a reasonable doubt that a joint venture existed before the jury could even be allowed to do so. Defendant argues that the judge failed to make any such finding.
The trial judge made an independent determination concerning the reasonability of finding a joint venture when he determined to submit the case to the jury. We need not assume that the judge considered improper evidence in reaching that conclusion. Moreover, the independent factual determination required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, represents the balance of the interests not only of the defendant but also of the prosecution and the judicial system as a whole. The Supreme Court has never indicated that an independent factual determination of threshold questions must be made in every situation. In Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, the Court expressly recognized the viability of cautionary instructions as a means of balancing the conflicting interests.
At petitioner’s trial, the judge submitted the issue of joint venture to the jury with an appropriate instruction. This was the correct procedure under the previous decisions of this Court and was, we believe, constitutionally permissible. Cf. United States v. Bernard, 287 F.2d 715 (7th Cir. 1961), certiorari denied, 366 U.S. 961, 81 S.Ct. 1921, 6 L.Ed.2d 1253; United States v. Lawler, 413 F.2d 622, 628 (7th Cir. 1969).
John A. Waters of the Chicago Bar was appointed to represent petitioner on this appeal. The Court is indeed grateful for his capable efforts on petitioner’s behalf.
The denial of the Section 2255 petition is affirmed.
. The Government has attempted to avoid the application of Bruton and Douglas by arguing that the statements were admissible against Trigg as admissions of a coeonspirator in furtherance of the conspiracy. This is erroneous for two reasons. First, the statements attributed to Burris occurred after completion of the substantive objects of the conspiracy insofar as it related to this indictment and were not in furtherance of the commission or concealment of any of those crimes charged. See United States v. Fellabaum, 408 F.2d 220, 227 (7th Cir. 1969), certiorari denied, 396 U.S. 858, 90 S.Ct. 125, 24 L.Ed.2d 109. In any event, equally applicable in this case is the restriction on the admissibility of rebuttal evidence. Since this transaction was raised by the defense and the testimony of agent Turnbou was introduced to contradict that of Burris, the evidence of the abortive attempt to transfer narcotics on August 28, 1964, was necessarily limited to impeaching the testimony of the defense and could not be considered to substantiate the Government’s ease in chief. See California v. Green, 399 U.S. 149 at notes 4, 5, 6, and 18, 90 S.Ct. 1930.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 28. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_casetyp1_1-3-1
|
K
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
Thomas M. RIVES, Superintendent of the Washington Asylum and Jail, Appellant, v. Harry T. JOHNSON, Appellee.
No. 6264.
United States Court of Appeals for the District of Columbia.
Decided Nov. 5, 1934.
Before MARTIN, Chief Justice, and ROBB, HITZ, and GRO'NER, Associate Justices.
HITZ, Associate Justice.
This appeal relates to an order of the Supreme Court of the District in a habeas corpus proceeding discharging appellee, Johnson, who had been sentenced and committed to jail on June 30, 1933, for violation of the National Prohibition Act (27 USCA), and involves the same question decided this day in Rives v. O’Hearne, 64 App. D. C. 48, 73 F.(2d) 984. For the reasons therein stated, the order discharging appellee is reversed.
Reversed.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
songer_state
|
33
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
Patrick BEARY, Plaintiff-Appellant, v. WEST PUBLISHING COMPANY, Defendant-Appellee.
No. 927, Docket 84-7965.
United States Court of Appeals, Second Circuit.
Argued April 11, 1985.
Decided May 23, 1985.
Patrick Beary, Jamaica, N.Y., pro se.
Laura B. Hoguet, New York City, Vance K. Opperman and James E. Schatz, Opperman & Paquin, Minneapolis, Mn., (White & Case, New York City, of counsel), for defendant-appellee.
Before MANSFIELD, KEARSE and PRATT, Circuit Judges.
MANSFIELD, Circuit Judge.
Patrick Beary, an attorney, appeals from an order and judgment of the Eastern District of New York, I. Leo Glasser, Judge, granting defendant’s motion for summary judgment dismissing Beary’s diversity libel action for $5,000,000 damages based on defendant’s publication of an opinion authored by Judge William D. Friedmann of the Civil Court of the City of New York. We affirm.
The alleged libelous decision giving rise to the present federal suit was rendered in Beary’s favor in a Civil Court action by Estates Roofing Co., Inc., against Beary for a balance of $656 due on a home improvement contract for roof repairs to his house. Upon Beary’s motion at the close of the plaintiff’s evidence in that case Judge Friedmann dismissed the suit on the ground that the roofer who performed the work was not licensed in accordance with New York City’s Administrative Code, § 773-11.0. In his opinion, as filed and forwarded to the New York State Reporter, Judge Friedmann noted that Beary, an attorney, had correctly stated the law to be that a person not properly licensed as a roofer could not collect the balance of the agreed-upon price for roof repairs and that “although the result appears to be unjust the law is the law.” Judge Friedmann further stated that Beary did “not contend that the repairs were not completed in a work manlike [sic] manner” and that the statutory requirement that the roofer possess a proper license “cannot be relaxed although a party should be paid for his completed and satisfactory work as should the palintiff [sic] [Estate Roofing Co., Inc.] before this Court.”
The Friedmann opinion was forwarded to the New York State Reporter, which sent it to West Publishing Company (“West”), the defendant in this action, which on August 24, 1983, published it as received (with the correction of a single typographical error) in its paperbound Advance Sheet edition. Beary then moved to vacate Judge Friedmann’s opinion and asked West to withhold publication of the opinion in bound volumes, contending that it gratuitously portrayed him, a lawyer, in an unfavorable light as a “dead beat” who had used a legal technicality to avoid a payment due. He claimed that, if Judge Friedmann had not decided the ease on the legal ground, he would have shown that Estates Roofing Co. had been guilty of poor workmanship.
Judge Friedmann denied Beary’s motion to vacate the opinion but requested the New York State Reporter to eliminate Beary’s name from the opinion, which was done by substituting “Homeowner” for “Beary.” By letter dated November 7, 1983, the New York State Reporter advised West of Judge Friedmann’s order. Thereafter, both the official bound New York State report, see 121 Misc.2d 279, and the bound West report, see 464 N.Y.S.2d 951, published the opinion with “Homeowner” as the defendant and without any mention of Beary.
Notwithstanding this background, on August 6, 1984, Beary filed the present federal action claiming that West’s paperback Advance Sheet copy of the Friedmann opinion was libelous and defamatory since it falsely and maliciously represented him, a lawyer, as “conniving, contemptible, a swindler, trickster, deceiver, a ‘deadbeat’ and a ‘shyster’ and a person to be avoided, shunned and distrusted, that by reason of his ‘knowledge of the law,’ Beary tricked and deceived the Estates Roofing Company out of hundreds of dollars”. It alleged that there was no factual basis for the opinion’s statements that the satisfactory completion of the roofing work was undisputed and that the roofer should be paid for his completed and satisfactory work. The complaint further alleged that West was negligent in publishing the Advance Sheet edition of the opinion.
Judge Glasser in open court granted West’s motion for summary judgment on the grounds that Judge Friedmann’s opinion was not defamatory and that in any event West was “absolutely privileged under Section 74 of the Civil Rights Law.” From this decision Beary appeals.
Discussion
Beary’s initial contention, that West by filing an answer waived its right to move to dismiss the complaint or, in the alternative, for summary judgment must be rejected out of hand as frivolous. Although Fed.R.Civ.P. 12(b) encourages the responsive pleader to file a motion to dismiss before pleading, nothing in the rule prohibits the filing of a motion to dismiss with an answer and Fed.R.Civ.P. 56(b) expressly authorizes a party to file a motion for summary judgment “at any time.” A plaintiff is not prejudiced by the filing of such motions simultaneously with an answer, as was done here, and that very filing puts the plaintiff on notice that the defendant is not waiving its right to assert the motions.
We move then to the central issue, which is whether § 74 of the New York Civil Rights Law provides an absolute defense to West. Section 74 provides in pertinent part:
“A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published.”
Upon its face the statute confers an absolute immunity, regardless of proof of malice or negligence, upon any person who publishes a “fair and true report” of a judicial opinion. The purpose of the statute in part is to implement the public policy in favor of encouraging publication and dissemination of judicial decisions and proceedings as being in the public interest. See Lowenschuss v. West Publishing Co., 542 F.2d 180, 185-86 (3rd Cir.1976); Garfield v. Palmieri, 297 F.2d 526, 527 (2d Cir.), cert. denied, 369 U.S. 871, 82 S.Ct. 1139, 8 L.Ed.2d 275 (1962). See also the concurring and dissenting opinion of Justices Mollen and Titone in Gurda v. Orange County Publications Div. of Ottaway Newspapers, Inc., 81 A.D.2d 120, 439 N.Y.S.2d 417 (2d Dept.1981), which on appeal was adopted by the New York Court of Appeals as the basis for its reversal, 56 N.Y.2d 705, 436 N.E.2d 1326, 451 N.Y.S.2d 724 (1982). Justices Mollen and Titone stated:
“The purpose of providing immunity to fair and true reports of judicial proceedings is said to be to encourage the dissemination of information concerning the judicial branch of government and thereby to serve the public interest ‘in having proceedings of courts of justice public, not secret, for the greater security thus given for the proper administration of justice.’ (Lee v. Brooklyn Union Pub. Co., 209 N.Y. 245, 248, 103 N.E. 155, see, also, Shiles v. News Syndicate Co., 27 N.Y.2d 9, 14, 313 N.Y.S.2d 104, 261 N.E.2d 251).” 81 A.D.2d at 131, 439 N.Y.S.2d at 423-24.
Since West’s Advance Sheet publication of Judge Friedmann’s opinion reproduced it precisely as written by the judge, it clearly constituted a “fair and true report” within the meaning of § 74.
Beary, relying on the 42-year-old decision of the New York Court of Appeals in Murray v. Brancato, 290 N.Y. 52, 48 N.E.2d 257 (1943), contends that the immunity granted by § 74 extends only to the “official” reporter of judicial decisions, in this case the New York State Reporter, and not to West, which is an unofficial reporter. In Brancato, a 4-3 decision, the court held that a New York state judge, while absolutely privileged when he writes an opinion and sends it to the official reporter, has only a qualified privilege, defeasible upon proof of actual malice, when he sends it to West, an unofficial reporter. The majority, however, declined to rule on whether § 74 (then § 1907 of the N.Y.Code of Civil Procedure and § 337 of the N.Y.Civil Practice Act), conferred absolute immunity on the publisher of a fair and true report of judicial proceedings, pointing out that there “may be doubt too whether the statute is intended to apply to the publication by a judge of an opinion written by himself,” 290 N.Y. at 59, 48 N.E.2d at 260 (emphasis supplied), and that in any event the statutory question could not be considered because it had not been pleaded as a defense.
Our review of the decisional law since Brancato was decided satisfies us beyond any serious question that, whatever doubts may have existed in 1943, § 74 grants absolute immunity to the publisher of a true report of a New York state court judicial opinion, whether the reporter is classified as “official” or “unofficial.” See Holy Spirit Ass’n for Unification of World Christianity v. New York Times Co., 49 N.Y.2d 63, 399 N.E.2d 1185, 424 N.Y.S.2d 165 (1979); Gurda v. Orange County Publications Div. of Ottaway Newspapers Inc., supra; Nemerover v. Held, 54 A.D.2d 561, 387 N.Y.S.2d 14 (2nd Dept.1976) (“[Djefendants were absolutely privileged in publishing the transcript of the September 20, 1974 proceeding (see Civil Rights Law, § 74).”); see also Lowenschuss v. West Publishing Co., supra; Garfield v. Palmieri, supra.
Beary further argues that West is not entitled to § 74 immunity because it received the Estate Roofing Co. opinion directly from Judge Friedmann rather than from the official New York State Reporter. We disagree. For reasons already stated, since the published West report was “fair and true” the route by which it reached West is immaterial. Secondly, the affidavit of Arnold O. Ginnow, West’s Vice-President and Editor-in-Chief, reveals that the Estates Roofing Co. opinion received by West bore the number “3990” on the last page, which is the number assigned by the official New York State Reporter to the opinion, showing that it was received from the latter. Despite his contrary claims, Beary has neither come forward with evidence supporting them or refuting the Gin-now affidavit, as required by Fed.R.Civ.P. 56(e), nor sought discovery under Fed.R.Civ.P. 56(f).
The judgment of the district court is affirmed. In view of the complete frivolousness of this appeal we award to the appellee double costs and $1,000 damages against appellant pursuant to F.R.A.P. 38. See also 28 U.S.C. §§ 1912, 1927.
. Minnesota, where West’s reports are published, likewise grants an absolute privilege to reports of judicial proceedings. Minn.Stat.Ann. § 609.765, subdiv. 3(4); Schuster v. U.S. News and World Report, Inc., 602 F.2d 850, 854 (8th Cir.1979).
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_appnatpr
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0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
INDEPENDENCE SHARES CORPORATION et al. v. DECKERT et al. PENNSYLVANIA CO. FOR INSURANCES ON LIVES AND GRANTING ANNUITIES v. SAME.
Nos. 7146, 7147.
Circuit Court of Appeals, Third Circuit.
Nov. 11, 1939.
Rehearing Denied Dee. 20, 1939.
Walter Biddle Saul, Francis H. Bohlen, Jr., and Saul, Ewing, Remick & Saul, all of Philadelphia, Pa., for appellant Pennsylvania Co. for Insurances on Lives and Granting Annuities.
Robert F. Irwin, Jr., George M. Kevlin, Joseph Whetstone, Harris J. Latta, Jr., Donahue, Irwin, Merritt & Gest, and Townsend, Elliott & Munson, all of Philadelphia, Pa., for appellants Independence Shares Corporation and others.
Harry Shapiro, of Philadelphia, Pa., for appellees.
Before BIGGS, CLARK, and JONES, Circuit Judges.
BIGGS, Circuit Judge.
A bill of complaint was filed in the court below by the appellees against the appellant, Independence Shares Corporation, a Pennsylvania corporation, and certain affiliated companies. The appellees purchased Capital Savings Plan Contract Certificates issued by Capital Savings Plan, Inc., and have alleged in their bill of complaint that these were sold to them by the fraud and misrepresentations of Capital Savings Plan, Inc. by the use and means of instruments of transportation or communication in interstate commerce and by the use of the mails. At the time of the sales, Independence Shares Corporation was a wholly owned subsidiary of Capital Savings Plan, Inc. Upon December 31, 1938, however, Capital Savings Plan, Inc. and Independence Shares, Inc. merged and the appellant, the resultant corporation, acquired all of the assets and assumed all of the liabilities of Capital Savings Plan, Inc.
The bill of complaint also alleges that the assets of Independence Shares Corporation are being wasted and dissipated and that that corporation is insolvent. The bill prays the appointment of a receiver for the assets of the corporation who shall ascertain and adjudicate the claims of creditors and shall liquidate and dissolve the company. The complaint also asks for certain injunctive relief which we will discuss at a later point in this opinion. The bill is cast in the form of a class suit brought by the appellees not only on their own behalf but also for the benefit of all certificate holders similarly situated.
The court below denied motions to dismiss the bill of complaint made upon the ground that it stated no cause of action and that the court was without jurisdiction, and referred the case to a master to hear and report upon the question of solvency or insolvency of the appellant. This order, 27 F.Supp. 763, filed May 18, 1939, has been appealed from by Independence Shares Corporation.
The contract certificates purchased by the appellees called for payments to be made by the subscribers. These payments were made by the subscribers to the other appellant, The Pennsylvania Company for Insurances on Lives and Granting of Annuities as trustee. The Pennsylvania Company made certain deductions from the sums paid to it and invested the balance as directed by Independence Shares Corporation in Independence Trust Shares for the. accounts of the respective certificate holders. Independence Shares Corporation created these trust shares by itself purchasing the shares of stock of certain specified corporations. The trust shares represent interests in the stocks so bought. The Pennsylvania Company in turn purchased aliquot portions of the trust shares and holds its purchases as we have stated for the benefit of the accounts of the certificate holders. At the time of the filing of the bill of complaint a sum of money representing charges made by the appellant for the reinvestment of funds was in the possession of The Pennsylvania Company. By an order entered June 2, 1939, the court below enjoined The Pennsylvania Company from paying over the sum referred to to Independence Shares Corporation or otherwise disposing of it during the pendency of the action. The Pennsylvania Company has appealed from this order.
Since the two appeals grow out of the same set of facts, we will dispose of them in one opinion.
The complainants with one exception are citizens of Pennsylvania. The jurisdiction of the court below cannot be sustained therefore upon diversity of citizenship. Lee v. Lehigh Valley Coal Company, 267 U.S. 542, 45 S.Ct. 385, 69 L.Ed. 782; Salem Trust Co. v. Manufacturers. Finance Company, 264 U.S. 182, 44 S.Ct. 266, 68 L.Ed. 628, 31 A.L.R. 867; Osthaus v. Button, 3 Cir., 70 F.2d 392. Nor does the amount in controversy exceed the sum of $3,000. Section 24(1) of the Judicial Code as amended, 28 U.S.C.A. § 41(1). The claims of the appellees may not be aggregated and the claim of no one appellee amounts to more than $2,000. Moore’s Federal Practice, Vol. 2, Section 23.08; Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817; Lion Bonding & Surety Co. v. Karatz, 262 U.S. 77, 43 S.Ct. 480, 67 L. Ed. 871.
In our opinion, none the less, the court below had jurisdiction of the controversy by virtue of the provisions of Sections 12 (2) and 22(a) of the Securities Act of 1933 (May 27, 1933, c. 38, Title I, 48 Stat. 84 and 86, 15 U.S.C.A. §§ 771(2) & 77v(a).
Section 22(a) provides that “The district courts of the United States * * * shall have jurisdiction of offenses and violations under this title * * * and, concurrent with State and Territorial courts, of all suits in equity and actions at law brought to enforce any liability or duty created by this title [subchapter]. * * * ”
Section 12(2) of the Act states that “Any person who * * * sells a security * * * by the use of any means or instruments of transportation or communication in interstate commerce or of the mails, by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, * * * and who shall not sustain the burden of proof that he did not know, * * * of such untruth or omission, shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.”
Jurisdiction in this case, however, is not dependent upon diversity of citizenship and amount in controversy. The field which is carved out for the operation of federal jurisdiction by Section 22(a) is “all suits in equity and actions at law brought to enforce any liability or duty created by this title [subchapter].” Since the Act stems from the exercise of federal power under .the commerce clause there is no question raised in the case on the line of power.
Section 12(2) of the Securities Act therefore provides a right to sue in a District Court of the United States for one who has purchased securities upon an untrue statement of a material fact made by the use of any means of transportation.or communication in interstate commerce and that such a suit may be maintained by the aggrieved person in an action at law or by a bill in equity depending upon whether the cause of action is cognizable at law or in equity. At the present time, the remedy of the aggrieved person lies in the “civil action” prescribed by Rule 2 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The nature of the suit, however, remains as specified by Section 12(2). The defrauded person must seek to recover “the consideration” paid by him. The relief given by the section is for a money judgment or for a money decree payable to the individual who has been defrauded.
Section 16 of the Act, 48 Stat. 84, 15 U.S.C.A. § 77p, providing that “The rights and remedies provided by this title [sub-chapter] shall be in addition to any and all other rights and remedies that may exist at law or in equity” does not relate to venue as indicated by the court below or enlarge the remedy given by Section 12(2). Congress by the language employed sought only to make it abundantly clear that it was not pre-empting this field to the federal jurisdiction, thereby prohibiting recovery to defrauded individuals under the law of the states as that existed prior to the passage of the Securities Act.
Since the recovery of the appellees is limited as we have indicated, it follows that The Pennsylvania Company is not a proper party to the suit. The appellees have stated no cause of action against it and indeed have alleged no breach of duty upon its part cognizable under the Securities Act or otherwise. .The injunction against The Pennsylvania Company therefore may not be maintained. Nor does Section 12(2) enlarge the right of the appellees to the appointment' of a receiver for the corporation upon the ground that it is insolvent or its assets are being dissipated. The law in this respect remains as it was. See Pusey & Jones Co. v. Hanssen, 261 U.S. 491, 497, 43 S.Ct. 454, 67 L.Ed. 763, and the authorities there cited. It follows that none-of the prayers of the bill of complaint asking for specific relief may be granted.
The complaint states a cause of action within the purview of Section 12(2) of the Securities Act, however, and ends with a general prayer for relief. Amendment may be made to the complaint pursuant to R.S. § 954, 28 U.S.C.A. § 777, and Rule 15(a) of the Rules of Civil Procedure by limiting this prayer to a demand for money judgment. Such an amendment would be one of form rather than of substance since the complaint sets forth every fact necessary to entitle the appellees to obtain such relief. It is clear from the complaint that the appellees seek the recovery of the consideration paid by them for their contract certificates and by the contents of the complaint Independence Shares Corporation is made fully aware of the charges which it must meet. United States v. Powell, 4 Cir., 93 F.2d 788. See McAndrews v. Chicago, L. S. & E. R. Co., 7 Cir., 162 F. 856. As was stated by the Supreme Court in Maty v. Grasselli Chemical Co., 303 U.S. 197, 200, 58 S.Ct. 507, 509, 82 L.Ed. 745, “Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end.”
The complaint sets forth a cause of action at law rather than in equity, for while Independence Shares Corporation may occupy a fiduciary relationship toward the appellees and the other certificate holders, none the less the action given by Section 12(2) of the Securities Act is one against the seller of the securities for the recovery of money. The type of amendment from equity to law formerly permitted under Equity Rule 22, 28 U.S.C.A following section 723, is no longer necessary in view of Rple 2 of the Rules of Civil Procedure. The complaint as amended will serve as a continuation of the old suit, the filing of the original bill tolling the statute of limitations imposed by section 13 of the Securities Act, 15 U.S.C.A. § 77(m). See Friederichsen v. Renard, 247 U.S. 207, 213, 38 S.Ct. 450, 62 L.Ed. 1075, and the decisions there cited. It must also be borne in mind that under Rule 15(c) of'the Rules of Civil Procedure, an amendment when made relates back to the date of the original pleading.
The question of whether the appellees upon a proper showing might not obtain injunctive relief against Independence Shares Corporation in aid of the remedy supplied to them by Section 12(2) of the Act, is not before us and therefore we do not pass upon it.
In conclusion we state that the appellants contend that Section 12(2) of the Act gives the appellees no right to maintain their suit as a class action. We are unable to agree with this contention. The suit at bar is of the type denominated a “spurious” class suit and may be maintained under Rule 23(a) (3). of the Federal Rules of Civil Procedure. See Moore’s Federal Practice, Vol. 2, p. 2241, paragraph 23.04-(3). In the case at bar numerous persons are interested in common questions of law or fact affecting the several rights of many individuals. Common relief may be sought despite the fact that individuals may recover separate judgments different in amounts. It should be noted that the misrepresentations set forth by the bill are alleged to be common to the sales made by the agents of the appellant company and of Capital Savings Plan, Inc. to the appellees and the other subscribers upon whose behalf the suit was instituted. We do not at this time express an opinion upon the question whether subscribers who are not now named as parties plaintiff may intervene in the cause in view of the statute of limitations set up in the Act.
Accordingly the orders appealed from are reversed and the cause is remanded with directions to proceed in conformity with this opinion.
Moore’s Federal Practice states in respect to “spurious” class suits: “This is a permissive joinder device. The presence of numerous persons interested in a common question of law or fact warrants - its use by persons desiring to clean up a litigious situation.”
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Frank P. MORANO, Appellant, v. U. S. NAVAL HOSPITAL.
No. 18860.
United States Court of Appeals, Third Circuit.
Argued Nov. 19, 1970.
Decided Feb. 18, 1971.
Nolan N. Atkinson, Zack & Myers, Philadelphia, Pa., for appellant.
Barry W. Kerchner, Asst. U.S. Atty., Philadelphia, Pa. (Louis C. Bechtle, U.S.. Atty., Philadelphia, Pa., on the brief), for appellee.
Before HASTIE, Chief Judge, and McLAUGHLIN and ADAMS, Circuit Judges.
OPINION OF THE COURT
HASTIE, Chief Judge.
This is an action for negligent personal injury brought under the Federal Tort Claims Act, 28 U.S.C. ch. 171. The complaint, alleging that the plaintiff was injured through the negligence of a government doctor on August 8, 1967, was filed on August 7, 1969. The “United States Naval Hospital,” admittedly not a suable party, rather than the United States was named as the defendant. Process was served upon the Attorney General and the United States Attorney of the District.
The government filed a motion to dismiss and thereafter, by motion filed February 4, 1970, the plaintiff sought to correct his original error by substituting the United States as the party defendant. But because Rule 15(c) provides that an amendment changing the party defendant shall relate back to the original filing “within the period provided by law for commencing the action,” the court denied the motion to amend and granted the motion to dismiss the complaint, apparently with prejudice.
We do not reach the question of the application and interpretation of Rule 15(c) upon which the district court focused. For resort to that rule was bottomed on an assumption that the statute of limitations expired two years after August 8, 1967, the date of injury. The provisions of the Tort Claims Act and the present record do not justify that assumption.
In 1966, before the occurrence upon which this action is based, Congress amended the applicable statute of limitations, 28 U.S.C. § 2401(b), to read as follows:
“A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”
It will be observed that it is the presentation of a claim in writing to the appropriate agency, not the filing of a suit, that must be done within two years.
The committee report accompanying this proposed amendment explained the reason for it. “This section amends the provisions of section 2401, the limitations section, to conform the section to the amendments added by the bill.” S. Rep. No. 1327, 89th Cong., 2d Sess., 1966 U.S.Code Cong. & Ad.News 2515, 2522. In particular, it was intended to conform with the amended 28 U.S.C.A. § 2675(a), which states that an action such as that involved in the instant case:
“shall not be instituted * * * unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.”
Both of these amendments are applicable to a claim, such as plaintiff’s, accruing six months or more after July 18, 1966. Pub.L. 89-506, sec. 10, 80 Stat. 306, 308.
The record as it has reached this court is unclear and shows disputed questions of fact concerning the details of plaintiff’s administrative claim, and it will therefore be necessary to remand the case for appropriate factual determinations. Apparently plaintiff first attempted to present his claim on September 10, 1968, but it is denied that this claim was ever received by the proper authorities. In oral argument, Government counsel stated, as had been alleged in the Government’s motion to dismiss, that the claim was first filed on March 24, 1969, and that no determination had been made upon that claim as of the time of the institution of this suit.
Should the court on remand find that the claim of September 10, 1968 was properly “presented * * * to the appropriate Federal agency,” this action would not be barred by the statute of limitations. For § 2675(a) empowers a claimant to treat the agency’s failure to act within six months as “a final denial of the claim.” The six months having expired March 10, 1969, nothing in § 2401 barred plaintiff from instituting an action at the time of the attempted amendment and the motion to amend retroactively should be allowed.
If, on the other hand, the court on remand finds that a claim within the terms of § 2675(a) was first made on or about March 24, 1969, the case at bar was commenced prematurely. For § 2675(a) gave plaintiff no authority to sue as of August 7, 1969, since neither an administrative denial nor a six-month period had intervened. But then we think it would be appropriate to consider whether the attempted amendment which would for the first time have made the United States a defendant was filed after the claim had been pending undecided before the Federal agency for more than six months. In that event, the amendment should be allowed, without relation back to August 1969, as a timely beginning of a suit against the United States.
Of course, in the unlikely event that, contrary to the contention of either party, no claim satisfying the requirements of § 2401(b) was made within two years after the wrong, the claim is now barred.
The order denying the substitution of the United States as a party defendant and dismissing the action will be vacated and the cause remanded for further proceedings in accordance with this opinion.
. 28 U.S.C. § 2679 precludes such a suit against a Federal agency, as distinguished from the United States.
. “Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attemped to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.”
. In its order dismissing the complaint, the court expressly relied upon Evans v. United States Veterans Administration Hospital, 2d Cir. 1968, 391 F.2d 261, cert. denied, 393 U.S. 1040, 89 S.Ct. 667, 21 L.Ed.2d 589, a case that turned upon the interpretation of Rule 15(c).
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_procedur
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Robert G. VAN BEEK, Appellant, v. Emery E. JACQUES, Warden of the Branch State Prison at Marquette, Michigan, Appellee.
No. 11593.
United States Court of Appeals Sixth Circuit.
Oct. 24, 1952.
■ Edward J. Hanlon, Jr., Cincinnati, Ohio, for appellant.
Frank G. Millard, Perry A. Maynard, Lansing, Mich., for appellee.
Before MARTIN, McALLISTER and MILLER, Circuit Judges.
PER CURIAM.
This cause came on to be heard' on the record and on the briefs and oral arguments of the Assistant Attorney General of Michigan and the attorney appointed by this court to represent appellant, and also on the separate brief filed by appellant in his own behalf;
And it appearing that there is no merit in any point presented in behalf of appellant and that the judgment of the District Court is correct, for the reasons given by the district judge in denying appellant’s petition for certificate of probable cause;
The judgment is accordingly affirmed.-
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_district
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
The DOW CHEMICAL COMPANY, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
No. 20043.
United States Court of Appeals, Sixth Circuit.
Oct. 12, 1970.
Bennet N. Hollander, Atty., Dept, of Justice, Washington, D. C., for respondent-appellant; Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson, Grant W. Wiprud, Attys., Dept, of Justice, Washington, D. C., on brief.
John F. Creed, New York City, for petitioner-appellee; Dennis I. Meyer, Washington, D. C., John P. Beukema, Chicago, 111., on brief.
Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.
CELEBREZZE, Circuit Judge.
This is an appeal by the Commissioner of Internal Revenue (hereinafter, the “Commissioner”) from a decision of the United States Tax Court determining the basis for the computation of the depletion allowance for income tax purposes of the Dow Chemical Company (hereinafter, the “Taxpayer”). The Taxpayer pumps natural brine from wells located at Midland and Ludington, Michigan, and extracts minerals from the brine through the application of various treatment processes. On appeal, the Commissioner contends that Taxpayer’s “gross income from mining” (the statutory basis for depletion allowances) is the marketable value of the natural brine at the wellhead, rather than the gross sales value of the minerals Taxpayer extracts from the brine, as the. Tax Court held.
The primary facts in this case are not generally contested and are recounted with some detail in the opinion of the Tax Court, 51 T.C. 669 (1969). The Taxpayer is an integrated miner-manufacturer of a diversified line of chemicals, metals and plastics. During the' fiscal years of 1957 and 1958, it operated numerous wells which pumped natural brine from porous sandstone formations located several thousand feet below the earth. During each year, Taxpayer pumped in excess of 3,000,000 thousand gallons of natural brine from its sandstone deposits in Midland and Ludington, Michigan.
The brine, which emerges from the ground at about 95 degrees Fahrenheit, is a fully saturated solution containing approximately 70 per cent water and 30 per cent dissolved solids in the form of hydrated ions. At both Midland and Ludington, the brine is processed for extraction of its bromine content (on the average less than .3 per cent of the total weight of the brine). Subsequently, at Midland, approximately 10 per cent of the brine solution is further processed to extract from the brine the minerals of sodium chloride or salt, potassium chloride or potash, calcium chloride and magnesium hydroxide. The remaining 90 per cent of the Midland brine is pumped back into the ground for repressurizing purposes. At Ludington, 30 to 50 per cent of the brine solution is further processed after the bromine is extracted and that solution yields magnesium chloride, magnesium hydroxide and calcium chloride. The remaining brine is pumped back into the ground for repressurizing purposes.
For purposes of determining “gross income from mining,” Taxpayer reported the actual market price for the crude elements and compounds that it extracted from the natural brine. When minerals were sold in bulk and in varying degrees of subsequent refinement and packaging, the lower bulk price was used. The Taxpayer supported its computations before the Tax Court contending that it was a miner of bromine, magnesium hydroxide, magnesium chloride, calcium chloride, sodium chloride and potash, and not a miner of natural brines. Indeed, it asserted that the brine used was merely a low grade ore which when subjected to certain ordinary mining processes yields the aforementioned minerals. Further, Taxpayer affirmatively asserted that the brine used was not commercially marketable as a crude mineral product nor was it an industrially usable product of Taxpayer's mining operations.
The Commissioner, however, contended (1) that the natural brine pumped by Taxpayer was the first commercially marketable product of its mining; (2) that the brine was not subject to ordinary mining processes, but to Taxpayer’s integrated manufacturing and refining; and (3) that the applicable statute makes natural brine the depletable substance and not its extracted minerals. Hence, the Commissioner asserted that the depletion allowance which is to be based upon “gross income from mining” should not include any additions to the value of Taxpayer’s brine after the mining process stops; that is, as the brine is pumped from the wellhead, ready for industrial or commercial use. In general, the Tax Court rejected the Commissioner’s position and permitted the Taxpayer to use the gross bulk sales price for the crude minerals, with adjustments where a portion of the mineral was attributable to ingredients added during the mineral’s extraction from the natural brine solution. The Commissioner is prosecuting this appeal contending that given the essentially undisputed facts the statutory and case law mandate a determination supporting his contentions. We do not agree.
The applicable statute, Section 613 of the Internal Revenue Code of 1954, provides that miners of “property other than an oil or gas well” are entitled to percentage depletion based upon their “gross income from mining,” 26 U.S.C. § 613(c) (1), although such depletion may not exceed 50 per cent of the Taxpayer’s taxable income from the mining operations computed without a depletion deduction. 26 U.S.C.' § 613(a). And “mining” is defined in the statute to include both “the extraction of the ores or minerals from the ground” and “the ordinary treatment processes normally applied by mine owners or operators in order to obtain the commercially marketable mineral product or products.” 26 U.S.C. § 613 (c) (2). The statute, after defining “ordinary treatment processes” for certain specific minerals, further defines which of various processes are to be considered “ordinary treatment processes” by classifying the natural deposits mined into two groups: “minerals which are customarily sold in the form of a crude mineral product” and “ores which are not customarily sold in the form of the crude mineral product.” 26 U.S.C. § 613(c) (4). In the former group of minerals, only a few processes ordinarily taken by the miner to bring the minerals to shipping grade and form may be considered “mining” processes. In the latter group, numerous additional chemical and physical processes taken by the miner to extract or separate crude minerals from the original ore are considered as “ordinary treatment processes” of mining operations.
The primary contention of the Commissioner on appeal is that natural brine is a raw mineral product, marketable in that form; and that under the rationale of United States v. Cannelton Sewer Pipe Co., 364 U.S. 76, 86-87, 80 S.Ct. 1581, 4 L.Ed.2d 1581 (1960) and 26 U.S. C. § 613(c) (4) (C), the Taxpayer’s “gross income from mining” ceases at the brine wellhead and manufacturing begins at that point because Taxpayer’s brine is a product “ready for industrial use or consumption.” The Commissioner contends that the substantial quantities of natural brine transferred to the Taxpayer and to others is conclusive proof that natural brine is a “commercially marketable product;” and that further, the “industrial use” of natural brine as a source of its constituent minerals is a post-wellhead process which has “passed the ‘mining’ state on which the depletion principle operates.” United States v. Cannelton Sewer Pipe, 364 U.S. at 86, 80 S.Ct. at 1587. The Commissioner would have us conceive of Taxpayer as an integrated miner-manufacturer which sells its natural brine to itself. United States v. Cannelton Sewer Pipe, 364 U.S. at 87, 80 S.Ct. 1581.
We do not believe that the transfers of natural brine revealed in the record sustain the allegation that natural brine is a product which is “commercially marketable.” First, the record reveals that several of the expert witnesses, including those of the Commissioner, indicated that there was no commercial market for natural brine and that if sales occurred they were highly unusual. Second, it is conceded that Taxpayer never sold any of its natural brine; and that when Taxpayer received transfers of brine from others (oil producers to whom the brine was a waste product), Taxpayer received such brine for free and at most was required only to pay for its transportation from the oil fields to its facilities and to pay for its disposal after Taxpayer was finished extracting minerals from the brine. Third, apart from the aforementioned transfers the Commissioner cites evidence of only two other arrangements in which producers of brine from brine wells transferred or sold their brine. In both cases the operators of the brine wells transferred their brine to a concern which extracted bromine from the brine. In each case the operator of the wells yielding brine and the extractor of the bromine operated as if a “joint venture” for the mining of bromine in which two of the mining steps happened to be in separate hands. The financial arrangements of Murphy Oil Company and the inability of Parnell, Incorporated to market brine to anyone except its original venturer indicate that there was no “commercial market” for natural brine in its crude form and such brine could not be sold but only discarded as waste material and pumped back into the ground after some of its dissolved minerals had been extracted by certain treatment processes.
Further, we do not believe that the use of the transferred natural brine by Dow and other extractors of minerals from brine indicate that the natural brine was “ready for [manufacturing processes in] industrial use or consumption * * * [and hence] passed the ‘mining’ state on which the depletion principle operates” under the rationale of United States v. Cannelton Sewer Pipe Co., 364 U.S. at 86, 80 S.Ct. at 1587. The sole “industrial use” to which the natural brine was put before it was pumped back into the ground was to yield certain of its constituent minerals by application of Taxpayer’s extractive processes, which were all ordinary treatment processes used by miners of such low tenor ores as natural brine.
While many industrial uses of minerals may fairly be characterized as “passed the ‘mining’ state,” we believe that the extraction of crude minerals from a low tenor ore is one which Congress intended to be considered a part of the mining process, rather than the initiation of manufacturing or industrial processes. Section 613(c) (4) (D) of the Internal Revenue Code of 1954 explicitly permits depletion of certain minerals after a number of chemical and physical “processes or combination of process [have been] used in the separation or extraction of the [mineral] product or products from the ore.” For example, solid ores containing gold or silver must be subjected to chemical processes in order to cause the respective minerals to first dissolve into a salt solution and secondly, precipitate out of that solution as crude elemental gold or silver. Such processes, clearly are “industrial use” of the gold and silver ore as brought up from the mine, but are considered “ordinary treatment processes of mining” because they serve to concentrate and extract from a low tenor ore (source of minerals in which the mineral sought is a small portion of the total crude mined deposit) a mineral which is commercially marketable. Thus, the Commissioner’s position which would categorize as an “industrial use * * * passed the ‘mining’ state” any treatment process which extracted minerals by chemical means from an already mined source of minerals is inconsistent with the governing statutes which permit certain ores to be further mined for their constituent minerals so long as the treatment processes used are those ordinarily used by miners in the industry. 26 U.S.C. § 613(c) (4) (D).
The natural brine pumped and processed by the Taxpayer is an ore which may be fairly categorized under Section 613(c) (4) (D), rather than Section 613(c) (4) (C). As. legislative history of these provisions indicates, the amount of treatment processes which a miner was permitted to use on his mined ore and still be within the state of mining operation upon which the depletion principle operates depended upon the ratio of the ore to its marketable product. In a high tenor ore, in which the ore was largely marketable product, Section 613(c) (4) (C) sets out rather limited processes which may be performed upon the crude mineral product to ready it for shipping. In those instances, however, where the ore was of low tenor, the statute provides numerous chemical and physical extraction and concentration processes which may be used to get the relatively slim amount of marketable product from the ore. A review of the evidence presented on the tenor of the named ores in Section 613(c) (4) (C) and (D) and of the tenor of Taxpayer’s natural brine convinces us that Taxpayer’s natural brine is a low tenor ore. Finding that natural brine is within the intendment of Section 613(c)(4) (D), we believe that Congress would permit the extraction of its constituent minerals to be considered a “mining process” rather than a manufacturing process of “industrial use * * * passed the ‘mining’ state.”
The next major point raised by the Commissioner on appeal is that the processes Taxpayer applies to the natural brine are not “ordinary treatment processes” allowable to a miner because they involve chemical and physical changes which create a new and more valuable end product. This contention falters, however, on the basis of the Commissioner’s own regulations which provided during the applicable tax years that certain designated chemical changes were permissible to extract a mineral from its ore, if that'ore is not customarily marketable in its crude form. Treasury Regulations 118, § 39.23(m)-l(f) (1-3). We have already found that natural brine was not customarily marketable in its crude form. The Commissioner has not given us any reason to question the Tax Court’s findings of fact that each of the Taxpayer’s processes were analogous to or identical with the designated permissible processes in the Commissioner’s own regulations and Section 613(c) (4) (D) of the Internal Revenue Code of 1954. We find, therefore, that the oxidation reduction reactions, vaporization, precipitation, crystallization, filtering and leaching processes used by Taxpayer are allowable as “ordinary treatment processes” under Section 613(c) (4) (D) in that they were used to extract “the product or products from the ore” as the statute requires. We also affirm the Tax Court in holding that to the extent that chemicals added to the brine in the extraction processes became part of the resultant crude minerals, the value of these added ingredients will not be included in the basis for the depletion allowance. Taxpayer is only entitled to deplete the “gross income from his ‘mining’,” which would not include the value of any chemicals added while extracting minerals from the brine.
Finally, the Commissioner contends that the statutory history of Section 613 of the Internal Revenue Code of 1954 suggests that the “natural deposit” of brine is a depletable substance and that the minerals extracted from the brine are manufactured by-products of the mining of “brine-from brine wells.” 97 Cong.Ree. Part 9, p. 11597, 11603 (193). We have carefully reviewed the statutory history of the present Section 613 of the Internal Revenue Code of 1954 and it does not support the Commissioner’s contention that “brine — from brine wells” is the depletable substance. Indeed, Section 613(b) (5) (B) in enumerating the percentage depletion rates for “mines, wells and other natural deposits” provides “if from brine wells— bromine, calcium chloride, and magnesium chloride.” We believe that a fair reading of the statutory language in light of its history suggests that Congress meant to permit certain constituent minerals derived “from brine wells” to be depletable. Hearing on the Revenue Act of 1943 before the Senate Comm, on Finance 78th Cong., 1st Sess. 363, 369 (1943); Act of August 8, 1947, Ch. 515, § 515(b), 61 Stat. 917; Revenue Act of 1951, Ch. 521, 65 Stat. 452; S.Rep.No. 781, 82nd Cong., 1st Sess. 38 (1951).
The judgment of the United States Tax Court is affirmed.
APPENDIX I
Internal Revenue Code of 1954:
(Effective during the years in issue— June 1, 1956 — May 31, 1958).
SEC. 613. PERCENTAGE DEPLETION.
(a) General Rule. — In the case of the mines, wells, and other natural deposits listed in subsection (b), the allowance for depletion under section 611 shall be the percentage, specified in subsection (b), of the gross income from the property excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 percent of the taxpayer’s taxable income from the property (computed without allowance for depletion). In no case shall the allowance for depletion under section 611 be less than it would be if computed without reference to this section.
(b) Percentage Depletion Rates. — The mines, wells, and other natural deposits, and the percentages, referred to in subsection (a) are as follows:
(1) 27% percent — oil and gas wells'.
(2) 23-percent—
(A) sulfur and uranium; and
(B) if from deposits in the United States — anorthosite (to the extent that alumina and aluminum compounds are extracted therefrom), asbestos, bauxite, beryl, celestite, chromite, corundum, fluorspar, graphite, ilmenite, kyanite, mica, olivine, quartz crystals (radio grade), rutile, block steatite talc, and zircon, and ores of the following metals: antimony, bismuth, cadmium, cobalt, columbium, lead, lithium, manganese, mercury, nickel, platinum and platinum group metals, tantalum, thorium, tin, titanium, tungsten, vanadium, and zinc.
(3) 15 percent — ball clay, bentonite, china clay, sagger clay, metal mines (if paragraph (2) (B) does not apply), rock asphalt, and vermiculite.
(4) 10 percent — asbestos (if paragraph (2) B) does not apply), brucite, coal lignite, perlite, sodium chloride, and wollastonite.
(5) 5 percent—
(A) brick and tile clay, gravel, mollusk shells (including clam shells and oyster shells), peat, pumice, and, scoria, shale, and stone, except stone described in paragraph (6); and
(B) if from brine wells — bro- ■ mine, calcium chloride, and magnesium chloride.
(6) 15 percent — all other minerals (including, but not limited to, aplite, barite, borax, calcium carbonates, refractory and fire clay, diatomaceous earth, dolomite, feldspar fullers earth, garnet, gilsonite, granite, limestone, magnesite, magnesium carbonates, marble, phosphate rock, -potash, quartzite, slate, soapstone, stone (used or sold for use by the mine owner or operator as dimension stone or ornamental stone), thenardite, tripoli, trona, and (if paragraph (2) (B) does not apply) bauxite, beryl, flake graphite, fluorspar, lepidolite, mica, spodumene, and talc, (including pyrophyllite), except that, unless sold on bid in direct competition with a bona fide bid to sell a mineral listed in paragraph (3), the percentage shall be 5 percent for any such other mineral when used, or sold for use, by the mine owner or operator as rip rap, ballast, road material, rubble, concrete aggregates, or for similar purposes. For purposes of this paragraph, the term “all other minerals” does not include—
(A) soil, sod, dirt, turf, water, or mosses; or
(B) minerals from sea water, the air, or similar inexhaustible sources.
(c) Definition of Gross Income From Property. — For purposes of this section—
(1) Gross income from the property. — The term “gross income from the property” means, in the case of a property other than an oil or gas well, the gross income from mining.
(2) Mining. — The term “mining” in includes not merely the extraction of the ores or minerals from the ground but also the ordinary treatment processes normally applied by mine owners or operators in order to obtain the commercially marketable mineral product or products, and so much of the transportation of ores or minerals (whether or not by common carrier) from the point of extraction from the ground to the plants or mills in which the ordinary treatment processes are applied thereto as is not in excess of 50 miles unless the Secretary or his delegate finds that the physical and other requirements are such that the ore or mineral must be transported a greater distance to such plants or mills.
(3) Extraction of the ores or minerals from the ground. — The term “extraction of the ores or minerals from the ground” includes the extraction by mine owners or operators of ores or minerals from the waste or residue of prior mining. The preceding sentence shall not apply to any such extraction of the mineral or ore by a purchaser of such waste or residue or of the rights to extract ores or minerals therefrom.
(4) Ordinary treatment processes. —The term “ordinary treatment processes” include the following:
(A) In the case of coal-cleaning, breaking, sizing, dust allaying, treating to prevent freezing, and loading for shipment;
(B) in the case of sulfur recovered by the Frasch process-pumping to vats, cooling, breaking, and loading for shipment;
(C) in the ease of iron ore, bauxite, ball and sagger clay, rock asphalt, and minerals which are customarily sold in the form of a crude mineral product — sorting, concentrating, and sintering to bring to shipping grade and form, and loading for shipment;
(D) in the case of lead, zinc, copper, gold, silver, or fluorspar ores, potash, and ores which are not customarily sold in the form .of the crude mineral product — crushing, grinding, and beneficiation by concentration (gravity, flotation, amalgamation, electrostatic, or magnetic), cyanidation, leaching, crystallization, precipitation (but not including as an ordinary treatment process electrolytic deposition, roasting, thermal or electric smelting, or refining), or by substantially equivalent processes or combination of processes used in the separation or extraction of the product or products from the ore, including the furnacing of quicksilver ores; and
(E) the pulverization of talc, the burning of magnesite, and the sintering and nodulizing of phosphate rock.
(26 U.S.C. 1964 ed., Sec. 613.)
APPENDIX II
RATIOS BY WEIGHT OF ORES TO MARKETABLE PRODUCTS.
613(c) (4) (C): Commodities listed in subparagraph
Commodity Ratio by weight of ore to marketable product
Iron ore33 2.3 to 1
Bauxite 1.4 to 1
Clays 1.1 to 1
Commodities listed 613(c) (4) (D): in subparagraph
Commodity Ratio by weight of ore to marketable product
Lead 30 to 1
Zinc 24 to 1
Copper 136 to 1
Gold (lode) 64,000 to 1
Gold (placer) 5,264,000 to 1
Silver 8,700 to 1
Fluorspar 2.8 to 1
Potassium salts 6.5 to iso
" Crude mineral extracted from Taxpayer’s brines.
MIDLAND
Mineral Percentage by weight in ore (brine) Ratio by weight of ore to marketable product
Bromine 0.287 349 to 1
Magnesium hydroxide 2.231 45 to 1
Salt 5.57 18 to 1
Potash 1.66 60 to 1
Calcium chloride 20.13 5 to 1
LUDINGTON
Percentage by weight in ore (brine) Mineral Ratio by weight of ore to marketable product
Bromine 0.2446 409 to 1
Magnesium hydroxide 6.01 17 to 1
Calcium chloride 7.37 5.75 to l36a
. The dissolved solids are all in the brine in the form of hydrated ions.
A representative analysis of the composition of the brine by weight is as follows:
Percentage Try weight Cations Ludington Midland
Ca 6.272 7.27
Mg 2.506 0.93
Na 1.141 2.19
K 0.488 0.87
Sr 0.177 0.29
NH4 0.0117 0.0443
Fe 0.0036 0.0030
Anions
Cl 20.69 20.0
Br 0.2446 0.2864
I 0.0003 0.0040
S04 0.0025 0.0048
B03 0.028 0.16
The balance of weight is water.
. See Appendix 5 for complete statute as then in effect.
. 26 U.S.C. § 613(e) (4) (C) “in the case of iron ore, bauxite, ball and sagger clay, rock asphalt, and minerals which are customarily sold in the form of a crude mineral product — sorting, concentrating, and sintering to bring to shipping grade and form, and loading for shipment;”
. 26 U.S.C. § 613(c) (4) (D)
(D) in the case of lead, zinc, copper, gold, silver, or fluorspar ores, potash, and ores which are not customarily sold in the form of the crude mineral product — crushing, grinding, and beneficiation by concentration (gravity, flotation, amalgamation, electostatie, or magnetic), cyanidation, leaching, crystallization, precipitation (but not including as an ordinary treatment process electrolytic deposition, roasting, thermal or elec_ric smelting, or refining), or by substantially equivalent processes or combination of processes used in the separation or extraction of the product or products from the ore, including the furnacing of quicksilver ores; and * *
. In a number of cases subsequent to United States v. Cannelton Sewer Pipe, the Commissioner has been quite successful in maintaining that an integrated miner-manufacturer received an unfair advantage over non-integrated manufacturer competitors by basing his depletion allowance on a mined product which has been refined industrially beyond the “mining” state. Standard Realization Co. v. United States, 289 F.2d 247 (C.A.7th 1961) (quartz sand ground into flour) ; Commissioner of Internal Revenue v. Halquist, 291 F.24 49 (C.A.7th, 1961), certiorari denied, 368 U.S. 930, 82 S.Ct. 367, 7 L.Ed.2d 193 (dolomite slabs processed into veneer building stone); Rid-dell v. Victorville Lime Rock Co., 292 F.2d 427, (C.A.9th, 1961) (limestone of chemical and metallurgical grade, ground to various sizes for various end uses) ; Virginia Greenstone Co. v. United States, 308 F.2d 669 (C.A.4th, 1962) (action-lite-chlorite schist sand-finished as ornamental or dimension stone) ; Morton Salt Co. v. United States, 316 F.2d 931, 161 Ct.Cl. 640 (1963), certiorari denied, 375 U.S. 951, 84 S.Ct. 442, 11 L.Ed.2d 312 (brine and rock salt processed into marketable salt) ; United States v. Light Aggregates, Inc., 343 F.2d 429 (C.A.8th, 1965) (shale processed into lightweight aggregate) ; Iowa Limestone Co. v. United States, 365 F.2d 63 (C.A.8th 1966) (chemical and metallurgical grade limestone ground to various sizes for various end uses) ; Solite Corp. v. United States, 375 F.2d 684 (C.A.4th 1967), certiorari denied, 389 U.S. 841, 88 S.Ct. 70, 19 L.Ed.2d 104 (weathered soft slate processed into light weight aggregate). None of these eases involve integrated miner-manufacturers which were involved in the reduction or extractive processes of minerals from ores, as opposed to addition reactions and refining processes. Further, only one of these cases involves the mining of a natural brine-like substance, Morton Salt Co. v. United States, 316 F.2d 931, 161 Ct.Cl. 640 (1963) ; and although in that case the Commissioner prevailed on appeal, he lost his “alternative” contention that natural brine as it came from the wellhead was a commercially marketable or depletable crude mineral. 316 F.2d at 934.
. Ralph W. Parnell, President of Parnell, Incorporated. Dr. Kenneth K. Landes, Professor of Geology and Mineralogy at The University of Michigan.
. In the Murphy Oil Company-Michigan Chemical Corporation arrangement the Murphy Oil Company which produced the natural brine was contractually obligated to pay half the costs of the extraction of the bromine from the brine. Hence, Murphy Oil was not selling brine to a commercial market, but rather transferring or selling it to a joint “mining” operation in which it was producer of the brine and partners to the subsequent extraction of bromine.
. In the Parnell, Inc.-Arkansas Chemical Corporation arrangement, Parnell drilled its brine wells solely to sell the brine to Arkansas for extraction of its bromine. Parnell, Inc. sold the wells to Arkansas after brief operation because it believed that unless Arkansas purchased its brine from Parnell, Inc. that Parnell, Inc. would be “in a position of having brine wells and no one to sell the brine to.” R-246 (Parnell’s President).
. See Footnote 4.
. See Footnote 3.
. See Appendix II.
. Further, in the Tax Reform Act of 1969, S.Rept. No. 91-552, p. 181 (1969) the Senate Finance Committee observed, “For purposes of determining the percentage depletion cutoff point in these cases, the extraction of the minerals from the brine [of saline perennial lakes] is to be considered an ordinary treatment process.” We believe that although this passage is concerned with the extraction of minerals from a saline perennial lake, rather than a brine well, it is an accurate reflection of Congressional intent as to whether the low tenor ore of brine or the specific minerals extracted from the brine are the depletable substance.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_method
|
I
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
CALLAS v. INDEPENDENT TAXI OWNERS’ ASS’N, Inc., et al.
No. 5777.
Court of Appeals of the District of Columbia.
Argued May 8, 1933,
Decided May 29, 1933.
Rehearing Denied June 23, 1933.
J. U. Gardiner, of Washington, D. C., for appellant.
Alfred D. Smith, of Washington, D. C., for appellees.
Before MARTIN, Chief Justice, and VAN ORSDEL, HITZ, and GRONER, Associate Justices.
HITZ, Associate Justice.
This is an appeal from a judgment of the Supreme Court of the District of Columbia in a negligence ease growing out of a traffic accident.
The plaintiff is a fruit vender, injured while tending his pushcart in Fourteenth street near the' Bureau of Engraving; the defendants are the Independent Taxi Owners’ Association, Incorporated, and one Schou, driver of the cab involved in the accident, appellees here.
The company is sued as being “engaged with its members and associates under the trade name of Diamond Cab Company in the business of maintaining and operating and assisting to maintain and operate” a fleet of taxicabs in the city of Washington.
Schou is sued as a member, associate, agent, servant, or employee of the said corporation, operating the cab in question at the time of the accident with consent of the company and in furtherance of its business.
The case presents an aspect of the familiar but elusive problem of who is responsihie for injuries caused by a cab performing under the colors and name of one of the so-called cab companies operating in Washington.
It is admitted here that the accident occurred by collision between the cab and the plaintiff or his pushcart; that the plaintiff was injured; that the cab bore the name of the Diamond Cab Company; was one of its fleet of cabs; and that Sehou drove it at the time.
But it is denied that any negligence occurred on the part of the cab, or that the company was, or legally could be, responsible if any negligence had occurred.
The court directed a verdict for the company at the eloso of plaintiff’s evidence, and the case proceeding against the driver alone, the jury returned a verdict in his favor; the court having refused to permit the attorney for the plaintiff to argue the ease to the jury because he had testified as a witness in rebuttal.
The eight assignments of error present three questions — as to the correctness of the directed verdict; as to certain rulings on the evidence; and as to the refusal to permit plaintiff’s attorney to argue the case.
The learned judge was of opinion throughout the trial, as he several times stated, that because a witness testified that the company was not engaged in the cab business, and because the accident occurred to a pedestrian and not to a passenger, the company could not be liable by way of estoppel or otherwise.
In pursuance of this view he declined to permit the plaintiff to fully develop iu evidence the whole relationship in which the corporation stood to its so-called members, and sustained objections to questions as to how an applicant becomes a member of the association, how much he pays for entrance, by whom the association is represented before the Public Service Commission, and how extensive the advertising of the company is.
These questions were all held to be immaterial, but, in view of the uncertain nature of ■this relationship and the changing character of this corporation, as indicated by the evidence and the arguments of counsel, we are of opinion that the questions were material and should have been admitted.
For, by the original charter of the company, as here in evidence, the State of Delaware in January, 1926, undertook to, authorize the company to engage in the taxicab business “in any part of the world”; in April, 1927, this accident occurred; in September, 1927, the company obtained registry in the Patent Office of its trade-name of Diamond Cab Company, its colors, and its emblems; in Januarjq 1928, an amended charter was obtained, which was not offered in evidence, but which is said by the president of the company to expressly forbid its ownership of cabs.
The company now contends that it never accepted its original charter by which it was authorized to engage in the taxicab business and by virtue of which it obtained registry of its trade-name of Diamond Cab Company; yet admits that it is now receiving revenues amounting to thousands of dollars per month by licensing cab drivers to use that trade-name.
Such a situation, if developed by evidence, might well require the court to disregard the corporate entity and hold the individuals behind the corporation and receiving this revenue to be liable to persons negligently injured by these cabs, whether passengers or pedestrians.
“If any general rule can be laid down, in the present state of authority, it is that a corporation will bo looked upon as a legal entity as a general rule, and until sufficient reason to the contrary appears; but, when, fhe notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association of persons.” United States v. Milwaukee Refrigerator Transit Co. (C. C.) 142 F. 247, 255; Bank v. Trebein Co., 59 Ohio St. 316, 52 N. E. 834; Luckenback S. S. Co. v. W. R. Grace & Co. (C. C. A.) 267 F. 676, 681; Lehigh Valley R. Co. v. Dupont (C. C. A.) 128 F. 840; In re Muncie Pulp Co. (C. C. A. 2d) 139 F. 546; Foard Co. v. State of Maryland (C. C. A.) 219 F. 827; Morewatz, Private Corporations, § 227; Maloney Tank Mfg. Co. v. MidContinent Petroleum Corp. (C. C. A.) 49 F.(2d) 146; Boatright v. Steinite Radio Corp. (C. C. A.) 46 F.(2d) 388; McCaskill Co. v. U. S., 216 U. S. 504, 514, 30 S. Ct. 386, 54 L. Ed. 590.
This action is based in part upon a theory of joint adventure between the corporation and the driver, and the declaration charges that the company was operating the cab by Sehou as a member, associate, agent, or servant of the company. The separate plea of each defendant denies that Sehou was acting as such agent or servant, but does not deny that he was acting as an associate or member of the corporation.
The president of the corporation, called by the plaintiff as a witness of necessity, on cross-examination testified that the company did not own any cabs, had never owned one, and that Schou had never been a member of the association.
Thereafter, upon argument of its motion for a directed verdict, the company contended that there was no evidence that Schou was a member, servant, or agent of the association, or to show any connection whatever between Schou and the company at the time of the accident.
But the charter of the company was in evidence showing its authority to operate taxicabs; the ear was operating as a taxicab at the time of the aeeident, bearing the peculiar colors and trade-name of the defendant company; and consequently was legally presumed to be in the custody and on the business of the person whose name it bore.
Whether the effect of this presumption was overcome by the testimony of the president of the company that it did not own a cab, and his intimations that it was not in the cab business was a question of faet for the jury, and consequently its decision as a question of law by the court was error.
“So far as the liability of the defendant was concerned, the plaintiffs’ ease rested wholly upon a presumption. There was no direct evidence as to who was the owner of the truck that inflicted the injury, nor as to who was in charge of it when the collision occurred. There was evidence, however, that the truck bore the name of the defendant company. This was sufficient to establish, not only a prima facies that the defendants were the owners of the truck, but also that it was. then in charge of their servant or employee. This was presumptive evidence, and, as has frequently been ruled, was quite sufficient to carry the case to the jury.” Holzheimer et ux. v. Lit Brothers, 262 Pa. 152, 105 A. 73, 74; Joyce v. Copel, 8 Carrington & Payne 785; Edgeworth v. Wood, 58 N. J. Law, 467, 33 A. 940; Vonderhorst B. Co. v. Amrhine, 98 Md. 406, 56 A. 833; Geiselman v. Schmidt, 106 Md. 580, 68 A. 202; Barz v. Fleischmann Yeast Co., 308 Mo. 288, 271 S. W. 361; Shaughnessy v. Director General of Railroads, 274 Pa. 415, 118 A. 390, 23 A. L. R. 1211.
In view of the subsequent verdict for the defendant Schou on the ultimate question of negligence, these rulings on the evidence and the motion might have been harmless error, were it not for another ruling upon a later question which intervened.
Near the end of the case counsel for the plaintiff went upon- the witness stand in rebuttal to contradict statements made in the deposition of a policeman. The evidence given by the policeman was a serious blow to the plaintiff’s case, and, as counsel was alone in a position to contradict his statements, it was necessary he should testify.
The deposition had been on file long enough before the trial to put counsel on notice that he must testify, and he stated that he had anticipated this necessity, whereupon he should have associated other counsel with himself, or, better still, should have retired as counsel, but he did neither, and, appearing alone for the plaintiff in the ease, testified to a circumstance of vital importance to his client’s interests.
The trial'judge was of opinion that his action in this respect was so grossly improper that he refused to permit him to argue the ease to the jury, and so stated in reprimanding counsel in the presence of the jury.
The court then offered to withdraw a juror and continue the ease, which was declined by counsel.
After argument to the jury for the defendant, the court offered to permit counsel for the plaintiff to bring in other counsel' to argue his case, which offer was also declined, and the ease was submitted to the jury without argument for the plaintiff.
We agree that, in view of his knowledge of the necessity for his testifying, counsel’s failure to withdraw was a disregard of professional propriety which deserved the discouragement of the court.
And the remarks of the learned judge appearing in the record were sufficiently discouraging.
But, if any further punishment was deemed necessary, it should have been made to fall upon the counsel after the trial, and not upon the client, and should not have deprived the client of any argument in support of his case. French v. Hall, 119 U. S. 155, 7 S. Ct. 170, 30 L. Ed. 375.
For all the considerations above stated we think the judgment should be reversed, and the cause remanded for a new trial in accordance with this opinion, when all charters of the company should be produced and wide latitude given in developing the relationship of the company to its members and the drivers of the cabs.
In Rhone v. Try Me Cab Co., 62 App. D. C. 201, 65 F.(2d) 834, handed down today, we had occasion to remark that the present system of licensing and controlling taxicabs in the city of Washington is far from satisfactory, and this case emphasizes the correctness of that statement.
If a corporation chartered as a cab company may bring under its general control a fleet of a thousand taxicabs and hold itself out as a public service corporation engaged in their operation, and at the same time evade responsibility by showing that it is merely a beneficial association providing a centralized administrative bureau through co-operative effort, it is apparent that public authority should insure to the public some other protection against this growing menace.
Recent eases before this court impel us in the discharge of our duty to call attention to this situation.
Reversed and remanded.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
songer_usc1
|
42
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Lawson H. MYERS, III; Millie Boaz Myers; Robert W. Simms, Co-Executors of the Estate of Lawson H. Myers, Jr.; and Boaz Hospital Supply Company, Inc., Plaintiffs-Appellants, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 89-5337.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 30, 1989.
Decided Jan. 11, 1990.
E.W. Rivers (argued), Paducah, Ky., for plaintiffs-appellants.
Joseph M. Whittle, U.S. Atty., Michael F. Spalding, Asst. U.S. Atty,, Louisville, Ky., Bruce Granger, F. Richard Waitsman (argued), Dept, of Health and Human Services, Office of General Counsel, Atlanta, Ga., for defendant-appellee.
Before: MILBURN and GUY, Circuit Judges; and LIVELY, Senior Circuit Judge.
MILBURN, Circuit Judge.
Lawson H. Myers, III, Millie Boaz Myers, Robert W. Simms, and Boaz Hospital Supply Company, Inc. (“appellants”) appeal the judgment of the district court dismissing their action challenging the decision of the Secretary of Health and Human Services (“Secretary”) to exclude all items and services provided by appellants from coverage under the Medicare program for a period of two years. For the reasons that follow, we affirm.
I.
Appellants were in the business of providing medical supplies and services in the Commonwealth of Kentucky, and utilized the Medicare program to collect payments. On May 11, 1978, appellants were indicted in the United States District Court for the Western District of Kentucky on 170 counts of violating Title XVIII of the Social Security Act, 42 U.S.C. § 1395ml. The indictment charged appellants with knowingly and willfully making and causing to be made false, fictitious, and fraudulent statements and representations of material facts in applications for payment under the Medicare program.
On June 29, 1978, the individual appellants changed their plea from not guilty to nolo contendere to 22 counts in the indictment. The corporation also pleaded nolo contendere to one count and was fined $500, with a nolle prosequi entered as to all other counts. The individual appellants were sentenced to one year as to each of the 22 counts, with a nolle prosequi entered as to all other counts. However, the sentences were suspended, and the individual appellants were placed on probation for two years and fined $2,000.
On August 29, 1979, appellants were notified by the Health Care Financing Administration (“HCFA”) of a proposal to exclude them from participation in the Medicare program for a period of two years. Appellants were informed that the action was proposed because they had “knowingly made or caused to be made false statements and misrepresentations of material facts in application for the payment of Medicare benefits for the purpose of causing payments to be made under Title XVIII of the [Social Security] Act.” The proposed exclusion was authorized by section 1862(d)(1)(A) of the Act, 42 U.S.C. § 1395y(d)(l)(A). Appellants were notified on November 4, 1980, of the HCFA’s determination to exclude all items and services provided by them from coverage under the Medicare program for a period of two years.
On November 14, 1980, appellants requested a hearing on the HCFA’s decision to exclude them from the Medicare program. A hearing was held before an administrative law judge (“AU”) on April 22, 1981, at which Robert Foster, an HCFA employee, and appellant Lawson H. Myers, III, testified. Lawson Myers, Jr., did not testify and did not submit an affidavit. On December 1, 1981, the AU issued a decision affirming the HCFA’s determination to exclude appellants from the Medicare program for a period of two years. On February 6, 1986, the Appeals Council affirmed the two-year suspension, finding the AU’s decision was supported by substantial evidence.
On April 2, 1986, appellants filed this action in the district court to obtain judicial review of the Secretary’s decision. The secretary moved to dismiss the action as moot since the two-year exclusion had expired and appellants could be readmitted to the Medicare Program by reapplying. On December 31, 1986, the district court denied the Secretary’s motion, rejected the magistrate’s recommendation of dismissal, and recommitted the case to the magistrate for a recommendation on the merits of the case.
On June 14, 1988, the magistrate recommended the action be dismissed because the Secretary’s decision was supported by substantial evidence. On August 31, 1988, the district court issued an opinion and order adopting the magistrate’s recommendation and dismissing the case. Appellants filed a motion for reconsideration, which the district court overruled by an order entered on January 17, 1989. This timely appeal followed.
The principal issues on appeal are (1) whether a conviction pursuant to a plea of nolo contendere is admissible in an administrative proceeding; (2) whether substantial evidence supports the Secretary’s decision; and (3) whether the AU erroneously admitted hearsay evidence.
II.
The standard of review applicable to this case is whether the Secretary’s decision to exclude appellants is supported by substantial evidence. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984); 42 U.S.C. § 405(g). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). In our review, we do not consider the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility. Garner, 745 F.2d at 387.
A.
Appellants first argue the Secretary erred by excluding them from the Medicare program on the basis of their convictions following pleas of nolo contendere. Appellants’ argument presents two issues: (1) whether a criminal conviction, after a plea of nolo contendere, is admissible evidence in an administrative proceeding pursuant to 42 U.S.C. § 1395y(d)(l)(A); and (2) whether a conviction pursuant to 42 U.S.C. § 1395nn is sufficient to warrant exclusion from the Medicare program under 42 U.S.C. § 1395y(d)(l)(A).
Citing United States v. Graham, 325 F.2d 922, 928 (6th Cir.1963), appellants argue that neither a plea of nolo contendere nor a conviction resulting therefrom is admissible evidence to prove guilt in another proceeding. Appellants’ reliance upon Graham is misplaced because the nolo contendere pleas and subsequent convictions in this case were not used to prove guilt. Rather, the nolo pleas and convictions were used to disqualify appellants from participating in the Medicare program.
Appellants argued in the district court that the Federal Rules of Evidence and the Federal Rules of Criminal Procedure make a plea of nolo contendere, and subsequent conviction, inadmissible in an administrative proceeding. Appellants argue there is a narrow exception to the rule precluding use of a conviction pursuant to a plea of nolo contendere in a subsequent proceeding which applies only where a statute or judicial rule attaches legal consequences to the fact of a conviction. Appellants concede that in such a case, courts have held there is no valid distinction between a conviction upon a plea of nolo contendere and a conviction after a guilty plea or trial. See Pearce v. United States Department of Justice, Drug Enforcement Admin., 867 F.2d 253 (6th Cir.1988); Noell v. Bensinger, 586 F.2d 554 (5th Cir. 1978); Qureshi v. Immigration and Naturalization Service, 519 F.2d 1174 (5th Cir.1975); Sokoloff v. Saxbe, 501 F.2d 571, 574-75 (2d Cir.1974). In each of those cases, a statute authorized action to be taken upon the finding of a “conviction.” For example, in Pearce and Noell, the Drug Enforcement Administration (“DEA”) used convictions entered after pleas of nolo contendere to revoke a physician’s certification of registration to dispense drugs. The DEA’s action was taken pursuant to 21 U.S.C. § 824(a)(2), which authorizes revocation of registration upon a finding that the registrant has been convicted of a felony. In both cases, the courts held that the term “conviction” in the statute included a conviction upon a plea of nolo contendere. Pearce, 867 F.2d at 255-56; Noell, 586 F.2d at 556-57.
Appellants argue that this case does not fit the narrow exception to the rule against subsequent use of a nolo contendere conviction because the applicable statute does not give force to the fact of any conviction. Appellants point out that section 1395y(d)(l)(A) does not authorize suspension from the Medicare program upon the finding of a conviction. Rather, appellants argue that the statute requires a finding that the appellants acted “knowingly and willfully” in submitting false Medicare claims. Thus, unlike the statute in Soko-loff and Noell, section 1395y(d)(l)(A) requires proof of facts underlying a conviction, not proof of the fact of conviction. In sum, appellants argue that since the statute does not attach legal consequences to the fact of a conviction, the nolo conten-dere conviction is inadmissible.
We reject appellants’ argument. Although appellants do not cite Fed.R. Crim.P. 11(e)(6) or Fed.R.Evid. 410 on appeal, their argument regarding the general rule against use of a nolo contendere plea and conviction in subsequent proceedings is based on these rules. These two rules do not preclude use of a nolo contendere conviction in an administrative proceeding. First, the rules prohibit use of “a plea of nolo contendere,” not a conviction pursuant to a nolo plea. Second, the rules prohibit use of a nolo plea “in any civil or criminal proceeding,” not in an administrative proceeding. Moreover, at a hearing on the Secretary’s determination to exclude a participant from the Medicare program pursuant to section 1395y(d)(l)(A), “[ejvidence may be received ... even though inadmissible under rules of evidence applicable to court procedure.” 42 U.S.C. § 405(b). Thus, appellants’ general rule against admissibility of a nolo plea and conviction is not applicable in an administrative proceeding.
Appellants’ argument for a narrow exception to the rule against admissibility of a nolo conviction also lacks merit. Contrary to appellants’ assertion, proof of nolo convictions has not been restricted to cases in which a statute gives force to the fact of conviction. In Crofoot v. United States Government Printing Off., 761 F.2d 661 (Fed.Cir.1985), a former federal employee sought review of a final order of the Merit Systems Protection Board which upheld his removal on the ground of notoriously disgraceful conduct. The employee was indicted for the felony of fraud against the United States Government after filing a fraudulent claim for worker’s compensation. Pursuant to a plea bargain agreement, the employee entered a plea of guilty to a misdemeanor charge under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and was removed from his government job shortly after his Alford plea was accepted by the court. The Board upheld the employee’s removal on the charge of notoriously disgraceful conduct. Crofoot, 761 F.2d at 663.
Upon review of the Board’s order, the court held that “a conviction on a plea of guilty under the Alford doctrine may, in the Board’s discretion, be considered as the basis for the employee’s removal.” Id. at 665. The court analogized an Alford plea to a plea of nolo contendere, and added that the collateral consequences of a conviction pursuant to either plea should be the same. Id. The court observed, “Several courts have held that the fact of a conviction pursuant to a nolo contendere plea gives rise to a variety of collateral consequences in subsequent proceedings.” Id. (emphasis in original). Although the court remanded the case for consideration of a collateral issue, the court did hold “that substantial evidence supports the Board’s finding that under the circumstances of this case, petitioner’s plea of guilty and subsequent conviction on the charge of false pretenses was notoriously disgraceful conduct.” Id.
In Munnelly v. United States Postal Service, 805 F.2d 295 (8th Cir.1986), the Postal Service discharged a postmaster following his nolo contendere plea to an action by the Nebraska Accounting and Disclosure Commission (“NADC”) charging the postmaster with financial misconduct in his role as a member of the Board of Directors of the Omaha Public Power District. Pursuant to the nolo contendere plea, the NADC made findings of civil violations and imposed a civil penalty of $1,000 for each violation. Id. at 297. The former postmaster exhausted his administrative remedies before filing an action seeking reinstatement. On appeal, the postmaster argued the NADC’s findings of civil violations could not be used to support his discharge because the findings were based on his plea of nolo contendere. Id. at 300. The court rejected the postmaster’s argument, stating that “a conviction pursuant to a nolo contendere plea gives rise to a variety of collateral consequences in subsequent proceedings.” Id. (quoting Crofoot v. United States Government Printing Office, 761 F.2d 661, 665 (Fed.Cir. 1985)). The court held that “the NADC findings based on Munnelly’s nolo conten-dere pleas could be relied upon by the Postal Service as a basis for his removal.” Id.
Crofoot and Munnelly establish that a conviction pursuant to a plea of nolo con-tendere is admissible in an administrative proceeding, even in the absence of a statute giving force to the fact of a conviction. The Secretary's exclusion of appellants from participation in the Medicare program is sufficiently analogous to the disciplinary action taken in Crofoot and Munnelly to warrant admissibility of the convictions in the present case. Accordingly, the convictions pursuant to pleas of nolo contendere were properly considered by the Secretary.
B.
We next consider whether or not appellants’ convictions pursuant to section 1395nn are substantial evidence supporting exclusion of appellants from the Medicare program pursuant to section 1395y(d)(l)(A). Appellants argue that the Secretary must find that they knowingly and willfully made false statements in claiming Medicare payments, and further argue that a nolo contendere conviction does not prove the elements required for exclusion under section 1395y(d)(l)(A). Appellants support their argument by contrasting subsections (d) and (e) of section 1395y. Subsection (e) authorizes the Secretary to suspend physicians or other health care practitioners from participation in the Medicare program if they have been convicted of a program related crime. Appellants contend that subsection (e) evidences Congress’ intent that the Secretary not rely upon a conviction to exclude suppliers from participation in the Medicare program under subsection (d). Appellants note that during Congressional hearings on proposed subsection (e), the AMA and HEW proposed broadening the suspension upon conviction provision to include any person or entity convicted of program related crimes, rather than limiting it to physicians and individual practitioners. Appellants conclude that the absence of a suspension upon conviction provision in subsection (d) means that Congress intended to limit suspension upon conviction to physicians and individual practitioners.
Appellants’ arguments are without merit. Exclusion from the Medicare program pursuant to section 1395y(d)(l)(A) does require the Secretary to determine that the excluded person “has knowingly and willfully made, or caused to be made, any false statement or representation of a material fact for use in an application for payment under this subchapter or for use in determining the right to a payment under this subchapter.” 42 U.S.C.A. § 1395y(d)(l)(A). Appellants were indicted for violating 42 U.S.C. § 1395nn, and the indictment charged appellants with knowingly and willfully making and causing to be made false, fictitious, and fraudulent statements and representations of material facts in applications for payment under the Medicare program. Section 1395nn has language almost identical to that of section 1395y(d)(l)(A). Section 1395nn encompasses whoever “knowingly and willfully makes or causes to be made any false statement or representation of a material fact in any application for any benefit or payment under this subchapter.” 42 U.S.C.A. § 1395nn(a).
“It is well-settled that a plea of nolo contendere constitutes an admission of ‘every essential element of the offense [that is] well pleaded in the charge. United States v. Frederickson, 601 F.2d 1358, 1365 n. 10 (8th Cir.), cert. denied, 444 U.S. 934, 100 S.Ct. 281, 62 L.Ed.2d 193 (1979) (brackets in original) (quoting Lott v. United States, 367 U.S. 421, 426, 81 S.Ct. 1563, 1566, 6 L.Ed.2d 940 (1961)). Appellants’ pleas of nolo contendere to the charges constitute an admission that they knowingly and willfully made or caused to be made false, fictitious and fraudulent statements and representations of material facts in applications for payment under the Medicare program. Because the indictment and the statutes have virtually identical language, a conviction under section 1395nn establishes the essential elements of section 1395y(d)(l)(A), and it is substantial evidence warranting exclusion of appellants from the Medicare program.
C.
Appellants next argue the AU erred by admitting hearsay evidence which was irrelevant and unreliable. At the hearing, appellants objected to the testimony of Robert Foster, a HCFA employee, regarding his investigation of the case and his interviews with former customers of the appellants. Appellants contend the hearsay testimony was irrelevant because it was not relied upon by the Secretary in excluding appellants from the Medicare program. Appellants assert that admission of the irrelevant hearsay evidence was fundamentally unfair since it did not form the basis of the exclusion.
Appellants cite the case of Calhoun v. Bailar, 626 F.2d 145 (9th Cir.1980), cert. denied, 452 U.S. 906, 101 S.Ct. 3033, 69 L.Ed.2d 407 (1981), as setting out a test for admissibility of hearsay evidence in administrative hearings. The court in Calhoun stated that the test for admissibility of hearsay evidence in an administrative context requires “that the hearsay be probative and its use fundamentally fair.” Id. at 148. The court also discussed the Supreme Court’s decision in Richardson v. Perales, 402 U.S. 389, 402-06, 91 S.Ct. 1420, 1427-30, 28 L.Ed.2d 842 (1971), in which the Court listed nine factors that assure reliability and probative value. Appellants argue the multifactor analysis of reliability should have been conducted by the ALJ before admitting the hearsay testimony.
A careful reading of Richardson and Calhoun reveals that the multifactor analysis is used to determine whether the hearsay evidence constitutes substantial evidence supporting an administrative decision. In other words, the multifactor analysis is used to assure reliability when hearsay evidence is the sole basis for agency action. See Calhoun, 626 F.2d at 149. Thus, appellants’ argument for application of Calhoun’s multifaetor analysis is misplaced. The present case is not one in which hearsay evidence alone must constitute substantial evidence in order to support the Secretary’s decision.
Hearsay evidence is admissible in an administrative proceeding, provided it is relevant and material. Richardson, 402 U.S. at 400, 91 S.Ct. at 1426; Evosevich v. Consolidation Coal Co., 789 F.2d 1021, 1025 (3d Cir. 1986). The hearsay testimony to which appellants object is relevant and material to this case. The hearsay testimony concerned the Secretary’s investigation of appellants and consisted of information derived from interviews with former customers of the appellants. Although the ALJ conceded that the hearsay testimony alone was insufficient to support exclusion of appellants, the hearsay testimony remained relevant and material because the AU concluded that the convictions, combined with the hearsay evidence, were sufficient to exclude the appellants.
In the context of their challenge to the hearsay evidence, appellants also challenge the credibility of Foster’s testimony. Appellants cite testimony by Lawson Myers, III, contradicting and impeaching Foster’s testimony. However, the AU gave little weight to Myers’ self-serving testimony, and found it insufficient to rebut the Secretary’s evidence. Although the “reviewing court does not act, even in credibility matters, as a mere rubber stamp for the administrative agency action on appeal;” Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1290 (6th Cir.1984), “[i]t is well-settled that it is 'the function of the AU to resolve credibility problems.’ ” NLRB v. Norbar, Inc., 752 F.2d 235, 239 (6th Cir. 1985) (quoting NLRB v. Downslope Industries, Inc., 676 F.2d 1114, 1116 (6th Cir 1982)). “This court will not normally disturb the credibility assessments of ... the Administrative Law Judge who has observed the demeanor of the witnesses.” Norbar, 752 F.2d at 239 (quoting NLRB v. Magnetics International, Inc., 699 F.2d 806, 813 (6th Cir. 1983)). Because the AU was required to evaluate conflicting testimony from two witnesses, his opportunity to observe the demeanor of the witnesses warrants deference to his decision, and appellants’ argument challenging Foster’s credibility is rejected.
III.
For the reasons stated, the district court’s judgment dismissing appellants’ action is AFFIRMED.
. 42 U.S.C. § 1395nn was repealed, effective August 18, 1987, by section 4(e) of the Medicare and Medicaid Patient and Program Protection Act of 1987, Pub.L. No. 100-93, 101 Stat. 689 (1987).
. 42 U.S.C. § 1395y(d) was repealed, effective August 18, 1987. Id. § (8)(c)(l)(A).
. On October 7, 1987, appellants notified the district court of the death of Lawson H. Myers, Jr. The court ordered the co-executors of the estate be substituted as plaintiffs.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_genresp2
|
I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
Evelyn Elisabeth KIRKHUFF, Appellee, v. Robert P. NIMMO, Administrator, Veterans Affairs, Appellant.
No. 81-1770.
United States Court of Appeals, District of Columbia Circuit.
Argued April 29, 1982.
Decided July 20, 1982.
Mark H. Gallant, Atty., Dept, of Justice, Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed, and William Kanter, Atty., Dept, of Justice, Washington, D. C., were on the brief, for appellant. Kenneth M. Raisler, Asst. U. S. Atty., Washington, D. C., entered an appearance for appellant.
Robert M. Morgan, Washington, D. C., for appellee.
Before WILKEY and WALD, Circuit Judges, and McGOWAN, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge McGOWAN.
McGOWAN, Senior Circuit Judge:
The Administrator of Veterans’ Affairs (Administrator) appeals from a judgment by the District Court declaring invalid as ultra vires a Veterans’ Administration regulation denying medical benefits for pregnancy and childbirth to financially needy veterans. This appeal raises serious questions about the power of the federal courts to review decisions of the Administrator. Because we find that, even assuming we have such power, the regulation survives appellee’s challenges, we reverse and remand.
I
Appellee Evelyn Kirkhuff is an honorably discharged veteran of the Navy. In 1975, after her discharge and during the course of her pregnancy, she inquired of the Veterans’ Administration (V.A.) as to her entitlement to free hospital care, she being unable to pay for her own care. The V.A. informed her that the regulations provided for financial benefits only in the event of a pregnancy or parturition complicated by a pathological condition. She subsequently made formal application for hospital coverage, but when a medical examination conducted at the expense of the V.A. revealed no pathology, her application was denied. After the normal birth of her child, Kirk-huff appealed the denial of her application to the Board of Veterans Appeals, and simultaneously petitioned the Administrator to change the regulation and reimburse her for her medical expenses, which totaled $1,017.82. On January 26,1978, the Administrator denied her petition, stating “that the ability to procreate and the existence of an uncomplicated pregnancy are not in themselves” compensable within the framework of the relevant statute. J.A. at 87. The Board likewise denied her application, finding itself “bound in its decisions by the regulations of the Veterans’ Administration.” J.A. at 79. Having thus exhausted her administrative remedies, Kirkhuff filed an action against the Administrator in the District Court, contending that the regulation exceeded his statutory authority and the bounds of the Constitution, and seeking declaratory and injunctive relief. The parties filed cross-motions for summary judgment. On May 8, 1981, the District Court granted Kirkhuff’s motion and remanded the case to the V.A. for processing, holding that both of her claims were subject to judicial review, and that the regulation indeed exceeded the scope of the Administrator’s statutory authority. It is from this decision that the Administrator of Veterans’ Affairs appeals.
II
Before reaching the merits of the instant case, we are confronted with a serious argument that the federal courts lack the power to review decisions of the administrator. 38 U.S.C. § 211(a) (1976) provides that
the decisions of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans... shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.
Appellant claims that this provision constitutes a barrier to judicial review of his decision not to amend the rule and, as well, of the substance of the rule itself. Appellee, on the other hand, would have us apply the barrier only to review of adjudicative determinations of the Administrator.
Jurisdictional limitations like the one expressed in § 211(a) are to be interpreted narrowly, in the light of a “basic presumption of judicial review” which is to govern absent “ ‘clear and convincing evidence’ ” of congressional intent to the contrary. Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967), quoting Rusk v. Cort, 369 U.S. 367, 379-80, 82 S.Ct. 787, 794, 795, 7 L.Ed.2d 809 (1962). See de Magno v. United States, 636 F.2d 714, 721 (D.C.Cir.1980).
There is clear evidence in the plain language of the provision that Congress intended to exempt some decisions of the Administrator from judicial scrutiny. In addition, Congress, reacting to a line of cases in this court construing it narrowly, amended § 211(a) in 1970 to broaden the reach of the provision. H.R.Rep.No.1166, 91st Cong., 2d Sess. 8-11 (1970), U.S.Code Cong. & Admin.News 1970, p. 3723. The precise reach of § 211(a), however, remains unclear. Consequently, while allowing that some decisions of the Administrator must indeed stand untouched by the judiciary, courts have recognized various exceptions to the statutory limitation on review.
In Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), the Supreme Court held that § 211(a) did permit some judicial review within the context of the veterans’ benefits statutes. In that case, a conscientious objector, who had been denied educational benefits under a statute providing such benefits to veterans, challenged the statute itself on first and fifth amendment grounds. The Supreme Court held that such challenges were not barred by § 211(a) because they involved questions of law arising “under the Constitution,” rather than “under the statute.” Id. at 367, 94 S.Ct. at 1166, quoting the opinion of the district court in that case, 352 F.Supp. 848, 853 (D.Mass.1973). Indeed, the Court implied that such a construction was necessary to render the provision constitutional. 415 U.S. at 366-67, 94 S.Ct. at 1165-1166.
In explaining the policy justifications for allowing review, the Court indicated that Congress had limited judicial review for two principal purposes:
(1) to insure that veterans’ benefits claims will not burden the courts and the Veterans’ Administration with expensive and time-consuming litigation, and
(2) to insure that the technical and complex determinations and applications of Veterans’ Administration policy connected with veterans’ benefits decisions will be adequately and uniformly made.
Id. at 370, 94 S.Ct. at 1167 (footnotes omitted). The Court determined that such purposes were not disserved by an exercise of jurisdiction in the type of case before it, a constitutional challenge to the statute itself rather than a decision made “in the interpretation or application of a particular provision of the statute to a particular set of facts.” Id. at 367, 94 S.Ct. at 1166.
Following Johnson, courts of appeals have expanded even further the reach of judicial review of V.A. actions. In several cases courts have held permissible constitutional review of V.A. regulations. In addition, some courts have agreed to consider nonconstitutional challenges to V.A. actions. For example, in Wayne State University v. Cleland, 590 F.2d 627 (6th Cir. 1978), the Sixth Circuit considered a claim that the Administrator lacked statutory authority to promulgate a regulation defining full-time study for purposes of determining veterans’ educational benefits. The court held that the rationale of Johnson indicated that regulations were indeed reviewable by the courts for consistency with the statute, since such review would neither “involve the federal courts in the day to day operations of the V.A.” nor “spawn suits requesting federal courts to second guess the Administrator on the merits of particular claims for benefits or the termination of such benefits.” Id. at 631-32 (footnote omitted). Such suits, instead, “seek a determination whether regulations have been promulgated pursuant to a congressional grant of authority.” Id. at 632.
In similar cases, several other courts of appeals have followed the reasoning of Wayne State in reviewing challenges to V.A. regulations. See, e.g., Evergreen State College v. Cleland, 621 F.2d 1002 (9th Cir. 1980); University of Maryland v. Cleland, 621 F.2d 98 (4th Cir. 1980); Merged Area X (Education) v. Cleland, 604 F.2d 1075 (8th Cir. 1979). Still others have attempted to limit Johnson to its facts. See, e.g., Anderson v. Veterans Administration, 559 F.2d 935 (5th Cir. 1977); Mulvaney v. Stetson, 470 F.Supp. 725 (N.D.Ill.E.D.1979).
While this court has said that the holding in Johnson “extends beyond its specific facts and that its analysis is appropriate in determining whether a statute precludes judicial review of constitutional challenges to agency procedures,” Carter v. Cleland, 643 F.2d 1, 5 (D.C.Cir.1980), it has never broadened that holding beyond the constitutional arena. In Carter, appellants challenged a V.A. interpretive guideline, on the basis of which they had been denied death benefits. The relevant benefit legislation provided death benefits only to surviving spouses who had cohabited with a deceased veteran spouse continuously prior to the latter’s death. The challenged guideline indicated that “[t]he birth of a child to the claimant as the result of relations with a person other than the veteran [would] be accepted as proof of lack of continuous cohabitation....” Veterans Administration Department of Veterans Benefits Manual M21-1 § 8.11(c)(4) (1975), quoted in Carter, 643 F.2d at 3. This court held that in the absence of constitutional challenge, neither a claim that the evidence did not support the findings of the Board of Veterans Appeals, nor a claim that “the statute requires case-by-case determinations of fault and does not permit the creation of categories of conduct that operate automatically to exclude spouses from death benefits,” id. at 7, is reviewable by the courts in the face of § 211(a). The court, while pretermitting the issue of the validity of the Wayne State exception, declined to extend any such exception to nonbinding interpretive guidelines such as the one then before the court. See also Ralpho v. Bell, 569 F.2d 607, 620 (D.C.Cir.1977) (construing a provision similar to § 211 and indicating that a reading of the statute to preclude constitutional review of agency procedures would raise doubts of constitutionality like those considered and averted in Johnson).
The extent to which Veterans’ Administration decisions are exempt from review raises serious questions. Nevertheless, because we hold that the judgment of the District Court must be reversed, even assuming that we may review the decision of the Administrator in this case, we need not reach this difficult question.
III
In 1924, Congress first extended medical coverage to needy veterans suffering from disabilities unrelated to service in the line of duty in the armed forces. Pub.L.No. 68-242, § 202(9), (10), ch. 320, 43 Stat. 607, 620 (1924). Prior to that time, benefits extended only to victims of service-connected disabilities. The new statute, the World War Veterans’ Act, 1924, defined covered conditions as “wound[s],” “injury,” and “disease.” Id. See generally S.Rep.No.397, 68th Cong., 1st Sess. 3 (1924).
In 1925, the V.A. first denied medical coverage to a pregnant veteran, pursuant to the opinion of its medical director that
it was the consensus of opinion of the Medical Service that pregnancy and parturition, uncomplicated, were physiological functions and therefore could not be considered as disabilities for which hospitalization could be granted....
J.A. at 132. The General Counsel of the V.A. conceded that this determination was “obviously not a matter within the jurisdiction of [his] office but within that of [the medical] service.” Id. The V.A. subsequently adopted a formal regulation providing to that effect:
[w]omen veterans will not be entitled to hospital care for pregnancy and parturition unless it is complicated by a pathological condition.
38 C.F.R. § 17.48(e) (1981). In the event of such a pathological condition, the veteran may apply for benefits even after the fact, providing that someone contacts the V.A. on her behalf within 72 hours of a hospital admission. 38 C.F.R. § 17.50d(a) (1981). Failure to meet this deadline only reduces the time during which a veteran is eligible for compensation. Id. at (b).
The relevant statute now authorizes the Administrator to provide compensation for “a non-service-connected disability,” 38 U.S.C. § 610(a)(1)(B) (1976), which it defines as “a disease, injury, or other physical or mental defect.” 38 U.S.C. § 601(1) (1976). Appellee contends, and the District Court held, that the V.A. regulation denying compensation for normal parturition does not comport with the language of this statute. She rests this argument on two distinct bases. First, she claims that normal parturition is a disability because it requires hospitalization. Second, she contends, following the District Court, that “the history of legislation providing hospital care to veterans evinces a congressional intent to enact increasingly comprehensive benefits and to recognize the distinct nature of women’s medical needs” and that this intent is “irreconcilable with the VA regulation.” Appellee’s Br. at 39.
Kirkhuff argues with reason that a common-sense definition of “disability” might include normal pregnancy and parturition. Indeed, both pregnancy and, a fortiori, parturition, may disable the mother from performing certain activities. It may also be that modern medical thought contemplates hospital-based childbirth. We are not confronted, however, with the bare statutory use of the word “disability.” Rather, Congress has taken pains to indicate that “disability” within the meaning of the statute only encompasses three types of conditions: injury, disease, and defect. We thus need not determine what “disability” may mean in everyday parlance or in the abstract. We must instead consider what Congress meant by these three words.
Our standard of review in such cases is governed by the recent opinion of the Supreme Court in Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981). The Court indicated that if the meaning of a statute is clear neither from the plain language of the statute nor by necessary implication from it, when an agency has the primary responsibility for administering and enforcing a statute, and has sole and considerable discretionary power to interpret and apply the act, “deference [must] presumptively be afforded” to its construction of the statute in question. Id. at 45. This deference is underscored if the agency’s “position on the question... is clear,” if it “consistently has adhered to its construction” of the provision in question, and if it has several times rejected the proposed alternate construction. Id. In such circumstances, the task for the courts, in determining whether the agency’s construction is contrary to law, is
not to interpret the statute as it thought best but rather the narrower inquiry into whether the [agency’s] construction was “sufficiently reasonable” to be accepted by a reviewing court.... To satisfy this standard it is not necessary for a court to find that the agency’s construction was the only reasonable one or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.
Id. at 46 (citations omitted).
This standard is applicable to review of the regulation challenged in the instant ease. The Veterans’ Administration has the primary responsibility for interpreting and applying the various veterans’ benefits statutes; this is a task for which it has considerable expertise. It has, since the passage of the relevant legislation, adhered to an interpretation barring benefits for normal pregnancy and childbirth, even in the face of several challenges to this determination.
In addition, deference is due to an agency’s construction of a statute when Congress becomes aware of, and fails to correct, that construction. Cf. Thompson v. Clifford, 408 F.2d 154, 166 (D.C.Cir.1968) (ratification of or acquiescence in an agency’s construction of a statute by the legislature enhances the deference due that construction). The Administrator’s interpretation of the benefits legislation as excluding compensation for normal parturition was early brought to Congress’s attention. When, in 1926, the House Committee on World War Veterans Legislation held a hearing on the provision of medical care for army nurses, the following colloquy occurred between the Chairman of the committee and a representative of a disabled veterans’ group:
CHAIRMAN: In this connection, I am very clear in my belief that an injustice is being done to some of these women who served just as much as anybody else did in the A.E.F., although they did not have a military status. An injustice is particularly being done to some who were actually under fire and to some who were actually disabled....
... I believe, however,... we have the yeomanettes who were taken in, and... the legal division of the bureau held, as I recall it, that some of these yeomanettes may use these hospitals for maternity wards.
MR. MILLER: No, sir; the Veterans’ Bureau has held that childbirth is a physiological phenomenon and not a disability-
Hearings on H.R. 4474 Before the House Committee on World War Veterans’ Legislation, 69th Cong, 1st Sess. 371 (1926) (Part I). Furthermore, the interpretation has been cited in published opinions of the Comptroller General and the V.A. General Counsel, and has been republished every year since 1938 in either the Federal Register or the Code of Federal Regulations. Reply Br. at 8. And where within the same statute Congress wished to provide maternity coverage for certain wives and widows of veterans who suffered from, or had perished of, service-connected disabilities, it did so expressly. 38 U.S.C. § 613 (1976), incorporating 10 U.S.C. § 1077(a)(8) (1976). That this difference in specificity was not coincidental is indicated by the fact that the provisions of care for the latter group of women are generally much broader than for veterans suffering non-service-connected disabilities. See pages 551-52 infra. Under these circumstances, however plausible may be alternate constructions of this legislation, we must uphold the agency’s interpretation if we find it, in the language of the Supreme Court, “sufficiently reasonable.”
Appellee urges that the Administrator’s construction of the statute is unreasonable because it conflicts with the intent of Congress as expressed in the législative history of the Act, and in subsequent Congressional action. In support of this conclusion, she points to several exchanges that occurred prior to passage of the original statute authorizing medical care for non-service-connected disabilities. One such exchange occurred between the representative of the American Legion and Senator Reed of Pennsylvania:
MR. MILLER: It is hoped that these benefactions will be extended to the veterans of all wars who are requiring hospitalization, without regard to the origin or character of their disease or injury, and we feel that the hospitals will not be congested or overcrowded, because men do not seek hospitalization in Government hospitals unless they have to....
SENATOR REED: I think the committee agrees with you fully, but it is just a question whether the hospital’s capacity will admit it. We would like to make the change you suggest, and I think we will if the figures indicate that it is possible.
Veterans Bureau Codification Act: Hearings on S. 2257 Before the Subcomm. (unnamed) of the Senate Finance Comm., 68th Cong., 1st Sess. 7 (1924).
Senator Reed also discussed the matter at the hearings with General Hines, Director of the Veterans’ Bureau.
GENERAL HINES: The first recommendation made by the bureau is with reference to the authorization of general hospitalization; to authorize the hospitalization in the discretion of the director of all honorably discharged veterans of any war who are in need of hospitalization, wherever facilities are available and sufficient therefor.
SENATOR REED: That, of course, was the recommendation of President Coolidge in his message.
GENERAL HINES: Yes; in his message. The committee has included on page 33 of the bill, section 10, commencing on line 19, a provision which in effect is the same as that of the bureau, and I feel that it could be made broader, less subject to serious interpretation, if the language was changed somewhat, and I have suggested that section 10 should read as follows:
The United States Veterans’ Bureau is hereby authorized, in the discretion of the director, to furnish hospitalization in Government hospitals, and necessary traveling expenses, to veterans of any war who have not been dishonorably discharged from the service, and who, in the judgment of the director, are in need of hospitalization, without regard to the nature or origin of their disabilities.
Id. at 87.
The provision as ultimately enacted sets forth two separate criteria for compensation: hospital care must be necessary, 38 U.S.C. § 610(a) (1976), and the condition for which it is sought must constitute a disability, id. at § 610(aXl)(B), defined as “a disease, injury, or other physical or mental defect.” Id. at § 601(1). The exchange between Mr. Miller and Senator Reed speaks of hospitalization for “disease” or “injury,” rather than “any condition” or even “any disability.” It also indicates that the cost of providing such extensive coverage and the capacity of the V.A. hospitals to admit of such extension were uppermost in the minds of members of Congress. We cannot, therefore, conclude from these exchanges that the statute indicates plainly or by necessary implication that veterans are to receive hospital care for normal childbirth.
Appellee also argues that subsequent actions of Congress indicate its intent to provide maternity care to female veterans. Over a half century of Congressional deliberations, it is argued, evince an intent “that hospital care be liberally afforded to all veterans and that special provisions be made for the medical needs of women veterans.” Appellee’s Br. at 49. Kirkhuff supports this proposition by reference to several different sections of the statute under which she claims entitlement to benefits. First, in 1973 Congress extended free hospital care to all needy veterans suffering from all disabilities, rather than compensating only wartime veterans or veterans serving after 1955. Pub.L.No.93-82, § 102, 87 Stat. 179, 180 (1973), codified at 38 U.S.C. § 610 (1976). Second, at the same time Congress provided compensation for outpatient care when such care could “obviate the need of [ ] hospital admission.... ” Pub.L.No.93-82, § 103(a), 87 Stat. 179, ISO-81 (1973), codified at 38 U.S.C. § 612(f) (1976). Third, Congress provided maternity and infant care to certain dependents of disabled or deceased veterans. 10 U.S.C. § 1077(a)(8) (1976).
Congress has attempted over the years to maximize utilization of V.A. hospital facilities. See, e.g., S.Rep.No.397, 68th Cong., 1st Sess. 8 (1924) (letter of Frank T. Hines, Director, Veterans’ Bureau); 65 Cong.Rec. 10172 (1924) (remarks of Rep. Browning); S.Rep.No.1206, 94th Cong., 2d Sess. 71 (1976), U.S.Code Cong. & Admin.News, 1976, p. 6355. An attempt to optimize use of existing facilities does not, however, indicate a desire to create the new facilities that would be necessary to extend care to pregnant veterans. See note 9 supra. And Congress itself has indicated that its primary mission over the years has been
the provision of first-class medical care to service-connected veterans. Its secondary mission has been to provide care for non-service-connected veterans, but only to the extent that facilities are available so as to bring about a patient population size which would promote efficient utilization of resources.
S.Rep.No. 1206, 94th Cong., 2d Sess. 71 (1976), U.S.Code Cong. & Admin.News 1976, p. 6363. Appellee can draw little support from the provision of maternity care to survivors and spouses of disabled veterans. Congress has stated that with regard to this group
[t]he Nation has long recognized that the widow and children of a veteran who dies ■ of service-connected disease or injury or of a veteran who has a service-connected total disability are in a special category and deserving of substantial compensation and assistance in return for the sacrifice the family has made.
H.R.Rep.No.368, 93d Cong., 1st Sess. 7 (1973).
As we indicated above, although the interpretation suggested by appellee may be one of a number of reasonable interpretations of the legislation, and while that interpretation might even be the one the courts would have favored in the first instance, when the appropriate construction is not plain from the face of the statute or necessarily implied by it, so long as the agency’s interpretation is “sufficiently reasonable,” we must uphold it. In the light of the legislative history, the wide-ranging responsibility and discretion of the Veterans’ Administration on matters dealing with benefits for veterans, and the long-standing, consistent, and widely publicized nature of the V.A.’s interpretation, we hold that it satisfies this test.
IV
Appellee also raises constitutional challenges to the Veterans’ Adminístration’s policy of denying benefits for normal pregnancy and parturition. Again, we may assume for purposes of analysis that we have jurisdiction, and, in fact, this type of challenge falls more closely within the exception created by Johnson than does a challenge based on ultra vires.
Appellee raises two constitutional challenges. First, she claims that the regulation denies her due process by erecting irrebuttable presumptions that veterans going through a normal childbirth are not disabled, and that it is possible to ascertain prior to delivery that parturition will be normal. The alleged violation of due process inheres in the “factually unjustified” nature of such presumptions. Appellee’s Br. at 31.
Kirkhuff rightly notes that the Supreme Court has discountenanced the use of irrebuttable presumptions that are not justified by the underlying facts. See, e.g., Cleveland Board of Education v. LaFleur, 414 U.S. 632, 643-48, 94 S.Ct. 791, 797-800, 39 L.Ed.2d 52 (1974); Stanley v. Illinois, 405 U.S. 645, 654-58, 92 S.Ct. 1208, 1214-1216, 31 L.Ed.2d 551 (1972). The regulation at issue in this case does not, however, fall within the strictures of these holdings because it does not constitute an irrebuttable presumption. The regulation does not presume either that women will not need hospitalization for normal parturition, or that it is possible to ascertain normalcy of delivery prior to the procedure. It does not and need not presume the former because that is not the exclusive statutory standard for compensation. The statement that women will not receive compensation for uncomplicated childbirth is more in the nature of an administrative interpretation of the statute than an irrebuttable presumption and is, as we have indicated in part III, reasonable. And by allowing payment of compensation retroactively if a delivery turns out to be complicated, the V.A. avoids presuming irrebuttably that one may determine in advance that parturition will be uncomplicated.
Second, Kirkhuff claims that the regulation discriminates in violation of her right to equal protection, and that it should be strictly scrutinized both because the basis of the discrimination is gender and because it impinges upon the fundamental right of procreation.
The challenged regulation does not discriminate on the basis of gender, but rather distinguishes between types of conditions that are genuinely different. The Supreme Court held in Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), that a state system of disability insurance may exclude benefits for normal pregnancies without violating the equal protection clause, absent a showing that the exclusion was a pretext for gender discrimination. Appellee’s argument that Geduldig is inapposite because the regulation challenged in that case was, on its face, gender neutral ignores the obvious fact that any regulation dealing with pregnant persons deals only with individuals of one gender, regardless of the facial characteristics of the law. Appellee also argues that Geduldig can be distinguished because of the strong state policies in that case supporting the regulation: that to hold otherwise would have necessitated an increase in assessments on state employees or would have rendered the insurance program no longer self-supporting, and that under that program, assessments were proportional to wages.
These distinctions do not persuasively distinguish the regulation challenged in the instant case. As in Geduldig, exclusion of coverage for pregnancy has a strong basis in that financial and hospital resources for veterans are limited. Congress might well have decided that pregnancy coverage, which could not be provided within existing V.A. hospitals, would place too heavy a burden on the system. This consideration, part of the Supreme Court’s analysis in Geduldig, was underlined in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), in which the Court again pointed to cost considerations, as well as to the fact that it considered pregnancy to be “significantly different from the typical covered disease or disability,” id. at 136, 97 S.Ct. at 408, in upholding, in the face of a challenge based on Title VII, a private disability plan excluding coverage for pregnancy-related treatment. Thus, the V.A. does not discriminate on the basis of gender when it denies coverage for nonpathological pregnancy and childbirth.
Kirkhuff further claims that the regulation must be scrutinized strictly because it impinges on the “fundamental” right of procreation, set forth by the Supreme Court in Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). Skinner involved mandatory sterilization of habitual criminal offenders, a direct and permanent burden on the ability to procreate. Such a direct burden must be distinguished, for purposes of analysis, from both an indirect burden and the deprivation of a benefit. See Califano v. Aznavorian, 439 U.S. 170, 174-78, 99 S.Ct. 471, 473-475, 58 L.Ed.2d 435 (1978). The plaintiff in Aznavorian challenged a statute discontinuing certain social security benefits for recipients spending time outside of the United States as a deprivation of her constitutional right to international travel. The Court upheld the statute because to the extent that it impaired that right, the burden was only incidental. Id. at 177.
Likewise, in Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), the Court held that the right to terminate a pregnancy at an early stage, which the court indicated was fundamental to the right to procreate, was not offended by the government’s failure to fund early abortions. In so holding, the Court stated:
[t]he financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency.... We are thus not persuaded that the Hyde Amendment impinges on the constitutionally protected freedom of choice....
Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.
Id. at 316-18, 100 S.Ct. at 2688-2689 (footnote omitted). For this reason, the Court, in reviewing the statute, utilized the rational basis standard.
The Government must establish, then, only that the challenged regulation rationally furthers some government end. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161-1162, 25 L.Ed.2d 491 (1970). Cost considerations attendant to the provision of natal and prenatal care, the difference between pregnancy and other “disabilities,” and the limited nature of V.A. medical facilities suffice to provide a rational link between the regulation and the V.A.’s primary purpose to provide medical care to veterans with service-connected disabilities, and its secondary purpose to provide care to other needy veterans, consistent with efficient usage of its resources.
Because we find that the regulation challenged in the instant case survives statutory and constitutional muster, we reverse the determination of the District Court to the contrary.
It is so ordered.
. The basis for appellee’s challenge is not entirely clear. Appellant characterizes it as a petition for review of the Administrator’s refusal to
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
COHN v. UNITED STATES.
(Court of Appeals of District of Columbia.
Submitted November 3, 1926.
Decided December 6, 1926.)
No. 4494.
Arrest <6=^63(4) — Searches and seizures ©=> 7 — Arrest of defendant without warrant while transporting liquor held warranted, and search incidental thereto not unreasonable (National Prohibition Act, tit. 2, § 26 [Comp. St. § 10l38i/2mm]).
"Where officer, knowing that defendant had been mixed up in liquor transactions, became suspicious on seeing cartons partially covered in defendant’s automobile, and arrested defendant without warrant after he had admitted that he had “three boxes of corn,” held, arrest was justified, and search incidental thereto not unreasonable, in view of National Prohibition Act, tit. 2, § 26 (Comp. St. § 1013S%mm)., ■
Appeal from the Supreme Court of the District of Columbia.
Morris Cohn was convicted of a second offense of unlawfully possessing intoxicating liquor, and he appeals.
Affirmed.
H. T. Whelan and W. B. O’Connell, both of Washington, D. C., for appellant.
Peyton Gordon and Raymond Neudeeker, both of Washington, D. C., for the United States.
Before MARTIN, Chief Justice, ROBB, Associate Justice, and BARBER, Judge of the United States Court of Customs Appeals.
BARBER, Acting Associate Justice.
The appellant, defendant below, was tried, convicted, and sentenced in. the Supreme Court of the District of Columbia, upon an indictment charging him with a second offense of the unlawful possession of intoxicating liq.uor, whisky, under the National Prohibition Act (Comp. St. §■ 10138^4 et seq.). He was convicted of his first offense August 30,1922. The offense here involved was committed October 29, 1923.
The errors complained of are: (1) The admission of evidence alleged to have been unlawfully seized. (2) Refusal to reject evidence. But defendant’s counsel in his brief well states the issue as follows:
“Inasmuch as the admission of the evidence complained of depended solely upon the legality of the arrest, search, and seizure, this is the only question involved on this appeal. If the search was legal, and the liquor properly seized, it was properly admitted in evidence, and the verdict of the jury was also proper. However, if the search and seizure were unlawful, * * * then appellant’s motion to suppress the evidence should have been sustained. * * * ”
The substance of the testimony in narrative form is as follows:
A policeman on direct examination testified that he saw defendant driving an automobile past a certain street intersection in the city in the daytime, without giving the proper traffic signal, and noticed two boxes on the seat of the car partly covered. He knew the driver, the defendant, followed him some distance, then stopped him, and asked him;what he had, to which defendant replied, “Three boxes of com.” At that time the officer had no warrant for the arrest of defendant, nor a search warrant for the car. He.then took defendant to the station house “and charged him with illegal possession, transporting, and violation of the traffic regulations.” When he stopped defendant, the officer observed a ■ brown leather storm coat over the top of the boxes which were on the rear seat. The coat did not completely cover them. On top of the coat was a straw wrapper, and inside of that was a bottle containing some kind of liquor marked “White Horse Scotch.” He identified a jar shown him by the assistant district attorney as one that was taken out of one of the boxes in' defendant’s car. At the station house 18 gallons of liquor were found in the ear and seized. That it was intoxicating is conceded.
On cross-examination the officer said that he did not smell liquor when the ear passed him, did not see or taste any, and did not know what was in the defendant’s car, but that he had “a good, strong suspicion.”
On redirect examination he said that he knew the defendant, and knew that he had been “mixed up with liquor transactions previous to this,” with which, as an officer, he had had nothing to do. He knew that whisky, gin, and other things like that were transported in the kind of cartons that were in defendant’s car, had had some experience as an officer in other liquor law violations, and his suspicions were aroused by seeing the cartons covered.
On reeross-examination the officer was again asked what the defendant said when asked what he had, and again he testified that the answer was: “I have got three boxes of corn.” The witness was then asked if he remembered testifying in the ease about a year ago, and if then he did not say that the defendant, answering the question as to what he had, said, “ ‘Oh, you know what I have,’ and started laughing.” Witness replied that he might have so testified; that his recollection was vague about the testimony which he gave at the former trial. He also said that he could see enough of the packages in defendant’s car to discern that they were boxes similar to com whisky boxes.
The defendant testified in substance that he was requested by a friend to deliver and transport these cartons, but was ignorant of their contents, and denied that he told the officer that he had “three boxes of com on.” It is not claimed that, if defendant did: use the language, he meant com' whisky, and that the officer so understood.
Some of the seized liquor was then admitted in evidence against defendant’s objection and exception, and the case was submitted to the jury, with instructions to which no objection was made.
The pertinent part of section 26 of title 2 of the National Prohibition Act (41 Stat. 305 [Comp. St. § 10138%mm]), under which the defendant was prosecuted, provides that:
“When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any * * * automobile * * * it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law * * * and shall arrest any person in charge thereof.”
In Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 3 A. L. R. 790, the right of search and seizure thereunder without warrant, and what constitutes probable cause for so doing, were exhaustively considered. At page 149 (45 S. Ct. 283) it was said:
“On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.”
At page 161 (45 S. Ct. 288), speaking of probable cause and quoting from other decisions, it was said that:
■ “ ‘If the facts and circumstances before, the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient.’ * * 8 ‘The substance of all the definitions is a reasonable ground for belief in guilt.’ ”
In the Carroll Case, the facts relating to the seizure and arrest without warrant were, in brief, as follows:
The defendants were justifiably believed by the arresting officers to be engaged in plying the unlawful trade of selling liquor. When the seizure and arrest were made, they were on the public highway, presumably coming from the direction of the source of supply for their stock to the place where they plied their trade, and in the same automobile used by them on a previous occasion some two months before, when they had agreed to sell and deliver to the same officers some whisky, but did not do it, alleging as the reason that they could not obtain it. And, further, the evidence, as set out in the dissenting opinion, shows that, after the officers stopped the defendants’ automobile, they asked defendants to get out of the ear, which they did. The search was then made, the liquor found and seized, and the defendants thereupon arrested. It was held these facts constituted probable cause, and that the liquor found in the ear and seized was admissible in evidence.
We think the case at bar presents a stronger probable cause than did the Carroll Case. Here the officer’s suspicions were justifiably aroused by his knowledge of the defendant, by what he saw in the ear, and in addition to this, and before the car was searched and defendant arrested, the defendant admitted to the officer, if the latter’s testimony was true, and evidently the jury so found, that he had three cases of whisky in the car. We are unable to see why this admission, made before arrest or seizure, under the circumstances, did not justify both the arrest and seizure, and render admissible in evidence the liquor seized.
It follows that the judgment below ought to be and is affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_usc1
|
50
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
ALABAMA PACKING CO. v. UNITED STATES.
No. 12090.
Circuit Court of Appeals, Eiftii Circuit.
March 23, 1948.
Crampton Harris, George S. Brown and Kenneth Perrine, all of Birmingham, Ala., for appellant.
T. Vincent Quinn, Asst. Atty. Gen., Harvey H. Tisinger, Sp. Asst. U. S. Atty., of Atlanta, Ga., and Robert Giles, Asst. U. S. Atty., and John D. Hill, U. S. Atty., both of Birmingham, Ala., for appellee.
Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.
HUTCHESON, Circuit Judge.
Proceeded against under the penal provisions of the War Powers Act, appellant, a federally inspected slaughterer, was charged by information containing 225 counts with two kinds of willful violations of War Food Order 75.2 relating to beef products. The counts charging one kind may be called the “set aside” counts, the other the “delivery counts”. The set aside counts charged willful delivery for civilian consumption without setting aside for governmental agencies, the delivery counts charged willfully delivery for civilian consumption without delivery to governmental agencies, of a specified number of pounds of beef of a specified grade during named weeks. All set aside counts went out of the case, the defendant, convicted on 85 counts, charging civilian delivery without delivery to governmental agencies, has appealed, matching the multitude of the counts with as great a multitude of assigned errors. Assigned, arranged, and catalogued by subject matter, however, instead of by counts, they fall into four groups.
The first group deals with claimed error in overruling defendant’s motion to dismiss for insufficiency each of the 85 counts. The insufficiencies alleged were: (1) Failure “to state facts sufficient to constitute an offense against the United States”; (2) failure to charge any criminal offense; (3) violation of the sixth amendment for failure to inform the defendant of the nature and cause of the accusation.
The second group deals with claimed errors in the giving and refusing of charges defining “willfully.”
The third group deals with claimed errors in excluding evidence on its defense that its violation of the order was not willful.
The fourth group deals with claimed error in multiplying offenses. The point made here is that only thirty-four deliveries of meat for civilian consumption were dealt with in the 85 counts, whereas the counts are drawn on the theory that each delivery was made up of three grades of beef (see subd. 1, note 2), and the one delivery, therefore, constituted three separate and distinct offenses.
On its first point, that the information contains no allegation of fact charging appellant with the commission of a crime and that the allegation in each count, that what was done was “in violation of War Food Order 75.2, as amended,” was a mere conclusion of the pleader and added nothing to the information, appellant cites as controlling our cases, Sutton v. United States, 5 Cir., 157 F.2d 661 and Grimsley v. United States, 5 Cir., 50 F.2d 509.
We agree. It may not be doubted that unless the words “in violation of War Food Order 75.2, as amended”, can be taken as supplying all of the facts essential to constitute the offense charged, each of the counts on which defendant was convicted is wholly insufficient to charge a crime. In order for defendant to have been guilty of the offense of delivering meat for civilian consumption while failing to deliver meat to governmental agencies, (1) it must have slaughtered some of that particular grade of beef in the previous weeks, and (2) it must have failed to deliver a certain percentage of that beef to governmental agencies. The information does not charge the amount of the prior weeks’ slaughter, the particular grade that was slaughtered or the percentage of each grade which should have been delivered to governmental agencies.
All that is charged in each count is that defendant delivered meat for civilian consumption and did not deliver a certain poundage and grade to the government. Under War Food Order 75.2, defendant could • have done just this without being guilty of any offense. To charge defendant with crime, the information should have alleged the facts of the delivery for civilian consumption and of the non-delivery to governmental agencies, and these facts must have shown that these deliveries were made under circumstances prohibited by the War Food Order.
The defendant, not only timely moved to dismiss the information for its insufficiencies, but throughout the case maintained and preserved its position. The motion should have been granted. Its dismissal was reversible error. For the failure to grant it, the judgment must be reversed.
The reversal ordered on appellant’s first point has made it unnecessary for us to determine whether appellant’s other points present reversible error. In view of the fact, however, that on another trial these questions will certainly again arise, we think it necessary to give brief expression to our views on them.
Upon appellant’s point No. 2, charging error in the giving and refusing of charges defining “willfully,” it is sufficient to say that we agree with appellant that it was error for the court to charge as it did on page 604 of the record. We agree with appellee though that on page 605 the court correctly charged the meaning of “willfully” as applied to this case, and that it was not reversible error to refuse defendant’s requested charges.
In insisting that in addition to knowingly doing the prohibited act, the defendant must have had an evil purpose, a guilty conscience, a sense of moral guilt, defendant goes beyond the language of the statute which prohibits willfully doing or leaving undone an act and confuses the rule of the necéssity of scienter in offenses mala in se with the rule applicable to offenses mala prohibita.
What we have just said makes it clear that there is no merit in defendant’s third point that the evidence there offered was relevant upon the issue of whether it willfully did not do the thing charged. None of the matters it sought to prove was a defense. Neither did they in any manner bear upon whether defendant knowing that the War Food Order prohibited it from doing them, intentionally and deliberately did the prohibited acts. All of the evidence it offered had to do with an effort to present what it thought was a moral excuse for not complying with the statute. None of these excuses were at all relevant upon the sole question whether defendant had deliberately and knowingly done the acts charged.
Finally, we agree with appellant on its fourth point that in making 85 counts out of 34 offenses, the government has unduly split and unlawfully multiplied them. Blockberger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, on which the government relies is not applicable. Braden v. United States, 8 Cir., 270 F. 441; Parmagini v. United States, 9 Cir., 42 F.2d 721 ; Robinson v. United States, 10 Cir., 143 F.2d 276; are controlling here. The theory of the government that the offenses consist in the non-delivery to the government rather than in the delivery for civilian consumption will not do. The offense is the delivery of beef for consumption, not having made the requisite delivery to the government. This is not to say that the defendant could not commit three offenses on the same day by making three separate deliveries of three separate kinds of beef. It is to say that the proof in this case that there was one delivery in each of thirty-four weeks, in short thirty-four deliveries in all, will not support the conviction on eighty-five counts as for eighty-five deliveries.
The judgment is reversed and the cause is remanded for further and not inconsistent proceedings.
“Any person who willfully performs any act prohibited, or willfully fails to perform any act required by, any provision of this subsection (a) or any rule, regulation, or order thereunder, whether heretofore or hereafter issued, shall be guilty of a misdemeanor, and shall, upon conviction, be fined not more than $10,000 or imprisoned for not more than, one year, or both.” Subd. (5), Sec. 033, 50 U.S.C.A.Appendix.
Many times amended, this order, as applying to the information as a whole, in substances defined “federally inspected slaughterer”, and by amendment 31, effective October 28, 1945, provided in subd. 1(b) that no federally inspected slaughterer should de.liyer meat for civilian consumption unless he shall: ■
(1) set aside, reserve and hold for delivery to governmental agencies the following percentages of each week’s production of beef: 30 per cent of that graded U. S. Commercial; 40 percent of that graded U. S. Utility; and 50 percent of that graded canner and cutter;
(2) , (and it is this portion of the order on which the 85 counts are based) “deliver to governmental agencies, authorized purchasers, etc., before the close of each calendar week, beef of each of the grades specified in paragraph b(l) in an amount not less than the amount of beef of such grade required to be set aside, reserved, and held during the previous week”.
Count 129, typical of these counts, charged as follows:
“During the week ending Nov. 10, 1945, in the Northern District of Alabama, Alabama Packing Co., a corporation, being a federally inspected slaughterer, willfully delivered meat for civilian consumption, and did not deliver to governmental agencies, authorized purchasers, contract schools, marine hospitals, maritime academies, and ship suppliers, 1,-970 pounds of U. S. commercial grade >eef, in violation of War Food Order 75.2, as amended, contrary to the form of the statute in such cases, made and provided and against the peace and, dignity of the United States.”
For instance, Government’s Exhibit F-3 showed a delivery on Nov. 13, 1945, to A & P Food Stores by the defendant. Based on that delivery the information contains three counts: 130, 161 and 192, count 130 relating to Commercial grade beef, 161 to Utility grade beef, and 192 to Cutter and Canner grade beef.
“But to authorize a finding of guilty under any one or all of the counts of the information, it is not necessary that you believe beyond a reasonable doubt that in making such deliveries of meat for - civilian consumption that defendant supposed that it was breaking the law, or that the defendant specifically intended thereby to violate the applicable law”.
“If you believe from the evidence in this case that the defendant knew what it was doing, that is to say that the defendant actually knew that it was under an obligation not to deliver meat for civilian consumption during any week included in the information unless it also delivered to governmental agencies, authorized purchasers, and so forth, the specified percentages of the several separate grades of beef required to be set aside during the previous week, and that, notwithstanding its actual knowledge of such obligation, it knowingly, deliberately and purposefully delivered meat for civilian consumption during that week without also performing its obligation to deliver the required set aside beef of the previous week to the governmental agencies, and so forth, it would be your duty to find the defendant guilty under the appropriate count of the information.”
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_state
|
44
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Charles G. FLOYD, Jr., Defendant-Appellant Cross-Appellee.
No. 93-1181.
United States Court of Appeals, Fifth Circuit.
May 20, 1993.
Rehearing and Rehearing En Banc Denied July 1, 1993.
Michael S. Fawer, Jeffie J. Massey, Dallas, TX, Herbert V. Larson, Jr., New Orleans, LA, for appellant.
Richard A. Friedman, Crim.Div., Appellate Section, Dept, of Justice, Washington, DC, J. Steve Hinkle, Asst. U.S. Atty., Richard H. Stephens, U.S. Atty., Robert L. Webster, Asst. U.S. Atty., Dallas, TX, for appellee.
Before KING, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
We vacate a pretrial restraining order freezing certain of defendant Floyd’s assets that were untainted by the alleged criminal offenses, persuaded that the forfeiture statute does not authorize their restraint before conviction. We do not reach the government’s cross-appeal contending that insufficient sums were restrained. We find our jurisdiction under 28 U.S.C. § 1292(a)(1).
I.
Charles G. Floyd, Jr. is the former President and CEO of United Bank. His eode-fendant Thomas Merrill Gaubert was a real estate developer who borrowed money from United Bank. The indictment alleges that as part of a conspiracy between Floyd and Gau-bert the bank loaned $1.96 million to Gaubert for a payoff of $450,000 to Floyd. These loans, and there were four, were allegedly in excess of the bank’s lending limits. The indictment also charges that Floyd and Gau-bert disguised the loans by making them to four entities controlled by Gaubert, by failing to make the required disclosures to the bank, and by making false and misleading statements about them.
The government first sought an ex parte order, pursuant to 18 U.S.C. § 982(b)(1)(A), seeking to restrain certain named assets and asking for a general restraint of Floyd’s right to dispose of other assets. The district court partially granted this application, ordering Floyd to repatriate sums of $259,331 and $142,388 previously transferred to a bank in Liechtenstein. The $259,331 were proceeds from the sale of Floyd’s homestead, and the government concedes that none of the assets it has attempted to restrain were derived from or connected to Floyd’s alleged criminal activity. As a result, Floyd paid these sums, totalling $401,719, into the Registry of the Court.
Thereafter, the government sought a protective order under 21 U.S.C. § 853(e)(1)(A) to restrain Floyd’s assets up to $1.96 million, urging that this amount was subject to forfeiture in the event of conviction under 18 U.S.C. § 982(a)(1) or (2) and further that because Floyd does not possess this tainted money the restraining order could also apply to substitute assets under 21 U.S.C. § 853(p). After first deciding that § 853 allows the pretrial restraint of substitute assets, the district court granted the government’s motion but only to the extent of $450,000 in substitute assets, ruling that the full $1.96 million could not be restrained because it was not persuaded of a substantial likelihood that this amount would be forfeitable upon conviction. 814 F.Supp. 1355. The effect of this decision was to require Floyd to pay an additional $48,281 into the Registry of the Court. The district court then denied Floyd’s request to use the funds for living expenses and attorneys’ fees. Floyd appeals the orders restraining $450,000 in substitute assets and denying use of the funds for expenses. The government appeals the court’s refusal to restrain the full $1.96 million.
II.
A.
The first question is our jurisdiction over these appeals. Floyd relies on the collateral order exception to 28 U.S.C. § 1291, see Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and § 1292(a)(1), which allows the interlocutory appeal of injunctions. The government contends that the order restraining $450,000 is final under § 1291 only to the extent it denied restraint of the full $1.96 million, allowing it to appeal but not Floyd. The government also seeks a writ of mandamus. We find jurisdiction over both appeals under § 1292(a)(1).
In United States v. Thier, 801 F.2d 1463 (5th Cir.1986), we reached the merits of the defendant’s Fifth and Sixth Amendment challenge to a restraining order under § 853(e)(1)(A) without discussing jurisdiction. In United States v. Jenkins, 974 F.2d 32 (5th Cir.1992), we accepted jurisdiction over a district court’s denial of a motion to dissolve a pretrial restraining order issued under 18 U.S.C. § 1963(d) in a RICO conspiracy prosecution. We relied on Thier for the proposition that “[ujnder the law of this circuit, the district court’s denial of Jenkins’ motion is an interlocutory order refusing to modify or dissolve an injunction, and, as such, is immediately appealable under 28 U.S.C. § 1292(a)(1).” Id. at 34. We are not alone in holding that pretrial asset restraining orders are appealable as “injunctions” under § 1292(a)(1). United States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 900-01 (2d Cir.1992); United States v. Roth, 912 F.2d 1131, 1132-33 (9th Cir.1990); see also United States v. Kramer, 912 F.2d 1257, 1259 (11th Cir.1990) (stating that restraining orders under the RICO statute “have all the indicia of a traditional injunction for purposes of appellate review”); cf. United States v. Unit No. 7 and Unit No. 8, 853 F.2d 1445, 1448 (8th Cir.1988) (finding jurisdiction over civil forfeiture under § 1292(a)(1) and jurisdiction over criminal forfeiture under the collateral order doctrine).
B.
Our jurisdiction under § 1292(a)(1) to review the district court’s restraining order does not encompass Floyd’s contention that Count 10 fails to state an offense. See Jenkins, 974 F.2d at 34 (“[a]s a general rule, courts of appeals should conduct only a limited review in interlocutory appeals, and should address only the propriety of the orders that gave rise to the appeal”). Moreover, we have no interlocutory appellate jurisdiction over an attack on the sufficiency of the indictment. Abney v. United States, 431 U.S. 651, 663-64, 97 S.Ct. 2034, 2042-43, 52 L.Ed.2d 651 (1977); United States v. Miller, 952 F.2d 866, 874 (5th Cir.1992). Floyd, nevertheless, urges us to consider this claim because, the argument goes, the district court’s asset-restraining order necessarily depends on the sufficiency of Count 10, and if Count 10 is insufficient we must reverse the restraining order. We are not enticed by this proffered easier path to decision. The sufficiency of the indictment can be examined adequately in any appeal from a final judgment.
III.
Both parties challenge the district court’s restraining order. Floyd argues that the government lacks the statutory authority to restrain untainted assets before conviction and in any event the government failed to prove the forfeitability of $450,000, and finally that the restraint of assets in this case violates the Fifth and Sixth Amendments. The government argues that the district court misapplied the statute to preclude restraint of the full $1.96 million. We do not reach the government’s argument because we agree with Floyd that § 853 does not allow the restraint of substitute assets before conviction.
Section 853(e)(1)(A) is the source of any authority for the pretrial restraint of assets:
Protective Orders
(1) Upon application of the United States, the court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of property described, in subsection (a) of this section for forfeiture under this section—
(A) upon the filing of an indictment or information charging a violation of this subchapter or subchapter II of this chapter for which criminal forfeiture may be ordered under this section and alleging that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this section ...
(emphasis added). The parties agree that § 853(a) does not include substitute assets. Section 853(p) allows the forfeiture of substitute property if the property described in subsection (a) is unavailable for one of five listed reasons. The question is whether the government may restrain substitute assets before conviction under § 853(e) notwithstanding that provision’s explicit reference to the property described in § 853(a). We hold that it cannot.
The government, as did the district court, relies on the reasoning of In re Billman, 915 F.2d 916, 920-21 (4th Cir.1990). In Billman, the Fourth Circuit interpreted the RICO forfeiture provisions, identical in all relevant respects to the provisions of § 853 involved here, to allow the pretrial forfeiture of substitute assets. The court in Billman read § 853(e)(1)(A) and § 853(p) together “to preserve pending trial the availability for forfeiture of property that can be forfeited after trial.” Id. at 921. The Fourth Circuit also found support from the Supreme Court in Russello v. United States, 464 U.S. 16, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983), and United States v. Monsanto, 491 U.S. 600, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989). In Russello, the Court recognized that the RICO forfeiture statute directs that its provisions “shall be liberally construed to effectuate its remedial purpose.” 464 U.S. at 26-27, 104 S.Ct. at 302-03. According to the Fourth Circuit, the Supreme Court in Monsanto reached its conclusion that forfeiture under § 853 does not include an exception for the payment of attorneys’ fees by reading the provisions of the statute together instead of in isolation. Billman, 915 F.2d at 921.
Whatever the ultimate soundness of Bill-man, we are not persuaded that it can fairly support the contended-for restraint of property. We find that the statute controlling the restraint before us plainly states what property may be restrained before trial. Congress made specific reference to the property described in § 853(a), and that description does not include substitute assets. Congress treated substitute assets in a different section, § 853(p). To allow the government to freeze Floyd’s untainted assets would require us to interpret the phrase “property described in subsection (a)” to mean property described in subsection (a) and (p). Like the RICO statute at issue in Russello, Congress also included a directive in § 853 that “[t]he provisions of this section shall be liberally construed to effectuate its remedial purposes.” 21 U.S.C. § 853(o). However, this command for a liberal construction does not authorize us to amend by interpretation. Monsanto gives no such license. Rather it counsels against such “glossing.” Interpreting the same statute at issue here, the Monsanto Court refused to find an exception for attorneys’ fees where Congress had not provided one and concluded by saying, “[i]f ... we are mistaken as to Congress’ intent, that body can amend this statute to otherwise provide. But the statute as presently written, cannot be read any other way.” 491 U.S. at 612, 109 S.Ct. at 2665. We also cannot read § 853(e)(1)(A) any other way.
The government also argues that its interpretation harmonizes § 853(e) with § 853(f). Subsection (f) requires a court to issue a warrant of seizure upon the government’s request if the court determines there is probable cause to believe the property would be forfeitable upon conviction and an order under subsection (e) would be insufficient to protect the availability of the property. The government argues that if it cannot restrain substitute assets, it can simply obtain a warrant under subsection (f) to seize these assets. The argument continues that Congress could not have intended that the government must seize substitute assets before trial. This argument ignores the reality that a warrant is available to seize property covered by subsection (e) when its procedures are inadequate. It is not available for any asset of any type. Subsection (e) does not apply to substitute assets. The government’s contention that it has the power to seize property that is not evidence of a crime nor the fruits of a crime hints of writs of assistance. At the least it poses Fourth Amendment concerns sufficient to avert any temptation we might have to engage in interpretative handsprings to effectuate a legislative purpose the Congress did not express.
REVERSED.
. Floyd was charged with numerous offenses in a twelve count indictment. Count 1 charges Floyd and Gaubert with conspiracy to defraud the OCC and to commit various offenses against the United States in violation of 18 U.S.C. § 371. Count 2 charges Gaubert with corruptly giving $450,-000 to Floyd in connection with Floyd securing from United Bank four loans of $490,000 (totalling $1.96 million) in violation of 18 U.S.C. § 215. Count 3 charges Floyd with corruptly accepting the $450,000 payoff in violation of 18 U.S.C. § 215. Count 4 charges Floyd with unlawfully receiving $450,000 of the bank's money through the alleged payoff in violation of 18 U.S.C. § 1005. Counts 5-8 charge Floyd with four counts of misapplying bank funds, each pertaining to the $490,000 loans, in violation of 18 U.S.C. § 656. Count 9 charges Gaubert with money laundering by depositing in another bank a $640,000 portion of the illegal loans in violation of 18 U.S.C. § 1957. Count 10 charges Floyd with money laundering by the use of the $450,000 payoff to obtain a cashier’s check from another bank in violation of 18 U.S.C. § 1957. Count 11 seeks forfeiture under 18 U.S.C. § 982(a)(1) from Floyd and Gaubert of property "involved in” the offenses, specifically the $450,-000 cashier’s check and the remainder of the $640,000 deposited in another bank, including substitute assets to the extent the criminally derived property is unavailable. Finally Count 12 seeks forfeiture under § 982(a)(2) of property "obtained directly or indirectly” by Floyd and Gaubert up to $1.96 million including substitute assets.
. § 1292. Interlocutory decision
(a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions
. 18 U.S.C. § 982 is the general criminal forfeiture statute. Section 982 incorporates certain subsections of 21 U.S.C. § 853. 18 U.S.C. §§ 982(b)(1)(A) and (B).
. (a) Property subject to criminal forfeiture
Any person convicted of a violation of this subchapter or subchapter II of this chapter punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law — •
(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;
(2) any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation; and
(3) in the case of a person convicted of engaging in a continuing criminal enterprise in violation of section 848 if this title, the person shall forfeit, in addition to any property described in paragraph (1) or (2), any of his interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise.
The court, in imposing sentence on such person, shall order, in addition to any other sentence imposed pursuant to this subchapter or subchapter II of this chapter, that the person forfeit to the United States all property described in this subsection. In lieu of a fine otherwise authorized by this part, a defendant who derives profits or other proceeds from an offense may be fined not more than twice the gross profits or other proceeds.
. (p) Forfeiture of substitute property
If any 'of the property described in subsection (a) of this section, as a result of any act or omission of the defendant—
(1) cannot be located upon the exercise of due diligence;
(2) has been transferred or sold to, or deposited with, a third party;
(3) has been placed beyond the jurisdiction of the court;
(4) has been substantially diminished in value; or
(5) has been commingled with other property which cannot be divided without difficulty;
the court shall order the forfeiture of any other property of the defendant up to the value of any property described in paragraphs (1) through (5).
. The analogous provisions of RICO are 18 U.S.C. §§ 1963(a), (d)(1)(A), and (m).
. Moreover, the Court's reading of § 853(e)(1)(A) appears to be consistent with ours. In Monsanto, the Court stated "§ 853(e)(1)(A) is plainly aimed at implementing the commands of § 853(a).” 491 U.S. at 612, 109 S.Ct. at 2665.
. (f) Warrant of seizure
The Government may request the issuance of a warrant authorizing the seizure of property subject to forfeiture under this section in the same manner as provided for a search warrant. If the court determines that there is probable cause to believe that the property to be seized would, in the event of conviction, be subject to forfeiture and that an order under subsection (e) of this section may not be sufficient to assure the availability of the property for forfeiture, the court shall issue a warrant authorizing the seizure of such property.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_state
|
54
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
TOWN OF EAST HARTFORD et al., Petitioner-Appellant, v. Patricia HARRIS et al., Respondent-Appellee.
No. 78-1575.
United States Court of Appeals, District of Columbia Circuit.
Argued June 12, 1979.
Decided Aug. 4, 1980.
F. Timothy McNamara, Hartford, Conn., with whom Stephen L. Bluestone, Washington, D. C., was on the brief, for appellant.
Meelie H. Nelson, Atty., Dept, of Justice, Washington, D. C., with whom Barbara Allen Babcock, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Leonard Schaitman, Atty., Dept, of Justice, Washington, D. C., were on the brief, for appellee.
Before ROBB and WILKEY, Circuit Judges and OBERDORFER, United States District Judge for the District of Columbia.
Opinion for the Court filed by District Judge OBERDORFER.
Sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
This appeal requires us to determine whether the Department of Housing and Urban Development (HUD) complied with the requirements of the Housing and Community Development Act of 1974, 42 U.S.C. § 5301-5317 (1976) (“HDCA”) in disapproving the application of the Town of East Hartford for a block grant. Section 5304(f) of Title 42 provides that an application for a block grant is “deemed approved” unless the Secretary informs the applicant of his disapproval within 75 days of receipt of the application. East Hartford disputed the means by which HUD calculated the beginning and ending dates for the 75-day period, and sought declaratory and injunctive relief. The District Court entertained cross-motions for summary judgment. On April 21, 1978, Judge Sirica filed a memorandum and order denying the Town’s motion and entering summary judgment for HUD. We affirm.
I.
A.
The facts, though complicated, are not in dispute. The Town of East Hartford made application for federal funds pursuant to Title I of the HDCA. The original application submission date was January 15, 1977. Pursuant to regulation, 24 C.F.R. § 570.-300(a)(3)(i), the Area Director of HUD approved the Town’s request for an extension of the submission date to April 16, 1977, a Saturday. If the submission date fell on a Saturday, it was the practice of HUD to treat an application as received for the purposes of section 5304(f) on the preceding Friday. Anticipating that HUD might require the full 75 days for review, and not wanting to lose a day at the outset of the period, the Area Director extended the submission date to April 18,1977, the following Monday. As a courtesy to the Town, HUD agreed to accept the application on Friday, April 15. However, both parties agreed that the official submission date, and not the date of actual receipt, controls for the purposes of computing the statutory period. See Brief of Appellant at 15; Affidavit of Harry A. Reese, Appellee’s Supplemental Appendix at 9.
For reasons not germane to this appeal, HUD determined after review that the Town’s application could not be approved. The Deputy Assistant Secretary for Community Planning and Development communicated this decision and the reasons therefor in a telegram dispatched to the Mayor of East Hartford late in the afternoon of July 1. The telegram was hand-delivered to the mayor while he was cutting his lawn that weekend, on either Saturday, July 2, or Sunday, July 3. See Memorandum Opinion of Judge Sirica, Appellant’s Appendix at A. 15. The District Court did not attempt to resolve the disputed fact about the precise date of the delivery.
B.
Appellant does not contest the merits of the HUD decision to deny the Town’s application. The focus of the dispute is on the mechanical timeliness of the notice under section 5304(f), which provides that an application is “deemed approved” unless the Secretary of HUD notifies an applicant of HUD’s decision to disapprove an application within 75 days of receipt.
The Town advances two theories, under either of which the grant of summary judgment by the District Court would be improper: first, the Town maintains that the statute requires that notice be received by an applicant within 75 days of submission. The telegram was dispatched on July 1, 74 days following the April 18 submission date. A question of fact exists as to whether the mayor received the telegram on July 2 (the 75th day) or July 3 (the 76th day). If the date of receipt controls, the Town is entitled to a trial on the issue of when, in fact, the telegram was received. Second, the Town asserts that the Area Director was without authority to extend the date of submission to April 18 from April 16, in which event the dispatch of the telegram on July 1 (76 days from April 16th) was plainly outside the statutory time frame, regardless of whether the statute is satisfied by dispatch or receipt of a telegram.
II.
A.
We see no merit in appellant’s argument that the Area Director was without authority to extend the date of submission from April 16 to April 18. The statute and implementing regulations are clear that the Area Director was properly delegated authority to extend the date. Section 3535(d) of Title 42 permits the Secretary to “delegate any of his functions, powers, and duties to such officers and employees as he may designate.” Further, the provision permits the Secretary to authorize further redelegations of such functions “as he may deem desirable.” 42 U.S.C. § 3535(d). Implementing regulations published at 40 Fed. Reg. 5385-86 (February 5, 1975) authorize HUD Regional and Area Staff, which includes the Area Director, to exercise the functions at issue here. Indeed, the Town’s reliance on the April 16 submission date is premised on the extension from January 15 that was also granted by the Area Director. As the District Court noted, if the Area Director’s authority was ineffective to change the submission date from April 16 to April 18, it was likewise ineffective to change the date from January 15 to April 16. Appellant’s Appendix at A. 14. We agree with the District Court’s conclusion that the statute and regulations authorized the Area Director to fix April 18 as the submission date.
B.
Appellants also challenge the determination that HUD complied with the statute when it dispatched a telegram to the Town on July 1, the 74th day following submission. The Town maintains that the statute requires that an applicant receive notice of HUD action within 75 days. HUD, by regulation, see 24 C.F.R. § 570.-306(c), has interpreted the statute to require dispatch of written notice within 75 days. Although dispositive in the peculiar circumstances of this case, the differences in the parties’ interpretations of the statutory requirements are not truly substantial. Both would achieve the objectives of the statute: forcing expeditious action by HUD and providing notice to the applicant. The practical differences are two: first, the regulation gives HUD the benefit of the full 75-day decision period; a rule requiring receipt of notice by the 75th day would require the agency to dispatch the notice at some indefinite time sooner, making the ultimate timeliness depend upon the distance between the HUD Area Director and the applicant, and the efficiency of mail service between those two points. Second, the regulation, by relying on the dispatch of notice, places the risk of an incomplete communication on the applicant, rather than on HUD.
Neither interpretation is implausible; both substantially comply with the apparent purposes of section 5304(f). Ultimately, the question is whether in promulgating the regulation HUD had a reasonable basis for allocating, as between itself and the applicant, the burden of delay (and risk) inherent in notification. Based on a review of the statute and its legislative history, we conclude that the HUD regulation reasonably and fairly implements section 5304(f).
III.
A.
The Housing and Community Development Act of 1974 (hereinafter the “Act”) has its genesis in the House as H.R. 1536, 93d Cong., 2d Sess. (1974) and in the Senate as S. 3066, 93d Cong., 2d Sess. (1974). Both versions contain provisions that applications would be deemed approved if HUD failed to act within a specific period of time. The House version, § 104(e), provided that:
An application subject to section 104(b), if submitted after any date established by the Secretary for consideration of applications, shall be deemed approved within-60 days after receipt unless the Secretary informs the applicant of the specific reasons of disapproval. Subsequent to approval of the application, the amount of the grant may be adjusted in accordance with the provisions of this title.
The syntax of the House bill is confusing, since the obvious intent is not that the application shall be deemed approved within 60 days, but that the application shall be deemed approved “unless the Secretary informs the applicant of the specific reasons of disapproval” within 60 days. See H.Rep. No.93-1114, 93d Cong., 2d Sess. 49 (1974) (hereinafter “House Report”). In explaining the purpose of the application review provision generally, the House Report notes that the bill:
establishes a review process which the Committee believes strikes a reasonable balance between the needs of communities for prompt processing of grant requests, on the one hand, and the need to assure that Federal funds will be used to achieve national objectives, on the other.
House Report, supra, at 8. Nothing in the Report or the House debate in passing the Bill, see 120 Cong.Rec. 6142-6217 (1974) explains what is meant by “informs” or whether the Secretary was intended to have the full 60 days in which to consider an application. The House version does not specify that the grantee is to be informed in writing, nor does it otherwise treat the manner of notification.
Significantly, although the Report notes the interest of the community in “prompt processing of grant requests,” id., nowhere does it acknowledge any corollary interest of the community in receiving prompt notification of HUD action. Nor does the date on which the community receives notice of HUD action control any further responsibilities of the communities under the Act, such as requesting a revision in the grant amount, appealing disapproval of a grant request, etc.
The Senate version of the bill, introduced as S. 3066, provided that:
The Secretary shall make his determination with respect to any application and give written notice of his approval or disapproval within 90 days after submission of the application. Each application providing for continuation or revision of an ongoing community development program shall be deemed approved by the Secretary within 90 days after the submission, unless the Secretary notifies the applicant in writing of his disapproval of the application or any part thereof, setting forth the reasons therefor.
S. 3066, 93d Cong., 2d Sess. § 308(e)(1) (1974). The Senate Report suggests strongly that the Senate bill intended to give the Secretary the full 90 days in which to act on an application. In the section analysis, the report notes that section 308(e)(1):
would require that the Secretary make his determination regarding any application and give written notice of his approval or disapproval within 90 days after submission unless the Secretary notifies the applicant in writing of his disapproval and sets forth the reasons with respect to performance by the applicant or the eligibility of proposed activities.
S.Rep.No.693, 93d Cong., 2d Sess. 135 (1974). However, it is possible to construe “and give written notice” to require that the notice be received by the grantee within the 90-day period.
The Senate passed S. 3066 on March 11, 1974; the House, after substituting the whole of H.R. 15361 for the text of S. 3066, passed S. 3066 on June 20, 1974. The Senate disagreed with the House amendments and the two versions of the bill went to conference. The compromise version of the bill contained the language of the original House bill, but extended the time period to 75 days. The House Report accompanying the conference report, H.Rep.No.1279, 93d Cong., 2d Sess. (1974), contains perhaps the clearest statement of the intent of the provision. Under a caption entitled “Time of HUD action” the report notes:
The Senate bill required the HUD Secretary to act on applications for community development assistance within 90 days, and provided that applications for on-going programs would be deemed approved after 90 days unless HUD notified communities otherwise. The House amendment contained a similar provision, except that applications would be deemed approved after 60 days rather than 90 days. The conference report contains the House provision with an amendment specifying 75 days.
H.Rep.No.1279, supra, at 126, U.S.Code Cong. & Admin.News 1974, pp. 4273, 4452. The Report suggests three conclusions: first, that the Senate bill intended to give the Secretary the full 90 days to “act on” applications; second, that the House provision was “similar”; and, third, that the difference between the House and Senate bills was limited to the difference in the time period. At the very least, the Report suggests that the method and time within which the applicant must receive notice of the Secretary’s action was not central to the drafters or revisers of the provision. Rather, the essential feature of both versions of the bill was its action-forcing aspect, with specific prescription of the limited time available to HUD to act.
The later House and Senate debates on the conference report are silent as to this provision; the conference report version appears intact as section 5304 of the Act.
In sum, section 5304(f) seems principally directed at forcing action by HUD and shifting the burden of a substantial delay to the agency by deeming approved applications on which HUD delays its decision. Neither the mechanics of the statute nor the legislative history suggests that notification-as opposed to action-is significant. Indeed, the only reference to the form or means of notice-the Senate requirement of “written notice”-was deleted in the bill as passed.
B.
In contesting the propriety of the HUD regulation, appellant relies substantially upon what it considers the plain meaning of the term “inform” in section 5304(f). The Town calls our attention to common dictionary or treatise definitions of the term “inform” as connoting a completed communication. Implicit in these definitions, and the cases employing them, are circumstances in which the act of communication is itself the essential event, and the knowledge gained thereby is the predicate for some other action by the person receiving notice. See, e. g., Reeves v. American Optical, 408 F.Supp. 297 (W.D.N.Y.1976); Flanders v. Waterloo Community School District, 217 N.W.2d 579 (Iowa 1974). Here, both the legislative history and the statutory scheme are clear that agency action is the significant event; the dispatch (or receipt) of official notice is principally a prophylactic measure to ensure that the decision is made on the record and to trigger the “approval” sanction of section 5304(f) if the agency fails to act. There is no reason to infer from the use of the term “inform” that Congress intended that the HUD must complete a communication within 75 days of submission.
We conclude that the more plausible construction contemplates a statute which gives HUD 75 days in which to act on an application. If the statute had required delivery of notice within 75 days, the time available for HUD to act would have been reduced by an indeterminate number of days which would necessarily include a substantial margin for errant delivery. We do not believe that Congress intended to inject this complication into the main HUD task of completing action within a defined time period.
C.
In upholding the authority of HUD to promulgate 24 C.F.R. § 570.306(c), we are mindful of the principle of statutory construction that an agency is entitled to “great deference” in the interpretation of its statute, Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), especially when the construction of a new statute by the implementing agency is at issue. Power Reactor Development Co. v. International Union of Electricians, 367 U.S. 396, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961); F. T. C. v. Brigadier Industries Corporation, 198 U.S.App.D.C. 377, 382 n. 29, 613 F.2d 1110,1115 n. 29 (1979). The interpretation found in the HUD regulation is a reasonable-if not the only reasonable-interpretation of 42 U.S.C. § 5304(f). It does not alter the character or substance of the duties that Congress sought to impose on the agency, but simply resolves what may be regarded as at most an ambiguity in the manner by which the agency is to fulfill its responsibilities and eliminates a possible complication in the scheduling of its work. Although in this instance HUD has plainly resolved the ambiguity in its own favor, we find that this interpretation is reasonable, consistent with the statutory purpose, and fair to all potential applicants, including the appellant here.
Accordingly, the judgment of the District Court is
Affirmed.
. The statute, 42 U.S.C. § 5304(f) (1976), provides in pertinent part that:
An application . . shall be deemed approved within 75 days after receipt unless the Secretary informs the applicant of specific reasons for disapproval.
42 U.S.C. § 5304(f). HUD interpreted this provision by regulation to provide that:
Within seventy-five days of the date of receipt of the application, or at such earlier time as review is completed, the Secretary will notify the applicant in writing that the application has been either approved, or disapproved. In the event the Secretary has not mailed a notification to the applicant within seventy-five days from the date of acceptance of a complete application that it has been disapproved, the application shall be deemed to be approved. If the application is disapproved, the applicant shall be informed of the specific reasons for disapproval.
24 C.F.R. § 570.306(c) (1977).
. The regulation provides that:
An applicant which was entitled to a grant under this part in the previous fiscal year, but did not apply for an entitlement grant or whose application was not approved in the previous fiscal year, must apply no later than January 15 unless an extension of this date has been requested by the applicant and an extension has been approved by HUD by January 15.
24 C.F.R. § 570.300(a)(3)(i) (1977).
. Appellant originally challenged the decision disapproving its application as substantively unsupported. The Town dropped this claim prior to the entry of summary judgment. See Memorandum Opinion of Judge Sirica, Appellant’s Appendix at A. 8 n. 13.
. The parties agree that the official submission date and not the actual date of receipt of an application controls for purposes of computing time under section 5304(f). The Town’s dispute with HUD over the commencement of the statutory period is limited to whether the Area Director had authority to alter the submission date from April 16 to April 18.
. This calculation, as well as the others noted herein, is predicated on a submission date of April 18. HUD procedures, which appellant does not contest, provide that the statutory period is computed from the day following the official submission date. See Affidavit of Harry A. Reese, Appellee’s Supplemental Appendix at 9.
. See note 2, supra.
. The statute is silent on the means of notice. HUD, by regulation, requires that the applicant be “mailed” a written notice of disapproval. The Town challenged before the District Court HUD’s resort to a telegram in view of the regulation’s requirement of “mailed” notice. The Town has not raised this contention on appeal, and we see no reason to question HUD’s interpretation of the regulation to permit the use of a telegram to satisfy the requirement of a “mailed” notice in writing. See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).
. The original version of this provision is found in H.R. 10036, 93d Cong., 1st Sess. § 112(e) (1973), which required the Secretary to act on grants no later than 60 days after the beginning of the fiscal year in which the grants are to be made. This bill contained no provisions for notice, nor did it contain any penalty if the Secretary failed to act within the statutory period. The clean bill reported by the Subcommittee on Housing, H.R. 14490, 93d Cong., 2d Sess. § 112(e) (1974) contains provisions substantially similar to those in H.R. 15361. Specifically, H.R. 14490 provided that an application shall be “deemed approved unless, prior to thirty days after the beginning of the program period for which the grants are to be made, the Secretary informs the requesting city or county in writing of the specific reasons for disapproval.” The Committee report contains no explanation of the changes from H.R. 10036 through H.R. 14490 to H.R. 15361.
. See Webster’s Third International Dictionary (1961) (inform means “to give information or knowledge” or the “imparting of knowledge”).
. See 58 Am.Jur.2d, Notice § 22 (1971) (“Where a statute requires notice to be given, it is the general rule of law that actual personal notice is required”); 66 C.J.S. Notice § 18 (1950) (“where a statute directs that notice in writing shall be given but prescribes no method of service, ordinarily it is sufficient to show that the party to be notified actually received written notice, and that the method is unimportant”).
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SHEA, S & M Ball Company and Seaboard Fire & Marine Insurance Company, Petitioners, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR and Betty M. Holden, Respondents.
No. 90-1436.
United States Court of Appeals, District of Columbia Circuit.
Argued March 18, 1991.
Decided April 9, 1991.
As Amended April 16, 1991.
John C. Lynch, with whom Alexander W. Whitaker was on the brief, for petitioners.
Peter J. Vangsnes, with whom James A. Mannino was on the brief, for respondent Betty M. Holden.
Samuel J. Oshinsky, Atty., Dept, of Labor, with whom Carol A. De Deo, Associate Sol., and Janet R. Dunlop were on the brief, for respondent Director, Office of Workers’ Compensation Programs.
Before WALD, RUTH BADER GINSBURG and THOMAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge:
The District of Columbia Workmen’s Compensation Act of 1928 (“1928 Act”), D.C.Code § 36-501, et seq., (1973), was repealed by the District of Columbia Workers’ Compensation Act of 1979 (“1979 Act”), D.C.Code § 36-301 et seq. (1988 Repl.), but continues to govern claims arising from injuries that occurred prior to its repeal. The issue in this case is whether the 1928 Act gives the Department of Labor (“DOL”) jurisdiction to award death benefits to the widow of an employee who was injured while the 1928 Act was in effect, but who died of causes unrelated to his employment injuries after the 1979 Act went into effect. The Benefits Review Board (“Board”) held that it had jurisdiction and awarded the death benefits. Holden v. Shea, S & M Ball Co., BRB No. 87-1391, slip op. (Jan. 29, 1990). For the reasons discussed below, we deny the petition for review filed by the employer and its insurer, and we affirm the decision of the Board.
I.
In 1928 Congress, acting as legislative authority for the District of Columbia, enacted the District of Columbia Workmen’s Compensation Act of 1928, which made the provisions of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq., applicable to private sector employees in the District. Congress also provided that the 1928 Act would be administered by the Department of Labor, with review of administrative decisions in this court. See Railco Multi-Construction Co. v. Gardner, 564 A.2d 1167, 1170 (D.C.1989). However, after Congress granted home rule to the District, the D.C. Council repealed the 1928 Act and enacted the District of Columbia Workers’ Compensation Act of 1979, which “narrowed the scope of coverage and lowered the level of benefits available to injured workers.” Id. at 1171. The 1979 Act is administered by the District of Columbia Department of Employment Services (“DOES”), with judicial review of administrative decisions in the D.C. Court of Appeals. Id.
Two additional facts about the enactment of the 1979 Act are directly relevant to this case. First, although the 1928 Act provided a death benefit to the spouse of a permanently disabled worker whose death was unrelated to the employment injury, 33 U.S.C. § 909 (1982), the 1979 Act provides a death benefit only if the employment injury causes the employee’s death. D.C. Code § 36-309 (1988 Repl). Second, “[notwithstanding its repeal, the 1928 Act remains in force under the general savings statute, 1 U.S.C. § 109 (1982), ‘for the sole purpose of preserving the provisions of the [LHWCA], as they existed in 1982, for the benefit of employees whose claims are derived from injuries occurring before the [1979] Act became law.’ ” Railco Multi-Construction Co. v. Gardner, 902 F.2d 71, 73-74 (D.C.Cir.1990) (quoting Keener v. Washington Metropolitan Area Transit Authority, 800 F.2d 1173, 1175 (D.C.Cir.1986), cert. denied 480 U.S. 918, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987)).
In contrast to that complex legal background, the facts of this case are simple and uncontested. Betty Holden, the claimant, is the widow of Joseph Holden. Mr. Holden, who was injured in the course of his employment in the District of Columbia in 1974 and became permanently disabled in 1975, received disability benefits under the 1928 Act until he died on November 18, 1986, of causes unrelated to his employment injury. After her husband’s death, Mrs. Holden filed a claim for death benefits under the 1928 Act with the DOL. In May, 1987, the deputy commissioner awarded the death benefits to Mrs. Holden.
On appeal to the Board, the employer claimed that the DOL lacked subject matter jurisdiction over the case because the 1928 Act had been repealed prior to Mr. Holden’s death. The Board began its analysis by stating that it had previously rejected this argument in Lynch v. Washington Metropolitan Area Transit Authority, 22 Ben.Rev.Bd.Serv. (MB) 351 (1980), a case with similar facts. Holden at slip op. 2. Nevertheless, the Board did not rely on Lynch in this case because it believed that the rationale of Lynch had been undercut by our decision in Railco Multi-Construction Co. v. Gardner, 902 F.2d 71 (D.C.Cir.1990). Holden, slip op. at 3. The question in Gardner was whether the 1928 Act or 1979 Act covers the claim for disability benefits of an employee who was exposed to injurious stimuli prior to July 26, 1982 (the effective date of the 1979 Act) but whose injury did not become manifest until after that date. Uncertain about how to answer this question of local law, we certified the question to the D.C. Court of Appeals. In response, the D.C. Court of Appeals adopted the “manifestation rule” and held that an injury occurs when the employee’s injury becomes manifest. Gardner, 564 A.2d at 1172-73. Because the 1979 Act applies to injuries that occur on or after July 26, 1982, the court held that the 1979 Act applies if the injury becomes manifest after that date. Id. at 1173-74 & n. 21. The court recognized, however, that its holding might create a coverage “gap” that would deprive some injured employees of coverage under any workers’ compensation act. In order to avoid depriving an injured employee of any workers’ compensation coverage, the court also held that the 1928 Act should be extended to cover an injured employee who falls within the coverage gap. Id. at 1175-76.
After the District of Columbia Court of Appeals answered the question on certification, we reaffirmed that the 1979 Act applies to claims derived from injuries occurring after July 26, 1982, and that an injury is deemed to occur when it becomes manifest. Gardner, 902 F.2d at 72-74. We therefore held that the DOL regulation, which adopted the “exposure rule” by providing that the 1928 Act applies to all injuries arising out of “employment events” that occurred before July 28, 1982, must “fall in light of its rejection by the District of Columbia Court of Appeals.” Id. at 75.
Apparently believing that our explicit rejection of the DOL exposure rule precluded it from relying on Lynch to find subject matter jurisdiction under the 1928 Act, the Board in this case based its claim of jurisdiction on Gardner instead. Holden, slip op. at 4. As required by Gardner, the Board considered whether Mr. Holden’s death was covered by any workers’ compensation act. The 1982 Act did not cover Mr. Holden’s death, the Board found, because Mr. Holden was not employed in the District after July 26, 1982. Holden, slip op. at 5. Because Mr. Holden’s injury occurred in Washington, D.C., the Board also found that his death was not covered under any other workers’ compensation act. Therefore, the Board concluded, “the 1928 Act applies to fill the gap [in coverage] in this case,” just as it had in Gardner. Id. This petition for review followed.
II.
Petitioners raise two objections to the Board’s decision. First, they contend that the Board did not have jurisdiction over Mrs. Holden’s claim because it arises under the 1979 Act. Second, they allege that Gardner is inapposite and does not “extend” the 1928 Act to cover Mrs. Holden’s claim. Although respondents Mrs. Holden and the Director of the Office of Workers’ Compensation Programs (“Director”) argue that Gardner does apply by analogy and thus the Board can be affirmed for the reasons explained in its opinion, they also argue that the Board did not need to reach this issue because Mrs. Holden’s claim is clearly rooted in the 1928 Act itself. In their view, no “extension” of the 1928 Act was needed to cover her claim. For the reasons discussed below, we agree with respondents that Mrs. Holden’s claim arises under the 1928 Act itself, and therefore deny the petition for review.
The question of whether the 1928 Act or the 1979 Act applies in this case is one of local law; accordingly, we look to the District of Columbia precedent and regulations for guidance. See Gardner, 902 F.2d at 72. The District of Columbia Court of Appeals has held that “a worker injured before [July 26, 1982] ha[s] no rights under the [1979] act, as such an injury was then still covered by the 1928 Act, and compens-ability depends on its provisions.” O’Connell v. Maryland Steel Erectors, Inc., 495 A.2d 1134, 1141 (D.C.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 603 (1986); see also Keener, 800 F.2d at 1175 (the 1928 Act remains in effect, under the general savings statute, “for the benefit of employees whose claims are derived from injuries occurring before the [1979] Act became law”). In addition, the District of Columbia regulations provide that the 1979 Act applies to “injuries which occur on or after July 26, 1982_” D.C.Reg. § 3602.1, 29 D.C.Reg. 5540 (Dec. 17, 1982). Taken together, the precedent and regulations indicate that the 1928 Act covers claims arising from injuries that occurred before July 26, 1982, while the 1979 Act covers claims arising from injuries occurring on or after that date.
Recognizing that the precedent establishes that the 1928 Act covers claims arising from “injuries” that occurred before July 26, 1982, petitioners contend that Mrs. Holden’s “injury” occurred when her husband died on November 19, 1986. But we can find no support for petitioners’ assertion that “in a claim for death benefits, the injury occurs when the spouse dies and not when the spouse was injured.” Instead, the cases cited in petitioners’ brief establish only that a death benefits claim is a separate cause of action from the worker’s disability claim that does not arise until the death of the worker. See, e.g., Nacirema Operating Co. v. Lynn, 577 F.2d 852 (3d Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 836, 59 L.Ed.2d 34 (1979); Norfolk, Baltimore and Carolina Lines, Inc. ¶. Director, Office of Workers’ Compensation Programs, 539 F.2d 378 (4th Cir.1976), cert. denied, 429 U.S. 1078, 97 S.Ct. 823, 50 L.Ed.2d 798 (1977). But the District of Columbia precedent discussed above indicates that, for purposes of determining coverage under the two Acts, the relevant question is not when the cause of action arose, but when the injury giving rise to that cause of action occurred.
In our view, the statutory language of both Acts and the precedent establish that a death benefits claim derives from the worker’s employment-related injury. Section 9 of the 1928 Act, for example, provides a death benefit “[i]f the injury causes death, or if the employee who sustains permanent total disability due to the injury thereafter dies from causes other than the injury.” 33 U.S.C. § 909 (1982). Similarly, § 36-309 of the 1979 Act provides a death benefit “[i]f the injury causes death....” D.C.Code § 36-309 (1988 Repl.). This language indicates that the death benefits claim is an offspring of the employment injury: in the absence of an employment-related injury, a worker’s death is not covered under either Act.
In addition, as the Board recognized in Lynch, there is precedent under the LHWCA supporting respondents’ claim that a claim for death benefits, like a claim for disability benefits, is rooted in the employment injury. Lynch, 22 Ben.Rev.Bd. Serv. at 354. In Pennsylvania National Mutual Casualty Insurance Co. v. Spence, 591 F.2d 985, 987 (4th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 448, 62 L.Ed.2d 375 (1979), the Fourth Circuit explained that although the LHWCA provides
for two separate rights and types of recovery, the beneficiaries of which are different,] ... both types of recovery derive their basis from the same event, i.e., the employee’s injury. It is that event which gives both a right to compensation payments under § 908 and a right to death benefits under § 909. Neither right of action, whether for compensation payments or for death benefits, exists apart from the critical fact of injury; each is dependent for its basis on the injury. It is inaccurate, therefore, to state that the right to the death benefits has its origin solely in the event of death; the real source of the liability for such benefits under the Act traces directly back to the injury itself.
See also Travelers Insurance Co. v. Marshall, 634 F.2d 843 (5th Cir.1981). Consequently, the Board in Lynch correctly recognized that the employment injury “forms the basis for the claim for death benefits.” Lynch, 22 Ben.Rev.Bd.Serv. at 354.
Thus, we end up agreeing with respondents that a claim for death benefits, like a claim for disability benefits, is derivative of the employment injury itself. Precedent establishes that the 1928 Act remains in effect for claims derived from injuries that occurred before July 26, 1982. Because Mr. Holden was injured during his employment in the District in 1974, we hold that Mrs. Holden’s claim for death benefits is covered by the 1928 Act. We therefore deny the petition for review and affirm the Board’s award of death benefits to Mrs. Holden.
III.
In sum, because Mr. Holden was injured before July 26,1982, his injury was covered by the 1928 Act, and he had no rights under the 1979 Act. In addition, Mr. Holden’s employment injury established the basis for Mrs. Holden’s death benefits claim. Thus her claim for death benefits, like his claim for disability benefits, arises from the employment injury and is covered by the 1928 Act. Accordingly, we hold that the Board had jurisdiction and properly awarded death benefits to Mrs. Holden, and we deny the petition for review.
It is so ordered.
. In 1984, however, Congress removed this provision from the LHWCA. See Longshore and Harbor Workers’ Compensation Act Amendments of 1984, Pub.L. No. 98-426, 98 Stat. 1639 (1984). Thus, the LHWCA, like the 1979 District of Columbia Workers’ Compensation Act, currently provides a death benefit to the employee’s surviving spouse only if the employment injury causes the employee’s death. See 33 U.S.C. § 909 (1989).
. In awarding the death benefit to the widow in Lynch, the Board first held that "although a claim for death benefits is a separate cause of action which does not arise until the employee's death, the liability of the employer for death benefits is fixed at the time of injury rather than at the time of death.” Lynch, 22 Ben.Rev.Bd. Serv. at 354. Thus although the decedent's death occurred after the repeal of the 1928 Act, the claim for death benefits was governed by the 1928 Act because “it is decedent's permanent total disability that forms the basis of the claim for death benefits.” Id. In addition, the Board found further support for its holding in a DOL regulation stating that the 1928 Act applies to claims "for injuries or deaths based on employment events that occurred prior to July 26, 1982, the effective date of the [1979 Act].” Id. at 354 & n. 2 (citing 20 C.F.R. § 701.101(b)).
. For example, because the 1979 Act narrowed the subject matter jurisdiction of the D.C. worker’s compensation act, an employee could have been within the subject matter jurisdiction of the 1928 Act when he was exposed to the injurious stimuli, but outside the subject matter jurisdiction of either the 1979 Act or any other workers’ compensation act when his injury became manifest. See Gardner, 564 A.2d at 1174. An employee who worked in the District only prior to July 26, 1982, but whose injury manifested itself after that date, could also be caught in the coverage gap: he would not be covered under the 1928 Act (because he was not "injured" while it was in effect) or the 1979 Act (because he was not employed in the District after it went into effect). See Gardner, 902 F.2d at 75-76.
. We are aware of the well-established principle of administrative law that “[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based." SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943). But that statement “is to be understood with a qualification; the order must be judged upon the grounds upon which action was based, unless the appellate court concludes that the decision 'already made ... should properly be based on another ground within the power of the appellate court to formulate.’ ” Chae-Sik Lee v. Kennedy, 294 F.2d 231, 234 (D.C.Cir.), cert. denied sub nont., Lee v. Kennedy, 368 U.S. 926, 82 S.Ct. 362, 7 L.Ed.2d 190 (1961) (quoting Chenery, 318 U.S. at 88, 63 S.Ct. at 459). That qualification covers this case because the validity of the Benefit Review Board’s decision does not depend upon a factual determination or a policy judgment that it alone is authorized to make. Furthermore, “the Benefits Review Board is not a policymaking agency; its interpretation of the LHWCA thus is not entitled to any special deference from the courts." Potomac Electric Power Co. v. Director, Office of Workers’ Compensation Programs, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 515 n. 18, 66 L.Ed.2d 446 (1980). Therefore, because the issue in this case is "within the power of the appellate court to formulate,” we may affirm for reasons other than those stated by the Board. See Chenery, 318 U.S. at 88, 63 S.Ct. at 459.
We are mindful, moreover, that the Board displaced its Lynch precedent in the belief that Gardner so required. Having clarified that Gardner and Lynch are harmonious decisions, we think it evident that our view and the Board’s now coincide.
. In so holding, we reject petitioners’ assertion that even if the Board had jurisdiction, it should not have awarded the death benefit because at the time of Mr. Holden's death, the LHWCA, as amended in 1984, provided a death benefit only if the employee’s death was caused by the employment injury. See 33 U.S.C. § 909 (1986). Petitioners’ argument is foreclosed by Keener, in which this court held that because "the repeal of the 1928 Act had the effect of severing the application of the [LHWCA] to the District of Columbia in 1982, the subsequent 1984 amendments were without effect on the law of the District." 800 F.2d at 1175. As a result, claims arising under the 1928 Act are governed by the 1928 Act as it existed when the 1979 Act went into effect on July 26, 1982. Id. Because, at the time of repeal, the 1928 Act provided a death benefit for the spouse of a permanently disabled employee who died from causes unrelated to the employment injury, Mrs. Holden is entitled to a death benefit under the 1928 Act.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
sc_lcdisagreement
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
UNITED STATES DEPARTMENT OF ENERGY v. OHIO et al.
No. 90-1341.
Argued December 3, 1991
Decided April 21, 1992
Souter, J., delivered the opinion for a unanimous Court with respect to Part II-C, and the opinion of the. Court with respect to Parts I, II-A, II-B, and III, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, and Thomas, JJ., joined. White,. J., filed an opinion concurring in part and dissenting in part, in which Blackmun and Stevens, JJ., joined, post, p. 629.
James A. Feldman argued the cause for petitioner in No. 90-1341 and respondent in No. 90-1517. With him on the briefs were Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Robert L. Klarquist, and Jacques B. Gelin.
Jack A. Van Kley, Assistant Attorney General of Ohio, argued the cause for respondents in No. 90-1341 and petitioners in No. 90-1517. With him on the brief were Lee Fisher, Attorney General, and Timothy J. Kern and Terrence S. Finn, Assistant Attorneys General.
Together with No. 90-1517, Ohio et al. v. United States Department of Energy, also on certiorari to the same court.
Briefs of amici curiae were filed for the State of California et al. by Gale A. Norton, Attorney General of Colorado, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Martha E. Rudolph, Cynthia M. Vagelos, and Mary Capdeville, Assistant Attorneys General, Daniel E. Lungren, Attorney General of California, Roderick E. Walston, Chief Assistant Attorney General, Theodora Berger and R. H. Connett, Senior Assistant Attorneys General, Edwin F. Lowry, Deputy Attorney General, Charles E. Cole, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Paige Murphy-Young, Assistant Attorney General, Winston Bryant, Attorney General of Arkansas, Richard Blumenthal, Attorney General of Connecticut, Warren Price III, Attorney General of Hawaii, Larry EchoHawk, Attorney General of Idaho, Roland W. Burris, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Bonnie J. Campbell, Attorney General of Iowa, Frederic J. Cowan, Attorney General of Kentucky, Michael E. Carpenter, Attorney General of Maine, Dennis J. Harnish, Assistant Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, Frankie Sue Del Papa, Attorney General of Nevada, Robert J. Del Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth,. Attorney General of North Dakota, T. Travis Medlock, Attorney General of South Carolina, Charles W. Burson, Attorney General of Tennessee, Michael D. Pearigen, Deputy Attorney General, Dan Morales, Attorney General of Texas, Thomas Edwards, Assistant Attorney General, Paul Van Dam, Attorney General of Utah, Denise Chancellor, Assistant Attorney General, Jeffrey L. Amestoy, Attorney General of Vermont, Mary Sue Terry, Attorney General of Virginia, Patrick O’Hare, Senior Assistant Attorney General, Kenneth O. Eikenberry, Attorney General of Washington, James K. Phar-ris, Senior Assistant Attorney General, and Jay J. Manning, Assistant Attorney General; for the Natural Resources Defense Council by Philip F. W. Ahrens III; and for the National Governors’ Association et al. by Richard Ruda, Donald B. Verrilli, Jr., and Barry Levenstam.
Federal- and state-law fines differ both as to their amounts and the sovereign that gets them, state-law fines going to the State, and federal-law fines going to the federal treasury. Ohio’s state-law fines are currently lower than their federal-law counterparts. See generally Tr. of Oral Arg. 36-37, 49-52; see also Brief for Respondent Ohio 36. The parties have agreed that if DOE is liable for both federal- and state-law fines it will be assessed only for the latter. See Stipulation Between DOE and Ohio, ¶¶2.1, 3.1, App. 87, 89, 90. '
Justice Souter
delivered the opinion of the Court.
The question in these cases is whether Congress has waived the National Government’s sovereign immunity from liability for civil fines imposed by a State for past violations of the Clean Water Act (CWA), 86 Stat. 816, as amended, 38 U. S. C. § 1251 et seq., or the Resource Conservation and Recovery Act of 1976 (RCRA), 90 Stat. 2796, as amended, 42 U. S. C. § 6901 et seq. We hold it has not done so in either instance.
I
The CWA prohibits the discharge of pollutants into navigable waters without a permit. Section 402, codified at 33 U. S. C. § 1342, gives primary authority to issue such permits to the United States Environmental Protection Agency (EPA), but allows EPA to authorize a State to supplant the federal permit program with one of its own, if the state scheme would include, among other features, sufficiently stringent regulatory standards and adequate provisions for penalties to enforce them. See generally 33 U. S. C. § 1342(b) (requirements and procedures for EPA approval of state water-pollution permit plans); see also 40 CFR §§ 123.1-123.64 (1991) (detailed requirements for state plans). RCRA regulates the disposal of hazardous waste in much the same way, with a permit program run by EPA but subject to displacement by an adequate state counterpart. See generally 42 U. S. C. § 6926 (requirements and procedures for EPA approval of state hazardous-waste disposal permit plans); see also 40 CFR §§271.1-271.138 (1991) (detailed requirements for state plans).
This litigation began in 1986 when respondent State of Ohio sued petitioner Department of Energy (DOE) in Federal District Court for violations of state and federal pollution laws, including the CWA and RCRA, in operating its uranium-processing plant in Fernald, Ohio. Ohio sought, among other forms of relief, both state and federal civil penalties for past violations of the CWA and RCRA and of state laws enacted to supplant those federal statutes. See, e. g., Complaint ¶ 64 (seeking penalties for violations of state law and of regulations issued pursuant to RCRA); id., ¶ 115 (seeking penalties for violations of state law and of CWA). Before the District Court ruled on DOE’s motion for dismissal, the parties proposed a consent decree to settle all but one substantive claim, and Ohio withdrew all outstanding claims for relief except its request for civil penalties for DOE’s alleged past violations. See Consent Decree Between DOE and Ohio, App. 63. By a contemporaneous stipulation, DOE and Ohio agreed on,.the. amount of civil penalties DOE will owe if it is found liable for them, see Stipulation Between DOE and Ohio, id., at 87. The parties thus left for determination under the motion to dismiss only the issue we consider today: whether Congress has waived the National Government’s sovereign immunity from liability for civil fines imposed for past failure to comply with the CWA, RCRA, or state law supplanting the federal regulation.
DOE admits that the CWA and RCRA obligate a federal polluter, like any other, to obtain permits from EPA or the state permitting agency, see Brief for Petitioner DOE 24 (discussing CWA); id., at 34-40 (discussing RCRA). DOE also concedes that the CWA and RCRA render federal agencies liable for fines imposed to induce them to comply with injunctions or other judicial orders designed to modify behavior prospectively, which we will speak of hereafter as “coercive fines.” See id., at 19-20, and n. 10; see also n. 14, infra. The parties disagree only on whether the CWA and RCRA, in either their “federal-facilities” or “citizen-suit” sections, waive federal sovereign immunity from liability for fines, which we will refer to as “punitive,” imposed to punish past violations of those statutes or state laws supplanting them.
The United States District Court for the Southern District of Ohio held that both statutes waived federal sovereign immunity from punitive fines, by both their federal-facilities and citizen-suit sections. 689 F. Supp. 760 (1988). A divided panel of the United States Court of Appeals for the Sixth Circuit affirmed in part, holding that Congress had waived immunity from punitive fines in the CWA’s federal-facilities section and RCRA’s citizen-suit section, but not in RCRA’s federal-facilities section. 904 F. 2d 1058 (1990). Judge Guy dissented, concluding that neither the CWA’s federal-facilities section nor RCRA’s citizen-suit section sufficed to provide the waiver at issue. Id., at 1065-1069.
In No. 90-1341, DOE petitioned for review insofar as the Sixth' Circuit found any waiver of immunity from punitive fines, while in No. 90-1517, Ohio cross-petitioned on the holding that RCRA’s federal-facilities section failed to effect such a waiver. We consolidated the two petitions and granted certiorari, 500 U. S. 951 (1991).
I — I
We start with a common rule, with which we presume congressional familiarity, see McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496 (1991), that any waiver of the National Government’s sovereign immunity must be unequivocal, see United States v. Mitchell, 445 U. S. 535, 538-539 (1980). “Waivers of immunity must be ‘construed strictly in favor of the sovereign,’ McMahon v. United States, 342 U. S. 25, 27 (1951), and not ‘enlarge[d]... beyond what the language requires.’ Eastern Transportation Co. v. United States, 272 U. S. 675, 686 (1927).” Ruckelshaus v. Sierra Club, 463 U. S. 680, 685-686 (1983). By these lights we examine first the two statutes’ citizen-suit sections, which can be treated together because their relevant provisions are similar, then the CWA’s federal-facilities section, and, finally, the corresponding section of RCRA.
A
So far as it concerns us, the CWA’s citizen-suit section reads that
“any citizen may commence a civil action on his own behalf—
“(1) against any person (including... the United States...) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation....
“The district courts shall have jurisdiction... to enforce such an effluent standard or limitation, or such an order... as the case may be, and to apply any appropriate civil penalties under [33 U. S. C. § 1319(d)].” 33 U. S. C. § 1365(a).
The relevant part of the corresponding section of RCRA is similar:
“[A]ny person may commence a civil action on his own behalf —
“(1)(A) against any person (including... the United States)... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter...
“(B) against any person, including the United States... who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment....
“... The district court shall have jurisdiction... to enforce the permit, standard, regulation, condition, requirement, prohibition, or order, referred to in paragraph (1)(A), to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both,... and to apply any appropriate civil penalties under [42 U. S. C. §§ 6928(a) and (g)].” 42 U.S. C. § 6972(a).
A State is a “citizen” under the CWA and a “person” under RCRA, and is thus entitled to sue under these provisions.
Ohio and its amici argue that by specifying the United States as an entity subject to suit and incorporating the civil-penalties sections of the CWA and RCRA into their respective citizen-suit sections, “Congress could not avoid noticing that its literal language subjected] federal entities to penalties.” Brief for Respondent Ohio 36; see also, e. g., Brief for National Governors’ Association et al. as Amici Curiae 14-16. It is undisputed that each civil-penalties provision authorizes fines of the punitive sort.
The effect of incorporating each statute’s civil-penalties section into its respective citizen-suit section is not, however, as clear as Ohio claims. The incorporations must be read as encompassing all the terms of the penalty provisions, including their limitations, see, e. g., Engel v. Davenport, 271 U. S. 33, 38 (1926) (adoption of earlier statute by reference “makes it as much a part of the later act as though it had been incorporated at full length”); see also 2B N. Singer, Sutherland on Statutory Construction §51.08 (5th rev. ed. 1992), and significant limitations for present purposes result from restricting the applicability of the civil-penalties sections to “person[sJ.” While both the CWA and RCRA define “person” to cover States, subdivisions of States, municipalities, and interstate bodies (and RCRA even extends the term to cover governmental corporations), neither statute defines “person” to include the United States. Its omission has to be seen as a pointed one when so many other governmental entities are specified, see 2A Singer, supra, §47.23, a fact that renders the civil-penalties sections inapplicable to the United States.
Against this reasoning, Ohio argues that the incorporated penalty provisions’ exclusion of the United States is overridden by the National Government’s express inclusion as a “person” by each of the citizen-suit sections. There is, of course, a plausibility to the argument. Whether that plausibility suffices for the clarity required to waive sovereign immunity is, nonetheless, an issue we need not decide, for the force of Ohio’s argument wanes when we look beyond the citizen-suit sections to the full texts of the respective statutes.
What we find elsewhere in each statute are various provisions specially defining “person” and doing so expressly for purposes of the entire section in which the term occurs. Thus, for example, “[f]or the purpose of this [CWA] section,” 33 U. S. C. § 1321(a)(7) defines “person” in such a way as to exclude the various governmental entities included in the general definition of “person” in 33 U. S. C. § 1362(5). Again, “[f]or the purpose of this section,” § 1322(a)(8) defines “person” so as to exclude “an individual.on board a public vessel” as well as the governmental entities falling within the general definition. Similarly in RCRA, “[f]or the purpose of... subchapter [IX]” the general definition of “person” is expanded to include “the United States Government,” among other entities. 42 U. S. C. §6991(6). Within each statute, then, there is a contrast between drafting that merely redefines “person” when it occurs within a particular clause or sentence and drafting that expressly alters the definition for any and all purposes of the entire section in which the special definition occurs. Such differences in treatment within a given statutory text are reasonably understood to reflect differences in meaning intended, see 2A Singer, supra, §46.06, and the inference can only be that a special definition not described as being for purposes of the “section” or “subchapter” in which it occurs was intended to have the more limited application to its own clause or sentence alone. Thus, in the instances before us here, the inclusion of the United States as a “person” must go to the clauses subjecting the United States to suit, but no further.
This textual analysis passes the test of giving effect to all the language of the citizen-suit sections. Those sections’ incorporations of their respective statutes’ civil-penalties sections will have the effect of authorizing punitive fines when a polluter other than the United States is brought to court by a citizen, while the sections’ explicit authorizations for suits against the United States will likewise be effective, since those sections concededly authorize coercive sanctions against the National Government.
A clear and unequivocal waiver of anything more cannot be found; a broader waiver may not be inferred, see Ruckels- haus, 463 U. S., at 685-686. Ohio’s reading is therefore to be rejected. See United States v. Nordic Village, Inc., ante, 37.
B
The relevant portion of the CWA’s federal-facilities section provides that
“[e]ach department, agency, or instrumentality of the... Federal Government... shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner... as any nongovernmental entity.... The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner.... [T]he United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court.” 33 U. S. C. § 1323(a).
Ohio rests its argument for waiver as to punitive fines on-two propositions: first, that the statute’s use of the'word “sanction” must be understood to encompass such fines, see Brief for Respondent Ohio 26-29; and, second, with respect to the fines authorized under a state permit program approved by EPA, that they “aris[e] under Federal law” despite their genesis in state statutes, and are thus within the scope of the “civil penalties” covered by the congressional waiver, id., at 29-35.
■ A
Ohio’s first proposition is mistaken. As a general matter, the meaning of “sanction” is spacious enough to cover not only what we have called punitive fines, but coercive ones as well, and use of the term carries no necessary implication that a reference to punitive fines is intended. One of the two dictionaries Ohio itself cites reflects this breadth. See Black’s Law Dictionary 1341 (6th ed. 1990) (defining “sanction” as a “[p]enalty or other mechanism of enforcement used to provide incentives for obedience with the law or with rules and regulations. That part of a law which is designed to secure enforcement by imposing a penalty for its violation or offering a reward for its observance”). Ohio’s other such source explicitly adopts the coercive sense of the term. See Ballentine’s Law Dictionary 1137 (3d ed. 1969) (defining sanction in part as “[a] coercive measure”).
Beyond the dictionaries, examples of usage in the coercive sense abound. See, e. g., Penfield Co. of Cal. v. SEC, 330 U. S. 585, 590 (1947) (fines and imprisonment imposed as “coercive sanctions” when imposed to compel target “to do what the law made it his duty to do”); Hicks v. Feiock, 485 U. S. 624, 633-634, n. 6 (1988) (“sanction” in Penfield was civil because it was conditional; contemnor could avoid “sanction” by agreeing to comply with discovery order); Fed. Rule Civ. Proc. 37(b) (describing as “sanctions” various steps district court may take in response to noncompliance with discovery orders, including holding recalcitrant deponent in contempt); United States v. Westinghouse Elec. Corp., 648 F. 2d 642, 649 (CA9 1981) (discussing “sanctions,” imposed pursuant to Fed. Rule Civ. Proc. 37(b), consisting of fine for each day litigant remained in noncompliance with District Court’s discovery order); Latrobe Steel Co. v. United Steelworkers of America, Local 1537, 545 F. 2d 1336, 1344 (CA3 1976) (“Coercive sanctions... look to the future and are designed to aid the plaintiff by bringing a defiant party into compliance with the court order or by assuring that a potentially contumacious party adheres to an injunction by setting forth in advance the penalties the court will impose if the party deviates from the path of obedience”); Vincent v. Preiser, 175 W. Va. 797, 803, 338 S. E. 2d 398, 403 (1985) (discussing contempt “sanctions” imposed “to compel compliance with a court order”); Maltaman v. State Bar of Cal., 43 Cal. 3d 924, 936, 741 P. 2d 185, 189-190 (1987) (describing as “sanctions” daily fine imposed on party until it complied with order directing it to transfer certain property); Labor Relations Comm’n v. Fall River Educators’ Assn., 382 Mass. 465, 475-476, 416 N. E. 2d 1340, 1347 (1981) (affirming propriety of imposition of “coercive contempt sanction”); Cal. Civ. Proc. Code Ann. § 2023(b)(4) (West Supp. 1992) (authorizing, in response to litigant’s failure to obey discovery order, “terminating sanction^],” including “contempt sanction^] ” and orders staying further proceedings by recalcitrant litigant). Cf. 42 U. S. C. §6992e(a) (waiving federal medical-waste disposal facilities’ sovereign immunity from various requirements, including such “sanctions as may be imposed by a court to enforce [injunctive] relief”); id., §6961 (using same language to waive other federal facilities’ immunity from RCRA provisions). Thus, resort to a “sanction” carries no necessary implication of the punitive as against the coercive.
The term’s context, of course, may supply a clarity that the term lacks in isolation, see, e. g., Shell Oil Co. v. Iowa Dept. of Revenue, 488 U. S. 19, 26 (1988). It tends to do so here, but once again the clarity so found cuts against Ohio’s position. The word “sanction” appears twice in § 1323(a), each time within the phrase “process and sanction[s].” The first sentence subjects Government agencies to “process and sanctions,” while the second explains that the Government’s corresponding liability extends to “any process and sanction, whether enforced in Federal, State, or local courts or in any other manner.”
Three features of this context are significant. The first is the separate statutory recognition of three manifestations of governmental power to which the United States is subjected: substantive and procedural requirements; administrative authority; and “process and sanctions,” whether “enforced” in courts or otherwise. Substantive requirements are thus distinguished from judicial process, even though each might require the same conduct, as when a statute requires and a court orders a polluter to refrain from discharging without a permit. The second noteworthy feature is the conjunction of “sanction[s]” not with the substantive “requirements,” but with “process,” in each of the two instances in which “sanction” appears. “Process” normally refers to the procedure and mechanics of adjudication and the enforcement of decrees or orders that the adjudicatory process finally provides. The third feature to note is the statute’s reference to “process and sanctions” as “enforced” in courts or otherwise. Whereas we commonly understand that “requirements” may be enforced 'either by backward-looking penalties for past violations or by the “process” of forward-looking orders enjoining future violations, such forward-looking orders themselves are characteristically given teeth by equity’s traditional coercive sanctions for contempt: fines and bodily commitment imposed pending compliance or agreement to comply. The very fact, then, that the text speaks of sanctions in the context of enforcing “process” as distinct from substantive “requirements” is a good reason to infer that Congress was using “sanction” in its coercive sense, to the exclusion of punitive fines.
2
The last relevant passage of § 1323(a), which provides that “the United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court,” is not to the contrary. While this proviso is unlike the preceding text in that it speaks of “civil penalties,” not “sanctions,” it is obviously phrased to clarify or limit the waiver preceding it. Here our concern is with its clarifying function (leaving its limiting effect until later), and it must be said that as a clarifier the proviso speaks with an uncertain voice. To be sure, the second modifier of “civil penalties” at least makes it plain that the term (like “sanction,” to which it relates) must include a coercive penalty, since “civil penalties” are exemplified by those “imposed by a State or local court to enforce an order or the process of such court.” To this extent, then, the proviso serves to confirm the reading we reached above.
The role of the first modifier is problematical, however. On the one hand, it tugs toward a more expansive reading of “civil penalties.” If by using the phrase “civil penalties arising under Federal law” Congress meant nothing more than coercive fines arising under federal law, it would have been simpler to describe all such penalties as imposed to enforce an order or process, whether of a local, state, or federal court. Thus, the first modifier suggests that the civil penalties arising under federal law may indeed include the punitive along with the coercive. Nevertheless, a reading expansive enough to reflect a waiver as to punitive fines would raise a new and troublesome question about the source of legal authority to impose such a fine. As far as federal law is concerned, the only available source of authority to impose punitive fines is the civil-penalties section, § 1319(d). But, as we have already seen, that section does not authorize liability against the United States, since it applies only against “persons,” from whom the United States is excluded.
Ohio urges us to find a source of authority good against the United States by reading “arising under Federal law” to include penalties prescribed by state statutes approved by EPA and supplanting the CWA. Ohio argues for treating a state statute as providing penalties “arising under Federal law” by stressing the complementary relationship between the relevant state and federal statutes and the role of such state statutes in accomplishing the purpose of the CWA. This purpose, as Ohio states it, is “to encourage compliance with comprehensive, federally approved water pollution programs while shielding federal agencies from unauthorized penalties.” Brief for Respondent Ohio 34-35. Ohio asserts that “federal facility compliance... cannot be... accomplished without the [punitive] penalty deterrent.” Id., at 35.
The case for such pessimism is not, however, self-evident. To be sure, an agency of the Government may break the law where it might have complied voluntarily if it had faced the prospect of punitive fines for past violations. But to say that its “compliance cannot be... accomplished” without such fines is to assume that without sanctions for past conduct a federal polluter can never be brought into future compliance, that an agency of the National Government would defy an injunction backed by coercive fines and even a threat of personal commitment. The position seems also to ignore the fact that once such fines start running they can be every dollar as onerous as their punitive counterparts; it could be a very expensive mistake to plan on ignoring the law indefinitely on the assumption that contumacy would be cheap.
Nor does the complementary relationship between state and federal law support Ohio’s claim that state-law fines thereby “arise under Federal law.” Plain language aside, the far more compelling interpretative case rests on the best known statutory use of the phrase “arising under federal law,” appearing in the grant of federal-question jurisdiction to the courts of the United States. See 28 U. S. C. § 1331. There, we have read the phrase “arising under” federal law to exclude cases in which the plaintiff relies on state law, even when the State’s exercise of power in the particular circumstances is expressly permitted by federal law. See, e. g., Gully v. First Nat. Bank in Meridian, 299 U. S. 109, 116 (1936) (suit over state taxation of nationally chartered bank does not arise under federal law even though such taxation would not be possible without federal approval); International Bridge Co. v. New York, 254 U. S. 126, 133 (1920) (congressional approval of construction of bridge by state-chartered company does not make federal law the source of right to build bridge). Congress’ use of the same language in § 1323(a) indicates a likely adoption of our prior interpretation of that language. See, e. g., ICC v. Locomotive Engineers, 482 U. S. 270, 284-285 (1987) (interpreting statute based on previous interpretation of same language in another statute); Northcross v. Memphis Bd. of Education, 412 U. S. 427, 428 (1973) (per curiam) (similarity of language in two statutes “strong indication that [they] should be interpreted pari passu”). The probability is. enough to answer Ohio’s argument that “arising under Federal law” in § 1323(a) is broad enough to cover provisions of state statutes approved by a federal agency but nevertheless applicable ex proprio vigore.
Since Ohio’s argument for treating state-penalty provisions as arising under federal law thus fails, our reading of the last-quoted sentence from § 1323(a) leaves us with an unanswered question and an unresolved tension between closely related statutory provisions. The question is still what Congress could have meant in using a seemingly expansive phrase like “civil penalties arising under Federal law.” Perhaps it used it just in case some later amendment might waive the Government’s immunity from punitive sanctions. Perhaps a drafter mistakenly thought that liability for such sanctions had somehow been waived already. Perhaps someone was careless. The question has no satisfactory answer.
We do, however, have a response satisfactory for sovereign immunity purposes to the tension between a proviso suggesting an apparently expansive but uncertain waiver and its antecedent text that evinces a narrower waiver with greater clarity. For under our rules that tension is resolved by the requirement that any statement of waiver be unequivocal: as against the clear waiver for coercive fines the indication of a waiver as to those that are punitive is less certain. The rule of narrow construction therefore takes the waiver no further than the coercive variety.
C
We consider, finally, the federal-facilities section of RCRA, which provides, in relevant part, that the National Government
“shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief)... in the same manner, and to the same extent, as any person is subject to such requirements- Neither the United States, nor any agent, employee, or officer thereof, shall be immune or exempt from any process or sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief.” 42 U.S. C. §6961.
Ohio and its amici stress the statutory subjection of federal facilities to “all... requirements,” which they would have us read as an explicit and unambiguous waiver of federal sovereign immunity from punitive fines. We, however, agree with the Tenth Circuit that “all... requirements” “can reasonably be interpreted as including substantive standards and the means for implementing those standards, but excluding punitive measures.” Mitzelfelt v. Department of Air Force, 903 F. 2d 1293, 1295 (1990).
We have already observed that substantive requirements can be enforced either punitively or coercively, and the Tenth Circuit’s understanding that Congress intended the latter finds strong support in the textual indications of the kinds of requirements meant to bind the Government. Significantly, all of them refer either to mechanisms requiring review for substantive compliance (permit and reporting requirements) or to mechanisms for enforcing substantive compliance in the future (injunctive relief and sanctions to enforce it). In stark contrast, the statute makes no mention of any mechanism for penalizing past violations, and this absence of any example of punitive fines is powerful evidence that Congress had no intent to subject the United States to an enforcement mechanism that could deplete the federal fisc regardless of a responsible officer’s willingness and capacity to comply in the future.
The drafters’ silence on the subject of punitive sanctions becomes virtually audible after one reads the provision’s final sentence, waiving immunity “from any process or sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief.” The fact that the drafters’ only specific reference to an enforcement mechanism described “sanction” as a coercive means of injunctive enforcement bars any inference that a waiver of immunity from “requirements” somehow unquestionably extends to punitive fines that are never so much as mentioned.
III
The judgment of the Court of Appeals is reversed, and the eases are remanded for further proceedings consistent with this opinion.
It is so ordered.
The parties agreed to stay one claim pending completion of a technical study. See Stipulation Between DOE and Ohio, App. 87-88.
DOE's water-pollution permit was issued by EPA. See Complaint ¶ 29. DOE had no RCRA permit at the time Ohio commenced this suit, despite RCRA’s requirement that facilities such as DOE’s Fernald plant obtain one. See Complaint ¶¶ 50, 52, 57; Answer of Federal Defendants ¶ 57.
33 U. S. C. § 1323(a) (CWA); 42 U. S. C. §6961 (RCRA). The federal-facilities sections of the CWA and RCRA govern the extent to which federally operated facilities, such as DOE’s Fernald facility, are subject to the requirements, including fines, of both their respective statutes and EPA-approved, state-law regulation and enforcement programs.
33 U. S. C. § 1365(a) (CWA); 42 U. S. C. § 6972(a) (RCRA). The citizen-suit sections of the CWA and RCRA authorize private enforcement of the provisions of their respective statutes. Unlike the waivers in the federal-facilities sections, which set forth the scope of federal sovereign immunity from the requirements, including fines, of both their respective statutes and EPA-approved, state-law regulation and enforcement programs, the citizen-suit sections, to the extent they waive federal immunity at all, waive such immunity only from federal-law penalties.
States may sue the United States under the citizen-suit sections. See 33 U. S. C. § 1365(a) (any “citizen” may bring citizen suit under CWA); id., § 1365(g) (defining “citizen” for purposes of CWA citizen-suit section as “person... having an interest which is or may be adversely affected”); id., § 1362(5) (defining “person” for purposes of CWA to include a State); 42 U. S. C. § 6972 (“any person” may bring citizen suit under RCRA); id., § 6903(15
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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songer_casetyp1_7-2
|
A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
UNITED STATES v. LYMAN et al.
No. 3725.
Circuit Court of Appeals, First Circuit.
Jan. 23, 1942.
Frederic G. Rita, Sp. Asst, to Atty. Gen. (Samuel 0. Clark, Jr., Asst. Atty. Gen., J. Louis Monarch, Sp. Asst, to Atty. Gen., and Edmund J. Brandon and George F. Garrity, both of Boston, Mass., on the brief), for appellant.
John F. Doherty, of Boston, Mass. (J. Watson Flett, of Boston, Mass., on the brief), for appellees.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
PER CURIAM.
Questions are presented in this appeal as to the application of Rules 41 and 60 (a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
On June 28, 1938, the United States filed in the court below a complaint against the defendants as executors of Jesse P. Lyman, deceased, setting forth four counts or causes of action for unpaid taxes. The first cause of action was for unpaid income taxes for the calendar year 1930 assessed by the Commissioner against the decedent on May 25, 1931. The second was for income taxes assessed against the decedent for the period from January 1, 1931, to September 14, 1931, the date of his death. The third was based upon deficiency assessments of income taxes against the decedent for the years 1930 and 1931. The fourth was based upon a deficiency assessment with respect to estate taxes. Defendants’ answer was a general denial, and in addition set forth that the first three causes of action did not accrue within six years prior to the filing of the complaint.
The case came on for trial on November 19, 1940, before the district court without a jury. In his opening statement, counsel for the Government said: “As to the first cause of action, it appears on the face of the complaint that this suit is not timely with respect to that cause of action, and we therefore with the permission of the Court withdraw that cause of action from this suit. I believe that a stipulation will be entered into between the parties withdrawing that cause of action, and that is not before the Court.” At the close of the evidence, on the same day, the defendants made a “motion for directed verdict” as to the first and third counts. The latter is not now relevant, but as to the first cause of action the motion was based upon the point that on the face of the declaration it appeared that the action was not begun within six years from the date of the assessment of the tax.
Following the “motion for directed verdict” the following colloquy took place:
“Mr. Doherty [for the defendants]. May it please your Honor, as I understand it now we are going to prepare something that is going to be equivalent to the dismissing and the final adjudication of Count 1.
“The Court. I understand Count 1 has been waived.
“Mr. Rita [for the United States]. It has been withdrawn.
“Mr Doherty. I understood we were going to file some stipulations.
“The Court. You can if you want. You don’t need to. Count 1 is clear out of this case.
“Mr. Doherty. In order not to take up the time of this Court I am making a motion for a directed verdict on the first cause of action.
“Mr. Rita. As far as the form of this is concerned, as far as it is a directed verdict, I don’t think the Court can in this trial direct a verdict.
“The Court. If that count is not before this Court how could you properly ask me to make a finding with reference to it if it is not before me? We are trying this case as if we never heard of any first count. You waive your first ground of your motion to direct a verdict. How about the second ground? Have you read it yet? Are you familiar with the second ground, Mr. Rita?”
On December 13, 1940, the district court filed its opinion, findings of fact and conclusions of law. 36 F.Supp. 53. The opinion recited: “There are four counts in the declaration, the first of which is waived by the government.” On the same day the court entered its judgment for the plaintiff on the second, third and fourth causes of action “in accordance with the opinion of the court handed down this day.” The judgment said nothing of the disposition of the first cause of action except as it referred to the opinion which, as we have state'd, recited that this cause of action had been “waived” by the Government.
The defendants on March 28, 1941, filed a motion in the following terms:
“Now come the defendants in the above entitled action and respectfully represent to the Court that by error or mistake it does not appear of record herein that judgment was given to the defendants on the first cause of action as a result of the plaintiff's waiver and withdrawal of said cause of action after trial began and after defendant had pleaded the Statute of Limitation to said Count.
“Wherefore the defendants move that the Court order judgment for defendants on said Count and further order that the record herein be amended in accordance with said order as provided by Rule 60(a), Federal Rules, Civil Procedure.”
On March 31, 1941, without notice to the Government, the district court granted defendants’ motion as follows:
“Defendants’ motion for judgment on the first cause of action filed herein on the twenty eighth day of March, 1941, having this day been allowed, it is hereby Ordered that the judgment entered herein on the thirteenth day of December, 1940, be amended by adding thereto the following:
“Judgment on the first count for the defendant with prejudice and without costs.”
Appeal has been duly taken by the Government from this order of March 31, 1941, amending the original judgment.
It appears in the record that on the day the judgment was amended, as above, execution issued at the instance of the plaintiff; and on April 2, 1941, the execution was returned to court, fully satisfied.
It is not clear to us why the plaintiff should feel itself aggrieved by the amended judgment, nor why the defendants are so insistent upon its retention. In a motion by the plaintiff to vacate the order amending the judgment (which motion the court below denied) it is recited that the first cause of action “is the subject of a proceeding, pending undetermined, between the plaintiff and the defendants in the Probate Court for the County of Middle-sex, Massachusetts, and that if said judgment as amended is permitted to stand the plaintiff’s said claim will be forever barred.” No doubt the judgment for the defendants on the first cause of action with prejudice is res judicata on the untimeliness of the complaint with respect thereto, and would prevent the plaintiff from maintaining a suit later instituted on the same claim. But we do not understand that this judgment would operate as res judicata on the merits of a timely suit already pending in another court. Cf. .Am.L.Inst.Restatement of Judgments, Tentative Draft No. 1, § 312, comment a. If it were otherwise, the doctrine of res judicata would give the defendants here an obviously undeserved windfall. However, we are not called upon to decide this question in the present appeal.
Appellees argue in support of the amended judgment that at the completion of the trial of the case the first count or cause of action was properly before the court because it had not been dismissed in any of the manners as provided in Rule 41, F.R.C.P.; that the statute of limitations was properly pleaded; that no evidence was introduced by the plaintiff bearing upon said count; that the court entered judgment on the remaining three counts, but omitted to enter judgment on the first count; that “Being bound to enter judgment and having omitted to do so, in accordance with the provisions of Rule 60, the Court upon its own motion or upon the motion of either party could correct the omission.”
On the other hand, the Government contends that the omission from the original judgment of a specific adjudication upon the first cause of action was not due to a clerical mistake and was not an error arising from oversight or omission but resulted entirely from the ruling of the court that this cause of action was not before it; hence that the district court was without power to alter or modify the judgment under Rule 60(a). Further, the Government contends that application for amendment of the judgment upon any other ground must under Rule 52(b) have been made within ten days after the entry of the judgment.
From the colloquy above quoted it is apparent that the trial judge intended to allow the plaintiff to dismiss as to the first cause of action which, he said, is “clear out of this case.”- The terms of the original judgment exactly express the court’s intention, as appears from the said colloquy and from the court’s opinion.
Under Rule 41 an action may be dismissed by the plaintiff without order of the court (1) by filing a notice of dismissal at any time before service of the answer, or (2) by filing a stipulation of dismissal signed by all the parties. Otherwise, “an action shall not be dismissed at the -plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper.” The only “oversight” by the court was its failure to enter a formal order allowing the first cause of action to be dismissed. When the defendants subsequently moved the court for judgment on the first cause of action, the court apparently supposed that it was bound to amend the original judgment as requested, for it granted this motion upon an ex parte application. The court was not so bound. At that stage, no formal disposition of the first cause of action having been made, it was still within the power of the court to correct its earlier oversight and to enter an order allowing the plaintiff to dismiss the first cause of action upon such terms and conditions as the court might deem .proper. The court, if it had deemed it desirable to set at rest any possible subsequent contention as to res judicata, might have provided in such order that it should be without prejudice to the right of the plaintiff to. prosecute any other timely proceeding upon the same subject matter pending in another court.
Considering the foregoing, we conclude that the thing for us to do is to vacate the order of March 31, 1941, amending the original judgment, and to remand the case to the district court with leave to the plaintiff to move for an order under Rule 41 (b) allowing the plaintiff to dismiss the first cause of action upon such terms and conditions as the court deems proper. The allowance of such a motion by the .plaintiff after answer has been filed is within the sound discretion of the trial judge. The circumstances which led the court to deny such a motion in Baker v. Sisk, D.C.E.D.Okl., Dec. 17, 1938, 1 F.R.D. 232, were quite different from those here present. There the plaintiff filed an action of tort in the state court on December 24, 1937, based on a tort alleged to have been committed on the 24th of December, 1935. The case was removed to the federal court on the ground of diversity of citizenship. An answer was filed pleading the Oklahoma statute of limitations, which provided that the cause of action must have accrued within two years next before the “commencement” of the action, and further, that “An action shall be deemed commenced, within the meaning of this article, as to each defendant, at the date of the summons which is served on him.” Another statutory provision required that a summons “shall be dated the day it is issued.” The summons bore the date ol December 27, 1937, and the plaintiff moved to amend the summons to make the date read December 24, 1937. An issue was thus raised as to the date on which the summons had actually been “issued,” within the meaning of the statute. A hearing was held as to the facts pertaining to the question of limitations and the application of the state statute to those facts. After the parties had been advised of the court’s ruling that the action was barred on the facts presented, but before the entry of a formal order, the plaintiff presented a motion to dismiss the action without prejudice, frankly stating, as the court said, that “her purpose is to refile the same in the state court, we presume for less than $3,000, and see if the state court will reach a different conclusion upon the legal question involved.” In other words, she wanted to try over again in the state court the very questions of law and fact as to the application of the statute of limitations which she had unsuccessfully litigated in the federal court. Under these circumstances the court quite properly denied the plaintiff’s motion to dismiss.
We refer briefly to another contention of defendants, namely, that the plaintiff assented to the order amending the judgment “by thereafter ordering execution on the original judgment as amended and returning the same to court fully satisfied.” It does not appear whether execution was taken out by the plaintiff on March 31, 1941, before or after the order amending the judgment. However that may be, we fail to see why the action of the plaintiff in taking out execution on the judgment in its favor on the second, third and fourth causes of action should preclude the plaintiff from objecting thereafter to the order amending the original judgment by adding thereto a judgment for the defendants on the first cause of action, which was entirely separate and distinct. Appellees cite no authority for this proposition.
The order of the District Court of March 31, 1941, amending the original judgment herein, is vacated and the case is remanded to that court for further proceedings not inconsistent with this opinion.
tule 60(a) reads: “(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.”-
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_appel1_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Sampath K. HEMMIGE, Plaintiff-Appellant, and Cross-Appellee, v. CHICAGO PUBLIC SCHOOLS, et al., Defendanfs-Appellees, and Cross-Appellants.
Nos. 83-1443, 83-1548.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 20, 1985.
Decided March 10, 1986.
Kathern MacKinnon, Northwestern Univ. Leg. Clinic, Chicago, 111., for plaintiff-appellant, and cross-appellee.
Maria Campo, Chicago Board of Educ. Legal Dept., Chicago, 111., for defendantsappellees, and cross-appellants.
Before CUDAHY, POSNER, Circuit Judges, and BROWN, Senior District Judge.
The Honorable Wesley E. Brown, Senior District Judge of the United States District Court for the District of Kansas, is sitting by designation.
WESLEY E. BROWN, Senior District Judge.
In this civil rights action Sampath K. Hemmige, a school teacher, appeals from the judgment and order of the district court dismissing his employment discrimination claims against the Chicago Public School system which were brought under the provisions of 42 U.S.C. Sec. 2000e and 42 U.S.C. Sec. 1983. The defendants, members of the Board of Education of the City of Chicago, and various employees of the board, appeal a judgment in favor of Hemmige which awarded him $570.41 as damages for unpaid teaching hours.
Hemmige, an East Indian Hindu, was employed as a non-tenured, day-to-day substitute teacher in the Chicago Public Schools from the fall of 1977 through July, 1980, pursuant to temporary teaching certificates which were issued upon a yearly basis. His application for a temporary certificate for the 1980-1981 school year was denied in July, 1980, upon a finding that his teaching performance had been unsatisfactory. Hemmige contends that his teaching certificate was not renewed because of discrimination against his national origin and religion, and in retaliation for filing a complaint with the Equal Employment Opportunity Commission (EEOC). He also claims that he was denied procedural due process because he was not given a hearing on the decision not to renew his certificate.
Since an issue has been raised with respect to the appropriate scope of the judicial proceedings below, we first discuss in some detail the background of this case.
While Hemmige has been a teacher for more than thirty years, most of his teaching experience has been in India, Ethiopia and Canada. He has two Masters Degrees — one in English Literature, and the other in Education, and he is qualified as an expert in teaching English as a second language. In June, 1977, he moved to Chicago, Illinois and applied for a temporary teacher’s certificate with the Board of Education for the City. He was granted a certificate for the 1977-1978 school year, and was employed as a day-to-day substitute teacher. This was a non-tenured position whereby Hemmige was “on-call” on a daily basis as the need for substitute teachers might dictate. The temporary certificate expired by its own terms on August 31, at the end of each academic year, and in June, 1978, Hemmige reapplied for a certificate for the 1978-1979 school year. In a letter dated July 28, 1978, he was advised that a certificate was being denied due to an unsatisfactory teaching report.
On August 31, 1978, Hemmige filed a discrimination charge with the Illinois Fair Employment Practices Commission, claiming that he had been discriminated against because of his East Indian national origin. The school board subsequently issued a certificate for the 1978-1979 school year, and again, a certificate for the 1979-1980 school year. On June 13, 1980, Hemmige filed a charge of religious and national origin discrimination by defendants with the Equal Employment Opportunity Commission. In this charge Hemmige made the following allegations:
“I have been employed by the Chicago Board of Education as a Substitute Teacher since September 1979. (sic) On June 11,1980 while working at the above named facility (Montefiore High School) I was called a poor Hindu, Indian, told to get out, pushed, and not allowed to sign out by Daniel G. Griffin, Principal. The Board of Education employs more than 15 people.
“I was called names, pushed and told to leave without being allowed to sign out by Mr. Griffin because I had gone to the restroom. The Board of Education’s contract with the Chicago Teachers Union Sections 6-17,17-2 and 25-1 allow teachers to have a lunch period and a free period during the day. Teachers are not required to work more than 6 periods a day. There are at least five (5) minutes between classes for breaks.
“I believe that I have been discriminated against because of my national origin, East Indian, in that: I was not allowed to take a break during the day. After he learned that I had taken a break during class, Mr. Griffin pushed me and yelled, ‘poor Hindu, Indian get the hell out and go to your country. I won’t let you sign out.’ He also called the police. Officer Ramao ... asked Mr. Griffin to allow me to sign out. Mr. Griffin refused and at 2:20 p.m. I left the building.
“Mr. Griffin refused to allow me to sign out. He told me I would not be paid for the day.”
While this charge was pending, Hemmige applied for a temporary certificate for the 1980-1981 school year. In a letter dated July 18, 1980, Hemmige was informed by the Board that it would not renew his teaching certificate, citing seven unsatisfactory reports from various Chicago public schools.
After receiving a right to sue letter, Hemmige filed a pro se complaint in this action. He there complained of discrimination in race, color, sex, religion, and national origin, claiming that he had been ill treated in every respect. After counsel was appointed, a four count amended petition was filed, which claimed that defendants discriminated against him on the basis of national origin and Hindu religion, retaliated against him for filing the EEOC charge, denied due process by deciding not to renew the certificate, without prior notice or opportunity to be heard, and that the defendants had breached his contract by failing to pay him for all of his work.
On February 10, 1982, the District Court granted defendant’s motion to dismiss charges of alleged discrimination occurring prior to August 19, 1979 because they were not timely filed. The court noted that an incident which occurred at Moses Montefiore School on June 11, 1980, was the subject matter of the EEOC charge filed by Hemmige on June 13, 1980. The scope of the amended complaint, however, covered alleged discrimination from September, 1977 to September, 1980, and in addition, included a charge of retaliation for filing the 1980 charge. In determining the appropriate scope of the amended complaint, as it related to the EEOC charge, the trial court recognized that the scope of the judicial complaint is not limited to the precise facts set out in the EEOC charge — but rather “to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” See Jenkins v. Blue Cross Mut. Hospital Ins., Inc., 538 F.2d 164, 167 (7 Cir.1976), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598, citing the standard applied in Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5 Cir.1971):
“The correct rule to follow in construing EEOC charges for purposes of delineating the proper scope of a subsequent judicial inquiry is that ‘the complaint in the civil action * * * may properly encompass any * * * discrimination like or reasonably related to the allegations of the charge and growing out of such allegations ****.’ ” (Citing King v. Georgia Power Co., 295 F.Supp. 943, 947 (N.D.Ga.1968)).
The trial court found that the allegations of Count II of the amended petition, which related to a pattern of discrimination by defendant against minorities, vastly exceeded any investigation which could reasonably be expected to grow out of the charge of discrimination relating to the events at Montefiore High School on June 11, 1980. Accordingly, Count II was dismissed in its entirety.
Count I of the petition concerned several incidents of conduct which preceded the incident of June 11,1980. The court found that any alleged acts which occurred before August 19, 1979 (300 days before the EEOC charge was filed) were untimely under Section 706(e) of Title VII, 42 U.S.C. Sec. 2000e-5(e), which provides that:
“... (I)n a case of unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice ... such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceeding under the State or local law, whichever is earlier____”
See Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980).
The retaliation claim was allowed to stand since the permissible scope of a judicial complaint includes any new acts occurring during the pendency of the charge before the EEOC.
Plaintiff contends that the allegations in Count I establish a “continuing violation” theory of discrimination and that the district court erred in dismissing allegations which concerned incidents occurring prior to August 19, 1979. In Stewart v. CPC International Inc., 679 F.2d 117, 120 (7th Cir.1982), this Circuit determined that a plaintiff can charge a continuing violation when the employer has engaged in a practice of discrimination, usually involving hiring or promotion practices, where it is difficult to fix the exact day a particular violation may have occurred, or where an employer has covertly followed a practice of discrimination. However, in Stewart we recognized that a finding of continuing discrimination must be based upon a present violation, within the relevant time period. In our discussion of United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) we noted that:
“... the Supreme Court’s emphasis upon the need to show a present violation of Title VII indicates that an employer may be held liable for a continuing practice of discrimination ¿/the plaintiff can demonstrate that the practice has actually continued into the ‘present’ — that is, into the time period relevant to the date the charge of discrimination was filed. At least one discriminatory act must have occurred within the charge-filing period. Discriminatory acts that occurred prior to this period constitute relevant evidence of a continuing practice, and may help to demonstrate the employer’s discriminatory intent; and they will of course be used to determine the extent of the remedy that is in order____ But the prior discriminatory acts do not come into play at all unless the plaintiff can show in the first place that the discrimination is ‘presently’ continuing.” (679 F.2d at 121.) (Emphasis of the court)
Because we find that plaintiff failed to establish any incident of a “present” discrimination, there was no basis for consideration of the theory of “continuing discrimination.”
After our review of the transcripts and record, we agree with the trial court’s finding that the evidence in this case overwhelmingly establishes that plaintiff’s teaching certificate was not renewed because of his own failure as a substitute teacher, and not because of his national origin or religion, or because of any other discriminatory bias. In this connection, the court below made certain credibility determinations which were adverse to Hemmige’s position. For instance, plaintiff claimed that on June 11, 1980, Mr. Daniel G. Griffin, the Principal of Moses Montefiore School, called him “an ugly, poor old Indian,” and ordered him to leave the school without justification, all because of Griffin’s bias and prejudice against him. In giving evidence to the court, Mr. Griffin specifically denied calling plaintiff a name, or pushing him. Griffin testified that he ordered plaintiff to leave the school because he had left his class alone for an extended period of time, he used a telephone in a secretary’s office, instead of being in the washroom, as claimed, and that he was evicted from the premises only after plaintiff created a scene, indicating that he would not obey Mr. Griffin. In the face of this conflicting evidence, the trial court discredited plaintiff’s testimony, finding that Mr. Griffin was the one worthy of belief, and that his letter of June 11, 1980, was fully justified.
Other incidents reflected plaintiff’s inability to work with students. In December, 1979, an altercation occurred in a girls’ chorus class which Hemmige was conducting at Roosevelt High School. The principal, Ursula Blitzner, reported the incident in this manner:
a * * * *
The student claimed that the teacher (Hemmige) requested her to change her seat three times. She moved twice and balked the third time. The student alleged that the teacher pushed her out of the chair, and she fell to the floor.
The teacher claimed that he requested the student to move several times because she was disruptive, and he alleged that he did not in any way touch her or the chair.
“The mother of the student came to school. A conference was held with the teacher, student, parent, and principal. The same impasse was reached at the conference. The student was checked by the matron at the time of the alleged incident and reported no bruises.” (Ex. 31)
In March, 1980, Ms. Blitzner again found it necessary to report plaintiff’s behavior to the Director of Teacher Personnel: (Ex. 32)
“Mr. Sampath K. Hemmige ... was a substitute at Roosevelt High School on Friday, March 21, 1980. His ability to work with high school students is extremely limited; his method of classroom management is to order the students to leave the class and not return.
“I returned the students to his class during the morning session with the directions for our procedures for handling student discipline. During the afternoon session, he again ordered students out of his class. They alleged that he also used derogatory language.
“In addition, he insisted that he was not going to cover a class that I asked him to cover, because he was ‘overworked and paid a mere pittance by the Board of Education, and that he needed the period to rest.’ I persisted, and he did cover the class.
“Since this is the second incident that I have reported to your office about Mr. Hemmige, I request that he not be sent to Roosevelt High School at all.”
After reviewing the evidence the trial court resolved credibility questions in favor of Ms. Blitzner’s testimony concerning incidents at Roosevelt High School and found that her actions and reports were not inspired in any way by plaintiff’s national origin or ethnic attributes, but rather by his conduct as a substitute teacher.
Plaintiff also testified about an event which occurred at DuSable High School on May 21, 1980 when he allegedly was required to attend a “Gospel Choir,” and where the Principal, Judith Steinhagen, allegedly expressed a preference for a Jewish substitute. Although there was no contrary testimony, the trial court chose to discredit plaintiff’s testimony because he did not believe that plaintiff had testified truthfully as to a number of other material matters. In this respect, it was noted that plaintiff had testified in a manner “wholly contrary” to Ms. Steinhagen’s report dated May 21, 1980, received in evidence as Exhibit 34:
“Mr. Sampath Hemmige was a substitute teacher at our school today. All students were assigned to report to a music assembly beginning at 9:42 seated by division teachers. Mr. Hemmige brought a chair in from the lunchroom and sat blocking the fire aisle. When questioned he told me that he had no division — he did and had the program card showing same. He then sat in an auditorium seat but refused to remove the chair after several requests. Within two minutes after the musical presentation began — our reknown (sic) Gospel Choir — he left the auditorium.
“I followed him out and repeatedly explained his responsibility for supervision of his class. He refused to do so. I then told him that if he refused to discharge his duties he was released from DuSable.
“He refused to leave and loudly and publicly in the main office challenged my competency to be in charge of this, or any school and called me a prejudiced dictator. He further stated that he was present and supervising for the entire assembly. This is not true.
“I do not want him sent to DuSable and sincerely believe that some serious investigation should be made before he is given a temporary certificate for 1980-1981. He is unsatisfactory.”
Pursuant to school board policy, a conference concerning the unsatisfactory report of Ms. Steinhagen was held with plaintiff on June 13,1980. After he was given a copy of the report, he denied all charges, stating that the principal was a racist and had referred to him as an “Indian.” The conference report (Ex. 35) further related that:
“Mr. Hemmige contends that the principal requested that he perform duties which he feels are not in line with his-position as a teacher. He was advised of Board Rule 6-13 — Duties of Teachers.
“Mr. Hemmige was made aware of the role of the principal and his role as a teacher. He was advised to be circumspect in his relationship with principals.
“Mr. Hemmige was reminded that another unsatisfactory letter could cause his termination.”
As previously noted the unsatisfactory report from the DuSable principal was followed by another unsatisfactory report from Mr. Griffin, under date of June 11, 1980. On June 25, 1980 a conference was held with plaintiff regarding this letter, where he was again informed that while serving in a school as a day-to-day substitute teacher, he was under the jurisdiction of the local school principal.
Our lengthy review of the evidence which was before the trial court fully supports the finding that plaintiff was not a competent substitute teacher and this was why the Board did not renew his license. Likewise, the evidence did not support, “in any degree,” plaintiffs claim of unlawful discrimination, or retaliation against him because he had filed an EEOC charge.
Plaintiff contends that he possessed a property interest in his teaching certificate which was protected by the Fourteenth Amendment, and that he was deprived of his right to due process because the Board refused to renew his certificate without notice or an opportunity for hearing. Here, it is clear that plaintiff was a non-tenured, temporarily employed teacher. Under Illinois law, only tenured teachers are entitled to notice and hearing pending dismissal, and plaintiff’s expectation of employment was governed by his one-year temporary certificate. The union contract provided that the services of an unsatisfactory temporarily certificated teacher could not be terminated “until he has been given an unsatisfactory rating by at least two principals.” There were no agreements between plaintiff and the Board that his temporary teaching certificates would be issued on a continuing basis. Each certificate was limited to a one year term, and was not subject to automatic renewal. Under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and our decisions in McElearney v. University of Illinois, 612 F.2d 285 (7th Cir.1979); Smith v. Board of Education, 708 F.2d 258 (7th Cir.1983); and Eichman v. Indiana State University Board of Trustees, 597 F.2d 1104 (7th Cir.1979) plaintiff had no property interest in a temporary teaching certificate. Contrary to the situation found in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), there was no evidence that the Board’s rules or policies had fostered any expectation of continued employment. Likewise, our recent decision in Vail v. Board of Education, 706 F.2d 1435 (7th Cir.1984) affirmed by equally divided court, 466 U.S. 377, 104 S.Ct. 2144, 80 L.Ed.2d 377 (1984) may be distinguished, for there, the plaintiff had a two year employment promise.
The district court found that plaintiff was entitled to payment for overtime in the sum of $570.41. The ruling in this regard was preceded by this comment:
“Some of the testimony from the past or Board employees which I credited does support the conclusion that the plaintiff is wrong when he said he taught extra classes at the end of the school day. Some of the evidence suggests that there were no classes to be taught at the end of the day. Therefore, precluding the opportunity for the plaintiff to teach at that time.
“In any event, I am going to find in favor of the plaintiff and- award him overtime pay of $570.41 that he says he has coming. The plaintiff, at least, has some documentary evidence in support of that figure. It is not, in relative terms, a large amount and it is simply unworthy of a legal or judicial analysis on a day-today basis in order to reach some greater precision.”
We have reviewed the trial transcript and exhibits received in evidence in this case. The only evidence to support the award of overtime is plaintiffs self serving testimony and Exhibit 84, a “diary” of notes made by Hemmige concerning teaching assignments, travel notes, and other comments. The diary was written in the Hindi language and abbreviated English. Plaintiff testified that he marked his “overtime days” in this diary with an asterisk, although no times of arrival or departure are indicated. Plaintiff testified that his claim for overtime was based upon being asked to work extra classes, above his “normal load.” In this respect he claimed that the union contract governing overtime pay for substitute teachers provided for payment of $42.00 per day for a 6-hour day, and $50 per day for an 8-hour day, with certain increments after 100 days of service. (Ex. 56, p. 126) Hemmige claimed that he was not allowed to eat lunch at the Montefiore School, but the evidence shows that this was a closed campus and no teacher had a free lunch hour during the school day, which ended at 2:30. Teachers were then free to eat lunch or go home at that time. A similar situation existed at the Anderson School. In some instances, plaintiff claimed that he had to work after school hours until 4:30 p.m. but the testimony of principals was to the contrary— there were no classes lasting until 4:30, and plaintiff was not asked to take any extra classes at the end of the school day. Under the union contract a principal was allowed to assign teachers extra classes in emergency situations, and the first persons called upon for this service were the substitute teachers.
While the trial court found that plaintiff at least had “some” evidence on his overtime claim, there was no finding that such evidence was credible. The record is in fact to the contrary. The court did not “believe that the plaintiff has testified truthfully as to a number of material matters,” and found that plaintiff refused to take classes when he had an obligation to do so. Plaintiff had the burden of proof in establishing his breach of contract claim, and in our view he failed to offer sufficient credible evidence to support a finding that he was entitled to $570.41 in overtime pay.
The judgment entered in favor of all defendants and against the plaintiff on all claims of discrimination and retaliation is AFFIRMED. The judgment awarding plaintiff the sum of $570.41 on the issue of overtime pay is REVERSED.
. Under date of December 15, 1977, the principal of one Chicago School wrote to the substitute teacher division advising that Hemmige, in his judgment was “unsatisfactory.” “He refused to take an assignment to teach a class because he said he would not take more than five classes. This was an emergency since we were short of substitutes.”
"If he is not terminated, we certainly do not wish him sent here again.” (Ex. 24)
Under date of March 6, 1978, a principal from a second high school reported that Hemmige was reluctant to accept assignments offered to him and requested that he not be sent to that school again. (Ex. 27)
On June 12, 1978, a third principal reported that Hemmige became upset and created a scene in refusing to take an assigned class. This principal believed that Hemmige’s "actions and behavior were unprofessional” and he requested that Hemmige not be sent to that high school as a substitute in the future. (Ex. 26)
. In this discrimination charge Hemmige claimed that he had not received any oral or written reports regarding his teaching performance from principals; that no principal had ever observed him in a classroom teaching assignment, and that “Dr. Ellenbogen has stated to me that 'You are an Indian so I have terminated you.’" (Ex. 67)
. This letter, directed to the Substitute Teacher Center, was as follows:
“Please do not send substitute teacher Sam-path K. Hemmige ... to Montefiore in the future.
Today he left his class unattended and could not be found for a considerable period of time. He was finally discovered in a counselor’s office using a school telephone.
I told him at that time (1:15 p.m.) to sign out and that he would only be credited with a half day. He refused to sign out.
I called Sub-Center with the above information.” (Ex. 37)
. Under the provisions of the Chicago Teachers Union contract in force for September, 1979 through August 1981, which governed plaintiffs rights under a temporary teaching certificate, Section 39-4.3 provided that:
"When a temporarily certified teacher employed on a day-to-day basis receives an unsatisfactory rating, the Department of Personnel shall schedule a conference with such teacher to give him a written copy of the reasons and give him positive suggestions for improvement.
"The services with the school system of an unsatisfactory temporarily certificated teacher employed on a day-to-day basis shall not be terminated until he has been given an unsatisfactory rating by at least two principals, unless there is evidence of moral laxity or serious misconduct.” (Tr. Vol. 1, p. 16)
. During plaintiffs teaching appointments in Chicago, unsatisfactory reports were received from seven different schools. Conferences were held with him in January, 1978, February, 1979, and on the two occasions discussed in 1980.
. Here, of course, plaintiffs employment was not “terminated,” while his 1979-1980 certificate was in force.
. Other Exhibits purportedly summarized material in this diary, e.g., Exs. 71, 75, 76, 77 and 80.
. While teachers had no "free” lunch period they could eat with the students during the student lunch hour if they preferred.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_treat
|
F
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
NATIONAL LABOR RELATIONS BOARD v. A. S. ABELL CO.
No. 4329.
Circuit Court of Appeals, Fourth Circuit.
July 14, 1938.
Lawrence Hunt, Senior Litigation Atty., National Labor Relations Board, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Laurence A. Knapp, Robert S. Erdahl, and Samuel Edes, Attys., National Labor Relations Board, all of Washington, D. C., on the brief) for petitioner.
W. Randall Compton and William D. Macmillan, both of Baltimore, Md. (Sem-ines, Bowen & Semmes, of Baltimore, Md., on the brief) for respondent.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
SOPER, Circuit Judge.
National Labor Relations Board, pursuant to the controlling statute, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., prays the enforcement of its order directed to The A. S. Abell Company, owner and publisher of two newspapers printed in Baltimore, Maryland, called The Sun and The Evening Sun. International Printing and Pressmen’s Union, Baltimore Branch, Baltimore Web Pressmen’s Union No. 31 had filed charges and the Board had found upon evidence presented to it that the publisher had engaged in unfair labor practices contrary to Sections 8(1) and 8(2) of the Act, 29 U.S.C.A. § 158(1, 2), by interfering with, restraining and coercing its employees in the exercise of their right to self organization guaranteed in Section 7 of the Act, 29 U.S.C.A. § 157, in that the publisher had endeavored to dissuade them from joining the Union, and had interfered with the formation and administration of a Press Room Committee of its employees and had contributed to its support. The Board ordered the employer to cease and desist from such practices and to post in its press room notices to its employees stating that it would cease and desist as ordered. The Board, however, found that the publisher had not discouraged membership in the Union by discrimination in regard to hire or tenure or condition of employment contrary to Section 8(3) of the Act, 29 U.S.C.A. § 158(3), as charged by four of its employees.
Four questions have arisen upon the discussion in this court: (1) Has the Board jurisdiction over the business of the publisher as one which affects commerce among the several states within the meaning of the Act? (2) Did the employer engage in unfair labor practice by discouraging membership in the Union, or (3) by interfering with or encouraging the formation of the Press Room Committee? (4) Was that part of the order of. the Board justified which required the employer to post in its press room notices to its employees stating that it would cease and desist in the manner aforesaid?
The stipulated facts with 'reference to the newspaper’s business justify the findings of fact of the Board, which may be summarized as follows:
“The respondent, a Maryland corporation with its principal office and place of business at Baltimore, Maryland, owns, prints, and publishes The Sun, a daily morning paper with a Sunday edition called The Sunday Sun, and the Evening Sun, a weekday evening paper. * * * The paid circulation for August 1937 totaled 147,842 for the morning papers, 151,067 for the evening papers and 208,978 for the Sunday papers.”
“During the month of May 1937, the peak production month for the period from January to September, 1937, 9,643,300 papers consisting of 347,755,560 pages were printed in the respondent’s plant at a total pay roll cost of $192,071.46 and by a total employment roll of 1,120 persons. This does not include colored portions of the Photogravure Section, the Comic Supplement, and the Magazine ‘This Week’, features of the Sunday edition, which are printed in New York State and shipped to Baltimore as railway baggage or freight, pursuant to purchase arrangements with the respondent.”
“Seven and seventy-five hundredths per cent of the morning papers, 1.7 per cent of the evening papers, and 7.4 per cent of the Sunday papers are shipped to destinations outside the State.”
“Widepread news-gathering, news-interchange, and news-distribution activities of the respondent, transcending the limits of the State of Maryland, are conducted through its branch offices in New York City, Washington, D. C., and London, England, through its correspondents in the principal foreign news centers, through its exclusive right in the United States to all the special correspondence and other material published in .the Manchester Guardian of England, and through its direct wire, wirephoto, and teletypewriter arrangements with The Associated Press, the North American Newspaper Alliance, the New York Herald-Tribune, and Consolidated News Features, Inc. The respondent’s membership in The Associated Press, a New York corporation engaged in the collection and interchange of information and intelligence for publication in newspapers in the United States and foreign countries, entitles that association to the exclusive use for publication of all local news and of certain types of news dispatches published in the respondent’s papers. The respondent is also a member of the Newspaper Publisher’s Association, a nation-wide organization.”
“Advertising, representing a large variety of business interests, is solicited in a majority of the States for publication in the respondent’s papers.”
“The raw materials used in the publication of the respondent’s papers, newsprint and news ink, are derived, predominantly, from sources outside the State; all newsprint, from Canada and New York;‘78% per cent of the news ink, from the-District of Columbia and Pennsylvania. Machinery, supplies, repair and replacement parts are purchased within and without the State.”
We are of opinion upon these facts-that the business of the respondent falls within the purview of the Act. It is true' that the circulation which goes outside-the State of Maryland is a relatively small part of the whole, but it nevertheless constitutes in itself a substantial- volume of business. With this exception the news-distributing activities are of small extent. But the news-gathering activities are far-flung, advertising is generally solicited: throughout the nation by “National Advertising Representatives” (non-employees),, and occasionally by employees, large portion's of the Sunday edition are printed, outside the State and shipped to Baltimore, and the raw materials used in all of the publications are derived for the-most part from sources outside the State. It is clear that the instrumentalities off interstate commerce are used to a very large extent and are affected by the extensive and important business which the publisher conducts.
The collection and dissemination by the Associated Press of information for publication in newspapers in the United States and foreign countries, which was considered in Associated Press v. National Labor Relations Board, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953, differs in the fact that the distribution of news in interstate commerce is as important a feature as its collection; but that case is not without its pertinence here, and see also Indiana Farmer’s Guide Pub. Co. v. Prairie Pub. Co., 293 U.S. 268, 55 S.Ct. 182, 79 L.Ed. 356. There are a number of other decisions sustaining the jurisdiction of the Board over business activities of no greater effect upon interstate commerce than those now under consideration. National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 301 U.S. 58, 57 S.Ct. 645, 630, 81 L.Ed. 921, 108 A.L.R. 1352; National Labor Relations Board v. Wallace Mfg. Co., Inc., 4 Cir., 95 F.2d 818; National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 94 F.2d 138; Mooresville Cotton Mills v. National Labor Relations Board, 4 Cir., 94 F.2d 61; Jeffery-De Witt Insulator Co. v. National Labor Relations Board, 4 Cir., 91 F.2d 134, 112 A.L.R. 948; cf. Consolidated Edison Co. v. National Labor Relations Board, 2 Cir., 95 F.2d 390. In view of this.course of decision it is not reasonable to conclude that the respondent’s business is not covered by the Act on the ground that the greater part of its interstate operations involves the receipt rather than the distribution of information and materials in interstate commerce. The distinction, insofar as the effect upon interstate commerce is concerned, appears to be irrelevant. The respondent emphasizes passages in Schechter Poultry Corp. v. United States, 295 U.S. 495, 543, 55 S.Ct. 837, 848, 79 L.Ed. 1570, 97 A.L.R. 947, wherein it was found that the effect of the flow of commodities into a State was so remote as to be beyond the federal power; but we do not regard those expressions as controlling under the circumstances of the pending litigation notwithstanding the subsequent citation of the case in National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 32, 36, 40, 41, 57 S.Ct. 615, 621, 623, 625, 626, 81 L.Ed. 893, 108 A.L.R. 1352, and Santa Cruz Fruit Packing Co. v. Labor Board, 58 S.Ct. 656, 660, 82 L.Ed.-.
In the last cited case the Supreme Court considered the business of a packing company engaged in preparing for shipment fruits and vegetables grown in California of which a substantial percentage was then shipped in interstate or foreign commerce. It was held that in view of the interstate commerce actually carried on by the packer, the contention that the business was not covered by the Act because the raw materials of production were not brought into the State from the outside was without merit. The court said (page 659):
“The 'existence of a continuous flow of interstate commerce through the state may indeed readily show the intimate relation of particular transactions to that commerce. Stafford v. Wallace, 258 U.S. 495, 516, 42 S.Ct. 397, 402, 66 L.Ed. 735, 23 A.L.R. 229; Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 33, 43 S.Ct. 470, 476, 67 L.Ed. 839. But, as we said in the Jones & Laughlin Case, the instances in which the metaphor of a ‘stream of commerce’ has been used are but particular, and not exclusive, illustrations of the protective power which Congress may exercise. ‘The congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a “flow” of interstate or foreign commerce. Burdens and obstructions may be due to injurious actions springing from other sources.’ National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, at page 36, 57 S.Ct. 615, 624, 81 L.Ed. 893, 108 A.L.R. 1352.”
The charge of interfering with, restraining and coercing the press room employees in regard to their right of self organization rests on evidence tending to show that between April and July, 1937 the Local Union, under the leadership of Louis Krampf, its president, carried on a campaign to organize the men during which Alfred C. Miller, the superintendent of the press room, made certain statements to dissuade them from joining the Union. A number of the men testified that Miller, in one form or another, told them that it would not be to their interest to join the Union or that it would be a detriment to them if they did so. The most definite statement, which was made on different occasions to six or seven men occupying the position of floormen, was that if the Union came in, they would be reduced to the position of paper handlers at $24 a week, a change which would have amounted to a demotion. In addition it was testified that Miller stated to one of the men that it would be foolish for him to join the Union; to another that he could not see in view of the conditions at the plant why any man should join the Union, and that a man-so joining would get no consideration and would not be giving proper attention to the interests of his family; to another who admitted signing up with the Union, that the place would never change aiid that he had time to think it over; and to another employee that if he would stick by the company and not become a Union man, he would be given a better position. One of the employees was warned by Miller not to talk to the men about the Union on the premises. A few statements somewhat similar to those of the superintendent of the press room were attributed to the night foreman and they serve to corroborate the testimony as to Miller.
On his part Miller admitted that he had made inquiries of the men as to their interest in the Union because he desired to know what their attitude was; but he said that he had no recollection of making the statements attributed to him which were seemingly intended to discourage Union membership. It was shown by witnesses for the Union that on more than one occasion Miller told employees that all would be treated alike, whether they were Union members or not; and the Board failed to find, notwithstanding certain complaints, that any actual discrimination against employees because of Union sympathies had occurred. There was no evidence that any employee of the press room was actually coerced or restrained from joining the Union or from remaining a Union member when once he had joined. Indeed all the witnesses who testified for the Union joined the body either before or after Miller’s statements were made, and retained their membership at the time of the hearing before the Board.
According to a circular distributed by the Union, William F. Schmick, executive vice president and business manager of the establishment, stated at the beginning of the Union campaign that he had no objection to the press room employees joining the Union, and there was no evidence that Miller’s attitude with regard to the Union was assumed at the behest of his superior officers. His testimony was to the contrary. The newspaper maintained an open shop. Two other departments of the business, the stereotype and the typographical, had- previously been unionized and negotiations between the Union and the publisher had been continuously carried on.
It is obvious from this recital that even if all the testimony unfavorable to the employer be accepted at its face' value, the offenses proved were not of grave importance. Nevertheless there was substantial evidence to show that the superintendent of the press room, who had control of the men in that department with authority to hire and discharge them, made a number of statements from which the men'might fairly infer that it was not to their interest to become members of the Union and that they might suffer from such an association. We conclude, therefore, that there was' basis for the ordér of the Board insofar as it directed the employer to cease and desist from interfering with its press room employees in the exercise of their rights under Section 7 of the Act, 29 U.S.C.A. § 157, and from discouraging membership in the Union. The doctrine of respondeat superior applies and the management must assume responsibility for the actions of its supervisory official even though it had no actual participation therein.
We find, however, no substantial ground for the conclusion of the Board that the employer sponsored and encouraged the establishment of the Press Room Committee. The evidence is definite that the idea was conceived by one LeFaivre, a pressman of some ten years’ experience, one of the younger employees, who, being unfavorable to the Union himself, reached the conclusion that his fellow workmen, especially his associates on the night force, were disturbed by the efforts of the Union to organize the press room. With the aid of a law student. he prepared a petition to be circulated amongst the men. In substance it stated that the signers were entirely satisfied with their working conditions; that whenever necessary, they would form a committee to represent the press room in matters pertaining to the welfare of the men and of the publisher and pertaining to salaries or working conditions; that they would abide by the ruling of the committee, and did not wish to join any union or other association ; and they requested their employer to recognize no other committee. According to the direct testimony, neither Miller, the superintendent of the press room, nor the foreman, nor any official of the company had any share in the circulation of the petition or formation of the committee.
LeFaivre circulated the petition among the night men and three other pressmen, Groves, Johancen and I. O’Connor, circulated it among the day men, and it was signed by 72 out of the 87 press room employees. An engagement was then made through Miller and the petition was presented to Schmick on June 4, 1937 by a group of men which included LeFaivre, House, Krausch and Snyder. Schmick received the petition, thanked the men and dismissed them.
After leaving Schmick, it was decided to call a meeting of the signers at Krausch’s home on the following Sunday afternoon. The men were notified and 30 to 47 attended, according to, varying estimates. At this meeting Groves and Johancen were nominated as officers but Barnes and Berry, both of whom were members of the Union, were chosen. No explanation of the election of union men by employees supposedly hostile to the Union is vouch safed. A committee of seven was also. chosen to confer with the management as occasion might arise. After the business meeting was concluded, beer was served which had been purchased out of a common fund and the men took part in a card game. This entertainment was shared by Miller and O’Connor, the day foreman, who arrived after the business meeting had been adjourned. No subsequent meetings of the organization were held and the committee chosen to represent the men made no subsequent attempt to confer with the management.
The Board in its opinion refers to certain attendant circumstances as indicating that the formation of the committee was inspired by the management in order to impede the efforts of the Union organizers. Reference is made to evidence showing that a month before the petition was prepared, LeFaivre happened to be in Miller’s home when the president and vice-president of the local Union called, and tried unsuccessfully to persuade Miller to join the Union, and that Miller then told the Union men that 80% of the press room employees were pledged to him, a percentage close to that of the signers of the petition which was subsequently circulated; that Miller told one of the signers that by signing he had done the right thing; that some of the signers affixed their names on the desk in Miller’s office during his absence; that two of the press men, Grove and Johancen, who circulated the petition amongst the day force, sometimes acted like assistant foremen and gave orders to other workmen in the press room, although it was proved that the two received the same salary as other press men and had no greater privileges or authority than they to discipline the men; that a third man who circulated the petition amongst the day force was a son of the day foreman and that LeFaivre was the son-in-law of the foreman of the composing room, although the Board made no mention of the fact that LeFaivre’s iather-in-law was a strong Union man; that Grove acted as day foreman when the regular foreman went on vacation and that one of the men who waited on Schmick with the petition after it was signed acted as foreman one night a week in the absence of the regular foreman; and that Miller and O’Connor attended the party of the press room employees which followed the organization of the committee although it was the custom of these supervisory officials to attend social gatherings of the men. Comment is made upon the fact that the business manager receiving the petition which expressed entire satisfaction with the working conditions in the plant, thanked the men with the statement that “it was nice to get the petition and it showed a spirit of loyalty”; and it is emphasized as indicating a lack of bona fides in the organization that it had no constitution or bylaws, held no subsequent meetings, made no attempt to bargain collectively and presented no grievances to the management, and that LeFaivre in considering the question of incorporation, thought of the petition as a scrap of paper.
If one finds it incredible at the outset that a majority of the pressmen were not only opposed to the Union but were satisfied with prevailing working conditions, it is possible to conjecture from the attendant circumstances that the employer was pleased with the situation or even that it encouraged the formation of the press room committee. There is, however, no justification for the position that spontaneous action on the part of the men is so improbable as to warrant the inference that it was inspired by the management. The promotion of the Union originated outside the shop and did not spring from the dissatisfaction of the men with their wages and working conditions; and the formation of the committee designed tq represent the men in place of the Union and its failure to present any grievances in the short interval between its formation in June and the hearing before the trial examiner in September, 1937 tend to prove that there were no grievances to present, rather than that the committee was a sham imposed by the management upon the men. The choice between Union and Committee was presented to the men; its free exercise was guaranteed in the “right to self-organization” and “to bargain collectively through representatives of their own choosing”, conferred by Section 7 of the Act, 29 U.S.C.A. § 157; and there is no sufficient evidence in this case of interference or domination on the part of the employer. In this respect the burden of proof was upon the Union, and while the charge was supported only by conjecture and suspicion, it was refuted by positive and direct testimony. The failure of the Board to credit this testimony does not supply the lack of affirmative proof of unfair labor practice on the part of the employer.
In Appalachian Electric Power Co. v. National Labor Relations Board, 93 F.2d 985, 989, this court said:
“We are bound by the Board’s findings of fact as to matters within its jurisdiction, where the findings are supported by substantial evidence; but we are’ not bound by findings which are' not so supported. 29 U.S.C.A. § 160(e) (f); Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, 301 U.S. 142, 57 S.Ct. 648, 650, 81 L.Ed. 965. The rule as to substantiality is not different, we think, from that to be applied in reviewing the refusal to direct a verdict at law, where the lack of substantial evidence is the test of the right to a directed verdict. In either case, substantial evidence is evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences. Cf. Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 339-343, 53 S.Ct. 391, 393, 394, 77 L.Ed. 819.”
In Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 343, 53 S.Ct. 391, 395, 77 L.Ed. 819, the court, speaking of the function of the trial court in withdrawing a case from the jury, said:
“And where the evidence is ‘so overwhelmingly on one side as to leave no room to doubt what the fact is, the court should give a peremptory instruction to the jury.’ Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 233, 74 L.Ed. 720; Patton v. Texas & Pacific R. Co., 179 U.S. 658, 660, 21 S.Ct. 275, 45 L.Ed. 361. The rule is settled for the federal courts, and for many of the state courts, that whenever in the trial of a civil case the evidence is clearly such that if a verdict were rendered for one of the parties the other would be entitled to a new trial, it is the duty of the judge to direct the jury to find/according to the views of the court. Such a practice, this court has said, not only saves time and expense, but ‘gives scientific certainty to the law in its application to the facts and promotes the ends of justice.’ Bowditch v. Boston, 101 U.S. 16, 18, 25 L.Ed. 980; Barrett v. Virginian R. Co., 250 U.S. 473, 476, 39 S.Ct. 540, 63 L.Ed. 1092; and cases cited; Herbert v. Butler, 97 U.S. 319, 320, 24 L.Ed. 958. The scintilla rule has been definitely and repeatedly rejected so far as the federal courts are concerned. Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867; Commissioners of Marion County v. Clark, 94 U.S. 278, 284, 24 L.Ed. 59; Small Co. v. Lamborn & Co., 267 U.S. 248, 254, 45 S.Ct. 300, 303, 69 L.Ed. 597; Gunning v. Cooley, supra; Ewing v. Goode [C.C.], 78 F. [442], 443, 444.”
We conclude, therefore, that the order of the Board should be modified by the omission of the direction to the employer to “cease and desist from recognizing the pressroom committee as a bargaining agency for its employees qnd in any manner interfering ’ with the formation or administration of, or contributing support to, the pressroom committee, or any other labor organization of its employees.” The factual basis for such a direction, as we have seen, does not exist; and since it appears that the formation of the committee was the free and untrammelled action of the employees themselves, denial of recognition to the committee would deprive them of the most important rights accorded them by the statute, the right to self organization and the right to bargain collectively through representatives of their own choosing.
We are of opinion also that the form of the notice of the Board’s decision which it ordered to be posted in the press room of the employer should be modified. The Board ordered the employer to cease and desist from interfering with, restraining or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and specifically to cease and desist from discouraging membership in the Union and from recognizing the Press Room Committee as a bargaining agency, and from interfering with its administration or contributing to its support; and the Board, as is its custom, also directed the employer to “take the following affirmative action which the Board finds will effectuate the policies of the Act; (a) Post immediately in conspicuous places in its press room notices to its employees stating that the respondent will cease and desist in the manner aforesaid.”
It is pointed out that the statement of the employer that it will cease and desist from the prohibited actions necessarily im-plies that it has been guilty in the. past of the unfair practices charged; and it is contended that neither court nor administrative tribunal should compel a person against his will to admit an infraction of the law, even if he has been convicted thereof by duly constituted authority. We are in accord with this view. The responsibility of enforcing an order of the Board is imposed upon this court, and if necessary, compliance may be compelled by attachment for contempt. We think that the power to compel a person to confess the commission of an illegal act, if such power exists, should not be exercised in Labor Board cases; and that a refusal to confess, when ordered by the Board to do so, should not be punished under the power of the court to enforce obedience to its decrees. The requirement that notice of the decision and order of the court should be published whereby employees may receive precise information of the action of the Board upon a complaint against their employer is within the power of the Board to direct such affirmative action on the part of the employer as will effectuate the policies of the Act; and such a requirement has been generally approved in a number of cases, but the precise point now under consideration has not been discussed. See National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 58 S.Ct. 571, 82 L.Ed. -; National Labor Relations Board v. Pacific Greyhounds, Inc., 303 U.S. 272, 58 S.Ct. 577, 82 L.Ed. -; Jeffery-De Witt Insulator Co. v. National Labor Relations Board, 4 Cir., 91 F.2d 134, certiorari denied 302 U.S. 731, 58 S.Ct. 55, 82 L.Ed. -; National Labor Relations Board v. Wallace Mfg. Co., Inc., 4 Cir., 95 F.2d 818; National Labor Relations Board v. J. Freezer & Sons, 4 Cir., 95 F.2d 840; National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 94 F.2d 138 and National Labor Relations Board v. Oregon Worsted Co., 9 Cir., 96 F.2d 193. The purposes of the Act will be fully met in this respect if the employer is required to post in a conspicuous place a notice to its employees which contains a copy of the order of the Board, with its enumeration of the actions from which the employer has been ordered to cease and desist, and of the affirmative actions which it is required to take, including, in the latter, a posting of a copy of the order of the Board, together with a statement that the order has been approved by this court and is binding upon the employer.
A decree of this court will be signed modifying the order of the Board, as indicated herein, and directing that the order as modified be enforced.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
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sc_issuearea
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
MICHIGAN v. TUCKER
No. 73-482.
Argued March 20, 1974
Decided June 10, 1974
RehNquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, BlacKMUN, and Powell, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 453. BreNNAN, J., filed an opinion concurring in the judgment, in which Marshall, J., joined, post, p. 453. White, J., filed an opinion concurring in the judgment, post, p. 460. Douglas, J., filed a dissenting opinion, post, p. 461.
L. Brooks Patterson argued the cause for petitioner. With him on the brief was Robert C. Williams.
Kenneth M. Mogill, by appointment of the Court, 415 U. S. 909, argued the cause pro hac vice and filed a brief for respondent.
Edward R. Korman argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, Deputy Solicitor General Frey, and Jerome M. Feit.
Roman S. Gribbs argued the cause and filed a brief for the Detroit Bar Assn, as amicus curiae urging affirmance.
Briefs of amici curiae urging reversal were filed by Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, and Doris H. Maier, Assistant Attorney General, for the State of California, and by Frank G. Carrington, Jr., Fred E. Inbau, William K. Lambie, Wayne W. Schmidt, Glen Murphy, Paul Keller, and James B. Zagel for Americans for Effective Law Enforcement et al.
The Civil Liberties Committee, State Bar of Michigan, filed a brief as amicus curiae urging affirmance.
Mr. Justice Rehnquist
delivered the opinion of the Court.
This case presents the question whether the testimony of a witness in respondent’s state court trial for rape must be excluded simply because police had learned the identity of the witness by questioning respondent at a time when he was in custody as a suspect, but had not been advised that counsel would be appointed for him if he was indigent. The questioning took place before this Court’s decision in Miranda v. Arizona, 384 U. S. 436 (1966), but respondent’s trial, at which he was convicted, took place afterwards. Under the holding of Johnson v. New Jersey, 384 U. S. 719 (1966), therefore, Miranda is applicable to this case. The United States District Court for the Eastern District of Michigan reviewed respondent’s claim on a petition for habeas corpus and held that the testimony must be excluded. The Court of Appeals affirmed.
I
On the morning of April 19, 1966, a 43-year-old woman in Pontiac, Michigan, was found in her home by a friend and coworker, Luther White, in serious condition. At the time she was found the woman was tied, gagged, and partially disrobed, and had been both raped and severely beaten. She was unable to tell White anything about her assault at that time and still remains unable to recollect what happened.
While White was attempting to get medical help for the victim and to call for the police, he observed a dog inside the house. This apparently attracted White’s attention for he knew that the woman did not own 'a dog herself. Later, when talking with police officers, White observed the dog a second time, and police followed the dog to respondent’s house. Neighbors further connected the dog with respondent.
The police then arrested respondent and brought him to the police station for questioning. Prior to the actual interrogation the police asked respondent whether he knew for what crime he had been arrested, whether he wanted an attorney, and whether he understood his constitutional rights. Respondent replied that he did understand the crime for which he was arrested, that he did not want an attorney, and that he understood his rights. The police further advised him that any statements he might make could be used against him at a later date in court. The police, however, did not advise respondent that he would be furnished counsel free of charge if he could not pay for such services himself.
The police then questioned respondent about his activities on the night of the rape and assault. Respondent replied that during the general time period at issue he had first been with one Robert Henderson and then later at home, alone, asleep. The police sought to confirm this story by contacting Henderson, but Henderson’s story served to discredit rather than to bolster respondent’s account. Henderson acknowledged that respondent had been with him on the night of the crime but said that he had left at a relatively early time. Furthermore, Henderson told police that he saw respondent the following day and asked him at that time about scratches on his face — “asked him if he got hold of a wild one or something.” Respondent answered: “[S]omething like that.” Then, Henderson said, he asked respondent “who it was,” and respondent said: “[S]ome woman lived the next block over,” adding: “She is a widow woman” or words to that effect.
These events all occurred prior to the date on which this Court handed down its decision in Miranda v. Arizona, supra, but respondent’s trial occurred after-wards. Prior to trial respondent’s appointed counsel made a motion to exclude Henderson’s expected testimony because respondent had revealed Henderson’s identity without having received full Miranda warnings. Although respondent’s own statements taken during interrogation were excluded, the trial judge denied the motion to exclude Henderson’s testimony. Henderson therefore testified at trial, and respondent was convicted of rape and sentenced to 20 to 40 years’ imprisonment. His conviction was affirmed by both the Michigan Court of Appeals and the Michigan Supreme Court.
Respondent then sought habeas corpus relief in Federal District Court. That court, noting that respondent had not received the full Miranda warnings and that the police had stipulated Henderson’s identity was learned only through respondent’s answers, “reluctantly” concluded that Henderson’s testimony could not be admitted. Application of such an exclusionary rule was necessary, the court reasoned, to protect respondent’s Fifth Amendment right against compulsory self-incrimination. The court therefore granted respondent’s petition for a writ of habeas corpus unless petitioner retried respondent within 90 days. The Court of Appeals for the Sixth Circuit affirmed. We granted certiorari, 414 U. S. 1062 (1973), and now reverse.
II
Although respondent’s sole complaint is that the police failed to advise him that he would be given free counsel if unable to afford counsel himself, he did not, and does not now, base his arguments for relief on a right to counsel under the Sixth and Fourteenth Amendments. Nor was the right to counsel, as such, considered to be persuasive by either federal court below. We do not have a situation such as that presented in Escobedo v. Illinois, 378 U. S. 478 (1964), where the policemen interrogating the suspect had refused his repeated requests to see his lawyer who was then present at the police station. As we have noted previously, Escobedo is not to be broadly extended beyond the facts of that particular case. See Johnson v. New Jersey, 384 U. S., at 733-734; Kirby v. Illinois, 406 U. S. 682, 689 (1972); Frazier v. Cupp, 394 U. S. 731, 739 (1969). This case also falls outside the rationale of United States v. Wade, 388 U. S. 218, 224 (1967), where the Court held that counsel was needed at a post-indictment lineup in order to protect the “right to a fair trial at which the witnesses against [the defendant] might be meaningfully cross-examined.” Henderson was fully available for searching cross-examination at respondent’s trial.
Respondent’s argument, and the opinions of the District Court and Court of Appeals, instead rely upon the Fifth Amendment right against compulsory self-incrimination and the safeguards designed in Miranda to secure that right. In brief, the position urged upon this Court is that proper regard for the privilege against compulsory self-incrimination requires, with limited exceptions not applicable here, that all evidence derived solely from statements made without full Miranda warnings be excluded at a subsequent criminal trial. For purposes of analysis in this case we believe that the question thus presented is best examined in two separate parts. We will therefore first consider whether the police conduct complained of directly infringed upon respondent’s right against compulsory self-incrimination or whether it instead violated only the prophylactic rules developed to protect that right. We will then consider whether the evidence derived from this interrogation must be excluded.
Ill
The history of the Fifth Amendment right against compulsory self-incrimination, and the evils against which it was directed, have received considerable attention in the opinions of this Court. See, e. g., Kastigar v. United States, 406 U. S. 441 (1972); Miranda v. Arizona, supra; Murphy v. Waterfront Comm’n, 378 U. S. 52 (1964); Ullmann v. United States, 350 U. S. 422, 426 (1956); Counselman v. Hitchcock, 142 U. S. 547 (1892). At this point in our history virtually every schoolboy is familiar with the concept, if not the language, of the provision that reads: “No person . . . shall be compelled in any criminal case to be a witness against himself . ...” This Court’s decisions have referred to the right as “the mainstay of our adversary system of criminal justice,” Johnson v. New Jersey, supra, at 729, and as “ ‘one of the great landmarks in man’s struggle to make himself civilized.’ ” Ullmann, supra, at 426. It is not surprising that the constitution of virtually every State has a comparable provision. 8 J. Wigmore, Evidence § 2252 (McNaughton rev. 1961) (hereinafter Wigmore).
The importance of a right does not, by itself, determine its scope, and therefore we must continue to hark back to the historical origins of the privilege, particularly the evils at which it was to strike. The privilege against compulsory self-incrimination was developed by painful opposition to a course of ecclesiastical inquisitions and Star Chamber proceedings occurring several centuries ago. See L. Levy, Origins of the Fifth Amendment (1968); Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1 (1949); 8 Wigmore §2250. Certainly anyone who reads accounts of those investigations, which placed a premium on compelling subjects of the investigation to admit guilt from their own lips, cannot help but be sensitive to the Framers’ desire to protect citizens against such compulsion. As this Court has noted, the privilege against self-incrimination “was aimed at a . . . far-reaching evil — a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality.” Ullmann, supra, at 428.
Where there has been genuine compulsion of testimony, the right has been given broad scope. Although the constitutional language in which the privilege is cast might be construed to apply only to situations in which the prosecution seeks to call a defendant to testify against himself at his criminal trial, its application has not been so limited. The right has been held applicable to proceedings before a grand jury, Counselman v. Hitchcock, supra; to civil proceedings, McCarthy v. Arndstein, 266 U. S. 34 (1924); to congressional investigations, Watkins v. United States, 354 U. S. 178 (1957); to juvenile proceedings, In re Gault, 387 U. S. 1 (1967); and to other statutory inquiries, Malloy v. Hogan, 378 U. S. 1 (1964). The privilege has also been applied against the States by virtue of the Fourteenth Amendment. Ibid.
The natural concern which underlies many of these decisions is that an inability to protect the right at one stage of a proceeding may make its invocation useless at a later stage. For example, a defendant’s right not to be compelled to testify against himself at his own trial might be practically nullified if the prosecution could previously have required him to give evidence against himself before a grand jury. Testimony obtained in civil suits, or before administrative or legislative committees, could also prove so incriminating that a person compelled to give such testimony might readily be convicted on the basis of those disclosures in a subsequent criminal proceeding.
In more recent years this concern — that compelled disclosures might be used against a person at a later criminal trial — -has been extended to cases involving police interrogation. Before Miranda the principal issue in these cases was not whether a defendant had waived his privilege against compulsory self-incrimination but simply whether his statement was “voluntary.” In state cases the Court applied the Due Process Clause of the Fourteenth Amendment, examining the circumstances of interrogation to determine whether the processes were so unfair or unreasonable as to render a subsequent confession involuntary. See, e. g., Brown v. Mississippi, 297 U. S. 278 (1936); Chambers v. Florida, 309 U. S. 227 (1940); White v. Texas, 310 U. S. 530 (1940); Payne v. Arkansas, 356 U. S. 560 (1958); Haynes v. Washington, 373 U. S. 503 (1963). See also 3 J. Wigmore, Evidence §815 et seq. (Chadbourne rev. 1970). Where the State’s actions offended the standards of fundamental fairness under the Due Process Clause, the State was then deprived of the right to use the resulting confessions in court.
Although federal cases concerning voluntary confessions often contained references to the privilege against compulsory self-incrimination, references which were strongly criticized by some commentators, see 8 Wig-more § 2266, it was not until this Court’s decision in Miranda that the privilege against compulsory self-incrimination was seen as the principal protection for a person facing police interrogation. This privilege had been made applicable to the States in Malloy v. Hogan, supra, and was thought to offer a more comprehensive and less subjective protection than the doctrine of previous cases. In Miranda the Court examined the facts of four separate- cases and stated:
“In these cases, we might not find the defendants’ statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest. ... To be sure, the records do not evince overt physical coercion or patent psychological ploys. The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice.” 384 U. S., at 457.
Thus the Court in Miranda, for the first time, expressly declared that the Self-Incrimination Clause was applicable to state interrogations at a police station, and that a defendant’s statements might be excluded at trial despite their voluntary character under traditional principles.
To supplement this new doctrine, and to help police officers conduct interrogations without facing a continued risk that valuable evidence would be lost, the Court in Miranda established a set of specific protective guidelines, now commonly known as the Miranda rules. The Court declared that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Id., at 444. A series of recommended “procedural safeguards” then followed. The Court in particular stated:
“Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Ibid.
The Court said that the defendant, of course, could waive these rights, but that any waiver must have been made “voluntarily, knowingly and intelligently.” Ibid.
The Court recognized that these procedural safeguards were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected. As the Court remarked:
“[W]e cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted.” Id., at 467.
The suggested safeguards were not intended to “create a constitutional straitjacket,” ibid., but rather to provide practical reinforcement for the right against compulsory self-incrimination.
A comparison of the facts in this case with the historical circumstances underlying the privilege against compulsory self-incrimination strongly indicates that the police conduct here did not deprive respondent of his privilege against compulsory self-incrimination as such, but rather failed to make available to him the full measure of procedural safeguards associated with that right since Miranda. Certainly no one could contend that the interrogation faced by respondent bore any resemblance to the historical practices at which the right against compulsory self-incrimination was aimed. The District Court in this case noted that the police had “warned [respondent] that he had the right to remain silent,” 352 F. Supp. 266, 267 (1972), and the record in this case clearly shows that respondent was informed that any evidence taken could be used against him. The record is also clear that respondent was asked whether he wanted an attorney and that he replied that he did not. Thus, his statements could hardly be termed involuntary as that term has been defined in the decisions of this Court. Additionally, there were no legal sanctions, such as the threat of contempt, which could have been applied to respondent had he chosen to remain silent. He was simply not exposed to “the cruel trilemma of self-accusation, perjury or contempt.” Murphy v. Waterfront Comm’n, 378 U. S., at 55.
Our determination that the interrogation in this case involved no compulsion sufficient to breach the right against compulsory self-incrimination does not mean there was not a disregard, albeit an inadvertent disregard, of the procedural rules later established in Miranda. The question for decision is how sweeping the judicially imposed consequences of this disregard shall be. This Court said in Miranda that statements taken in violation of the Miranda principles must not be used to prove the prosecution’s case at trial. That requirement was fully complied with by the state court here: respondent’s statements, claiming that he was with Henderson and then asleep during the time period of the crime were not admitted against him at trial. This Court has also said, in Wong Sun v. United States, 371 U. S. 471 (1963), that the “fruits” of police conduct which actually infringed a defendant’s Fourth Amendment rights must be suppressed. But we have already concluded that the police conduct at issue here did not abridge respondent’s constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege. Thus, in deciding whether Henderson’s testimony must be excluded, there is no controlling precedent of this Court to guide us. We must therefore examine the matter as a question of principle.
IV
Just as the law does not require that a defendant receive a perfect trial, only a fair one, it cannot realistically require that policemen investigating serious crimes make no errors whatsoever. The pressures of law enforcement and the vagaries of human nature would make such an expectation unrealistic. Before we penalize police error, therefore, we must consider whether the sanction serves a valid and useful purpose.
We have recently said, in a search-and-seizure context, that the exclusionary rule’s “prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” United States v. Calandra, 414 U. S. 338, 347 (1974). We then continued:
“ 'The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.’ Elkins v. United States, 364 U. S. 206, 217 (1960).” Ibid.
In a proper case this rationale would seem applicable to the Fifth Amendment context as well.
The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.
We consider it significant to our decision in this case that the officers’ failure to advise respondent of his right to appointed counsel occurred prior to the decision in Miranda. Although we have been urged to resolve the broad question of whether evidence derived from statements taken in violation of the Miranda rules must be excluded regardless of when the interrogation took place/ we instead place our holding on a narrower ground. For at the time respondent was questioned these police officers were guided, quite rightly, by the principles established in Escobedo v. Illinois, 378 U. S. 478 (1964), particularly focusing on the suspect’s opportunity to have retained counsel with him during the interrogation if he chose to do so. Thus, the police asked respondent if he wanted counsel, and he answered that he did not. The statements actually made by respondent to the police, as we have observed, were excluded at trial in accordance with Johnson v. New Jersey, 384 U. S. 719 (1966). Whatever deterrent effect on future police conduct the exclusion of those statements may have had, we do not believe it would be significantly augmented by excluding the testimony of the witness Henderson as well.
When involuntary statements or the right against compulsory self-incrimination are involved, a second justification for the exclusionary rule also has been asserted: protection of the courts from reliance on untrustworthy evidence. Cases which involve the Self-Incrimination Clause must, by definition, involve an element of coercion, since the Clause provides only that a person shall not be compelled to give evidence against himself. And cases involving statements often depict severe pressures which may override a particular suspect's insistence on innocence. Fact situations ranging from classical third-degree torture, Brown v. Mississippi, 297 U. S. 278 (1936), to prolonged isolation from family or friends in a hostile setting, Gallegos v. Colorado, 370 U. S. 49 (1962), or to a simple desire on the part of a physically or mentally exhausted suspect to have a seemingly endless interrogation end, Watts v. Indiana, 338 U. S. 49 (1949), all might be sufficient to cause a defendant to accuse himself falsely.
But those situations are a far cry from that presented here. The pressures on respondent to accuse himself were hardly comparable even with the least prejudicial of those pressures which have been dealt with in our cases. More important, the respondent did not accuse himself. The evidence which the prosecution successfully sought to introduce was not a confession of guilt by respondent, or indeed even an exculpatory statement by respondent, but rather the testimony of a third party who was subjected to no custodial pressures. There is plainly no reason to believe that Henderson’s testimony is untrustworthy simply because respondent was not advised of his right to appointed counsel. Henderson was both available at trial and subject to cross-examination by respondent’s counsel, and counsel fully used this opportunity, suggesting in the course of his cross-examination that Henderson’s character was less than exemplary and that he had been offered incentives by the police to testify against respondent. Thus the reliability of his testimony was subject to the normal testing process of an adversary trial.
Respondent contends that an additional reason for excluding Henderson’s testimony is the notion that the adversary system requires “the government in its contest with the individual to shoulder the entire load.” 8 Wig-more § 2251, p. 317; Murphy v. Waterfront Comm’n, 378 U. S., at 55; Miranda v. Arizona, 384 U. S., at 460. To the extent that this suggested basis for the exclusionary rule in Fifth Amendment cases may exist independently of the deterrence and trustworthiness rationales, we think it of no avail to respondent here. Subject to applicable constitutional limitations, the Government is not forbidden all resort to the defendant to make out its case. It may require the defendant to give physical evidence against himself, see Schmerber v. California, 384 U. S. 757 (1966); United States v. Dionisio, 410 U. S. 1 (1973), and it may use statements which are voluntarily given by the defendant after he receives full disclosure of the rights offered by Miranda. Here we deal, not with the offer of respondent’s own statements in evidence, but only with the testimony of a witness whom the police discovered as a result of respondent’s statements. This recourse to respondent’s voluntary statements does no violence to such elements of the adversary system as may be embodied in the Fifth, Sixth, and Fourteenth Amendments.
In summary, we do not think that any single reason supporting exclusion of this witness’ testimony, or all of them together, are very persuasive. By contrast, we find the arguments in favor of admitting the testimony quite strong. For, when balancing the interests involved, we must weigh the strong interest under any system of justice of making available to the trier of fact all con-cededly relevant and trustworthy evidence which either party seeks to adduce. In this particular case we also “must consider society’s interest in the effective prosecution of criminals in light of the protection our pre-Miranda standards afford criminal defendants.” Jenkins v. Delaware, 395 U. S. 213, 221 (1969). These interests may be outweighed by the need to provide an effective sanction to a constitutional right, Weeks v. United States, 232 U. S. 383 (1914), but they must in any event be valued. Here respondent’s own statement, which might have helped the prosecution show respondent’s guilty conscience at trial, had already been excised from the prosecution’s case pursuant to this Court’s Johnson decision. To extend the excision further under the circumstances of this case and exclude relevant testimony of a third-party witness would require far more persuasive arguments than those advanced by respondent.
This Court has already recognized that a failure to give interrogated suspects full Miranda warnings does not entitle the suspect to insist that statements made by him be excluded in every conceivable context. In Harris v. New York, 401 U. S. 222 (1971), the Court was faced with the question of whether the statements of the defendant himself, taken without informing him of his right of access to appointed counsel, could be used to impeach defendant’s direct testimony at trial. The Court concluded that they could, saying:
“Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court’s holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.” Id., at 224.
We believe that this reasoning is equally applicable here. Although Johnson enabled respondent to block admission of his own statements, we do not believe that it requires the prosecution to refrain from all use of those statements, and we disagree with the courts below that Henderson’s testimony should have been excluded in this case.
Reversed.
352 F. Supp. 266 (1972).
480 F. 2d 927 (1973).
Tr. of Prelim. Hearing 99.
Ibid.
Id,., at 99-100.
Tr. of Trial 223.
Ibid.
Id., at 224.
Ibid.
Ibid.
19 Mich. App. 320, 172 N. W. 2d 712 (1969).
385 Mich. 594, 189 N. W. 2d 290 (1971).
352 F. Supp., at 268.
The Court has also held that comment on a defendant’s silence or refusal to take the witness stand may be an impermissible penalty on exercise of the privilege. See Griffin v. California, 380 U. S. 609 (1965).
For example in Bram v. United States, 168 U. S. 532, 542 (1897), the Court stated:
“In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’ ”
As noted in the text, the privilege against compulsory self-incrimination was not held applicable against the States until Malloy v. Hogan, 378 U. S. 1 (1964).
Wigmore states his objection in the following terms:
“Today in the United States confessions, and probably even lesser self-incriminating admissions, are excluded despite their trustworthiness if coerced. The policies leading to this recent extension of the confession rule are quite similar to those underlying the privilege against self-incrimination. It is thus not surprising that the privilege, with its unclear boundaries and apparently unending capacity for transmogrification and assimilation, is now sometimes invoked to effect exclusion even though the disclosure was not compelled from a person under legal compulsion. Distortion of the privilege to cover such situations is not necessary. If trustworthy confessions are to be excluded because coerced, it should be done frankly as an exception to the principle . . . that the illegality of source of evidence is immaterial. It should be done, as it usually is, on the ground that the combination of coercion and use of the evidence in the particular case violates the relevant constitutional due process clause.” Id., at 402. (Citations omitted.)
See n. 5, supra.
See nn. 3 and 4, supra.
In Wong Sun the police discovered evidence through statements made by the accused after he had been placed under arrest. This Court, finding that the arrest had occurred without probable cause, held that the derivative evidence could not be introduced against the accused at trial. For the reasons stated in the text we do not believe that Wong Sun controls the case before us.
The opinion also relied upon Mapp v. Ohio, 367 U. S. 643, 656 (1961); Tehan v. United States ex rel. Shott, 382 U. S. 406, 416 (1966); and Terry v. Ohio, 392 U. S. 1, 29 (1968). See 414 U. S., at 348.
Brief for United States as Amicus Curiae 31 et seq.; Brief for Respondent 9 et seq.
As previously noted, the defendant in Escobedo had repeatedly asked to see his lawyer who was available at the police station. Those requests were denied, and the defendant ultimately confessed. Thus, in direct contrast to the situation here, the defendant in Escobedo was told he did not have a right to see his lawyer, although he had expressly stated his desire to do so.
The Court has made clear that the truth or falsity of a statement is not the determining factor in the decision whether or not to exclude it. Jackson v. Denno, 378 U. S. 368 (1964). Thus a State which has obtained a coerced or involuntary statement cannot argue for its admissibility on the ground that other evidence demonstrates its truthfulness. Ibid. But it also seems clear that coerced statements have been regarded with some mistrust. The Court in Escobedo, for example, stated that “a system of criminal law enforcement which comes to depend on the 'confession’ will, in the long run, be less reliable and more subject to abuses” than a system relying on independent investigation, 378 U. S., at 488-489. The Court then cited several authorities concerned with false confessions. Id., at 489 n. 11. Although completely voluntary confessions may, in many cases, advance the cause of justice and rehabilitation, coerced confessions, by their nature, cannot serve the same ends.
Tr. of Trial 226-234.
It has been suggested that courts should exclude evidence derived from “lawless invasions of the constitutional rights of citizens,” Terry v. Ohio, 392 U. S., at 13, in recognition of “the imperative of judicial integrity.” Elkins v. United States, 364 U. S. 206, 222 (1960). This rationale, however, is really an assimilation of the more specific rationales discussed in the text of this opinion, and does not in their absence provide an independent basis for excluding challenged evidence.
Our Brother BreNNAN in his opinion concurring in the judgment treats the principal question here simply as a lineal descendant of the one decided in Linkletter v. Walker, 381 U. S. 618 (1965), to be analyzed only in terms of the retroactivity framework established in that and subsequent decisions. While his approach has a beguiling simplicity, we believe it marks a significant and unsettling departure from the past practice of the Court in this area. Our retroactivity cases, from Linkletter v. Walker, supra, to Gosa v. Mayden, 413 U. S. 665 (1973), all have in common a particular factual predicate: a previous constitutional decision of this Court governs the facts of an earlier decided case unless the constitutional decision is not to have retroactive effect. The doctrine of retroactivity does not modify the substantive scope of the constitutional decision but rather determines the point in time when it is held to apply.
That common factual predicate is absent here. No defendant in Miranda sought to block evidence of the type challenged in this case, and the holding of Miranda, even if made fully retroactive, would not therefore resolve the question of whether Henderson’s testimony must also be excluded at trial. Contrary, therefore, to the suggestion in our Brother’s opinion that the question here is whether to “limit the effect of Johnson v. New Jersey,” post, at 454 n. 1, Johnson has never been thought controlling on the question of fruits, for the simple reason that the parent Miranda case did not reach that issue.
Our Brother BreNNAN’s method of disposition is to determine in the present case the retroactivity of a holding which the Court has yet to make. He would say, in effect, that if the Court should later determine that Miranda requires exclusion of fruits such as the testimony of Henderson, nonetheless that determination shall not be applied retroactively. But this approach wholly subverts the heretofore established relationship between the parent case and the subsidiary case determining whether or not to apply the parent case retroactively. Under the framework of the analysis established in Linklebter, supra, and in subsequent cases, it would seem indispensable to understand the basis for a constitutional holding of the Court in order to later determine whether that holding should be retroactive. Yet ex hypothesi our Brother has no such analysis available, since the case has yet to be decided. Cases which subsequently determine the retroactivity of a constitutional holding have given the Court enough occasion for concern without substantially increasing the difficulty of that type of decision by making it before, rather than after, the constitutional holding.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
NATIONAL EQUIPMENT RENTAL, LTD., v. SZUKHENT et al.
No. 81.
Argued November 20, 1963.
—Decided January 6, 1964.
Wilbur O. Silverman argued the cause and filed a brief for petitioner.
Harry R. Schwartz argued the cause and filed a brief for respondents.
David Hartfield, Jr., Allen F. Maulsby, Benjamin C. Milner III, Merrell E. Clark, Jr. and Henry L. King filed a brief for the Bankers Trust Co. et al., as amici curiae, urging reversal.
Mr. Justice Stewart
delivered the opinion of the Court.
The Federal Rules of Civil Procedure provide that service of process upon an individual may be made “by delivering a copy of the summons and of the complaint to an agent authorized by appointment ... to receive service of process.” The petitioner is a corporation with its principal place of business in New York. It sued the respondents, residents of Michigan, in a New York federal court, claiming that the respondents had defaulted under a farm equipment lease. The only question now before us is whether the person upon whom the summons and complaint were served was “an agent authorized by appointment” to receive the same, so as to subject the respondents to the jurisdiction of the federal court in New York.
The respondents obtained certain farm equipment from the petitioner under a lease executed in 1961. The lease was on a printed form less than a page and a half in length, and consisted of 18 numbered paragraphs. The last numbered paragraph, appearing just above the respondents’ signatures and printed in the same type used in the remainder of the instrument, provided that “the Lessee hereby designates Florence Weinberg, 47-21 Forty-first Street, Long Island City, N. Y., as agent for the purpose of accepting service of any process within the State of New York.” The respondents were not acquainted with Florence Weinberg.
In 1962 the petitioner commenced the present action by filing in the federal court in New York a complaint which alleged that the respondents had failed to make any of the periodic payments specified by the lease. The Marshal delivered two copies of the summons and complaint to Florence Weinberg. That same day she mailed the summons and complaint to the respondents, together with a letter stating that the documents had been served upon her as the respondents’ agent for the purpose of accepting service of process in New York, in accordance with the agreement contained in the lease. The petitioner itself also notified the respondents by certified mail of the service of process upon Florence Weinberg.
Upon motion of the respondents, the District Court quashed service of the summons and complaint, holding that, although Florence Weinberg had promptly notified the respondents of the service of process and mailed copies of the summons and complaint to them, the lease agreement itself had not explicitly required her to do so, and there was therefore a “failure of the agency arrangement to achieve intrinsic and continuing reality.” 30 F. R. D. 3, 5. The Court of Appeals affirmed, 311 F. 2d 79, and we granted certiorari, 372 U. S. 974. For the reasons stated in this opinion, we have concluded that Florence Weinberg was “an agent authorized by appointment . . . to receive service of process,” and accordingly we reverse the judgment before us.
We need not and do not in this case reach the situation where no personal notice has been given to the defendant. Since the respondents did in fact receive complete and timely notice of the lawsuit pending against them, no due process claim has been made. The case before us is therefore quite different from cases where there was no actual notice, such as Schroeder v. City of New York, 371 U. S. 208; Walker v. Hutchinson City, 352 U. S. 112; and Mullane v. Central Hanover Tr. Co., 339 U. S. 306. Similarly, as the Court of Appeals recognized, this Court’s decision in Wuchter v. Pizzutti, 276 U. S. 13, is inapposite here. In that case a state nonresident motorist statute which failed to provide explicitly for communication of notice was held unconstitutional, despite the fact that notice had been given to the defendant in that particular case. Wuchter dealt with the limitations imposed by the Fourteenth Amendment upon a statutory scheme by which a State attempts to subject nonresident individuals to the jurisdiction of its courts. The question presented here, on the other hand, is whether a party to a private contract may appoint an agent to receive service of process within the meaning of Federal Rule of Civil Procedure 4 (d)(1), where the agent is not personally known to the party, and where the agent has not expressly undertaken to transmit notice to the party.
The purpose underlying the contractual provision here at issue seems clear. The clause was inserted by the petitioner and agreed to by the respondents in order to assure that any litigation under the lease should be conducted in the State of New York. The contract specifically provided that “This agreement shall be deemed to have been made in Nassau County, New York, regardless, of the order in which the signatures of the parties shall be affixed hereto, and shall' be interpreted, and the rights and liabilities of the parties here determined, in accordance with the laws of the State of New York.” And it is settled, as the courts below recognized, that parties to a contract may agree in advance to submit to the jurisdiction of a given court, to permit notice to be served by the opposing party, or even to waive notice altogether. See, e. g., Kenny Construction Co. v. Allen, 248 F. 2d 656 (C. A. D. C. Cir. 1957); Bowles v. Schmitt & Co., Inc., 170 F. 2d 617 (C. A. 2d Cir. 1948); Gilbert v. Burnstine, 255 N. Y. 348, 174 N. E. 706 (1931).
Under well-settled general principles of the law of agency, Florence Weinberg’s prompt acceptance and transmittal to the respondents of the summons and complaint pursuant to the authorization was itself sufficient to validate the agency, even though there was no explicit previous promise on her part to do so. “The principal’s authorization may neither expressly nor impliedly request any expression of assent by the agent as a condition of the authority, and in such a case any exercise of power by the agent within the scope of the authorization, during the term for which it was given, or within a reasonable time if no fixed term was mentioned, will bind the principal.” 2 Williston on Contracts (3d ed. 1959), § 274.
We deal here with a Federal Rule, applicable to federal courts in all 50 States. But even if we were to assume that this uniform federal standard should give way to contrary local policies, there is no relevant concept of state law which would invalidate the agency here at issue. In Michigan, where the respondents reside, the statute which validates service of process under the circumstances present in this case contains no provision requiring that the appointed agent expressly undertake to notify the principal of the service of process. Similarly, New York law, which it was agreed should be applicable to the lease provisions, does not require any such express promise by the agent in order to create a valid agency for receipt of process. The New York statutory short form of general power of attorney, which specifically includes the power to accept service of process, is entirely silent as to any such requirement. Indeed, the identical contractual provision at issue here has been held by a New York court to create a valid agency for service of process under the law of that State. National Equipment Rental v. Graphic Art Designers, 36 Misc. 2d 442, 234 N. Y. S. 2d 61.
It is argued, finally, that the agency sought to be created in this case was invalid because Florence Weinberg may have had a conflict of interest. This argument is based upon the fact that she was not personally known to the respondents at the time of her appointment and upon a suggestion in the record that she may be related to an officer of the petitioner corporation. But such a contention ignores the narrowly limited nature of the agency here involved. Florence Weinberg was appointed the respondents’ agent for the single purpose of receiving service of process. An agent with authority so limited can in no meaningful sense be deemed to have had an interest antagonistic to the respondents, since both the petitioner and the respondents had an equal interest in assuring that, in the event of litigation, the latter be given that adequate and timely, notice which is a prerequisite to a valid judgment.
A different case would be presented if Florence Weinberg had not given prompt notice to the.respondents, for then the claim might well be made that her failure to do so had operated to invalidate the agency. We hold only that, prompt notice to the respondents having been given, Florence Weinberg was their “agent authorized by appointment” to receive process within the meaning of Federal Rule of Civil Procedure 4 (d)(1).
The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Federal Rule of Civil Procedure 4 (d) provides, in pertinent part:
“(d) Summons: Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:
“(1) Upon an individual other than an infant or an • incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.”
No questions of subject matter jurisdiction or of venue are presented. Federal jurisdiction exists by reason of diversity of citizenship. 28 U. S. C. § 1332. Venue in the United States District Court for the Eastern District of New York has not been contested. 28 U. S. C. § 1391.
The paragraph in its entirety read as follows:
“This agreement shall be deemed to have been made in Nassau County, New York, regardless of the order in which the signatures of the parties shall be affixed hereto, and shall be interpreted, and the rights and liabilities of the parties here determined, in accordance with the laws of the State of New York; and the Lessee hereby designates Florence Weinberg, 47-21 Forty-first Street, Long Island City, N. Y., as agent for the purpose of accepting service of any process within the State of New York.”
The complaint, summons, and covering letter were sent by certified mail, and the letter read as follows:
“Gentlemen:
“Please take notice that the enclosed Summons and Complaint was duly served upon me this day by the United States Marshal, as your agent for the purpose of accepting service of process within the State of New York, in accordance with your contract with National Equipment Rental, Ltd.
“Very truly yours,
“Florence Weinberg”
Mich. Stat. Ann., 1962, § 27A.1930.
McKinney’s N. Y. Laws, General Business Law, § 229 (6).
McKinney’s N. Y. Laws, General Business Law, § 220.
It is argued that the state court decisions upholding the agency designation here at issue would have been different if the case of Rosenthal v. United Transp. Co., 196 App. Div. 540, 188 N. Y. S. 154, had been brought to the attention of the courts. Rosenthal interpreted the forerunner of § 227 of the Civil Practice Act, Gilbert-Bliss’ N. Y. Civ. Prac., Vol. 3A, 1942, §227 (1963 Supp.), which creates a procedure whereby a resident of New York may appoint an agent for the receipt of process by designation of a person to receive service and the filing thereof with the County Clerk. The Rosenthal case is entirely inapposite, because § 227 clearly applies only to residents of New York who leave the State, and even as to them, the provision is permissive rather than exclusive. Phillips v. Garramone, 36 Misc. 2d 1041, 233 N. Y. S. 2d 842; Torre v. Grasso, 11 Misc. 2d 275, 173 N. Y. S. 2d 828.
There is no allegation that Weinberg had any pecuniary interest in the subject matter of the litigation. Nor is the issue here the applicability of a statute which permits service on a foreign corporation by service on persons who are generally authorized to act as agents of the corporation, when the agent upon whom service is made has a personal interest in suppressing notice of service: see, e. g., John W. Masury & Son v. Lowther, 299 Mich. 516, 300 N. W. 866 (1941) (involving a garnishment proceeding in which service under such a statute was attempted upon that employee of the foreign corporation who had incurred the debt on which the suit was based, who therefore had a personal interest in concealing from his employer the fact of service, and who did not notify the employer that service had been made). See Hartsock v. Commodity Credit Corp., 10 F. R. D. 181, also involving a situation where the agent “sustains such a relation to plaintiff or the claim in suit as to make it to his interest to suppress the fact of service ...” 10 F. R. D., at 184.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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songer_respond1_3_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
Paul DOLBASHIAN, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
No. 82-1054.
United States Court of Appeals, First Circuit.
Argued June 9, 1982.
Decided Sept. 8, 1982.
Carol E. Najarían, Providence, R. I., with whom Abedon, Michaelson, Stanzler, Biener, Skolnik & Lipsey, Providence, R. I., was on brief, for plaintiff, appellant.
Everett C. Sammartino, Asst. U. S. Atty., Providence, R. I., with whom Lincoln C. Almond, U. S. Atty., Providence, R. L, was on brief, for defendant, appellee.
Before COFFIN, Chief Judge, ROSENN, Senior Circuit Judge, BOWNES, Circuit Judge.
Of the Third Circuit, sitting by designation.
COFFIN, Chief Judge.
Appellant, Paul Dolbashian, challenges the administrative law judge’s (AU’s) finding that he is no longer entitled to disability benefits under 42 U.S.C. § 423 and that he is liable for repayment of the benefits he has received since April, 1974. The ALJ’s decision, upheld by the district court, is subject to our independent review and will be sustained if its factual findings are supported by substantial evidence and are in accordance with the law. See id. § 405(g); Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 998 (1st Cir. 1975).
Under the Social Security Act, an individual who has disability insurance is entitled to insurance benefits if he is unable
“to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted not less than 12 months.” 42 U.S.C. § 423(d).
Appellee has never contested the severity of appellant’s physical condition; the primary issue has been whether appellant’s continued participation in his business demonstrated that he was capable of “substantial gainful activity” and therefore not eligible for benefits.
Appellant began receiving benefits in 1969 after sustaining extensive neck and back injuries. The injuries prevented him from carrying on his activities as a self-employed general contractor who remodelled homes and as a retailer and installer of major household appliances. In May, 1973, he returned to his business, working three hours a day for four to five days a week, but at the end of a nine-month trial work period, he reported to the Social Security Administration that he had stopped working. He was told that his inability to work entitled him to continue to receive benefits but that he should report any return to work.
In 1976 appellant reported on his work activity since January, 1974:
“I run a retail appliance & building supply company. The business is closed to customers. There is a note on the door to call my home phone 781-5530 for appointment. I make an appointment & either my wife or son-in-law goes down to store & discusses the merchandise through a catalog. I also refer many of the people to Clarence Cavanaugh at Greenwood TV & Appliance. ... I do the ordering & book-work about one hour per day depending on my physical condition. I do this work at home. I cannot hold my head down for too long. We are virtually closed & are planning to sell the bldg. & the business. Our net profit decreases every year. My son-in-law Jean Claude Boisnier lives next door & my wife do most of the work activity. Clarence Cavanaugh does most of the demonstration for me for free as we are long time friends. He will show the items at the Greenwood Co. & will either order it-through me or if he has the appliance — he bills me. Clarence’s son will often pick up merchandise for me. . . . [T]he business is based solely on my knowledge of the business as I am not physically capable of performing activity in the business.”
Based upon a review of this report and a visit to the building in which appellant’s business was housed, the Social Security Administration determined that appellant had not been entitled to receive benefits since the end of the trial work period and that he was liable for overpayments to himself, his son, and his wife totalling $13,012. The ALJ, after a hearing, confirmed the finding that appellant was not eligible for benefits, concluding that “the amount of time admittedly spent, the degree of skill and knowledge employed, as well as claimant’s own characterization of his status” demonstrated that appellant did engage in substantial gainful activity. He found liability for the full amount of the overpayments. Appellant appeals both findings.
Finding of substantial gainful activity
At the time the ALJ made his determination about appellant’s eligibility for payments, regulations provided that any work performed during that period when payments were received may demonstrate an ability to perform substantial gainful activity. 20 C.F.R. 404.1532(a). Substantial gainful activity was defined as that which involves the performance of significant physical or mental duties for profit even if no profit is realized. Performance on a part-time basis did not preclude a finding that the work was substantial. Id. 404.1432(b). With respect to people who are self-employed, the regulations specifically noted that:
“Supervisory, managerial, advisory or other significant personal services rendered by self-employed individuals demonstrate an ability to engage in substantial gainful activity.” Id. 404.1532(f).
The degree of appellant’s physical participation in the business is extremely limited. The substantiality of his contribution consequently must be founded, if at all, on his mental activity, which can be measured for its importance to the continuing operation of the business. Although the record contains contradictions about the extent to which appellant has actually placed orders himself, appellant’s own descriptions of his tasks support a conclusion that his mental activities have been pivotal to the business. In the work activity report that spurred the Administration’s investigation of his disability status, appellant wrote:
“[T]he business is based solely on my knowledge of the business as I am not physically capable of performing activity in the business. People are referred to me through word of mouth — they call me, ask my advice, etc. and I order the material they require right from my home. Occasionally, I may go to their home & look at the layout of a kitchen & advise them.”
Subsequently he stated that “My mental ability and knowledge of the business is valuable to the business — however my physical condition prevents active participation.”
We think these statements are sufficient to provide the substantial evidence necessary to support a finding of substantial activity. Appellant’s activities may have been restricted in large part to the telephone and very limited in time, but his knowledge of appliances and his ability to advise have contributed in an important way to the operation of the business. The regulations specifically recognized that the services performed by a self-employed individual may be more intangible in nature, and it is those intangible contributions that we find persuasive.
We cannot say that there was insufficient support for the finding that appellant’s activity was gainful. Income tax returns show that appellant reported a profit from his business for 1971, 1973, 1974 and 1975 and reported a small loss for 1976. Although his profit was not significant and may be attributable in part to the gratuitous assistance he received from others, this does not prevent a finding that the activity was gainful and that profit resulted in part from his efforts.
In holding that the ALJ’s conclusion on the disability issue is supported by substantial evidence, we add a caveat. We have been able to conclude that appellant was performing substantial gainful activity only because of the peculiar circumstances under which he performed: He was fortunate to have a pre-existing business and to be in the unusual position, due to the presence of other people who could help, of being able to keep the business going with a minimum of physical effort. Were he not in business for himself and able to accommodate his business to his physical condition, he might be deemed incapable of performing substantial gainful activity. Consequently, if appellant’s circumstances should change so he is no longer operating his business, eligibility for disability payments might be restored.
Liability for overpayment
The regulations that the ALJ applied to appellant state that an individual is not liable for overpayments if he is without fault and adjustment or recovery would either defeat the purpose of the act or be against equity and good conscience. 20 C.F.R. 404.506. The ALJ concluded that a finding of fault followed automatically from the conclusion that appellant was performing substantial gainful activity and made unsupported findings that reimbursement would not be against equity and good conscience and would not defeat the purpose of the act.
We cannot agree that a finding of fault can be made without further examination of the circumstances. The conclusion that someone is performing substantial gainful activity does not necessarily mean that the individual was at fault for receiving the payments for which he was not eligible. The regulations specify that whether someone is at fault depends upon the particular circumstances — circumstances the ALJ did not examine. For example, liability may depend on whether the individual failed to provide information that he knew or should have known to be material. See id. 404.507. The ALJ should have determined whether appellant’s return to work for one to two hours per day after the end of the trial work period constituted a return to work that he knew or should have known to be material information. If appellant was performing substantially the same activities that he performed during the trial period, he perhaps should have known, depending on “pertinent circumstances”, that a description of those activities was material to the continued receipt of benefits. And a statement that he had ceased such activities when in fact he had not, might constitute “[a]n incorrect statement . .. which he knew or should have known to be incorrect.” Id. 404.507(a). On the other hand, if the activities engaged in after the trial period were substantially fewer and of less importance than the earlier activities, it might be properly found that he should not have known this to be material information. The ALJ should have also assessed whether, by supplying income tax returns that noted his income from the business, appellant provided the necessary material information.
Because determinations such as these involve questions of fact that this court cannot and should not assess in the first instance, we remand for further consideration of the issue of fault. See Small v. Califano, 565 F.2d 797, 801 (1st Cir. 1977); Torres v. Secretary of Health, Education and Welfare, 475 F.2d 466, 469 (1st Cir. 1973). Although the ALJ concluded previously that reimbursement would not defeat the purpose of the act or be against equity and good conscience, he should reconsider these issues on remand if he finds that appellant was not at fault.
The judgment of the district court is affirmed in part and vacated in part and is remanded to the district court for entry of an order remanding to the Secretary for further proceedings in accordance with this opinion.
. Appellant sustained these injuries when the airplane in which he was flying hit an unexpected airpocket, causing him to be thrown out of his seat and up against the ceiling of the airplane. His neck was broken, left arm paralyzed, discs fractured, and hip sprained. Continued pain in his neck, shoulders, back, and limbs has severely limited his mobility, made it difficult for him to hold his head in a working position, and has caused him to be under continual medical attention.
. At the hearing before the ALJ appellant testified that Cavanaugh ordered most of the goods, and in the record is his statement that he did none of the ordering himself. To the contrary, however, is his first work activity report in which he wrote that he did spend time ordering. We cannot fault the ALJ for accepting appellant’s statement in the work activity report.
. Appellant’s income tax returns also reflect the purchase in 1971 of the building that housed his business.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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songer_respond1_1_2
|
D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
UNITED STATES v. CONTI.
No. 3640.
Circuit Court of Appeals, First Circuit
May 2, 1941.
Edward O. Gourdin, Asst. U. S. Atty., of Boston, Mass. (Edmund J. Brandon, U. S. Atty., of Boston, Mass., on the brief), for appellant.
Philip Bergson, of Boston, Mass. (Harry Bergson, of Boston, Mass., on the brief), for appellee.
Before MAGRUDER and MAHONEY, Circuit Judges, and HARTIGAN, District Judge.
HARTIGAN, District Judge.
This is an appeal by the United States of America from the judgment for the defendant without costs and also from the order of the court granting defendant’s motion for a directed verdict, which were entered by the District Court of the United States for the District of Massachusetts on May 23, 1940.
Under date of October 10, 1933, the United States Coast Guard office of the Treasury Department invited sealed bids to furnish all labor and materials and perform all work for the construction of a two-story frame dwelling at the Coskata Coast Guard Station located in Massachusetts, in strict accordance with certain specifications, schedules, drawings and such other applicable conditions of Government Form P.W.A.-51, all of which were made part of the proposal. Schedule Form A attached provided: “Performance bond in the full amount of bid price will be required.” The proposal contained this legend, “Bid security in the sum of $200 will be required”. On October 24, 1933, the defendant submitted in writing his proposal to perform the stated service for the consideration of $15,495. The proposal was accompanied by a certified check in the amount of two hundred dollars bid security as required. The next lowest bidder was Samuel Pasquale who bid $16,250, and the third lowest bidder was Durso Construction Company which bid $17,839. Under date of October 27, 1933, the United States Coast Guard, by its officer, wrote its acceptance and instructed defendant to proceed with the work with the understanding that satisfactory performance bond in the full amount of bid price must be furnished before any payment could be made under any contract and that copy of the contract was following by mail. Defendant thereupon notified the Coast Guard representative at Boston of his desire to withdraw his bid because of an error in figuring.
On November 1, 1933, the defendant was notified by wire that there was no authority to allow the withdrawal. On November 7, he was informed that his refusal to perform would result in his being charged with the excess cost of having the work performed elsewhere. Defendant did not execute any formal contract nor furnish the performance bond and did not furnish any labor or material under the contract at any time. On November 2, 1933, the Coast Guard returned to Samuel Pasquale, second lowest bidder, his bid security. On December 4, 1933, the plaintiff accepted the proposal of Durso Construction Company of Lawrence, Massachusetts, dated October 23, 1933, to furnish the labor and materials and to perform all the work called for under the first agreement for the sum of $17,839. This contract was completed by Durso Construction Company and it was paid the full construction price of $17,839. On October 15, 1934, the defendant was informed that he had been charged with the excess cost in the sum of $2,344 less the $200 which had been forfeited.
Payment not having been made, the United States brought an action in contract to recover the excess cost by writ dated March 1, 1937.
At the conclusion of the government’s case the trial judge granted the defendant’s motion for a directed verdict and stated to the jury, “the question here involved is whether under all the circumstances the defendant stands legally bound to lose more than the $200 he was required to put up by way of ‘bid security’. It has been held in Massachusetts, that under circumstances similar to those here prevailing, the defendant could not have recovered $200 he paid. But he does not seek to do so. It has also been held in Massachusetts that the effect of a provision as to bid security is to limit defendant’s liability for refusal to sign the contract or to begin work, to the amount of the security furnished. This is my understanding of the effect of Bowes Co. v. Milton, 255 Mass. 228, 151 N.E. 116.”
In the case of John J. Bowes Co. v. Inhabitants of Town of Milton, 255 Mass. 228, 151 N.E. 116, 117, upon which the district court based its authority for directing a verdict for the defendant, the invitation issued to firms to build a school house which the school committee of the town was authorized to build, contained the following provision:
' “As security for giving the contract and bond, a certified check for two thousand five hundred dollars ($2j500.00), payable to the town of Milton, must be left with the proposal.”
The John J. Bowes Co. brought a suit in equity to compel the Inhabitants of the Town of Milton and others to return to it the certified check deposited with the defendants after it refused to perform, the contract which had been awarded to it to build a school for the town after the town had accepted the bid of the John J. Bowes Co. The company refused to enter into a formal written contract and failed to build the school.
The court in the Bowes case said (255 Mass. at page 232 et seq., 151 N.E. at page 118):
“The preliminary agreement in connection with which the check .was deposited was separate and distinct from the formal contract to erect the building. If the plaintiff had signed the formal contract the terms of the preliminary contract would have been performed by it, and it would have been entitled to the return of the check. In other words, if the plaintiff had entered into the formal contract and given the required bond the terms of the preliminary contract would have been fully performed. * * *
“The bond required by G.L. c. 149, § 29, to be given by the contractor is to be considered by implication as a part of the understanding of the parties even if not expressly referred to in the formal contract tendered for the erection of the building. * * *
“When the plaintiff’s proposal was finally accepted as modified by mutual agreement of the parties it could not treat the contract so made as a nullity and repudiate it by refusing to enter into a formal contract, but was bound by its proposal after acceptance, to the extent of its deposit. The rights and obligations of the parties upon this branch of the case are fully covered by Wheaton Building [& Lumber] Co. v. Boston, 204 Mass. 218, 90 N.E. 598. See also, St. Nicholas Church v. Kropp, 135 Minn. 115, 160 N.W. 500, L.R.A.1917D, 741; Village of Morgan Park v. Gahan, 136 Ill. 515, 26 N.E. 1085; Mayor [& City Council] of Baltimore v. J. L. Robinson Construction Co., 123 Md. 660, 91 A. 682, L.R.A.1915A 225, Ann.Cas.1916C, 425; Dillon Municipal Corporation (5th Ed.) § 810. * * *
“The terms of the invitation to contractors to bid show that it was intended to treat the deposit as liquidated damages, and it must be so regarded. The plaintiff is liable only, to the extent of its deposit. It follows that it is not liable for damages sustained by the town, as alleged in the cross-bill, because the cost of erecting the building was a sum in excess of the plaintiff’s bid.”
We do not think that the Bowes case is controlling in the instant case on the liability of the defendant for the damages sustained by the plaintiff as a result of the defendant’s failure to perform. In that case the court’s decision was based, not upon any general principles of the law of contracts, but upon an interpretation and application of Massachusetts statutes regulating the letting of contracts for the construction or repairs of public buildings or other public works on behalf of counties, cities and towns in the state. These regulations of course are not applicable to contracts for public works let by the federal government. The scope of the decision in the Bowes case is made clear by reference to an earlier case relied upon by the court, Wheaton Building & Lumber Co. v. Boston, 204 Mass. 218, 222, 223, 90 N.E. 598, 599: not be bound under the statute until the formal contract was executed. Edge Moor Bridge Works v. Bristol, 170 Mass. 528, 49 N.E. 918. The only way in which the city could secure a binding agreement for the construction of its building was through such a written contract. But it is plain that the statute contemplated some obligation on the part of the bidders, even though there was none on the part of the city. St. 1890, c. 418, § 5, provides that ‘every proposal * * * shall be accompanied by a suitable bond, certified check or certificate of deposit for the faithful performance of such proposal. * * * ’ This section must be given a reasonable effect. It would be a nullity if it should be held that the bidder was at liberty to withdraw without any liability at any time before the formal contract, which alone could bind the city, should be executed. The reasonable construction is to hold that the bidder is bound to stand by his proposal, at least after its acceptance, and to the extent of his bond or deposit, but no further. If the case was free from statutory regulation, and it did not appear that a more formal contract was contemplated, the mere acceptance of the proposal would constitute a contract, mid neither party could refuse to carry it .out without becoming liable to all the damage sustained. [Italics ours.] Beach & Clarridge Co. v. American Steam Gauge & Valve Manuf. Co., 202 Mass. 177, 88 N.E. 924. The Legislature, perhaps in recognition of the hardship, which might follow requiring the bidder to be bound though the city was not, restricted the liability of the former to the extent of the deposit. From this interpretation of the statute it follows that an acceptance of the proposal of one bidder did not constitute a binding contract even on the part of the bidder to execute a formal contract, but only to forfeit his deposit if he failed to do so.”
“St.1890, p. 370, c. 418, required the execution of a formal written contract in addition to the acceptance of the proposal.The acceptance of the bid by the schoolhouse commissioners did not of itself constitute a formal contract. The city could
In the case at bar no statutory regulation required the execution of a formal written contract. The Government reserved the right to waive the execution of such a contract, its acceptance of the defendant’s bid containing the provision, “In the event execution of United States Government Form No. P.W.A. 51 is waived, the applicable provisions thereof shall nevertheless apply to this project”. It is evident that the execution of a formal contract was not contemplated in the present case, because the defendant’s bid was accepted on the form of acceptance printed at the bottom of the bid which states that it is “not required to be executed when United States Government Form No. P. W.A. 51 is to be executed”. The bid of Mr. Conti and its acceptance by the Government constitute a bilateral contract of the same force and effect as if .a formal contract had been written out and signed by the parties on P.W.A. Form No. 51. United States v. Purcell Envelope Co., 249 U.S. 313, pages 319, 320, 39 S.Ct. 300, page 302, 63 L.Ed. 620, where the court said:
“It makes no difference that the contract was not formally signed or the bond formally approved, as counsel for the government contends they should have been, both by the terms of the contract and by a statute of the United States. Act Aug. 13, 1894, c. 282, 28 Stat. 279 [6 U.S.C.A. § 6 et seq.]. Their formal execution, as we have seen, was not essential to the consummation of the contract. That was accomplished, as was decided in the Garfielde Case [Garfielde v. United States, 93 U.S. 242, 23 L.Ed. 779], by the acceptance of the bid of the Envelope Company and the entry of the order awarding the contract to it.”
The phrase “bid security” used in the proposal in the case at bar did not appear in the invitation for bids nor in the statutory regulations applicable in the Bowes case. “Bid security” is not a phrase of art having a precise meaning in the law of contracts. It is a question of interpretation what the phrase means in the case at bar in the light of all the relevant data. We think the natural meaning of “bid security” is that a deposit is required of the bidder in order to assure the Government of the seriousness of the bid, the deposit to be forfeited if the bidder should withdraw his bid before the Government had accepted it. In this case the bid was outstanding and unrevoked when the Government’s acceptance brought into being a binding contract. It is quite evident on the face of the contract that the parties did not intend the small sum of $200 to be regarded as liquidated damages in case the contractor should be guilty of a subsequent breach of contract. The contract called for the posting by the successful bidder of a performance bond in the full amount of the bid price. In Article 9 of Form No. P.W.A. 51 it was provided that “If the contractor refuses or fails to prosecute the work * * * the Government may take over the work and prosecute the same to completion by contract or otherwise, and the contractor and his sureties' shall b.e liable to the Government for any excess cost occasioned the Government thereby.” (Italics ours.) This became part of the contract upon acceptance of the bid because the Government’s invitation for sealed bids specifically stated that they would be “subject to the applicable conditions of Government Form No. P.W.A. 51”.
The fact that the defendant made an error in his figuring does not afford him a valid ground for withdrawing his bid. In the Bowes case, supra, the court said:
“It is well settled that where a contract has been entered into under a mutual mistake- concerning a material fact a court of equity will grant relief. It is equally well settled in this commonwealth that a mistake of but one of the parties to a contract is not a ground for relief either in law or equity. [Cases cited.] There was no mistake on the part of the members of the committee who acted for the town; they acted in good faith without any knowledge that the plaintiff had made any mistake in the submission of its bid. The mistake was wholly its own; it was not induced in any way by the defendant or its agents. The committee accepted the bid as finally made, and had a right to assume that the plaintiff would carry out its agreement. In these circumstances the plaintiff must be held bound by its preliminary contract.”
It follows that the Government’s case should have been submitted to the jury, and-that a new trial will be necessary. The measure of damages will be the sum by which the reasonable cost of having the work done by another contractor exceeds the defendant’s contract price. A question may arise on the new trial whether the United States had not unnecessarily enhanced its damages by releasing the next lowest bidder, Pasquale, whose bid was $16,250, and awarding the contract to the third lowest bidder, at.$17,839. We intimate no opinion as to this question, because the present record does not adequately develop the circumstances under which Pasquale was released and his bid security returned.
The objections of the defendant to the photostats which were authenticated under the seal of the'General Accounting Office and which the plaintiff produced at the trial are not valid.
Rule 44 of the Rules of Civil Procedure for the District Courts of The United States, 28 U.S.C.A. following section 723c, provides in part:
“An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record or by his deputy, and accompanied with a certificate that such officer has the custody. * * * ”
Their allowance by the district court was proper under this rule, as well as under 28 U.S.C.A. § 661.
The judgment of the District Court is reversed and the case is remanded to that court for a new trial.
G.L.(Ter.Ed.) c. 149, § 29. “Officers or agents who contract in behalf of any county, city, or town for the construction or repair of public buildings or other public works shall obtain sufficient security, by bond or otherwise, for payment by the contractor and sub-contractors for labor performed or furnished and materials used or employed in such construction or repair; but to obtain the benefit of such security the claimant shall file in the office of the county treasurer or of the city or town clerk a sworn statement of his claim within sixty days after the claimant ceases to perform labor or furnish labor or materials, and shall, within one year after the filing of such claim, file a petition in the superior court for the proper county to enforce his claim or intervene in a petition already filed.”
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Mary W. ROYALL, Appellant, v. Louis YUDELEVIT and William H. Simons, Appellees.
No. 14608.
United States Court of Appeals District of Columbia Circuit.
Argued March 20, 1959.
Decided June 4, 1959.
Mr. Arthur L. Willcher, Washington, D. C., for appellant.
Mr. Morton Willcher, Washington, D. C. , also entered an appearance for appellant.
Mr. Ernest M. Shalowitz, Washington, D. C., with whom Mr. Sol M. Alpher, Washington, D. C., was on the brief, for appellee Yudelevit.
Mr. Louis E. Spiegler, Washington, D. C. , also entered an appearance for appel-lee Yudelevit.
Mr. Maurice Friedman, Washington, D. C., for appellee Simons.
Before Mr. Justice Burton, retired, and Prettyman, Chief Judge, and Wilbur K. Miller; Circuit Judge.
Sitting by designation . pursuant to Sec. 294(a), Title 28, U.S.Code.
WILBUR K. MILLER, Circuit Judge.
Mrs. Mary W. Royall brought this suit against Louis Yudelevit and William H. Simons to recover damages for wrongful foreclosure. The evidence at the trial tended to show that for many years Mrs. Royall had owned valuable real estate at 18th and Que Streets in the District of Columbia. In 1955, when the property was subject to a first trust of approximately $100,000, she was elderly and, due to illness and the recent death of her husband, mentally incompetent to realize the value of her property or to understand financial transactions. Being in need of funds, she employed an attorney to obtain an additional loan on her realty. He discussed the matter with Yudelevit, who said he would pay $8,500 for a 90-day note for $10,000 secured by a second deed of trust on the real property. The attorney then had Mrs. Royall execute a note for $10,000 and a second deed of trust securing its payment to one William Bogen, a straw party. Bogen endorsed the note and deed of trust to Yudelevit who delivered the agreed sum of $8,500. Of this amount Mrs. Royall had to pay $50 to Bogen for his services and $700 to her attorney for arranging the loan. From this evidence the jury would have been justified in inferring that Yudelevit was the real lender.
Yudelevit immediately sold the note to William H. Simons for $9,000. Upon default at maturity, Simons caused the trustees under the second deed of trust to sell the realty at public auction. The sale produced only about enough to pay the first and second trusts, so the result was that Mrs. Royall’s alleged equity of from $90,000 to $100,000 was eliminated.
Mrs. Royall alleged that Yudelevit and Simons were both engaged in lending money at usurious rates without having obtained a license to do so under § 26-601, D.C.Code (1951). Her theory was that, because Yudelevit and Simons were unlicensed when the former made the loan, the note and the deed of trust securing it were unlawful and void; that therefore the foreclosure was illegal, and that she suffered damages as a result thereof.
Yudelevit and Simons claimed to be innocent purchasers of the note for value before maturity, without notice of any infirmity in it or defense to it. They also alleged that when Weitzman, a purchaser after the foreclosure sale, resold the property, Mrs. Royall joined in the conveyance and received a part of the sale price; this, they said, estopped her to assert a claim against them.
The trial judge limited Mrs. Royall’s evidence to prima facie proof of a usurious transaction and thus would not permit her to show the appellees should have been but were not licensed under the statute. He said the question of damages would be taken up later if necessary. At the conclusion of her evidence the judge held in effect that a borrower who has paid usury may not recover from the lender the damages he claims to have sustained from the transaction, even though the loan contract was unlawful and unenforceable because the lender was subject to § 26-601 and had not obtained a license thereunder. He held that the illegality of the contract may be used by the borrower as a shield against its enforcement but not as a sword to recover damages against the lender.
Being of the view therefore that, even if a usurious loan contract were established by the evidence and even if Yudelevit and Simons were shown to have been violating the statute and interposed no defense to the action, Mrs. Royall could not recover damages alleged to have been caused by the foreclosure, the trial judge directed a verdict in favor of Yudelevit and Simons. Mrs. Royall appeals.
The first question is whether Mrs. Royall should have been permitted to introduce evidence to show that the appellees were doing business in violation of the statute, which is colloquially known as the Loan Shark Law of the District of Columbia, § 26-601, and which makes it “unlawful and illegal to engage in the District of Columbia in the business of loaning money upon which a rate of interest greater than six per centum per annum is charged on any security of any kind, direct or collateral, tangible or intangible, without procuring license * *
In Hartman v. Lubar, 1942, 77 U.S.App.D.C. 95, 133 F.2d 44, 45, Hartman and another borrowed approximately $900 from Orleans and gave in return a promissory note for $1,000 secured by a chattel deed of trust. Orleans endorsed the note to the District Finance Corporation. Thereafter Lubar, as trustee under the deed of trust, sued in replevin to recover the pledged chattels. During the trial Hartman offered to prove that Orleans was the principal stockholder and president of the District Finance Corporation, and that the loan was actually made by the corporation, which was engaging in the business of lending money in the District of Columbia at an interest rate greater than six per cent without having procured the license required by the statute. The trial court excluded the offered evidence and directed a verdict for the defendants.
In the course of our opinion reversing this action, we said:
“ * * * The general rule is that an illegal contract, made in violation of a statutory prohibition designed for police or regulatory purposes, is void and confers no right upon the wrongdoer. The present case comes under no exception to the general rule. Every consideration of public policy suggests that a contract made in violation of the Loan Shark Law should be unenforceable.”
Later in the Hartman opinion we said: “The evidence offered was competent, therefore, to show the illegality of the transaction and the resulting absence of title in the trustee, upon which appellee based his right to possession.” (Emphasis supplied.)
Thus we held that a usurious loan contract with a lender who is violating the statute is illegal and void and that proof of such violation should have been received; and that a deed of trust which is a product of such a void contract confers no title upon the trustees designated therein. We adhere to the views expressed in Hartman v. Lubar and hold that a borrower, who enters into a usurious contract which is void because the lender was violating the statute, may recover from the lender any damages sustained by reason of the void contract. A lender in a loan contract which is merely usurious may not be liable in damages. But if there is added to the situation the fact that the lender was not licensed as required by law, the loan contract is unlawful and void, and a foreclosure thereunder is wrongful and gives rise to an action for damages suffered therefrom.
Being a borrower, Mrs. Royall was a member of the class for whose protection the statute was enacted. She was therefore not in pari delicto with Yudelevit and her participation with him in its making did not bar her from asserting its illegality. Thomas v. City of Richmond, 1870, 12 Wall. 349, 355, 79 U.S. 349, 355, 20 L.Ed. 453; City of Parkersburg v. Brown, 1882, 106 U.S. 487, 503, 1 S.Ct. 442, 27 L.Ed. 238; Ring v. Spina, 2 Cir., 1945, 148 F.2d 647, 652-653, 160 A.L.R. 371.
It follows that, if the transaction was a usurious loan by Yudelevit and if he was violating the statute by failing to obtain a license, the note and the second deed of trust were void; and, having made the foreclosure possible by transferring the void note and deed of trust, he is liable for the damages resulting from Simons’ foreclosure (even if the latter was innocent throughout) unless he can establish an adequate affirmative defense.
If Simons took the note and deed of trust with notice or knowledge that Yudelevit had obtained them through a usurious loan contract made when he was violating the statute, then Simons unlawfully caused the foreclosure and is liable for any damages caused thereby, unless he can establish an adequate affirmative defense. As to Simons, the question is, not whether he was unlicensed, but whether he was a holder in due course.
Mrs. Royall had the right to elect whether to go into equity and ask that the sale be set aside, or to let the sale stand and ask for damages. Rogers v. Barnes, 1897, 169 Mass. 179, 47 N.E. 602, 38 L.R.A. 145; Missouri Real Estate Syndicate v. Sims, 1904, 179 Mo. 679, 78 S.W. 1006; Aultman & Taylor Co. v. Meade, 1905, 121 Ky. 241, 89 S.W. 137; Warren v. Susman, 1915, 168 N.C. 457, 84 S.E. 760; Burnett v. Dunn Commission & Supply Co., 1920, 180 N.C. 117, 104 S.E. 137; Sandler v. Silk, 1935, 292 Mass. 493, 198 N.E. 749; Peterson v. Kansas City Life Ins. Co., 1936, 339 Mo. 700, 98 S.W.2d 770, 108 A.L.R. 583; Black v. Burd, Tex.Civ.App.1953, 255 S.W.2d 553. As the property had passed into the hands of another who may have been quite innocent, Mrs. Royall properly elected to seek damages, for “Such a suit for damages at law is an especially appropriate remedy where an innocent purchaser buys at foreclosure, because it gives relief against the guilty rather than the innocent party.” Peterson v. Kansas City Life Ins. Co., 98 S.W.2d at page 775.
We conclude that Mrs. Royall should have been allowed to prove, if she could, that the transaction was a usurious loan to her by Yudelevit, that Yudelevit was at the time in violation of the loan shark statute, and that she suffered damages as a result of the foreclosure. Such proof, standing alone, would authorize the jury to return a verdict awarding appellant damages against Yudelevit. He and Simons should be permitted then to introduce evidence tending to show they were innocent transferees, or to establish any other defense they may have. If the jury should find against Yudelevit, and should also conclude from the evidence that Simons took the note and deed of trust with notice of the circumstances in which Yudelevit acquired them, a verdict for damages against Simons also would be warranted.
It follows that the District Court erred in directing a verdict for Yudelevit and Simons. We express no opinion as to the validity of the defense of estop-pel. The judgment is reversed and the cause remanded for a new trial in accordance with this opinion.
So ordered.
. Originally there were two other defendants but Mrs. Royall dismissed the complaint as to them.
. If Yudelevit should be found to be an innocent purchaser for value before maturity without notice of any infirmity or defense, the fact that he bought the note for less than its face value would be im* material.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_judgdisc
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellee, v. David Jewell LILE, Defendant-Appellant.
No. 14424.
United States Court of Appeals Sixth Circuit.
Decided May 22, 1961.
Robert D. Simmons, Asst. U. S. Atty., Louisville, Ky., William B. Jones, U. S. Atty., and Robert D. Simmons, Asst. U. S. Atty., Louisville, Ky., on the brief, for plaintiff-appellee.
W. Gordon Iler, Owensboro, Ky., Robert L. Gwin, Gwin & Iler, Owensboro, Ky., on the brief, for defendant-appellant.
Before CECIL, WEICK and O’SULLIVAN, Circuit Judges.
PER CURIAM.
This is an appeal from the United States District Court for the Western District of Kentucky. The principal question involved is whether the trial judge should have submitted the issue of entrapment to the jury. In refusing to instruct the jury on the subject of entrapment, the District Judge determined as a matter of law that there was no evidence to support the appellant’s claim that the government agent created the offense and improperly induced him to commit the crime for which he was indicted.
David Jewell Lile, the appellant, was charged in a two-count indictment of having in his possession, selling and transferring distilled spirits in the amount of twenty gallons on February 9, 1960 and fifteen gallons on February 12, 1960, in violation of section 5604(a) (1) of the Internal Revenue Code, 26 U.S.C.A. § 5604(a) (1). The gravamen of the offense is that the immediate containers in which the liquor was sold had no tax stamps affixed, as required by law.
The government agent, Robert Martin, an investigator for the Alcohol Tax Division of the Treasury Department, was introduced to the appellant at his home by a Mr. Adcock, on February 5, 1960. Mr. Adcock was known to government agents for three or four years and had previously been engaged in the illegal liquor business. At the time of the events in this case, he was not under indictment and so far as was known by government agents was not in the business.
Mr. Martin was introduced to the appellant as Buster Martin and a coal miner who was bootlegging whiskey on the side. In all of his contacts with Lile he wore working clothes characteristic of a miner.
On February 5th, Lile told Martin that he did not have any (whiskey) and on being asked by Martin if he could find him some said that he could buy some for him. Arrangements were then made for Lile to get whiskey for Martin later.
Martin went back on February 9th. After arguing about price, they agreed on four dollars and a half per gallon. Martin gave Lile ninety dollars and he took the government truck which Martin was driving and brought back to the agreed place of meeting twenty gallons of whiskey. Lile directed Martin to drive Lile’s car to a certain place where he said he would meet him with the whiskey. Martin bought fifteen gallons in a similar transaction on February 12th. Lile testified that he made fifty cents a gallon on the transactions. He was unable to make another delivery on the 15th because his source of supply had been caught.
Viewing the evidence in the most favorable light to the appellant, we find no evidence to support a claim that he was by “persuasion, deceitful representation, or inducement lured into the commission,” of the crime with which he stands charged. He was not “seduced by the representations of the government into illegal conduct.” The ruse as to Martin’s identity was no more than the permissible artifice and stratagem which may be employed to catch those engaged in criminal enterprises. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210. Clearly the government agents did not create the offense. They did no more than afford the facility and opportunity for the appellant to make an illegal sale which he was ready and able to do.
In Rodriguez v. United States, 5 Cir., 227 F.2d 912, 914, it was held no error was committed in refusing to charge on entrapment where there was no evidence to support the charge. In Morei v. United States, 6 Cir., 127 F.2d 827, 834, the Court said: “Each case must be governed to a large extent by its own facts.” In United States v. Wallace, 3 Cir., 269 F.2d 394, 396, the court quoted with approval the instructions of the trial judge: “The question is whether the defendant was disposed to trade in narcotics or yielded to importunations contrary to his own inclination.”
There is no evidence in the record of this case that Lile “yielded to importuna-tions contrary to his own inclination.”
Sorrells v. United States, supra, and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, can be distinguished from the case at bar on their facts.
We find no merit in the other errors urged by the appellant and the judgment of the District Court is therefore affirmed.
. Sorrells v. United States, 287 U.S. 435, 445, 53 S.Ct. 210, 214, 77 L.Ed. 413.
. Morei v. United States, 6 Cir., 127 F.2d 827, 835.
Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_juryinst
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
IOWA CITY, IOWA, et al. v. IOWA CITY LIGHT & POWER CO.
No. 10852.
Circuit Court of Appeals, Eighth Circuit
June 28, 1937.
D. C. Nolan, of Iowa City, Iowa, for appellants.
C. D. Waterman and Wayne G. Cook, both of Davenport, Iowa (Dan C. Dutcher and Dutcher, Ries & Dutcher, all of Iowa City, Iowa, and Lane & Waterman, of Davenport, Iowa, on the brief), for appellee.
Before GARDNER, WOODROUGH, and BOOTH, Circuit Judges.
Rehearing denied Sept. 27, 1937.
WOODROUGH, Circuit Judge.
This suit in equity was brought by the Iowa City Light & Power Company against the city of Iowa City, its mayor and solicitor and members of the city council, to enjoin the defendants from enforcing a gas rate ordinance passed by the city council April 19, 1935, and from interfering with or obstructing the plaintiff in the distribution of natural gas to the city and its inhabitants.
The plaintiff is the successor in interest to the Iowa City Gas Light Company which was granted a 25 year gas franchise by the city in 1909. The franchise expired in 1934, but there are no other means to supply gas to the city and its inhabitants, and the light and power company continues to operate as the only gas utility in the city and performs such gas utility service according to the terms of the franchise without objection from anyone. It alleged in its bill of complaint (among other things) that the gas rate ordinance of April 19, 1935, was confiscatory, void, and unenforceable, and the master to whom the case was referred so found and reported upon consideration of the evidence, and the court affirmed the report and enjoined the rates. From that part of the decree no appeal has been taken.
But it was also alleged in the bill of complaint that the light and power company had the right and had been directed by resolution of the city council, passed November 16, 1934, to serve natural gas instead of manufactured gas to its customers. That the franchise of 1909 did not, by its terms, prescribe or limit or define the character of the gas to be furnished to the city and the plaintiff has furnished different kinds of gas under its franchise, including water gas, coal gas and carbureted watér gas. That it had elected to comply with the direction of the city council to serve natural gas and had incurred the expense necessary to bring the natural gas from the pipe line where it was available into the city, but that the defendants, in passing the gas rate ordinance of April 19, 1935, which fixed rates for manufactured gas only, expressed their intention to interfere with the right of the plaintiff to serve natural gas to the city and its inhabitants and have refused to permit the introduction of the natural gas and have forbidden the plaintiff the privilege of installing it.
The trial court found that the company had the right to serve natural gas and enjoined the defendants from in any way interfering with the plaintiff in serving natural gas in place of manufactured gas to the inhabitants of Iowa City. At the time the suit was brought and the injunction was entered the defendants were refusing to grant permits to the plaintiff to make necessary street excavations to connect up the natural gas line with the existing distribution system at the gas works. The decree, therefore, included mandatory provisions to permit the necessary excavations to be made. Such mandatory provisions of the decree were not stayed pending this appeal and it is stated at the bar that all necessary excavations have been made by the company and the connection has been completed so that now only the adjustment of customers’ equipment and substitution of gas in the mains remains to be done in order to effect the change in the service from manufactured to natural gas.
The appellants, seeking to reverse that part of the decree which enjoins defendants from preventing the service of natural gas, have contended, (1) that the suit was not cognizable in equity, (2) that the gas franchise of 1909 did not grant the right to use the city streets to supply natural gas either expressly or by implication, (3) that there was no power in the city to compel natural gas to be supplied and so there was no mutuality of obligation and the company must fail, (4) that even if the franchise authorized serving natural gas the company should not be permitted to extend its facilities in order to supply natural gas since the term of the franchise had expired, (5) the discretionary power of the city to withhold street excavation permits should not be controlled by the court, and, (6) to install natural gas would impose a burden and damage to gas consumers.
(1). Equity: We find no merit in the contention that the trial court was without jurisdiction in equity. The federal jurisdiction was established by the diversity of citizenship and more than $3,000 involved, as well as by the allegations that determination of the controversy involved construction of the Fifth and Fourteenth Amendments to the Federal Constitution and section 10 of article 1 thereof. In part the object of the suit was to enjoin the enforcement of rates to he charged by the utility for gas and the power of the federal equity courts to entertain bills in equity for that purpose and to grant such relief in proper cases has been too long established to require citations. 1 Hughes, Fed. Practice, 433, § 567. As the suit was properly brought in equity to enjoin the enforcement of the confiscatory rates it was the duty of the equity court to retain and exercise is jurisdiction to adjudicate all the issues presented. Alexander v. Hillman, 296 U.S. 222, 242, 56 S.Ct. 204, 80 L.Ed. 192; Hartford Accident & Indem. Co. v. Southern Pacific Co., 273 U.S. 207, 217, 47 S.Ct. 357, 71 L.Ed. 612; United States v. Union Pac. Ry. and Western Union Tel. Co., 160 U.S. 1, 51, 16 S.Ct. 190, 40 L.Ed. 319; Gabrielson v. Hogan (C.C.A.8) 298 F. 722, 726.
(2). The franchise: There is no limitation or definition contained in the charter of 1909 concerning the character of gas which tile city authorized the Iowa City Gas Light Company to supply. The language of the grant was:
“An Ordinance Granting the Iowa City Gas Light Company, Its Successors or Assigns Permission To Use the Streets, Alleys and Public Grounds of Iowa City For the Purpose of Laying Down Pipes For Conveying Gas For the Supplying of Said City and the Inhabitants Thereof With Gas.
“Be It Ordained by the City Council of Iowa City, Iowa:
“Section 870. That the Iowa City Gas Light Company, its successors or assigns be and are hereby authorized and the privilege is hereby granted the said Iowa City Gas Light Company, its successors or assigns for the term of tvrenty-five years, subject to the conditions herein expressed, to use the streets, alleys and public grounds of Iowa City, including any territory that may hereafter be annexed to said Iowa City, for the purpose oí laying down pipes for conveying gas for the supplying said city and the inhabitants thereof with gas.”
There was a forfeiture clause: “Provided further, if in the future the said Iowa City Gas Light Company, its successors or assigns ceases in good faith to manufacture gas and to use the franchise herein granted for the period of ninety days then said Iowa City may annul and cancel all rights herein granted by giving ninety days’ notice in writing to said Iowa" City Gas Light Company, its successors or assigns, of its intention so to do.”
The name of the grantee of the franchise, “Iowa City Gas Light Company,” is reminiscent of an important use of gas .in former times. Possibly gas best adapted to lighting purposes would then be uppermost in the mind of those voting a gas franchise. But we see no reason to read a restricting limitation on the kind of gas to be furnished under the • franchise. Of course, the gas must be suitable for and adapted to the uses for which it is intended. So much is implied in the franchise, but no more. The franchise was not conditioned that it might be forfeited if the grantee ceased to manufacture gas but, so far as forfeiture was provided for in the charter, the right was given to the city only if- the grantee ceases to manufacture gas and use the franchise (that is, “if it ceases to use the city streets for * * * conveying gas for supplying said city * * * with gas”). No condition of the franchise, either expressly or by implication, excluded natural gas. City of Laurel v. Mississippi Gas Co. (C.C.A.5) 49 F.(2d) 219; Central Power Co. v. City of Hastings (D.C.) 52 F.(2d) 487.
(3). Mutuality: The franchise contemplated that the grantee and its assigns and successors should have the responsibility of supplying gas and regulatory powers remained with the city, and to that extent there were mutual and reciprocal obligations. But as there was no specification in the franchise of any particular kind, quality, or character of gas which the city could require the company to furnish, the city cannot prevent the company from supplying a gas which is suitable for the uses for which it is intended and required. We do not consider Union Light, Heat & Power Co. v. Young, 146 Ky. 430, 142 S.W. 692, relied on by appellants, to be applicable.
(4). The expiration of the franchise: It is well settled that a public service utility operating under a city franchise is not released from its duty to render service at the moment its franchise runs out. Where the city inhabitants have become dependent upon the service and no other arrangements have been made to supply it, the obligation to serve remains on the utility whose properties still occupy the streets and public places. Neither is the city absolved from its duties by the termination of the franchise. The reciprocal duties which result from necessity when the term of the franchise expires are no less certain because the conditions are of indefinite duration. While they continue, the utility must keep the service up and the city must require the rates to be reasonable. It follows that the utility must continue to use its best effort to render its service efficiently and economically, and a reasonable choice of means remains with the company. If in order to accomplish that end it is necessary for it to lay more pipe-in streets in which it has not yet laid them, the temporary nature of its tenure in nowise relieves it of its duty, nor deprives it of its right, to keep up with the requirements of its service. The rights of the utility company in the streets are not exactly the same as such rights were prior to the termination of the franchise. The right of occupancy of the street, whether by sufferance or at will, under the circumstances disclosed, arose by implication and was terminable by reasonable notice. But the fact that the charter has expired, would, of itself, afford the city, no justification to prevent the utility from installing natural gas where such installation was within the purview of the charter under which the utility service was developed and carried on. City and County of Denver v. Denver Union Water Co., 246 U.S. 178, 190, 38 S.Ct. 278, 62 L.Ed. 649; City of Roswell v. Mountain States Tel. & Tel. (C.C.A.10) 78 F.(2d) 379, 386; Hill v. Elizabeth City (C.C.A.4) 298 F. 67; State ex rel. County Attorney v. Des Moines City Ry., 159 Iowa, 259, 140 N.W. 437; Cedar Rapids Water Co. v. City of Cedar Rapids, 118 Iowa, 234, 91 N.W. 1081, 1090.
(5). Street excavations: The city has reserved to it at all times a reasonable discretion in the matter of granting or withholding permits to excavate for laying gas pipes in the streets. The evidence clearly disclosed that before the mandatory injunction was issued herein excavation permits were being refused the gas and light company because the city officers were denying the right of the company to supply natural gas and the appellants continue to justify the refusal of permits on that ground. As it appears that the necessary excavations to complete the installations desired by the company have now been made, it is deemed unnecessary to elaborate upon the contentions under this heading. As we are in accord with the trial court’s conclusion that natural gas may lawfully be installed by the company, it is not to he anticipated that excavations necessitated by that service will be unreasonably refused by the city.
(6). Would natural gas cause damage and burden? The plaintiff alleged in its bill of complaint that the natural gas which it proposes to distribute is a material improvement over the gas heretofore furnished, of higher thermal content, and capable of being furnished at substantially less cost to the consumer. That there is a constant increase in prices incident to the manufacture of gas and that, if the rate for manufactured gas were substantially increased, sales would tend to decrease and that the use of manufactured gas is no longer economically sound and that competitive conditions in the industry can be met only by the utilization of natural gas. The defendants put these claims in issue and alleged that natural gas is inferior in many respects and particularly that it is more hazardous; it is dirtier; contains many foreign elements that are not found in manufactured gas; that it does not have, nor can an even pressure be maintained; that the thermal or B.T.U. content thereof, although it may be of a higher quantity, is not capable or susceptible of being efficiently used or as high efficiency obtained from natural gas in respect to its higher B.T.R. or thermal content as can be obtained from manufactured or artificial gas. They also alleged that the cost to the company of installing natural gas will increase the capital investment so as to impose an unreasonable burden on the consumers.
The master analyzed the considerable volume of testimony upon the fact issues so presented and found that the natural gas proposed to be furnished by the utility is more practicable in that it is cheaper and approximately as efficient as manufactured gas. The trial court, on consideration of the master’s report and the exceptions thereto, overruled the exceptions and approved and confirmed the report. Our study of the testimony has led to the conclusion that the findings are in accord with the preponderance and that the trial court did not err in sustaining them.
Each of the assignments of error has been considered, but none is sustained.
Affirmed.
Question: Did the court conclude that the jury instructions were improper?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
George AVLON, Appellant, v. GREENCHA HOLDING CORP., Appellee.
No. 23, Docket 22449.
United States Court of Appeals Second Circuit.
Argued Oct. 10, 1956.
Decided Dec. 10, 1956.
Clark, C. J., dissented.
See also, 232 F.2d 129.
Ramey & MeKelvey, New York City, Edward J. Bazarian, New York City, for appellant; Deane Ramey, New York City, of counsel.
William J. Tropp, New York City, for appellee; Arthur C. Parker, New York City, of counsel.
Before CLARK, Chief Judge, and HAND and SWAN, Circuit Judges.
SWAN, Circuit Judge.
This is an action to recover for personal injuries sustained by the plaintiff by reason of the collapse of an iron grating, on which he was standing, attached to the outside of a building owned by the defendant. The action was commenced in a court of the State of New York and was removed to the federal court on the ground of diversity of citizenship. At the close of the plaintiff’s case, the court granted a motion by the defendant to dismiss the complaint for failure to prove a prima facie case. On appeal it is contended that there were issues of fact which should have been submitted to the jury. The correctness of this contention turns on whether there was evidence on which the jury could have found that the plaintiff had the status of an invitee rather than a bare licensee while standing on the iron grating; and the answer to this question is controlled by New York law, since federal jurisdiction rests on diversity.
The plaintiff was a cook employed by a cafeteria company which occupied as lessee the first floor and basement of defendant’s two story building located at 3195 Broadway, New York City. The dining room of the cafeteria was separated from the kitchen by a wall or partition through which was a connecting doorway. The main entrance to the dining room was from the street level of Broadway. In the rear wall of the dining room was a door marked “Exit,” with a red electric light above it. At the rear of the kitchen was another door similarly marked and lighted. Each of these “Exit” doors opened onto an iron grating or platform which was affixed to the outside of the building. The platform was approximately 5 feet wide and 35 feet long and was suspended over an areaway some 25 feet below the floor level of the cafeteria. No steps led from the platform to the ground but at one end of the platform iron stairs led to the roof of an adjacent building. From the roof other stairs led to a rear doorway into a bowling alley which was located in the second story of the defendant’s building. At the front of the building there was an entrance from the street to the bowling alley used by customers.
On the date of the accident, June 1, 1948, the plaintiff had gone from the kitchen to the dining room, using the doorway in the partition which separated them. On leaving the men’s wash room, which is in the dining room, he went through the “Exit” door in order to “have a smoke” and “get some fresh air.” As he proceeded along the platform to return to the kitchen a section of the iron grating collapsed under his weight and he was precipitated to the areaway below. There was testimony that the plaintiff had used the platform similarly on three or four prior occasions; that other employees sometimes so used it; that patrons of the cafeteria occasionally used the platform and fire escape stairs as a way of reaching the bowling alley; and that the president of the defendant had the opportunity to see such use. He denied knowing that either employees or patrons of the restaurant ever used the fire escape. No proof was offered as to what caused a section of the platform to collapse. The plaintiff testified, as did also the president of the defendant, that the platform appeared to be in good condition.
Without a formal opinion the trial judge, upon argument of the defendant’s motion to dismiss, ruled that the evidence proved that the plaintiff was no more than a bare licensee while using the outside platform, and, as such had established no right to recovery, since the defendant was guilty of no affirmative act of negligence. Under New York law the ruling was correct. We can find nothing in the evidence which could support a jury’s verdict that the plaintiff was an invitee. The outside structure was not within the premises leased to the plaintiff’s employer. The lease, which was the “Standard Form of Store Lease” of the Real Estate Board of New York made no reference to it.* At best the jury could have found no more than that the landlord had notice that the tenant’s employees and patrons occasionally used the platform as a passageway or as a place to smoke and get a breath of outside air, and acquiesced therein without protest. But there is no evidence of any invitation or inducement on the part of the landlord to make such use of it, and mere consent to such use does not indicate that the plaintiff was an invitee. The existence of the “Exit” signs with red lights above showed clearly that those doorways were intended for emergency exists to the fire escape; they could not reasonably be found by the jury to serve as an invitation to use the platform as a passageway except in case of emergency. The plaintiff knew it was a fire escape, and in an affidavit reporting the accident said he “fell through fire escape platform.” The platform had no steps leading to the ground but did lead to the roof of an adjoining building, and the only purpose it could have had was to provide an escape in case of need. Indeed, it conformed to the statutory definition of a fire escape in section 4(16), Multiple Residence Law of New York, McK.Consol.Laws, c. 61-B.
Vega v. Lange, supra, note 3, held squarely that the use of a fire escape for other purposes, with the owner’s knowledge and consent, does not make the user an invitee. A Court of Appeals case which strongly supports the ruling below is Walker v. Bachman, 268 N.Y. 294, 197 N.E. 287. There the plaintiff was the child of a tenant of the defendant, who owned a two-family house in the rear of which were two garages facing a cement space intended for use only for automobiles entering or leaving the garages. The plaintiff’s father did not rent or use either of the garages and had no right to use the cement yard as appurtenant to the apartment leased to him. The cement yard was enclosed by a parapet 14 inches high. While playing with her brother in the yard the infant plaintiff stumbled over the parapet and sustained injuries. There was evidence that the children over a considerable period of time had, to the knowledge of defendant, played in the yard. The trial court submitted to the jury, over the defendant’s exception, the question whether the infant plaintiff was an invitee or a mere licensee. The plaintiff had a verdict and the júdgment entered thereon was affirmed in the Appellate Division, 243 App.Div. 514, 276 N.Y.S. 1018. The Court of Appeals reversed and dismissed the complaint, stating that the child was in the back yard with the implied consent of the defendant, but she was there for her own purposes only and the defendant’s acquiescence did not become an invitation.
It seems to us that Judge Pound’s gloss upon the distinction between “invitee” and “licensee” in Vaughan v. Transit Development Co., 222 N.Y. 79, 82, 118 N.E. 219, still stands: “Long-continued acquiescence in such use does not become an invitation. The law does not penalize good nature or indifference nor does permission ripen into right.” See discussion in Carbone v. Mackchil Realty Corp., 296 N.Y. 154, 158, 159, 71 N.E.2d 447. The supposed departures from the rule as to the effect of acquiescence disappear upon analysis of the facts. In Murtha v. Ridley, 232 N.Y. 488, 492, 134 N.E. 542, 543, the “children of the tenants had used it [the enclosed space] as a playground. Tenants hung their clothes in it. At one time the daughter of Mrs. Frankel planted flowers and vegetables in the yard. Mrs. Neach, the janitress, kept the yard and areaway clean and removed the debris. The tenants were obliged to go into the yard and fasten the lines to the clothes pole.” On this evidence the court said 232 N.Y. on page 493, 134 N.E. on page 543, that there was some evidence “establishing this yard as an appurtenance to this apartment house.” We understand by “appurtenance” a part of the premises the use of which was by implication affirmatively granted to the tenants. In Walker v. Bachman, supra, [268 N.Y. 294, 197 N.E. 288] the facts of which we have just stated, the court said that the “child was in the backyard with the implied consent of the defendant; but she was there for her own purposes only, and the defendant’s acquiescence did not become an invitation,” citing Vaughan v. Transit Development Co., supra, and distinguishing Murtha v. Ridley, supra, because there the evidence “established the yard as an appurtenance to the apartment house.” Whatever “appurtenance” may mean, obviously it requires more than “continued acquiescence.” In Sil-verberg v. Schweig, 288 N.Y. 217, 218, 42 N.E.2d 493, the following testimony, if believed, constituted an express invitation. The plaintiff wished to connect an aerial between his father’s store and the defendant’s apartment, and to do so “he desired access to a fire escape platform on such multiple dwelling and to obtain such access asked the defendant Herman for a key to an apartment which abutted the platform; that such defendant could not find a key and told the infant plaintiff to go up on the roof of his father’s store and then onto the fire escape ladder.” The court held that this evidence created a case for the jury, citing Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442, 26 N.E.2d 970, 971, which had held that a child was an “invitee” upon the roof of an apartment house where, not only the tenants’ children habitually played and which the tenants used “as a place to dry clothes”— as in Murtha v. Ridley, supra — but also where the janitor “on many occasions he dressed himself as a cowboy and came to the roof when the children were at play and there in their presence practiced at throwing a lariat and performed tricks with a whip.”
Admittedly, it is always difficult to forecast what will be the position of the court of another jurisdiction; but it appears to us that up to the present time there has been no contradiction in the decisions of the New York courts as to the proposition that acquiescence alone is not invitation, and there is no evidence of anything more in the case at bar.
Judgment affirmed.
. In his complaint the plaintiff refers to this structure as a “fire escape and platform which, with the knowledge and consent of the said defendant, was regularly-used by persons lawfully in and upon said premises as a passageway to and from divers parts or portions of the said premises.”
. Paragraph 4 contains the statement: “Landlord has not conveyed to Tenant any rights in or to the outer side of the outside walls of the building of which the demised premises form a part, • * ia itg context the statement should doubtless be restricted to a prohibition against attaching signs, wires, etc., to the outside walls. If relevant at all to the contention that the tenant had permission to use the platform as a passageway between the dining room andi the kitchen, its implication is adverse rather than helpful
. In Vega v. Lange, 248 App.Div. 521, 290 N.Y.S. 736 at page 738 the court said: “The mere consent to the use to which the infant plaintiff put the fire escape did not indicate that she was an invitee,” citing as authority Vaughan v. Transit Development Co., 222 N.Y. 79, at page 82, 118 N.E. 219, in which Judge Pound said: “If plaintiff had had no permission to come on the premises he would have been a trespasser. If he had been there by invitation or on lawful business of interest to both parties he would have been an invitee. But he was there by permission, for. his own convenience and his status was that of a bare licensee.”
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ANCHOR STOVE & RANGE CO. v. RYMER et al.
No. 7924.
Circuit Court of Appeals, Sixth Circuit.
June 29, 1938.
Walter F. Murray, of Cincinnati, Ohio (Walter F, Murray and Murray, Sackhoff & Paddack, all of Cincinnati, Ohio, on the brief), for appellant.
J. B. Sizer, of Chattanooga, Tenn. (Chas. S. Mayfield, of Cleveland, Tenn., and J. B. Sizer and Sizer, Chambliss & Kefauver, all of Chattanooga, Tenn., on the brief), for appellees.
Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.
SIMONS, Circuit Judge.
The cause is here for the second time. In our former decision Rymer v. Anchor Stove & Range Co., 6 Cir., 70 F.2d 386, we adjudged the present appellees guilty of unfair competition in simulating the design of appellant’s heaters, which were sold to the mail order house of Montgomery Ward & Company of Chicago, without sufficient indicia thereon to show their origin, and affirmed a decree granting the plaintiffs injunctive relief and reference to a master to assess damages.
Upon the first appeal no complaint was made with respect to the remedy decreed below, nor was it contended that the plaintiff was entitled to profits made by the defendant upon the heaters there held to infringe the plaintiff’s rights. Neither was there objection to the accounting and assessment of damages adjudged. In sustaining the decree we said (page 389) : “We recognize equally with the court below the difficulty of submitting to the master the proofs upon which damages may be assessed. The difficulty is not, however, insurmountable. Certainly with respect to the orders actually cancelled and not reinstated upon explanation by the plaintiff to its dealers, there is a sufficiently adequate factual basis for measuring damages, though we do not mean by this to imply that the proofs should be limited to such cancellations.”
When the cause' was returned to the District Court and by it referred to a master for an ' accounting, the plaintiff offered no proof of damages sustained by reason of cancelled orders, but sought an order requiring the defendants to open their books for inspection, first as to the number of infringing heate'rs sold by them to Montgomery Ward & Company, and second as to the profits which they had made on such heaters. The master granted the plaintiff an order of the scope requested, but upon exception it was amended by the District Judge in so far as it concerned the defendants’ profits, on the ground that such profits were not within the scope of the interlocutory decree' sus--tained in this court and that neither court nor master could enlarge or alter a decree sustained upon review. The plaintiff then contented itself with proof tending to show its damage to be $5.65 lost profit on each of 3,335 heaters which it claimed it would have sold had the defendants not resorted to unlawful simulation and infringement of its proprietary right, and had they not sold an equal number of infringing heaters to' Montgomery Ward & Company. No proof of any kind was adduced to show that either Montgomery Ward & Company or a single .one of its customers would have bought heaters from the plaintiff had the condemned simulation not taken place, or that the plaintiff had lost a single customer thereby.
The master found the sales of the defendant to Montgomery Ward & Company to be in the number indicated, and the average net profit per heater of those sold by the plaintiff in 1928 to be $5.65. • He thereupon awarded the plaintiff damages in the sum of $18,842.75, on the ground that the presumption in cases of infringément and unfair competition is against the wrongdoer. This award the District Court set aside because of the failure of the proofs to indicate that the sales to Montgomery Ward by the defendants resulted in any loss of sales to the plaintiff, and a decree was entered awarding the plaintiff but nominal damages.
Upon the present appeal the plaintiff complains that the court should have permitted the master to ascertain the profits made by the. defendants on their sale of heaters to Montgomery Ward & Company and to award it such profits, and that the court should have sustained the master’s - award of damages arrived at by multiplying the plaintiff’s' profit per heater unit by the number of units the defendants sold to Montgomery Ward & Company.
Since the decision in Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629, and by analogy to the relief granted in patent and trade-mark infringement cases, it is clear that the infringer may be required in > equity to account for and yield up his gains to the true owner upon a principle analogous to that which charges a trustee with the profits acquired by a wrongful use of the property of the cestui que trust. As there pointed out, when equity jurisdiction is rested upon some equitable ground, such as the right to injunction, the court will retain it for the purpose of administering complete relief rather than send the injured party to a court of law for damages, and the infringer’s profits are then allowed as an equitable measure of compensation on the theory of a trust ex maleficio, and it is not fatal that the plaintiff is unable to show what proportion of the profit is due to the trade-mark or the patent and what to the intrinsic value of the commodity, for (page 273) “it is more consonant with reason and justice that the owner of the trademark should have the whole profit than that he should be deprived ofs any part of it by the fraudulent act of the defendant.”
The difficulty which the appellant encounters here is that in the case as originally made below it sought no recovery of the defendants’ profits upon any trust theory. It asked for injunction and an accounting for damages. When it appealed to this court it complained of the scope of the decree only in so f.ar as it failed to include heaters other than those sold to Montgomery Ward & Company. No complaint was made as to the failure of the court by its decree to hold it entitled to the defendants’ profits. This decree we sustained, and while refusing to enlarge its application, the plaintiff within its limits secured the precise relief sought. The order of reference upon remand followed the terms of the decree. Our décision and mandate have become the law of the case and the court, below was not in error in overruling the order of the master looking toward the ascertainment and award to the plaintiff of the defendants’ profits. Sharpless Co. v. Lawrence, 3 Cir., 213 F. 423.
As to recovery of lost profits by way of damages, the usual principles apply. As was said by this court in Dickinson v. O. & W. Thum Co., 6 Cir., 8 F.2d 570, 575, “When a plaintiff in a trade-mark or unfair competition case seeks to recover damages, the burden is on him to prove by competent and sufficient evidence his lost sales, or that he was compelled to reduce prices as the result of his competitor’s wrongful conduct. There is no presumption of law or of fact that a plaintiff would have made the sales that the defendant made.” The authorities sustaining this principle are sufficiently cited in the text. Especially is this true when the alleged infringer sells his product at a substantially lower price, for “It does not follow, because a party makes a purchase at a lower price, that he would have bought the same article at a higher price.” Cincinnati Siemans Gas Co. v. Western Siemans Co., 152 U.S. 200, 206, 14 S.Ct. 523, 526, 38 L.Ed. 411.
The presumption relied upon by the master is undoubtedly derived from those cases in which an award of profits made by the wrongdoer is made to the person injured on the theory that the wrongdoer is not to be permitted to profit by his unlawful act. Liability for damages arises solely from the injury done to the property rights of the adverse party, and is not supported by the fiction which places the infringer in the position of a trustee and requires him to account for profits made as such. Dickinson v. Thum Co., supra; United States v. Bitter Root Development Co., 200 U.S. 451, 26 S.Ct. 318, 50 L.Ed. 550; Tilghman v. Proctor, 125 U.S. 136, 148, 8 S.Ct. 894, 31 L.Ed. 664.
The decree below is affirmed.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_casedisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
PURE OIL CO. v. SUAREZ.
No. 692.
Argued April 19, 1966.
Decided May 16, 1966.
Eberhard P. Deutsch argued the cause for petitioner. With him on the briefs was René H. Himel, Jr.
Arthur Roth argued the cause for respondent. With him on the brief were S. Eldridge Sampliner and Charlotte J. Roth.
Mr. Justice Harlan
delivered the opinion of the Court.
Respondent Suarez is a seaman who was employed on the S. S. Pure Oil, owned and operated by petitioner, Pure Oil Company. Suarez brought this action against the company in the United States District Court for the Southern District of Florida to recover damages for personal injuries allegedly suffered in the course of his employment. He sued in negligence under the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688 (1964 ed.), and alternatively on the theory that the vessel was unsea-worthy. The Pure Oil Company moved to transfer the case to the Northern District of Illinois on the ground that venue was improper in Florida. The District Court denied the motion, certifying the question of venue for interlocutory appeal to the Court of Appeals under 28 U. S. C. § 1292 (b) (1964 ed.). That court affirmed the ruling of the District Court, 346 F. 2d 890. Certiorari was granted, 382 U. S. 972, in order to determine whether the decision below is inconsistent with this Court’s decision in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U. S. 222, and to resolve a conflict among the circuits on that score. We do not find the Fourco case controlling, and affirm the judgment of the Court of Appeals.
The Jones Act, which ultimately governs the venue issue before us, contains the following provision:
“Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.” 46 U. S. C. § 688.
Preliminarily it should be noted that although this provision is framed in jurisdictional terms, the Court has held that it refers only to venue, Panama R. Co. v. Johnson, 264 U. S. 375. It is conceded that as enacted and originally interpreted the statute would not authorize Florida venue in this instance, for corporate residence traditionally meant place of incorporation, in this case Ohio, and Pure Oil’s principal office is in Illinois. The Court of Appeals held, however, that residence had been redefined by the expanded general venue statute, 28 U. S. C. § 1391 (c) (1964 ed.), passed in 1948. That statute provides:
“A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.” (Emphasis added.)
If this definition of residence is applicable to the Jones Act venue provision, it is conceded that the action was properly brought in Florida, where Pure Oil has transacted a substantial amount of business. We hold that this definition does so apply and that venue in Florida was proper.
The effect of § 1391 (c) was to broaden the general venue requirements in actions against corporations by providing a forum in any judicial district in which the corporate defendant “is doing business.” See Moore, Commentary on the Judicial Code 193-194 (1949); 1 Barron & Holtzoff, Federal Practice and Procedure § 80, at 386 (Wright rev. 1960). It seems manifest that this change was made in order to bring venue law in tune with modern concepts of corporate operations. The question here involves the reach of these changes. The redefinition of corporate residence clearly touches the general diversity and federal-question venue provisions of §§1391 (a) and (b). Although there is no elucidation from statutory history as to the intended effect of § 1391 (c) on special venue provisions, the liberalizing purpose underlying its enactment and the generality of its language support the view that it applies to all venue statutes using residence as a criterion, at least in the absence of contrary restrictive indications in any such statute.
This view of § 1391 (c) is basically consistent with the purposes and language of the Jones Act, whose thrust was not primarily directed at venue, but rather at giving seamen substantive rights and a federal forum for their vindication. In so doing, it provided a more generous choice of forum than would have been available at that time under the general venue statute. Compare Act of March 3, 1911, c. 231, §§ 50, 51, 36 Stat. 1101. Though one aspect of the special venue provision was phrased in terms of “residence,” which as applied to a corporate employer was then generally understood to mean the place of incorporation, see In re Keasbey & Mattison Co., 160 U. S. 221, 229, the statute also permitted suit in the district where the principal office of the employer was located. See p. 203, supra. Moreover, there is nothing in the legislative history of this provision of the Jones Act to indicate that its framers meant to use “residence” as anything more than a referent to more general doctrines of venue rules, which might alter in the future.
The sole authority that might be thought to stand in the way of reading the Jones Act to embrace the residence definition of § 1391 (c) is Fourco Glass Co. v. Transmirra Prods. Corp., 353 U. S. 222. A consideration of the setting in which that decision was made reveals that it must be taken as limited to the particular question of statutory construction presented there. Fourco concerned the interrelation of § 1391 (c) and the special venue provision governing patent infringement suits, 28 U. S. C. § 1400 (b) (1964 ed.). The Court held that the new definition of residence in § 1391 (c) was not carried over into §1400 (b). This holding, however, was based on factors inapplicable to the case before us today.
First, the patent venue section at issue in Fourco was itself revised in 1948 in the same Act that contained § 1391 (c). Fourco did not directly concern itself with the scope of § 1391 (c). Rather, the Court inquired into the evidence revealing congressional purpose with respect to changes in § 1400 (b), and concluded that Congress wished it to remain in substance precisely as it had been before the revision. This legislative background of § 1400 (b) is of no relevance of course to a determination of the effect of § 1391 (c) on the Jones Act, for the latter’s venue provision was not re-enacted contemporaneously with § 1391 (c). Thus, there is nothing to show a congressional purpose negativing the more natural reading of the two venue sections together.
Second, the decision in Fourco relied heavily on the revisers’ purpose to maintain § 1400 (b) as it had been interpreted in Stonite Prods. Co. v. Melvin Lloyd Co., 315 U. S. 561. In Stonite this Court recognized that there were particular reasons why Congress had passed the predecessor of § 1400 (b). Confusion had been engendered by judicial decisions holding that patent in-fringers could be sued wherever they might be found, even though a newly enacted general venue statute of 1887 provided more limited venue. See 315 U. S., at 563-565. The patent infringement venue statute was enacted in 1897, 29 Stat. 695, specifically to narrow venue in such suits. This Court in Fourco, after determining that the 1948 revision of § 1400 (b) was meant to introduce no substantive change in the provision, was merely following the purpose and letter of the original enactment.
The Jones Act venue provision presents quite a different history. As a minor provision in a major substantive enactment, no particular attention was directed to its terms; indeed, the venue provision was first presented in the report of the House-Senate Conference Committee, see H. R. Rep. No. 1107, 66th Cong., 2d Sess., 19-20 (1920), and was apparently never discussed in committee reports or on the floor of either House. Thus, it is unlikely that the Congress meant to infuse the concept of corporate residence with any special meaning that should remain impervious to changes in standards effected by more general venue statutes. Moreover, it can be said with reasonable certainty that the provision was intended to liberalize venue, see supra, p. 205, unlike the patent infringement rule which was meant to constrict it. We conclude that here, in contrast to the situation dealt with in Fourco, the basic intent of the Congress is best furthered by carrying the broader residence definition of § 1391 (c) into the Jones Act.
Affirmed.
Compare the Third Circuit’s decision in Leith v. Oil Transport Co., 321 F. 2d 591, with the Fourth Circuit’s decision in Fanning v. United Fruit Co., 355 F. 2d 147, which followed the Fifth Circuit’s decision in the present case.
The Court of Appeals stated that the Jones Act venue provision must be met if, as here, an action is based on both unseaworthiness and the Jones Act, 346 F. 2d, at 891. Because of our disposition of the case we find no occasion to pass upon this issue, which was not raised in this Court.
As the Court of Appeals stated in Transmirra Prods. Corp. v. Fourco Glass Co., 233 F. 2d 885, 887, “The rationale of this sharp break with ancient formulae is quite obviously a response to a general conviction that it was ‘intolerable if the traditional concepts of “residence” and “presence” kept a corporation from being sued wherever it was creating liabilities.’ ” Although this Court reversed in Fourco, supra, for reasons discussed later (infra, pp. 206-207), the validity of this general observation was in no way questioned.
Section 688 was enacted as § 33 of the Merchant Marine Act, 1920, 41 Stat. 1007. The Act was primarily concerned with the creation and maintenance of a national merchant marine fleet. The substantive part of § 33, dealing with seamen’s relief, was introduced in the Senate as an amendment to the House bill, and was passed without discussion. 59 Cong. Rec. 7044 (1920). The venue provision was added by the House-Senate Conference Committee, see H. R. Rep. No. 1107, 66th Cong., 2d Sess., 19-20 (1920).
We do not think these conclusions are vitiated by the fact that application of the wider residence definition of § 1391 (c) to the Jones Act makes the alternative “principal office” venue provision of the latter statute superfluous as regards corporate employers. That provision continues to serve its original purpose when the defendant employer is not a corporation. Nor does the § 1391 (c) provision come into conflict with “principal office,” unless that provision is deemed to have been restrictive in its origins, a proposition for which no support can be found.
It reads: “Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_state
|
04
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Plaintiff-Appellee, v. Thomas R. SCHIFFBAUER, Defendant-Appellant.
No. 90-10624.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 10, 1991.
Decided Feb. 4, 1992.
Bram L. Jacobson, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellant.
Janet L. Patterson, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.
Before CANBY, and KOZINSKI, Circuit Judges, and NIELSEN, District Judge.
The Honorable Wm. Fremming Nielsen, United States District Judge for the Eastern District of Washington, sitting by designation.
CANBY, Circuit Judge:
Thomas Richard Schiffbauer appeals his bank robbery sentence. He contends that the district court illegally sentenced him to a term exceeding the maximum penalty authorized by 18 U.S.C. § 3581(b). We affirm.
BACKGROUND
A federal grand jury indicted Schiffbauer for the armed robbery of Security Savings and Loan in Mesa, Arizona. Pursuant to a plea agreement, Schiffbauer pled guilty to the lesser included offense of unarmed robbery in violation of 18 U.S.C. § 2113(a). At his sentencing hearing, Schiffbauer contended that 18 U.S.C. § 3581(b) classifies this offense as a Class C offense and thereby limits the maximum statutory term to twelve years. The district court rejected this argument and chose to rely on 18 U.S.C. § 3559(b). That statute provides that the maximum term is the term authorized by the statute describing the substantive offense. Because the bank robbery statute authorizes a twenty-year maximum term, the district court imposed a fourteen-year sentence, together with other terms not relevant to this appeal.
DISCUSSION
Schiffbauer challenges the district court’s sentence and its interpretation of federal statutes. We review these matters de novo. See United States v. Schiek, 806 F.2d 943, 944 (9th Cir.1986), cert. denied, 481 U.S. 1032, 107 S.Ct. 1962, 95 L.Ed.2d 534 (1987); United States v. Martinez-Jimenez, 864 F.2d 664, 665-66 (9th Cir.), cert. denied, 489 U.S. 1099, 109 S.Ct. 1576, 103 L.Ed.2d 942 (1989).
Schiffbauer contends that the district court sentenced him to a term exceeding the maximum allowable penalty. In determining the maximum term, 18 U.S.C. § 3559 directs us to the statute describing the substantive offense. According to this section, Schiffbauer's fourteen-year sentence clearly fell within the twenty-year range authorized by the bank robbery statute. See 18 U.S.C. § 2113(a).
Schiffbauer argues, however, that 18 U.S.C. § 3581 limited the district court to a twelve-year maximum term. As he notes, section 3559 classifies bank robbery as a Class C felony. 18 U.S.C. § 3559(a)(3). Section 3581 establishes that the sentence for this offense is not more than twelve years. 18 U.S.C. § 3581(b). Moreover, another section directs courts to sentence individuals in accord with section 3581. 18 U.S.C. § 3551(b)(3). Schiffbauer therefore concludes that the district court erred in imposing a fourteen-year term.
We have recently rejected a similar argument. In United States v. LaFleur, 952 F.2d 1537 (9th Cir.1991), we held that the letter-classification sentencing scheme of sections 3559(a) and 3581(b) did not apply to the offense of first degree murder set forth in 18 U.S.C. § 1111, because the latter statute specified its own penalty of a mandatory life sentence. We said that “[tjhere is no indication that § 3581 was intended to modify clearly established statutory sentences.” Id. at 1546. The Second and Third Circuits have reached similar conclusions. See United States v. Gonza lez, 922 F.2d 1044, 1050 (2d Cir.1991); United States v. Donley, 878 F.2d 735, 740 (3d Cir.1989), cert. denied, 494 U.S. 1058, 110 S.Ct. 1528, 108 L.Ed.2d 767 (1990).
Here, too, we conclude that Congress did not intend the penalties set in section 3581(b) to apply to offenses that received letter grades for the first time in section 3559(b). Section 3581(b)’s penalties apply only to offenses that are assigned letter classifications in the statutes describing them. Because Congress has continued to specify maximum penalties without reference to letter-grade classifications, however, section 3581(b) has not yet had any crimes upon which to operate. See Crime Control Act of 1990, Pub.L. 101-647, §§ 322 & 1701, 104 Stat. 4789, 4818 & 4843 (1990).
Section 3559(b), on the other hand, applies to statutes, like the pre-existing statute defining bank robbery, that provide a specific maximum sentence in the statute describing the crime. Thus, the plain language of section 3559(b) states that all of the incidents of the letter grading system shall apply “except that the maximum term of imprisonment is the term authorized by the law describing the offense” (emphasis added).
Congress, at least up to now, has not implemented the letter-grade system contemplated by section 3581(b). It follows that section 3581 is inapplicable to the existing bank robbery offense. This construction follows from the statutes and Congress’s continuing practice of specifying maximum sentences in crime legislation. It is also in accord with the decisions of two other circuits and the views of the Sentencing Commission.
AFFIRMED
. Title 18, United States Code, section 3559, provides in part:
(a) An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is—
(3) less than twenty-five years but ten or more years, as a Class C felony.
(b) An offense classified under subsection (a) carries all the incidents assigned to the applicable letter designation, except that the maximum term of imprisonment is the term authorized by the law describing the offense. (Emphasis added.)
. Title 18, United States Code, section 3581 provides in part:
(a) A defendant who has been found guilty of an offense may be sentenced to a term of imprisonment.
(b) The authorized terms of imprisonment are....
(3) for a Class C felony not more than twelve years.
. According to the United States Sentencing Commission, Congress has abandoned its plan to assign existing federal crimes letter-grade sentencing classifications. Questions Most Frequently Asked About the Sentencing Guidelines, Volume IV, p. 8 (Dec. 1, 1990). The Commission’s position, of course, cannot serve as evidence of the intent of Congress. We find the Commission’s interpretation to have persuasive value, however, because of its experience and familiarity with the federal criminal laws.
. Because section 3581 has no letter-grade crimes upon which to operate, the direction of section 3551(b)(3) to sentence in accord with section 3581 is equally ineffectual.
.Because there is no ambiguity, Schiffbauer’s attempt to invoke the rule of lenity must fail. See Moskal v. United States, — U.S. -, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990).
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_casetyp1_7-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
ABINGTON HEIGHTS SCHOOL DISTRICT, Appellant, v. SPEEDSPACE CORPORATION, Appellee.
No. 82-3199.
United States Court of Appeals, Third Circuit.
Argued Sept. 29, 1982.
Decided Nov. 17, 1982.
Joseph P. Lenahan, (argued), Lenahan & Dempsey, Scranton, Pa., for appellant.
Oldrich Foucek, III, Thomas C. Sadler, Jr., (argued), Butz, Hudders & Tallman, Allentown, Pa., for appellee.
Before ALDISERT and HIGGINBOT-HAM, Circuit Judges and MEANOR, District Judge.
Hon. H. Curtis Meanor, United States District Judge for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
MEANOR, District Judge.
On June 1, 1976 a fire occurred upon premises owned by the plaintiff-appellant. This diversity action was begun on June 27, 1979 naming appellee Speedspace Corporation, a California corporation, and Universal Manufacturing Corp. as defendants. The complaint sought damages arising out of the fire. It asserted that Speedspace had negligently designed and constructed the elementary school building in which the fire took place and that Universal had supplied defective fluorescent light ballasts.
After some difficulty in effecting service upon it, Speedspace appeared and moved to dismiss upon the ground that as a California corporation having been dissolved on December 31, 1978, under the law of that state it was no longer amenable to suit. In May, 1980 the district court, relying upon Ray v. Alad Corp., 19 Cal.3d 22, 560 P.2d 3, 136 Cal.Rptr. 574 (1977) .held that, under the law of California, once a certificate of dissolution is filed, corporate existence ceases and there is no longer amenability to suit.
On the heels of this ruling, the plaintiff moved for reconsideration, contending that it had just discovered that prior to dissolution Speedspace had been a subsidiary of Potlach Corporation and that the dissolution may have been a “merger” between Potlach and its subsidiary. Plaintiff did not move to add Potlach as a defendant. Reconsideration was denied, on the ground that imposition of liability upon Potlach as the parent or successor could not be accomplished by re-instituting the complaint against Speedspace, a “non-entity for the purpose of suit.”
Plaintiff attempted to appeal the above rulings, but the appeal was dismissed on April 24,1981 for want of a final judgment, since the case remained open as to Universal. Subsequently, Universal settled and secured a dismissal, thus rendering final and appealable the previous entry of judgment in favor of Speedspace.
We believe that the district court misread Ray v. Alad Corp. That case did not involve the question whether a dissolved corporation remained subject to suit. The defendant there, Alad II, had purchased the assets of the dissolved Alad I, without assuming any liabilities pertinent to the product liability claim advanced by plaintiff arising out of his use of a product manufactured by Alad I. Alad II simply continued the business of Alad I. Under these circumstances, the Supreme Court of California imposed successor liability upon Alad II with respect to product liability arising out of its predecessor’s manufacture. In that case the California court was not confronted with an attempt to sue the dissolved Alad I. The remarks of the court on which the district court relied did not go to the question whether, under California law, a dissolved corporation was susceptible to being sued. Those remarks, rather, were directed to the futility of collection after dissolution, liquidation and distribution. This futility, in turn, played a part in the policy decision to place product liability upon a successor corporation which had purchased only assets without assuming liabilities.
Rule 17(b), F.R.Civ.P. provides in pertinent part: “The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized.” Hence, we must turn to California law to determine whether Speedspace, though dissolved, remains subject to suit on account of an asserted pre-dissolution tort. The pertinent provisions of the applicable California statute are set forth below.
In our judgment the result in the matter before us is controlled by North American Asbestos v. Superior Court, 128 Cal.App.3d 138, 179 Cal.Rptr. 889 (1982). There, personal injury claimants brought suit against a dissolved Illinois corporation. Illinois law provided that a dissolved corporation could be sued within two years of dissolution. The suits before the California Court of Appeal had been brought more than two years following the date of dissolution. The plaintiff, therefore, argued that California law should apply. Although the Court rejected the application of California law and applied Illinois law instead, in discussing section 2010 of the California Corporation Code it stated:
It is clear that the California survival law does not apply to suits against dissolved foreign corporations. California Corporations Code section 2010 provides that ‘(a) corporation which is dissolved nevertheless continues to exist for the purpose of winding up its affairs, prosecuting and defending actions by or against it .... ” It also provides that “[n]o action or proceeding to which a corporation is a party abates by the dissolution of the corporation or by reason of proceedings for winding up and dissolution thereof.” Thus, there is no time limitation for suing a dissolved corporation for injuries arising out of its pre-dis-solution activities.
If section 2010 applies to foreign corporations as well as to domestic corporations, then application of California law would permit these lawsuits to continue. However, section 2010 does not apply to a foreign corporation. North American Asbestos, 128 Cal.App.3d at 144, 179 Cal.Rptr. 889.
In light of the language quoted above, we hold that under California law, Speedspace, as a dissolved corporation, is subject to suit arising out of its pre-dissolution activities, with the only time bar being that of an applicable general statute of limitations.
The judgment under review will be reversed and the matter remanded for proceedings consistent with this opinion. Costs taxed in favor of appellant.
. Ray v. Alad Corp. is consistent with our decision imposing successor liability in Knapp v. North American Rockwell Corp., 506 F.2d 361 (3d Cir.1974).
. Section 2010 of the California General Corporation Law provides:
(a) A corporation which is dissolved nevertheless continues to exist for the purpose of winding up its affairs, prosecuting and defending actions by or against it and enabling it to collect and discharge obligations, dispose of and convey its property and collect and divide its assets, but not for the purpose of continuing business except so far as necessary for the winding up thereof.
(b) No action or proceeding to which a corporation is a party abates by the dissolution of the corporation or by reason of proceedings for winding up and dissolution thereof.
. To date, plaintiff has not attempted to amend to add Potlach Corporation as a defendant. If such a motion is made promptly upon remand, we direct that it be granted. Questions of successor liability, relation back and the statute of limitations can be resolved after Potlach is properly joined and served.
At oral argument counsel for appellant, in response to a question from the court, stated that he was representing the interests of a subrogated fire insurance carrier. Attention is called to the real party in interest provisions of rule 17(a) F.R.Civ.P. See United States v. Aetna Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171 (1949) and Virginia Electric & Power Co. v. Westinghouse Elec. Corp., 485 F.2d 78 (4th Cir.1973).
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
sc_casesource
|
021
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
CIVIL AERONAUTICS BOARD v. DELTA AIR LINES, INC.
No. 492.
Argued April 27, 1961.
Decided June 12, 1961.
John F. Davis argued the cause for petitioner in No. 492. On the briefs were former Solicitor General Rankin, Solicitor General Cox, Assistant Attorney General Loevinger, Assistant Attorney General Bicks, Richard A. Solomon, Irwin A. Seibel, O. D. Ozment and Franklin M. Stone.
Albert F. Grisard argued the cause and filed a brief for petitioner in No. 493.
R. S. Maurer argued the cause for respondent. With him on the briefs were James W. Callison and Robert Reed Gray.
Together with No. 493, Lake Central Airlines, Inc., v. Delta Air Lines, Inc., also on certiorari to the same Court.
Mr. Chief Justice Warren
delivered the opinion of the Court.
This case concerns the power of the Civil Aeronautics Board to alter a certificate of public convenience and necessity, granted to respondent Delta Air Lines, after that certificate had become effective under § 401 (f) of the Federal Aviation Act of 1958. 72 Stat. 731, 755, 49 U. S. C. § 1371 (f). The administrative proceedings from which the present dispute arises date back to May 1955, and involve consideration by the Board of a number of applications for new service between cities located in an area extending from the Great Lakes to Florida. The Board divided the proceedings into two general categories, consolidating the applications for long-haul service in the Great Lakes-Southeast Service Case and those for short-haul flights in the Great Lakes Local Service Investigation Case. In order to protect fully the interests of local service carriers, the Board allowed these carriers, including petitioner Lake Central Airlines, to intervene in the hearings on the long-haul applications.
At the conclusion of the Great Lakes-Southeast Service Case a number of awards were made, including one permitting Delta to extend an existing route northwest so as to provide service from Miami to Detroit and to add Indianapolis and Louisville as intermediate points on its existing Chicago-to-Miami route. Certain restrictions for the protection of local carriers were imposed on many of the awards, these restrictions generally providing that flights between specified intermediate cities had to originate at or beyond given distant points. The stated purpose of these restrictions was to prevent the long-haul carrier from duplicating so-called “turn-around” service already provided by existing local carriers. One such restriction was applied to Delta’s run between Detroit and various locations in Ohio but, by and large, Delta’s award was free of protective, limitations.
The Board’s order issued on September 30, 1958, and it specified that Delta’s certificate was to become effective on November 29, 1958, unless postponed by the Board prior to that date. Shortly thereafter,within time limits set by the Board, numerous petitions for reconsideration were filed, including one by Lake Central protesting the breadth of Delta’s certificate. Lake Central requested that, if the Board should be unable to decide its petition for reconsideration before November 29, the effective date of the certificate be put off. On November 28, one day before Delta’s certificate was to become effective, the Board issued a lengthy memorandum and order, which stated in substance that the requests for stays, with one immaterial exception, were denied, but that judgment on the merits of the petitions for reconsideration would be reserved. The Board explained that the parties had not made a sufficient showing of error to justify postponements and that, in view of the advent of the peak winter season, further delay would be particularly inappropriate; the Board then said:
“To the extent that we have considered the petitions for reconsideration in the present order we have done so only for the purposes of assessing the probability of error in our original decision. We feel that such action is necessary to a fair consideration of the stay requests, and is in no way prejudicial to the legal rights of those parties seeking reconsideration. Nothing in the present order forecloses the Board from full and complete consideration of the pending petitions for reconsideration on their merits.”
For reasons not presently pertinent, Delta’s certificate became effective on December 5, rather than November 29, 1958, and Delta commenced its newly authorized operations shortly thereafter. On May 7, 1959, the Board issued a new order disposing of the still-pending petitions for reconsideration. By this order, the Board amended Delta’s certificate in response to the restrictions proposed by Lake Central. Specifically, the Board barred Delta’s operations between ten pairs of intermediate cities unless the flights initiated at Atlanta or points farther south; the effect of this order was to bar certain •flights Delta was then operating. Even then, the Board’s action was not final; the Board reserved the power to lift these restrictions pending the outcome of the Great Lakes Local Service Case., The Board’s disposition of the petitions was taken summarily, without formal notice to the parties or the opportunity for a hearing prior to decision.
Delta sought review of this order before the Board, challenging the Board’s power to change the terms of its certificate after the effective date thereof without notice or hearing. The Board overruled Delta’s objection, stating that: “[W]e believe we have such power, and we have exercised it in the past. Moreover, there is no showing, and we are unable to conclude, that any significant adverse effect will result to either Delta or the public from observance of the conditions here involved.” On review in the Court of Appeals for the Second Circuit, however, the Board’s order was overturned, the court reasoning that Congress had made notice and hearing a prerequisite to the exercise of the Board’s power to change an existing certificate. Delta Air Lines, Inc., v. Civil Aeronautics Board, 280 F. 2d 43.
The issue in this case is narrow and can be stated briefly: Has Congress authorized the Board to alter, without formal notice or hearing, a certificate of public convenience and necessity once that certificate has gone into effect? If not, should it make any difference that the Board has purported to reserve jurisdiction prior to certification to make summary modifications pursuant to petitions for reconsideration? We think that both these questions must be answered in the negative.
Whenever a question concerning administrative, or judicial, reconsideration arises, two opposing policies immediately demand recognition: the desirability of finality, on the one hand, and the public interest in reaching what, ultimately, appears to be the right result on the other. Since these policies are in tension, it is necessary to reach a compromise in each case and petitioners have argued at length that the Board’s present procedure is a happy resolution of conflicting interests. However, the fact is that the Board is entirely a creature of Congress and the determinative question is not what the Board thinks it should do but what Congress has said it can do. See United States v. Seatrain Lines, 329 U. S. 424, 433. Cf. Delta Air Lines v. Summerfield, 347 U. S. 74, 79-80. This proposition becomes clear beyond question when it is noted that Congress has been anything but inattentive to this issue in the acts governing the various administrative agencies. A review of these statutes reveals a wide variety of detailed provisions concerning reconsideration, each one enacted in an attempt to tailor the agency’s discretion to the particular problems in the area. In this respect, the Federal Aviation Act is no exception since, in § 401 (f) and (g) of the Act, Congress has stated the limits of the Board’s power to reconsider in unequivocal terms. Section 401 (f) provides that “Each certificate shall be effective from the date specified therein, and shall continue in effect until suspended or revoked as hereinafter provided.” The phrase “as hereinafter provided” refers to § 401(g), which states:
“Authority to Modify, Suspend, or Revoke
“(g) The Board upon petition or complaint or upon its own initiative, after notice and hearings, may alter, amend, modify, or suspend any such certificate, in whole or in part, if the public convenience and necessity so require, or may revoke any such certificate, in whole or in part, for intentional failure to comply with any provision of this title or any order, rule, or regulation issued hereunder or any term, condition, or limitation of such certificate: Provided, That no such certificate shall be revoked unless the holder thereof fails to comply, within a reasonable time to be fixed by the Board, with an order of the Board commanding obedience to the provision, or to the order (other than an order issued in accordance with this proviso), rule, regulation, term, condition, or limitation found by the Board to have been violated. Any interested person may file with the Board a protest or memorandum in support of or in opposition to the alteration, amendment, modification, suspension, or revocation of the certificate.” (Emphasis added.)
This language represents to us an attempt by Congress to give the Board comprehensive instructions to meet all contingencies and the Board’s duty is to follow these instructions, particularly in light of the fact that obedience thereto raises no substantial obstacles. It is true, of course, that statutory language necessarily derives much of its meaning from the surrounding circumstances. However, we think that, while there is no legislative history directly on point, the background of the Aviation Act strongly supports what we believe to be the plain meaning of § 401 (f) and (g). It is clear from the statements of the supporters of the predecessor of the Aviation Act — the Civil Aeronautics Act of 1938 — that Congress was vitally concerned with what has been called “security of route” — i. e., providing assurance to the carrier that its investment in operations would be protected insofar as reasonably possible. And there is no other explanation but that Congress delimited the Board’s power to reconsider its awards with precisely this factor in mind; hence the language that a certificate “shall he effective... until suspended or revoked as hereinafter provided” (emphasis supplied), language which is absent from several of the Acts to which reference has been made. Thus, the structure of the statute, when considered in light of the factor persuading Congress, indicates to us that the critical date in the mind of Congress was the date on which the carrier commenced operations, with the concomitant investment in facilities and personnel, not the date that abstract legal analysis might indicate as the “final” date. In other words, it seems clear to us that Congress was relatively indifferent to the fluctuations an award might undergo prior to the time it affected practical relationships, but that Congress was vitally concerned with its security after the wheels had been set in motion. In light of this, we think the result we reach follows naturally: to the extent there are uncertainties over the Board’s power to alter effective certificates, there is an identifiable congressional intent that these uncertainties be resolved in favor of the certificated carrier and that the specific instructions set out in the statute should not be modified by resort to such generalities as “administrative flexibility” and “implied powers.” We do not quarrel with those who would grant the Board great discretion to conjure with certificates prior to effectuation. But, we feel that we would be paying less than adequate deference to the intent of Congress were we not to hold that, after a certificate has gone into effect, the instructions set out in the statute are to be followed scrupulously.
However, petitioners argue that there is an implied exception to the statutory mandate when the Board, pursuant to a petition for reconsideration filed before the certificate’s effective date, makes a statement that the certificate is subject to later amendment after further deliberation upon the petition. Petitioners admit that there is no express statutory authority for the Board to entertain petitions for reconsideration even prior to the effective date of the certificate, but they assert, and we assume arguendo they are correct, that the Board has implied power to accept such petitions. This being the case, petitioners claim that the existence of an outstanding petition for reconsideration gives a double meaning to the term "effective” as used in the Act: certificates are "effective” on the date specified therein for the purpose of allowing the certificated carrier to commence operations, but they are not “effective” as the term is used in § 401 (f) so as to preclude modification outside the procedures specified in § 401 (g).
The appeal of this argument comes, in the main, from the general notion that an administrative order is not “final,” for the purposes of judicial review, until outstanding petitions for reconsideration have been disposed of. See, e. g., Outland v. Civil Aeronautics Board, 109 U. S. App. D. C. 90, 284 F. 2d 224; Braniff Airways, Inc., v. Civil Aeronautics Board, 79 U. S. App. D. C. 341, 147 F. 2d 152. Once it is established that the certificate is not “final” for one purpose, the argument runs, then it is logical to assume that the certificate lacks “finality” for another. The difficulties with this line of reasoning, however, are many. First, insofar as it is bottomed on cases such as Outland and Braniff, the argument relies on holdings that were never made. The Courts of Appeals in these cases decided only that petitions for review were timely if filed in time from the date on which the Board disposed of pending petitions for reconsideration; the question whether the Board’s action on the petitions for reconsideration should have been taken after notice and hearing did not arise. Furthermore, petitioners’ argument skips an important logical step; it assumes, without explanation, that questions of administrative finality present the same problems, and therefore deserve the same solutions, as questions concerning the timeliness of an appeal. In point of fact, this assertion is not only unsupported but erroneous. The pertinent statutory language is not similar in the two instances. and the other points under analysis are different. Thus, a court considering the timeliness of a litigant's appeal is concerned with the wisdom of exercising its own power to act, and the result depends on such factors as fairness to the appellant and the intent of Congress in passing a general statute — § 10 (c) of the Administrative Procedure Act— which applies equally to almost all administrative agencies. There is no call, as Outland, and similar cases illustrate by their omissions, for considering either the sections of a particular act which are not concerned with appellate review or the problem — which at that point is of historical interest only — whether the petition for reconsideration should have been decided summarily or after notice and hearing. One might argue, of course, that the question is similar in both instances because, if the Board’s action on the petition for reconsideration is too late, then an appeal which is timely only from the Board’s action on reconsideration is also too late. However, this line of reasoning overlooks the confines of the result we are reaching in this case. We are not saying that the Board cannot entertain petitions for reconsideration after effective certification, nor are we holding that such petitions cannot be denied summarily; all we hold is that the petitions cannot be granted and the certificated carrier’s operations curtailed without notice or hearing. Therefore, since the cases such as Outland concerned the denial of a petition for reconsideration, there is no conflict, express or implied, between those decisions and this one. In this connection, the statement of a leading commentator seems particularly pertinent:
. “The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has, and should have precisely the same scope in all of them runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.” Cook, The Logical and Legal Bases of the Conflict of Laws, 159.
Thirdly, were we to adopt the position urged by petitioners, we would have to hold that, in the words of a former chairman of the Board, the power to reconsider a case may be the lever for “nullify [ing] an express provision of the Act.” Ryan, The Revocation of an Airline Certificate of Public Convenience and Necessity, 15 J. Air L. & Comm. 377, 384. As Commissioner Ryan indicated, the power the Board asks for in this case seems nothing more or less than the power to do indirectly what it cannot do directly. Parenthetically, it should be noted that, for purposes of this dispute, it is difficult to draw a distinction between a petition for reconsideration filed by a party and one initiated by the Board sua sponte. Sprague v. Woll, 122 F. 2d 128. This being the case, it is all the more significant that the Court in United States v. Seatrain Lines, 329 U. S. 424, while overruling the Interstate Commerce Commission’s contention that it had inherent power to reconsider effective certificates, paid no attention to the fact that the Commission had made the original certificate effective, subject “to such terms, conditions, and limitations as are now, or may hereafter be, attached to the exercise of such authority by this Commission.”
Although we feel that the language and background of the statute are sufficiently clear so that affirmance can rest solely on that basis, it seems appropriate, in light of petitioners’ vigorous assertion that policy reasons compel their result, to discuss some of the ramifications of our decision. In the first place, it bears repetition that we are not deciding that the Board is barred from reconsidering its initial decision. All we hold is that, if the Board wishes to do so, it must proceed in the manner authorized by statute. Thus, for example, the Board may reconsider an effective certificate at any time if it affords the certificated carrier notice and hearing prior to decision; or, if it feels uncertain about the decision prior to its effective date, it may postpone the effective date until all differences have been resolved; and, if neither of these procedures seem practical in a given case, the Board may issue a temporary certificate set to expire on the date the Board -prescribes for re-examination. Indeed, with all these weapons at its command, it is difficult to follow the argument that the Board should be allowed to improvise on the powers granted by Congress in order to preserve administrative flexibility.
Furthermore, it would seem that any realistic appraisal of the relative hardships involved in this case cuts in favor of the respondent. To be sure, the Board may be able to act quicker under the rule it espouses and, by eliminating the necessity of a new hearing, Lake Central will be spared the expense of preparing a new record. However, were the Board correct, respondent would be subjected to the loss of valuable routes, routes it had already begun to operate after considerable initial investment, without being heard in opposition. The Board points out that respondent had notice that the Board had reserved the right to amend the certificate. But it is not clear what comfort respondent could take from such notice; respondent could not hedge, since § 401 (f) of the Act provides that a certificated carrier may lose the right to conduct any service it does not initiate within 90 days of certification. Concededly, the fact of notice gives considerable surface appeal to petitioners’ assertions; they can and do argue that respondent knew what it was getting into and should not be heard to complain when the gamble turns out unfavorably. However, it must be remembered that the problem is not presented to us in the abstract; we are dealing with it in the context of this particular statute. And, as stated above, a major purpose behind the enactment of the Aviation Act was to eliminate the element of risk from a carrier’s operations. With Congress on record as affirmatively desiring to eliminate the necessity of gambling, we do not feel that the “assumption of the risk” argument carries much weight. The Board also argues that respondent “in substance” enjoyed the hearing contemplated by § 401 (g) because the matters impelling the Board to change its mind were matters that had been thrashed out during the hearings on the original certificate. However, this contention assumes a fact that we do not have before us — that a hearing would not have disclosed any further evidence or, perhaps more importantly, any post-certification events weighty enough to alter the Board’s thinking.
In short, our conclusion is that Congress wanted certificated carriers to enjoy “security of route” so that they might invest the considerable sums required to support their operations; and, to this end, Congress provided certain minimum protections before a certificated operation could be cancelled. We do not think it too much to ask that the Board furnish these minimum protections as a matter of course, whether or not the Board in a given case might think them meaningless. It might be added that some authorities have felt strongly enough about the practical significance of these protections to suggest that their presence may be required by the Fifth Amendment. See Seatrain Lines v. United States, 64 F. Supp. 156, 161; Handlon v. Town of Belleville, 4 N. J. 99, 71 A. 2d 624; see also 63 Harv. L. Rev. 1437, 1439.
Petitioners’ final argument is that their position is supported by consistent administrative construction and analogous case authority. The administrative construction argument appears less than substantial in light of the fact that, on the last and, it appears, only occasion when the present question was expressly considered, the Board said in dictum that it had “grave doubts” about proceeding in the manner followed in this case. Kansas City-Memphis-Florida Case, 9 C. A. B. 401; cf. Smith Bros., Revocation of Certificate, 33 M. C. C. 465. See generally Ryan, supra, where Commissioner Ryan went to great lengths to expose what he felt were the fallacies in the contentions now advanced by petitioners. With respect to prior cases, petitioners again are unable to cite any holdings on point. Petitioners rely heavily on Frontier Airlines, Inc., v. Civil Aeronautics Board, 104 U. S. App. D. C. 78, 259 F. 2d 808, but the dispute here involved was not raised in that case. The closest analogy in Frontier is to the argument put forward by a party whose petition for reconsideration had been denied; and the Court of Appeals reported this argument and the reasons for overruling it as follows:
“[T]he order on reconsideration is a nullity because it was rendered after the petition for judicial review had been filed and after the certificates previously issued had become effective; and, if that order is a nullity, the basic order is also a nullity because it fails to cover certain points.
“We do not find the order denying reconsideration invalid because rendered after this petition was filed. No harm was done. Had the Board been of a mind to grant reconsideration, it could have so indicated and a motion to remand would have been in order.”
Perhaps more favorable to petitioners is this Court’s decision in United States v. Rock Island Motor Transport Co., 340 U. S. 419, where it was held that the Interstate Commerce Commission could modify a motor carrier’s effective certificate pursuant to a reservation in the initial order. However, two important distinctions between that case and this are apparent: (1) the Motor Carrier Act makes express provision for summary modifications after certification, 49 U. S. C. § 308, and (2) the Court in Rock Island was very careful to limit its holding to the particular modification made in that case. Finally, the decision which is analytically most relevant to this case, United States v. Seatrain Lines, supra, furnishes support for respondent, rather than petitioners. While Seatrain may be distinguishable on its facts, the Court spoke in general terms of the rule that supervising agencies desiring to change existing certificates must follow the procedures “specifically authorized” by Congress and cannot rely on their own notions of implied powers in the enabling act. In short, we do not find that prior authority clearly favors either side; however, to the extent that a broad observation is permissible, we think that both administrative and judicial feelings have been opposed to the proposition that the agencies may expand their powers of reconsideration without a solid foundation in the language of the statute. Therefore, since the language and background of the statute are against, rather than for, the Board, the judgment of the Court of Appeals must be
Affirmed.
This section provides:
“Each certificate shall be effective from the date specified therein, and shall continue in effect until suspended or revoked as hereinafter provided, or until the Board shall certify that operation thereunder has ceased, or, if issued for a limited period of time under subsection (d) (2) of this section, shall continue in effect until the expiration thereof, unless, prior to the date of expiration, such certificate shall be suspended or revoked as provided herein, or the Board shall certify that operations thereunder have ceased: Provided, That if any service authorized by a certificate is not inaugurated within such period, not less than ninety days, after the date of the authorization as shall be fixed by the Board, or if, for a period of ninety days or such other period as may be designated by the Board any such service is not operated, the Board may by order, entered after notice and hearing, direct that such certificate shall thereupon cease to be effective to the extent of such service.”
The Board’s regulations concerning petitions for reconsideration, 14 CFR § 302.37, provide in part that:
“Petition for reconsideration — (a) Time for filing. A petition for reconsideration, rehearing or reargument may be filed by any party to a proceeding within thirty (30) days after the date of service of a final order by the Board in such proceeding unless the time is shortened or enlarged by the Board, except that such petition may not be filed with respect to an initial decision which has become final through failure to file exceptions thereto. However, neither the filing nor the granting of such a petition shall operate as a stay of such final order unless specifically so ordered by the Board. After the expiration of the period of filing a petition, a motion for leave to file such petition may be filed; but no such motion shall be granted except on a showing of unusual and exceptional circumstances, constituting good cause for failure to make timely filing. Within ten (10) days after a petition for reconsideration, rehearing, or reargument is filed, any party to the proceeding may file an answer in support of or in opposition to the petition.”
A temporary stay was granted from November 29 to December 5 to enable the Court of Appeals to consider a request by Eastern Air Lines for a judicial stay of certain awards made in the original proceeding. Eastern did not get its stay nor was its challenge on the merits upheld. Eastern
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190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_counsel2
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Richard SAMUELS, Plaintiff-Appellant, v. AIR TRANSPORT LOCAL 504, Defendant-Appellee.
No. 516, Docket 92-7062.
United States Court of Appeals, Second Circuit.
Argued Jan. 11, 1993.
Decided April 21, 1993.
Richard Samuels, pro se.
Asher W. Schwartz, New York City (O’Donnell, Schwartz, Glanstein & Rosen, of counsel), for appellee.
Before: VAN GRAAFEILAND, CARDAMONE, and JACOBS, Circuit Judges.
Judge Jacobs disqualified himself in this case and took no part in this decision.
CARDAMONE, Circuit Judge:
We have before us a pro se litigant claiming that his union failed to afford him fair representation through the arbitral process after he was demoted. A union member is entitled to fair representation; and, though this pro se litigant deserved no more representation than the member of Local 504 who, as a result of her grievance succeeded to his position, he deserved no less.
Richard Samuels, pro se, brought suit against defendant Air Transport Local 504 of the Transport Workers Union of America (Local 504 or union), alleging it breached its duty of fair representation in violation of the Railway Labor Act, 45 U.S.C. § 151 et seq. (1988). Samuels’ claims were submitted to a jury that found in his favor. The United States District Court for the Southern District of New York (Metzner, J.) granted the union’s motion for judgment notwithstanding the verdict. For the reasons that follow we reverse the judgment n.o.v. and remand with directions that it be vacated and the jury verdict reinstated.
FACTS
Samuels began employment at Pan Ameri-can World Airways, Inc. in 1969. He became Crew Chief of Hangar 19 at John F. Kennedy International Airport, a position for which he successfully bid, in January 1981. The Crew Chief position was subject to a collective bargaining agreement between Pan Am and the union. Pan Am restructured its operations at J.F.K. in 1984, merging Hangar 19 with Hangars 14 and 17. Samuels became Crew Chief of the consolidated hangars, and Marjorie Blades — who had been Crew Chief of Hangar 17 — was demoted.
As a result, Blades filed a grievance challenging the loss of her position. The union pursued this grievance through the internal grievance procedure up to the Field Board of Adjustment. Upon review of the grievance, the Field Board directed the parties to rebid the position, and when Samuels refused to bid, he was removed as Crew Chief of the consolidated hangars in December 1985. Appellant then requested that the union file a grievance on his behalf challenging the loss of this position under the collective bargaining agreement. In a letter dated December 12, 1985 Local 504 informed appellant it could not represent him in the internal grievance process because “field board decisions are binding on the parties.” Later, the union relented and represented Samuels throughout the internal grievance process, though it was to no avail.
Samuels instituted the instant action in the Southern District of New York in 1986. His complaint alleges that when the union initially refused to represent him it breached its duty of fair representation. The district court construed the complaint to assert an additional claim of inadequate representation during the entire grievance procedure. It was while the case was pending in the district court that the union agreed to represent Samuels before the Field Board. Appellant’s grievance was ultimately denied in a Field Board decision dated July 15, 1987.
The case went to trial in the district court in November 1991. Although Samuels had been pro se, he secured pro bono counsel to represent him at trial where, as noted, he obtained a favorable verdict. Finding that his union’s conduct had caused him lost wages, the jury awarded Samuels $4,417. In overturning this verdict and granting the union’s motion for j.n.o.v., the trial court reasoned there was no proof that Pan Am violated the collective bargaining agreement. Further, it believed the evidence did not establish conduct on the part of Local 504 that was arbitrary, discriminatory or in bad faith or that undermined the arbitral process. This appeal followed.
DISCUSSION
A. Judgment Notwithstanding the Verdict
The sole issue presented is whether in granting j.n.o.v. the district court applied the proper standard. A motion for j.n.o.v. should be denied unless, viewed in the light most favorable to the nonmoving party, “the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached.” Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir.1970). In other words, judgment n.o.v. is to be granted only when there is “such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or ... such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [jurors] could not arrive at a verdict against him.” Mattivi v. South African Marine Corp., “Huguenot,” 618 F.2d 163, 168 (2d Cir.1980). We review the grant of a motion for judgment n.o.v. guided by the same standard as the district court. See Vasbinder v. Ambach, 926 F.2d 1333, 1339 (2d Cir.1991).
B. Motion for a Directed Verdict
Fed.R.Civ.P. 50 governs the procedure for removing a judgment from the verdict-winner by the use of either a motion for a directed verdict, Rule 50(a) or a motion for judgment notwithstanding the verdict, Rule 50(b). We recognize that effective December 1,1991, Rule 50’s use of the terms “judgment notwithstanding the verdict” and “directed verdict” were abandoned. “Judgment as a matter of law” now encompasses pre-verdict and post-verdict motions. But the standard for granting the motion has not changed. See Fed.R.Civ.P. 50 Advisory Committee’s note, 1991 amendment.
Rule 50(b), in effect at the time of the instant trial, stated
Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.
Fed.R.Civ.P. 50(a) (1988) (emphasis added). Rule 50(a), providing for motions for directed verdict and incorporated by reference in Rule 50(b), stated that “a motion for a directed verdict shall state the specific grounds therefor.” Fed.R.Civ.P. 50(b) (1988). These two rules read together limit the grounds for judgment n.o.v. to those specifically raised in the prior motion for a directed verdict.
The principal reason for establishing the motion for directed verdict as a condition precedent for the motion for j.n.o.v. is to avoid making a trap of the later motion. That is, the rule gives the party against whom the motion for j.n.o.v. is made notice of defects in its proof so that it can cure them before the case goes to the jury, see American Protein Corp. v. AB Volvo, 844 F.2d 56, 61 (2d Cir.), cert. denied, 488 U.S. 852, 109 S.Ct. 136, 102 L.Ed.2d 109 (1988) or, as Professor Moore puts it, the requirement of the condition precedent motion is “in keeping with the spirit of the rules to avoid tactical victories at the expense of substantive interests.” 5A James W. Moore et al, Moore’s Federal Practice 50-89 (2d ed. 1993).
As a threshold matter, we must determine whether the movant met the procedural requirements of Rule 50(a). We examine the trial record, which reveals that at the close of all the evidence, counsel for the union moved:
Mr. Rachlin:' Your Honor, at this time, may it please the court, I should like to renew the motions I made at the end of the plaintiffs case.
I think the testimony that has been offered by the defendants illustrates that, as a matter of law, the plaintiff was given his fair representation and adequate representation at the proceedings.
You have heard the testimony of a variety of witnesses. There is no need on the part of the defendant to have won the case for Mr. Samuels. All that is required to have been done is that they exercise good faith and do what they have to do.
You have heard as a matter of law, in fact, that Mr. Samuels himself was most uncooperative. You heard it through the documents, and you heard it out of Mr. Samuels’ own mouth. It happened from the very beginning; he didn’t cooperate.
On the other hand, you have heard the witnesses describe how Mr. Gulluseio and Mr. Beaumont testified as to what his role was, and the role of the field board.
I think for a whole variety of reasons that this is a matter that — which the court should exercise its discretion and dismiss the complaint.
The Court: Are you moving for a directed verdict -also?
Mr. Rachlin: And moving for a directed verdict.
The Court: The motion to dismiss is denied. The motion for a directed verdict, decision is reserved.
Because the district court had denied the defendant’s prior motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6), the present motion to dismiss was at best moot.
Moreover, the standard for reviewing a Rule 12(b)(6) motion differs from review of a Rule 50(a) motion for a directed verdict. On a motion to dismiss a complaint, the court simply determines its legal viability. See Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980). On such a motion only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken are considered. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992); Cosmas v. Hassett, 886 F.2d 8,13 (2d Cir.1989). A complaint may not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
In contrast, a motion pursuant to Rule 50(a) requires the court to go beyond a cursory examination of the complaint’s viability. The moving party must set forth a statement of the specific grounds it relies on for the relief sought. See Fed.R.Civ.P. 50(b); Meriwether v. Coughlin, 879 F.2d 1037, 1044 (2d Cir.1989) (citing Bonjorno v. Kaiser Aluminum & Chem. Corp., 752 F.2d 802, 813-15 (3d Cir.1984), cert. denied, 477 U.S. 908, 106 S.Ct. 3284, 91 L.Ed.2d 572 (1986)); see also Diercks v. Durham, 959 F.2d 710, 714 (8th Cir.1992) (“specific reason” must be stated for the directed verdict motion); Lifshitz v. Walter Drake & Sons, Inc., 806 F.2d 1426, 1429 (9th Cir.1986). The adequacy of a directed verdict motion is tested by whether counsel observed the specificity requirement of Rule 50(a). Wilson Sporting Goods Co. v. David Geoffrey & Assocs., 904 F.2d 677, 683 (Fed.Cir.), cert. denied, 498 U.S. 992, 111 S.Ct. 537, 112 L.Ed.2d 547 (1990).
Counsel’s motion for a directed verdict in the ease at hand failed to state any grounds for the relief requested. The basis for defendants’ prior motions to dismiss was inconsistent with the specificity standard because the issue raised by the motions concerned the weight of conflicting evidence, rather than its sufficiency. Therefore, the motion for judgment as a matter of law was not sufficiently specific to alert Samuels to alleged deficiencies in his proof. Relief from the specificity requirement is available only to avoid “manifest injustice” to the moving party. Baskin v. Hawley, 807 F.2d 1120, 1129-30 (2d Cir.1986). The only inquiry that remains for our consideration therefore is whether Local 504 suffered such an injustice in this trial.
C. Sufficiency of the Evidence
The standard for determining whether evidence is sufficient to create an issue of fact for a jury is the same in the trial court as it is on appeal. Howes v. Great Lakes Press Corp., 679 F.2d 1023, 1030 (2d Cir.), cert. denied, 459 U.S. 1038, 103 S.Ct. 452, 74 L.Ed.2d 605 (1982). In considering a motion for j.n.o.v. a trial court must view the evidence in a light most favorable to the non-movant and grant that party every reasonable inference that the jury might have drawn in its favor. It “cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury.” Mattivi, 618 F.2d at 167. The district court’s examination of the evidence here did not meet this standard.
Samuels argued that Local 504 inadequately represented him during the arbitral process thereby breaching its duty of fair representation. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 164-65 & n. 14, 103 S.Ct. 2281, 2290-91 & n. 14, 76 L.Ed.2d 476 (1983). Breach of this duty may be found if the union’s conduct was “arbitrary, discriminatory, or in bad faith,” Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967), or when it “seriously undermine[d] the arbitral process.” Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 96 S.Ct. 1048, 1058, 47 L.Ed.2d 231 (1976); See also Barr v. United Parcel Serv., 868 F.2d 36, 43 (2d Cir.), cert. denied, 493 U.S. 975, 110 S.Ct. 499, 107 L.Ed.2d 502 (1989).
The district court found no proof that the action taken by Pan Am violated the collective bargaining agreement and the evidence did not meet either the Vaca or Hines tests. We disagree. The entire trial hinged on the jury’s assessment of the witnesses’ credibility. Samuels presented two witnesses. John Benson was the Senior Shop Steward in 1981 and had been an employee of Pan Am for 25 years. Gerald Collymore was both a union member and, later, a representative of management. His tenure with Pan Am lasted some 30 years. Both were conversant with the provisions of the collective bargaining agreement and testified that Pan Am breached the agreement when Samuels was demoted. Their testimony convinced the jury that the collective bargaining agreement had been violated, despite the fact that the agreement was never entered into evidence.
The union urged that a prior controlling “systems board” determination precluded the Field Board from ruling in Samuels’ favor. Its proof of the “systems board” determination was the testimony of a union representative to the Field Board. No copy of the “systems board” determination was presented during discovery or at trial to corroborate this testimony. Further, the Senior Shop Steward Leonard Beaumont, who represented Samuels during the entire grievance procedure, testified that the union represented Samuels because he was “unjustly treated by Pan American World Airways when he was removed from his crew chief status.” The grievance was, in other words, meritorious.
The jury reasonably could have found the union failed to investigate and present adequately the grievance because it neglected to discuss the ease or possible witnesses with Samuels until the day of the hearing. Moreover, Samuels and his witnesses stated that the union representative merely read an opening statement and asked Samuels one or two questions that were completely unrelated to the substance of the grievance.
Samuels was entitled to fair representation by his union before the Field Board. This means an honest, thorough effort to present his claims throughout the arbitral process in a manner best calculated to secure his rights under the collective bargaining agreement. Local 504’s presentation to the Field Board, so the jury could believe, fell far short of this standard. The union’s representation was a cursory one prepared at the last minute and proffered with an obvious lack of conviction in its merit. The district court was not entitled in these circumstances to substitute its judgment for the jury’s determination with respect to the witnesses’ credibility.
When a union ignores or perfunctorily presses a meritorious claim, it is held to have acted arbitrarily. See Young v. United States Postal Serv., 907 F.2d 305, 308 (2d Cir.1990); see also Vaca, 386 U.S. at 191, 87 S.Ct. at 917; Lopez v. McLean Trucking Co., 798 F.2d 611, 613-14 (2d Cir.1986) (union initially refused to represent member and at hearing failed to make arguments or present a case). Samuels made a prima facie case that the union breached its duty of fair representation. No “manifest injustice” to the union occurred because this evidence was sufficient to require the trial court to submit the case to the jury. ' It was not irrational, given the jury’s interpretation of the collective bargaining agreement, for it to conclude that the union’s conduct was arbitrary and undermined the arbitral process. However thin the evidence, it was not such that a reasonable jury could reach only one conclusion.
CONCLUSION
Accordingly, judgment n.o.v. is reversed and the case is remanded to the district court with instructions to vacate that judgment and reinstate the jury verdict.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_appel1_1_3
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
LUCKING et al. v. DELANO, Comptroller of the Currency, et al.
No. 8585.
Circuit Court of Appeals, Sixth Circuit.
Jan. 9, 1941.
William Alfred Lucking, of Detroit, Mich. (Laurence M. Sprague, George E. Leonard, Jr., and Lucking, Van Auken & Sprague, all of Detroit, Mich., on the brief), for appellants.
Frank E. Wood, of Cincinnati, Ohio, and William B. Cudlip, of Detroit, Mich., for appellees.
A. E. Power, of Detroit, Mich. (Carlos J. Jolly, A. E. Power, and R. O. Thomas, all of Detroit, Mich., on the brief), for General Motors Corporation.
Frank E. Wood and Robert S. Marx, both of Cincinnati, Ohio, and Carl Runge and Frank M. Wiseman, both of Detroit, Mich., on the brief for B. C. Schram, Receiver of First Nat. Bank-Detroit and First Nat. Bank-Detroit.
Harry C. Bulkley, William B. Cudlip, T. Donald Wade, Ellis B. Merry, and Bulk-ley, Ledyard, Dickinson & Wright, all of Detroit, Mich., on the brief for National Bank of Detroit.
Before HICKS, ALLEN, and HAMILTON, Circuit Judges.
PER CURIAM.
Appellants filed a class action on behalf of themselves and all general creditors, depositors and stockholders of First National Bank-Detroit, an insolvent national bank, for the purpose of attacking as invalid a sale, made after insolvency, of a portion of the bank’s assets to the National Bank of Detroit, newly organized for that purpose. The District Court granted appellees’ motion to dismiss the complaint on the ground that appellants are without capacity to bring ■or maintain the action.
At the time of filing the complaint, the insolvent bank was in receivership ; therefore any cause of action on behalf of creditors and stockholders would normally be instituted by the receiver. Demand upon the receiver to bring the suit is a prerequisite to the right to maintain the action. Long v. Stites, 6 Cir., 88 F.2d 554.
Rule 23 (b) of Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, in setting forth the prerequisites of a derivative class action, provides: “The complaint shall also set forth with particularity the efforts of the plaintiff to secure from the managing directors or trustees [the receiver in the instant case] and, if necessary, from the shareholders such action as he desires, and the reasons for his failure to obtain such action or the reasons for not making such effort.” Appellants’ effort to comply with this prerequisite consists merely of allegations to the effect that any demand upon the receiver to institute and maintain the causes of action set forth in the complaint “would be entirely useless and futile, under the circumstances.” There is no averment of facts indicating any personal interest on the part of the receiver, and no facts are set forth explaining why the demand would be futile. Appellants further allege that appellees “never have intended and do not now intend .to, and will not in the future, commence and prosecute any action to redress and rectify said wrongs,” and pray that the complaint be treated as a formal demand and request upon the receiver. It appears, therefore, that no demand was made. Obviously the filing of the complaint cannot be regarded as a demand to sue, for by starting the action appellants have usurped the field. A bare allegation of the futility of such a demand is not sufficient without allegations of fact showing how and why the demand would be futile. Appellants, in bringing a class action, must exhaust every remedy within the corporation before suing on causes of action which in the first instance should be asserted by the receiver. Long v. Stites, supra; Wales v. Jacobs, 6 Cir., 104 F.2d 264. Since the appellants have not done this, they are without capacity to maintain the action.
The order is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Esteban LOPEZ, Plaintiff-Appellant, v. A/S D/S SVENDBORG and D/S of 1912 A/S, Defendants-Appellees.
No. 899, Docket 78-7046.
United States Court of Appeals, Second Circuit.
Argued May 25, 1978.
Decided July 24, 1978.
Morris Cizner, New York City (Zimmerman &.Zimmerman, New York City, of counsel), for plaintiff-appellant.
James M. Hazen, New York City (William P. Kain, Jr., Haight, Gardner, Poor & Havens, New York City), for defendants appellees.
Before OAKES, Circuit Judge, and MEHRTENS and BLUMENFELD, District Judges.
Senior United States District Judge for the Southern District of Florida, sitting by designation.
Senior United States District Judge for the District of Connecticut, sitting by designation.
BLUMENFELD, District Judge:
This is another case which calls for the application of the 1972 Amendments to the Longshoremen’s and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-950. The plaintiff is a longshoreman who was accidentally injured while at work discharging cargo in the bottom of a hold on the M/S TREIN MAERSK, a vessel owned by the defendants A/S D/S Svend-borg and D/S of 1912 A/S. He brought an action in negligence against the shipowner which was tried for two days before Judge Richard Owen and a jury. After the plaintiff rested, the trial judge granted the defendants’ “motion to dismiss” for failure to prove a prima facie case of liability against the defendants. The jury was discharged without reaching a verdict. No findings were made as called for by Rule 41(b), Fed.R.Civ.P. The parties have treated this procedural posture of the case as if the court had granted a defendant’s motion for a directed verdict under Rule 50(a). Since this was a trial to a jury, we are of the view that it is appropriate to consider the case on that basis.
At issue on this appeal is whether there was evidence of negligence by the defendant shipowner “of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions....” Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969). See also Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737, 742-43 (2d Cir. 1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1429, 47 L.Ed.2d 360 (1976). In making that assessment we “must view the evidence and all inferences most favorably to the party against whom the motion is made,” O’Connor v. Pennsylvania R.R. Co., 308 F.2d 911, 914 (2d Cir. 1962). “The non-moving party is given the benefit of all reasonable inferences from the evidence, and evidence unfavorable to it may be considered only if that evidence stands uncon-tradicted and unimpeached.” Bigelow v. Agway, Inc., 506 F.2d 551, 554 (2d Cir. 1974).
I.
There was evidence from which the jury could have found the following facts: the plaintiff, a longshoreman employed by Universal Terminal and Stevedoring Co. as a hold-man, was discharging cargo from the square of the lower hold of Hatch No. 4 of the defendants’ vessel on February 28,1973, when he sustained an accidental injury to his back.
Lopez and the longshore gang of which he was a member had boarded the ship at 8:00 a. m. and were directed to begin at No. 4 hold, from which the hatch cover had already been removed. Loose cartons on top of the stow, held in place by the coam-ing, were quickly removed. The cargo below those cartons had been palletized. Even though the cargo may have been properly stowed before making a long voyage to New York from the Orient, it had shifted, apparently because of heavy seas. Not only had it shifted, but the cargo was in a considerably damaged condition. Packages had been damaged and kegs of bolts had broken open. Loose bolts were heavily scattered throughout the remainder of the cargo. Some bolts had sifted down as far as the floor of the hold through spaces created when the cargo shifted. The loose bolts scattered about made the hold a dangerous place for the longshoremen engaged in removing the cargo.
The condition of the stow in hold No. 4 was called to the attention of an officer of the ship and the stevedore’s foreman by the hatch boss. Both looked down into the hold and observed it. The hatch boss asked, “What are you going to do with this mess?” In the presence of the ship’s officer, he was told, “Keep working, the cargo got to come out of the ship, tell your men to be careful; keep working.” Later that morning, after most of the cargo in the square of hold No. 4 had been removed, the plaintiff and a coworker were lifting a case from the floor of the square to a pallet from which it had fallen, when the plaintiff stepped on a loose bolt which caused him to slip and subject the muscles of his back to a sudden and unexpected strain, resulting in the injuries for which he sued.
II.
The reasons Judge Owen gave for his decision to grant the defendants’ motion to dismiss the complaint may be extracted from the statements he made during colloquy with counsel. More than one reason was given.
(1) First he considered the conduct of the plaintiff. He focused his attention upon the duty of the plaintiff with respect to the risk of injury.
“It seems to me absolutely clear on this record, without argument, that there is no jury question here. Longshoremen, since time immemorial have had to work under circumstances where there is litter, there is debris, there are turnbuckles, there are bales of wire, there are pieces of dunnage broken and unbroken, lying about areas in which they are working. And they are expected to cope with this kind of thing lying around the areas in which they are working.” Tr. 226.
(2) Second, he considered the conduct of the defendants. Proof of the risk of injury to the plaintiff and of how it had been created did not pose any problem. That was evident from his application of what he conceived to be the law to the facts. Quoting from Ruffino v. Scindia Steam Navigation Co., 559 F.2d 861, 862 (2d Cir. 1977), he said,
“if you go with this case on the Ruffino test,... the law there is, ‘Before liability can attach for [an] independently created danger,’ which is here arguably heavy seas, ‘the owner must have knowledge of its existence and [the] opportunity to alleviate it.’ There is no question on this record the jury can find the owner knew of its existence.” Tr. 227.
He continued:
“I just don’t see how there was an opportunity here on [s/c] the owner of the vessel to alleviate this condition, even assuming that you find it to be an independently created danger..
“.. It is certainly reasonable for the vessel to assume that under these circumstances, experienced longshoremen would be able to avoid stepping on a bolt and taking a spill.” Tr. 227-28.
By this juxtaposition of comments on the duty of the shipowner and the duty upon the plaintiff it appears that the Judge may have been adopting the harsh rule that contributory negligence is a complete bar to recovery. In admiralty contributory negligence may reduce, but does not bar, recovery for personal injuries. Under the admiralty rule the plaintiff’s recovery is reduced in proportion to his own fault. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-09, 74 S.Ct. 202, 98 L.Ed. 143 (1953). By its adoption of the 1972 Amendments to LHWCA, Congress intended that comparative negligence would apply to longshoremen’s actions, and that assumption of risk would not. H.R.Rep.No.92-1441, 92d Cong., 2d Sess., reprinted in [1972] U.S.Code Cong. & Admin.News, pp. 4698, 4705. The ruling of the court was in error insofar as it was based on a conclusion that the plaintiff was barred from recovery because he was guilty of contributory negligence or had assumed the risk of his injuries. Whether, and to what extent, any contributory negligence of the plaintiff should reduce his damages must be left to the jury for its determination.
Having considered whether the plaintiff is entitled to be compensated, we turn next to the question of whether, in view of the fact that the shipowner knew of the dangerous conditions in the hold which existed when it was turned over to the stevedore, the shipowner ought to pay. There was evidence from which the jury could conclude that the defendant was negligent.
III.
In defining the parameters of the case before us we heed the opening phrase of Judge Friendly’s dissenting opinion in Can-izzo v. Farrell Lines, Inc., 579 F.2d 682 at 687 (2d Cir. 1978):
“Courts must be exceedingly careful in defining the contours of the longshoreman’s action for negligence against the ship, which was preserved by § 905(b) of the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act...
The purposes of Congress in enacting the 1972 Amendments to LHWCA have been so perceptively enlarged upon in other cases that additional broad analysis here would be redundant.
Two principles are settled. In eliminating the absolute liability of a shipowner for unseaworthiness, the 1972 Amendments to LHWCA, 33 U.S.C. §§ 901-950, Congress intended that a vessel would be liable only for its own failure to use reasonable care, Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837, 840 (2d Cir. 1977), which would be determined in accordance with land-based principles of negligence, Napoli v. Hellenic Lines, Ltd., 536 F.2d 505, 507 (2d Cir. 1976). See Ruffino v. Scindia Steam Navigation Co., supra, 559 F.2d at 862.
As the trial judge correctly decided, there was evidence that the defendant knew of the risk of injury from the loose bolts to anyone working in hold No. 4. He was, nevertheless, persuaded to rule that no jury could properly find that the defendant was negligent. His recorded remarks disclose that he relied expressly upon a dictum in Ruffino v. Scindia Steam Navigation Co., supra, 559 F.2d at 862: “Before liability can attach for [an] independently created danger, the owner must have knowledge of its existence and [the] opportunity to alleviate it.” A fuller reading of Ruffino indicates that the “opportunity to alleviate” phrase is merely a timeliness gloss on the requirement of notice of the dangerous condition, meaning only that the defendant must have notice of it in sufficient time to take action to remedy it. In other words, “The mere existence of a defect or danger is not enough to establish liability, unless it is shown to be of such a character or of such duration that the jury may reasonably con-elude that due care would have discovered it.” W. Prosser, Law of Torts § 61 at 393 (4th ed. 1971). The cases cited in Ruffino do not purport to give any content to “opportunity to alleviate” other than knowledge of the risk in time enough to take protective measures against the risk of injury.
We follow Napoli v. Hellenic Lines, Ltd., supra, which held that where there was sufficient evidence of knowledge by the shipowner of “obvious dangers which it should reasonably anticipate that the longshoremen would be unable to avoid,” the case should have gone to the jury under § 343A of the Restatement (Second) of Torts. 536 F.2d at 509. In pertinent part, § 343A(l) states:
“A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Restatement (Second) of Torts § 848A(1) (1965).
This deviation from the general rule that reasonable care requires nothing more than a warning of the danger is a recognition that there are cases
“where the occupier, as a reasonable man, should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required.. In all such cases the jury may be permitted to find that obviousness, warning or even knowledge is not enough.” W. Prosser, supra, § 61 at 394-95, quoted with approval in Anuszewski v. Dynamic Mariners Corp. Panama, 391 F.Supp. 1143, 1147 (D.Md.1975), aff’d, 540 F.2d 757 (4th Cir. 1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977).
Here, as in Lubrano v. Royal Netherlands Steamship Co., 572 F.2d 364 (2d that a vessel would be liable only for its own failurd Cir. 1978), there was evidence of direct knowledge of the unsafe condition before the injury occurred and that the ship’s officer knew that nothing was going to be done to alleviate it. What was said there is squarely applicable, at 367: “But if there is again evidence that a ship’s officer, after being notified of the open and obvious danger of insufficient dunnage for a slippery cargo, had the men keep working or joined in the stevedore’s decision to do so, then there would be a jury question.” (Emphasis added) In this case the evidence “was enough to allow a jury to conclude that the ship’s officer approved and joined in the direction that the men keep working..” Id., at 367. The plaintiff was not instructed as to what he should do about the “mess” but was apparently allowed to use his own judgment. The circumstance that the risk of harm was not recognized until the removal of the cargo was in progress is no basis for failure to take precautionary methods against it after the dangerous condition became known. Indeed, the Restatement (Second) of Torts § 413 requires the employer of an independent contractor to use reasonable care to provide for precautions where the work to be done should be recognized “as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken..” Comment d. states:
“Although the employer at the time he lets the contract has no reason to anticipate that conditions will arise which require special precautions to be taken, if in fact such conditions do arise and he knows or should know of them, he is then required to act in the manner required by the rule stated in this Section.”
The fact that differences frequently arise as to whose duty it is to take precautionary measures in cargo removal operations indicates the applicability of § 413, for as Comment b. explains:
“This Section is concerned with special risks, peculiar to the work to be done, and arising out of its character, or out of the place where it is to be done, „ against which a reasonable man would recognize the necessity of taking special precautions. The situation is one in which a risk is created which is not a normal, routine matter of customary human activity, such as driving an automobile, but is rather a special danger to those in the vicinity, arising out of the particular situation created, and calling for special precautions.”
Under the foregoing principles the jury could have found that the defendant was negligent toward the plaintiff.
IV.
The fact that the stevedore shared in the decision to continue working did not exonerate the shipowner, and there is no reason, as a matter of fundamental tort law, why it should not be held liable in damages for its own negligence. It is well established tort law that “an actor whose negligence has set a dangerous force in motion is not saved from liability for harm it has caused to innocent persons solely because another has negligently failed to take action that would have avoided this.” Petition of Kinsman Transit Co., 338 F.2d 708, 719 (2d Cir. 1964), cert. denied sub nom. Continental Grain Co. v. City of Buffalo, 380 U.S. 944, 85 S.Ct. 1026, 13 L.Ed.2d 963 (1965). Thus, even if the stevedore was negligent in failing to eliminate the dangerous condition, that would not be a defense for the shipowner. Moreover, in Dodge v. Mitsui Shintaku Ginko K.K. Tokyo, 528 F.2d 669, 674 (9th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976), it was expressly held “that a longshoreman who has been injured by the concurring negligence of his employer stevedore and the vessel owner can recover the total of his damages from the vessel owner.” We have also rejected a contention by a shipowner that an injured longshoreman could not recover damages against it unless he proved that the shipowner was solely responsible for his injury, stating:
“First, the draftsmen of section 5(b), 33 U.S.C. § 905(b), could easily have inserted the word ‘sole’ so that the clause would have read ‘caused by the “sole” negligence of the vessel.’ Nothing has been called to our attention to indicate such intention. Second, Congress would hardly have given the ship so little incentive to avoid being negligent toward its longshoremen invitees. Third, the scheme of the Act is to provide workmen’s compensation for a longshoreman from his own employer, but with a right to sue the ship for negligence. We cannot agree that some negligence by the employer is enough to cut off the injured longshoreman’s protected right to sue the ship for its own negligence. Of course, if the negligence was solely that of the stevedore, the ship would have been found neither negligent nor liable.” Landon v. Lief Hoegh & Co., 521 F.2d 756, 763 (2d Cir. 1975) (footnote omitted), cert. denied sub nom. A/S Arcadia v. Gulf Insurance Co., 423 U.S. 1053, 96 S.Ct. 783, 46 L.Ed.2d 642 (1976).
After our decision in Landon, the court in Dodge, supra, 528 F.2d at 672, in taking the view we expressed, quoted with approval from Santino v. Liberian Distance Transports, Inc., 405 F.Supp. 34, 35 (W.D.Wash. 1975):
“ ‘On its face it seems inequitable for a shipowner to be liable to an injured longshoreman for all of the latter’s damages if the negligence of the shipowner was not the sole proximate cause of the injuries but rather concurred with the negligence of the stevedore employer. Particularly would this be true if the fault of the stevedore employer were much greater than that of the shipowner. Nevertheless, since the Longshoremen’s and Harbor Workers’ Act is a creature of Congress, it would in this Court’s opinion be better for Congress to effect the elimination of any inequity than to have the various District Courts seek to remove that inequity by means which would unavoidably vary from district to district.
“ ‘Permitting a shipowner to plead the negligence of the stevedore as an affirmative defense would not eliminate inequity. It would simply shift the inequity from shipowner to injured longshoreman. He would be restricted in his recovery as against the shipowner without acquiring any offsetting rights under the Act as against his stevedore employer.’ (emphasis added).”
And, more recently, the Fifth Circuit adhered to the rationale of Dodge and Landon in upholding a judgment for a longshoreman against a vessel owner for negligence in a terse and vigorous opinion by Judge Rubin, who considered cases from other circuits with contrary holdings. Samuel v. Empresa Lineas Maritimas Argentinas, 573 F.2d 884 (5th Cir. 1978). The rule that the shipowner cannot use the negligence of the stevedore as a defense to a negligence action against it brought by the injured longshoreman, is strengthened by its corollary that the shipowner cannot assert the stevedore’s negligence to defeat the stevedore’s right to reimbursement of compensation payments out of any damages the longshoreman may recover. In Pope & Talbot, Inc. v. Hawn, supra, the Court held that even though the stevedore was concurrently negligent, it could still recover its compensation lien in full, noting, 346 U.S. at 412, 74 S.Ct. at 206, that “reduction of [the shipowner’s] liability at the expense of [the stevedore] would be the substantial equivalent of contribution which we declined to require in the Halcyon case.” We have recently held that Pope & Talbot is still good law. Landon, supra, 521 F.2d at 760.
V.
Despite the existence of evidence from which the jury could have found that the condition which constituted the risk of injury to the plaintiff was attributable to the ship alone, the defendant contends that it should not be held liable for his injuries. It argues that it was reasonable as a matter of law for the shipowner to do nothing to remedy the condition because it could rely upon the stevedore to take necessary precautionary measures. A vigorous dissent in Lubrano, supra, contended for that view on the ground that the stevedore was an independent contractor to whom control over the premises had been relinquished. Support for that view is also found in Judge Friendly’s dissenting opinion in Canizzo, supra, at 688 of 579 F.2d, where he says:
“In dealing with § 905(b), courts would do better to consider the policies that actuated Congress in adopting the 1972 Amendments. In my view Congress did not mean to subject the ship to liability for every dangerous condition known or knowable to it when it had a right to assume that this would be remedied by the employer, as § 941(a) requires.”
The recent decision in Cox v. Flota Mer-cante Grancolombiana, S.A., 577 F.2d 798, (2d Cir. 1978), reversed a jury verdict in favor of Cox, a longshoreman, against the ship on the ground that it was the stevedore’s duty alone as an independent contractor to remedy unsafe conditions. The Cox decision was handed down “in the face of known disagreement by a majority of [the] panel” in Canizzo, supra, which upheld a jury verdict for a longshoreman against a ship and included a comment on Cox’s contrary view.
This case also will fall within what seems to be rapidly becoming an overly complex and unpredictable body of law. Because of the different views as to whether an employer’s failure to remedy a dangerous condition is a defense to a suit by the longshoreman against a ship for its own negligence, we feel that it may not be amiss to explain why we do not agree that the failure of the stevedore to remove or provide protection against the conditions created by the shipowner relieves the latter of liability for injuries to a longshoreman caused by those conditions.
To avoid the risk of being misunderstood, we do not say that a shipowner should be held vicariously liable for the tortious acts of an independent contractor, or his servants. But the shield against vicarious liability for the negligence of an independent contractor does not also shield the shipowner from liability for its own negligence. Although § 905(b) may be construed to “demonstrate that.. the major responsibility for the proper and safe conduct of the work was to be borne by the stevedore,” Brown v. Ivarans Rederi A/S, 545 F.2d 854, 860 (3d Cir. 1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977); Ramirez v. Toko Kaiun K. K., 385 F.Supp. 644, 653 (N.D.Cal.1974), or that “the primary duty to provide a safe place to work is on the stevedore,” Lucas v. “Brinknes” Schiffahrts Ges., 379 F.Supp. 759, 768 (E.D.Pa.1974), neither “major responsibility” nor “primary duty” may be read as “sole responsibility.” See Landon, supra, 521 F.2d at 762-63.
In rejecting the argument of a shipowner that it should not be held liable unless its negligence was the sole cause of the damages, we noted in Landon, id. at 763: “Congress would hardly have given the ship so little incentive to avoid being negligent toward its longshoremen invitees.” The basis for an assumption that prevention can be maximized by shifting the liability to one already liable, and only for a lesser amount, is doubtful.
When Congress relieved the shipowner of the no-fault concept of seaworthiness, it preserved the liability for negligence, explaining, H.R.Rep.No.92-1441, supra, at 4703, “This would place vessels in the same position, insofar as third party liability is concerned, as land-based third parties in non-maritime pursuits.” And, the House Report also noted, id. at 4704, “nothing in this bill is intended to derogate from the vessel’s responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition.”
Furthermore, Congress also expressly refused to treat vessels as joint employers of longshoremen:
“This would result in restricting the vessel’s liability in all cases to compensation and other benefits payable under the Act. The Committee believes that where a longshoreman or other worker covered under this Act is injured through the fault of the vessel, the vessel should be liable for damages as a third party, just as land-based third parties in non-maritime pursuits are liable for damages when, through their fault, a worker is injured.” Id. at 4702.
It could not be clearer that Congress intended shipowners to be liable for their own negligence.
Defendant contends that it cannot be held liable for negligence toward plaintiff because it was entitled to rely on the stevedore’s primary duty to alleviate any condition dangerous to its employees. One difficulty with this argument is that the right to rely is based on an agreement between the shipowner and the stevedore. Rules regulating the conduct of persons toward others must be distinguished from agreements governing organization of the work.
The particular ingredient of the independent contractor relationship from which the defendant seeks to forge a shield against liability for its own negligence is said to be the independent contractor’s control over the work and the place where the work is done. It is self-evident that if the shipowner relinquishes control of an unsafe place to work to the sole control of the stevedore, that relinquishment comes about because of an agreement it makes with the stevedore. The parties may be careful in drawing their contract to provide an appearance of independence or control of the area where the work is to be done. But to enable a shipowner to escape liability by entering an agreement with the stevedore would contravene Congress’ intention.
The 1972 amendments did not modify § 905(a) by which Congress had explicitly made the employers absolutely liable for compensation “exclusive and in place of all other liability... to the employee.” See Louviere v. Shell Oil Co., 509 F.2d 278 (5th Cir. 1975), cert. denied sub nom. American Marine Corp. v. Louviere, 423 U.S. 1078, 96 S.Ct. 867, 47 L.Ed.2d 90 (1976). Section 905(b) provides from the other side that in the case of injury to a covered employee, “the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void.” (Emphasis added)
The intent of Congress in outlawing such agreements is spelled out in H.R.Rep.No. 92-1441, supra, at 4704-05:
“Furthermore, unless such hold-harmless, indemnity or contribution agreements are prohibited as a matter of public policy, vessels by their superior economic strength could circumvent and nullify the provisions of Section 5 of the Act [33 U.S.C. § 905] by requiring indemnification from a covered employer for employee injuries.
“Accordingly, the bill expressly prohibits such recovery, whether based on an implied or express warranty. It is the Committee’s intention to prohibit such recovery under any theory including, without limitation, theories based on contract or toriJ!
“Under the proposed amendments the vessel may not by contractual agreement or otherwise require the employer to indemnify it, in whole or in part, for such damages.” (Emphasis added)
In Zapico v. Bucyrus-Erie Co., 579 F.2d 714 at 721 (2d Cir. 1978), Judge Friendly observed that the legislative history “does indicate that § 905 was meant to prevent Ryan indemnity actions by vessels.... ” And he stated, id.: “The shipowners got a quid pro quo for the loss of their indemnity rights.” The quid pro quo was the mitigation of the harsh no-fault doctrine of seaworthiness. See S. S. Seatrain Louisiana v. California Stevedore & Ballast Co., 424 F.Supp. 180, 182-83 (N.D.Cal.1976). Indeed, the House Report states, H.R.Rep. No.92-1441, supra, at 4704: “The Committee also believes that the doctrine of the Ryan case.. is no longer appropriate...
To permit a shipowner to negotiate with the stevedore by “contractual agreement or otherwise” for cargo removal operations so as to relieve it of liability to the longshoreman for damages caused by its own negligence, on the ground that the shipowner had a right to rely on the stevedore to remove the cause, would be to restore the kind of right to indemnity which § 905(b) eliminates. It seems to us that on any fair assessment of the legislative scheme in § 905(b) the implication of a right of exoneration in the shipowner from an employer based on the “independent contractor” relationship would be alien to Congress’ intention. The rule regarding indemnity agreements, while not directly applicable to the question of whether the shipowner can be found negligent, is a crucial part of the legislative scheme. To maintain the integrity of that scheme, we should not adopt a rule as to negligence that is so inconsistent with the indemnity prohibition as to undermine a principle which Congress has established as fundamental. As stated in an analogous context in Laird v. Nelms, 406 U.S. 797, 802, 92 S.Ct. 1899, 1902, 32 L.Ed.2d 499 (1972): “To permit [defendant] to proceed on [an independent contractor] theory here would be to judicially admit at the back door that which has been legislatively turned away at the front door. We do not believe the Act permits such a result.” There is no warrant for a contention that a right of indemnity arising out of the relationship between an employer and its independent contractor is intrinsically immutable. Congress has excised that incident of the relationship “as a matter of public policy” in cases covered by § 905(b).
As an abstract matter an argument can be made that after turning over a job of work to be done aboard its ship to a stevedore a shipowner ought not to be liable for damages suffered by a longshoreman for pre-existing dangerous conditions it has created, or negligently failed to correct. The argument advanced in some of the cases, as noted in the dissenting opinion in Canizzo, supra, is that when dangerous working conditions arise the shipowner may justifiably rely on the independent contractors to “take care of the problem as they were bound to do.” Id., at 690. Even if it might be said that there can be such a duty to the shipowner, despite an express redaction in § 905(b) of any remedy for its breach, that would not relieve the ship of its own duty to exercise reasonable care. But a provision in a law which has been enacted by Congress must be distinguished from one which might have been but was not. Our concern is not to assess the fairness of a legislative scheme. Even if we were permitted to do so, we could not say that there is no rational, fair basis for holding a shipowner liable for its own negligence, instead of singling out the stevedore who did not create the risk, to be solely responsible.
Whether due care has been exercised in any negligence case depends on what care has been taken — not on who has been hired to take it. Since the work was permitted to go forward under conditions of danger known both to the ship and to the stevedore, the rule of § 343A(1) should have been applied by the jury to the facts of the case as they might find them to be in order to determine whether the defendant is liable for damages. “Should the jury be persuaded... and find that the shipowner was negligent in not correcting the open and obvious danger but that the plaintiff was contributorily negligent, it would apply the doctrine of comparative negligence to reduce the shipowner’s liability proportionately.” Napoli, supra, 536 F.2d at 509.
The ruling of the court below took from the jury both the issue of the defendant’s responsibility for the unsafe condition of the place where the plaintiff was required to work, and the issue of to what degree, if any, his own conduct in the face of the known danger should reduce his recovery. As we have indicated above, both issues should have been left to the jury. Accordingly, we reverse and remand for further proceedings not inconsistent herewith.
. [T]he Committee intends that the admiralty concept of comparative negligence, rather than the common law rule as to contributory negligence, shall apply in cases where the injured employee’s own negligence may have contributed to causing the injury. Also, the Committee intends that the admiralty rule which precludes the defense of ‘assumption of risk’ in an action by an injured employee shall also be applicable.”
. E. g., Ruffino v. Scindia Steam Navigation Co., 559 F.2d 861 (2d Cir. 1977); Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837 (2d Cir. 1977).
. Immediately after quoting from Ruffino he continued:
“There is no question on this record the jury can find the owner knew of its existence. “But where I come up against a wall is the opportunity to alleviate it. I don’t see what the shipowner could have been expected to do here in terms of curing this, because until you get down to the bottom of the cargo, you don’t know whether you are going to find some bolts lying there, and first you’ve got to get the cargo out, and then sweep it up.
“I just don’t see how there was an opportunity here on [sic ] the owner of the vessel to alleviate this condition....” Tr. 227.
. Restatement (Second) of Torts, § 413 reads: “One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer
(a) fails to provide in the contract that the contractor shall take such precautions, or
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
KRAUSS v. UNITED STATES (two cases).
Nos. 10852, 10853.
Circuit Court of Appeals, Fifth Circuit.
Feb. 17, 1944.
Irving R. Saal, of New Orleans, La., for appellant.
Warren F. Wattles and Sewall Key, Sp. Assts. to Atty. Gen., Samuel O. Clark, Jr., Asst. Atty. Gen., and Henry C. Vosbein, Asst. U. S. Atty., of New Orleans, La., for appellee.
Before HUTCHESON, HOLMES, and McCORD, ¡Circuit Judges.
HUTCHESON, Circuit Judge.
Claiming overpayment of gift taxes in respect of gifts in 1936 and 1937 of shares of Class A stock in the Krauss Company, Ltd., appellants sued for their refund. The refunds denied, appellants are here putting forward the same contention they made below, that the value for gift tax purposes of the shares donated was their value in the hands of the donors; that that value was fixed by the charter at sixty percent of the book value; and that the commissioner, in ascribing more than that value to the shares, and the court, in denying the refunds, erred.
In an opinion, canvassing and rejecting appellants’ claims the District Judge has fully set down the undisputed facts as they were stipulated by the parties, and we content ourselves with referring to that opinion for their detail.
Here, as they did below, appellants insist that Lomb v. Sugden, 2 Cir., 82 F.2d 166, and the cases it cites, are controlling. The United States denies this. It concedes that there are general expressions !n that case which would support appellants’ view that the provision relied on here, that if a stockholder decides to sell, he must first give a sixty day privilege to the other stockholders to buy at the price fixed, had the effect claimed for it to limit the value to that price. It points out though that this was not the real holding of that case, that its holding was that the value of stock to the estate of a deceased stockholder under a contract provision conferring an absolute option or right on the other stockholders for a time fixed to buy at a price named, fixed the value to the estate at that price. Helvering v. Salvage, 297 U.S. 106, 56 S.Ct. 375, 80 L.Ed. 511, cited in support, is to the same effect. Pointing out that the provision relied on here imposes no compulsion to sell, grants no absolute option to buy, but only a conditional one, the condition being that if a stockholder wants to sell, he must first give to the other stockholders a right for sixty days to buy at a fixed price, the United States insists that a restrictive provision of this kind, while a factor in arriving at the value, is not its sole determinant. We agree, and agreeing, we affirm the judgment without inquiring whether the value fixed by the commissioner was or was not correct. For in a suit for refund, a taxpayer has the burden not merely of showing that the commissioner’s assessment was erroneous, but that the value the taxpayer took as the basis of his claim for refund was right, and he was, therefore, entitled to the amount for which he sues. Helvering v. Taylor, 293 U.S. 507, at page 514, 55 S.Ct. 287, 79 L.Ed. 623. The judgment is affirmed.
51 F.Supp. 388.
As material here, they may be thus briefed: Frederick Krauss, in 1936, gave his niece 470, and his nephew 410, shares of Class A stock, and in 1937, gave each of them 245 more of such shares. Alfred Krauss in 1936 gave his nephew and niece each 410 shares of Class A stock and in 1937 gave each 50 more of such shares. Each calculated and returned the gift taxes involved on the basis of 60 percent of the actual book value of the shares as shown by the last preceding monthly trial balance of the corporation. They based this valuation upon the claim, that a provision in Art. 12 of the Charter, in effect that before a sale could be made to an outsider the other stockholders should have a sixty day preference right to purchase the shares at 60 per cent of the book value, fixed that value as the value for gift tax purposes. The commissioner rejected this theory of valuation and, upon considerations not necessary to detail here, fixed full book value as the value for gift tax purposes.
“We there determined that an option contract, giving stockholders a right to purchase at a specified price, upon the owner’s sale or death, limited the value of the stock to the low price at which he or his executors were obliged to sell it.” Lomb v. Sugden, 2 Cir., 82 F.2d at page 167.
In Fostoria Glass Co. v. Yoke, D.C., 45 F.Supp. 962, at page 965 this distinction is carefully pointed out.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_counsel
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant had inadequate counsel?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
STATE STREET TRUST COMPANY et al., Executors, Appellants, v. UNITED STATES of America, Appellee.
No. 4097.
Circuit Court of Appeals, First Circuit.
Dec. 13, 1945.
J. A. Boyer, of Boston, Mass. (Nichols & Boyer, of Boston, Mass., of counsel), for appellants.
T. Carroll Sizer, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., of counsel), for appellee.
Before ALBERT LEE STEPHENS, MAHONEY, and WOODBURY, Circuit Judges.
PER CURIAM.
The judgment is affirmed on the general reasoning of the court below, 59 F.Supp. 467.
Question: Did the court rule that the defendant had inadequate counsel?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_direct1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, v. KREBS ENGINEERS, Defendant-Appellee, Cross-Appellant. and Midwesco, Inc. and United States Fidelity & Guarantee Company, Defendants-Appellants, Cross-Appellees.
Nos. 87-1236, 87-1306.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 30, 1987.
Decided Oct. 5, 1988.
Rehearing and Rehearing In Banc Denied Nov. 30,1988.
Aram A. Hartunian, Hartunian, Futter-man & Howard, Chicago, Ill., for defendants-appellants, cross-appellees.
C. Lee Cook, Jr., Chadwell & Kayser, Ltd., Chicago, III., for defendant-appellee, cross-appellant.
Before CUMMINGS, WOOD, Jr. and MANION, Circuit Judges.
MANION, Circuit Judge.
In the early 1970’s, two Wisconsin towns hired Scotty Smith Construction Company (“Scotty”) to build an incinerator to burn their garbage. That action spawned a series of events that eventually resulted in a lawsuit that now has been in the federal courts for almost ten years. This is the suit’s second appearance before this court. See Fidelity & Deposit Co. of Maryland v. Sheboygan Falls, 713 F.2d 1261 (7th Cir.1983). Unfortunately, we are unable to put the suit to rest.
I.
When the towns hired Scotty to build the incinerator, they required Scotty to post a performance bond for $710,000, the amount of the contract price. Fidelity and Deposit Company of Maryland (“Fidelity”) was the bond surety. To acquire the bond, Scotty agreed to indemnify Fidelity if Fidelity had to pay on the bond. The indemnity agreement provided, among other things, that Scotty would pay any litigation expenses, including attorneys’ fees, that Fidelity incurred in paying the bond.
Scotty subcontracted with Midwesco, Inc. to build the incinerator’s pollution-control system. Midwesco had provided Scotty with a bond issued by United States Fidelity and Guarantee Company (“USF & G”). Under that bond, Midwesco agreed to indemnify Scotty for any costs Scotty incurred (including attorneys’ fees) that might arise from Midwesco’s performance of the subcontract.
Midwesco obtained the scrubber for the pollution-control system from Krebs Engineers and installed it in the system. Unfortunately, the scrubber did not scrub as well as it was supposed to. Emissions from the incinerator exceeded the maximum levels allowed by Wisconsin law, and also exceeded the limits set by the contract between Midwesco and Krebs. Midwesco, Krebs, and Scotty made efforts to get the scrubber to perform up to snuff, but to no avail. The towns had paid all but about $38,000 on the contract with Scotty, and were stuck with an incinerator they could not use.
Understandably perturbed by this turn of events, the towns asserted that the scrubber’s failure was a breach of contract by Scotty, and notified Fidelity that it must pay under the bond. A few months after the towns notified Fidelity of their claim, Fidelity filed a declaratory judgment action against the towns, Scotty, Midwesco, Krebs, and several other defendants. The complaint sought a declaration that Scotty had not breached the contract and that Fidelity was thus not liable to the towns on the bond. Alternatively, the complaint sought a declaration that if Fidelity was liable on the bond, Scotty was liable to Fidelity under the indemnity agreement.
Soon after Fidelity filed its complaint, other claims, cross-claims, and counterclaims began to fly amongst a number of parties. We mention only those claims relevant here. The towns sued Scotty, Mid-wesco, and Krebs for breach of contract. Scotty sued the towns for the $38,000 contract balance, and Midwesco, USF & G, and Krebs for indemnity. Midwesco sued the towns and Scotty for the amounts they owed Midwesco for its work, and also sued Krebs for breach of contract, negligence, and products liability. Finally, Krebs sued Midwesco for the balance due on their contract.
After a trip to this court, where we reversed the district court’s grant of summary judgment against the towns, see 713 F.2d at 1268-72, the district court set the case for a jury trial. During the first day of the trial, before any evidence was taken, the parties settled all claims involving the towns. This left Scotty, Midwesco, and Krebs—mainly Midwesco and Krebs—to fight among themselves to determine who would ultimately bear the costs caused by the scrubber’s failure. Those issues were tried to the court.
After trial, the district court held that Midwesco had to reimburse Scotty for attorneys’ fees that Fidelity had incurred and that Scotty had reimbursed to Fidelity under Scotty’s and Fidelity’s indemnification agreement. The district court also held, however, that Krebs had breached its contract with Midwesco, as well as certain implied and express warranties. Applying Wisconsin law, the court held that Midwes-co was entitled to consequential damages from Krebs, despite a consequential damages disclaimer in the contract. The court awarded Midwesco: 1) the out-of-pocket expenses it incurred in attempting to solve the scrubber problem; 2) Fidelity’s attorneys’ fees that Scotty had reimbursed to Fidelity and that Midwesco had reimbursed to Scotty; and 3) thirty-three percent of Midwesco’s own attorneys’ fees. Both Midwesco and Krebs have appealed.
II.
In its cross-appeal, Krebs challenges the damages the district court awarded to Mid-wesco. Krebs first contends that the district court erred by awarding Midwesco any consequential damages at all. Before deciding that issue, however, we must determine what state’s law to apply. The district court applied Wisconsin law; on appeal Krebs argues that California law applies because the contract between it and Midwesco specifically provided that California law would govern the contract.
Wisconsin courts have recognized the general rule that parties to a contract may select the law governing their contract. See Bush v. National School Studios, Inc., 139 Wis.2d 635, 407 N.W.2d 883, 886 (Wis.1987) (citing cases); see generally Restatement (Second) of Conflicts of Laws §§ 186 & 187 (1971); E. Scoles & P. Hay, Conflict of Laws § 18.1 (1984). But Krebs has waived any dependence on California law. In arguing the consequential damages issue in the district court, Mid-wesco relied solely on Wisconsin law. Krebs’ briefs below did not assert that California law controlled or cite any California cases. The only time Krebs mentioned California law was in noting that Wisconsin and California law were substantially the same, so that the district court’s choice between Wisconsin or California law was “immaterial.” Krebs cannot blame the district court for not digging up the California law it failed to cite, particularly after telling the court that the choice of law was “immaterial.” It is not the trial judge’s job to do the parties’ work for them. See International Administrators v. Life Ins. Co., 753 F.2d 1373, 1377 n. 4 (7th Cir.1985). Krebs took the risk that in applying the Wisconsin law the parties did cite, the district court would reach a different result than it might have had it applied California law. For better or worse, Krebs must live with the district court’s choice of Wisconsin law. Cf. Muslin v. Frelinghuysen Livestock Managers, 777 F.2d 1230, 1231 n. 1 (7th Cir.1985).
The contract between Krebs and Midwes-co provided that Midwesco’s exclusive remedy for any breach by Krebs was repair or replacement of defective parts. The contract also specifically provided that Krebs would not be liable for any consequential damages. The Uniform Commercial Code, as adopted in Wisconsin, allows parties to limit a buyer’s remedies and exclude consequential damages. Wis.Stat.Ann. § 402.719 (West 1964 & Supp.1987); see Murray v. Holiday Rambler Corp., 83 Wis.2d 406, 265 N.W.2d 513, 517, 519-20 (Wis.1978). But “[wjhere circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in [the UCC].” Wis.Stat. Ann. § 402.719(2). The district court held that since replacing any parts, or even the entire scrubber, could not cure the scrubber problem, the exclusive repair or replace remedy failed of its essential purpose. Therefore, the court disregarded the limitations of remedies in the contract and awarded Midwesco consequential damages.
Krebs does not contest the district court’s finding that the exclusive contract remedy failed of its essential purpose. Krebs does argue, though, that the district court erred by refusing to give effect to the consequential damages disclaimer. According to Krebs, a consequential damages disclaimer should be considered separately from a clause limiting remedies to repair or replacement. Even if the limited remedy fails of its essential purpose, the consequential damages exclusion should remain in effect unless no other effective remedy (for example, incidental damages, Wis.Stat. Ann. § 402.715(1) or difference-in-value damages, Wis.Stat.Ann. § 402.714(2)) remains.
Other courts have given effect to consequential damages disclaimers even when exclusive remedies failed of their essential purposes. E.g., Chatlos Systems v. National Cash Register Corp., 635 F.2d 1081, 1085-86 (3d Cir.1980); S.M. Wilson & Co. v. Smith International Inc., 587 F.2d 1363, 1374-76 (9th Cir.1978). But whatever the merits of Krebs’ argument as an original matter, it is not Wisconsin law. In Murray v. Holiday Rambler Corp., supra, the Wisconsin Supreme Court held:
Where the exclusive limited remedy of the contract fails of its essential purpose... the buyer is entitled to invoke any of the remedies available under the UCC. This includes the right to recover consequential damages under sec. 402.715.
Thus, although an express warranty excludes consequential damages, when the exclusive contractual remedy fails, the buyer may recover consequential damages... as though the limitation had never existed.
265 N.W.2d at 525, 526 (citations omitted).
Krebs argues that Murray is factually distinguishable from this case. The contract between Krebs and Midwesco specifically excluded consequential damages; the contract in Murray contained a clause excluding all remedies except the exclusive contract remedy without specifically mentioning consequential damages. But a clause excluding all remedies does exclude consequential damages. Also, as we have seen, Murray was quite explicit in its holding concerning consequential damages. And in reaching that holding, the Murray court cited with approval a case allowing plaintiffs to recover consequential damages despite a clause excluding all remedies except the exclusive remedy, Ehlers v. Chrysler Motor Corp., 88 S.D. 612, 226 N.W.2d 157 (1975) and cases allowing plaintiffs to recover consequential damages despite clauses specifically excluding consequential damages, e.g., Koehring Co. v. A.P.I., Inc., 369 F.Supp. 882 (E.D.Mich.1974); Adams v. J.I. Case Co., 125 Ill.App.2d 388, 261 N.E.2d 1 (1970). See Murray, 265 N.W.2d at 526; cf. S.M. Wilson & Co., 587 F.2d at 1374 (noting that Adams and Koehring Co. belong to a family of cases supporting the proposition that a limited remedy’s failure “does remove from the contract the bar to the recovery of consequential damages”). Murray’s explicit holding, its reasoning, and the cases it cited lead us to conclude that the Wisconsin courts would find the distinction Krebs argues to be insignificant, and would award consequential damages to Midwesco, if proved.
Krebs also cites Phillips Petroleum Co. v. Bucyrus-Erie Co., 131 Wis.2d 21, 388 N.W.2d 584 (Wis.1986) to support its argument that consequential damages are available when an exclusive remedy fails only if no other effective remedy remains. In Bu-cyrus, the Wisconsin Supreme Court allowed a plaintiff to collect consequential damages when the limited repair and replacement remedy failed. Although Bucy-rus referred to “the underlying philosophy of the Uniform Commercial Code that there be at least a fair quantum of remedy for breach of obligations,” the court emphasized that “[t]he essential purpose of any damage award is to make the injured party whole,” and equated an effective, or “minimum quantum of remedy” with making the injured party whole. Here, the limited remedy failed of its essential purpose; replacing or repairing the scrubber would not have solved the incinerator problem. This failure exposed Midwesco, the innocent party, to liability and litigation expense, and Krebs could make Midwesco whole only by compensating it for that liability and expense. Allowing Midwesco to recover consequential damages is consistent with Wisconsin law, as stated in Murray and Bucy-rus.
III.
Aside from contending that Midwesco was not entitled to any consequential damages, Krebs does not challenge the district court’s decision to award Midwesco damages for the expenses it incurred in attempting to solve the scrubber problem. Krebs does, however, challenge the district court’s decision to award certain attorneys’ fees to Midwesco.
Wisconsin generally follows the “American Rule” regarding attorneys’ fees and litigation expenses. Absent a specific statutory or contractual provision allowing recovery, a litigant may not recover from an opponent the attorneys’ fees and expenses the litigant incurred in litigating its claim against the opponent. Murray, 265 N.W. 2d at 527. But where a defendant’s breach of contract causes the non-breaching party to become involved in litigation with third parties, a different situation arises. In that case, the non-breaching party may recover as consequential damages the amount of any judgment, along with his reasonable attorneys’ fees and litigation expenses, incurred in the third-party litigation. City of Cedarburg L. & W. Com’n v. Glens Falls Ins. Co., 42 Wis.2d 120, 166 N.W.2d 165, 167-68 (Wis.1969) (citing Restatement (First) of Contracts § 334, at 531 (1932), and 5 Corbin on Contracts § 1037, at 225-26 (1965)); see also Murray, 265 N.W.2d at 527 n. 11 and 528 n. 12; Restatement (Second) of Contracts § 351, comment c (1981); J. White and R. Summers, Uniform Commercial Code § 10-4, at 392 (1980).
Cedarburg and Murray place two general limits on a plaintiff’s recovering its expenses from third-party litigation. First, those expenses must be the “natural and proximate result” of the breach. See Mur ray, 265 N.W.2d at 527 n. 11. This standard comports with the UCC’s general requirement that consequential damages be reasonably foreseeable. Compare J. White & R. Summers, supra § 10-4, at 389 (“ ‘the test is one of reasonable foreseeability of probable consequences’ ”) (citation omitted) with Cedarburg, 166 N.W.2d at 167 (plaintiff may recover expenses for third-party litigation “that the defendant had reason to foresee when the contract was made”).
Besides being reasonably foreseeable, the plaintiff’s third-party litigation expenses must be reasonable. Id. at 167—68; see also Restatement (Second) of Contracts § 351, comment c. A plaintiff may not unnecessarily run up its legal bill in the expectation that the breaching party will ultimately pick up the entire tab.
Krebs proposes two other limits on recovering third-party litigation expenses. Krebs “suggests” that in a ease such as this “where there are claims and counterclaims and charges and countercharges running every which way amongst the parties,” third-party litigation expenses should not be recoverable. Krebs also argues that because the towns, Scotty, and Fidelity were connected with the original transaction from which Krebs’ liability arose (that is, the building of the incinerator and sale of the scrubber), they are not really third parties, so the expenses that Midwesco incurred in defending their claims are not expenses resulting from third-party litigation. See Armstrong Construction Co. v. Thomson, 64 Wash.2d 191, 390 P.2d 976 (1964).
Krebs cites no Wisconsin authority applying these limits to recovery. In Murray, however, the Wisconsin Supreme Court noted that a litigant may recover its expenses from third-party litigation in a “proper case.” Murray, 265 N.W.2d at 528 n. 12. Krebs seizes upon the Murray court’s reference to a “proper case” to argue that the Wisconsin courts would adopt the two limitations it proposes.
Krebs reads too much into the Wisconsin Supreme Court’s reference to a proper ease. The entire sentence in which the “proper case” language appears states: “This [holding that a plaintiff may not recover attorneys’ fees resulting from his litigation against the defendant] is not to suggest that expenses of third-party litigation may not, in a proper case, be recovered under sec. 402.715, stats., in accordance with the principles generally applicable to contract damages. ” Id. (emphasis added). Read in context, we believe that all the Wisconsin Supreme Court meant by referring to a “proper case” was that third-party litigation expenses are recoverable only where they are reasonable and reasonably foreseeable. Those are the “principles generally applicable to contract damages.”
Krebs offers no other reason why the Wisconsin courts would adopt the Armstrong holding. Certainly Scotty, Fidelity, and the towns were not parties to the contract between Krebs and Midwesco. Krebs does state that a multi-party case involving several different claims, counterclaims, and cross-claims presents problems in allocating fees and expenses between litigation with the breaching party and litigation with the third party. We agree that allocation can be a serious problem (and, as we shall see, in this case it is). But difficulty in calculation should not deny an innocent party all damages caused by a defendant’s breach of contract. Courts and juries are capable of sorting out compensable third-party expenses from non-compensable expenses incurred in litigating against the breaching party. See, e.g., Campus Sweater and Sportswear Co. v. M.B. Kahn Construction Co., 515 F.Supp. 64, 111-13 (D.S.C.1979), aff'd, 644 F.2d 877 (4th Cir.1981). The allocation need not be accurate to the last dollar; all that is required is that the plaintiff prove the proper amount of third-party fees to a “reasonable probability.” See Murray, 265 N.W.2d at 526.
Given the Wisconsin Supreme Court’s emphasis on making the injured party whole in awarding consequential damages, see Bucyrus, 388 N.W.2d 592, it is reasonable to conclude that that court would allow Midwesco to recover its reasonably foreseeable third-party litigation expenses caused by Krebs’ breach. Had Krebs not breached its contract with Mid-wesco, Midwesco would not have had to defend suits by the towns, Scotty, and Fidelity. Midwesco had to spend a good deal of money to defend those suits, and the only way to make it whole is to reimburse it for those costs, to the extent that they are reasonable and may be properly allocated.
The district court awarded two amounts to Midwesco as expenses resulting from third-party litigation: $44,203, which represented thirty-three percent of Midwesco’s total legal bill for the litigation; and $86,-223 (later increased to $144,686.75 pursuant to an agreement between Midwesco and Scotty), which represented the attorneys’ fees that Scotty had reimbursed to Fidelity and then passed on to Midwesco. Krebs contends that Fidelity’s attorneys’ fees are not proper consequential damages because Midwesco’s liability for those fees was not a natural and proximate result— that is, a foreseeable result—of Krebs’ breach.
Under the UCC, a seller is liable for consequential damages “resulting from general or particular requirements of which the seller at the time of contracting had reason to know_” Wis.Stat.Ann. § 402.715 (emphasis added); see also Murray, 265 N.W.2d at 528; J. White & R. Summers, supra § 10-4, at 389-90. The test for recovering consequential damages is not whether the seller actually foresaw or contemplated the resulting damages when it made the contract; instead, the test is whether the seller, knowing or having reason to know the buyer’s needs, could have reasonably foreseen the loss as a probable consequence of a breach. Id. at 389. This test is consistent with the standard Wisconsin courts generally apply in determining whether damages for a breach of contract are foreseeable. See, e.g., Reiman Associates v. R.A. Advertising, Inc., 102 Wis.2d 305, 306 N.W.2d 292, 300 (Wis.Ct.App.1981) (damages must “reasonably to be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach”); Hale v. Stoughton Hospital Ass’n, 126 Wis.2d 267, 376 N.W.2d 89, 95 (Wis.Ct.App.1985) (same).
We agree with Midwesco that the Fidelity fees were a reasonably foreseeable element of damage. Krebs knew when it sold the scrubber to Midwesco that Midwesco was going to install it as part of a pollution control device in a municipal incinerator. It should have been reasonably foreseeable to Krebs that if the scrubber did not work as it should, and the incinerator could not meet applicable emissions standards, litigation would be a likely result. It should also have been reasonably foreseeable to Krebs that Scotty would require Midwesco to supply a performance bond. Midwesco was.supplying a major component in the incinerator project; if the pollution control system failed, the entire project would probably fail (as it did), potentially exposing Scotty to substantial liability and litigation expense. In those circumstances, it would have been imprudent for Scotty not to require a performance bond from Midwesco. Thus, at the time it contracted with Mid-wesco, Krebs could have reasonably foreseen that breaching that contract, by supplying an inadequate scrubber, would result in Midwesco paying Scotty’s expenses in any litigation resulting from the scrubber’s failure.
IV.
While we have rejected all of Krebs’ general objections to the district court’s decision to award Midwesco third-party litigation expenses as consequential damages, we must remand to the district court to redetermine the amounts it should award. There are two problems with the $44,203 award for a portion of Midwesco’s own attorneys’ fees. First, it is not clear exactly what the district court was compensating Midwesco for by this award. The court stated simply that Krebs must “pay a portion of the legal fees and expenses not excluded by the traditional rule against cost-shifting.” The court also stated, however, that Midwesco could not recover expenses “incurred pursuing its own claims and defending Midwesco’s own liability against Scotty and the municipalities.... ” One of Midweseo’s “own claims” was against Krebs; Midwesco cannot recover the expenses it incurred solely in pursuing that claim. Similarly, Midwesco cannot recover expenses it incurred solely for defending Krebs’ claim against it for the balance due on their contract. But Midwesco may recover expenses it incurred in defending claims by third parties (the towns, Scotty, and Fidelity), and in pursuing its claims against third parties, as long as those claims were a foreseeable result of Krebs’ breach. On remand, the district court will have to allocate Midwesco’s fees and expenses between claims for which Midwesco may not.
To allow the district court to properly allocate the litigation expenses, Mid-wesco must present evidence to support an allocation. See Funding Systems Leasing v. King Louie Int’l, 597 S.W.2d 624, 637 (Mo.Ct.App.1979). The only evidence Mid-wesco presented regarding the fees and expenses it paid was testimony by one of its officers that it had incurred certain fees and expenses. This evidence was not sufficient to support a finding that the district court’s allocation was proper or that the fees incurred and awarded were reasonable. Although we have found no Wisconsin cases directly on point, the Wisconsin Supreme Court has stated that “the burden of proving consequential damages is on the buyer,” and that “[d]amages may not be awarded on speculation or conjecture alone.” Murray, 265 N.W.2d at 526. The United States Supreme Court has held that in cases in which a prevailing party in a civil rights case seeks attorneys’ fees under 42 U.S.C. § 1988, the prevailing party must “submit evidence supporting the hours worked,” including billing records documenting those hours, so that the district court may properly determine the hours reasonably spent. Hensley v. Eckerhart, 461 U.S. 424, 433-34, 437, 103 S.Ct. 1933, 1939, 1941, 76 L.Ed.2d 40 (1983); see also id. at 441-42, 103 S.Ct. at 1943-44 (Burger, C.J., concurring) (“[T]he party who seeks payment must keep records in sufficient detail that a neutral judge can make a fair evaluation of the time expended, the nature and need for the service, and the reasonable fees to be allowed.”). We believe the same standard is appropriate in this case.
We also must remand for the district court to redetermine the amount of Fidelity’s attorneys’ fees chargeable to Krebs. Midwesco is entitled to recover only the fees that Fidelity reasonably incurred and passed on to Scotty; although Krebs could reasonably foresee that it might have to pay these fees, it could not reasonably foresee having to pay an excessive fee. The only evidence concerning Fidelity’s fees was testimony by one of Fidelity’s attorneys about the billing rates of the lawyers who worked on the case and about some of his activities in the case, and testimony from an official at Fidelity that it had received and paid statements from its attorneys. The record contains no billing records documenting the hours expended.
Another problem exists with the Fidelity attorneys’ fee award. The district court originally awarded $86,223. Scotty then filed a motion to reconsider, claiming that the amount Midwesco owed it (and Krebs, in turn, owed Midwesco) was $62,374 more. The district court agreed that a higher amount was appropriate, but instead of determining the precise amount the court allowed Midwesco, Scotty, and Krebs to engage in “informal discovery” regarding the reasonableness of the amount. Mid-wesco examined Fidelity’s attorneys’ billing records and disputed certain amounts; Krebs did neither. Midwesco and Scotty eventually agreed on an amount and informed the district court. The court entered judgment based on Midwesco’s and Scotty’s agreement.
There was no evidence taken in court to support the modified amount. Midwesco contends that Krebs has waived any objection it might have to the modified amount because Krebs refused to participate in discovery. We think not. The modified amount was not litigated; it was the result of an agreement between Scotty and Midwesco. The district court had no power to force Krebs to take discovery, or to agree to the amount of damages it had to pay to Midwesco. Cf. Kothe v. Smith, 771 F.2d 667, 669 (2d Cir.1985) (district court may not coerce parties into settling); Identiseal Corp. of Wisconsin v. Positive Identification, 560 F.2d 298, 301-02 (7th Cir.1977) (district court has no authority to make a party take discovery); J.F. Edwards Construction Co. v. Anderson Safeway Guard Rail Corp., 542 F.2d 1318 (7th Cir.1976) (per curiam) (district court has no authority to force a party to stipulate facts). Krebs was entitled to its day in court to contest the increase in the amount of Fidelity’s fees it had to pay.
Finally, regarding the Fidelity fees, we believe it would be inappropriate to award Midwesco fees from Krebs that are allocable to direct litigation between Fidelity and Krebs. It is true that these are third-party expenses in the sense that they do not relate to litigation between Midwes-co and Krebs. But to have Krebs reimburse Midwesco for those fees would be to, in effect, have Krebs reimburse Fidelity (through Scotty and Midwesco) for fees that arose from litigation between Fidelity and Krebs. The American Rule, which Wisconsin follows, see Murray, 265 N.W. 2d at 527-28, would not allow Fidelity to recover those fees directly from Krebs. It would be inappropriate to allow Fidelity to recover those fees indirectly from Krebs.
In determining the proper amounts to award on remand, the district court should keep in mind that there may be some overlap between recoverable and nonrecoverable fees. This should not prevent the court from reaching a proper allocation. Mathematical precision in awarding damages is not necessary. See Wis.Stat.Ann. § 402.715, official UCC comment 4. Also, as long as reasonable evidence exists, we believe it is consistent with Wisconsin law for the district court to resolve any doubts about allocation or reasonableness in favor of Midwesco, the party to be made whole. See id.; Bucyrus, 388 N.W.2d at 592 (emphasizing that the purpose of consequential damages is to make the injured party whole); see also Restatement (Second) of Contracts § 352, comment a; cf. In re Central Ice Cream Co., 841 F.2d 732, 735 (7th Cir.1988) (in determining the reasonableness of attorneys’ fees in a sanctions case, benefit of the doubt is normally resolved in the innocent party’s favor).
V.
Midwesco raises one damages-related issue in its appeal. Midwesco paid $90,000 (as did Krebs and Donohue and Associates, the project engineers) to the towns to settle all claims involving the towns. In its post-trial brief, Midwesco argued that its settlement payment was a proper element of consequential damages, and that the district court should have ordered Krebs to reimburse Midwesco for the $90,000 it paid in the settlement. The district court refused to order Krebs to pay Midwesco the $90,000, stating:
As to the settlement expense, each side bought a pig in a poke. To get rid of some pesky claims, Krebs, Donohue and Midwesco each paid $90,000 to the municipalities. Liability to the municipalities was questionable... but each side thought it best to avoid a bigger risk by working out a settlement. Although the settling parties exercised good judgment, I find no reason why Krebs should pay Midwesco’s $90,000 share of the settlement in addition to its own.
Midwesco contends the district court erred.
Generally, an injured party may recover from a breaching party any reasonable payments the injured party makes to Settle third-party litigation. Restatement (Second) of Contracts § 351, comment c. Although the parties have not cited, and we have not found, any Wisconsin cases on point, we believe that the Wisconsin courts would follow the general rule stated in the Restatement. The general rule is consistent with the make-whole rationale behind consequential damages. The general rule ¡also promotes the policy favoring private dispute settlements, see id.; if an injured party could not pass on the cost of a settlement but could pass on the cost of a litigated judgment in the third-party litigation, injured parties would rationally fight to the bitter end rather than accept reasonable settlements.
If Midwesco had settled the towns’ claims on its own, we would not hesitate to hold that Krebs should pay to Midwesco the amount Midwesco paid to the towns. The twist here, however, is that Midwesco, Krebs, and Donohue jointly settled with the towns—and we believe this twist makes a difference. The settlement was a contract between the towns, Krebs, Midwesco, Scotty, and Donohue that was intended to end all litigation involving the towns. That contract bound Midwesco. As part of that Contract, Midwesco agreed with each of the parties that it would pay $90,000 to the towns. Krebs, Scotty, and Donohue also agreed with each other, the towns, and Midwesco, to pay a certain amount (in Krebs’ case, $90,000) to the towns. The towns agreed to release all their claims against all parties—not just their claims against Midwesco. Midwesco is now asking the courts, in effect, to reform the parties’ contract to provide that Krebs shall pay $180,000 and Midwesco shall pay nothing.
We read the district court’s opinion as interpreting the settlement as we have discussed above. Given what the record reveals that the district court had before it when deciding, we think that is a proper interpretation. Midwesco, however, argues that the district court erred because the written settlement documents expressly preserved all of Midwesco’s rights against Krebs.
The “Mutual Release and Agreement” the parties signed did, in fact, state that:
Nothing in this Agreement is intended to impair, impede or in any way affect those claims and defenses which exist among [Midwesco, Scotty, and Krebs] and each or any of them, and the contractors and each of them specifically reserve any and all rights which they have or may have against one another.
The separate “Release of All Claims” document the parties signed contained similar reservation of rights language.
Krebs argues that the reservation of rights language did not preserve Midwes-eo’s right to seek reimbursement of its settlement payment from Krebs, a right which, as we have seen, undoubtedly would have existed had Midwesco settled the towns’ claims against it on its own. While the reservation of rights language appears to preserve Midwesco’s right to reimbursement, there is language in the settlement documents supporting Krebs’ argument. We need not go into detail, though, because the record does not show that Midwesco ever brought the precise language in the written documents to. the district court’s attention. Midwesco did not introduce the written documents into evidence, nor did it argue the settlement’s terms when discussing damages in its post-trial brief. Moreover, on the morning the parties settled, the district court asked each party to comment about the settlement agreement on the record. At that time, Midwesco uttered not a peep about reservation of rights language in the settlement agreement, much less about that language’s effect on Midwesco’s right to seek reimbursement of its settlement payment from Krebs. If Midweseo had commented, Krebs could have voiced its view that the reservation of rights language did not preserve Midwes-co’s right to seek reimbursement, and the district court could have decided the issue (or the parties could have agreed on what the settlement meant).
Midweseo argues that the district court’s comments “confirm[ J what is contained in the release.” We think not. The court noted:
And, in fact, a settlement of this nature is not, at least from my standpoint, entirely welcome because the case isn’t going away. I am still going to be trying the issues between the defendants, all except Donohue, as to their respective responsibility in this case.
So, although we are settling the case, it is only going to be a portion of it. And it is
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Wayne L. LaMADE, Appellant, v. Alfred WILSON, Defendant and Third-Party Plaintiff. PROVIDENCE HOSPITAL, a corporation v. McDONALD'S CORPORATION and McDonald’s of Forest Heights, Maryland, Inc., Third-Party Defendants.
No. 73-1979.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 6, 1975.
Decided May 19, 1975.
Barry J. Nace, Washington, D. C., with whom Earl H. Davis, Washington, D. C., was on the brief, for appellant. William Reback, Washington, D. C., also entered an appearance for appellant.
Howard C. Donahue, for appellee Wilson.
James A. Welch, Washington, D. C., for appellee Providence Hospital.
Before WRIGHT and LEVENTHAL, Circuit Judges, and DAVIS, Judge, United States Court of Claims.
Sitting by designation pursuant to 28 U.S.C. § 293(a).
PER CURIAM:
In October, 1969, appellant, Wayne L. LaMade, while in the employ of McDonald’s, sustained a severe injury when his left eye was struck with the paper work hat of another employee. He consulted appellee Dr. Wilson, who prescribed several medicines, including a “pain killer” known as Ophthaine. Treatment by Dr. Wilson continued until December, 1969, at which time both appellant and Dr. Wilson considered the wound healed, appellant’s sole complaint being of “some slight pain,” with the eye “sensitive to light.” On January 1, 1970, plaintiff filed a workmen’s compensation claim in the state of Maryland.
In March, 1970, appellant began to experience difficulty with the eye, including discomfort, light sensitivity and “crusting.” After emergency hospital treatment he visited Dr. Wilson on March 9, 1970. Dr. Wilson conducted an examination, and determined there was an ulceration of the cornea. He prescribed medication directed towards a diagnosed bacterial infection and again prescribed Ophthaine to minimize the pain. After eight office visits, between the 9th and 21st of March, appellant was admitted to appellee Providence Hospital under Dr. Wilson’s care. Dr. Wilson again prescribed Ophthaine, among other medications. At Dr. Wilson’s instructions, the nurses left a bottle of Ophthaine at appellant’s bedside. Appellant was able to lift his eye patch and insert the drops whenever he felt intense pain. Appellant stayed at Providence Hospital from March 21 to March 30, when Dr. Wilson made arrangements to have him transferred to the Washington Hospital Center for further consultation and treatment. He stayed there from March 30 to April 16, 1970, during which time he was under the care of Dr. Jerome Goldman.
In this civil action, appellant claimed that Dr. Wilson was negligent in prescribing and permitting the frequent use of Ophthaine in view of the indication in the Physician’s Desk Reference that prolonged use of the medication “may possibly delay wound healing” and that “[sjoftening and erosion of the corneal epithelium have been reported” in connection with the use of the drug. Appellant also claimed negligence on the part of the Providence Hospital on the theory that its nurses had a duty to question the physician concerning his instruction that medication of this nature be left at the appellant’s bedside. The jury returned a verdict in favor of both appellees.
Appellant raises a number of issues on appeal from that verdict, but our disposition of the case is governed by the improper way in which the issue of the previously filed workmen’s compensation claim was injected into the proceedings below. Counsel for Dr. Wilson stated in his opening remarks that a workmen’s compensation claim was filed on appellant’s behalf in Maryland in 1970. Appellant’s trial counsel immediately objected: “I do not think the workmen’s compensation should be in here.” The judge overruled the objection. Defense counsel continued, stating that there had been two hearings in Maryland on July 10 and July 21, 1970; that at that time appellant introduced testimony through Dr. Goldman that the condition of appellant’s eye as of July 1970 was related directly to the accident in which he was struck by the hat; that an award was made by the State of Maryland on the basis of that testimony; and that shortly after the Maryland hearing appellant “turned around . . . and filed a lawsuit” based on Dr. Wilson’s alleged negligence in March 1970, thus “completely changpng] the whole atmosphere of the case.” (J.A. 25-6). At closing argument Dr. Wilson’s counsel, over objection by appellant’s counsel, was, permitted to argue to the jury that:
This case was tried in July of 1970. It was given a full hearing in July of 1970 and Mr. LaMade got what he asked for there, that he be entitled to these benefits because this injury that he has is related to the McDonald’s accident and not to any Ophthaine.
We have tried the identical case in front of you ladies and gentlemen. (J.A. 378)
In addition to the opening and closing statements, the defense counsel also referred to the workmen’s compensation hearing in his cross-examination of appellant and of Dr. Goldman. He elicited that Dr. Goldman had testified at the hearing. The cross-examination purported to elicit how Dr. Goldman had previously testified. The record before us is muddy. Taking it in the sense most favorable to the defendant, Dr. Goldman appears to have related that at the prior hearing he testified that appellant, as of July, 1970, “had this syndrome known as recurrent epithelial erosion which involves the left cornea,” and that, since appellant had sustained an injury from the hat in October and had also experienced delayed healing as attested to by Dr. Wilson, he felt “there was nothing that I could reasonably be certain what transpired in March was probably related to his previous injury [sic].” (J.A. 185-86)
In our view, there was prejudicial error due to the way in which defense counsel, with the judge’s approval, called attention to the workmen’s compensation claim, hearing, and award. This case is governed by the line of cases holding that the admission of evidence concerning an injured party’s receipt of collateral social insurance benefits constitutes reversible error, because it involves a substantial likelihood of prejudicial impact and the possibility of its misuse by the jury outweighs its probative value.
Defense counsel was free to seek to impeach Dr. Goldman by reference to his prior inconsistent testimony. Such impeachment is entirely proper and may be put before the jury, with opportunity given to the witness to reconcile what seem to be diverging statements. But this kind of impeachment must be carried out in such a way as to limit the reference to the prior proceeding to bring out what is material (the inconsistent testimony) without eliciting what is prejudicial (that a workmen’s compensation claim had been filed and that an award had been made). In the case before us, neither defense counsel nor the trial judge manifested the requisite prudence or sensitivity. Rather, it was hawked to the jury that moneys had already been received by appellant for what was described as being the same claim.
The case is flawed by the substantial possibility that the jury was influenced by prejudicial evidence. The case will be reversed and remanded for a new trial.
So ordered.
. See Tipton v. Socony Mobil Oil Co., Inc., 375 U.S. 34, 84 S.Ct. 1, 11 L.Ed.2d 4 (1963); Eichel v. New York Central Railroad Co., 375 U.S. 253, 255, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963); Caughman v. Washington Terminal Co., 120 U.S.App.D.C. 217, 345 F.2d 434 (1965).
For the general principle that evidence may not be admitted where prejudicial impact outweighs probative value, see, e. g., Rule 403, Federal Rules of Evidence (P.L. 93-595, approved January 2, 1975); United States v. Bussey, 139 U.S.App.D.C. 268, 271, 432 F.2d 1330, 1333 (1970); Luck v. United States, 121 U.S.App.D.C. 151, 155-57, 348 F.2d 763, 767-69 (1965).
. Counsel for both appellees seek affirmance on the basis of lack of adequate evidence of negligence or proximate cause. The record reflects a determination by the trial judge that the evidence on these matters was sufficient to go to the jury. We need not consider how the matter would stand if the judge had vacated a verdict for plaintiff on the ground that the evidence was insufficient, on either negligence or proximate cause, to sustain a verdict. The flaw that Wilson’s counsel injected precluded an effort even to solicit such a ruling by the trial judge. We do not think it an appropriate use of appellate judicial energies to canvass the record on points like these in the first instance. Counsel for appellee Providence Hospital did not initiate the error, but it could have profited from the prejudice, so its judgment must also be reversed.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_casetyp1_7-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Florence W. BOSWORTH, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 100, Docket 22125.
United States Court of Appeals Second Circuit.
Argued Jan. 16, 1952.
Decided Feb. 5, 1952.
Milbank, Tweed, Hope & Hadley, New York City, Weston Vernon, Jr., Robert C. Barnett, Robert T. Molloy and Robert L. Woodford, all of New York City, of counsel, for petitioner.
Ellis N. Slack, Acting Asst. Atty. Gen., and Richard D. Harrison, Sp. Asst, to Atty. Gen., for respondent.
Before AUGUSTUS N. HAND and CLARK, Circuit Judges, and BRENNAN, District Judge.
PER CURIAM.
Affirmed on opinion of Arundell, J., 16 T. C. 572, and also on authority of Commissioner, of Internal Revenue v. Western Union Telegraph Co., 2 Cir., 141 F.2d 774.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_juryinst
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Frank V. ESPOSITO, Appellant, v. UNITED STATES of America, Appellee.
Nos. 25291, 25292.
United States Court of Appeals, Ninth Circuit.
Dec. 23, 1970.
John P. Foley, Las Vegas, Nev. (argued), for appellant.
Bart M. Schouweiler, U. S. Atty., Las Vegas, Nev. (argued), for appellee.
Before ELY and HUFSTEDLER, Circuit Judges, and BYRNE, District Judge.
Honorable William M. Byrne, United States District Judge, Central District of California, sitting by designation.
BYRNE, District Judge:
In Case No. 25,291, appellant, with other individuals, was charged by indictment with receiving, concealing, selling and facilitating the transportation of heroin on July 10, 1964, in violation of Section 174, Title 21, United States Code. He was convicted by jury verdict on April 13, 1965, and on the following day entered a plea of guilty to an additional two charges involving marihuana (Case No. 25,292). He was sentenced to imprisonment for a term of eight years on each of the three charges, the sentences to run concurrently.
Subsequently, the appellant filed motions to vacate his sentences, charging (1) on the heroin conviction, the judge gave an erroneous instruction on entrapment, and that neither the judge nor retained counsel advised him of his right to appeal, and (2) on the marihuana sentences, the judge failed to ascertain if the guilty pleas were made voluntarily with understanding of the nature of the charges.
On the heroin conviction, the trial court denied the motion to vacate. In the marihuana cases the Court set aside the guilty pleas and sentences, citing the failure of the trial judge to fully comply with the requirements of Rule 11, Federal Rules of Criminal Procedure. Appellant appealed from the denial of his heroin motion and the government appealed from the granting of the motions in the marihuana cases.
This Court remanded all matters for further hearings. United States v. Es-posito, 415 F.2d 1112 (CA 9, 1969). The heroin case was returned for a hearing in light of Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (June 2, 1969), which had not been decided at the time Esposito was sentenced. The marihuana cases were returned to determine if the guilty pleas were voluntarily made with full understanding of the nature of the charges and the consequences of the pleas with specific reference to Castro v. United States, 396 F.2d 345 (CA 9, 1968), which had not been decided at the time Esposito entered his pleas.
Upon remand the trial court set aside the original sentence in the heroin case and re-sentenced appellant to imprisonment for a period of eight years. The court also vacated its previous order and reinstated the convictions upon the guilty pleas and sentences in the marihuana cases. All sentences were ordered to run concurrently. Appellant is appealing the three convictions in these two consolidated cases.
No. 25,291 (heroin conviction)
The primary purpose for which this case was remanded, i. e. whether the judge or retained counsel advised appellant of his right to appeal in light of Rodriquez v. United States (supra), has become moot. The trial court set aside the original sentence and re-sentenced the appellant. If any error existed, it has been corrected, and the appellant has abandoned this point.
The appellant again urges his claim that the trial court’s instruction on entrapment was reversible error, and relies on this Court’s holding in Notaro v. United States, 363 F.2d 169 (CA 9, 1966).
Assuming, arguendo, that the court’s entrapment instructions were ambiguous or otherwise erroneous, the appellant’s attorney interposed no objection to them, nor did the appellant submit a requested alternative instruction bearing upon the issue. In such circumstances, our Court has previously held that it will “decline to invoke the ‘plain error’ rule.” Nordeste v. United States, 393 F.2d 335, 340 (9th Cir. 1968). Cf. Pratti v. United States, 389 F.2d 660 (9th Cir. 1968).
The appellant asserts several claims of error in addition to those for which the case was remanded. We have carefully examined each of them and find them to be without merit.
No. 25,292 (marihuana convictions)
Upon remand, the trial court, after a hearing held on November 28, 1969, having had its attention directed to Castro v. United States, supra, in which this Court held Heiden v. United States, 353 F.2d 53 (CA 9, 1965) was not to be applied retroactively, vacated its previous order, and the convictions upon appellant’s guilty pleas and the sentences which followed were reinstated. The Court found the pleas were voluntarily made with full understanding of the nature of the charges and the consequences of the pleas. Appellant is here appealing the reinstatement of the convictions.
The appellant contends that the trial court did not comply with the provisions of Rule 11 Federal Rules of Criminal Procedure. Initially he urged the application of McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), but in his reply brief, he acknowledged the Supreme Court’s decision in Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969) in which the court held that McCarthy was not applicable to guilty pleas accepted prior to April 2, 1969. The pleas in the instant case were entered April 14, 1965. Nevertheless, he continues to assert that the trial court’s acceptance of the guilty pleas was not in accord with the then governing standards which had been established by this Court.
In April, 1965, when the appellant changed his plea from not guilty to guilty, Rule 11 provided that the trial court should not accept a plea of guilty “ * * * without first determining that the plea is made voluntarily with understanding of the nature of the charge.”
The record plainly shows, from a lengthy colloquy between the judge and the appellant, that the pleas were voluntary and made with a clear understanding of the nature of the charges. These pleas met the criteria set forth in Munich v. United States, 337 F.2d 356 (CA 9, 1964), which was the leading case on this issue at the time of the pleas in question.
The appellant also contends that this Court erred in remanding for a determination, in light of Castro v. United States, supra, whether the pleas were made voluntarily with full understanding of the nature of the charges and the consequences of the pleas. In support of his assertion he relies on McCarthy v. United States, supra, and Rodriquez v. United States, supra.
As we pointed out above, the Supreme Court declined to apply McCarthy retroactively. Halliday v. United States, supra. As a consequence, the appellant must rely solely on Rodriquez. In that case, the Supreme Court felt a further remand was unnecessary since the record clearly showed the deprivation of defendant’s right to appeal. The Supreme Court did not disapprove of remands where the Court felt the record was not totally dispositive of the issue involved. In the light of recent Supreme Court decisions, this Court decided to erase any measure of doubt as to the validity of the trial court's ruling. This Court’s action was not inconsistent with Rodriquez because the record of the instant case was hardly analogous to the obvious error present in the Rodriquez transcript.
It follows that appellant’s claim that it was error for the trial court to conduct the hearing must also be rejected as lacking in merit.
At the hearing ordered by this Court, the government called Attorney Harry Claiborne as a witness. The appellant’s present attorney objected to Claiborne’s testimony on the ground that it was vio-lative of the attorney-client privilege. The objection was overruled.
Claiborne testified that he met with the appellant after the jury had returned the guilty verdict in the heroin case. He told Esposito that he faced a minimum of five years imprisonment and that it probably would be increased to ten to forty years if he were convicted of the two marihuana charges. Claiborne further testified that he advised Esposito to plead guilty. He also told his client:
“I had an idea that maybe 4208 might apply in this case. I didn’t represent to him it did. I told him I was going to have to bring it to the court’s attention and urge the court that it might apply, and express to the court in my opinion it could apply.”
While it is true that an attorney cannot waive the privilege, in this case it is clear that the statements and advice expressed to the appellant were not confidential. It is obvious that these remarks would be repeated to the Court the next day. The subject matter of this conference was such that no reasonable person could have expected it would later be deemed protected by the attorney-client privilege. See United States v. Shibley, 112 F.Supp. 734 (S.D.Calif.1953); United States v. Tellier, 255 F.2d 441 (CA 2, 1958) cert. den. 358 U.S. 821, 79 S.Ct. 33, 3 L.Ed.2d 62.
We find no merit in Esposito’s remaining assertions of error.
Affirmed.
Question: Did the court conclude that the jury instructions were improper?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
John H. VERKOUTEREN, Petitioner, v. DISTRICT OF COLUMBIA, Respondent. Herman OSHINSKY, Petitioner, v. DISTRICT OF COLUMBIA, Respondent. Charles OSHINSKY, Petitioner, v. DISTRICT OF COLUMBIA, Respondent. William OSHINSKY, Petitioner, v. DISTRICT OF COLUMBIA, Respondent. Herman FENICHEL, Petitioner, v. DISTRICT OF COLUMBIA, Respondent. Bernard MARGOLIUS et al., Petitioners, v. DISTRICT OF COLUMBIA, Respondent.
Nos. 18530-18535.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 25, 1965.
Decided May 11, 1965.
Mr. Albert E. Arent, with whom Mr. Joel N. Simon, Washington, D. C., was on the brief, for petitioners.
Mr. Henry E. Wixon, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. Chester H. Gray, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel, and Donald T. Fish, Asst. Corp. Counsel at the time the brief was filed, were on the brief, for respondent.
Before Fahy, Washington and McGowan, Circuit Judges.
McGOWAN, Circuit Judge:
Appellants in these several cases organized in 1948 a corporation known as Capitol Hotel Enterprises, Inc. That company purchased in 1948 all of the stock of Chastleton Hotel, Inc. for $20,-480. On January 29, 1960, Capitol Hotel Enterprises, Inc., was dissolved and the Chastleton stock distributed in liquidation to appellants. The closing balance sheet of Capitol showed an earned surplus of about $100,000, with the Chastleton stock still carried at its cost. On February 1, 1960, each appellant sold the Chastleton stock received by him for a consideration which aggregated $390,000 for all such stock.
In the course of its examination of appellants’ District of Columbia income tax returns for 1960, the District taxing authorities adjusted the tax liability of each by adding to taxable income (1) a dividend from Capitol in the amount of his proportionate share of Capitol’s closing earned surplus, and (2) a capital gain on the sale of the Chastleton stock computed by reference to the original cost of such stock to Capitol. Deficiencies on this basis were assessed and paid, and petitions for review filed in the Tax Court. The cases were considered by the Tax Court on a record consisting of a stipulation of facts entered into by the parties, and upon 'briefs and oral arguments. The stipulation referred to the dividend representing the earned surplus, and this issue was eliminated from the case by appellants’ express acquiescence in the adjustment made with respect to it. The stipulation also recited the dissolution of Capitol, and the receipt by appellants in liquidation of the Chastleton stock. In referring to the subsequent sale of that stock, the stipulation stated that: “On February 1, 1960, each of the * * * [appellants] sold the shares of Preferred Stock and Common Stock received by him upon the dissolution of Capitol for the amount set forth below.”
On the facts as so stipulated the District pressed before the Tax Court its claim that each appellant was liable for a capital gain on the sale of his Chastleton stock, measured by the difference between what he received upon his sale of stock and his pro rata share of its original cost to Capitol. Appellants argued alternatively that they were either entitled to a new, stepped-up basis, or that, if they were to be assigned the old basis of Capitol, their holding period for the Chastleton stock was to be measured from the date of its acquisition by Capitol. At no time, including the oral argument before the Tax Court, was there a reference by anyone to any other theory for sustaining the deficiency assessments.
Such a theory first emerged in the Tax Court’s opinion. It said that it did not need to resolve the issues presented to it by the parties, inasmuch as the taxing authorities were wrong in assuming that the appellant-stockholders, as distinct from Capitol, had sold the Chastleton stock. Since only three days had elapsed between the distribution of the Chastleton stock in liquidation and its sale, the Tax Court said that Capitol must, in fact if not in form, be taken to have negotiated and made the sale prior to dissolution. Thus, the $390,000, minus the book cost of $20,480, is to be regarded as part of the earned surplus of Capitol upon dissolution, and, thus, includible in appellants’ incomes as dividends. Since deficiencies assessed on this basis would be the same as those on the capital gains approach advanced by the District, the petitions were denied.
This disposition, in our view, cannot stand. The issue on which the Tax Court rested its decision was not before it and, so long as the stipulation has vitality, cannot be before it. The claim of increased tax liability on that ground was never made at any time by the District taxing authorities, and, indeed, they stipulated facts which foreclosed it completely. In the face of that stipulation, the Tax Court could not make contrary findings of fact. As the Supreme Court has made crystal clear, this particular issue turns peculiarly upon how the facts are found in the particular case, and the taxable consequences vary from case to case in accordance with such findings. Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 (1945); United States v. Cumberland Pub. Serv. Co., 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251 (1950). Where the point is raised in a timely fashion and the parties are afforded an opportunity to litigate the question by the submission of evidence and argument as to the inferences properly to be drawn from such evidence, we have recognized that the findings of the Tax Court are to be accorded great weight, as would be true of any trier of comparable issues. Bord v. District of Columbia, 120 U.S.App. D.C.-, 344 F.2d 560 (decided March 4, 1965). But if the Tax Court is to be treated as at least a quasi-judicial tribunal and not as a super-assessing authority, it cannot proceed as it has here. The so-called Court Holding Co. issue simply was not in these cases, and the Tax Court could not, under the circumstances here obtaining, import it by main strength.
The District and the appellant-petitioners did present to the Tax Court a serious and substantial issue arising out of the capital gains provisions of the District law. We are urged to decide that issue ourselves, without remand. But the Tax Court is an expert and specialized agency for the resolution of controversies between the District of Columbia and its taxpayers. Congress created it for the purpose of causing that expertise to be brought to bear in the first instance. We remand these cases in order that that be done.
It is so ordered.
. Berliner v. District of Columbia, 103 U.S.App.D.C. 351, 258 F.2d 651, cert. denied, 357 U.S. 937, 78 S.Ct. 1384, 2 L.Ed.2d 1551 (1958); and see District of Columbia v. Oppenheimer, 112 U.S.App.D.C. 239, 301 F.2d 563 (1962).
. Rulo 21(b) of the Tax Court’s own Rules of Procedure is as follows:
(1) Stipulations required. — The Court expects the parties to stipulate evidence to the fullest extent to which complete or qualified agreement can be reached including all material facts that are not or fairly should not be in dispute.
This very rule seems to us to reflect the importance and significance which courts customarily attach to stipulations of fact. Their binding effect has long been recognized. See 9 Wigmore, Evidence § 2588 (3d ed. 1940); Burstein v. United States, 232 F.2d 19 (8th Cir. 1956); United States v. Kahriger, 210 F.2d 565 (3d Cir. 1954); Norwich Pharmacal Co. v. Rakway, Inc., 189 F.Supp. 348 (E.D. Pa.1960).
The District argues to us now that whether the appellants or Capitol made the sale of Chastleton stock is an ultimate fact which the Tax Court may find in the manner it did from the recitals contained in the stipulation. This argument is largely couched, however, in terms of the extensive power vested in the Tax Court to make virtually unassailable findings on disputed evidence. It is beside the mark where the parties have contrarily stipulated the critical fact, as we think they have clearly done here.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
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songer_usc1sect
|
160
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HERSHEY CHOCOLATE CORPORATION and Local 464, American Bakery and Confectionery Workers International Union, AFL-CIO, Respondents. Harry LANBVATER et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 13523, 13539.
United States Court of Appeals Third Circuit.
Argued Sept. 19, 1961.
Decided Dec. 1, 1961.
Melvin J. Welles, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Herman M. Levy, Atty., N. L. R. B., Washington, D. C., on the brief), for National Labor Relations Board.
Herbert A. Simon, New York City (Milton M. Levin, New York City, on the brief), for Harry Landvater and others.
Bernard N. Katz, Philadelphia, Pa. (Meranze, Katz & Spear, Philadelphia, Pa., on the brief), for Local 464.
Jack A. Riggs, Gilbert Nurick, Mc-Nees, Wallace & Nurick, Harrisburg, Pa., for Hershey Chocolate Corp.
Before GOODRICH, McLAUGHLIN and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
The Board held that Local 464, American Bakery and Confectionery Workers International Union, AFL-CIO (ABC Local 464) was not the successor union to Local 464 Bakery and Confectionery Workers International Union of America (BCW Local 464). Consequently, said the Board, the attempt by ABC 464 to enforce the employment agreement maintenance of membership clause through the employer was unfair labor practice. ABC Local 464 was ordered to desist from that practice and reimburse the employees who had paid union dues as a result of the local’s action.
The Board’s order is based on the theory that ABC Local 464 is not the continuing identity of BCW Local 464. Accordingly the Board held that employees who had originally joined the BCW local did not automatically become members of the ABC local. Therefore the Board, refusing to accept the Arbitrator’s decision to the contrary, found ABC Local had been guilty of unfair labor practice in requiring that all members of Local 464 maintain themselves in good standing through paying their dues to ABC Local 464. Factually, the Board’s position is impossible to accept frqm the record.
In December 1957 Local 464, Bakery and Confectionery Workers International Union of America was the bargaining representative of the Hershey production and maintenance employees. An employment contract was in being which had as its expiring date December 31, 1958. On or about December 11,1957 the International was expelled from the AFL-CIO because of internal corruption. Immediately thereafter the AFL-CIO chartered a new international union, American Bakery and Confectionery Workers International Union, AFL-CIO. On the 17th of the same month the BCW Local 464 executive board, with one dissent, voted to call a special membership meeting to consider the adoption of a resolution to disaffiliate from BCW and affiliate with ABC. Notice of the meeting for December 28th was mailed the members of the Local. The notice stated specifically that questions of disaffiliation, affiliation, disposition of assets and status of collective bargaining agreements would be considered. At the meeting, after a review of the pertinent events and discussion, the membership by a vote of 829 to 1 adopted a resolution to disaffiliate from BCW; to affiliate with ABC; to transfer all property and contract rights from BCW Local 464 to ABC Local 464; to continue all present officers as officers of ABC Local 464 and otherwise to function as before with only those changes as were necessitated by the shift in affiliation. The resolution stated the reasons for the local’s action were (1) the expulsion of BCW from AFL-CIO and (2): “the notoriety and stigmas of dishonesty and unethical dealings which have attached to certain officials of the present International and to the International itself, as an organization.” The local’s request to ABC International for a charter was granted December 30, 1957. That day it advised Hershey of its change in affiliation, of its intention to maintain the preexisting contractual relationship and that it expected the employer to do the same.
At the time the local left the BCW International Union there were about 2,800 employees in the Hershey unit involved. Two thousand of these were members of the local and of that number, 1,700 had authorized checkoffs. After ABC Local 464 took over, about 1,350 employees executed new checkoff authorizations in its favor. All the old officers and executive board members except one and about 90 out of 92 departmental representatives continued in office. ABC 464 assumed administration of the employment contract and, except for dues involved in state court litigation being held in escrow by Hershey, as the Board itself found “ * * * the change in affiliation has apparently produced no change in the bargaining relationship with the Employer.” The same bargaining relation between Hershey and ABC 464 continued but because the old international union, Bakery and Confectionery Workers, asserted a claim to represent the employees, Hershey filed a representation petition. The Board first held hearings on the particular problem. Later, as various disaffiliation situations nationwide arose from the corruption findings concerning the BCW International, the Board had a special hearing in order to formulize rules for general use. Applying these to its Hershey case the Board, on September 18, 1958, found that a schism had taken place within the local. It directed that there be an election. The latter was held October 14, 1958 and ABC Local 464 won by a four to one margin. The Board certified the local as bargaining representative on October 22, 1958. The next day the local and the employer by agreement accepted and assumed the terms of the March 26, 1957 employment contract. Since then down to the present time ABC Local 464 and Hershey have functioned on collective bargaining in the same manner as since the inception of Local 464. Thereafter there were no intra local membership difficulties except that the employees named in the Board’s decision of December 29, 1960 now before us, did nothing. There was no contention by them that ABC Local 464 was not a continuation of the original local in which they held membership. They simply did not pay the union dues for November and December 1958 despite requests for payment. This practice dragged over into 1959. Finally the union, in accordance with the union security clause in the employment contract, asked Hershey to discharge the employees in question. Hershey refused and under the contract the dispute was submitted to arbitration.
Dr. William B. Loucks was chosen arbitrator in February of 1959. After a full hearing, briefs, etc., on July 13, 1959 he filed a sixty page Decision and Opinion. From an exhaustive study of the exhibits and testimony with respect to the continuity of Local 464 the Arbitrator held:
“There can be no question about the purpose or intent of the membership action in adopting this resolution on December 28, 1957. Clearly, it was to make one, and only one, change in Local 464 — its International affiliation, along with whatever changes in ‘internal structure,’ ‘rules,’ ‘regulations,’ and ‘procedures’ were inherently necessary as a part of this change in International affiliation of the Local. The transfer of ‘all property (real, personal and intangible), assets, funds and things of any value held in the name of Local 464’ to Local 464, ABC, should be noted in particular. This phraseology of the resolution, in the opinion of the Arbitrator, is to be interpreted as including an intent to have the Local 464 (as affiliated with BCW) property right, or asset, inhering in the dues collections which were a part of Paragraph 6(a) of the Agreement then in effect between the Union and the Company, transferred without diminution, or infringement, or weakening in any way, to Local 464 (as affiliated with ABC).
“This intent on the part of the Local Union to have its switch in International affiliation mean just that, and that only, is further illustrated by the letter sent by its Counsel to the Company under date of December 30, 1957. (Union Exhibit #7). In this letter it was stated as follows: ‘Local 464 is continuing in exactly the same manner as it has functioned hitherto with the exception of the change of International affiliation. We do not deem this as affecting in any way our relationship with you * * * We will continue to live up to our contract responsibilities and obligations and trust that you will do the same with the Local under this new affiliation. The change of International affiliation is no more than that. It is not intended to have any effect upon our contractual relationship nor upon your obligation to submit check off monies to Local 464.’
******
“There is no doubt in the Arbitrator’s mind that it was the intent of Local 464, concurred in either actively or passively by the overwhelming majority of the members of Local 464, BCW, and that it was the intent of the Company, that Local 464’s change in international affiliation should mean nothing other than just that — that everything in the Agi'eement made March 26, 1957, should stay precisely as it had been, including the maintenance of membership obligation upon all individual Union members. It was their mutual intent that Local 464, ABC, should perform all obligations formerly adhering to Local 464, BCW, and should possess all of the contractual rights and privileges formerly possessed by Local 464, BCW, in the same degree as would have been the case had Local 464, ABC, been the original signatory to the Agreement of March 26, 1957. The rights of the Local Union and the Company to have this intent completely effectuated without hindrance, restriction, or dilution, in the opinion of the Arbitrator, originates in the following fact fully supported by the testimony and exhibits before the Arbitrator: The negotiation and union administration of the Agreements prior to disaffiliation had always been by Local 464, BCW, without any aid, direction, or guidance from the BCW International Union.”
if -Jr # # *X* #
“The Arbitrator’s conclusions on the matters of the Local Union intent, the Company intent, and the intents of the individual employees involved, clearly add up to an over-all conclusion that Local 464, ABC, functioning as a party to the current Agreement at the time of the hearing, was in fact the same Union entity which was so functioning prior to the disaffiliation action of December 28, 1957.”
As to evidence of the reality of a BCW Local after disaffiliation, the Arbitrator held:
“It is the considered opinion of the Arbitrator, on the basis of all of the evidence before him, that a Local 464, BCW, was maintained subsequent to December 28, 1957, on a paper or phantom basis, without substance, and solely by the International BCW as an outpost in Hershey. There is no convincing evidence before the Arbitrator indicating that a Local 464, BCW, in any realistic sense of the term existed in Hershey during that period, or that whatever so-called Local 464, BCW, did officially exist there was prepared to carry the Union obligations under, or administer the terms of, the Agreement then in effect.”
******
“For these reasons the Arbitrator rejects the contention that there was a bona fide Local 464, BCW, existing and functioning in Hershey during the period immediately following the disaffiliation meeting of December 28, 1957. Since such a Union cannot as a fact be found to have been in existence, it is impossible to accept the contention that, subsequent to December 28, 1957, the maintenance of membership obligation as a condition of employment, under Paragraph 6(a) of the Agreement, was to that Local Union and therefore could not be to Local 464, ABC, as the Union party to this case insists. Since this argument is, in the opinion of the Arbitrator, not supposed by the facts, there appears to be no valid reason why the clear mutual intent of the Union and the Company, as described earlier in this Opinion, should not be ordered into effect by the Arbitrator.”
Concerning the twenty employees for whom the Board ordered reimbursement of dues paid, the Arbitrator found:
“After closely studying the testimony of the three witnesses, Mr. Garrison, Mr. Pitzenberger, and Mr. Powell, the Arbitrator cannot conclude that the twenty individuals here involved sincerely held reasons which, to themselves, were good and sufficient reasons for their apparently strong opposition feelings on the disaffiliation matter. The Arbitrator does not find in the testimony of the three witnesses any substantial factual support for Private Counsel’s suggestion that the preferences of these individuals for BCW over ABC were based upon logical and soundly conceived differences between BCW and ABC.
******
“By way of over-all evaluation of the intent of the group of twenty employees involved here, the testimony of the three witnesses from among the group leaves the Arbitrator no choice other than to regard them as a dissident group whose intent was to keep the matter of their own union status as uncertain, unclear, and unresolved as possible for some purpose on which the Arbitrator could only speculate if he felt called upon to do so.”
At the start of the arbitration proceedings there remained only twenty employees who had not paid dues. After the decision Hershey explained to those people their obligation under it to pay dues delinquencies. Nineteen of the twenty thereafter did pay. The twentieth employee had meanwhile terminated his Hershey job. In August of 1959 the local submitted to Hershey the names of ninety additional employees who had failed to pay dues. The Company also asked them to do so. It did not discharge any employee because of non payment of dues.
In September of 1959 two of the twenty employees, Powell and Landvater, alleging that the forcing of dues payment to ABC Local 464 was unfair labor practice, filed charges with the Board. A complaint was issued and after hearing the Board upheld the charges. It concluded that ABC Local 464 was not the continuation of the original local but in effect a splinter group, the result of a schism in the local. It decided that the arbitration award was no defense to the unfair labor practices which it had found had been committed by Respondents. It ordered reimbursement by the union of dues paid by employees where requests for payment had been sent within six months (the statutory period of limitation) of the commission of the unfair labor practice.
ABC Local 464 objects to enforcement of the Board’s order. Landvater and Powell’s Administratrix think the order should be modified to include reimbursement to all employees to whom Hershey sent letters insisting they pay delinquent dues. Hershey appears affirmatively, urging that in the event the unfair labor practice as determined by the Board be sustained, reimbursement by the union alone should also be approved.
The Board, in its election case (Hershey Chocolate Corporation, 121 N.L.R.B. 901 (1958) ), decided that the local which was a party to the employment contract with Hershey was a different local than ABC Local 464; therefore the maintenance of membership clause in the contract could not be used to force payment of dues to ABC Local 464.
The Board’s present finding, as it states in its decision, depends completely upon “its schism determination”. Unfortunately the latter seems to emanate from the arbitrary inclusion of the sui generis Hershey facts within a broad policy adopted by the Board for dealing with problems arising throughout the country after the expulsion of the BCW International from the AFL-CIO.
The general principles detailed in the Board’s election decision, supra, under the caption “The elements of a schism” say that it must first “ * * * be satisfied that the existing contract can no longer serve to promote industrial stability * * The local action must occur “ * * * in the context of a basic intra union conflict, and not otherwise.” The Board sets out that “ * * * we deem a basic intra union conflict to be any conflict over policy at the highest level of an international union, * * With the broad test for a schism fixed, the Board in one sentence would draw the Hershey situation within it by asserting “With respect to the instant case, the facts set forth above show a policy conflict within the AFL-CIO resulting in the expulsion of BCW on grounds of alleged corruption and the chartering of ABC with substantially the same jurisdiction; these facts establish the existence of a basic intra union conflict.”
On the Board’s own requirements, without which, says the Board, a schism cannot exist, there was no schism here. The labor contract under which Hershey and its employees have been living from 1957 down to the present is the best evidence of the Hershey employer-employee stability. And there was no “basic intra union conflict.” The BCW International was found guilty of corruption by the AFL-CIO and expelled. We see no evidence of a quarrel within the AFL-CIO as to whether it should countenance the corruption and retain BCW. The only issue apparent was, did the charged corruption exist. Once it was so determined, the expulsion of BCW and the chartering of ABC as the Board put it “with substantially the same jurisdiction” was bound to follow.
If it be assumed that “a basic intra union policy” conflict had existed there must have been a real division into factions or opposing bodies because of the conflict in order to constitute a schism. That did not occur. The Board concedes that there was prompt open meeting action by the local which “ * * * was coextensive in scope with the existing unit;”. It was always the local action which controlled 464 and motivated it from its top rulings down through its ordinary routine. All of the bargaining and representation was on that level. The local’s response to the BCW International mess was a united movement by the members to hold fast to their own local and merely change its international connection. There was no substance change in the local. In immediate notification of its position to the employer, the local stressed its “continuance in exactly the same manner as it has functioned hitherto with the exception of the change of international affiliation.” It told the employer:
“We do not deem this as affecting in any way our relationship with you or the company. We will continue to live up to our contract responsibilities and obligations and trust that you will do the same with the local under this new affiliation.”
The officers, the 50 member executive board, the 92 shop representatives remained substantially the same. The local’s office, telephone number, books, all were as before. Its method of dealing with the employer was as it had been through the years. It went on functioning under its old constitution and bylaws; held its regular elections in February 1958. It has been just that way through the new election and certification interval until now. The same local merely changed its international hat. It clearly had a certain true dignity, a pride in itself. It neither sought to be nor was it trapped into becoming some sort of a dissident faction. It remained Local 464, repudiating in its stride the unworthy international and, without breaking a step, taking on a new and honorable association with the ABC International. Local 464, with only a loose link to BCW International, from virtually the moment the necessity of severing that tie was apparent, focused on the single objective of preserving itself. Its every move thereafter was to this end. The record leaves no possible doubt of its deserved success.
The change in name is urged as an element of the local’s newness. That sort of surface dissimilarity points up the need of facing the facts instead of attempting to apply a rigid over-all pattern which may have fitted in some instances but offers no fair solution to the Hershey situation. From all the evidence it must be concluded that the choosing of a new international and indicating that relationship in its name was not a secession movement from the old local. It was merely the local’s members acceptance of the bitter truth that though they and their organization were innocent there was no viable future for them with the BCW International. So, dropping the connection they discarded the soiled name. Joining the ABC International, they included that name in their local masthead and in keeping with their own decency. The old union has not disappeared. Throughout the entire critical time it has operated as the Hershey employees bargaining unit without interruption and successfully. Nor has that operation been in competition with a rival union. There is no substantial evidence in the record which would justify the conclusion that there is other than a paper BCW local at Hershey.
In recognizing that the individuality and identity of Local 464 remained intact we are following N.L.R.B. practice and sound labor law. To survive it was forced to end its dealings with the discredited international. In accomplishing this it publicly took every possible precaution to hold fast to its own entity. What more could have been expected of the local to establish this fundamental has not been suggested. In Continental Oil Co. v. National Labor Relations Board, 113 F.2d 473, 477 (10 Cir., 1940) one of the questions was “The identity of the union”. The Board’s order that the employer bargain with the union was challenged by the employer on the ground that the union was a different organization from that which had negotiated the contract and which bore the name “International Association of Oil Field, Gas Well and Refinery Workers of America”. Judge Bratton, speaking for the court, said:
“Initially the union bore the name of International Association of Oil Field, Gas Well and Refinery Workers of America. It assumed its present name at a convention held in Kansas City in June, 1937. There was no change in officers or central offices; the change was only in name; and continuity of organization was preserved. The designations, correspondence, contracts submitted, and other efforts to bargain collectively on which the order rests, were made, had, submitted, and exerted before the change in name and were therefore in the original name of the union. But the charges were lodged with the Board after the change and were therefore in the new name, and in the order the Board referred to the union in like manner. While it may be said that the change in name included a shift in affiliation from the American Federation of Labor to the Committee for Industrial Organization, there was no such disruption or change of identity as to affect in any manner the validity of the parts of the order requiring petitioner to bargain collectively with the union.”
National Labor Relations Board v. Harris-Woodson Co., 179 F.2d 720, (4 Cir., 1950) is another important opinion in this special area, where again the circumstances closely parallel those in this appeal. The union there changed its name and its national union affiliation. The court held page 723 in an opinion by Judge Parker:
“There is as little substance in the second question raised. It was the local union which the employees chose as their bargaining representative ; and the fact that they desired it to represent them in collective bargaining was not affected by its change either of name or affiliation. On the contrary, it is perfectly clear that the only purpose of these changes was that it might be enabled thereby to bargain in behalf of the employees. Metaphysical arguments as to the nature of the entity with which we are dealing should not be permitted to obscure the substance of what has been done or to furnish a smoke screen behind which the company may with impunity defy the requirements of the statute that it bargain with the representative that its employees have chosen. The identity of that representative, composed entirely of the company’s employees, was not changed either by its change of name or its change of affiliation.”
There had been earlier delays in that matter and the opinion concluded:
“The time has come for it [the employer] to comply with the law without further delay or sophistry. The order of the Board will be enforced.”
Carpinteria Lemon Ass’n v. National Labor Relations Board, 240 F.2d 554, 557 (9 Cir.1956) squarely states the law of this ease when it holds that:
“The right of a successor union to assume the status of certified bargaining agent held by its predecessor depends on a factual issue — is the new union a continuation of the old union under a new name or affiliation or is it a substantially different organization ?”
In supporting the successor union’s continuation of the old union under a new name and new affiliation the Board decided factually that all those differentiations amounted to was no more than as the court stated page 557 of 240 F.2d, “ * * * merely a change of name and affiliation.” It was this finding the court followed.
Prudential Insurance Co., 106 N.L.R.B. 237 (1953) dealt with fairly comparable circumstances. The local in that litigation had divorced itself from its international and assumed the employment contract as an independent local. The international set up a trusteeship for the old local and asked the employer to accept it. The Board held, page 241, that the independent local “ * * * succeeded to the existing contract with the Employer and is currently the administrator of that contract.”
In Chesapeake & Potomac Telephone Co., 89 N.L.R.B. 231, 232 (1950), the Board said, “ * * * the only change which we note in the character and status of the local union is one of designation and affiliation. There is no question of its continuing and current representative position.” That comment could be aptly repeated regarding the unavoidable skeleton measures by Local 464 to preserve its existence and maintain its integrity. Louisville Railway Co., 90 N.L.R.B. 678 (1950) offers another striking resemblance to what happened at Hershey. The local transferred out of its national union to a new group and later joined up with a new national union, the Brotherhood of Railroad Trainmen. 700 members out of a total membership of about 1,120 were in favor of the move. Though as the Board remarked “The facts relating to the contract bar issue are somewhat unusual and complicated”, it found no merit to the cry of “schism” which was raised. It noted, page 682, that to warrant the invoking of that doctrine the result of the “schism” must be that “the normal bargaining relationship between the Employer and the theretofore exclusive representative of its employees has become a matter of such confusion that the relationship between them no longer promotes stability in industrial relations.”
The Board does not discuss the above decisions. It would dispose of them (and all of them are primarily concerned with virtually the Hershey factual picture) by the elliptical pronouncement that they are “inapposite”.
The union complains bitterly at the failure of the Board to accept the arbitration award. We think that under Section 10(a) of the National Labor Relations Act, 29 U.S.C.A. § 160(a) the Board was within its legal authority. But we have serious doubts whether the Board in this instance wisely rejected the arbitration decision. Under the facts we would have been far better satisfied to have seen Dr. Louck’s opinion approved. It seems to us that such course would have resulted in the effectuation of the final adjustment policy declared desirable by Section 203(d) of the Labor Management Relations Act, 1947, 29 U.S.C.A § 173 (d) United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960): United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).
We find no merit in the petition for enlargement of the Board’s order and to . , , mi review and modify that order. The pe- .... ... , . tition will be dismissed.
The petition of the Board for enforcement of its order will be denied.
. John E. Powell, the sole dissenter, has since died.
. Section 10(a) sets out that the Board’s power to prevent unfair labor practices “shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise * * And see N. L. R. B. v. International Union United Auto Workers, 194 F.2d 698, 702 (7 Cir., 1952); N. L. R. B. v. Walt Disney Productions, 146 F.2d 44 (9 Cir., 1944); N. L. R. B. v. Bell Aircraft Corp., 206 F.2d 235 (2 Cir., 1953) ; N. L. R. B. v. Monsanto Chemical Co., 97 N.L.R.B. 517 (1951), enforced 205 F.2d 763 (8 Cir., 1953); N. L. R. B. v. Pacific Intermountain Express Co., 228 F.2d 170, 176 (8 Cir., 1955), cert. den. 351 U.S. 952, 70 S.Ct. 850, 100 L.Ed. 1476 (1956).
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number.
Answer:
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