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songer_r_stid
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01
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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.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
William R. RHEAUME, Plaintiff-Appellee, v. Betsey M. PATTERSON, Defendant-Appellant.
No. 351, Docket 26803.
United States Court of Appeals Second Circuit.
Argued April 14, 1961.
Decided May 10, 1961.
Robert W. Larrow, Burlington, Vt. (McNamara & Larrow, Burlington, Vt., on the brief), for defendant-appellant.
Phyllis I. Armstrong, Middlebury, Vt. (Conley & Foote, Middlebury, Vt., on the brief), for plaintiff-appellee.
Before MEDINA, MOORE and FRIENDLY, Circuit Judges.
MEDINA, Circuit Judge.
Shortly after 8 o’clock on the evening of August 29, 1959, the automobile in which plaintiff was riding as a passenger came into collision with the side and rear end of the car driven by defendants appellant, Betsey M. Patterson. Two young men in their mid-twenties were on their way to a dance in New Haven and they followed Mrs. Patterson out of Vergennes, Ve3*mont, in the direction of Waltham, Vermont, on Route 7. As she was travelling at about 30 miles an hour, Clement A. Ouellette, plaintiff’s companion, decided to pass and he accelerated the speed of his car. At about this time Mrs. Patterson made a left turn into a driveway. The force of the impact was such as to push Mrs. Patterson’s car off the road and into some bushes. Plaintiff was thrown against the windshield of the Ouellette car and the jury awarded him $10,000 for his injuries. The basis of jurisdiction is diversity of citizenship and the law of Vermont is applicable.
The issues of law and fact could scarcely have been less complicated. The trial judge properly ruled that under the controlling Vermont law, if any negligence on the part of Mrs. Patterson was a proximate cause of the accident any negligence on the part of Ouellette constitutes no defense. See Hall v. Royce, 1937, 109 Vt. 99, 192 A. 193, 196; Blondin v. Carr, 1959, 121 Vt. 157, 151 A.2d 121, 123; Ronan v. J. G. Turnbull Co., 1926, 99 Vt. 280, 131 A. 788, 793-794; Hunter v. Preston, 1933, 105 Vt. 327, 166 A. 17; Beatty v. Dunn, 1931, 103 Vt. 340, 154 A. 770; Bennett v. Robertson, 1935, 107 Vt. 202, 177 A. 625, 631, 98 A.L.R. 152; Meyette v. Canadian Pac. Ry., 1939, 110 Vt. 345, 6 A.2d 33.
On Mrs. Patterson’s version of the occurrence she was in no respect negligent. She testified that she slowed down, set her blinker light operating for a left turn and, as she started to turn she suddenly saw the headlights of the Ouellette car bearing down upon her. The state trooper who investigated the accident testified that when the Patterson car was examined and the ignition turned on, the left blinker light began to operate, indicating that it had been turned on and was operating before the collision, as testified by Mrs. Patterson. The state trooper also testified that he smelled alcohol on Ouellette’s breath. It was not disputed that plaintiff had consumed a considerable quantity of beer, some in the morning and more in the afternoon, and the state trooper smelled alcohol on his breath also.
At the time of the collision plaintiff was just finishing lighting a cigarette and “wasn’t paying particular attention,” but he saw no signal on the car ahead. Ouellette, however, testified positively that no signal was given. He also said that while he did not blow his horn, he did attempt to convey the impression that he was about to pass by blinking his lights from low beam to high beam and back.
In his deposition before trial plaintiff testified that he was not working on August 29, 1959, which was a Saturday. He also testified that on that morning he and Ouellette bought a six pack of bottles of beer and they each drank three before they reached Vergennes. He said they spent some time that afternoon at the Pine Griff restaurant where he consumed “maybe 6 or 7 glasses” of draft beer in the afternoon, and that he and Ouellette drank “about” beer for beer. On the trial he said he was mistaken about all this, except that he “did have five or six at the Pine Griff.” He said he worked that day and he corroborated Ouellette’s testimony that Ouellette only drank one bottle of beer in the morning and that they did no drinking whatever together that afternoon at the Pine Griff. Ouellette insisted he only drank one bottle of beer in the morning, about one-half a bottle after he got home for lunch and nothing thereafter. On this version it is strange the state trooper should have noticed alcohol on Ouellette’s breath.
We are urged to reverse because: (1) in his summary of the testimony of the various witnesses for the benefit of the jury the trial judge failed to make specific reference to Mrs. Patterson’s testimony that she signalled with her left turn blinker indicator and he likewise made no specific reference to the corroboration of this by the state trooper’s testimony that the left blinker light started to operate when the ignition was turned on after the accident; (2) the trial judge refused to instruct the jury that the testimony given by plaintiff on his deposition was to be considered not only with reference to his credibility but, as the admission of a party, generally on the issue of whose negligence caused the accident; and (3) that there was not the required expert testimony to warrant submission to the jury of the amount of damages to be awarded “as to future pain and suffering, future disability, impairment of ability to work and loss of wages,” as required by Vermont law.
As, according to plaintiff’s physician, the X-rays showed nothing, he was in the hospital only about two weeks, wore his neck brace for a short time and was out of work for about two months, the verdict of $10,000 would seem to be generous and only to be explained on the theory that the jury were satisfied that plaintiff would suffer some future pain and some future impairment of his ability to work. It may well be that the testimony of Dr. Ray Collins was merely to the effect that the weakness in plaintiff's right arm and his other symptoms “could” have been caused by a pinching of nerves connected with the accident. As there is to be a new trial, we think it not necessary to say more about this phase of the case than to remark that as we read the Vermont cases, Vermont law requires, at least when the injury is obscure, that damages for future pain and suffering, future disability, and future loss of wages or future impairment of capacity to work be supported by expert medical proof, see Tracy v. Massachusetts Bonding & Ins. Co., 1960, 121 Vt. 371, 159 A.2d 86; Emerson v. Hickens, 1933, 105 Vt. 197, 164 A. 381; Howley v. Kantor, 1933, 105 Vt. 128, 163 A. 628; Ryder v. Vermont Last Block Co., 1917, 91 Vt. 158, 99 A. 733, and that when expert medical proof is required, proof of mere possibility standing alone is insufficient. See Burton v. Holden & Martin Lumber Co., 1941, 112 Vt. 17, 20 A.2d 99, 135 A.L.R. 512. Such damages cannot be based on mere speculation and guess work. Howley v. Kantor, supra; Moore v. Grand Trunk Ry., 1919, 93 Vt. 383, 108 A. 334; Baldwin v. Gaines, 1917, 92 Vt. 61, 102 A. 338; Ryder v. Vermont Last Block Co., supra.
The instructions to the jury were so one-sided as to require a reversal of the judgment. Mrs. Patterson’s whole defense rested upon her testimony that she signalled the turn by setting her left blinker light in operation, and the testimony of the state trooper that the left blinker light started to operate as soon as the ignition was turned on after the accident. Since the trial judge undertook to summarize the testimony of the various witnesses, covering plaintiff’s evidence in some detail, but omitted any specific reference to this vital proof, we can draw no other inference than that the omission was prejudicial to the defendant. Especially is this so as counsel for Mrs. Patterson called the omission to the attention of the trial judge. The reason for the omission probably is that the trial judge thought this proof of little consequence as he remarked: “I give it [the blinker signal] a long time ahead to make a turn.” But it was not the function of the trial judge to evaluate and assess the quality and effect of the testimony. This was the function of the jury.
We agree with the statement in appellee’s brief that “the court should state claims and theories of the parties with equal fairness and completeness, and that the charge should be full, fair and complete,” but we cannot agree that the instructions given in this case measured up to that standard.
In a similar manner the trial judge seems to have been so impressed with the fact that plaintiff’s employer’s records showed he worked three and a half hours on August 29, 1959, instead of not working at all as testified on the deposition, that he thought plaintiff was probably telling the truth when he said at the trial he was mistaken about the drinking by Ouellette on the day of the accident. Indeed, when, at a side bar conference at the conclusion of the charge, counsel for defendant called the court’s attention to these prior contra.dictory . statements- and requested some .reference to them and an instruction that these were admissions by a party under oath and “are direct evidence which they may consider,” the trial judge "not only brushed this request aside without comment, but he proceeded to discuss at some length the “undisputed” evidence that plaintiff was in error when he testified on his deposition that he ' did not work on the day of the accident. In conclusion he commented: “There are other statements somewhat contradictory in the deposition which you can consider in determining the credibility of his story.”
The refusal to charge as requested, and the supplemental instruction given, constitute in our opinion highly prejudicial error, also requiring a reversal of the judgment and a new trial. Plaintiff’s testimony on deposition that Oüellette had been drinking during the ■morning and in the afternoon prior to ■the accident constituted the admission of a party and, consequently, under the law of Vermont, as generally, was admissible as evidence of the fact asserted as well as on plaintiff’s credibility as a witness, providing, of course, that it was material and relevant. Hall v. Royce, supra; Bennett v. Robertson, supra; Blanchard v. Paltiel, 1934, 106 Vt. 510, 175 A. 226; Robinson v. Leonard, 1926, 100 Vt. 1, 134 A. 706. Obviously it was relevant to the basic issue whether defendant was in any way responsible for the collision. While any negligence of Ouellette could not be imputed to plaintiff, plaintiff could not recover if defendant’s actions were not even in part a proximate cause of the accident. See Beatty v. Dunn, supra; Bennett v. Robertson, supra; Meyette v. Canadian Pac. Ry., supra. Moreover, it was also relevant to the important issue of Ouellette’s credibility, for if the jury believed plaintiff’s testimony on -deposition, they might conclude that at the time of the accident Ouellette’s capacity to observe was impaired, and hence refuse to credit his version of how the accident occurred. See 3 Wigmore, Evidence, Section 933 (1940); McCormick, Evidence, Section 45, at p. 98 (1954).
What impression the trial judge may have had as to the amount of Ouellette’s drinking that day and as to his credibility in general was of no more legal consequence than the impressions he might have entertained on the subject of who> was responsible for the accident. The determination of these issues was for the jury, not the judge.
Reversed and remanded.
Question: What is the state of the first listed state or local government agency that is a respondent?
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_source
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
LITTLE BEAVER ENTERPRISES, a Partnership, Appellee, v. The HUMPHREYS RAILWAYS, INCORPORATED, Appellant, and Hynautic, Inc., Defendant.
No. 83-1123.
United States Court of Appeals, Fourth Circuit.
Argued July 13, 1983.
Decided Oct. 5, 1983.
Mark T. Coberly, Norfolk, Va. (John M. Ryan, Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for appellant.
William A. DeStefano, Philadelphia, Pa. (Oliver, DeStefano, Pentima & Partridge, Philadelphia, Pa., on brief), for appellee.
Before PHILLIPS, SPROUSE and ERVIN, Circuit Judges.
SPROUSE, Circuit Judge:
Humphreys Railways, Inc. appeals from the district court judgment awarding Little Beaver Enterprises $7,691 to cover the costs of replacing a hydraulic steering system for its fishing vessel, the IMPERIAL. • Humphreys attacks both the finding of liability and the award of damages, arguing: (1) that the trial court was clearly erroneous in its finding of breach of warranty; (2) that the trial court erred as a matter of law in allowing Little Beaver to recover when it failed to comply strictly with the repair contract’s 30-day written notice requirement; and (3) that the trial court’s damage award was not based on sufficient evidence in the record. We disagree with the appellant’s first two arguments for the reasons set out below, and affirm the liability part of the district court’s judgment. The argument concerning the damage award has merit, and we vacate that part of the judgment and remand for further proceedings.
Little Beaver Enterprises (Little Beaver), a partnership comprised of Ronald Frantz and James Feifer, owns and operates the fishing vessel IMPERIAL. Humphreys Railways, Inc. (Humphreys), specializes in marine repairs, maintenance, and service. In early November, 1980, Little Beaver contacted Humphreys concerning the possibility of having the IMPERIAL overhauled. In conjunction with the general overhaul, Little Beaver also was interested in having the IMPERIAL’S manual steering system replaced with a hydraulic system. George Edwards, Humphreys’ manager, informed Little Beaver’s owners that his firm was capable of performing the steering installation, and promised to “shop” for the best system, secure price information and again contact Little Beaver. Several days later Edwards recommended the “Hynautic Steering System,” produced by Hynautic, Inc., for installation in the IMPERIAL. Little Beaver accepted the recommendation, and later signed Humphreys’ standard work order contract containing, among other things, two paragraphs limiting the repair firm’s liability to defective workmanship or material.
Humphreys completed the overhaul and installation work on the IMPERIAL around the beginning of December, 1980. Manned by its owners Frantz and Feifer, the vessel was relaunched without sea trials and immediately set out for Hampton, Virginia. The IMPERIAL experienced persistent steering difficulties throughout the voyage, but reached Hampton safely the same day. The following morning Little Beaver notified Humphreys, by telephone, about the steering problems. Humphreys arranged, through a Hampton contractor, to send a welder to the IMPERIAL to effect repairs. The welder apparently completed his work according to instructions, but the Hynautics Steering System was still inadequate to control the IMPERIAL when she was loaded above 50% capacity. The vessel left Hampton for its home port of Cape May, New Jersey, where, after a difficult voyage, Little Beaver’s owners personally replaced the Hynautic system with a different system.
Little Beaver subsequently brought suit against Humphreys in the United States District Court for the Eastern District of Virginia, alleging defective workmanship and breaches of the implied warranties of merchantability and fitness for a particular purpose. Humphreys cross-claimed for the amount of its repair bill still owed by Little Beaver. The trial court, sitting in admiralty without a jury, ruled in favor of Little Beaver on the defective workmanship claim and awarded judgment in the amount of $7,691. The judgment award was set-off against the monies owed Humphreys on its cross-claim, resulting in an actual cash award of $1,014.
Humphreys argues on appeal that the trial court was clearly erroneous in finding liability based on defective workmanship. It concedes that the Hynautics Steering System it selected and installed in the IMPERIAL was inadequate to control a trawler of its size and tonnage, but argues that this mistake could not be grounds for liability. The selection and installation of an inadequate steering system, Humphreys argues, does not fall into the ambit of interests protected by a warranty against defective workmanship, but rather is actionable under the warranty of fitness for a particular purpose, if at all.
Humphreys’ interpretation of its warranty against defective workmanship is too narrow. The warranty imposed on a contractor in admiralty is to effect ship repairs in a workmanlike manner. See Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956); Italia Societa Per Azioni Di Navigazione v. Oregon Stevedoring Co., 876 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964); H & H Ship Service Co. v. Weyerhaeuser Line, 382 F.2d 711 (9th Cir.1967); American Export Lines v. Norfolk Shipbuilding & Drydock Corp., 336 F.2d 525 (4th Cir.1964); Booth Steamship Co. v. Meier & Oelhaf Co., 262 F.2d 310 (2d Cir.1958); see also 9 Williston, Contracts § 1012C at 38-39. This warranty need not be express to bind the ship repairer to use the degree of diligence, attention and skill adequate to complete the task. See Coffman v. Hawkins & Hawkins Drilling Co., Inc., 594 F.2d 152 (5th Cir.1979); Tebbs v. Baker-Whiteley Towing Co., 407 F.2d 1055 (4th Cir.1969). The warranty of workmanlike service, of course, does not make the repairer a guarantor of the results. Where it has performed its tasks as a skillful workman should, or where its efforts have been hindered by the actions of the other contracting party, the repair firm will not be held responsible for defects attributable to faulty workmanship. See Coffman, 594 F.2d at 155; see also Weyerhaeuser Steamship Co. v. Nacirema Oper. Co., 355 U.S. 563, 567, 78 S.Ct. 438, 440, 2 L.Ed.2d 491 (1958). However, the warranty is otherwise very broad. It is “comparable to a manufacturer’s warranty of the soundness of its manufactured product.” Ryan, 350 U.S. at 133-34, 76 S.Ct. at 237. It has been applied to find fault where repair jobs are improperly performed; see, e.g., Booth Steamship Co., supra, (engine repair contractor); where the misdelivery of goods has caused monetary damages to shipowners, see, e.g., David Crystal, Inc. v. Cunard Steam-Ship Co., 339 F.2d 295, 299 (2d Cir.1964); and where efforts intended to prevent damage to a ship have been ineffective, see, e.g., Fairmont Shipping Corp. v. Chevron Internad Oil Co., Inc., 511 F.2d 1252 (2d Cir. 1975). Significantly, the warranty of workmanlike service has been recognized as a ground for liability where the equipment chosen for a specific purpose is defective or unsafe. Italia Societa, 876 U.S. at 321, 84 S.Ct. at 752; Booth Steamship Co., 262 F.2d at 314; American Presidents Lines Ltd. v. Marine Terminals Corp., 234 F.2d 753, 759 (9th Cir.1956).
The significance admiralty law has historically attached to the repairer-shipowner relationship weighs heavily against Humphreys’ narrow interpretation of its duties to Little Beaver. Limitations on the “warranty of workmanlike service are not looked upon with favor and are strictly construed.” Elgie & Co. v. Steamship “S.A. Nederburg,” 599 F.2d 1177, 1183 (2d Cir.1979). Viewed in this light, the trial court’s finding that Humphreys’ selection and installation of an inadequate steering system constituted defective workmanship easily survives the clearly erroneous standard of review and, indeed, has substantial support in the evidence. Humphreys selected the Hynautic system after representing to Little Beaver that it could perform the installation work. It exercised complete control over the installation process and could have checked with Hynautic directly concerning the suitability of its system for the IMPERIAL. Moreover, it had the opportunity to correct the steering deficiencies once they were discovered, but failed to effect the necessary repairs. Taken together, these facts clearly show that Humphreys did not exert the workmanlike efforts expected of a maritime repair firm under any reasonable reading of its contractual responsibilities.
Humphreys further argues that, even if it is liable for breach of its express warranty against defective workmanship, Little Beaver is barred from recovering because of its failure to comply with the contract’s 30-day written notice requirement. The trial court considered and rejected this argument, ruling that Humphreys accepted actual notice of the defective workmanship performed on the IMPERIAL, and thereby relieved Little Beaver of the written notice requirement. Humphreys does not contest the trial court’s finding that it had, and acted on, the actual notice given by Little Beaver. Rather, it contends that the actual notice, given orally, was inadequate to supplant the contract’s written notice provision. We disagree. Like other contract provisions, the requirement of written notice may be waived. 6 S. Williston Contracts §§ 887B, 887BB (3d ed. 1962 & Supp. 1982) ; see also 28 Am.Jur.2d Estoppel and Waiver § 162 (1966 & Supp.1983). The waiver need not be expressed to be effective; it is sufficient if the acts or conduct of one party evidences an intention to relieve the other party of his duty to strictly comply with the contract terms. 28 Am.Jur.2d Estoppel and Waiver § 160 (1966 & Supp. 1983) . Generally, this implied waiver is most often recognized where the party’s conduct is inconsistent with any other intention than the waiver of contract rights or where the party accepts alternative performance which provides roughly the same protections as strict performance would have provided. Id. The instant case has both elements present. The timing of Little Beaver’s notice was prompt, coming only a day after the IMPERIAL left Humphreys’ workyards. Humphreys obviously considered the notice to be effective, for it immediately acted, albeit unsuccessfully, to correct the defects in its workmanship by sending a welder to the IMPERIAL. Moreover, there is no disputing that the notice was sufficiently specific to permit Humphreys to gauge the extent of the problems the IMPERIAL was experiencing. Nor is there any doubt that Humphreys was presented with a reasonable opportunity to effect repairs within the 30-day notice period. In sum, Humphreys not only acted on Little Beaver’s oral notice, but the notice gave Humphreys every substantive protection strict compliance with the contract would have provided.
There is merit, however, in Humphreys’ challenge to the $7,691 damage award and we remand for a correct determination of damages. The trial court, as a fact-finder, possesses considerable discretion in fixing damages, and its decision will be upheld absent clear error. See Thompson v. National Railroad Passenger Corp., 621 F.2d 814, 823 (6th Cir.1980). However, the trial court, as a threshold requirement, must expose “the measure of damages and method of computation,” both to inform the litigants of the basis for its findings and to afford the appellate court “a possibility of intelligent review.” Safer v. Perper, 569 F.2d 87, 100 (D.C.Cir.1977). The trial court’s findings in the instant case fall below this requirement and have little support in the evidence. The $5,160 labor cost component of the award, for example, is virtually unexplained, either by the trial court’s opinion or by reference to the trial record. It appears the trial court arrived at the figure by estimating what Little Beavers’ partners would have earned for the month of December had they fished instead of worked on the IMPERIAL’S steering system. The use of this method of computation, however, directly contradicts the trial court’s conclusion of law, that Humphreys’ liability could not include consequential damages in light of the contract’s limiting language. The trial court’s findings regarding the $15 an hour value of Frantz and Feifer’s labor, the allowed expenses of $67 for meals and $265 for emergency labor costs, and the inclusion in the award of $600 for William Weary, are likewise insufficiently explained and unsupported by evidence adduced at trial.
Accordingly, the damages part of the district court’s judgment is vacated and remanded for further proceedings consistent with this opinion. The liability part of its judgment is affirmed.
AFFIRMED IN PART, VACATED IN PART AND REMANDED.
. The work order contract listed items for which Humphreys would be potentially liable, including a damage limitation on the warranty for workmanlike service:
In case of defective workmanship or material, our [Humphreys’] liability is limited strictly to the cost of repair, correction or replacement thereof____ We shall not be liable for any consequential damages whatsoever, including but not limited to, lost revenue, crew wages, salvage or tug expense, delay or loss of use.
Another provision reinforced the theme of limited liability: “The foregoing is in lieu of all warranties and liabilities, whether statutory, expressed or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose and workmanlike service.” The first quoted language, however, is an express warranty against defective workmanship, so like the trial court, we need not decide whether this last paragraph is an effective disclaimer.
. Humphreys originally had considered installing the Wagner system in the IMPERIAL, but instead opted for the Hynautic’s steering mechanism. Little Beaver selected the Wagner as the replacement after discovering from several sources, including Hynautics itself, that the system installed by Humphreys was never designed for use in a vessel the size and tonnage of the IMPERIAL.
. The original complaint also named Hynautic, Inc., producer of the steering system, as co-defendant. Hynautic was later dismissed from the suit after the trial court heard all the evidence. Little Beaver has not appealed that dismissal.
. Under Humphreys’ theory, Little Beaver would be without a remedy, since the contract disclaimed the warranty of fitness for a particular purpose.
. The warranty of workmanlike service traces its origins, in the admiralty context, to the United States Supreme Court decision in Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). Its early applications frequently involved shipowner suits, against Stevedore companies, seeking indemnity for damages paid to injured workmen. See, e.g., Ryan, supra; Ita lia Societa Per Azioni Di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964). While its applicability to shipboard personal injury cases has been statutorily changed by the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act of 1927, 33 U.S.C. §§ 901 et seq., (1976 & Supp.) see, e.g., Scindia Steam Navigation Co. v. Lauro De Los Santos, 451 U.S. 156, 164-65, 101 S.Ct. 1614, 1620, 68 L.Ed.2d 1 (1981), the warranty of workmanlike service has continued vitality in other areas of admiralty. See Fairmont Shipping Corp. v. Chevron Internat’l Oil Co., 511 F.2d 1252 (2nd Cir. 1975) (applicable to tonnage contracts); David Crystal, Inc. v. Cunard Steam-Ship Co., 339 F.2d 295 (2d Cir.1964) (misdelivery of goods). See also, Gorman, Ryan Indemnity in Maritime Property Damages Cases: What of Proportionate Fault, 8 U.BaltL.Rev. 42-69 (1978).
. The relevant contract language provides: “In case of defective workmanship or material, our [Humphreys Railways] liability is limited strictly to the cost of repair, correction or replacement thereof, and only where such defects are reported to us in writing within thirty days after completion of the work, (emphasis added)
. Humphreys cites the Sixth Circuit’s decision in Standard Alliance Industries, Inc. v. Black Clawson Co., 587 F.2d 813 (6th Cir.1978), cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60 L.Ed.2d 396 (1979), to buttress its argument, that the provision of actual notice of defects did not relieve Little Beaver from the further duty to provide written notice. We find this case to be inapplicable to the situation confronted here. Standard Alliance dealt with a sale of goods under Ohio’s Uniform Commercial Code and the statutory duty thereunder to provide the seller with reasonable notice of a breach or “be barred from any remedy.” UCC § 2-607(3)(a). The case sub judice, by contrast, involves a service contract, not covered by the UCC, which contains an expressed 30-day notice requirement. Moreover, the Standard Alliance Court confronted the situation wherein the seller of the goods made an apparently successful attempt to correct the noted defects, terminated his curative efforts and subsequently received no further notice that the problems had resurfaced until sued almost a year later. The evidence indicates Humphreys’ repair effort was not even marginally adequate to cure the noted defects.
. The trial court used a pre-trial exhibit offered by Little Beaver as the apparent source of its damage calculations. We note, however, that the exhibit was denied admission into evidence upon objection by Humphreys’ counsel. It could not, therefore, serve as the basis for the subsequent damage award.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
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sc_issuearea
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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.
UNITED STATES v. GOODWIN
No. 80-2195.
Argued April 21, 1982
Decided June 18, 1982
Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, Rehnquist, and O’Connor, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, post, at 385. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, at 386.
Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Shapiro, and Robert J. Erickson.
Paul W. Spence, by appointment of the Court, 454 U. S. 1138, argued the cause and filed a brief for respondent.
Justice Stevens
delivered the opinion of the Court.
This case involves presumptions. The question presented is whether a presumption that has been used to evaluate a judicial or prosecutorial response to a criminal defendant’s exercise of a right to be retried after he has been convicted should also be applied to evaluate a prosecutor’s pretrial response to a defendant’s demand for a jury trial.
After the respondent requested a trial by jury on pending misdemeanor charges, he was indicted and convicted on a felony charge. Believing that the sequence of events gave rise to an impermissible appearance of prosecutorial retaliation against the defendant’s exercise of his right to be tried by jury, the United States Court of Appeals for the Fourth Circuit reversed the felony conviction. 637 F. 2d 250. Because this case presents an important question concerning the scope of our holdings in North Carolina v. Pearce, 395 U. S. 711, and Blackledge v. Perry, 417 U. S. 21, we granted the Government’s petition for certiorari. 454 U. S. 1079.
1-4
Respondent Goodwin was stopped for speeding by a United States Park Policeman on the Baltimore-Washington Parkway. Goodwin emerged from his car to talk to the policeman. After a brief discussion, the officer noticed a clear plastic bag underneath the armrest next to the driver’s seat of Goodwin’s car. The officer asked Goodwin to return to his car and to raise the armrest. Respondent did so, but as he raised the armrest he placed the car into gear and accelerated rapidly. The car struck the officer, knocking him first onto the back of the car and then onto the highway. The policeman returned to his car, but Goodwin eluded him in a high-speed chase.
The following day, the officer filed a complaint in the District Court charging respondent with several misdemeanor and petty offenses, including assault. Goodwin was arrested and arraigned before a United States Magistrate. The Magistrate set a date for trial, but respondent fled the jurisdiction. Three years later Goodwin was found in custody in Virginia and was returned to Maryland.
Upon his return, respondent’s case was assigned to an attorney from the Department of Justice, who was detailed temporarily to try petty crime and misdemeanor cases before the Magistrate. The attorney did not have authority to try felony cases or to seek indictments from the grand jury. Respondent initiated plea negotiations with the prosecutor, but later advised the Government that he did not wish to plead guilty and desired a trial by jury in the District Court.
The case was transferred to the District Court and responsibility for the prosecution was assumed by an Assistant United States Attorney. Approximately six weeks later, after reviewing the case and discussing it with, several parties, the prosecutor obtained a four-count indictment charging respondent with one felony count of forcibly assaulting a federal officer and three related counts arising from the same incident. A jury convicted respondent on the felony count and on one misdemeanor count.
Respondent moved to set aside the verdict on the ground of prosecutorial vindictiveness, contending that the indictment on the felony charge gave rise to an impermissible appearance of retaliation. The District Court denied the motion, finding that “the prosecutor in this case has adequately dispelled any appearance of retaliatory intent.”
Although the Court of Appeals readily concluded that “the prosecutor did not act with actual vindictiveness in seeking a felony indictment,” 637 F. 2d, at 252, it nevertheless reversed. Relying on our decisions in North Carolina v. Pearce, supra, and Blackledge v. Perry, supra, the court held that the Due Process Clause of the Fifth Amendment prohibits the Government from bringing more serious charges against a defendant after he has invoked his right to a jury trial, unless the prosecutor comes forward with objective evidence to show that the increased charges could not have been brought before the defendant exercised his rights. Because the court believed that the circumstances surrounding the felony indictment gave rise to a genuine risk of retaliation, it adopted a legal presumption designed to spare courts the “unseemly task” of probing the actual motives of the prosecutor. 637 F. 2d, at 255.
II
To punish a person because he has done what the law plainly allows him to do is a due process violation “of the most basic sort.” Bordenkircher v. Hayes, 434 U. S. 357, 363. In a series of cases beginning with North Carolina v. Pearce and culminating in Bordenkircher v. Hayes, the Court has recognized this basic — and itself uncontroversial — principle. For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.
The imposition of punishment is the very purpose of virtually all criminal proceedings. The presence of a punitive motivation, therefore, does not provide an adequate basis for distinguishing governmental action that is fully justified as a legitimate response to perceived criminal conduct from governmental action that is an impermissible response to noncriminal, protected activity. Motives are complex and difficult to prove. As a result, in certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to “presume” an improper vindictive motive. Given the severity of such a presumption, however — which may operate in the absence of any proof of an improper motive and thus may block a legitimate response to criminal conduct — the Court has done so only in cases in which a reasonable likelihood of vindictiveness exists.
In North Carolina v. Pearce, the Court held that neither the Double Jeopardy Clause nor the Equal Protection Clause prohibits a trial judge from imposing a harsher sentence on retrial after a criminal defendant successfully attacks an initial conviction on appeal. The Court stated, however, that “[i]t can hardly be doubted that it would be a flagrant violation [of the Due Process Clause] of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside.” 395 U. S., at 723-724. The Court continued:
“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” Id., at 725.
In order to assure the absence of such a motivation, the Court concluded:
“[WJhenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the. factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” Id., at 726.
In sum, the Court applied a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.
In Blackledge v. Perry, 417 U. S. 21, the Court confronted the problem of increased punishment upon retrial after appeal in a setting different from that considered in Pearce. Perry was convicted of assault in an inferior court having exclusive jurisdiction for the trial of misdemeanors. The court imposed a 6-month sentence. Under North Carolina law, Perry had an absolute right to a trial de novo in the Superior Court, which possessed felony jurisdiction. After Perry filed his notice of appeal, the prosecutor obtained a felony indictment charging him with assault with a deadly weapon. Perry pleaded guilty to the felony and was sentenced to a term of five to seven years in prison.
In reviewing Perry’s felony conviction and increased sentence, this Court first stated the essence of the holdings in Pearce and the cases that had followed it:
“The lesson that emerges from Pearce, Colten, and Chaffin is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of ‘vindictiveness.’” 417 U. S., at 27.
The Court held that the opportunities for vindictiveness in the situation before it were such “as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case.” Ibid. It explained:
“A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant's conviction becomes final, and may even result in a formerly convicted defendant’s going free. And, if the prosecutor has the means readily at hand to discourage such appeals — by ‘upping the ante’ through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy — the State can insure that only the most hardy defendants will brave the hazards of a de novo trial.” Id., at 27-28.
The Court emphasized in Blackledge that it did not matter that no evidence was present that the prosecutor had acted in bad faith or with malice in seeking the felony indictment. As in Pearce, the Court held that the likelihood of vindictiveness justified a presumption that would free defendants of apprehension of such a retaliatory motivation on the part of the prosecutor.
Both Pearce and Blackledge involved the defendant’s exercise of a procedural right that caused a complete retrial after he had been once tried and convicted. The decisions in these cases reflect a recognition by the Court of the institutional bias inherent in the judicial system against the retrial of issues that have already been decided. The doctrines of stare decisis, res judicata, the law of the case, and double jeopardy all are based, at least in part, on that deep-seated bias. While none of these doctrines barred the retrials in Pearce and Blackledge, the same institutional pressure that supports them might also subconsciously motivate a vindictive pros-ecutorial or judicial response to a defendant’s exercise of his right to obtain a retrial of a decided question.
In Bordenkircher v. Hayes, 434 U. S. 357, the Court for the first time considered an allegation of vindictiveness that arose in a pretrial setting. In that case the Court held that the Due Process Clause of the Fourteenth Amendment did not prohibit a prosecutor from carrying out a threat, made during plea negotiations, to bring additional charges against an accused who refused to plead guilty to the offense with which he was originally charged. The prosecutor in that case had explicitly told the defendant that if he did not plead guilty and “save the court the inconvenience and necessity of a trial” he would return to the grand jury to obtain an additional charge that would significantly increase the defendant’s potential punishment. The defendant refused to plead guilty and the prosecutor obtained the indictment. It was not disputed that the additional charge was justified by the evidence, that the prosecutor was in possession of this evidence at the time the original indictment was obtained, and that the prosecutor sought the additional charge because of the accused’s refusal to plead guilty to the original charge.
In finding no due process violation, the Court in Borden-kircher considered the decisions in Pearce and Blackledge, and stated:
“In those cases the Court was dealing with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction — a situation ‘very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.’ Parker v. North Carolina, 397 U. S. 790, 809 (opinion of Brennan, J.).” 434 U. S., at 362.
The Court stated that the due process violation in Pearce and Blackledge “lay not in the possibility that a defendant might be deterred from the exercise of a legal right. . . but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction.” 434 U. S., at 363.
The Court held, however, that there was no such element of punishment in the “give-and-take” of plea negotiation, so long as the accused “is free to accept or reject the prosecution’s offer.” Ibid. The Court noted that, by tolerating and encouraging the negotiation of pleas, this Court had accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his constitutional right to stand trial. The Court concluded:
“We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.” Id., at 365.
The outcome in Bordenkircher was mandated by this Court’s acceptance of plea negotiation as a legitimate process. In declining to apply a presumption of vindictiveness, the Court recognized that “additional” charges obtained by a prosecutor could not necessarily be characterized as an impermissible “penalty.” Since charges brought in an original indictment may be abandoned by the prosecutor in the course of plea negotiation — in often what is clearly a “benefit” to the defendant — changes in the charging decision that occur in the context of plea negotiation are an inaccurate measure of improper prosecutorial “vindictiveness.” An initial indictment — from which the prosecutor embarks on a course of plea negotiation — does not necessarily define the extent of the legitimate interest in prosecution. For just as a prosecutor may forgo legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded.
h-4 h-4 HH
This case, like Bordenkircher, arises from a pretrial decision to modify the charges against the defendant. Unlike Bordenkircher, however, there is no evidence in this case that could give rise to a claim of actual vindictiveness; the prosecutor never suggested that the charge was brought to influence the respondent’s conduct. The conviction in this case may be reversed only if a presumption of vindictiveness — applicable in all cases — is warranted.
There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor’s assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins — and certainly by the time a conviction has been obtained — it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.
In addition, a defendant before trial is expected to invoke procedural rights that inevitably impose some “burden” on the prosecutor. Defense counsel routinely file pretrial motions to suppress evidence; to challenge the sufficiency and form of an indictment; to plead an affirmative defense; to request psychiatric services; to obtain access to government files; to be tried by jury. It is unrealistic to assume that a prosecutor’s probable response to such motions is to seek to penalize and to deter. The invocation of procedural rights is an integral part of the adversary process in which our criminal justice system operates.
Thus, the timing of the prosecutor’s action in this case suggests that a presumption of vindictiveness is not warranted. A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct. As we made clear in Bor-denkircher, the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.
The nature of the right asserted by the respondent confirms that a presumption of vindictiveness is not warranted in this case. After initially expressing an interest in plea negotiation, respondent decided not to plead guilty and requested a trial by jury in District Court. In doing so, he forced the Government to bear the burdens and uncertainty of a trial. This Court in Bordenkircher made clear that the mere fact that a defendant refuses to plead guilty and forces the government to prove its case is insufficient to warrant a presumption that subsequent changes in the charging decision are unjustified. Respondent argues that such a presumption is warranted in this case, however, because he not only requested a trial — he requested a trial by jury.
We cannot agree. The distinction between a bench trial and a jury trial does not compel a special presumption of prosecutorial vindictiveness whenever additional charges are brought after a jury is demanded. To be sure, a jury trial is more burdensome than a bench trial. The defendant may challenge the selection of the venire; the jury itself must be impaneled; witnesses and arguments must be prepared more carefully to avoid the danger of a mistrial. These matters are much less significant, however, than the facts that before either a jury or a judge the State must present its full case against the accused and the defendant is entitled to offer a full defense. As compared to the complete trial de novo at issue in Blackledge, a jury trial — as opposed to a bench trial — does not require duplicative expenditures of prosecu-torial resources before a final judgment may be obtained. Moreover, unlike the trial judge in Pearce, no party is asked “to do over what it thought it had already done correctly.” A prosecutor has no “personal stake” in a bench trial and thus no reason to engage in “self-vindication” upon a defendant’s request for a jury trial. Perhaps most importantly, the institutional bias against the retrial of a decided question that supported the decisions in Pearce and Blackledge simply has no counterpart in this case.
There is an opportunity for vindictiveness, as there was in Colten and Chaffin. Those cases demonstrate, however, that a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule. As Blackledge makes clear, “the Due Process Clause is not offended by all possibilities of increased punishment . . . but only by those that pose a realistic likelihood of ‘vindictiveness.’” 417 U. S., at 27. The possibility that a prosecutor would respond to a defendant’s pretrial demand for a jury trial by bringing charges not in the public interest that could be explained only as a penalty imposed on the defendant is so unlikely that a presumption of vindictiveness certainly is not warranted.
IV
In declining to apply a presumption of vindictiveness, we of course do not foreclose the possibility that a defendant in an appropriate case might prove objectively that the prosecutor’s charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do. In this case, however, the Court of Appeals stated: “On this record we readily conclude that the prosecutor did not act with actual vindictiveness in seeking a felony indictment.” 637 F. 2d, at 252. Respondent does not challenge that finding. Absent a presumption of vindictiveness, no due process violation has been established.
The judgment of the Court of Appeals is reversed. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.
At that time, there was no statutory provision allowing a trial by jury before a magistrate.
By affidavit, the Assistant United States Attorney later set forth his reasons for this action: (1) he considered respondent’s conduct on the date in question to be a serious violation of law, (2) respondent had a lengthy history of violent crime, (3) the prosecutor considered respondent’s conduct to be related to major narcotics transactions, (4) the prosecutor believed that respondent had committed perjury at his preliminary hearing, and (5) respondent had failed to appear for trial as originally scheduled. The Government attorney stated that his decision to seek a felony indictment was not motivated in any way by Goodwin’s request for a jury trial in District Court.
App. to Pet. for Cert. 22a; cf. n. 2, supra. The District Court considered the merits of respondent’s motion even though it was not timely filed in accordance with Rule 12(b)(1) of the Federal Rules of Criminal Procedure. The District Court found sufficient “cause” for respondent’s procedural default pursuant to Federal Rule of Criminal Procedure 12(f). The Court of Appeals did not consider the propriety of the District Court’s ruling in this regard and neither do we.
“[F]or an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is “patently unconstitutional.’” Bordenkircher v. Hayes, 434 U. S. 357, 363 (quoting Chaffin v. Stynchcombe, 412 U. S. 17, 32-33, n. 20).
Two subsequent cases developed the principles set forth in Pearce. In Colten v. Kentucky, 407 U. S. 104, the Court refused to apply the prophylactic rule of Pearce to an allegation of vindictiveness that arose in a case involving Kentucky’s two-tier system for adjudicating less serious criminal charges. In that system, a defendant who is convicted and sentenced in an inferior court is entitled to a trial de novo in a court of general jurisdiction. The defendant in Colten exercised that right and received a more severe sentence from the court of general jurisdiction. This Court found that “[t]he possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system.” 407 U. S., at 116. The Court emphasized that the second trial was conducted, and the final sentence was imposed, by a different court that was not asked “to do over what it thought it had already done correctly.” Id., at 117. The Court noted: “It may often be that the superior court will impose a punishment more severe than that received from an inferior court. But it no more follows that such a sentence is a vindictive penalty for seeking a superior court trial than that the inferior court imposed a lenient penalty.” Ibid. Ultimately, the Court described the sentence received from the inferior tribunal as “in effect. . . no more than an offer in settlement.” Id., at 119.
In Chaffin v. Stynchcombe, 412 U. S. 17, the Court held that the prophylactic rule of Pearce does not apply when the second sentence is imposed on retrial by a jury. The Court emphasized that the decision in Pearce “was premised on the apparent need to guard against vindictiveness in the resentencing process.” 412 U. S., at 25 (emphasis in original). The Court found that the possibility of vindictiveness was de minimis when resentencing was by jury in a properly controlled retrial. The Court noted that (1) the jury typically will not be aware of the prior sentence, (2) the jury, unlike a judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication, and (3) the jury will not likely be sensitive to the institutional interests that might occasion higher sentences by a judge desirous of discouraging what he regards as meritless appeals. Id., at 26-27.
The Court held that in pleading guilty Perry had not waived the right “not to be haled into court at all upon the felony charge.” 417 U. S., at 30.
“There is, of course, no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment against Perry.” Id., at 28.
The presumption again could be overcome by objective evidence justifying the prosecutor’s action. The Court noted: “This would clearly be a different case if the State had shown that it was impossible to proceed on the more serious charge at the outset, as in Diaz v. United States, 223 U. S. 442.” Id., at 29, n. 7.
The prosecutor advised the defendant that he would obtain an indictment under the Kentucky Habitual Criminal Act, which would subject the accused to a mandatory sentence of life imprisonment by reason of his two prior felony convictions. Absent the additional indictment, the defendant was subject to a punishment of 2 to 10 years in prison.
Cf. 434 U. S., at 364-365 (“To hold that the prosecutor’s desire to induce a guilty plea. . . may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself’). If a prosecutor could not threaten to bring additional charges during plea negotiation, and then obtain those charges when plea negotiation failed, an equally compelling argument could be made that a prosecutor’s initial charging decision could never be influenced by what he hoped to gain in the course of plea negotiation. Whether “additional” charges were brought originally and dismissed, or merely threatened during plea negotiations, the prosecutor could be accused of using those charges to induce a defendant to forgo his right to stand trial. If such use of “additional” charges were presumptively invalid, the institution of plea negotiation could not survive. Thus, to preserve the plea negotiation process, with its correspondent advantages for both the defendant and the State, the Court in Bordenkircher held that “additional” charges may be used to induce a defendant to plead guilty. Once that conclusion was accepted, it necessarily followed that it did not matter whether the “additional” charges were obtained in the original indictment or merely threatened in plea negotiations and obtained once those negotiations broke down. In the former situation, the prosecutor could be said simply to have “anticipated” that the defendant might refuse to plead guilty and, as a result, to have placed his “threat” in the original indictment. Cf. id., at 360-361 (“As a practical matter, in short, this case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain”).
The decision in Bordenkircher also was influenced by the fact that, had the Court recognized a distinction of constitutional dimension between the dismissal of charges brought in an original indictment and the addition of charges after plea negotiation, the aggressive prosecutor would merely be prompted “to bring the greater charge initially in every case, and only thereafter to bargain.” Id., at 368 (Blackmun, J., dissenting). The consequences of such a decision often would be prejudicial to defendants, for an accused “would bargain against a greater charge, face the likelihood of increased bail, and run the risk that the court would be less inclined to accept a bargained plea.” Ibid. Moreover, in those cases in which a defendant accepted the prosecution’s offer, his reputation would be spared the unnecessary damage that would result from the placement of the additional charge on the public record.
The Court in Bordenkircher stated that the validity of a pretrial charging decision must be measured against the broad discretion held by the prosecutor to select the charges against an accused. “Within the limits set by the legislature’s constitutionally valid definition of chargeable offenses, ‘the conscious exercise of some selectivity in enforcement is not itself a federal constitutional violation’ so long as ‘the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’” Id., at 364 (quoting Oyler v. Boles, 368 U. S. 448, 456). A charging decision does not levy an improper “penalty” unless it results solely from the defendant’s exercise of a protected legal right, rather than the prosecutor’s normal assessment of the societal interest in prosecution. See Westen & Westin, A Constitutional Law of Remedies for Broken Plea Bargains, 66 Calif. L. Rev. 471, 486 (1978).
In rejecting a presumption of vindictiveness, the Court in Borden-kircher did not foreclose the possibility that a defendant might prove through objective evidence an improper prosecutorial motive. In the case before it, however, the Court did not find such proof in the fact that the prosecutor had stated explicitly that additional charges were brought to persuade the defendant to plead guilty. The fact that the prosecutor threatened the defendant did not prove that the action threatened was not permissible; the prosecutor’s conduct did not establish that the additional charges were brought solely to “penalize” the defendant and could not be justified as a proper exercise of prosecutorial discretion.
See n. 12, supra.
We recognize that prosecutors may be trained to bring all legitimate charges against an individual at the outset. Certainly, a prosecutor should not file any charge until he has investigated fully all of the circumstances surrounding a case. To presume that every case is complete at the time an initial charge is filed, however, is to presume that every prosecutor is infallible — an assumption that would ignore the practical restraints imposed by often limited prosecutorial resources. Moreover, there are certain advantages in avoiding a rule that would compel prosecutors to attempt to place every conceivable charge against an individual on the public record from the outset. See n. 10, supra.
Respondent argues that the Court’s refusal to presume vindictiveness in Bordenkircher is not controlling in this case because he had refused to plead guilty and the plea negotiation process was over. Respondent’s argument is not strengthened, however, by the fact that the additional charge in this case was brought outside the context of plea negotiation. The fact that the increased charge in Bordenkircher was brought after a “warning” made during plea negotiation was the principal basis for the defendant’s claim that the charge was an unjustified response to his legal right to stand trial. But cf. n. 12, supra. Respondent’s argument in this case has no such predicate; unlike the defendant in Bordenkircher, the only evidence respondent is able to marshal in support of his allegation of vindictiveness is that the additional charge was brought at a point in time after his exercise of a protected legal right.
Cf. Cotten v. Kentucky, 407 U. S., at 117.
Cf. Chaffin v. Stynchcombe, 412 U. S., at 27.
Indeed, there is a strong tradition in this country in favor of jury trials, despite the additional burdens that they entail for all parties. In many cases — and for many reasons — both the judge and the prosecutor may prefer to have a case tried by jury. See, e. g., Vines v. Muncy, 553 F. 2d 342 (CA4 1977); United States v. Morlang, 531 F. 2d 183 (CA4 1975); United States v. Ceja, 451 F. 2d 399 (CA1 1971); see also Fed. Rule Crim. Proc. 23(a). In Singer v. United States, 380 U. S. 24, this Court held that a criminal defendant does not have a constitutional right to waive a jury trial and to have his case tried before a judge alone. The Court stated: “Trial by jury has been established by the Constitution as the ‘normal and . . . preferable mode of disposing of issues of fact in criminal cases.’ Patton v. United States, 281 U. S. 276, 312.” Id., at 35.
As the Government states in its brief:
“Accordingly, while the prosecutor's charging decision is presumptively lawful, and the prosecutor is not required to sustain any burden of justification for an increase in charges, the defendant is free to tender evidence to the court to support a claim that enhanced charges are a direct and unjustifiable penalty for the exercise of a procedural right. Of course, only in a rare case would a defendant be able to overcome the presumptive validity of the prosecutor’s actions through such a demonstration.” Brief for United States 28, n. 9.
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:
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songer_appbus
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3
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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 "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.
Amy COHEN, et al., Plaintiffs, Appellees, v. BROWN UNIVERSITY, et al., Defendants, Appellants.
No. 92-2483.
United States Court of Appeals, First Circuit.
Heard Feb. 4, 1993.
Decided April 16, 1993.
Jeffrey S. Michaelson, with whom Julius C. Michaelson, Michaelson & Michaelson, and Beverly E. Ledbetter, Providence, RI, were on brief, for defendants, appellants.
Lynette Labinger, with whom Roney & Labinger, Providence, RI, Sandra L. Dug-gan, Kronfeld, Newberg & Duggan, Philadelphia, PA, Arthur H. Bryant, Trial Lawyers for Public Justice, P.C., Washington, DC, Raymond Marcaccio, Blish & Cav-anagh, Amato A. DeLuca, and Mandell, DeLuca & Schwartz, Ltd., Providence, RI, were on brief, for plaintiffs, appellees.
Linda S. Stein, Margaret M. Clark, Step-toe & Johnson, Ellen J. Vargyas, Washington, DC, and Deborah L. Brake, Fort Thomas, KY, on brief for Nat. Women’s Law Center, Woman’s Sports Foundation, and Nat. Ass’n for Girls and Women in Sport, amici curiae.
Before SELYA, CYR and STAHL, Circuit Judges.
SELYA, Circuit Judge.
In this watershed case, defendants-appellants Brown University, Vartan Gregorian, and David Roach appeal from the district court’s issuance of a preliminary injunction ordering Brown to reinstate its women’s gymnastics and volleyball programs to full intercollegiate varsity status pending the resolution of a Title IX claim. See Cohen v. Brown Univ., 809 F.Supp. 978 (D.R.I.1992). After mapping Title IX’s rugged legal terrain and cutting a passable swath through the factual thicket that overspreads the parties’ arguments, we affirm.
I. BROWN ATHLETICS: AN OVERVIEW
College athletics, particularly in the realm of football and basketball, has traditionally occupied a prominent role in American sports and American society. For college students, athletics offers an opportunity to exacuate leadership skills, learn teamwork, build self-confidence, and perfect self-discipline. In addition, for many student-athletes, physical skills are a passport to college admissions and scholarships, allowing them to attend otherwise inaccessible schools. These opportunities, and the lessons learned on the playing fields, are invaluable in attaining career and life successes in and out of professional sports.
The highway of opportunity runs in both directions. Not only student-athletes, but universities, too, benefit from the magic of intercollegiate sports. Successful teams generate television revenues and gate receipts which often fund significant percentages of a university’s overall athletic program, offering students the opportunity to partake of sports that are not financially self-sustaining. Even those institutions whose teams do not fill the grandstands of cavernous stadiums or attract national television exposure benefit from increased student and alumni cohesion and the support it engenders. Thus, universities nurture the legends, great or small, inhering in their athletic past, polishing the hardware that adorns field-house trophy cases and reliving heroic exploits in the pages of alumni magazines.
In these terms, Brown will never be confused with Notre Dame or the more muscular members of the Big Ten. Although its football team did play in the 1916 Rose Bowl and its men’s basketball team won the Ivy League championship as recently as 1986, Brown’s athletic program has only occasionally achieved national prominence or, for that matter, enjoyed sustained success. Moreover, at Brown, as at most schools, women are a relatively inconspicuous part of the storied athletic past. Historically, colleges limited athletics to the male sphere, leaving those few women’s teams that sprouted to scrounge for resources.
The absence of women’s athletics at Brown was, until 1970, an ineluctable consequence of the absence of women; Brown sponsored a women’s college — Pembroke— but did not itself admit women. In 1971, Brown subsumed Pembroke. Brown promptly upgraded Pembroke’s rather primitive athletic offerings so that by 1977 there were fourteen women’s varsity teams. In subsequent years, Brown added only one distaff team: winter track. Hence, in the 1991-92 academic year, Brown fielded fifteen women’s varsity teams — one fewer than the number of men’s varsity teams.
II. THE PLAINTIFF CLASS
In the spring of 1991, Brown announced that it, like many other schools, was in a financial bind, and that, as a belt-tightening measure, it planned to drop four sports from its intercollegiate varsity athletic roster: women’s volleyball and gymnastics, men’s golf and water polo. The University permitted the teams to continue playing as “intercollegiate clubs,” a status that allowed them to compete against varsity teams from other colleges, but cut off financial subsidies and support services routinely available to varsity teams (e.g., salaried coaches, access to prime facilities, preferred practice time, medical trainers, clerical assistance, office support, admission preferences, and the like). Brown estimated that eliminating these four varsity teams would save $77,813 per annum, broken down as follows: women’s volleyball, $37,127; women’s gymnastics, $24,901; men’s water polo, $9,250; men’s golf, $6,545.
Before the cuts, Brown athletics offered an aggregate of 328 varsity slots for female athletes and 566 varsity slots for male athletes. Thus, women had 36.7% of the athletic opportunities and men 63.3%. Abolishing the four varsity teams took substantially more dollars from the women’s athletic budget than from the men’s budget, but did not materially affect the athletic opportunity ratios; women retained 36.6% of the opportunities and men 63.4%. At that time (and for a number of years prior thereto), Brown’s student body comprised approximately 52% men and 48% women.
Following Brown’s announcement of the cutbacks, disappointed members of the women’s volleyball and gymnastics teams brought suit. They proceeded on an implied cause of action under Title IX, 20 U.S.C. §§ 1681-1688 (1988). See Franklin v. Gwinnett County Pub. Sch., — U.S. -, -, 112 S.Ct. 1028, 1032, 117 L.Ed.2d 208 (1992) (recognizing implied private right of action under Title IX); Cannon v. University of Chicago, 441 U.S. 677, 717, 99 S.Ct. 1946, 1968, 60 L.Ed.2d 560 (1979) (same); see also Cannon, 441 U.S. at 687 n. 8, 99 S.Ct. at 1952 n. 8 (holding that exhaustion of administrative remedies is not a prerequisite to a Title IX suit). The plaintiffs charged that Brown’s athletic arrangements violated Title IX’s ban on gender-based discrimination, a violation that was allegedly exacerbated by Brown’s decision to devalue the two women’s programs without first making sufficient reductions in men’s activities or, in the alternative, adding other women’s teams to compensate for the loss.
On plaintiffs’ motion, the district court certified a class of “all present and future Brown University women students and potential students who participate, seek to participate, and/or are deterred from participating in intercollegiate athletics funded by Brown.” And, after hearing fourteen days of testimony from twenty witnesses, the judge granted a preliminary injunction requiring Brown to reinstate the two women’s teams pending the outcome of a full trial on the merits. See Cohen, 809 P.Supp. at 1001. We stayed execution of the order and expedited Brown’s appeal.
III. TITLE IX AND COLLEGIATE ATHLETICS
Title IX prohibits gender-based discrimination by educational institutions receiving federal financial support — in practice, the vast majority of all accredited colleges and universities. The statute sketches wide policy lines, leaving the details to regulating agencies. Since this appeal demands that we invade terra incognita, we carefully recount the developments leading to the present version of Title IX and then examine the pertinent statutory and regulatory language.
A. Scope of Title IX.
At its inception, the broad proscriptive language of Title IX caused considerable consternation in the academic world. The academy’s anxiety chiefly centered around identifying which individual programs, particularly in terms of athletics, might come within the scope of the discrimination provision, and, relatedly, how the government would determine compliance. The gridiron fueled these concerns: for many schools, the men’s football budget far exceeded that of any other sport, and men’s athletics as a whole received the lion’s share of dedicated resources — a share that, typically, was vastly disproportionate to the percentage of men in the student body.
Part of the confusion about the scope of Title IX’s coverage and the acceptable avenues of compliance arose from the absence of secondary legislative materials. Congress included no committee report with the final bill and there were apparently only two mentions of intercollegiate athletics during the congressional debate. See 118 Cong.Rec. 5,807 (1972) (statement of Sen. Bayh on privacy in athletic facilities); 117 Cong.Rec. 30,407 (1971) (statement of Sen. Bayh noting that proposed Title IX will not require gender-blended football teams). Nevertheless, under congressional direction to implement Title IX, the Secretary of Health, Education and Welfare (HEW) promulgated regulations in 1975 which included specific provisions for college athletics. Four years later, HEW’s Office of Civil Rights (OCR) added another layer of regulatory exegesis when, after notice and comment, it published a “Policy Interpretation” that offered a more detailed measure of equal athletic opportunity-
In 1984, the Supreme Court radically altered the contemporary reading of Title IX. The Court held that Title IX was “program-specific,” so that its tenets applied only to the program(s) which actually received federal funds and not to the rest of the university. Grove City College v. Bell, 465 U.S. 555, 574, 104 S.Ct. 1211, 1221, 79 L.Ed.2d 516 (1984). Because few athletic departments are direct recipients of federal funds — most federal money for universities is channelled through financial aid offices or invested directly in research grants— Grove City cabined Title IX and placed virtually all collegiate athletic programs beyond its reach.
In response to Grove City, Congress scrapped the program-specific approach and reinstated an institution-wide application of Title IX by passing the Civil Rights Restoration Act of 1987, 20 U.S.C. § 1687 (1988). The Restoration Act required that if any arm of an educational institution received federal funds, the institution as a whole must comply with Title IX’s provisions. See id.; see also S.Rep. No. 64, 100th Cong., 2d Sess. 4 (1988), reprinted in 1988 U.S.C.C.A.N. 3, 6 (explaining that Congress wanted to prohibit discrimination throughout an institution if the institution received any federal funds). Although the Restoration Act does not specifically mention sports, the record of the floor debate leaves little doubt that the enactment was aimed, in part, at creating a more level playing field for female athletes. See, e.g., 130 Cong.Rec. S12,642 (daily ed. Oct. 2, 1984) (statement of Sen. Byrd decrying past discrimination against female athletes); 130 Cong.Rec. S11,253 (daily ed. Sept. 17, 1984) (statement of Sen. Hatch regarding importance of Title IX to ensuring development of women athletes); 130 Cong.Rec. S2,267 (daily ed. Mar. 2, 1984) (statement of Sen. Riegle noting extensive evidence of sex discrimination in education and athletics).
The appellants do not challenge the district court’s finding that, under existing law, Brown’s athletic department is subject to Title IX. Accordingly, we devote the remainder of Part III to deterrating the meaning of Title IX, looking first at the statute and then at the regulations.
B. Statutory Framework.
Title IX, like the Restoration Act, does not explicitly treat college athletics. Rather, the statute’s heart is a broad prohibition of gender-based discrimination in all programmatic aspects of educational institutions:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance....
20 U.S.C. § 1681(a) (1988). After listing a number of exempt organizations, section 1681 makes clear that, while Title IX prohibits discrimination, it does not mandate strict numerical equality between the gender balance of a college’s athletic program and the gender balance of its student body. Thus, section 1681(a) shall not
be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area: Provided, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex.
20 U.S.C. § 1681(b) (1988). Put another way, a court assessing Title IX compliance may not find a violation solely because there is a disparity between the gender composition of an educational institution’s student constituency, on the one hand, and its athletic programs, on the other hand.
That is not to say, however, that evidence of such a disparity is irrelevant. Quite the contrary: under the proviso contained in section 1681(b), a Title IX plaintiff in an athletic discrimination suit must accompany statistical evidence of disparate impact with some further evidence of discrimination, such as unmet need amongst the members of the disadvantaged gender.
C. Regulatory Framework.
As we mentioned above, the Secretary of HEW, following Congress’s instructions, promulgated regulations implementing Title IX in the pre-Grove City era. See 40 Fed.Reg. 24,128 (1975). Thereafter, in 1979, Congress split HEW into the Department of Health and Human Services (HHS) and the Department of Education (DED). See 20 U.S.C. §§ 3401-3510 (1988). In a wonderful example of bureaucratic muddle, the existing Title IX regulations were left within HHS’s arsenal while, at the same time, DED replicated them as part of its own regulatory armamentarium. Compare 45 C.F.R. § 86 (1992) (HHS regulations) with 34 C.F.R. § 106 (1992) (DED regulations). Both sets of regulations were still in effect when the Restoration Act passed. They are identical, save only for changes in nomenclature reflecting the reorganization of the federal bureaucracy.
In short, like pretenders to the emirate of a deceased sheik, both HHS and DED lay an hereditary claim to this oasis which arises from the regulatory desert, asserting authority to enforce Title IX. Nevertheless, DED is the principle locus of ongoing enforcement activity. See 20 U.S.C. § 3441(a)(1) (transferring all education functions of HEW to DED); see also 20 U.S.C. § 3441(a)(3) (transferring education-related OCR work to DED). Therefore, like the parties, we treat DED, acting through its OCR, as the administrative agency charged with administering Title IX.
Recognizing the agency’s role has important practical and legal consequences. Although DED is not a party to this appeal, we must accord its interpretation of Title IX appreciable deference. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984); see also Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965) (noting that the Supreme Court “gives great deference to the interpretation given the statute by the officers or agency charged with its administration”). The degree of deference is particularly high in Title IX cases because Congress explicitly delegated to the agency the task of prescribing standards for athletic programs under Title IX. See Pub.L. No. 93-380, § 844, 88 Stat. 612 (1974); see also Chevron, 467 U.S. at 844, 104 S.Ct. at 2782 (holding that where Congress has explicitly delegated responsibility to an agency, the regulation deserves “controlling weight”); Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977); Alvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir.1990).
It is against this backdrop that we scrutinize the regulations and the Policy Interpretation.
1. The Regulations. DED’s regulations begin by detailing Title IX’s application to college athletics. The regulations also recognize, however, that an athletic program may consist of gender-segregated teams as long as one of two conditions is met: either the sport in which the team competes is a contact sport or the institution offers comparable teams in the sport to both genders. See 34 C.F.R. § 106.41(b).
Finally, whether teams are segregated by sex or not, the school must provide gender-blind equality of opportunity to its student body. The regulations offer a nonexclusive compendium of ten factors which OCR will consider in assessing compliance with this mandate:
(1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;
(2) The provision of equipment and supplies;
(3) Scheduling of games and practice time;
(4) Travel and per diem allowance;
(5) Opportunity to receive coaching and academic tutoring;
(6) Assignment and compensation of coaches and tutors;-
(7) Provision of locker rooms, practice and competitive facilities;
(8) Provision of medical and training facilities and services;
(9) Provision of housing and dining facilities and services;
(10) Publicity.
34 C.F.R. § 106.41(c) (1992). The district court rested its preliminary injunction on the first of these ten areas of inquiry: Brown’s failure effectively to accommodate the interests and abilities of female students in the selection and level of sports. See Cohen, 809 F.Supp. at 994. Hence, this area is the most critical in terms of evaluating the charges against Brown (although it is also the most difficult to measure).
2. The Policy Interpretation. In the three years next following the initial issuance of the regulations, HEW received over one hundred discrimination complaints involving more than fifty schools. In order to encourage self-policing and thereby winnow complaints, HEW proposed a Policy Interpretation. See 43 Fed.Reg. 58,070 (1978). It then promulgated the Policy Interpretation in final form, see 44 Fed.Reg. 71,413 (1979), a matter of months before the effective date of the statute through which Congress, emulating King Solomon, split HEW. The parties are in agreement that, at DED’s birth, it clutched the Policy Interpretation, and, as a practical matter, that appears to be the case. See, e.g., DED, Title IX Athletics Investigator’s Manual 1, 2 (1990) (Manual); see also Complaint Letter from Regional Civil Rights Director, DED, to Dr. Martin Massengale, Chancellor, Univ. of Nebraska (July 10, 1989) (noting that DED “ha[s] followed the directions provided in the Policy Interpretation”); Complaint Letter from Regional Civil Rights Director, DED, to Dr. Charles A. Walker, Chancellor, Univ. of Arkansas (Sept. 1, 1989) (same). Although we can find no record that DED formally adopted the Policy Interpretation, we see no point to splitting the hair, particularly where the parties have not asked us to do so. Because this document is a considered interpretation of the regulation, we cede it substantial deference. See Martin v. OSHRC, 499 U.S. 144,-, 111 S.Ct. 1171, 1175-76, 113 L.Ed.2d 117 (1991); Gardebring v. Jenkins, 485 U.S. 415, 430, 108 S.Ct. 1306, 1314, 99 L.Ed.2d 515 (1988).
In line with the Supreme Court’s direction that, “if we are to give [Title IX] the scope that its origins dictate, we must accord it a sweep as broad as its language,” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521, 102 S.Ct. 1912, 1918, 72 L.Ed.2d 299 (1982) (quoting United States v. Price, 383 U.S. 787, 801, 86 S.Ct. 1152, 1160, 16 L.Ed.2d 267 (1966)) (collecting eases) (brackets in original), the Policy Interpretation limns three major areas of regulatory compliance: “Athletic Financial Assistance (Scholarships),” see 34 C.F.R. § 106.37(c); “Equivalence in Other Athletic Benefits and Opportunities,” see 34 C.F.R. § 106.41(c)(2)-(10); and “Effective Accommodation of Student Interests and Abilities,” see 34 C.F.R. § 106.41(c)(1). The court below, see Cohen, 809 F.Supp. at 989, and a number of other district courts, see, e.g., Roberts v. Colorado State Univ., 814 F.Supp. 1507, 1510-11 (D.Colo.1993); Favia v. Indiana Univ. of Pa., 812 F.Supp. 578, 584-85 (W.D.Pa.1993), have adopted this formulation and ruled that a university violates Title IX if it ineffectively accommodates student interests and abilities regardless of its performance in other Title IX areas.
Equal opportunity to participate lies at the core of Title IX’s purpose. Because the third compliance area delineates this heartland, we agree with the district courts that have so ruled and hold that, with regard to the effective accommodation of students’ interests and abilities, an institution can violate Title IX even if it meets the “financial assistance” and “athletic equivalence” standards. In other words, an institution that offers women a smaller number of athletic opportunities than the statute requires may not rectify that violation simply by lavishing more resources on those women or achieving equivalence in other respects.
3. Measuring Effective Accommodation, The parties agree that the third compliance area is the field on which this appeal must be fought. In surveying the dimensions of this battleground, that is, whether an athletic program effectively accommodates students’ interests and abilities, the Policy Interpretation maps a trinitarian model under which the university must meet at least one of three benchmarks:
(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or
(2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or
(3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.
44 Fed.Reg. at 71,418. The first benchmark furnishes a safe harbor for those institutions that have distributed athletic opportunities in numbers “substantially proportionate” to the gender composition of their student bodies. Thus, a university which does not wish to engage in extensive compliance analysis may stay on the sunny side of Title IX simply by maintaining gender parity between its student body and its athletic lineup.
The second and third parts of the accommodation test recognize that there are circumstances under which, as a practical matter, something short of this proportionality is a satisfactory proxy for gender balance. For example, so long as a university is continually expanding athletic opportunities in an ongoing effort to meet the needs of the underrepresented gender, and persists in this approach as interest and ability levels in its student body and secondary feeder schools rise, benchmark two is satisfied and Title IX does not require that the university leap to complete gender parity in a single bound. Or, if a school has a student body in which one sex is demonstrably less interested in athletics, Title IX does not require that the school create teams for, or rain money upon, otherwise disinterested students; rather, the third benchmark is satisfied if the underrepresented sex’s discernible interests are fully and effectively accommodated.
It seems unlikely, even in this day and age, that the athletic establishments of many coeducational universities reflect the gender balance of their student bodies. Similarly, the recent boom in Title IX suits suggests that, in an era of fiscal austerity, few universities are prone to expand athletic opportunities. It is not surprising, then, that schools more often than not attempt to manage the rigors of Title IX by satisfying the interests and abilities of the underrepresented gender, that is, by meeting the third benchmark of the accommodation test. Yet, this benchmark sets a high standard: it demands not merely some accommodation, but full and effective accommodation. If there is sufficient interest and ability among members of the statistically underrepresented gender, not slaked by existing programs, an institution necessarily fails this prong of the test.
Although the full-and-effective-accommodation standard is high, it is not absolute. Even when male athletic opportunities outnumber female athletic opportunities, and the university has not met the first benchmark (substantial statistical proportionality) or the second benchmark (continuing program expansion) of the accommodation test, the mere fact that there are some female students interested in a sport does not ipso facto require the school to provide a varsity team in order to comply with the third benchmark. Rather, the institution can satisfy the third benchmark by ensuring participatory opportunities at the intercollegiate level when, and to the extent that, there is “sufficient interest and ability among the members of the excluded sex to sustain a viable team and a reasonable expectation of intercollegiate competition for that team_” 44 Fed.Reg. at 71,418. Staying on top of the problem is not sport for the short-winded: the institution must remain vigilant, “upgrading the competitive opportunities available to the historically disadvantaged sex as warranted by developing abilities among the athletes of that sex,” id., until the opportunities for, and levels of, competition are equivalent by gender.
Brown argues that DED’s Policy Interpretation, construed as we have just outlined, goes so far afield that it countervails the enabling legislation. Brown suggests that, to the extent students’ interests in athletics are disproportionate by gender, colleges should be allowed to meet those interests incompletely as long as the school’s response is in direct proportion to the comparative levels of interest. Put bluntly, Brown reads the “full” out of the duty to accommodate “fully and effectively.” It argues instead that an institution satisfactorily accommodates female athletes if it allocates athletic opportunities to women in accordance with the ratio of interested and able women to interested and able men, regardless of the number of unserved women or the percentage of the student body that they comprise.
Because this is mountainous terrain, an example may serve to clarify the distinction between Brown’s proposal and our understanding of the law. Suppose a university (Oooh U.) has a student body consisting of 1,000 men and 1,000 women, a one to one ratio. If 500 men and 250 women are able and interested athletes, the ratio of interested men to interested women is two to one. Brown takes the position that both the actual gender composition of the student body and whether there is unmet interest among the underrepresented gender are irrelevant; in order to satisfy the third benchmark, Oooh U. must only provide athletic opportunities in line with the two to one interested athlete ratio, say, 100 slots for men and 50 slots for women. Under this view, the interest of 200 women would be unmet — but there would be no Title IX violation.
We think that Brown’s perception of the Title IX universe is myopic. The fact that the overrepresented gender is less than fully accommodated will not, in and of itself, excuse a shortfall in the provision of opportunities for the underrepresented gender. Rather, the law requires that, in the absence of continuing program expansion (benchmark two), schools either meet benchmark one by providing athletic opportunities in proportion to the gender composition of the student body (in Oooh U.’s case, a roughly equal number of slots for men and women, as the student body is equally divided), or meet benchmark three by fully accommodating interested athletes among the underrepresented sex (providing, at Oooh U., 250 slots for women).
In the final analysis, Brown’s view is wrong on two scores. It is wrong as a matter of law, for DED’s Policy Interpretation, which requires full accommodation of the underrepresented gender, draws its essence from the statute. Whether Brown’s concept might be thought more attractive, or whether we, if writing on a pristine page, would craft the regulation in a manner different than the agency, are not very important considerations. Because the agency’s rendition stands upon a plausible, if not inevitable, reading of Title IX, we are obligated to enforce the regulation according to its tenor. See Chevron, 467 U.S. at 848 n. 11, 104 S.Ct. at 2782 n. 11 (holding that a “court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold [it]”) (collecting cases); Massachusetts v. Secretary of Agric., 984 F.2d 514, 522 (1st Cir.1993) (similar).
Brown’s reading of Title IX is legally flawed for yet another reason. It proceeds from the premise that the agency’s third benchmark countervails Title IX. But, this particular imprecation of the third benchmark overlooks the accommodation test’s general purpose: to determine whether a student has been “excluded from participation in, [or] denied the benefits of” an athletic program “on the basis of sex... 20 U.S.C. § 1681(a). While any single element of this tripartite test, in isolation, might not achieve the goal set by the statute, the test as a whole is reasonably constructed to implement the statute. No more is exigible. See Chemical Mfrs. Ass’n v. Natural Resources Defense Council, Inc., 470 U.S. 116, 125, 105 S.Ct. 1102, 1107, 84 L.Ed.2d 90 (1985).
As it happens, Brown’s view is also poor policy for, in the long run, a rule such as Brown advances would likely make it more difficult for colleges to ensure that they have complied with Title IX. Given that the survey of interests and abilities would begin under circumstances where men’s athletic teams have a considerable head start, such a rule would almost certainly blunt the exhortation that schools should "take into account the nationally increasing levels of women’s interests and abilities” and avoid “disadvantaging] members of an underrepresented sex_” 44 Fed.Reg. at 71,417.
Brown’s proposal would also aggravate the quantification problems that are inevitably bound up with Title IX. Student plaintiffs, who carry the burden of proof on this issue, as well as universities monitoring self-compliance, would be required to assess the level of interest in both the male and female student populations and determine comparatively how completely the university was serving the interests of each sex. By contrast, as we read the accommodation test’s third benchmark, it requires a relatively simple assessment of whether there is unmet need in the underrepresented gender that rises to a level sufficient to warrant a new team or the upgrading of an existing team. We think the simpler reading is far more serviceable.
Furthermore, by moving away from OCR’s third benchmark, which focuses on the levels of interest and ability extant in the student body, Brown’s theory invites thorny questions as to the appropriate survey population, whether from the university, typical feeder schools, or the regional community. In that way, Brown’s proposal would do little more than overcomplicate an already complex equation.
We will not paint the lily. Brown’s approach cannot withstand scrutiny on either legal or policy grounds. We conclude that DED’s Policy Interpretation means exactly what it says. This plain meaning is a proper, permissible rendition of the statute.
IV. THE CONSTITUTIONAL CHALLENGE
We turn now to a series of case-specific issues, starting with Brown’s constitutional challenge to the statutory scheme.
A. Equal Protection.
Brown asseverates that if the third part of the accommodation test is read as OCR wrote it — to require full and effective accommodation of the underrepresented gender — the test violates the Fifth Amendment’s Equal Protection Clause. We think not.
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:
|
songer_respond1_1_4
|
F
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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)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. STANTON ENTERPRISES, INC., doing business as Holiday Inn of Charleston, Respondent.
No. 9849.
United States Court of Appeals Fourth Circuit.
Argued June 4, 1965.
Decided Sept. 30, 1965.
Wayne S. Bishop, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Gary Green, Atty., N. L. R. B., on brief), for petitioner.
George V. Gardner, Washington, D. C. (Frederick F. Holroyd, Charleston, W. Va., on the brief), for respondent.
Before SOBELOFF and J. SPENCER BELL, Circuit Judges, and WINTER, District Judge.
SOBELOFF, Circuit Judge.
Shortly after the Holiday Inn of Charleston, West Virginia, opened its motel for business in December, 1962, the union sought to organize the waitresses, maids, cooks and other employees. By April, 1963, it had successfully petitioned the Board for a representation election. The company apparently was unaware of the union’s campaign until it received notification from the Board that an election would be held. Admittedly, this employer was opposed to unionization of its staff, and Lyman Stanton, its president, told the union agent that he was going to fight the union to the “bitter end.” True to his word, President Stanton, both directly and through his assistant manager, Mrs. Baldwin, and his banquet manager, Mrs. Koon, waged a vigorous anti-union campaign.
Within proper limits an employer is free to oppose a union’s organizational efforts among his employees. The Board concluded, however, that Stanton Enterprises exceeded the bounds of legitimate persuasion by unlawfully interrogating employees as to their union activity, and threatening them with economic reprisals if they should select the union, in violation of section 8(a) (1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1) (1965). The Board further found that the company violated sections 8(a) (3) and (1) of the Act by discharging eight waitresses for their support of the union. The Board has petitioned for enforcement of its order requiring the employer to cease and desist from its illegal conduct, to reinstate the discharged waitresses, and to indemnify them for lost earnings.
8(a) (1) Violations
At the outset of the organizational campaign, Stanton directed Mrs. Koon to discourage the waitresses from joining the union and to inform them that if they voted for the union their wages would be cut and “No Tipping” signs posted, thereby depriving them of a substantial portion of their income. He also told Mrs. Koon that if he found that any of the waitresses had signed union authorization cards, he would fire them. Mrs. Koon testified that she relayed Stanton’s statements, as requested, to the waitresses and questioned several of them as to whether they were among those who had signed such union cards. The assistant manager, Mrs. Baldwin, also questioned the maids concerning their union activities and repeated Stanton’s threats to post “No Tipping” signs and cut salaries if the union won the election.
The trial examiner found this conduct in “technical” violation of section 8(a) (1) but did not recommend a cease and desist order, expressing the view that it “would not effectuate the policies of the Act.” The Board took a different view of the violations found by the examiner, deeming them not merely “technical” but expressly designed to ferret out and punish union supporters in flagrant disregard of their statutory rights.
The Board’s conclusion rests upon an ample basis in the record. It is clear beyond question that the employer threatened and intimidated its employees and such was the examiner’s finding. The examiner’s recommendation of dismissal of the 8(a) (1) charge upon his view of the conduct as merely technical does not diminish the substantiality of the evidence as support for the Board’s order. It is the function of the Board, not its examiner, to determine what policies will effectuate the Act’s purposes. Universal Camera Corp. v. NLRB, 340 U.S. 474, 494, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
There is no merit in the employer’s contention that the statements in question were mere prophecies, and therefore protected by the free speech proviso of section 8(c). Since some of the waitresses worked for tips only, the Board could have no great difficulty in perceiving a coercive design in such a “prophecy.” Indeed, in this case, the examiner no less than the Board declared the statements made to the waitresses violative of section 8(a) (1), though he was disposed to judge them more leniently. Threats not infrequently are conveyed by euphemistic speech, as a bank teller is addressed in language quite traditional, “hand over the money and nobody will get hurt.” The minatory message is well understood despite its mild form. The example is cited not to suggest that the offenses are of equal gravity but that the defenses are equally invalid. Whether language used by an employer is coercive is to be determined by the experienced judgment of the Board in light of the surrounding circumstances. Daniel Construction Company v. NLRB, 341 F.2d 805, 811 (4th Cir. 1965). Threats are not immunized by section 8(c), and it is toying with language and a misuse of the soft word “prophecy” to apply it to the communications disclosed in this record. Here the conclusion that the language constituted a threat of economic reprisal has a solid foundation in the record.
8(a) (3) and (1) Violations
We are also called upon to review the Board’s decision as to the employer’s motivation in discharging and laying off eight waitresses who had joined the union. The trial examiner found that they were discharged for reasons within the prerogative of management and unconnected with the employees’ union activities. The Board, however, took into account the flagrant inconsistencies and contradictions in the employer’s explanations for the discharges as well as the general background of hostility toward the union manifested in several ways, and rejected the inferences and conclusions drawn by its examiner. It found that the waitresses were dismissed for their support for the union, in violation of sections 8(a) (3) and (1) of the Act.
There was a considerable mass of evidence tending to show that the waitresses were discharged for their union activity and not for the reasons advanced by the employer, either initially to the waitresses individually as they were dismissed, or later to the Board. The testimony unfolded that, during the weeks immediately preceding the Board election, there was an intensified drive to determine the identity of the persons who had signed union authorization cards. Stanton learned that only waitresses had signed them, but he was unable to discover which individuals were involved. He called Mrs. Baldwin and Mrs. Koon into his office and told Mrs. Baldwin that “he felt that she should go in and clean house, get rid of the waitresses and hire an entirely new crew * * He said, “you have no way of knowing who ,^did and who didn’t [sign cards]. Let’s clean house and we will get the guilty parties.” When Mrs. Baldwin pointed out, “we can’t just fire them because we think they signed union cards; we have to have a reason,” Stanton directed her to “find a reason.” Rising to the occasion, Mrs. Baldwin suggested, “well, I have cautioned them about smoking in the rear of the dining room. I will go through one day soon and find about six smoking and I will fire them for that reason.”
Later, when the waitresses were informed of their discharge, each asked Stanton for the reason. One was told that she smoked too much in the kitchen, although she was not and had never been a smoker. Three others were told that they were being discharged because of an “overloaded payroll,” yet replacements for all were hired within a few days. The reasons given others were, variously, using “foul language,” lateness, and complaints about the food. However, none had previously been reprimanded, warned, or even accused in respect of such conduct. When, finally, the matter came on for hearing before the examiner, the employer maintained that several of the waitresses had been fired for hugging and kissing the cooks in the kitchen and other misconduct while on duty. This explanation was at variance with that given by Stanton to the waitresses when they were discharged.
Upon careful consideration of the record and taking into due account the divergent views of the Board and the examiner, we are of the opinion that the Board was well warranted in concluding that the discharges were not made for independent business reasons, as urged by the employer, but as punishment for the waitresses’ concerted and legally protected activities and to discourage unionization among the employees. This is a plain incursion of the employees’ rights under the Act.
Remedy
The employer complains of the award of back pay for the interval between the examiner’s decision and its reversal by the Board. While it is true that for a time it was the Board’s policy to toll monetary awards during such periods, it has abandoned this practice in favor of making injured employees whole for their losses. A. P. W. Products Co., 137 N.L.R.B. 25 (1962). We find nothing arbitrary in the Board’s making changes in its enforcement policy as administrative experience from time to time may dictate. If the Board, in its continuing duty to oversee the enforcement process, finds that the more limited remedy it formerly applied is inadequate, it is not for a court to forbid a change in the Board’s policy. Since there is no suggestion that the Board’s action is oppressive or that the present employer was singled out for unique treatment, there is no basis for upsetting the order. The choice of an appropriate remedy is a proper function of the Board and not the courts. NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346-347, 73 S.Ct. 287, 97 L.Ed. 377 (1953).
The order will be
Enforced.
. The details are fully reported as 147 NLRB 81 (1964).
. See generally Pokempner, Employer Free Speech Under the National Labor Relations Act, 25 Md.L.Rev. 111, 129-133, 135-136 (1965).
. As it is the Board’s decision and not the examiner’s which we review, it is sufficient if there is substantial supporting evidence for the Board’s conclusion, even if it conflicts with that of the examiner. Universal Camera, supra; NLRB v. Southland Cork Co., 342 F.2d 702, 708 (4th Cir. 1965); Daniel Construction Company, supra, 341 F.2d at p. 813, n. 6.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
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sc_casesource
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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.
TIFFANY FINE ARTS, INC., et al. v. UNITED STATES et al.
No. 83-1007.
Argued October 31, 1984
Decided January 9, 1985
Marshall, J., delivered the opinion for a unanimous Court.
Michael D. Savage argued the cause for petitioners. With him on the brief was David M. Rubin.
Deputy Solicitor General Wallace argued the cause for respondents. With him on the brief were Assistant Attorney General Archer, Charles E. Brookhart, and William A. Whitledge
Richard J. Sideman filed a brief for First Western Government Securities, Inc., et al. as amici curiae urging reversal.
Justice Marshall
delivered the opinion of the Court.
The question presented in this case is whether the Internal Revenue Service (IRS) must comply with the “John Doe” summons procedures of § 7609(f) of the Internal Revenue Code of 1954, 26 U. S. C. § 7609(f), when it serves a summons on a named taxpayer for the dual purpose of investigating both the tax liability of that taxpayer and the tax liabilities of other, unnamed parties.
I
Petitioner Tiffany Fine Arts, Inc., is a holding company for various subsidiaries that promote tax shelters. On October 6,1981, Revenue Agent Joel Lewis issued four summonses to Tiffany, pursuant to 26 U. S. C. § 7602(a). This provision empowers the IRS to serve a summons on any person, without prior judicial approval, if the information sought is necessary to ascertain that person’s tax liability. The summonses requested Tiffany’s financial statements for the fiscal years ending October 31,1979, and October 31, 1980, as well as a list of the names, addresses, Social Security numbers, and employer identification numbers of persons who had acquired from Tiffany licenses to distribute a medical device known as the “Pedi-Pulsor.” Tiffany refused to comply with the summonses, and the Government then brought an enforcement action in the United States District Court for the Southern District of New York, pursuant to 26 U. S. C. §§ 7402(b) and 7604(a).
Tiffany opposed enforcement, principally on the ground that the IRS’s request for the names of the licensees indicated clearly that the IRS’s “primary purpose” was to audit the Pedi-Pulsor licensees, not Tiffany itself. Tiffany offered to produce records in which the names of the licensees were redacted. It took the position that, if the IRS were truly interested in only Tiffany’s liability, the redacted records would be sufficient for an adequate investigation.
According to Tiffany, if the IRS wanted to go further and obtain the names of all the licensees, it could not proceed solely under § 7602, but would have to comply also with the requirements of § 7609(f), which applies to John Doe summonses. Under § 7609(f), the IRS cannot serve a summons seeking information on the tax liabilities of unnamed taxpayers without obtaining prior judicial approval at an ex parte proceeding.
The IRS rejected Tiffany’s offer of redacted documents. In an affidavit filed in support of the Government’s enforcement petition, Revenue Agent Lewis asserted:
“I am conducting an investigation, one purpose of which is to ascertain the correctness of the consolidated income tax returns filed by [Tiffany] for the fiscal years ending October 31, 1979, and October 31, 1980. One aspect of my investigation into the correctness of Tiffany’s consolidated corporate income tax returns concerns possible underreporting of income received and questionable business deductions claimed by Tiffany and its subsidiaries.” App. 14a.
In a supplemental affidavit, Agent Lewis conceded that “[i]t is certainly possible that once the individual [Pedi-Pulsor] licensees are identified further inquiry will be made into whether they correctly reported their income tax liabilities.” Id., at 24a. He reasserted, however, that one purpose of his investigation was to audit Tiffany; in particular, he sought to ascertain whether Tiffany had failed to report recourse and nonrecourse notes provided to Tiffany by the Pedi-Pulsor licensees. According to Lewis, the investigation of Tiffany could not be performed properly with redacted documents.
The District Court found that the IRS had made a sufficient showing of its interest in auditing Tiffany’s returns and enforced the summonses. The United States Court of Appeals for the Second Circuit affirmed. 718 F. 2d 7 (1983). It held that the John Doe provisions of § 7609(f) apply only when “the IRS issue[s] a summons to an identifiable party in whom it ha[s] no interest in order to investigate the potential tax liabilities of unnamed third parties.” Id., at 13. Given the District Court’s finding that one purpose of the summonses was to investigate Tiffany, § 7609(f) was not relevant here “even assuming that the summonses... were issued to Tiffany partly for the purpose of investigating Tiffany’s customers.” Id., at 13-14.
The Federal Courts of Appeals are divided on the scope of § 7609(f). The Eighth and Eleventh Circuits, like the Second Circuit in this case, have held that the IRS need not comply with § 7609(f) when it seeks information on unnamed third parties as long as one purpose of the summons is to carry out a legitimate investigation of the named summoned party. See United States v. Barter Systems, Inc., 694 F. 2d 163 (CA8 1982); United States v. Gottlieb, 712 F. 2d 1363 (CA11 1983). In contrast, the Sixth Circuit has taken the opposite position, holding that the IRS must comply with § 7609(f) whenever it seeks information on unnamed third parties— even in cases in which one of the purposes of the IRS is to investigate the named recipient of the summons. United States v. Thompson, 701 F. 2d 1175 (1983). We granted certiorari to resolve this conflict. 466 U. S. 925 (1984). We affirm.
II
Congress enacted §7609 in response to two decisions in which we gave a broad construction to the IRS’s general summons power under § 7602(a). It is therefore useful to review those cases before embarking on an analysis of the statutory provision.
In Donaldson v. United States, 400 U. S. 517 (1971), the IRS issued to an employer a § 7602 summons seeking records prepared by the employer that would be relevant to an investigation of the tax liability of one of its employees. The employee obtained a preliminary injunction restraining his employer from complying with the summons. The Government then moved for enforcement. In response, the employer stated that it would have complied with the summons “‘were it not for’ the preliminary injunction.” Id., at 521. The employee, however, filed motions to intervene in the proceedings, under Federal Rule of Civil Procedure 24(a)(2), in order to oppose enforcement. He stated that he had an interest in the outcome of the enforcement action and that this interest would not be adequately represented by his employer. We held that the employee’s interest was not legally protectible and affirmed the denial of the employee’s motions for intervention.
Four years later, we decided United States v. Bisceglia, 420 U. S. 141 (1975). In Bisceglia, the IRS issued to a bank a § 7602 summons for the purpose of identifying an unnamed individual who had deposited a large amount of money in severely deteriorated bills. The bills appeared to have been stored for a long period of time under abnormal conditions, and the IRS suspected that they had been hidden to avoid taxes. Although we recognized the danger that the IRS might use its §7602 summons power to “conduct ‘fishing expeditions’ into the private affairs of bank depositors,” id., at 150-151, we concluded that, on the facts of the case, the IRS had not abused its power. Thus, we held that the summons was enforceable.
Section 7609, the provision at issue in this case, was clearly a response to these decisions. Both the Senate and the House Reports accompanying the bill that became §7609 focused exclusively on the problem of “third-party summonses” — that is, summonses served on a party that, like the employer in Donaldson and the bank in Bisceglia, is not the taxpayer under investigation. S. Rep. No. 94-938, p. 368 (1976); H. R. Rep. No. 94-658, p. 306 (1975). In fact, Donaldson and Bisceglia were the only two cases cited in the texts of the Reports.
Referring to Donaldson, the House Report noted that, under the then-existing law, “there is no legal requirement that the taxpayer (or other party) to whose business or transactions the summoned records relate be informed that a third-party summons has been served.” H. R. Rep. No. 94-658, at 306-307; see also S. Rep. No. 94-938, at 368. Referring to Bisceglia, both Reports stated:
“In certain cases, where the [IRS] has reason to believe that certain transactions have occurred which may affect the tax liability of some taxpayer, but is unable for some reason to determine the specific taxpayer who may be involved, the [IRS] may serve a so-called ‘John Doe’ summons, which means that books and records relating to certain transactions are requested, although the name of the taxpayer is not specified.” S. Rep. No. 94-938, at 368; H. R. Rep. No. 94-658, at 306.
Both Reports asserted that the standards enunciated in Donaldson and Bisceglia might “unreasonably infringe on the civil rights of taxpayers, including the right to privacy.” S. Rep. No. 94-938, at 368; H. R. Rep. No. 94-658, at 307. Section 7609 stems from this concern. To deal with the problem of a third-party summons in a case in which the IRS knows the identity of the taxpayer being investigated, Congress enacted §§ 7609(a) and (b); these subsections require that the IRS give notice of the summons to that taxpayer, and give the taxpayer the right “to intervene in any proceeding with respect to the enforcement of such summons.” In this provision, Congress modified the result reached in Donaldson.
In the case of a John Doe summons, where the IRS does not know the identity of the taxpayer under investigation, advance notice to that taxpayer is, of course, not possible. As a substitute for the procedures of §§ 7609(a). and (b), Congress enacted § 7609(f), which provides:
“Any summons... which does not identify the person with respect to whose liability the summons is issued may be served only after a court proceeding in which the Secretary establishes that—
“(1) the summons relates to the investigation of a particular person or ascertainable group or class of persons,
“(2) there is a reasonable basis for believing that such person or group or class of persons may fail or may have failed to comply with any provision of any internal revenue law, and
“(3) the information sought to be obtained from the examination of the records (and the identity of the person or persons with respect to whose liability the summons is issued) is not readily available from other sources” (emphasis added).
See also § 7609(h)(2) (providing that these determinations be made ex parte, solely on the basis of the IRS’s petition and supporting affidavits). Section § 7609(f) was a response to concerns that our decision in Bisceglia did not provide sufficient restraints, in the John Doe context, on the IRS’s exercise of its summons power. See In re Tax Liabilities of John Does, 671 F. 2d 977, 979 (CA6 1982). With this background in mind, we turn to consider the application of the provision to the facts of this case.
Ill
The legal issue here is starkly posed. The District Court found as a matter of fact — and the Court of Appeals affirmed — that the IRS was pursuing a legitimate investigation of Tiffany’s tax liability. At the same time, the Court of Appeals assumed, and the Government does not dispute, that the IRS also intended to investigate the tax liabilities of the unnamed Pedi-Pulsor licensees. The question before us, then, is whether the IRS must comply with § 7609(f) in the case of such dual purpose summonses.
This Court has recognized that there is “a formidable line of precedent construing congressional intent to uphold the claimed enforcement authority of the [IRS] if [this] authority is necessary for the effective enforcement of the revenue laws and is not undercut by contrary legislative purposes.” United States v. Euge, 444 U. S. 707, 715-716 (1980). Just last Term, we reemphasized that “restrictions upon the IRS summons power should be avoided ‘absent unambiguous directions from Congress.’ ” United States v. Arthur Young & Co., 465 U. S. 805, 816 (1984) (quoting United States v. Bisceglia, 420 U. S., at 150). Thus we examine whether the statute and legislative history indicate that Congress expressly considered the problem presented here, and attempt to discern the congressional purposes in enacting § 7609(f).
A
We find that the language of the statute is of little direct help in determining how to treat dual purpose summonses. By their terms, the John Doe provisions of § 7609(f) apply to a summons “which does not identify the person with respect to whose liability the summons is issued.” Tiffany argues that the term “person” in the statute must be read as “person” or “persons.” Tr. of Oral Arg. 6. It then contends that, because the Pedi-Pulsor licensees are persons not identified in the summonses, § 7609(f) literally applies. See United States v. Thompson, 701 F. 2d, at 1178-1179.
The Government’s construction is diametrically at odds with Tiffany’s:
“Section 7609(f) by its terms applies only if a summons ‘does not identify the person with respect to whose liability [it] is issued.’ That simply is not the case here. The summonses enforced by the district court explicitly were issued ‘[i]n the matter of the tax liability of Tiffany Fine Arts Inc. & Subsidiaries.’” Brief for United States 13.
See United States v. Barter Systems, Inc., 694 F. 2d, at 168.
The task that the parties ask us to engage in is to determine whether the statutory reference to “the person” should be read as “every person” or whether it should be read as “at least one person.” We are reluctant, on the basis of the statutory language alone, to reach even a tentative conclusion about the scope of § 7609(f). Neither construction strikes us as clearly compelling.
Turning our attention to the legislative history, we note that the facts of this case are different from those of Donaldson and Bisceglia in one important respect: The summonses here were served on a party that was itself under IRS investigation. Congress did not address this situation in 1976 when it enacted the John Doe provisions. The Reports contain no mention of a summons issued for the dual purpose of investigating both the tax liability of the summoned party and the tax liabilities of unnamed parties. They focus exclusively on summonses issued to parties not themselves under investigation. We conclude that Congress did not expressly consider the problem of dual purpose summonses.
B
We, therefore, turn to consider whether dual purpose summonses give rise to the same concerns that prompted Congress to enact § 7609(f). The Reports discuss only one specific congressional worry: that the party receiving a summons would not have a sufficient interest in protecting the privacy of the records if that party was not itself a target of the summons. S. Rep. No. 94-938, at 368-369; H. R. Rep. No. 94-658, at 307. Such a taxpayer might have little incentive to oppose enforcement vigorously. Then, with no real adversary, the IRS could use its summons power to engage in “fishing expeditions” that might unnecessarily trample upon taxpayer privacy. S. Rep. No. 94-938, at 373; H. R. Rep. No. 94-658, at 311. Congress determined that when the IRS uses its summons power not to conduct a legitimate investigation of an ascertainable target, but instead to look around for targets to investigate, the privacy rights of taxpayers are infringed unjustifiably. See S. Rep. No. 94-938, at 368; H. R. Rep. No. 94-658, at 307.
In response to this concern, §§ 7609(a) and (b) gave the real parties in interest — those actually being investigated — the right to intervene in the enforcement proceedings. Similarly, the John Doe requirements of § 7609(f) were adopted as a substitute for the procedures of §§ 7609(a) and (b). In effect, in the John Doe context, the court takes the place of the affected taxpayer under §§ 7609(a) and (b) and exerts a restraining influence on the IRS. However, § 7609(f) provides no opportunity for the unnamed taxpayers to assert any “personal defenses,” such as attorney-client or Fifth Amendment privileges that might be asserted under §§ 7609(a) and (b). See H. R. Rep. No. 94-658, at 309; see also S. Rep. No. 94-938, at 370. What § 7609(f) does is to provide some guarantee that the information that the IRS seeks through a summons is relevant to a legitimate investigation, albeit that of an unknown taxpayer.
When, as in this case, the summoned party is itself under investigation, the interests at stake are very different. First, by definition, the IRS is not engaged in a “fishing expedition” when it seeks information relevant to a legitimate investigation of a particular taxpayer. In such cases, any incidental effect on the privacy rights of unnamed taxpayers is justified by the IRS’s interest in enforcing the tax laws. More importantly, the summoned party will have a direct incentive to oppose enforcement. In such circumstances, the vigilance and self-interest of the summoned party — complemented by its right to resist enforcement— will provide some assurance that the IRS will not strike out arbitrarily or seek irrelevant materials. See, e. g., United States v. Powell, 379 U. S. 48, 57-58 (1964) (“[The IRS] must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the [IRS’s] possession, and that the administrative steps required by the Code have been followed”). Here, for example, Tiffany argued vigorously — albeit unsuccessfully— against enforcement of the summonses.
This is not to say, of course, that as long as the summoned party is under investigation, the IRS will be guaranteed an adversary. It is possible that the summoned party, even if it is itself being investigated, will not oppose enforcement, and that as a result the IRS might obtain some information that is relevant only to the liabilities of unnamed taxpayers. We recognize that the privacy rights of the unnamed taxpayers might then be unnecessarily trampled upon. Congress, however, did not seek to ensure that the IRS have an adversary in all summons proceedings. All that it did was require that a party with a real interest in the investigation — or the district court in the John Doe context — have standing to challenge the IRS’s exercise of its summons authority. It is not up to us, in construing the scope of this authority, to identify a problem that did not trouble Congress, or to attempt to correct it. We therefore conclude that, where the summoned party is itself being investigated, that party’s self-interest provides sufficient protection against the evils that Congress sought to remedy when it enacted § 7609(f).
We reject Tiffany’s argument that, under the decision below, the IRS can circumvent the requirements of § 7609(f) merely by stating that the summoned party is under investigation. We do not find that argument persuasive for two reasons. First, in such a case, the summoned party would still have a sufficient interest in opposing enforcement, as it would have no way of ascertaining that the IRS was not in fact seeking to investigate it. This party would be an interested adversary, and the concerns to which § 7609(f) was addressed would thus be significantly attenuated. More importantly, if the district court finds in the enforcement proceeding that the IRS does not in fact intend to investigate the summoned party, or that some of the records requested are not relevant to a legitimate investigation of the summoned party, the IRS could not obtain all the information it sought unless it complied with § 7609(f).
Our conclusion that the congressional concerns are adequately met without resort to § 7609(f) when the summoned party is itself under investigation should not be read to imply that the IRS can obtain from that party, without complying with § 7609(f), information that is relevant only to the investigation of unnamed taxpayers. In order to obtain such information, the IRS would have to satisfy the requirements of § 7609(f). Therefore, when the IRS does not comply with § 7609(f), the focus must be on whether the information sought is relevant to the investigation of the summoned party. Thus, we discuss next whether the names of the Pedi-Pulsor licensees were relevant to an investigation of Tiffany’s tax liability.
C
During the enforcement proceedings, Tiffany argued that it was possible to perform an investigation of its tax liability without resort to the names of all the Pedi-Pulsor licensees. We have never held, however, that the IRS must conduct its investigations in the least intrusive way possible. Instead, the standard is one of relevance. See United States v. Powell, supra, at 57. The Government argues persuasively that contact with the licensees might be necessary to verify that the transactions reported by Tiffany actually occurred. In fact, Tiffany itself acknowledged the relevance of the requested information, as it offered the IRS the names of certain licensees: “They might want to check a number of them at random, and this we are willing to do because we understand that they are entitled to review [Tiffany’s] books.” App. 35. Tiffany refused, however, to provide all of the names, as it did not think that in the course of its investigation of Tiffany, the IRS would want to audit “50 out of 50 or 150 out of 150 participants.” Ibid.
On the record before us, we agree with the Government that the names of the licensees “may be relevant” to the legitimate investigation of Tiffany. United States v. Powell, supra, at 57. The decision of how many, and which, licensees to contact is one for the IRS — not Tiffany — to make. Having already found that Congress provided no “unambiguous direction” on the question whether the IRS needs to comply with § 7609(f) in the case of dual purpose summonses, and that the IRS’s failure to comply with these requirements when serving such summonses does not undermine the goals that Congress sought to promote through § 7609(f), we conclude that the summonses here were properly enforced.
IV
We hold that where, pursuant to §7602, the IRS serves a summons on a known taxpayer with the dual purpose of investigating both the tax liability of that taxpayer and the tax liabilities of unnamed parties, it need not comply with the requirements for John Doe summonses set out in § 7609(f), as long as all the information sought is relevant to a legitimate investigation of the summoned taxpayer. The judgment of the Court of Appeals is therefore affirmed.
It is so ordered.
The other petitioners are subsidiaries of Tiffany Fine Arts, Inc. Throughout this opinion, we refer to petitioners collectively as “Tiffany.”
This section provides:
“For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect to any internal revenue tax, or collecting any such liability, the Secretary or his delegate is authorized—
“(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry;
“(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary [or his delegate] may deem proper, to appear before the Secretary [or his delegate] at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and
“(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry.”
According to Tiffany’s president, “the Pedi-Pulsor, is designed to permit bed ridden patients to prevent deep vein thrombosis through leg movement assisted by the Pedi-Pulsor.” Affidavit in Opposition to Order to Show Cause, App. 16-17.
Two of the summonses also requested production of the list of clients who acquired lithographs from Tiffany. After ascertaining that Tiffany did not in fact market lithographs, the IRS dropped its request for this information.
“A ‘John Doe’ summons is, in essence, a direction to a third party to surrender information concerning taxpayers whose identity is currently unknown to the IRS.” In re Tax Liabilities of John Does, 671 F. 2d 977, 978 (CA6 1982).
Tiffany devotes considerable energy to arguing that “the summonses were issued principally with respect to the tax liabilities of Tiffany’s clients.” Brief for Petitioners 11. Under our holding in this case, it is irrelevant whether this was the IRS’s primary or secondary purpose; all that matters is that the IRS was pursuing a legitimate investigation of Tiffany. In any event, “this Court has frequently noted its reluctance to disturb findings of fact concurred in by two lower courts.” Rogers v. Lodge, 458 U. S. 613, 623 (1982). See Blau v. Lehman, 368 U
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
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_respond1_1_4
|
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 concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
Barbara Jean MARSH, Plaintiff-Appellant, v. EATON CORPORATION, Engineered Fastener Division, Reliance Fasteners Plant (Plant No. 1) and Reliance Wire Mill Plant (Plant No. 2); International Union of Allied Industrial Workers of America, Local No. 28; and International Union of Allied Industrial Workers of America, Local No. 306, Defendants-Appellees.
No. 79-3345.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 3, 1980.
Decided Jan. 30, 1981.
Robert J. Affeldt, Robert J. Affeldt, Inc., L.P.A., Sylvania, Ohio, for plaintiff-appellant.
John P. Palumbo, Stuart O. H. Merz, Jones, Day, Reavis & Pogue, Cleveland, Ohio, for Eaton Corp.
Sorrell Logothetis, Parks & Logothetis, Dayton, Ohio, for Local Nos. 28 and 306.
Before MERRITT and KENNEDY, Circuit Judges, and COOK, District Judge.
The Honorable Julian A. Cook, Jr., District Judge, United States District Court for the Eastern District of Michigan, sitting by designation.
MERRITT, Circuit Judge.
Plaintiff appeals from a finding for defendant, Eaton Corporation, in a class action suit alleging unlawful sex discrimination in employment in violation of 42 U.S.C. § 2000e et seq.
Plaintiff, Barbara Jean Marsh, an employee of Eaton corporation, filed a complaint with the E.E.O.C. on May 9, 1975. The E.E.O.C. issued a right-to-sue letter. Plaintiff then filed suit in federal court on April 9, 1976, and the District Court certified the suit as a class action.
The Reliance Fastener Plant and Wire Mill are part of Eaton Corporation and are located in Massillon, Ohio. Employees of each plant are members of separate local unions and have separate collective bargaining agreements. Both plants are serviced by a single personnel department located at the Fastener Plant. Plaintiff claims that Eaton (1) assigns new employees in a sexually-discriminatory manner, and (2) inhibits advancement of women through its seniority system.
As of October 7, 1976, there were six females at the Wire Mill. The District Court concluded that the plaintiff had not carried her burden of establishing a prima facie case of sex discrimination at the Wire Mill. There was no evidence concerning the initial placement of females at the plant. In light of the absence of evidence concerning the Wire Mill, the District Court was not clearly erroneous in its finding that there was no sex discrimination proven at that plant.
Evidence at trial focused on the Fastener Plant. As of October 7,1976, sixty females were employed at the Fastener Plant. Twenty-eight were employed as machine tenders, the lowest position in the Springtite Department. Thirty were employed in the junior inspector position, the lowest position in the Ring Department. No males were employed in either of those positions. Prior to 1965, Eaton classified eleven jobs as “female” and maintained separate seniority lists for males and females. Both junior inspectors and machine tenders were previously classified as “female.” From 1974^1977, the four years prior to trial, eighty-three persons were hired for the Fastener Plant. Of the forty-four with no previous experience, twenty-seven were female and seventeen were male. All the females were placed as junior inspectors or machine tenders; nine of the seventeen males were placed in these positions. See District Court opinion, App. 15a. The other eight males were placed in the following positions: four material handlers, two laborers, one slotter-trimmer operator, one wheelabrator.
The District Court concluded that these statistics did not establish a prima facie case of sex discrimination. The Court relied upon a statistical analysis that looked to the probability of females being placed as machine tenders/junior inspectors as opposed to males so placed. (See District Court Opinion, p. 22a n.13) Through statistical analysis of the small sample size (44), the Court concluded that the variance in initial placement between males and females was insignificant. In this case, 100% of the females hired during the four-year period were placed as machine tenders/junior inspectors; only 52.9% of the males were placed in those positions. Statistical use of the small sample in the manner of the District Court would preclude a smaller employer from being liable for unlawful channeling because only the most egregious and flagrant violations would be reflected through statistical analysis. Particularly in light of statistical evidence from 1964-1974, which indicates an extremely heavy concentration of females in two positions, we must conclude that plaintiff has made out a prima facie case of sex discrimination.
The conclusion that plaintiff has established a prima facie case of sex discrimination does not settle the case. The defendant is free to rebut the inferences presented by these statistics. “We caution only that statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances.” Teamsters v. United States, 431 U.S. 324, 340, 97 S.Ct. 1843, 1856-57, 52 L.Ed.2d 396 (1977).
The evidence presented indicates that all females were channeled into two jobs. Although some males were also placed in these jobs, almost half of the inexperienced males were placed in higher paying positions. There was no evidence that the inexperienced males were qualified for jobs other than machine tender/junior inspector or that the inexperienced females were not so qualified. See, e. g., testimony, App. 35a-39a; District Court opinion p. 12a n.3.
Once plaintiff establishes a prima facie case of sex discrimination, the burden shifts to defendant to rebut plaintiff’s evidence. Accordingly, we reverse the District Court and remand to allow defendants the opportunity to rebut the prima facie case through attack on the statistical foundation, evidence of business purpose or other rebutting evidence.
Finally, plaintiff has not shown a prima facie case of sex discrimination in the use of the facially neutral seniority system used during this period. There was no evidence that a female ever applied through the bidding system for a job that she did not receive.
Accordingly, we affirm in part and reverse in part.
. The figures for 1964-1974 did not reflect initial placement of females as compared to males. For this reason only slight inferences may be drawn from them. It was this lack of precision on the part of plaintiff that has made establishment of a prima facie case difficult.
. We are concerned here with the improper channeling of female employees into certain positions. The fact that female emlpoyees did not attempt in large numbers to bid out of those jobs is not relevant to the claim of improper channeling in initial placement.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
|
songer_state
|
01
|
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".
James Burnett McKay LAING, Plaintiff-Appellant, v. UNITED STATES of America, John M. Walters, Commissioner of Internal Revenue Service, Fulton D. Fields, District Director of Internal Revenue Service, District of Vermont, James R. Perry, Chief of Collection Division, District of Vermont, Defendants-Appellees.
No. 707, Docket 73-2537.
United States Court of Appeals, Second Circuit.
June 27, 1977.
Martin G. Weinberg, Crane, Inker & Ot-eri, Boston, Mass., Duncan Kilmartin, Rex-ford & Kilmartin, Newport, Vt., for plaintiff-appellant.
Bennet N. Hollander, Robert S. Watkins, Tax. Div., Dept, of Justice, Washington, D. C., George W. F. Cook, U. S. Atty., Dist. of Vermont, Rutland, Vt., for defendants-ap-pellees.
Before FRIENDLY and TIMBERS, Circuit Judges, and THOMSEN, District Judge.
Of the District of Maryland, sitting by designation.
PER CURIAM:
The Supreme Court, in its opinion of January 13, 1976, 423 U.S. 161, reversed our judgment of May 2, 1974, 496 F.2d 853, and remanded the case to us for further proceedings in conformity with the opinion of the Supreme Court.
Pursuant to the Supreme Court’s mandate which was received by our Court on February 20, 1976, we entered an order on the same date vacating our judgment of May 2, 1974.
Having been recently advised that the parties filed in the district court on July 22, 1976 a stipulation that the action be dismissed, we remand the case to the district court with instructions to enter a judgment in accordance with the opinion of the Supreme Court and giving effect to the stipulation of the parties.
Remanded with instructions.
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:
|
sc_respondent
|
028
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
GARRISON v. PATTERSON, WARDEN.
No. 791,
Misc.
Decided May 27, 1968.
E. Barrett Prettyman, Jr., and Isaac Mellman for petitioner.
Duke W. Dunbar, Attorney General of Colorado, Frank E. Hickey, Deputy Attorney General, and John P. Moore, Assistant Attorney General, for respondent.
Per Curiam.
On November 27, 1959, petitioner was found guilty of first degree murder by a Colorado jury, which fixed his penalty at death. Following subsequent state proceedings, he sought a writ of habeas corpus in the United States District Court for the District of Colorado. He alleged that he had received inadequate representation by appointed trial counsel, that the trial court had not properly determined the voluntariness of confessions admitted against him, and that the procedure used to determine his sanity fell short of constitutional requirements. On June 2, 1967, the District Court denied the writ, denied a certificate of probable cause to appeal, see 28 U. S. C. § 2253, but granted a stay of execution to June 16, 1967, to allow time for appeal. The District Court filed a written opinion and order to that effect on June 5, 1967.
Three days later, on June 8, petitioner’s attorneys filed with the Court of Appeals for the Tenth Circuit a three-page document requesting a further stay of execution, a certificate of probable cause to appeal, and leave to appeal in forma pauperis. This document merely stated the formal history of the case in numbered paragraphs, noted one of the issues, and alleged that “this petition merits further hearing by this Court.” On the following day, June 9, counsel were heard orally by a panel of the Court of Appeals. The hearing was not recorded. The court granted a further stay of execution. On June 18, without further argument or submissions by counsel, the Court of Appeals issued an order granting the certificate of probable cause, and, in the next sentence, affirming the District Court’s denial of habeas corpus. Petitioner sought a writ of certiorari in this Court, alleging that the procedure followed by the Court of Appeals violated the standards established by, or implicit in, Nowakowski v. Maroney, 386 U. S. 542.
We grant the writ, vacate the judgment of the Court of Appeals, and remand to that court for further appropriate proceedings. Nowakowski, supra, held that when a district court grants a certificate of probable cause the court of appeals must “proceed to a disposition of the appeal in accord with its ordinary procedure.” 386 U. S., at 543. The principle underlying that decision was that if an appellant persuades an appropriate tribunal that probable cause for an appeal exists, he must then be afforded an opportunity to address the underlying merits. This principle is no less applicable when a court of appeals, having received submissions relating only to probable cause and other procedural matters, decides that probable cause indeed exists.
As we only recently noted in Carafas v. LaVallee, ante, p. 234, at 242, Nowakowski does not prevent the courts of appeals from adopting appropriate summary procedures for final disposition of such cases. Carafas requires the courts of appeals to give sufficient indication that an appeal has been disposed of on the merits, but nothing in Nowakowski and nothing we say here prevents the courts of appeals from considering the questions of probable cause and the merits together, and nothing said there or here necessarily requires full briefing and oral argument in every instance in which a certificate is granted. We hold only that where an appeal possesses sufficient merit to warrant a certificate, the appellant must be afforded adequate opportunity to address the merits, and that if a summary procedure is adopted the appellant must be informed, by rule or otherwise, that his opportunity will or may be limited. Within this general framework, the promulgation of specific procedures is a matter for the courts of appeals.
The motion to proceed in forma pauperis and petition for a writ of certiorari are granted. The judgment of the Court of Appeals affirming the judgment of the District Court is vacated, and the case is remanded for further proceedings in conformity with this opinion. The stay of execution heretofore granted by Me. Justice White is continued in force pending the disposition of the matter by the Court of Appeals, on condition that the petitioner proceed with due diligence in that court.
It is so ordered.
Petitioner’s statement of facts alleges not only that trial counsel was guilty of egregious neglect at trial but also that there were understandable reasons: there is said to be evidence that during the period of the trial the attorney’s attention was preoccupied with other matters, to wit, the commission of a series of felonies.
In an effort to determine whether the merits had been addressed, and whether petitioner was on notice that they should be addressed in full, at the unrecorded hearing on June 9, this Court solicited further submissions from the parties in this case. Petitioner replied that the merits had been raised only to the extent necessary to show grounds for a certificate of probable cause. Respondent replied that petitioner was given all the time he wanted. Respondent was unable, however, to point to any rule or decision forewarning an applicant for a certificate of probable cause to make his argument on the underlying issues in full.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
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.
Anthony VOCCIO and Domenic Voccio, Plaintiffs, Appellants, v. RELIANCE INSURANCE COMPANIES, et al., Defendants, Appellees. Anthony VOCCIO and Domenic Voccio, Plaintiffs, Appellees, v. RELIANCE INSURANCE COMPANIES, et al., Defendants, Appellants.
Nos. 82-1625, 82-1719.
United States Court of Appeals, First Circuit.
Argued Feb. 4, 1983.
Decided March 24, 1983.
Joseph G. Miller, Providence, R.I., with whom William T. Murphy, and Joseph G. Miller, Ltd., Providence, R.I., was on brief, for Anthony Voccio and Domenic Voccio.
Peter Lawson Kennedy, Providence, R.I., with whom Adler Pollock & Sheehan Incorporated, Providence, R.I., was on brief, for Reliance Insurance Companies, et al.
Before ALDRICH and BREYER, Circuit Judges, and ZOBEL, District Judge.
Of the District of Massachusetts, sitting by designation.
BREYER, Circuit Judge.
This case arises out of a serious auto accident that took place more than ten years ago. William Lopes, Jr., driving his mother Anna Lopes’ car, lost control of the car and hit two pedestrians, Mary Petrarca and Anthony Voccio. Petrarca, a fifty-eight year old housewife, died about eleven minutes after being hit. Voccio, an eleven year old child, lost the lower part of both his legs. The Lopeses were nearly judgment-proof and carried liability insurance of only $25,000. The insurance company, Reliance, settled with Mrs. Petrarca’s husband for half of the policy amount, $12,500. Anthony Voccio and his father refused to accept the other half and sued the Lopeses. Although they won a verdict for several hundred thousand dollars, the Lopeses could not pay. The Voccios then promised not to try to collect the judgment. In return, the Lopeses assigned to the Voccios whatever claim they might have against Reliance for “bad faith” in carrying out the settlement negotiations.
The Voccios, standing in the Lopeses’ shoes, sued Reliance in Rhode Island state court. Reliance removed the case to federal court on grounds of diversity. The jury in the federal court found that Reliance’s “bad faith” had led to the large excess judgment against the Lopeses and would have required Reliance to pay this excess to the Voccios. The district judge, however, granted Reliance a judgment n.o.v. The judge held that no reasonable juror could have believed that Reliance’s actions demonstrated any “bad faith” that in turn led to the excess judgment. What we have before us is, in essence, the Voccios’ appeal from this district court determination.
In principle, this case might raise a number of interesting and difficult issues of Rhode Island law. .Does that law permit the Lopeses to assign their claim against Reliance to the Voccios? See, e.g., Moutsopoulos v. American Mutual Insurance Co. of Boston, 607 F.2d 1185, 1189-90 (7th Cir. 1979) (Wis. law: assignment allowed); Dillingham v. Tri-State Insurance Co., 214 Tenn. 592, 381 S.W.2d 914 (1964) (assignment prohibited); Annot., 12 A.L.R.3d 1158 (1967). Did the excess judgment against the Lopeses damage them? They were nearly judgment-proof and the Voccios promised not to execute the judgment. Were they harmed in the amount of the several hundred thousand dollars that the Voccios seek from the insurance companies? See, e.g., 7C J. Appleman, Insurance Law and Practice § 4711 at 417-19 (W. Berdal rev. 1979); Keeton, Liability Insurance and Responsibility for Settlement, 67 Harv.L. Rev. 1136, 1173-82 (1954); Annot., 63 A.L.R.3d 627 (1975). We need not consider these questions, however, nor certify them to the Rhode Island Supreme Court, see Smith v. Cumberland School Committee, R.I., 415 A.2d 168 (1980), for even assuming answers favorable to the Voccios, we believe the district court’s award of judgment n.o.v. was proper.
In order to prevail the Voccios must at least show that: 1) the insurance company’s “bad faith’’ in settling the Petrarca and Voccio claims, 2) caused the excess judgment. See Bibeault v. Hanover Insurance Co., R.I., 417 A.2d 313, 319 (1980). As a matter of law, on the basis of this record, we doubt that the Voccios could prevail as to the first of these matters. We are certain they cannot prevail as to the second.
“Bad faith” is not easily defined. Yet we know that it involves behavior worse than simple negligence. See Brown v. United States Fidelity and Guaranty Co., 314 F.2d 675, 679-80 (2d Cir.1963). In Rhode Island it seems to require some form of “reckless” behavior, such as a “reckless indifference to facts” or “a lack of a reasonable basis” for the carrier’s decision. Bibeault v. Hanover Insurance Co., 417 A.2d at 319. As stated strongly, the duty to negotiate in good faith would require the carrier to give “the interest of the insured” consideration “equal to that consideration given its own interest,” Liberty Mutual Insurance Co. v. Davis, 412 F.2d 475, 483 (5th Cir.1969), or “to treat the claim as if it were alone liable for the entire amount.” Bell v. Commercial Insurance Co. of Newark, 280 F.2d 514, 515 (3d Cir.1960); see Brown v. United States Fidelity and Guaranty Co., 314 F.2d at 678; Keeton, supra, at 1148. Most “bad faith” cases involve an insurance company’s refusal to accept an offer of settlement within the available policy limits — a state of affairs (unlike this one) where the interests of the carrier and insured are clearly opposed. See, e.g., Luke v. American Family Mutual Insurance Co., 476 F.2d 1015 (8th Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 158, 38 L.Ed.2d 105 (1973); Peterson v. Allcity Insurance Co., 472 F.2d 71 (2d Cir.1972); Herges v. Western Casualty and Surety Co., 408 F.2d 1157 (8th Cir.1969); State Farm Mutual Automobile Insurance Co. v. Brewer, 406 F.2d 610 (9th Cir.1968). Only occasionally has liability been found where the conflict of interest has been less apparent; and in such cases the evidence of reckless behavior is strong. See Brown v. United States Fidelity and Guaranty Co., 314 F.2d at 682.
We doubt that a reasonable jury, unswayed by sympathy for the Voccios, could have found any relevant “bad faith” here. The evidence, viewed most favorably to plaintiffs, see Ramos Rios v. Empresas Lineas Maritimas Argentinas, 575 F.2d 986, 989 (1st Cir.1978), suggests that Reliance’s investigation of the Petrarca claim and its efforts to keep the Lopeses informed about settlement negotiations left something to be desired. Cf. 7C J. Appleman, supra, at §§ 4711 at 370-72, 4712 at 480; 14 G. Couch, Cyclopedia of Insurance Law § 51:145 (2d ed. 1982). But even if a jury might have found such conduct to be negligent or even “reckless” viewed alone, here the conduct is relevant only insofar as it led the carrier to pay $12,500 to the Petrarcas (and leave only $12,500 for the Voccios). At bottom, the Voccios must show that this 50-50 division of the insurance policy proceeds was highly unreasonable, reckless or in “bad faith” — an exceedingly difficult task.
For one thing, the carrier met together with counsel for both Petrarca and the Voccios and sought suggestions on how to divide the money — a course recommended in Farmers Insurance Exchange v. Schropp, 222 Kan. 612, 567 P.2d 1359, 1367 (1977). For another thing, unlike the claimant in Brown, the Voccios did not agree to participate in an equitable division of the policy proceeds. In fact, the Voccios consistently refused to make any offer of settlement below the policy limits. These facts make more reasonable the carrier’s decision to give Mr. Petrarca half of the amount. Furthermore, Mr. Petrarca’s claim was substantial. His wife had been killed; she was conscious for a time before death (and thus may have suffered); she was a housewife for the loss of whose services a husband can be compensated under Rhode Island law. See Burns v. Brightman, 44 R.I. 316, 117 A. 26 (1922). Moreover, Mr. Petrarca was willing to settle while the Voccios were not. Judicial decisions have consistently allowed insurers to settle on the basis of “first come, first served.” See, e.g., Standard Accident Insurance Co. of Detroit v. Winget, 197 F.2d 97, 104 (9th Cir.1952); Bartlett v. Travelers’ Insurance Co., 117 Conn. 147, 167 A. 180 (1933); Bennett v. Conrady, 180 Kan. 485, 305 P.2d 823 (1957); Bruyette v. Sandini, 291 Mass. 373, 197 N.E. 29 (1935); Liguori v. Allstate Insurance Co., 76 N.J.Super. 204, 184 A.2d 12 (Ch. 1962); Alford v. Textile Insurance Co., 248 N.C. 224, 103 S.E.2d 8 (1958); Keeton, Preferential Settlement of Liability-Insurance Claims, 70 Harv.L. Rev. 27, 37-38 (1956); Comment, Pro-rating Automobile Liability Insurance to Multiple Claimants, 32 U.Chi.L.Rev. 337, 337 (1965). Indeed, had the carrier refused to settle with Petrarca, the Lopeses might well have been faced with two suits rather than one, or with a suit by Petrarca instead of Voccio. Under these circumstances, it is difficult to see how splitting the insurance proceeds and settling Mr. Petrarca’s claim for $12,-500 could constitute “bad faith.”
We need not definitively hold that no “bad faith” exists, however, for we agree with the district court that whatever “bad faith” there may have been did not bring about the “excess” judgment. The crucial difference between this case and the Brown case (on which the Voccios rely) is the absence of any evidence suggesting that a “good faith” settlement with Mr. Petrarca would have led to a different outcome. There is no reason to believe that further investigations of the Petrarca claim or greater efforts to keep the Lopeses informed would have brought about a settlement with the Voccios. Indeed, the Lopes-es’ counsel initially appears to have been pleased with the settlement, and to have expressed no discontent until 1977, several years after the settlement took place.
The Voccios’ strongest argument is that a 50-50 split was unreasonable in light of Mrs. Petrarca’s age and Anthony Voceio’s youth. Yet, the reasonableness of the carrier’s belief that Mr. Petrarca’s claim was worth more than $12,500 cannot be questioned. As previously mentioned, the carrier knew Mrs. Petrarca was fifty-eight years old, that she was conscious before death, and that compensation is payable for the loss of a housewife’s services in Rhode Island. That Mr. Petrarca might have had to submit additional evidence of the value of those services in a “wrongful death” action, R.I.Gen.Laws § 10-7-1.1; see Pray v. Narragansett Improvement Co., R.I., 434 A.2d 923, 929 (1981); Taft v. Cerwonka, R.I., 433 A.2d 215, 219-20 (1981); Wiesel v. Cicerone, 106 R.I. 595, 261 A.2d 889, 891-92 (1970); Burns v. Brightman, 117 A. at 29, is beside the point, for here the issue is the carrier’s “state of mind.” And, as to that, it was reasonable for the carrier to infer from these facts that Mr. Petrarca had a claim significantly exceeding the policy limit. Indeed, the only evidence specifically valuing the Petrarcas’ claim in the court below put its value at over $75,000.
The Voccios’ argument that the 50-50 split was improper rests on the claim that the split was inequitable as between the Voccios and Petrarca, not on a claim that Reliance breached a duty to the Lopeses. Yet, even if we evaluated the settlement from the standpoint of such equities, we would affirm the district court. That is to say, we do not see how anyone could find Reliance to be in “bad faith” for paying significantly more than $5,000 — say, $10,000 to Petrarca. But even if Petrarca had been willing to settle for $10,000, there is no evidence in the record that the Voccios would have settled for $15,000. Indeed, there is considerable evidence to the contrary, for the Voccios refused to mention any settlement figure within the policy limits up to the time of the personal injury trial, and at that time they still insisted on the full $25,000. Even if William, Jr. and Anna Lopes were to have contributed their personal assets to the settlement, the Voccios do not argue that they could have contributed more than $6,000. In sum, we do not see how a jury could have concluded that an extra $2,500 or so from Reliance could have led to settlement, nor do we see how a jury could have concluded that the utmost “good faith” on the part of the carrier would have produced more than an additional $2,500.
For these reasons, the judgment of the district court 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_appnonp
|
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 "groups and associations". 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 of America v. Willie ROBINSON, Jr., Appellant.
No. 23734.
United States Court of Appeals, District of Columbia Circuit.
Argued June 1, 1972.
Decided Oct. 31, 1972.
Certiorari Granted March 19, 1973.
See 93 S.Ct. 1500.
Mr. Joseph Gartlan, Jr., Washington, D. C., with whom Mrs. Dorothy Sellers, Washington, D. C. (both appointed by this court), and Mr. John K. Crummey, Bethesda, Md., were on the brief, for appellant.
Mr. Henry F. Greene, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry and John F. Evans, Asst. U. S. Attys., were on the brief, for appellee. Messrs. Harold H. Titus, Jr., present U. S. Atty., and Earl J. Silbert, Asst. U. S. Atty., also entered appearances for appellee.
Mr. Scott R. Sehoenfeld, Washington, D. C., filed a brief on behalf of Americans for Effective Law Enforcement, Inc. as amicus curiae.
ON REHEARING EN BANC
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.
J. SKELLY WRIGHT, Circuit Judge:
This appeal from a jury conviction of federal narcotics offenses raises questions under the Fourth Amendment, as difficult as they are important, concerning the permissible scope of a search of the person incident to a lawful arrest for violation of a District of Columbia motor vehicle regulation. The ease was heard initially by a division of this court which reversed the conviction, one judge dissenting, on the ground that the search of appellant’s person violated the commands of the Fourth Amendment. Upon rehearing en banc, however, the court vacated the opinion and judgment of the division and held that since the taking of evidence in the District Court had not focused upon the scope issue relied upon by the division, a remand was necessary in order that “an authentic version of what actually happened” might be presented. This supplemental evidentiary hearing having now been completed, we find the search of appellant to be unconstitutional and therefore reverse the conviction.
I
On April 19, 1968, Officer Richard Jenks of the Metropolitan Police Department stopped a 1965 Cadillac at the intersection of Ninth and U Streets, N.W., for a “routine spot check.” At the time of this stop, Officer Jenks examined not only appellant’s temporary operator’s permit and automobile registration card, but also his selective service classification card. Officer Jenks permitted appellant to continue about his business, but only after making notes of the three items. His note taking alerted him to a discrepancy between the “1938” date of birth listed on the temporary operator’s permit and the “1927” date of birth listed on the selective service classification card. Officer Jenks then went to police traffic records and discovered that the operator’s permit issued to “Willie Robinson, Jr.,” born in 1927, had been revoked, and that a temporary permit had been issued to a “Willie Robinson,” born in 1938. The pictures on the revoked permit and on the application for the temporary permit were of the same person; both were likenesses of the man he had stopped for the routine check on April 19.
On April 23, 1968, while on duty, Officer Jenks observed appellant operating the same vehicle. He stopped appellant, asked him for his permit and registration card and, upon being shown the same permit appellant had exhibited four days earlier, placed'appellant under arrest for operating a motor vehicle after revocation of his operator’s permit and for obtaining a permit by misrepresentation. According to his testimony at the remand hearing, Officer Jenks then advised appellant of his rights and proceeded to search him. Since the arrest was one which involved taking appellant to the station house, under Police Department instructions Officer Jenks was required to make a full field search as an incident to the arrest. A full field search “is a thorough search of the individual.” Remand transcript at 99. “He examines the contents of all of the pockets in a field type search and in-custody arrest at all times.” Id. at 120. In conducting a full field search, “even though [the officer] may feel something that he believes is not a weapon, he is instructed to take it out.” Id. at 100. The officer is taught “to examine everything he has on him at the field search. Everything that we find in his pockets is examined to find out what exactly it is.” Id. at 104.
Officer Jenks’ search complied with Police Department instructions. He was unable to recall the precise sequence in which he searched appellant. His best recollection was that in placing his right hand on appellant’s left breast he felt an object. Although Officer Jenks could not ascertain the precise size or consistency of this object, there was no suggestion that he believed it to be a weapon or believed himself to be in danger. On the contrary, he admitted that he did not have any specific purpose in mind when he searched appellant: “I just searched him. I didn’t think about what I was looking for. I just searched him.” Remand transcript at 32. Officer Jenks proceeded to extract the object — which turned out to be a wadded up cigarette package — from appellant’s pocket. He then opened the package and found it to contain 14 gelatin capsules of heroin. Officer Jenks then placed appellant under arrest for possession of narcotics, and continued his search without finding any weapons or any additional narcotics.
Throughout the proceedings in this case, the Government has consistently conceded, and indeed there can be no doubt, that in extracting the cigarette package from appellant’s pocket and opening the package so as to examine its contents, Officer Jenks exceeded the permissible scope of a limited frisk for weapons. Moreover, as Officer Jenks’ testimony at the remand makes clear, the full search of appellant’s person that actually occurred in this case cannot be justified on a theory that the narcotics were “in plain view.” Thus the question is now squarely presented whether, and under what circumstances, an arresting officer may conduct a full search of the person incident to a lawful arrest for violation of a mere motor vehicle regulation.
II
Ordinarily, a warrant must be obtained by a police officer before he may make a search. Searches of both person and place incident to lawful arrest, however, have traditionally been exceptions to this rule and have been held constitutional even though they have been made without prior approval by a neutral magistrate. Nevertheless, “the bare fact that a person is validly arrested does not mean that he is subject to any and all searches that the arresting officer may wish to conduct.” United States v. Mills, 153 U.S.App.D.C. -, -, 472 F.2d 1231, 1234 (decided May 10, 1972) (en banc). Rather, the validity of searches and seizures under the Fourth Amendment turns upon their reasonableness, and since a warrant will not be available to insure that arrest based searches are reasonable both at their inception and in their execution, courts must review the constitutionality of such searches with special care. See, e. g., Schmerber v. California, 384 U.S. 757, 766-772, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).
In exercising this power of review, courts must give particularly careful weight to the fundamental Fourth Amendment principle which has been given renewed emphasis in the housing inspection and stop-and-frisk cases: a search will comply with the requirements of the Fourth Amendment only if its scope is no broader than necessary to accomplish legitimate governmental objectives. This principle is stated most clearly in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which the Supreme Court upheld an on-the-street detention and search for weapons of three suspects. The Court found that the police officer in Terry had “adequate constitutional ground,” but not probable cause, to believe that the men'he detained and searched were going to commit a crime. In its opinion the Court stressed that the Fourth Amendment governs all intrusions by agents of the public upon personal security, 392 U.S. at 18 n. 15, 88 S.Ct. 1868, and that the manner in which the search and seizure are conducted is as much the test of their reasonableness as whether they were warranted at all. Id. at 28, 88 S.Ct. 1868. Citing a number of earlier cases, many of which involved searches initiated upon probable cause, the Court in Terry stated that “[t]his Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope,” and that “[t]he scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Id. at 17-19, 88 S.Ct. at 1878. Thus the Court made absolutely clear that the underlying rationale of Terry was a restatement of, rather than a departure from, existing case law, and that, although Terry itself involved a search upon less than probable cause, the scope limitation principle was to apply to all searches no matter what thp evidentiary basis for their initiation.
If Terry left any doubt at all that the scope limitation principle was intended by the Supreme Court to apply to arrest based searches, that doubt was expressly foreclosed by the last of the cases in the Terry-Sibron-Peters trilogy. In Peter's v. New York, which is consolidated with Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), Officer Lasky of the New York City Police Department was off duty at his apartment when he heard a noise at the door. Looking through the peephole into the hall, he saw two men he did not believe to be fellow tenants tip-toeing out of the alcove toward the stairway. Officer Lasky called police headquarters, put on civilian clothes, and armed himself with his service revolver. Believing he had happened upon the two men in the course of an attempted burglary, Officer Lasky opened his door, entered the hallway, and slammed the door loudly behind him. When the door slammed the two men fled down the stairs and Officer Lasky gave chase. When he caught up with Peters on the stairs and questioned him, Peters explained his presence in the building by saying he was visiting a girl friend whose name he chivalrously declined to reveal on the ground that she was a married woman. Officer Lasky then patted Peters down for weapons and discovered a hard object in his pocket. The object did not feel like a gun, but he thought it might be a knife. Officer Lasky removed this object from Peters’ pocket and found it was an opaque envelope containing burglar’s tools.
Given this factual situation, the Supreme Court held that Officer Lasky legally arrested Peters when he collared him on the stairway and curtailed his freedom of movement. This arrest was found to be valid because made on the basis of probable cause to believe Peters was engaged in criminal activity. At this point, according to the Supreme Court,
“[Officer Lasky] had the authority to search Peters, and the incident search was obviously justified ‘by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime.’ * * * Moreover, it was reasonably limited in scope by these purposes. Officer Lasky did not engage in an unrestrained and thoroughgoing examination of Peters and his personal effects. •X* * -X- ”
392 U.S. at 67, 88 S.Ct. at 1905. (Emphasis added.) In Peters, then, the Supreme Court applied the scope limitation principle to an arrest based search and found that the search — which took the form of a frisk followed by a further intrusion into the arrestee’s pockets only after an object possibly a weapon had been felt — was “reasonably limited in scope by [its] purposes” and was not so “unrestrained and thoroughgoing” as to violate the Constitution.
Similarly, in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Court used its scope limitation principle to measure the constitutionality of a far-ranging search of a house incident to a lawful arrest for larceny. Terry was specifically referred to, and the Chimel search, in which police discovered coins appellant was accused of stealing, was found to be unconstitutional because it was not “ ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” 395 U.S. at 762, 89 S.Ct. at 2039. Chimel holds that incident to a lawful arrest for a crime such as theft, which requires instrumentalities and bears fruits, there is ample justification for a warrantless search of “the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Id. at 763, 89 S.Ct. at 2040.
Thus although the consequences of application of the scope limitation principle may differ under varying circumstances, it is clear that all searches, whether or not based upon probable cause, are governed by the rule, and that in determining the constitutionality of any particular search “our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, supra, 392 U.S. at 19-20, 88 S.Ct. at 1879.
III
What then are the legitimate objectives of an arrest based search of the person? What is it that renders such searches permissible at their inception, and to which the scope of such searches must be tied, if their reasonableness is to be maintained? Though they receive slightly different formulation in various cases, the legitimate objectives of warrantless searches of the person incident to arrest seem to be (1) seizure of fruits, instrumentalities and other evidence of the crime for which the arrest is made in order to prevent its destruction or concealment; and (2) removal of any weapons that the arrestee might seek to use to resist arrest or effect his escape. The question presented, then, is whether either of these objectives justifies a full search of the person incident to a lawful arrest for violation of a mere motor vehicle regulation.
Since fruits, instrumentalities or other evidence of crime concealed on the person of the arrestee may be easily disposed of or destroyed, the arresting officer will often be justified in searching for such evidence without delay. But the scope limitation principle requires that when police search a person incident to arrest, the search must be directed toward finding evidence which the arresting officer has probable cause to believe will be found on the person, and that the search be no more intrusive than necessary to recover such evidence. For most crimes, of course, it is clearly reasonable to assume that the arrestee will be in possession of the fruits, instrumentalities or other evidence of the crime for which the person was arrested. Thus in such situations “the circumstances justifying the arrest are also those furnishing probable cause for the search.” Chambers v. Maroney, 399 U.S. 42, 47 n. 6, 90 S.Ct. 1975, 1979 n. 6, 26 L.Ed.2d 419 (1970). For other crimes, however, and more particularly for most traffic offenses, no search of the person for evidence may be allowed at all because no evidence exists to be found. Admittedly, appellant’s offenses in this case — driving after his operator’s permit had been revoked and obtaining a new permit by misrepresentation — are relatively serious ones on the continuum of traffic infractions. Nonetheless, upon stopping Willie Robinson for the second time and upon receiving for the second time Robinson’s fraudulently obtained temporary operator’s permit, Officer Jenks had secured the only evidence of the crime for which the arrest was made which he could possibly have had probable cause to believe was in the arrestee’s possession. No further arrest based search for evidence was therefore reasonable or constitutional.
There is, of course, a second, very important, justification for searches incident to arrest — the interest of government in the safety of its police officers. In Terry v. Ohio, supra, the Supreme Court recognized that when a police officer stops a citizen on the street in the course of a legitimate investigation “there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer * * 392 U.S. at 27, 88 S.Ct. at 1883. The Court made clear, however, that the right to exercise that authority was not automatic. Rather, such intrusions are permissible only if the officer is “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the officer’s belief that the person with whom he is dealing is both armed and presently dangerous. Id. at 21, 88 S.Ct. at 1880. Moreover, since the sole basis for such a search is the protection of the officer, the Court held that even when the officer reasonably believes himself to be in danger, the search actually conducted “must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer * * * ” Id. at 26, 88 S.Ct. at 1882. Thus the Court in Terry approved a pat-down or “frisk” of the appellant’s outer clothing for weapons, with a further intrusion only after finding a weapon, precisely because such an intrusion was adequate to protect the officer and was confined “strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons.” Id. at 30, 88 S.Ct. at 1884.
Similarly, in Sibron v. New York, supra, another stop-and-frisk case, the Court held that a direct intrusion into the pockets of a narcotics suspect was unreasonable at its inception because the mere association of the suspect with other known narcotics offenders was held not to have given the officer justification for any search whatever. Before conducting a self-protective search for weapons, the Court held, the officer “must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” 392 U.S. at 64, 88 S.Ct. at 1903. Moreover, the Court in Sibron went further and held that, assuming arguendo that the officer had reason to suspect Sibron was armed, the actual search — a direct intrusion into the suspect’s pockets rather than a frisk— would still have been constitutionally invalid because “not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer * * * ” Id. at 65, 88 S.Ct. at 1904.
Thus Terry and Sibron, when read together, stand for the proposition that in the stop-and-frisk situation where, as in the routine traffic arrest, there can be no evidentiary basis for a search, the most intrusive search the Constitution will allow is a limited frisk for weapons, and even then only when the officer reasonably believes himself to be in danger. The Government contends, however, that the standards enunciated in Terry and Sibron are inapplicable to the instant case because the “stops” and “frisks” involved in those decisions were predicated only upon “reasonable suspicion” whereas here, since appellant was arrested on probable cause, a full search was justified. But in focusing on the different quanta of evidence required to justify different degrees of seizures or searches of the person, the Government loses sight of the even more telling distinction between the evidentiary and protective purposes of searches. It is upon this latter distinction that our case hinges.
Because the arrest based searches reviewed and validated by the courts have usually had both evidentiary and protective functions, the casual reader may be given the false impression that these cases stand for the proposition that a lawful arrest will always support a full search of the person. Obviously, when the arrest is made for a crime for which evidence exists, a warrantless intrusion into the pockets of the arrestee to discover such evidence is reasonable under the “search incident” exception. The officer may, of course, also use this reasonable intrusion to look simultaneously for weapons. But in a fact situation such as ours, where the search can have no evidentiary function, a more careful analysis of proper scope limitations is called for. When the sole legitimate goal of the search is the protection of the officer, the paramount factor in determining the reasonableness of the intrusion is the danger actually presented, and it is of no moment whether the protective search for weapons is incident to an “arrest” based on probable cause or incident to a “stop” based only upon reasonable suspicion. “In short, the physical risk to the officer is created by the circumstances of the confrontation taken as a whole, not by the technical niceties of the law of arrest.” People v. Superior Court of Los Angeles County [Simon], 7 Cal.3d 186, 101 Cal.Rptr. 837, 850, 496 P.2d 1205, 1218 (1972) (en banc).
IV
In determining the extent to which the legitimate governmental interest in insuring the safety of law enforcement officers justifies a search of the person incident to a lawful arrest, a distinction must be drawn between the “routine” traffic arrest — where the officer simply issues a notice of violation and allows the offender to proceed — and the more serious cases in which the officer effects an “in-custody” arrest in order to transport the traffic offender to the stationhouse for booking. Turning first to the “routine” traffic arrest, it seems evident that the dangers presented in that situation are to some extent similar to, and certainly no greater than, those presented in the stop-and-frisk situations involved in Terry and Sibron. Like the investigatory stop, the routine traffic arrest is merely a brief on-the-street encounter. Moreover, the vast majority of traffic violators are law-abiding citizens. Indeed, “[v]ery few drivers can traverse any appreciable distance without violating some traffic regulation.” and as Chief Judge Fuld of the New York Court of Appeals has noted, “A motorist, who exceeds the speed limit does not thereby indicate any propensity for violence or iniquity, and the officer who stops the speeder has not even the slightest cause for thinking that he is in danger of being assaulted.” People v. Marsh, 20 N.Y.2d 98, 101, 281 N.Y.S.2d 789, 792, 228 N.E.2d 783, 786 (1967).
This is not to say, of course, that a minor traffic stop can never erupt into violence. On the contrary, whenever a police officer confronts a citizen on the street an element of danger is present. But as the stop-and-frisk cases make clear, the mere possibility of danger cannot justify any and all searches the officer may wish to conduct. The touchstone of the Fourth Amendment is reasonableness, and the possibility that a routine traffic stop might result in injury to the officer, although unquestionably real, is so remote that “[t]o allow the police to routinely search for weapons in all such instances would * * * constitute an ‘intolerable and unreasonable’ intrusion into the privacy of the vast majority of peaceable citizens who travel by automobile.” People v. Superior Court of Yolo County [Kiefer], 3 Cal.3d 807, 91 Cal.Rptr. 729, 744, 478 P.2d 449, 464 (1970) (en banc).
We therefore conclude that the permissible scope of searches incident to routine traffic arrests, where there is no evidentiary basis for a search and where the officer intends simply to issue a notice of violation and to allow the offender to proceed, must be governed by the teaching of the Supreme Court as set forth in Terry and Sibron. Thus the most intrusive search the Constitution will allow in such situations is a limited patdown for weapons, and then only when there exist special facts or circumstances which give the officer reasonable grounds to believe that the person with whom he is dealing is armed and presently dangerous.
As the Government points out, however, the instant case involves not a “routine” traffic arrest, but rather a situation in which the arresting officer was required to take appellant into custody. According to applicable Metropolitan Police Department regulations, “[t]he use of Traffic Violation Notices is a courtesy of long standing and shall be employed whenever possible, consistent with the overall safety of the public.” Nevertheless, for certain of the “more serious or aggravated types of traffic violations,” issuance of a notice of violation is prohibited, and the officer is required to make an in-custody arrest. Among these is the offense of “Operating After Suspension or Revocation of Operator’s Permit,” one of the two offenses for which appellant was lawfully arrested. Thus the Government asserts that, even though a police officer may not conduct a full search of the person incident to a lawful traffic arrest involving mere issuance of a notice of violation, such a search should be permitted where, as here, the officer is required to take the offender into custody.
As noted earlier in this opinion, the scope limitation principle of the Fourth Amendment is essentially “functional” in nature — that is, the consequences of its application will vary according to the particular circumstances in which it is applied. Thus in determining the permissible scope of searches incident to in-custody arrests for mere traffic violations, we cannot ignore the fact that, unlike the momentary and relatively minor dangers presented in the stop-and-frisk situation or in the routine traffic stop, the dangers to which the police are exposed in the circumstances of a custodial arrest are sharply accentuated by the prolonged proximity of the accused to police personnel following the arrest. As Chief Justice Wright of the California Supreme Court has noted, the crucial distinguishing feature of the in-custody arrest “is not the greater likelihood that a person taken into custody is armed, but rather the increased likelihood of danger to the officer if in fact the person is armed.” People v. Superior Court of Los Angeles County [Simon], supra, 101 Cal.Rptr. at 857, 496 P.2d at 1225 (concurring opinion). (Emphasis in original.) With this increased danger in mind, it would seem clearly unreasonable to expect a police officer to place a suspect in his squad car for transportation to the station-house without first taking reasonable measures to insure that the suspect is unarmed. We therefore conclude that whenever a police.officer, acting within the bounds of his authority, makes an in-custody arrest, he may also conduct a limited frisk of the suspect’s outer clothing in order to remove any weapons the suspect may have in his possession. There are circumstances in which the element of danger may require a full search even as to persons arrested for relatively minor traffic-type offenses, as where the frisk causes the officer’s suspicion to be reasonably aroused as to weapons (see note 9 supra). But no such predicate was advanced for the search at bar. The record clearly establishes Jenks searched appellant without any purpose in mind — “I just searched him”- — -because this was standard police instruction.
The Government contends still further, however, that a frisk does not provide reasonable protection to the officer in the circumstances of an in-custody arrest. We cannot agree. Under the scope limitation principle of the Fourth Amendment, “[a] search for weapons * * * must, like any other search, be strictly circumscribed by the exigencies which justify its initiation.” Terry v. Ohio, supra, 392 U.S. at 25-26, 88 S.Ct. at 1882. And in evaluating the reasonableness of a search, it is necessary “first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,” for there is “no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.” Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 534-535, 536-537, 87 S.Ct. 1727, 1734, 1735, 18 L.Ed.2d 930 (1967).
Turning first to the interests of the individual, we must recognize that the properly conducted frisk which we would permit with any in-custody arrest is far more than a “petty indignity.” On the contrary, “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Terry v. Ohio, supra, 392 U.S. at 24-25, 88 S.Ct. at 1882. Thus if we are to strike a reasonable balance under the Fourth Amendment, any further intrusion upon the individual’s privacy should be permitted only if necessary to achieve substantial governmental interests. And this is all the more true where, as here, the officer may not even have reasonable grounds to believe that the individual, who has been arrested for a mere traffic violation, is either armed or dangerous.
Moreover, when viewed from the reverse side of the equation, we are firmly convinced that a carefully conducted frisk offers substantial protection to the officer. In Terry v. Ohip, supra, the Supreme.Court adopted the following definition of a frisk:
“ ‘[T]he officer must feel with sensitive fingers every portion of the prisoner’s body. A thorough search must be made of the prisoner’s arms and armpits, waistline and back, the groin and area about the testicles, and the entire surface of the legs down to the feet.’ ”
392 U.S. at 17 n. 13, 88 S.Ct. at 1877 n. 13, quoting Priar & Martin, Searching and Disarming Criminals, 45 J.Crim.L.C. & P.S. 481 (1954). Such a frisk, the Court concluded, is “reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” 392 U.S. at 29, 88 S.Ct. at 1884.
The evidence presented at the remand hearing in this case clearly supports this conclusion. Police Sergeant Dennis Donaldson, an instructor at the District of Columbia Police Training Division, testified that in order to protect the arresting officer the standard police practice in the District of Columbia is to conduct a full search of the person whenever an in-custody arrest is made. On cross-examination, however, Sergeant Donaldson admitted that, although the effectiveness of a patdown may vary according to the circumstances, a properly conducted Terry type frisk could uncover virtually every weapon he had ever encountered in the course of in-custody searches. Mr. Ronald Newhouser, a recognized expert in clandestine weaponry, also testified for the Government. During the course of his testimony Mr. Newhouser removed from his person 25 concealed weapons that could kill or incapacitate. Like Sergeant Donaldson, however, Mr. Newhouser conceded that virtually all of these weapons could be detected in the course of a properly conducted frisk.
We do not mean to suggest, of course, that a protective frisk removes all conceivable dangers to the officer. There will always be the long shot case in the which the arrestee has concealed a novel weapon — perhaps a razor blade shaped like a coin — which a frisk will fail to reveal. But the kind of thoroughgoing search which would offer total protection to the officer could only be accomplished at a complete sacrifice of the arrestee’s right to privacy. Indeed, as Mr. Newhouser admitted, the only means of eliminating all possible risk to the officer is to allow him to spread-eagle the arrestee, strip him of his clothing, and feel into his body cavities for weapons. Deciding what is a reasonable intrusion, given the legitimate objective of protecting the arresting officer, calls for a careful balancing of competing interests. Our position reflects this balancing.
V
Pressing its argument still further, however, the Government suggests an alternative theory in support of its contention that a full search of the person should be allowed whenever an in-custody arrest is made. When a suspect has been lawfully arrested and “booked” on a criminal charge and is to be placed in stationhouse detention, it is ordinarily reasonable to conduct a search of his person in order to prevent introduction of weapons or contraband into the jail facility. From this premise the Government argues that, since the suspect will eventually be searched at the stationhouse anyway, a search of this kind might “just as well” be conducted'in the field at the time of arrest. Whatever the merits of this argument generally, this court’s recent en banc decision in United States v. Mills, supra, makes clear that it is inapplicable to the ease at hand.
In Mills the defendant was arrested for the petty offense of driving with a learner’s permit while unaccompanied by a licensed driver. Rather than simply issue a notice of violation, the arresting officer elected to make an in-custody arrest. The officer then frisked the defendant and, finding no weapons, called a scout car to transport the defendant to the stationhouse. After arriving at the stationhouse
Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
|
songer_casetyp1_2-2
|
C
|
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 "civil rights".
SULLIVAN ex rel. JEE GIM BEW v. TILLINGHAST, Immigration Com’r.
Circuit Court of Appeals, First Circuit.
October 26, 1928.
No. 2239.
William H. Lewis, of Boston, Mass. (John G. Sullivan, of Boston, Mass., on the brief), for appellant.
John W. Schenck, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for appellee.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
JOHNSON, Circuit Judge.
The relator, Jee Gim Bew, a Chinese person, sought admission to the United States as the foreign-bom son of Gee Poy, who it was conceded was a citizen of the United States. The Board of Special Inquiry at Boston refused admission on the ground that he had not reasonably established that he was the son of Gee Poy, and on appeal to the Secretary of Labor its decision was affirmed and deportation ordered. Habeas corpus was prayed for and denied by the District Court of Massachusetts.
The only question before the District-Court was whether the petitioner had been accorded a fair hearing by the immigration officials. This has been so often decided that it is unnecessary to cite any decision in its support. If there were any substantial evidence before the Board of Special Inquiry which would support its finding, which has been affirmed by the Secretary of Labor, the District Court was without jurisdiction.
The petitioner was examined at length in regard to the village in China from which he claimed to have come, as was also an alleged brother and the father. Both the alleged brother and father testified that there was a fishpond in front of this village. The petitioner testified that there was no pond in front of or near it and never has been.
There were some discrepancies between the testimony of the applicant and other witnesses with reference to the location of the houses in the village and their occupants, and as to whether the brother did anything after he left school; but the material discrepancy related to the location of a pond in front of the village. The petitioner is 27 years of age and claims to have lived all his life in the village in China from whieh he claims to have come and in front of which, or near which, he testified there is no fishpond; but both the alleged father and brother positively testified that there is one there, and the alleged brother drew a diagram representing its location and showing that an unobstructed view of it could be had from the front of the house where the relator claimed to have lived.
Upon this record.we cannot say that the action of the immigration officials was arbitrary or entirely unsupported by substantial evidence.
The decree of the District Court is affirmed.
Question: What is the specific issue in the case within the general category of "civil rights"?
A. civil rights claims by prisoners and those accused of crimes
B. voting rights, race discrimination, sex discrimination
C. other civil rights
Answer:
|
songer_injunct
|
B
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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'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".
David Wayne BURGESS, Plaintiff-Appellee, Cross-Appellant, v. George RYAN, Secretary of State of Illinois, and Greg O’Connor, Director of the Driver Services Department, Defendants-Appellants, Cross-Appellees.
Nos. 91-2131, 91-2870, 91-2995 and 91-3281.
United States Court of Appeals, Seventh Circuit.
Argued April 16, 1993.
Decided June 14, 1993.
Rehearing Denied July 14, 1993.
John H. Bisbee (argued), Macomb, IL, for David W. Burgess.
Julie D. Weisenberg, Asst. Atty. Gen., Springfield, IL, Ann Plunkett Sheldon, Mark E. Wilson (argued), Office of the Attorney General, Civil Appeals Div., Chicago, IL, for George Ryan and Greg O’Connor in Nos. 91-2131 and 91-2995.
Roland W. Burris, Office of the Attorney General, Chicago, IL, Julie D. Weisenberg, Asst. Atty. Gen., Springfield, IL, Jan E. Hughes, Asst. Atty. Gen., Mark E. Wilson (argued), Office of the Attorney General, Civil Appeals Div., Chicago, IL, for George Ryan in Nos. 91-3281 and 91-2870.
Julie D. Weisenberg, Asst. Atty. Gen., Springfield, IL, Jan E. Hughes, Asst. Atty. Gen., Mark E. Wilson, Office of the Attorney General, Civil Appeals Div., Chicago, IL, for Greg O’Connor in Nos. 91-3281 and 91-2870.
Before COFFEY, EASTERBROOK, and ROVNER, Circuit Judges.
EASTERBROOK, Circuit Judge.
Drivers who violate traffic laws frequently, or commit a single serious infraction, lose their licenses in Illinois. Three convictions within a year for speeding, or one for driving under the influence of alcohol, produce automatic revocation. 625 Ill.Comp.Stat. 5/6— 205(a); 92 IlI.Admin.Code § 1040.38(a). A driver who believes that state officials erred in determining the number or gravity of his offenses is entitled to a hearing, but only after the revocation has taken effect. 625 Ill.Comp.Stat. 5/2-118, 2-118.1. Such a driver may seek an interim permit, readily available to persons whose employment requires an ability to drive and who have not previously been convicted of driving under the influence of alcohol or other drugs. 625 Ill. Comp.Stat. 5/6 — 206(c), 6-206.1(a). In 1976 a district court held that the Illinois scheme offends the due process clause of the Constitution because the hearing comes after rather than before the revocation. The Supreme Court reversed, concluding that a subsequent hearing suffices. Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977). See also Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979). Fourteen years later, in this case, a district court held that the Illinois scheme offends the due process clause of the Constitution because the hearing comes after rather than before the revocation.
The only difference is the location of the traffic offense. Love was convicted in Illinois, David Wayne Burgess in Colorado. Arrested while driving 61 m.p.h. in a 35 m.p.h. zone, and charged with speeding, driving under the influence of alcohol (DUI), and driving while ability impaired (DWAI), a lesser degree of impairment. Colo.Rev.Stat. § 42-4-1202(l)(b). Burgess pleaded guilty to the DWAI charge, and the other two were dismissed as part of the plea bargain. This conviction would not have cost Burgess his right to drive had he possessed a Colorado license. Colo.Rev.Stat. § 42-2-123(5)(b)(III). But his license had been issued by Illinois, which does not recognize degrees of impairment. Under the Interstate Driver License Compact, Colorado reported the conviction to Illinois, which revoked Burgess’ license. The notice informing Burgess of this action stated that the justification was a conviction for “DUI/Alcohol” in Colorado. The Compact requires each state to give a conviction in another state “the same effect ... as it would [have had] if such conduct had occurred in the home state”. 625 Ill.Comp.Stat. 5/6-703(a). See also 625 Ill.Comp.Stat. 5/6-206(a)(6). The administrative apparatus of Illinois has concluded that the Colorado offense of driving while ability impaired is most like the Illinois offense of driving under the influence of alcohol, and a state court has agreed. Mills v. Edgar, 178 Ill.App.3d 1054, 128 Ill.Dec. 167, 534 N.E.2d 187 (4th Dist.1989). If Mills is correct, then the Secretary of State does not possess any discretion in a ease such as Burgess’; conviction of driving while ability impaired in Colorado leads straight to revocation in Illinois.
Instead of seeking a post-revocation administrative hearing, requesting a temporary permit, or asking a state court to take a fresh look at the equivalence of Colorado and Illinois offenses, Burgess filed this suit under 42 U.S.C. § 1983. According to Burgess, Illinois’ action violated seven provisions of the Constitution, from the double jeopardy clause to the full faith and credit clause. Both sides must have been astonished when the district judge entered an injunction barring enforcement of the statute, and requiring Illinois to restore Burgess’ driving privileges, for a reason that Burgess had not advanced: that Illinois’ system violates the due process clause of the fourteenth amendment because the hearing comes after rather than before a revocation or suspension.
The district court treated Dixon as if it required a ease-by-case inquiry into the weight of the interests involved and the utility of a hearing. The court believed that Burgess’ interest as a chauffeur is especially weighty and that the risk of error in establishing a correspondence between one state’s rules and another’s is especially high, leading to the conclusion that a hearing should precede the administrative decision. But Dixon vindicated the constitutionality of Illinois’ statutory system, not simply of its application to a particular driver. Dixon employed the method of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), which remarked: “[Pjrocedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases, not the rare exceptions.” Id. at 344, 96 S.Ct. at 907. Person-specific variations do not cause an otherwise-proper system of procedure to violate the Constitution. And at all events the considerations that the district court emphasized, such as Burgess’ need to drive in order to remain employed, hardly distinguish Dixon. Love was a truck driver! 431 U.S. at 110, 97 S.Ct. at 1726. The Court wrote:
The Illinois statute includes special provisions for hardship and for holders of commercial licenses, who are those most likely to be affected by the deprival of driving privileges.... We therefore conclude that the nature of the private interest here is not so great as to require us “to depart from the ordinary principle ... that something less than an evidentiary hearing is sufficient prior to adverse administrative action.”
431 U.S. at 113, 97 S.Ct. at 1728, quoting from Eldridge, 424 U.S. at 343, 96 S.Ct. at 907. The Court added that the risk of error is low because the process is mechanical — not zero, because reports of convictions may be erroneous or may be misinterpreted, but low. So here. The risk is low — not zero, because Mills may be wrong, but low. A system offering prior hearings in every case on account of'the risk of error in a few cases would reduce safety, the Court thought, by permitting dangerous drivers to remain on the road and encouraging them to bog down the system by flooding it with requests for hearings. 431 U.S. at 114, 97 S.Ct. at 1728. That observation is no less true today than it was when the Supreme Court wrote; the Illinois system is no less constitutional today than it was in 1977.
Thus we arrive at a sticking point. What becomes of the arguments Burgess actually made? After the district court issued a preliminary injunction, Burgess asked the court to make the relief permanent, reiterating the seven constitutional theories originally adduced. The district court wrote an opinion rejecting Burgess’ contentions. That left the court’s own due process theory as the sole support for declaratory and injunctive relief. Instead of entering an appropriate declaratory judgment or injunction, however, the court filed a judgment that reads in full:
IT IS ORDERED AND ADJUDGED judgment is entered in favor of the Defendants and against the Plaintiff on the privileges and immunities claim, the equal protection claim, and the double jeopardy claim. Further ordered that judgment is entered in favor of the Plaintiff and against the Defendants on the due process claim.
No declaratory judgment, no injunction appropriate under Fed.R.Civ.P. 65(d). Both sides appealed from this document, and the defendants appealed from a later order awarding attorneys’ fees to Burgess under 42 U.S.C. § 1988. Add the defendants’ appeal from the preliminary injunction, and we have four appeals.
Just as every state must adhere to constitutionally mandatory procedures, every judge must adhere to the procedures established by federal rules and statutes. Rule 65(d) instructs judges to specify precisely what they require of the litigants. “[Jjudgment is entered in favor of the Plaintiff and against the Defendants on the due process claim” is less useful even than the judgment held inadequate in Schmidt v. Lessard, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974). “[T]he specificity provisions of Rule 65(d) are no mere technical requirements. The Rule was designed to prevent uncertainty and confusion on the part of those faced with injunc-tive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood.” Id. at 476, 94 S.Ct. at 715. Even declaratory judgments, which are not enforced by contempt, must be spelled out so that the parties may know their rights. Azeez v. Fairman, 795 F.2d 1296 (7th Cir.1986); Foremost Sales Promotions, Inc. v. Director, BATF, 812 F.2d 1044 (7th Cir.1987). Precision is especially important here, for Burgess’ different theories carry different implications. The double jeopardy theory, for example, implies that the state’s entire system of revoking licenses for traffic convictions is unconstitutional because loss of one’s license is a forbidden additional penalty for crime, while the full faith and credit theory implies only that Illinois must give the Colorado judgment the same effect that Colorado would give it. The “due process claim” to which the court referred could mean anything; Burgess invoked the due process clause, although not to the same end as the district judge.
Schmidt holds that inadequate specificity in an injunction does not scuttle appellate jurisdiction. See also Alpine State Bank v. Ohio Casualty Insurance Co., 941 F.2d 554 (7th Cir.1991). Cf. Bates v. Johnson, 901 F.2d 1424 (7th Cir.1990) (oral judicial demand, unaccompanied by any written order, is neither enforceable nor appealable). But Schmidt declined to address the merits of the case, remanding so that the district court could comply with Rule 65(d). See also Azeez, holding that failure to enter a declaratory judgment is the same as denying the request for one. Remanding after the fashion of Schmidt would unduly prolong this case, which began early in 1991. A more palatable alternative is to treat Burgess’ current contentions as arguments in support of the preliminary injunction, which complies with Rule 65(d) and over which we have jurisdiction by virtue of the defendants’ appeal No. 91-2131. An appeal from a preliminary injunction usually becomes moot once the district court grants or denies permanent relief, but the district judge has yet to displace the preliminary injunction with a proper permanent injunction. The preliminary injunction remains the only statement of what the district judge expects the defendants to do. We conclude, therefore, that the preliminary injunction remains in force. Whether it should endure depends on the validity of Burgess’ arguments.
Behind many of Burgess’ arguments lies a conclusion that employees of Illinois misunderstand Illinois law. Burgess believes that the Illinois offense of driving under the influence of alcohol is not equivalent to the Colorado offense of driving while ability impaired. Yet it is not appropriate for a federal court, hearing a case under § 1983, to upbraid state officials for a supposed error of state law. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984). Burgess was free to take his contentions to state court (although presumably he would want to avoid the fourth appellate district, which in Mills agreed with the Secretary of State’s interpretation). A federal judge, by contrast, must assume that the state officials’ interpretation is right — not necessarily because it is correct (the Supreme Court of Illinois might disagree with Mills) but because errors in the interpretation of state law do not supply a basis for federal relief. Constitutional adjudication tests the power of a state to act in a particular way; whether the state indeed wishes to act in that way is a question of its domestic law. The Constitution does not require states to administer their laws correctly. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 202, 109 S.Ct. 998, 1006, 103 L.Ed.2d 249 (1989); Nordlinger v. Hahn, — U.S.-,-n. 8, 112 S.Ct. 2326, 2335 n. 8, 120 L.Ed.2d 1 (1992); id. at-, 112 S.Ct. at 2339-41 (Thomas, J., concurring); Archie v. Racine, 847 F.2d 1211, 1215-18 (7th Cir.1988) (in banc); Saukstelis v. Chicago, 932 F.2d 1171 (7th Cir.1991). Blunders in the implementation of state law are inevitable; state courts provide the remedy. See Easter House v. Felder, 910 F.2d 1387 (7th Cir.1990) (in banc); Pacelli v. deVito, 972 F.2d 871 (7th Cir.1992). To receive relief for an error of state law, a party must make a claim under the state law itself, as in diversity litigation. But Burgess and the defendants are not of diverse citizenship, and an exercise of supplemental jurisdiction under 28 U.S.C. § 1367 would be inappropriate. Burgess should have taken his grievance to state court, where all problems could have been ironed out long ago.
To prevail under § 1983 Burgess must show that Illinois’ system is unconstitutional even when properly carried out. Yet on this approach his arguments are insubstantial. Burgess has abandoned most of them (his brief does not mention the double jeopardy or full faith and credit clauses, for example). At oral argument his lawyer conceded that a state law expressly providing for revocation of the license of anyone convicted of any motor-vehicle drug or alcohol offense would satisfy the Constitution as he understands it. Burgess denies that Illinois has such a law, but the denial depends on his disagreement with Mills. If that case is correct, then the Illinois statutory scheme has exactly the structure Burgess says is sufficient, although it lacks the degree of clarity Burgess prefers. Recasting the argument as one about the adequacy of notice— Colorado did not tell Burgess what would happen to his Illinois license, and Illinois did not brief its drivers on the risks of violating other states’ laws — adds nothing. Criminal charges need not detail the civil consequences of convictions, and statutes do not become unconstitutionally vague just because they require judicial interpretation. That the details for matching the two states’ offenses appear in the law reports rather than the statute books is constitutionally irrelevant. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975).
Only a few words are necessary to mop up the remaining arguments. Burgess contends that Illinois violates the equal pro-' tection clause of the fourteenth amendment, and the privileges and immunities clause of Art. IV § 2, by permitting persons holding Colorado drivers’ licenses to use its streets, although he cannot. Colorado does not revoke the licenses of persons convicted of driving while ability impaired; Illinois does. But what has this to do with equal protection? Illinois has not drawn any irrational classification; it has a uniform response to convictions for driving under the influence of alcohol, a response that disregards the location of the offense. That is the point of § 6-703: one rule applies to all holders of Illinois licenses, no matter the jurisdiction of conviction. Burgess appears to believe that under the Constitution all states must employ the same rules. If Colorado believes that a person convicted of driving while ability impaired is still fit to hold a license, Illinois must follow the same rule. At oral argument counsel referred to states’ disparate reactions to driving under the influence of alcohol as “the federalism problem.” He was unfazed by the court’s reminder that federalism is not a “problem” but a feature of the national confederation. Freedom to move from one state to another in search of a preferable legal system — to use exit as well as voice — is an important element of liberty and source of pressure on government to improve the law. Burgess, a citizen of Illinois, may not insist that Illinois give him a license to drive just because Colorado, or Alaska, or any other state would do so. As for the privileges and immunities clause: there might be a problem if Illinois refused to permit holders of Colorado licenses to use the roads of Illinois, cf. Supreme Court of Virginia v. Friedman, 487 U.S. 59, 108 S.Ct. 2260, 101 L.Ed.2d 56 (1988), but this part of the Constitution does not require homogeneous state laws. It curtails states’ ability to discriminate against non-citizens, but Illinois has not discriminated against citizens of Colorado (of whom Burgess is not one, anyway). Virginia was free after Friedman to establish qualifications for membership in the Virginia Bar; Illinois is free to establish its own qualifications for driving, and these need not match Colorado’s.
The preliminary injunction is reversed, and the case is remanded with instructions to enter judgment for the defendants. Because Burgess is no longer the prevailing party, the award of attorneys’ fees, the subject of appeal No. 91-3281, is no longer appropriate and is reversed.
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_const1
|
114
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Richard WALLACH, Appellant, v. CITY OF PAGEDALE et al., Appellees.
No. 18580.
United States Court of Appeals Eighth Circuit.
May 9, 1967.
See also 264 F.Supp. 271.
Richard Wallach, Wellston, Mo., made argument pro se and filed brief pro se.
Paul J. Boll, St. Louis, Mo., for ap-pellee and filed typewritten brief.
Before VAN OOSTERHOUT, MAT-THES and LAY, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
The trial court dismissed this action commenced by plaintiff Wallach which asserted jurisdiction in the federal court under 28 U.S.C.A. § 1331 (federal question) and 28 U.S.C.A. § 1343 (violation of civil rights.) Diversity jurisdiction is not asserted and does not exist. The basic grievances asserted here are the same as those urged in Wallach v. City of Pagedale, 8 Cir., 359 F.2d 57, and are asserted damages flowing from alleged violation by defendants of plaintiff’s constitutional rights.
Defendants moved for dismissal of the action on the following grounds:
“(a) That the claim asserted against the defendants is not a claim upon which relief can be granted; and
“(b) That this Court has no jurisdiction over the subject matter of the claim presented between the plaintiffs and the defendants.
“(c) That the petition of plaintiff fails to comply with Rule 8, Federal Rules of Civil Procedure in that the averments therein are not simple, concise or direct, in respect to jurisdiction, facts or relief and is so vague, ambiguous, rambling and full of irrelevant averments that these defendants cannot be reasonably required to frame a responsive pleading thereto.”
The motion to dismiss was sustained. The case was dismissed without prejudice for want of jurisdiction. Plaintiff has appealed from such dismissal.
The trial court cited our former opinion in Wallach v. City of Pagedale, supra. We there stated:
“There is no doubt that the complaint does not comply with Rule 8 (a) as it does not contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ The complaint is confusing, ambiguous, redundant, vague, and, in some respects, unintelligible. It is also highly argumentative.” 359 F.2d 57, 58.
We went on to state that the pleadings, even if given a liberal interpretation, do not state a cause of action against the defendants within the jurisdiction of the federal court, setting forth the basis for such conclusion and supporting authorities. The complaint now before us is much more extensive than the former complaint but in our view it is in greater violation of Rule 8 than the complaint previously considered.
Plaintiff in his present voluminous, repetitious, confusing and argumentative complaint asserts that he acquired real estate in an unincorporated area in St. Louis County which was zoned as heavy industrial property upon which he was permitted to and did establish a junk yard and automobile wrecking yard in conformity with the St. Louis County zoning ordinance adopted in 1946. It is then asserted that plaintiff’s property was maliciously and illegally annexed to the city of Pagedale but no substantial legal grounds are asserted to support the claim of invalid annexation. Plaintiff next asserts in a highly inflammatory manner that numerous zoning and licensing ordinances were passed by the city of Pagedale both before and after the annexation in violation of numerous rights guaranteed plaintiff by the Constitution. Some of such ordinances are cited by number and excerpts of part of the ordinances are set out.
As shown by the complaint, Ordinance No. 88 passed by the city before the annexation provides for the zoning of the city but specifically carries a provision reading:
“The lawful use of land, buildings and structures existing at the time of the adoption of this ordinance may be continued, although such use does not conform to the provisions thereof, but if such non-conforming use is discontinued, any use in the future of such premises shall be in conformity with the provisions of this ordinance.”
It would appear from the complaint that Ordinance No. 88 was amended in 1954 to zone the annexed property, including plaintiff’s property, with the provisions of Ordinance No. 88 made applicable to the annexed property.
Thus, on their face the ordinances pleaded with respect to zoning appear to protect the rights of nonconforming users and the basis of the asserted invalidity of such ordinances does not reasonably appear in the complaint.
It would seem from the complaint and statements in oral argument that there is a question whether the prior junk yard operation was the plaintiff’s own or by a corporation in which he was interested and there is also some intimation that the prior use of the property may have been abandoned.
Plaintiff’s principal claims of wrongs committed by the defendants appear to be: (1) His arrest and conviction in the Pagedale police court for operating a junk yard without a license; (2) the city’s refusal to permit plaintiff to use his premises for its highest and best use —a junk yard — thereby depriving plaintiff of income needed to pay mortgage indebtedness and the refusal of the city to grant a license to a prospective purchaser which resulted in plaintiff’s inability to make an advantageous sale of such property, and his loss of the property through mortgage foreclosure for a sum considerably under its fair value. Plaintiff prays for declaratory judgment and for such further relief as may be just.
It would appear that the claimed grievances arise primarily out of the licensing requirements of the city ordinances.
With respect to the propriety of federal courts interfering with state criminal prosecutions, the rule is stated in Douglas v. City of Jeannette, 319 U.S. 157, 163-164, 63 S.Ct. 877, 881, 87 L.Ed. 1324, as follows:
“Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions involved. * * *
“It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good faith for his alleged criminal acts. Its imminence, even though alleged to be in violation of constitutional guarantees, is not a ground for equity relief since the lawfulness or constitutionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for an injunction. Davis & Farnum Mfg. Co. v. [City of] Los Angeles, 189 U.S. 207 [23 S.Ct. 498, 47 L.Ed. 778]; Fenner v. Boykin, 271 U.S. 240 [46 S.Ct. 492, 70 L.Ed. 927]. Where the threatened prosecution is by state officers for alleged violations of a state law, the state courts are the final arbiters of its meaning and application, subject only to review by this Court on federal grounds appropriately asserted. Hence the arrest by the federal courts of the processes of the criminal law within the states, and the determination of questions of criminal liability under state law by a federal court of equity, are to be supported only on a showing of danger of irreparable injury ‘both great and immediate.’ ”
See Outdoor American Corp. v. City of Philadelphia, 3 Cir., 333 F.2d 963, 965.
No extraordinary circumstances are alleged in our present case which would warrant a departure from the rule just stated. On oral argument, it developed that plaintiff appealed from his conviction and that such appeal is still pending.
We cannot ascertain from the complaint the precise basis or the legal grounds upon which plaintiff claims that a license was denied to him to operate his junk yard in violation of his constitutional rights. Plaintiff quotes part of Ordinance No. 23 relating to licensing of junk dealers and license fees and then asserts that his business does not fall within any of the categories listed in the ordinance. Later plaintiff refers to Ordinance No. 227 relating to regulating, licensing and license fees for automobile lots, and No. 228 with respect to licensing and license fees for salvage yards, both enacted in 1959. Neither of such ordinances are set out in whole or pertinent part. No ascertainable attack is made on the validity of such ordinances but rather the claim is made that the plaintiff’s business does not fit the classifications covered by the ordinances. It would appear that the questions raised primarily relate to the interpretation of the ordinances and that such questions are questions of state law.
Plaintiff does not state what attempt, if any, he made to comply with the licensing ordinances nor make any clear-cut allegation that he made any proper application for a license, and if so, that any basis exists for a determination that the city abused its discretion in withholding a license.
In Mosher v. Beirne, 8 Cir., 357 F.2d 638, 640-641, we sustained the dismissal of plaintiff’s action based on 28 U.S.C.A. § 1343, wherein plaintiff claimed a city improperly refused him a license to operate a public dance. We stated:
“The rights and necessity for restrictions in municipal zoning ordinances have long been sustained. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 [54 A.L.R. 1016] (1926). It has also been recognized that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the state is not violative of rights secured by the Fourteenth Amendment, People of State of New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 26- S.Ct. 144, 50 L.Ed. 305 (1905); and that ordinances validly prohibiting the operation of certain businesses without first obtaining municipal permission do not deprive one of his property without due process of law nor deny one the equal protection of the law, Fischer v. City of St. Louis, 194 U.S. 361, 24 S.Ct. 673, 48 L.Ed. 1018 (1904).”
In Garfinkle v. Superior Court of New Jersey, 3 Cir., 278 F.2d 674, the court in affirming the dismissal of an action based on violation of federal constitutional rights concluded, “His stated fundamental facts, irrespective of their fantastic nature, certainly do not show clearly and distinctly that this suit is based on a federal question.” What was said there is fully applicable here.
Federal courts have only that jurisdiction which Congress, acting within the limits of the Constitution, confers upon them.
“The party invoking the district court’s original jurisdiction has the duty of affirmatively alleging jurisdiction; and, if his allegations are properly controverted, the burden of establishing jurisdiction. Lack of federal jurisdiction may be raised by motion or in the responsive pleading. And ‘whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.’ ” 1 Moore’s Federal Practice 2d Ed., ¶0.60 [4],
See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135. Federal Rules of Civil Procedure No. 8(a) (1).
Defendants have by motion attacked the jurisdiction of the federal court to hear this case. Plaintiff has not by his pleadings or in any other manner met the burden resting upon him to establish federal jurisdiction.
The judgment dismissing the petition without prejudice for the lack of jurisdiction is affirmed.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
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.
Arlene M. DAMON, Respondent, Appellant, v. Cecil J. DAMON, Petitioner, Appellee.
No. 5714.
United States Court of Appeals First Circuit.
Heard Oct. 4, 1960.
Decided Oct. 28, 1960.
William H. Niehoff, Waterville, Me., with whom Niehoff & Niehoff, Water-ville, Me., was on brief, for appellant.
No appearance for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
HARTIGAN, Circuit Judge.
The main question raised in this appeal is whether the lower court erred in finding as a matter of law that an order for the payment of counsel fees decreed by the Superior Court of Maine to a wife in a divorce action is a debt discharge-able in bankruptcy and granting the discharge of the petitioner on his petition for a writ of habeas corpus.
Cecil J. Damon, petitioner-appellee, commenced an action for divorce against his wife, Arlene M. Damon, respondent-appellant, on January 21, 1960 in the Superior Court in and for the County of Kennebec and State of Maine. The respondent instituted a cross-action for divorce and engaged an attorney to prosecute the cross-action and defend her against the petitioner’s action. On February 8, 1960 the Superior Court ordered petitioner to pay to respondent’s attorney of record $150 as counsel fees. Execution was not to issue until the action for divorce had been heard. On May 4, 1960 respondent dismissed her cross-action. A hearing was held on petitioner’s action which was contested by respondent. After a hearing the Superior Court dismissed petitioner’s action.
On the same date an oral motion was made by respondent for counsel fees. On May 7, 1960 judgment was entered by the Superior Court in the amount of $250 in favor of Arlene M. Damon for counsel fees payable to William H. Niehoff, her attorney of record. A capias execution was issued on this judgment on May 9, 1960 and petitioner was taken into custody on May 11 where he remained until discharged on May 26, 1960 by the district court after hearing on his petition for writ of habeas corpus.
On May 7, 1960 petitioner filed a voluntary petition in bankruptcy and was duly adjudged a bankrupt. The petitioner listed in his schedule Arlene M. Damon and William H. Niehoff as unsecured creditors for the amount of the counsel fees. Petitioner applied for a writ of habeas corpus in the lower court seeking discharge from imprisonment under the capias execution on the judgment for counsel fees. The district court after a hearing ordered petitioner’s discharge pursuant to General Order in Bankruptcy 30, 11 U.S.C.A. following section 53.
The district court’s first ground for ordering the discharge of petitioner was that General Order in Bankruptcy 30 clearly provided for such discharge, since the claim was provable under § 63 of the Bankruptcy Act, 11 U.S.C.A. § 103. However, the General Orders are enacted pursuant to the Bankruptcy Act and must yield to the terms of the Act. 11 U.S.C.A. § 53; In re Baker, D.Kan.1899, 96 F. 954. The protection from imprisonment given to a bankrupt by the Bankruptcy Act is clearly in terms of a dischargeable debt or claim. 11 U.S.C.A. § 27. Therefore, if the debt for the collection of which petitioner was imprisoned is a non-dis-chargeable debt under 11 U.S.C.A. § 35, the order discharging petitioner was error. See also In re Thomashefsky, 2 Cir., 1931, 51 F.2d 1040; 1 Collier, Bankruptcy, [f 9:03, p. 1086 (14th ed. 1956).
Section 17 of the Bankruptcy Act, 11 U.S.C.A. § 35 provides: “A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as * * * (2) are liabilities * * * for alimony due or to become due, or for maintenance or support of wife or child * * * » Various eases have construed this exception to include counsel fees ordered by a court. See e. g., Merriman v. Hawbaker, D.C.E.D.Ill.1934, 5 F.Supp. 432. The lower court referred to these cases, but concluded that since the Maine statute, Me.Rev.Stat. Chap. 166, § 64 as amended, clearly differentiated in terms between alimony, payments for support and payments for counsel fees, these cases were not apposite.
We believe that the determinative question, however, is whether or not the claim for counsel fees is in the nature of support or alimony. The distinction in terms within a state statute does not seem controlling on this question. Cf. Ross v. Keith, 1st Dep’t. 1933, 238 App. Div. 640, 265 N.Y.S. 246. More important is the entire statutory provision made for the support of a wife. If under the provisions for the wife pending and growing out of marital actions, counsel fees are allowed to the wife, and it is discernible that this allowance is made on the same basis as alimony, or other forms of support owed by a husband to his wife, then the claim for counsel fees is not dischargeable in bankruptcy. See In re Hollister, D.C.S.D.N.Y.1942, 47 F.Supp. 154, affirmed 2 Cir., 1943, 132 F.2d 861.
In regard to the Maine statute, we believe that the provision for counsel fees is based on the same foundation of a husband’s duty as other forms of support and is, under Maine law, a form of support owed by a husband to his wife. See Meaher v. Mitchell, 1914, 112 Me. 416, 92 A. 492, L.R.A.1915C, 467. The provision for the same type of execution as for alimony and support payments, as well as the inclusion of the provision for counsel fees with those for various forms of support also indicates the correctness of this conclusion.
Under Section 9 of the Bankruptcy Act, 11 U.S.C.A. § 27, petitioner is entitled to release from imprisonment in order to perform duties imposed on him by the Bankruptcy Act. Such ground was not the basis of the order of the district court, however, so it is unnecessary for us to consider it. Any application for such a temporary release may be presented to the district court. Application for other relief must be made to the Superior Court.
Judgment will be entered vacating the order of the district court and remanding the ease for further proceedings not inconsistent with this opinion.
. “Order SO. Imprisoned Debtor “ * * * If the bankrupt or debtor, during the pendency of said proceedings, be arrested or imprisoned upon process in any civil action, the judge, upon his application, may issue a writ of habeas corpus to bring him before the judge to ascertain whether such process has been issued for the collection of any claim provable under the Act, and if so provable he shall be discharged; if not, he shall be remanded to the custody in which he may lawfully be. * * * ”
. The pertinent part of that section reads:
Ҥ 27. Protection of bankrupts.
“A bankrupt shall be exempt from arrest upon civil process except in the following eases: * * * (2) when issued from a State court having jurisdiction, and when served within such State, upon a debt or claim from which his discharge in bankruptcy would not be a release, and in such case he shall be exempt from such arrest when in attendance upon a court of bankruptcy or engaged in the performance of a duty imposed by this title. * * *”
. “Seo. 64. Payment of alimony; attorney’s fees; support of minor children; capias execution. — Pending a petition to enforce a decree of alimony, or a decree for payment of money instead thereof, or for the support of minor children, or a decree for support pending the divorce action or for payment of counsel fees, or for the alteration of an existing decree for the custody or support of minor children, the court may order the husband or father to pay to the wife or mother, or to counsel for the wife or mother, sufficient money for the prosecution or defense thereof, upon default of which order execution may issue as in actions of tort. Execution for attorney’s fees shall not issue until the action for divorce has been heard. Petition for such execution may be signed by the person seeking same or his attorney of record in such divorce action. At the time of making a final decree in any divorce action, the court may order that execution and such reasonable attorney’s fee as the court shaE order shaE issue against the body of any party to the action charged with the payment of support of minor children or payments of ahmony or a specific sum in lieu thereof, upon default of any payment, and the court shall order that the clerk of said court shall issue such execution. When the husband or father is committed to jail on execution issued upon decree of alimony, or for payment of money instead thereof, or for the support of his minor children, or for support pending the divorce action or for payment of counsel fees, the county having jurisdiction of the process shaE bear the expense of his support and commitment and he may be discharged 'from imprisonment by payment of the execution and all costs and expenses of his commitment and support, and he shall not be entitled to rehef therefrom under chapter 120. He may petition the court issuing such execution for relief, whereupon a judge of such court after due notice to the wife or mother, and hearing thereon, may order his discharge from imprisonment on such terms and conditions as justice may require.”
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.
UNITED STATES of America, Plaintiff-Appellee, v. Michael GREER, Defendant-Appellant.
No. 86-4153.
United States Court of Appeals, Fifth Circuit.
Dec. 9, 1986.
Glen D. Vamvoras, Lake Charles, La. (Court-appointed), for defendant-appellant.
Peter Sprung, Sara Criscitelli, William S. Lynch, Sr., Washington, D.C., Larry J. Re-gan, Lake Charles, La., for plaintiff-appel-lee.
Before CLARK, Chief Judge, WISDOM, HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
The background to this prosecution for racketeering, extortion, and obstruction of justice is set forth in United States v. Carlock, 806 F.2d 535 (5th Cir. Dec. 9, 1986). We add only those facts necessary to this appeal.
Michael Greer, a member of Local 406 of the International Union of Operating Engineers, was often appointed by Willard S. Carlock, Sr., the business agent of the Lake Charles district office of Local 406, to be an assistant master, and at times master, mechanic on job sites. As an assistant master mechanic, Greer served as an assistant foreman and wielded power over the workers.
Greer was named in the Carlock indictment but his case was severed when his counsel became ill during trial in Monroe, Louisiana. Greer was later tried before a jury under a superseding indictment in Lake Charles.
The superseding indictment charged in Count 1 that Greer conspired with Willard S. Carlock, Sr., and others to conduct and participate, directly and indirectly, in the affairs of Local 406 through a pattern of racketeering activity. According to this count, Greer used his positions of authority to extort, or attempt to extort, kickbacks from operating engineers and sexual favors from female operating engineers on behalf of Carlock, Sr., and to attempt to obstruct and impede justice by counseling witnesses to lie to a federal grand jury. Count 2 charged Greer with a substantive racketeering violation based upon the acts alleged in Count 1.
Count 3 charged Greer with conspiring with Carlock, Sr., Columbus J. Laird, and others to obstruct justice in violation of 18 U.S.C. § 1503. This count alleged that the confederates counseled grand jury witnesses to lie to the grand jury about their kickback scheme. Specifically, Greer was charged with having counseled Houston Byrd, Jr., Nathan Courville, and Jerry Wade French to falsely deny the kickbacks. Counts 4-6 charged Greer with specific acts of obstruction of justice.
At trial, Greer was convicted of racketeering conspiracy in violation of 18 U.S.C. § 1962(d); of participating in the conduct of an enterprise’s affairs through racketeering, in violation of 18 U.S.C. § 1962(c); of conspiracy to influence, obstruct, and impede justice; and three counts of influencing, obstructing, and impeding justice. He appeals and we affirm his conviction on all counts.
I
Greer argues that the cumulative effect of trial court errors denied him a fair and impartial trial. He contends that the trial court abused its discretion in refusing to sequester the jury despite the possibility that the jury was contaminated by jurors’ spouses and friends present in the courtroom during the trial. He also argues that the trial court erred in excluding a prior recorded statement of a government witness pursuant to the attorney-client privilege and Federal Rules of Criminal Procedure Rule 16(d)(2), and that the trial court improperly interfered with Greer’s ability to examine a defense witness by excluding and striking testimony and by instructing the witness as to his obligations under the oath. Finally, Greer adopts by reference arguments made on behalf of Willard Car-lock, Sr., in United States v. Carlock, specifically adopting those regarding prejudicial pre-trial delay and alleged improprieties of the Senate Subcommittee which urged the Government to seek indictments. We address each contention in turn.
A
Sequestration is “an extreme measure, ‘one of the most burdensome tools of the many available to assure a fair trial.’ ” United States v. De Peri, 778 F.2d 963, 973 (3d Cir.1985) (quoting United States v. Porcaro, 648 F.2d 753, 755 (1st Cir.1981)), cert. denied — U.S. -, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). The decision to sequester a jury is entrusted to the sound discretion of the trial judge. United States v. Phillips, 664 F.2d 971, 997 (5th Cir.1981). A defendant, complaining of a refusal to sequester, must demonstrate a substantial likelihood of prejudice flowing from the refusal to sequester to warrant a new trial. Id.
Greer argues that the court erred when it refused to sequester the jury after learning that a juror’s husband had been expressing his views on the trial to other trial spectators. After one and one-half days of testimony, government counsel informed the court that this man had been expressing to others his view that “from what I have seen, the Government doesn’t have anything on Mr. Greer.” Both sides moved to sequester the jury, although the defense objected to the government’s alternative request that the juror be removed.
After separate interviews of the juror and her husband, the court was convinced that the two had not discussed the case and would not do so. The court did not tell the juror what her husband had said. It told her that her husband had been discussing his views of the case, that the two were not to discuss the case, and that the court was concerned that the defendant’s rights be protected. The court then denied both motions before it.
Greer suggests that the court should have addressed the jurors as a group, avoiding identification of the wife. He contends that the wife would naturally assume that her husband thought the defendant was guilty, since the court told her that it was concerned about the protection of the defendant’s rights. This reading of the cold record is not implausible and has given us pause, but we are finally persuaded that there was no reversible error. We are aided in our effort to gauge the impact of the court’s handling of the situation by the fact that Greer objected to the juror’s removal. That is, Greer’s counsel, a witness to the whole episode, did not think that the juror was tainted. Nor can Greer now suggest error because the court refused to remove the juror. Cf. United States v. Kelly, 722 F.2d 873, 881 (1st Cir.1983) (failure to ask for juror’s dismissal constitutes waiver of objection to his continuing), cert. denied, 465 U.S. 1070, 104 S.Ct. 1425, 79 L.Ed.2d 749 (1984). In any event, sequestration, the remedy sought below by Greer, would not have solved the suggested problem, as the juror would have remained free to “speculate” about her husband’s views.
We are satisfied that the court’s interviews and repeated admonitions protected the interests of the defendant. The trial judge must be given considerable latitude to respond to the infinite troubles of trial. With this due deference in mind, we conclude that there was no error.
Greer also asks us to assume that the jurors spoke to their friends and relatives about the case despite the court’s repeated instructions not to do so. Greer admits, however, that he can only speculate as to what might have been said, if anything, and “cannot show actual prejudice as a result of the sequestration refusal.” Such speculation takes us nowhere and certainly not to a reversal. See United States v. Diggs, 649 F.2d 731, 737-38 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981).
Finally, Greer alleges that sequestration was necessary to safeguard the jury from comments made by witnesses or other spectators. However, Greer does not allege that such statements continued after the incident or that any jurors were exposed to any statements.
B
Greer also contends that the trial court erred when it excluded a tape recording offered by Greer to impeach government witness C.J. Laird, on the grounds that Greer failed to comply with Federal Rules of Criminal Procedure Rule 16 and that the tape enjoyed an attorney-client privilege. We are persuaded, however, that no reversible error occurred.
Laird and his attorney taped this statement in preparation for plea bargaining. In the statement, Laird denied meeting with Greer, Byrd, and Courville in Basile to prepare Byrd and Courville to lie before the Lafayette grand jury, stating that to the extent Byrd said otherwise, Byrd was lying. The taped statement was in direct conflict with his trial testimony that the four men met in Basile to rehearse false testimony to be given before that grand jury. Laird, however, later admitted on cross-examination that he made the previous inconsistent statement. Because the tape was properly excludable for this reason, we do not then reach the questions of whether the tape was in fact excludable because it was privileged or because Greer’s counsel failed to comply with Rule 16. Fed.R.Evid. Rule 613(b); see also United States v. Roger, 465 F.2d 996, 997-98 (5th Cir.) (when prior inconsistent statement has been admitted, extrinsic proof of the statement is excludable), cert. denied, 409 U.S. 1047, 93 S.Ct. 517, 34 L.Ed.2d 498 (1972).
Finally, Greer argues that he was told by the court that he could question Laird about the taped statements, but his attempts to do so were thwarted by sustained objections, denying effective cross-examination. The argument is so bereft of merit that we will not detail the exchanges. The objections were properly sustained.
C
Greer next argues that the court undermined the credibility of defense witness Bill Smith by reminding Smith of his oath and by repeatedly sustaining objections on his direct examination. These arguments are without merit.
First, Greer contends that the trial court committed reversible error when it admonished Smith about his oath. Because counsel for Greer failed to object to the court's admonition at trial, we review under the plain error doctrine. United States v. Carpenter, 776 F.2d 1291, 1295 (5th Cir.1985). After Smith testified as to Greer’s reputation for truthfulness, the prosecution asked Smith how many people he had talked to about that subject. Smith testified that he did not know how many. When the prosecution persisted with this line of questioning, Smith asked if the prosecution wanted the truth. The court then reminded Smith that his oath required the truth, and instructed Smith to testify accordingly.
Contrary to Greer’s contention, the trial court’s response was limited and appropriate. While reminding the witness about his duty under the oath, the court stated, “I know you didn’t mean it.” The district judge, as overseer of the trial, has the duty to ensure that all witnesses understand the importance of their appearance and adhere to the oath of truthfulness. We find no error.
Second, Greer claims that the court undermined the credibility of Smith’s testimony by sustaining a number of objections by the prosecution. We reject this argument because the court properly sustained the objections. Greer called Smith not only as a character witness, but also to testify about a meeting at which Houston Byrd, Jr., Greer and Smith discussed Byrd’s upcoming appearance before the federal grand jury in Lafayette. Greer wanted Smith to testify to what Greer and Byrd said at this meeting, and to testify that Byrd stated that Greer had previously instructed him to tell the truth before the grand jury. When requested by the trial court to state the purpose of the proffered testimony, Greer’s counsel responded that the testimony was to be used to impeach Byrd. But Byrd was never confronted with his prior inconsistent statements, and thus extrinsic evidence of the statements could not be used to impeach him. Fed.R. Evid. Rule 613(b). Moreover, the trial court properly rejected Greer’s contention that Smith’s testimony regarding Byrd’s and Greer’s conversation was not hearsay because it recounted the statements of co-conspirators. See Fed.R.Evid. 801(d)(2)(E). The statements were not made in furtherance of the conspiracy.
Greer also attempted to elicit testimony from Smith that Laird told Smith that he had never been to Basile to meet Byrd, Greer, and Courville. Laird testified at trial that the four men discussed the false testimony to be given by Byrd and Cour-ville before the grand jury at this meeting. On cross-examination, Laird admitted that he previously maintained that this meeting never occurred. Hence, there was no error in rejecting extrinsic evidence of his prior inconsistent statement.
Finally, the trial court properly struck non-responsive testimony by Smith during direct examination. While testifying about Laird’s and Byrd’s reputations for truthfulness, Smith interjected editorial and inappropriate comments.
D
Greer has adopted the arguments made on behalf of Carlock, Sr., in Carlock, 806 F.2d 535, expressly those regarding pre-trial delay and alleged Senate improprieties. See United States v. Ballard, 779 F.2d 287 (5th Cir.), cert. denied — U.S.-, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986). In Carlock, we found the claims he adopts to be without merit.
II
The conviction of Michael Greer is AFFIRMED.
. The joint trial originally began in Lake Charles, but mistrial was declared when the court failed to obtain an impartial jury. The trial was then transferred to Monroe, where the jury was sequestered during trial.
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_civproc2
|
0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if less than two federal rules of civil procedure are cited. For ties, code the first rule cited.
AU YI LAU, Yim Tsz Ki , Lam Sai Ting, Petitioners, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent. TIT TIT WONG and Nei Ngan Chan, Petitioners, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Nos. 23339, 23527.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 15, 1970.
Decided March 19, 1971.
Certiorari Denied Oct. 12, 1971.
See 92 S.Ct. 64, 66.
Mr. David Carliner, Washington, D. C., for petitioners.
Mr. Charles Gordon, General Counsel, Immigration and Naturalization Service, of the bar of the Supreme Court of the United States, pro hac vice, by special leave of the court, with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for respondent. Mr. Paul C. Summitt, Atty., Department of Justice, also entered an appearance for respondent.
Before FAHY, Senior Circuit Judge, and McGOWAN and LEVENTHAL, Circuit Judges.
Opinion and Judgment Vacated as to Yim Tsz Ki, July 8, 1971.
McGOWAN, Circuit Judge:
These two statutory review proceedings, although not consolidated in this court, were argued together and are suitable for disposition by one opinion. They involve deportation orders issued, after evidentiary hearings, by a Special Inquiry Officer of the Immigration and Naturalization Service (INS), which were affirmed by the Board of Immigration Appeals. Our review is circumscribed by the Congressional commands that it be limited to the administrative record, and that findings of fact therein be taken as conclusive “if supported by. reasonable, substantial, and probative evidence on the record considered as a whole.” 8 U.S.C. § 1105a. There is no issue in either case as to the adequacy of, the evidence upon which the orders rest. The claim in each is, rather, that the evidence was the fruit of an illegal arrest. We look first to the factual circumstances from which each of these contentions derive.
I
No. 23,339
Petitioners in this case are three Chinese seamen who are charged with deserting their ships in American ports. On October 31, 1967, immigration officers at the Washington, D. C., field office received an informant’s tip that aliens unlawfully in this country were working in a restaurant located in the downtown area which had been under periodic surveillance by the Washington immigration office for the preceding year. In response to this tip, some seven of the officers walked to the restaurant, which was a few blocks from their office. They had no warrants because they lacked information of the requisite degree of specificity.
Upon their arrival, some of the officers stationed themselves at the main exits of the restaurant. Three of the officers entered the restaurant by way of the front entrance, and spoke to the assistant manager who was in charge at the time. They identified themselves, told him the purpose of their visit, and asked his permission to enter the restaurant in order to talk to the employees. The assistant manager agreed to their coming into the restaurant, but there was some disagreement as to whether he permitted them to conduct their investigations in the kitchen. The Board of Immigration Appeals accepted the finding of fact by the Special Inquiry Officer that the officers had received such an invitation.
As the officers proceeded towards the kitchen, they observed a person of Chinese extraction, dressed in a blue denim uniform, scurrying through the dining room to the main entrance door. One officer (Burns) followed him to the door, stopped him, identified himself as an immigration officer, and asked the individual, later identified as petitioner Yim, to accompany him to the kitchen. As the two headed back toward the kitchen, a second employee, petitioner Lam, also dressed in kitchen garb, was met by them as he appeared to be hurrying towards the front door. He was requested by Officer Burns to go to the kitchen for a talk. Lam did so momentarily, but suddenly darted through a side door, only to encounter Officer Lamoreaux who asked him if he was off a ship and received an affirmative answer. Petitioner Lam then was sent to the locker room to change his clothes before being taken to the immigration office. When Officer Burns and petitioner Yim arrived in the locker room of the kitchen, Burns asked Yim if he had jumped a ship, to which Yim replied that he had.
During this time, two officers were questioning the employees in the kitchen, when two of the workers dropped their culinary utensils and darted out the rear door. One of the officers gave chase and halted one of the fleeing kitchen workers, later identified as petitioner Au. With the aid of another employee, who acted as interpreter, Au was questioned immediately by the officer who detained him, and admitted that he had “jumped” ship. The officer then took him to the locker room where they joined the other petitioners. All three petitioners were searched, and the officers seized seamens’ documents from each petitioner which indicated that in fact they had overstayed their leave.
The three petitioners then accompanied the officers to the immigration office, where they awaited the arrival of an interpreter. In the presence of the interpreter, sworn statements were taken from each of the three in which they admitted that they had come to this country as crewmen, and were illegally in the United States.
No. 23,527
On November 7, 1967, petitioners Wong and Chan, persons of Chinese extraction, accompanied Mr. Wong’s ailing brother to the Washington Hospital Center where the latter made application for medical treatment. The receptionist at the hospital doubted the sick man’s right to be in this country, and called the Washington immigration office. Officers Taylor and Reissig were dispatched to the hospital where, upon arrival, Officer Taylor went inside to question the sick man, and Officer Reissig remained in their government car by the front entrance.
Once inside the hospital, Officer Taylor went to a waiting room where he was to interrogate the applicant for medical assistance. However, when he identified himself to the receptionist as the immigration officer for whom the patient and two other Chinese (see note 3 supra) men had been waiting, and started talking to the Chinese patient at the desk, he noticed that the two petitioners rose from their chairs and left the room. Officer Taylor testified that he thought there was something odd about their departure; accordingly, when he had concluded the task of interrogating the prospective patient — a questioning that lasted some fifteen minutes, resulting in the clearance of petitioner Wong’s brother — he thought he “would make quiet inquiries” and see if he could find the two men who had left.
Officer Taylor advised his colleague he was interested in these two Chinese and intended to look for them in the hospital “so that he could talk to them.” He then spent approximately fifteen minutes more searching several corridors and other waiting rooms in the hope of finding the two petitioners. He stepped out of a side door of the hospital onto a sidewalk, and spotted petitioners by the hospital parking lot, about half a block away. He saw them looking back, and when they saw him they quickened their pace on into the parking lot, and broke into a jog or “sort of dog trot,” glancing back at Officer Taylor as they went.
For a while they got out of his field of vision, but then he saw them inside a car parked in the lot. As Taylor approached the ear, one of the men, who was in the back seat, attempted to roll up the car windows and lock the car doors. The other was in the front seat, and tried to start the car. Due to what was described by Officer Taylor as a basic unfamiliarity with the vehicle, neither petitioner was successful at his task. Taylor then attempted to question them through an open window, but soon realized that there was an insurmountable language barrier. He decided to enlist the support of Officer Reissig. In order to insure that petitioners would not leave, Officer Taylor took their car keys and asked a nearby hospital guard to watch the car for a moment. Officer Taylor located Officer Reissig, and the two returned about five to seven minutes later, bringing their car to a halt in front of the one in which the two petitioners were seated.
Several more minutes elapsed while the two officers again tried unsuccessfully to communicate with the petitioners. At this point, they sought the aid of a passing Chinese student, who agreed to act as an interpreter. The Chinese student began his interrogation under the supervision of Officer Reissig. In the meantime, Officer Taylor decided that it might be beneficial to return to the hospital to determine whether the other Chinese men in the building were related to petitioners. After a ten minute search, he found Mr. Ling, who was the owner of the car.
Mr. Ling agreed to accompany Taylor to the parking lot in order to identify the petitioners. Upon returning to the lot, Mr. Ling identified the petitioners as his friends, but refused to aid in their interrogation. However, at that time, Officer Reissig informed Officer Taylor that the Chinese student had discovered that the petitioners were in the country illegally. According to the findings of the Special Inquiry Officer, the student then left the scene of the interrogation. The two officers then arrested petitioners, and transported them to the Washington headquarters. There, petitioners turned over to the investigators certain seamens’ papers, and also made statements in response to interrogation. These statements were not, however, regarded by the Special Inquiry Officer as competent evidence because of what he found to be the failure of the interrogators to comply with INS regulations requiring advice of right to counsel.
II
At the hearings before the Special Inquiry Officer in both No. 23,339 and No. 23,527, petitioners were represented by counsel but, upon his advice, stood mute and presented no evidence. The claim made on their behalf there, as here, was that petitioners had been arrested without probable cause, and that the evidence offered by the Government against them was the forbidden fruit of these assertedly illegal arrests. In assessing these claims, any restraints upon the freedom of movement of petitioners must be viewed by reference to the statutory authority given immigration officers. There are two provisions of possible relevance, one being addressed to interrogation and the other to arrest, in each instance without warrant.
We agree with the Government that the arrest provision must be read in light of constitutional standards, so that “reason to believe” must be considered the equivalent of probable cause. Moreover, the Government does not insist that in the matter before us each immigration officer did have probable cause to arrest when he first confronted each petitioner. It is urged that probable cause is needed only if a detention reaches the level of an arrest, and that the original encounters with petitioners were not arrests.
The Government focuses upon the interrogation provision of the Act as manifesting a Congressional purpose to permit immigration officers to make detentions for questioning which fall short of a full-blown arrest. It argues that such a reading of the statute is buttressed by two practical considerations: First, the number of individuals seeking to enter this country illegally is quite high, and the number who succeed in this venture has rapidly increased with each passing year; and, second, the ability to gather proof against these illegal entrants independent of a reasonable opportunity for interrogation is exceedingly difficult.
In Yam Sang Kwai v. INS, 133 U.S. App.D.C. 369, 411 F.2d 683 (1969), cert. denied, 396 U.S. 877, 90 S.Ct. 148, 24 L.Ed.2d 135 (1970), we viewed this provision (Section 287(a) (1)) as according, at the least, to immigration officers the right to seek to interrogate individuals reasonably believed to be of alien origin. The underlying rationale of that decision was that the minimal invasion of the privacy of the individual approached for questioning was justified by the special needs of immigration officials to make such interrogations. This allowance for mere questioning, which assumes the individual’s cooperation, is analogous to decisions which have contemplated the same scope of authority for police officers, as well as for other administrative officials.
We are in this instance, however, confronted with a question which the court did not have in Yam Sang Kwai, namely, whether the immigration officer may detain an individual, reasonably believed to be an alien, against his will for the purpose of questioning. We believe the statutory interrogation authority comprehends such detentions, but, because they are far greater intrusions upon personal privacy than the non-foreible approaches, and since aliens in this country are sheltered by the Fourth Amendment in common with citizens, such a reading of the Congressional mandate must be controlled by the constitutional standards governing similar detentions made by other law enforcement officials. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We hold that immigration officers, in accordance with the Congressional grant of authority found in Section 287(a) (1), may make forcible detentions of a temporary nature for the purposes of interrogation under circumstances creating a reasonable suspicion, not arising to the level of probable cause to arrest, that the individual so detained is illegally in this country. Utilizing the standards developed in Terry, such detentions are to be judged from case to case by reference to the particular facts of each. We proceed to this inquiry in the two cases immediately before us.
* $ * *
Ill
With respect to No. 23,339, we disallow the claim that the deportation orders derive from tainted evidence. Our recent decision in Yam Sang Kwai, supra p. 222, insulates from illegality the steps taken by the immigration officers in proceeding upon the informant’s tip to the restaurant in question and in making the initial dispositions of their forces that they did. Their approach was orderly. They were at some pains not to disrupt the regular routine of the restaurant. The management official in charge was asked for authority to enter the restaurant and to conduct the questioning in the kitchen area. Such disorderliness as occurred was the product solely of the efforts of petitioners to flee the premises.
It was this response to the appearance of the immigration officers which, we think, sufficed to create a reasonable suspicion in the minds of the officers that petitioners might be illegal aliens, and thereby, under the Terry doctrine, warranted the temporary detention of petitioners for interrogation. In the case of petitioner Yim, indeed, it is not even clear that there was a detention against his will since, once accosted in his apparent progress towards the front door, he appears to have acquiesced readily in the request by Officer Burns to accompany him to the kitchen. Once there, he immediately said that he had jumped a ship. Petitioners Lam and Au manifested their purpose to flee in a more positive manner, and would have gotten away if they had not been affirmatively intercepted. They, thus, ended up in the kitchen under circumstances more nearly resembling forcible detention, although each had given the information that he was off a ship when initially intercepted and before he reached the kitchen.
In the case of all three, there had come into being, by the time they were foregathered in the kitchen, probable cause to arrest without warrant under Section 287(a) (2); and they were so arrested and taken to the Immigration Office. No claim is made here that anything improper occurred in their further interrogation there. The argument is, rather, that their arrests occurred simultaneously with the initial approach to them by the officers in the restaurant, and before the officers acquired knowledge constituting probable cause. We think that, at most, those confrontations involved temporary detentions for questioning which were authorized by Congress and which did not, on these facts, fall afoul of the Fourth Amendment.
IV
In No. 23,527, as noted hereinabove, the Government’s case had to be made without the aid of the statements taken from petitioners Wong and Chan in the course of the investigation conducted at the Washington office following their arrest at the hospital parking lot. The Government now argues that, even if the arrests be deemed illegal, affirmance is in order because the documentary evidence introduced was sufficient to show illegal presence in the country by reason of petitioners having overstayed their limited shore leaves; and that these documents were of an official character and came into the Government’s possession independently of the taking of petitioners into custody. The record, however, is in an abominably muddled state on this score, and we are unable to conclude from our examination of it that the Government’s claim in this regard is well taken. We look, then, to the merits of the claim of taint arising from illegal arrest.
This inquiry, of course, is the same as that we have pursued in No. 23,339. There is here no preliminary issue of the Yam Sang Kwai nature, since the errand upon which the two officers came to the hospital was undisputedly legitimate, i. e., to check the status of the ailing Mr. Wong at the request of the hospital receiving authorities. When Officer Taylor arrived at the hospital, identified himself to the receptionist as an immigration officer, and began talking with the Chinese patient who was awaiting his arrival, his attention was struck by the fact that the two Chinese persons immediately got up from their seats in the waiting room and departed. He proceeded with his check of the sick man but resolved to explore the suspicious circumstance further as soon as he had dispatched the business immediately at hand. That took only about 15 minutes, and then he started to look for the two who had left the waiting room. He had reasonable basis to believe they were aliens and to seek to question them.
We have recounted above Officer Taylor’s search through the hospital corridors, his sight of petitioners when he came out the side door of the hospital, their hasty repairment to the auto on the parking lot when they saw him, and their unsuccessful efforts to lock the car against him and to drive' away. When they appeared unable to respond to his questions because of a language barrier, he reached in and took the car keys for the purpose of keeping petitioners on hand until he could find help in communication.
Petitioners press upon us that it was at this point that an arrest without probable cause occurred. The point is not without difficulty, especially since several minutes elapsed before the matter of communication was brought to resolution by the fortuitous appearance of the Chinese student, who was able to talk to petitioners and who reported that they had exceeded their permissible shore leaves. The Terry doctrine in terms contemplates that detention for interrogation as distinct from arrest will normally be brief in duration, and the reasons why this should be so do not require explication. But the question remains one of the reasonableness of official action under the particular circumstances, and there is no fixed formula as to time, especially when we are dealing with minutes rather than hours. The delay here was occasioned by the efforts made to find a channel of communication to petitioners, not in the time consumed by their questioning once that communication became possible.
We think that the conduct of petitioners prior to and upon entering the car, including their vainly seeking to start it, was such as to found a reasonable suspicion about their status within the meaning of the gloss we have hereinabove put on Section 287(a) (1). That being so, Officer Taylor was justified in subjecting petitioners to an investigatory stop for a reasonable period of time. Because of the language barrier, that stop proved longer here than would be necessary in the usual Terry criminal context. But different areas of law enforcement have different problems, and legal doctrine common to all must be of sufficient flexibility to accommodate these differences. We are not persuaded that this record presents a picture of official oppression unrelieved by the quality of reasonableness central to the concept of the Fourth Amendment.
We find the deportation orders in both Nos. 23,339 and 23,527 to be valid, and we deny the relief sought in the respective petitions for review.
It is so ordered.
. The record reveals that petitioners were able to speak in broken English and therefore they were able to answer the simple questions of the detaining officers. However, it is clear that for the purposes of an affidavit an interpreter was needed.
. Before the interrogation began at the immigration office, each petitioner was, in accordance with INS policy, given the full Miranda warnings. Each stated that he did not wish counsel to be provided. There is no issue raised in this case as to the adequacy either of the warnings or the waiver. Compare United States v. Campos-Serrano, 430 F.2d 173 (7th Cir. 1970), cert. granted 401 U.S. 936, 91 S.Ct. 926, 28 L.Ed.2d 215, March 1, 1971, (Miranda warnings held necessary where, after one interrogation and examination of an alien’s identification papers, the immigration officers, having thereafter acquired some reason to believe that the alien was guilty of the crime of altering the papers, returned a second time to examine the papers without first giving the warnings). Similarly, since here the restaurant owner consented to the entry by INS agents we are not required to consider the disposition appropriate in a case of unconsented entry and a claim of illegality due to lack of search warrant.
. Thei’e were apparently two other men of Chinese extraction in the party, one of whom is identified in the record as Mr. Xee Kong Ling.
. Petitioners requested that their hearing be reopened in order that they be allowed to show that the Chinese student never existed. This request was granted by the Special Inquiry Officer. Since petitioners had been instructed by their counsel to remain silent at the hearing, the only method which they could employ to prove the nonexistence of the student was to submit an affidavit by their friend, Mr. Ling. Mr. Ling attested to the fact that he did not see the student when he came to the car to identify petitioners. He further stated that petitioners also denied the existence of the student when they related the incident to him. Mr. Ling was called to the stand in order to be cross-examined by the Government.
Petitioners’ counsel also hoped to disprove the existence of the student by pointing out at the hearing that the Government was unable to produce the student as a witness or even to produce the name and address of the student. However, the Board of Immigration Appeals affirmed the finding of the Special Inquiry Officer that there was, in fact, such a student. They based this finding on the testimony of Officers Taylor and Reissig, as well as the hospital policeman. Furthermore, the Board of Immigration Appeals pointed out that the record gives some indication that the student may have left the scene before the arrival of Mr. Ling, thus making Ling’s observations not necessarily inconsistent with that of the officers. We are, in this state of the record, without authority to reject this finding of fact.
. Both are contained in Section 287 of the Immigration and Nationality Act, 8 U.S. 0. § 1357, as follows:
(a) Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States;
(2) to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, or expulsion of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States ;
. Green v. United States, 104 U.S.App.D.C. 23, 259 F.2d 180 (1958), cert. denied, 359 U.S. 917, 79 S.Ct. 594, 3 L.Ed.2d 578 (1959).
. United States v. Grandi, 424 F.2d 399 (2nd Cir. 1970) (customs officials).
. In Yam Sang Kwai, the claim was that there had been an arrest without probable cause by reason of the fact that, unknown to the petitioner, immigration officers had been posted outside the building while another officer went inside to question petitioner. We held that no arrest had as yet occurred. Petitioner in that case, when approached for interrogation, cooperated voluntarily. The arrest was made only after the information elicited by questioning provided probable cause to believe that he was in the country illegally.
. The assistant manager’s testimony was that he offered the officer's a table in the restaurant at which they could question employees, but he admitted that he did not forbid them from going into the kitchen. The officers testified that his grant of permission on the latter score was explicit. The special inquiry officer found this last to be the fact, and his finding was accepted by the Board. We think the finding has adequate support in the record, and we are concluded by it. 8 U.S.C. § 1105a(4). See also Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
. In United States v. Curtis, 138 U.S.App. D.C. 360, 427 F.2d 630 (1970), we remarked en banc the relevance of flight at the appearance of the police to the reasonableness of a warrantless entry upon private premises for the purpose of arrest. We quoted the statement of the Supreme Court in Peters v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968), that “deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.” If flight can contribute so greatly to probable cause for arrest, it certainly has the capacity in appropriate circumstances to generate the lesser degree of reasonable suspicion requisite for an investigatory stop.
. What the Government itself terms a major item of evidence against petitioners, namely, the crewman’s landing permit (which shows the date, place, and manner of admission into the country), appears to have been located as a direct result of the detention. In the case of petitioner Wong, the Government learned, after questioning him at the immigration office, that his permit was in the hands of Mr. Ling. Therefore, the immigration officers called Mr. Ling and asked him to bring the document to the office, which he did. Petitioner Ohan’s permit was either seized from his person after he was arrested or was brought to the office by Mr. Ling after Chan was questioned.
The Government points out that the remainder of the documentary evidence (Hong Kong discharge books and Hong Kong and Australian seaman’s identity cards) consisted of identification papers located in the files at the immigration office. The record does not make this fact clear. However, even if this were true, we think it not unlikely that their availability may have been dependent upon determining what date and in what place petitioners entered the country.
. They stress also the circumstance that Officer Taylor asked a hospital guard, who happened to be in the vicinity, to keep an eye on the car while he went to find his partner. The testimony of record indicates that the making of this request was not known to petitioners and that they were not aware of the presence of the guard during the five minutes or so that Taylor was away. The guard testified that he was not sure what he would have done if petitioners had tried to leave the car, since Taylor had said nothing about this contingency, although he thought he would probably have endeavored to stop them. The issue, in any event, never arose, since petitioners continued to sit in the cár.
. The word “briefly” appears in both Justice Harlan’s and Justice White’s concurrences in Terry. 392 U.S. at 33, 34, 88 S.Ct. 1868.
Question: What is the second most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
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songer_usc1
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28
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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.
Daniel ANDERSEN, Petitioner-Appellant, v. James THIERET, Warden, Respondent-Appellee.
No. 89-1574.
United States Court of Appeals, Seventh Circuit.
Argued April 3, 1990.
Decided June 5, 1990.
As Amended June 11, 1990.
Frank C. Lipuma, Mayer, Brown & Platt, Chicago, Ill., for petitioner-appellant.
Nathan P. Maddox, Asst. Atty. Gen., Office of the Atty. Gen., Criminal Appeals Div., Springfield, Ill., for respondent-appel-lee.
Before WOOD, Jr., EASTERBROOK and MANION, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge.
Daniel Andersen brings this habeas petition to challenge his incarceration at the Menard Correctional Center in Menard, Illinois. Andersen alleges that his confession to these crimes was not voluntary and that the state trial court violated his Miranda rights by admitting into evidence certain statements he made shortly after his arrest. The district court denied Andersen’s petition and we affirm.
I. Factual Background
On the night of January 19, 1980, Cathy Trunko was stabbed in the chest three times near her home in Chicago, Illinois. Only her assailant witnessed the attack. A passerby found Cathy lying on the sidewalk, covered with blood. By the time she was found, medical assistance was no help, and Cathy eventually succumbed to her wounds. An Illinois state trial court convicted petitioner Andersen of attempted rape and murder in connection with this attack and sentenced him to concurrent thirty and fifty-five year sentences. On direct appeal, the Illinois Appellate Court affirmed Andersen’s conviction, and that court’s decision contains a full narrative of the crime and Andersen’s arrest. See People v. Andersen, 134 Ill.App.3d 80, 82-94, 479 N.E.2d 1164, 1166-74, 89 Ill.Dec. 158, 160-68 (1985). A less-detailed version of the facts is necessary to an understanding of this case.
The voluntariness of the petitioner’s confession predominates the issues in this appeal. After his arrest, Andersen told the following story to the police. At about 10:00 P.M. on January 19, 1980, he had been drinking and felt a need for sex. Andersen obtained a knife from a toolbox in the attic of his home, placed it in his boot, and walked outside. He saw Cathy Trun-ko, a woman he had known for twelve years. Not wishing to be caught for the crime he was contemplating, Andersen went to his car and got a pair of gloves.
Next, Andersen came alongside Cathy and struck up a conversation. When they passed her home, Cathy informed Andersen that she had to go inside for a moment to give her mother some cigarettes. She came back outside, and they resumed their walk. In front of a church, Andersen told Cathy to wait on the front steps while he went around back to urinate. When out of her sight, he took the knife from his boot and placed it on some stairs where he could reach it from the sidewalk. Andersen put on his gloves and returned to Cathy, walking with her toward the stairs.
When they got close enough to the stairs, Andersen bent down and picked up the knife. He put his arm around Cathy, kissed her, and said he wanted to make love. She refused. He forced her to the ground and fondled her. Cathy spit in his face. She tried to escape and started to scream. Andersen then thrust the knife into her chest, once in each breast and “once in the middle.” As he fled, Cathy was crawling on the ground. Andersen then discarded his knife and gloves, but the knife was later recovered by the police in an area that Andersen agreed was the place he had thrown it.
This was the story that Andersen related five days later, on January 24, 1980, after his arrest for disorderly conduct. Petitioner’s mother had asked her friend, Officer Riley, to bring the defendant home as he was drunk, had a weapon, and was driving his silver Ford Pinto. Riley passed this information along to another police officer who soon spotted the silver Pinto. This second officer stopped the car, but the defendant was not in it; a friend had agreed to drive it because Andersen was too drunk to drive. The officers and the friend then proceeded to the mother’s house. They saw the defendant walking toward them. The police searched Andersen but found no weapon. One of the officers asked the defendant’s mother if she wanted the defendant left with her or taken to the station. She said the defendant had been causing a disturbance so she signed a disorderly conduct complaint against him.
Nothing in the record suggests that at this point, the police suspected Andersen of the Trunko murder, but he soon provided them with a reason to do so. During the five-minute ride to the police station, there was some conversation about the weapon that the defendant’s mother said he had, but the defendant denied he had one, saying he was just out drinking. After an interval of silence, Andersen then blurted, “I stabbed her”; the arresting officer asked, “Who?”; and Andersen responded, “Cathy.” At the suppression hearing before the state trial court, the arresting officer testified that this exchange occurred before Andersen was read his Miranda rights, but at trial the same officer testified that the statement was made after Miranda warnings. Although the state trial court suppressed any statements made before Miranda warnings, this colloquy was allowed into evidence consistent with the testimony at trial and on the basis that it occurred after Miranda warnings.
After Andersen was read his Miranda warnings, he responded that he knew them and that he wished to waive them. The police then questioned him further about the stabbing, and this is when he gave the disputed confession to the police. What happened at the station house is a matter of conflicting evidence. Andersen contended that he was roughly handled and injured by the police, that he was misled by a “good officer” routine, and that his oral and written confessions were involuntary under all the circumstances. The degree of the petitioner's intoxication was also disputed. Some of the petitioner’s witnesses said that he was drunk, that he had a chronic alcohol problem, and that he had smoked parts of two marijuana cigarettes. Finally, Andersen contended that his confession was merely a script story, concocted by him and the officer who had promised to be his friend.
The state trial court, based upon the credibility of the witnesses and considering the contradictions in the testimony of the defendant’s witnesses, determined that the defendant’s confession was voluntary. In oral findings reproduced as an appendix to this opinion, the trial court rejected Andersen’s contention that intoxication rendered him susceptible to police suggestions that he confess. His speech was found not to be slurred; he walked normally, displayed no lack of coordination, had no hand tremors, no difficulty focusing his attention, and gave coherent answers. When the defendant reviewed a draft of his written confession, he had the presence to change the word “shooting” to “stabbing.” Similarly, the trial court found that no physical coercion had occurred. In sum, the state trial court rejected Andersen’s evidence.
Both parties consented to the entry of a final judgment on the habeas petition by a United States magistrate. Relying on the factual findings of the state trial court, the magistrate did not conduct an evidentiary hearing. The magistrate concluded that Andersen had not shown his confession was involuntary, rejected Andersen’s Miranda claims, and denied the petition. Andersen now appeals that decision pursuant to 28 U.S.C. §§ 636(c)(3), 1291.
II. Discussion
A. Voluntariness of Confession
The threshold issue is the correct standard for reviewing the magistrate’s decision on the voluntariness of Andersen’s confession. As a habeas petitioner, Andersen is entitled to a federal district court’s de novo review of the voluntariness issue under Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985), and we have interpreted Miller to require de novo appellate review of the district court’s decision on voluntariness, see United States v. Hawkins, 823 F.2d 1020, 1022-23 & n. 1 (7th Cir.1987). This standard of review has recently come under attack, see, e.g., United States v. Rutledge, 900 F.2d 1127, 1128-29 (7th Cir.1990); Weidner v. Thieret, 866 F.2d 958, 961 (7th Cir.1989); Sotelo v. Indiana State Prison, 850 F.2d 1244, 1253-55 (7th Cir.1988) (concurring opinion), and even replaced by an abuse of discretion standard when we exercise discretionary jurisdiction under 28 U.S.C. § 636(c)(5), see Wilson v. O’Leary, 895 F.2d 378, 383 (7th Cir.1990). Nevertheless, because an ultimate resolution is not necessary for our decision, we will follow the example of Sotelo and leave the question for another day. 850 F.2d at 1247 n. 4; see also Rutledge, 900 F.2d at 1129 (declining to decide question where litigants did not challenge the correct standard of review). Therefore, we will review the magistrate’s decision on voluntariness de novo.
Before considering the substance of Andersen’s petition, we must pause because the state trial court’s choice of words complicates our decision. Where the state trial judge orally stated that he believed none of Andersen’s statements “were obtained as a result of” possible police misconduct, he could have been clearer. A rhetorician might quibble with this language; saying that something is not “the result of” a sequence of events is not literally the same as saying the sequence of events did not occur. Cf. Weidner, 866 F.2d at 960, 964 (granting evidentiary hearing to habeas petitioner to clarify state trial court’s findings that no threats or coercion had “induced” the confession). But a state trial court’s findings on voluntariness need not be talismanic, especially where the findings are rendered orally. In this case, the state trial judge carefully surveyed the evidence that had been presented, considered the credibility of the witnesses, and then rendered his findings. The state trial judge’s findings manifest his clear intent to repudiate Andersen’s excuses for his confession. That is enough for us to easily infer the underlying factual findings he must have made. His findings are adequate.
Turning to the merits, we must presume correct subsidiary factual findings of the state courts. 28 U.S.C. § 2254(d). Before this presumption can arise, the state court must have resolved the merits of a factual dispute. Id. § 2254(d)(1). In essence, subsection 2254(d)(1) of the habeas statute merely codifies the self-evident proposition that a state court must have made a finding on a particular factual issue before a federal court can defer to that finding. See Townsend v. Sain, 372 U.S. 293, 313-14, 83 S.Ct. 745, 757-58, 9 L.Ed.2d 770 (1963). A federal court, however, is not limited to express factual findings made by the state court; it must also rely on any resolution of factual disputes that can be fairly inferred from the state court record. See LaVallee v. Delle Rose, 410 U.S. 690, 694-95, 93 S.Ct. 1203, 1205-06, 35 L.Ed.2d 637 (1973); Townsend, 372 U.S. at 314-15, 83 S.Ct. at 757-58. For example, where a habeas petitioner’s story would have led the state trial court to conclude the petitioner’s confession was involuntary, the state court’s finding of voluntariness implies that petitioner’s version of the facts was rejected. See LaVallee, 410 U.S. at 692-93, 93 S.Ct. at 1204-05. (habeas petitioner alleged police brutality and torture).
We think this is a similar ease; the state trial court’s discussion of the evidence and its conclusion that Andersen’s confession was voluntary is fairly interpreted as a rejection of his version of the facts. In the absence of evidence to the contrary, we must assume that the state courts applied the correct constitutional standards to this case. Townsend, 372 U.S. at 314-15, 83 S.Ct. at 757-58. If the state courts had credited his story, these standards would have required them to conclude that Andersen’s confession was involuntary. The physical abuse that Andersen claims occurred would have led to a finding of involuntariness. See, e.g., Stein v. New York, 346 U.S. 156, 182, 73 S.Ct. 1077, 1091, 97 L.Ed. 1522 (1953) (When physical violence is present, “there is no need to weigh or measure its effects on the will of the individual victim.”); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936) (confession involuntary where defendant was whipped); see also 1 W. LaFave & J. Israel, Criminal Procedure § 6.2(c) (1984) (collecting cases). Food, sleep, and water deprivation and a mentally coercive interrogation would also have caused the state courts to conclude that Andersen’s confession was involuntary. See, e.g., Brooks v. Florida, 389 U.S. 413, 88 S.Ct. 541, 19 L.Ed.2d 643 (1967) (deprivation of food and water, combined with conditions of confinement, made confession involuntary); see also Colorado v. Connelly, 479 U.S. 157, 163 n. 1, 107 S.Ct. 515, 520 n. 1, 93 L.Ed.2d 473 (1986) (collecting cases); 1 W. LaFave & J. Israel, Criminal Procedure § 6.2(c) (1984) (collecting cases). Because Andersen alleged the police’s use of “third-degree methods” and the state trial court refused to exclude the confession from evidence, we may assume the state court found the “facts against the petitioner, the law being, of course, that third-degree methods necessarily produce a coerced confession.” Townsend, 372 U.S. at 315, 83 S.Ct. at 758.
We need not rely exclusively on our own inferences that may be drawn from the state trial court’s findings. The Illinois Appellate Court rejected Andersen’s plea to find his confession involuntary by saying, “It is evident that the trial court chose to believe [the interrogating officer’s] testimony rather than that of the defendant’s witnesses.” 134 Ill.App.3d at 95, 479 N.E.2d at 1175, 89 Ill.Dec. at 169. Whether a factual finding is made by a state trial or state appellate court is inconsequential; subsection 2254(d) applies a presumption of correctness to both. See Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981). Because the Illinois Appellate Court’s statement could be read either as an interpretation of the state trial court’s findings or as an independent factual finding that the defendant’s witnesses were not credible, we need not base our holding on it. Nevertheless, to the extent this statement can be interpreted as a finding of fact, it provides another reason for our decision.
Andersen also urges that the record as a whole does not support the state trial court’s findings. See 28 U.S.C. § 2254(d)(8). While it is true that the state trial judge never made a finding as to Andersen’s specific blood alcohol level at different times, this was hardly necessary. The state trial court’s finding necessarily rejected Andersen’s claim that he was overborne by a combination of intoxication and coercive police tactics. This finding is hardly illogical given that at least nineteen hours elapsed between Andersen’s last drink and his confession. As to Andersen’s allegations that he was physically abused and mentally coerced, he admits that he is the only witness. We agree with the Illinois Appellate Court’s observation: the state trial court obviously chose to credit the testimony of Andersen’s custodians rather than his own. The testimony of these witnesses provides ample support for the state trial court’s findings.
Andersen has not shown that any of the exceptions in 28 U.S.C. § 2254(d) are applicable, and we must presume the accuracy of the state trial court’s factual findings. Because the state trial court rejected Andersen’s story of a third-degree interrogation, the record contains no support for a finding that Andersen’s confession was involuntary. The police did not arrest Andersen because they suspected him of the Trunko murder. Rather, Andersen was properly arrested on a disorderly conduct charge initiated by his mother, and the police uncovered Andersen’s involvement in the murder as a follow-up to surprise statements he made shortly after his arrest. Even reviewing the magistrate’s decision de novo, we must find that Andersen voluntarily confessed to the Trunko murder.
B. Admissibility of Custodial Statements
Andersen and his prosecutors agree that the following exchange occurred while Andersen was in custody:
ANDERSEN: “I stabbed her.”
POLICE OFFICER: “Who?”
ANDERSEN: “Cathy.”
The parties argue over whether this conversation occurred before or after Andersen was given Miranda warnings and whether the admission of this statement violates the dictates of Miranda. While the state contends that Andersen waived this argument by not squarely presenting it in his petition for leave to appeal to the Illinois Supreme Court, see Nutall v. Greer, 764 F.2d 462, 465 (7th Cir.1985), we find that Andersen sufficiently presented the issue to the Illinois state courts to preserve it for federal habeas review.
At a suppression hearing, the arresting officer testified that Andersen made these statements before Miranda warnings, but at trial, the same officer stated that the statements were made after Miranda warnings. Although the state trial judge had excluded any of Andersen’s statements made before Miranda warnings, the arresting officer was allowed to testify as to this colloquy on the basis of trial testimony that it occurred after Miranda warnings. However, the timing of this conversation is inconsequential. Even if the statements were made before warnings were given, they could have been properly received into evidence, because Andersen volunteered his initial statement and the arresting officer’s reflexive question does not constitute an “interrogation” for purposes of Miranda. Therefore, Andersen was not prejudiced by the admission of these statements.
Shortly after his arrest, the police asked Andersen if he had a gun, an arguably proper line of questioning to protect the officers’ safety. See New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). Despite this initial questioning, we agree with the Illinois Appellate Court that Andersen’s statement a few minutes later was initially volunteered. This lapse of time and the nonresponsive character of Andersen’s statement removes any possibility that Andersen was responding to police interrogation about a gun when he stated, “I stabbed her.” By its own terms, Miranda does not apply to volunteered statements, and thus Andersen’s first exclamation could be properly received into evidence. See Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).
Furthermore, the police officer’s responsive question, “Who?,” did not require full Miranda warnings before its utterance. See, e.g., United States v. Rhodes, 779 F.2d 1019, 1032 (4th Cir.1985) (no interrogation occurred where drug dealer saw police officers were confiscating his notebook and said, “You can’t take that,” to which a police officer responded, “Why” and drug dealer stated, “I can’t run my business without that.”), cert. denied, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545 (1986); Papile v. Hernandez, 697 F.Supp. 626, 630-31 (E.D.N.Y.1988) (no interrogation occurred where police officer asked, “What kind of a deal?” in response to habeas petitioner’s spontaneous offer, “I want to make a deal.”); Turner v. Sullivan, 661 F.Supp. 535, 538 (E.D.N.Y.1987) (no interrogation occurred where habeas petitioner had initiated exchange by stating, “My leg is hurting,” to which police officer responded, “What happened to you?”), aff'd, 842 F.2d 1288 (2d Cir.), cert. denied, 487 U.S. 1240, 108 S.Ct. 2913, 101 L.Ed.2d 944 (1988); 1 W. LaFave & J. Israel, Criminal Procedure § 6.7(d) (1984). The police officer’s question was a neutral response, intended to clarify Andersen’s puzzling declaration; it was not coercive interrogation that Miranda seeks to prevent. Therefore, the police officer’s question and Andersen’s response could have been properly admitted. On the facts of this case, the spontaneous colloquy, which was initiated by the accused, did not require full Miranda warnings before it could be admissible.
III. CONCLUSION
Andersen has not established an exception to the general rule that we must presume correct the findings of the state trial court, and consequently, there is no basis upon which we can find his confession involuntary. Also, Andersen has not established a violation of Miranda. Accordingly, the judgment of the district court denying his petition for a writ of habeas corpus is
Affirmed.
Appendix
Oral Findings of the State Trial Judge:
All right. The Court has heard extensive evidence, witnesses on the defendant’s motion to quash and also, the second motion. The motion to suppress statements has heard arguments of Counsel. And the matter was taken under advisement and continued today’s'date for the Courts [sic] ruling and finding of fact.
The Court will not comment in great detail prior to making the finding of fact, but the Court will comment as to one facet because in the Court’s opinion, it is one of the crutial [sic] elements as indicated in the motion to quash and also, in the motion to suppress. And that is the defendant’s condition at the time of his arrest and at the time of giving the purported statements as to his sobriety or lack thereof.
Different witnesses have testified and most of them have commented on his condition at the time that they saw him. And the comments have been as to the — one witness indicated the word he — his opinion was “drunk.” Another one indicated he was “dead drunk.” Another one indicated he was “intoxicated.” However, upon the particular witnesses being questioned further, as to the basis for their opinion, they then came up with statements as or admissions they had not seen the defendant consume any alcohol.
Some indicated they had seen him consume only one drink. Others indicated the basis of their opinion was merely the fact they smelled the odor of alcohol on his breath, however, they indicated that he was able to drive a car, to walk without stumbling and his speech, although it was raspy, they could understand what he was saying. And that he was coherent. So, there’s a great divergence as to his condition. And the Court must consider the credibility of the witnesses as testified based upon the basis that they indicated for their conclusion that he was drunk or dead drunk or intoxicated, according to the words that were used by the different witnesses that testified.
Although there is contradiction in the record as to the witnesses [sic] statement as to what occurred at the time that the defendant was taken into custody in front of his house; one witness indicated that he was being held over the top of a van. Another witness indicated that he was being placed with his hands over the hood of a car — hood of the police car. And the other witness indicated that he was being held with his hands over the — it would be the top of the police car, but covering the windows to the back. There’s an indication they could hear everything that was being said, even though the windows were rolled up in the squad car. There was even testimony from the defendant’s mother that the windows were rolled up in the squad car, but she still could hear Norman Menagus (sic) hollering from the rear of the squad car, which she placed quite a distance from her home, which all goes to the credibility and the weight the Court had to give the testimony aduced [sic].
Based upon the totality of the evidence presented to the Court, in considering the credibility the Court has aduced [sic ], based upon those witnesses [sic] testimony, the Court finds as follows:
The Court finds, first, in my first ruling that deals with the motion to quash, the Court finds that the arrest of the defendant was not a pretex [sic ] or a subterfuge arrest. The Court finds that the defendant’s arrest took place when he was placed in the squad car at 5191 South Hermitage immediately after the complainant Mrs. Anderson [sic ] signed a complaint for disorderly conduct.
The Court further finds that there, the arrest was based upon probable cause and, therefore, the defendant, Daniel Anderson’s [sic], motion to quash the arrest is denied.
Now, as to the motion to suppress statements, the Court finds that the defendant was in custodial arrest when he was placed in the police car in front of his home after Mrs. Anderson [sic] had signed the complaint for disorderly conduct. The Court further finds that the statements made in the squad car between the time of leaving the house and arriving at the police station at 85th and Lowe and also, the statements made in the parking lot of the police station at 35th and Lowe were not volunteered statements. And the Court finds that the defendant had not knowingly waived his right of Miranda rights at the time that those statements were given. Therefore, as to those statements only, the defendant’s motion to suppress those statements is sustained.
Now, as to the subsequent statements given inside the police station, the Court finds that prior to such interrogation, the defendant was advised of his Miranda rights and that he knowingly and intelligently waived those particular rights. The Court further finds that the defendant was capable of appreciating and understanding the full meaning of his Miranda rights and waive them voluntarily, knowingly and intelligently.
The Court further finds that the statements were not obtained as a result of the interrogation, in contradiction of the defendant’s request for food and water while manacled to the lock-up. The Court further finds that the statements were not obtained as a result of undue questions for a lengthy period of time for the promises of leniency being made to the defendant.
The Court further finds that the statements were not obtained as a result of physical coercion or psychological or mental coercion and were not obtained as a result of confronting the accused with evidence which had been obtained in derogation of his Constitutional rights. The Court also finds that the statements were not obtained as a result of material misrepresentations made to the Defendant. Therefore, as to the remaining statements, the defendant’s motion to suppress is denied.
. The Supreme Court has now made clear that in the absence of coercive police conduct, a criminal defendant’s mental state alone cannot make his confession involuntary. Colorado v. Connelly, 479 U.S. 157, 163-67, 107 S.Ct. 515, 520-22, 93 L.Ed.2d 473 (1986). Therefore, Andersen’s intoxication by itself could not support a finding of involuntariness and is relevant only to the extent it made him more susceptible to mentally coercive police tactics.
. At oral argument, we asked whether the magistrate had applied an incorrect quantum of proof in deciding that the petitioner’s confession was voluntary. On two occasions in his written opinion, the magistrate stated that the petitioner "must prove beyond a reasonable doubt" that his confession was involuntary. Of course, the correct standard is that the petitioner prove by a preponderance of the evidence that his confession was involuntary. See United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1015 (7th Cir.1987); Martin v. Wainwright, 770 F.2d 918, 925 (11th Cir.), cert. denied, 479 U.S. 909, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986). Because petitioner never raised this argument except in response to questions at oral argument, he has waived it. In addition, the magistrate correctly identified the proper quantum of proof in other places in his opinion, convincing us that any prejudice to the petitioner was minimal.
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_casetyp1_7-3-1
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B
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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 - taxes, patents, copyright".
STARR v. COMMISSIONER OF INTERNAL REVENUE. TRUE et ux. v. SAME. DOHME v. SAME.
Nos. 3931-3933.
Circuit Court of Appeals, Fourth Circuit
April 6, 1936.
Charles Markell, of Baltimore, Md., for petitioners.
John MacC. Hudson, Sp. Asst, to the Atty. Gen. (Frank J. Wideman, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to the Atty. Gen., on the brief), for respondent.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
Writ of certiorari denied 56 S. Ct. 948, 80 L. Ed. —.
PARKER, Circuit Judge.
In the year 1929 the officers of Sharp & Dohme, a Maryland corporation, which had been incorporated in 1926, decided on and carried out a plan of reorganization the general purpose of which was to sell to the outside public a large interest in the business and decrease the relative holdings in the company of the persons who held at that time its total capital of 90,000 shares of non-par value common stock. They caused to be formed, pursuant to this plan, a new corporation of the same name, which agreed to take over the assets and assume the liabilities of the old corporation and to pay to that corporation the sum of $13,500,000 and issue to it 225,000 shares of non-par value common stock. This amounted to the new corporation’s giving to the old the sum of $150 in money and 2% shares of its common stock for each of the shares of the outstanding common stock of the old corporation. The old corporation, under the plan of reorganization, was thereupon to redeem its common stock at $150 per share and to distribute among its stockholders the common stock received from the new corporation. This distribution of the common stock of the new corporation was to be accomplished, however, not by simple distribution, but by having the old corporation issue 9,000 shares of “special” stock as a stock dividend to its stockholders, who were thereupon to exchange with the old corporation the “special” stock thus received for common stock in the new corporation which the old corporation was to receive; 500 shares of “limited” stock at $1 per share were issued by the old corporation to the new to be held by the latter for the purpose of keeping the old corporation alive after its other stock should have been redeemed.
Money was being raised by' the new corporation by the sale of its “preference” stock at $62.50 per share; and, under the plan of reorganization, an option was given the stockholders of the old corporation to exchange not exceeding one-third of their holdings of common stock in that corporation for this preference stock at the rate of one share of common for 2% preference. The common stock thus acquired by the new corporation' was to be used in lieu of cash.at $150 per share in its settlement with the old corporation; and it appears, that 59,359 shares of the new corporation’s “preference” stock were exchanged for common stock of the old corporation under this option.
This plan of reorganization was carried out, and the taxpayers who are petitioners here availed themselves of the option accorded them to exchange shares of common stock in the old corporation for preference shares in the new. In working out their rights under the plan they made the following transfers of stock, viz.: (1) On August 6, 1929, they exchanged common stock of the old corporation for preference stock of the new, this exchange being: made with the new corporation; (2) on the same date, August 6, 1929, they transferred the remainder of their common stock in the old corporation to that corporation for cash; and (3) on August 13, 1929, they exchanged their special stock in the old corporation for common stock in the new.
The Commissioner held that the transfers were made pursuant to a plan of corporate reorganization, but treated all three of them as constituting one transaction and imposed the tax on the entire profit derived therefrom, limited, however, to the amount of cash received. The taxpayers appealed to the Board of Tax Appeals, contending that the three transfers constituted three separate and distinct transactions, in two of which stock was exchanged for stock and no profit was realized, and that only with respect to the transfer of stock for cash was there realized a profit which was taxable. The Board found that “there were actually three real exchanges and each had its usual and separate effect for tax purposes,” but held that there was no reorganization within the meaning of the statute and that the entire profit derived from the transfers should be taxed without limitation to the amount of cash received. Dohme v. Commissioner, 31 B.T.A. 671. Taxpayers have petitioned for a review of this holding.
Counsel for the Commissioner, without formally confessing error, virtually concede that the Board was in error in holding that the transfers were not made pursuant to a plan of corporate reorganization within the meaning of the statute applicable. This is unquestionably correct. The case is one where “substantially' all the properties” of one corporation were acquired by another, where the seller acquired “a definite and substantial interest in the affairs of the purchasing corporation” which represented a “substantial part of the value of the thing transferred,” and where what was done was not a mere sale but genuinely partook “of the nature of merger or consolidation.” In the light of recent decisions of the Supreme Court, there can be no doubt but that the facts present a clear case of reorganization within the meaning of section 112 (i) (1) of the Revenue Act of 1928, 45 Stat. 816, 818. Helvering v. Minnesota Tea Co., 56 S.Ct. 269, 80 L.Ed. —; John A. Nelson Co. v. Helvering, 56 S.Ct. 273, 80 L.Ed. —; Helvering v. Watts, 56 S.Ct. 275, 80 L.Ed. —; G. & K. Mfg. Co. v. Helvering, 56 S.Ct. 276, 80 L.Ed. —.
Counsel for the Commissioner contend, however, that, in reversing the Board on the question of reorganization, we should sustain the Commissioner’s contention that there was in effect only one transfer, and that, under section 112(c) (1) of the act (45 Stat. 816, 817), taxpayers should be taxed on the entire profit derived from the reorganization, limited, however, to the amount of cash received in the transaction. Taxpayers contend that the question as to whether there were three transfers or only one is not properly before us, that, if it is before us, we are. concluded by the finding of the Board with respect thereto, and that, in any event, the record conclusively shows that there were three separate transfers.
We cannot agree that the question as to whether there were three transfers or only one is not before us. There is no dispute as to the facts. Upon these the Board has held that there were three transfers and no reorganization. The petition of taxpayers, alleges that there was error in holding that the transfers were not made pursuant to a plan of corporate reorganization; but, to determine whether this was error or not, we must examine into the nature of the transfers. If, in doing so, we reach the conclusion that the three transfers, as a matter of law, were but parts of one transaction and were taxable as such, it is our duty to call attention to that error in the decision of the Board as well as to the error in holding that the facts shown did not constitute a corporate reorganization within the meaning of the statute, to the end that, when the case is remanded to the Board, taxes may be assessed by it upon the proper basis. We do not understand that where, upon the petition of taxpayers, we correct an error against them, we are without power to correct another error affecting the same matter, merely because they have not assigned error with respect thereto, On the contrary, we conceive it to be our duty to point out the correct rule of law applicable in the premises, so that the taxes due may be properly assessed. In this connection, it appears to us that it would be most unfortunate, if, when the courts are clearing themselves of the reproach of hypertechnicality in their own procedure, they should permit the same evil to creep into the procedure provided for reviewing decisions of administrative tribunals.
So far as the finding by the Board is concerned, the facts are admitted and the finding is not a finding of fact at all but a mere conclusion which the facts do not support. It is perfectly clear that the three transfers were but steps in the carrying out of one general plan, all of the details of which were agreed upon before any of the transfers were made. The substance of that plan, stripped of irrelevant detail, was that, for each share of stock in the old corporation, the stockholder should have 2½ shares of common stock in the new and $150 in cash, with the option on his part to take preference stock in the new corporation at $62.50 per share in lieu of one-third of the cash to which he would otherwise be entitled. The record shows that, by action of the stockholders in approving the plan and indicating their election under the option offered them, every detail of the three transfers was arranged before any of them took place; and one contract, executed four days after the stockholders’ meeting, bound the new corporation to exchange preference stock for common stock as provided in the option, as well as to pay cash and issue common stock to the old corporation in exchange for its assets. It did not destroy the unity of what was done that the old corporation first issued the “special” stock and then exchanged the common stock of the new corporation for it, nor that the old stockholders were given the option of taking “preference” stock in lieu of one-third of the cash to which they were entitled. Before any exchange was made, the old corporation was bound to exchange common stock of the new for its “special” stock; the new corporation was bound to exchange its “preference” stock for common stock of the old, in an amount which had been fixed by prior acceptance of the option; the old corporation was bound to redeem its common stock whether tendered by its stockholders or by. the new corporation; and the common stock was called for redemption. The various transactions contemplated by the plan were interdependent, and the carrying out of the plan as a whole was the real consideration for each of the transfers.
The statute applicable is section 112(c) (1) of the Revenue Act of 1928, 45 Stat. 816, 817, which is as follows: “(1) If an exchange would be within the provisions of subsection (b)(1), (2), (3), or (5) of this section if it were not for the fact that the property received in exchange consists not only of property permitted by such paragraph to be received without the recognition of gain, but also of other property or money, then the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such 'money and the fair market value of such other property.”
The evident purpose of this statute is that, in case of reorganization and other somewhat similar transactions covered by the statute, profits realized in cash or other property shall be taxed as is other income, but that mere paper profits shall not be taxed. To the extent that stock is retained in the new corporation, the stockholder is carrying along his original investment; but, to the extent that he realizes money or other property upon the reorganization, he is withdrawing that from the enterprise. If the stock in the new corporation is worth as much as or more than the cost to him of the stock in the old, he is merely withdrawing his profit from the enterprise when he receives money or property upon the reorganization. In such case the reorganization enables the stockholder to realize in cash the increase in value of-his stock; and Congress evidently thought it just that he account for same as income, just as he would account for dividends received on his stock.
Where transfers are made pursuant to such a plan of reorganization, they are ordinarily parts of one transaction and should be so treated in application of the well-settled principle that, in applying income tax laws, the substance, and not the form, of the transaction shall control. First Seattle D. H. Nat. Bank v. Commissioner (C.C.A.9th) 77 F.(2d) 45; Prairie Oil & Gas Co. v. Hotter (C.C.A.10th) 66 F.(2d) 309; Howard v. Commissioner (C.C.A.6th) 56 F.(2d) 781; American Security & Trust Co. v. Tait (D.C.) 5 F.Supp. 337. This is demanded also by the principle, equally well settled, that a single transaction may not be broken up into various elements to avoid a tax. Allies Realty Corporation v. Commissioner (C.C.A.2d) 71 F.(2d) 150, 151; West Texas Refining & Development Co. v. Commissioner (C.C.A.10th) 68 F.(2d) 77, 79, 80; Prairie Oil & Gas Co. v. Hotter, supra (C.C.A.10th) 66 F.(2d) 309, 311; Tulsa Tribune Co. v. Commissioner (C.C.A.10th) 58 F.(2d) 937.
Taxpayers rely upon the decision of the Supreme Court in General Utilities & Operating Co. v. Helvering, 296 U.S. 200, 56 S.Ct. 185, 80 L.Ed. —. In that case, however, no corporate reorganization was involved, and there was no unifying contract such as we have here. Shares of stock were distributed by way of dividend among the corporation’s stockholders and were sold by the stockholders, who were not bound to sell, to a purchaser who .had made an offer to the corporation; and the decision was that these facts did not warrant a holding that the sale was made by the corporation so as to justify the imposition of a tax against it on the theory that it had made the sale and realized a profit. As pointed out by the Circuit Court of Appeals of the Second Circuit in Chisholm v. Commissioner, 79 F.(2d) 14, 16, a different case would have been presented if the distributors of the stock had been bound to make sale at the price offered to the corporation.
Taxpayers rely also upon Bruce v. Helvering, 64 App.D.C. 192, 76. F.(2d) 442. In that case, however, the taxpayer had agreed to sell 200 shares of stock for cash before learning of a contemplated reorganization. Later she learned of the reorganization and exchanged 500 shares of stock in the old corporation for 1,200 shares in the new. The two transactions were separate and distinct and made pursuant to independent contracts. The court was at pains to point out, however, that, if the sale of the 200 shares had been conditioned on the exchange of the 500 shares for stock, the case would have come directly under the provisions of section 112 (c) (1) of the statute. On like principle, Helvering v. Ward (C.C.A.8th) 79 F.(2d) 381, and Lonsdale v. Commissioner (C.C.A.8th) 32 F.(2d) 537, may be distinguished.
The only authority cited by the board for its action was its own decision in Gregory v. Commissioner, Helvering, 27 B.T.A. 223, but, in view of the decision of the Supreme Court in the same case, Gregory v. Helvering, 293 U.S. 465, 55 S.Ct. 266, 267, 79 L.Ed. 596, 97 A.L.R. 1355, it would appear that the Board erred there in paying too much attention to the mere form of transactions entered into for the purpose of escaping taxes. The court said of the corporation organized and used there as the basis of the plea of corporate reorganization: “Putting aside, then, the question of motive in respect of taxation altogether, and fixing the character of the proceeding by what actually occurred, what do we find? 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 petitioner. No dou,bt, a new and valid corporation was created. But that corporation was nothing more than a contrivance to the end last described. It was brought into existence for no other purpose; it performed, as it- was intended from the beginning it should perform, no other function. When that limited function had been exercised, it immediately was put to death.” The same thing in almost the same words might be said of the device of issuing the “special” stock of the old corporation and exchanging for it the common stock of the new, or of the device of having common stock of the old corporation exchanged with the new for its “preference” stock and then retired.
For the reasons stated, the decision of the Board to the effect that the transfers by taxpayers were not made pursuant to a plan of corporate reorganization will be reversed; but in the assessment of taxes the Board will treat as related steps in one consolidated transaction the three exchanges of stock to which we have referred.
Reversed and remanded.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"?
A. state or local tax
B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates)
C. federal tax - business income tax (includes corporate and parnership)
D. federal tax - excess profits
E. federal estate and gift tax
F. federal tax - other
G. patents
H. copyrights
I. trademarks
J. trade secrets, personal intellectual property
Answer:
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sc_casesource
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031
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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.
CHAN et al. v. KOREAN AIR LINES, LTD.
No. 87-1055.
Argued December 7, 1988
Decided April 18, 1989
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, and Kennedy, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, in which Marshall, Black-mun, and Stevens, JJ., joined, post, p. 136.
Milton G. Sincoff argued the cause for petitioners. With him on the brief were Steven R. Pounian and Donald W. Madole.
Richard J. Lazarus argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Bolton, and Deputy Solicitor General Ayer.
George N. Tompkins, Jr., argued the cause and filed a brief for respondent.
Justice Scalia
delivered the opinion of the Court.
This case presents the question whether international air carriers lose the benefit of the limitation on damages for passenger injury or death provided by the multilateral treaty known as the Warsaw Convention if they fail to provide notice of that limitation in the 10-point type size required by a private accord among carriers, the Montreal Agreement.
I
On September 1, 1983, over the Sea of Japan, a military aircraft of the Soviet Union destroyed a Korean Air Lines, Ltd. (KAL), Boeing 747 en route from Kennedy Airport in New York to Seoul, South Korea. All 269 persons on board the plane perished. Survivors of the victims filed wrongful-death actions against KAL in several Federal District Courts, all of which were transferred for pretrial proceedings to the District Court for the District of Columbia pursuant to 28 U. S. C. § 1407. All parties agree that their rights are governed by the Warsaw Convention, a multilateral treaty governing the international carriage of passengers, baggage, and cargo by air. Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T. S. No. 876 (1934), reprinted in note following 49 U. S. C. App. § 1502.
The present controversy centers on the per passenger damages limitation for personal injury or death. This was fixed at approximately $8,300 by the Convention, but was raised to $75,000 by the Montreal Agreement, an agreement among carriers executed (and approved by the Civil Aeronautics Board (CAB)) in 1966, and joined by KAL in 1969. Agreement Relating to Liability Limitations of the Warsaw Convention and the Hague Protocol, CAB Agreement 18900, note following 49 U. S. C. App. § 1502 (approved by CAB Order E-23680, May 13, 1966, 31 Fed. Reg. 7302). In addition to providing for a higher damages limitation, this agreement required carriers to give passengers written notice of the Convention’s damage limitations in print size no smaller than 10-point type. The notice of the Convention’s liability rules printed on KAL’s passenger tickets for the flight in question here appeared in only 8-point type. By motion for partial summary judgment, plaintiffs sought a declaration that this discrepancy deprived KAL of the benefit of the damages limitation.
On July 25, 1985, the District Court for the District of Columbia denied the motion, finding that neither the Warsaw Convention nor the Montreal Agreement prescribes that the sanction for failure to provide the required form of notice is the elimination of the damages limitation. In re Korean Air Lines Disaster of September 1, 1983, 664 F. Supp. 1463. Its opinion specifically considered and rejected contrary Second Circuit precedent. See In re Air Crash Disaster at Warsaw, Poland, on March 14, 1980, 705 F. 2d 85, cert. denied sub nom. Polskie Linie Lotnicze v. Robles, 464 U. S. 845 (1983). On September 24, 1985, the District Court certified for interlocutory appeal under 28 U. S. C. § 1292(b) (1982 ed., Supp. IV) the question whether KAL “is entitled to avail itself of the limitation of damages provided by the Warsaw Convention and Montreal Agreement despite its defective tickets.” The District of Columbia Circuit allowed the appeal and (following a remand of the record for clarification of the scope of the District Court’s order) affirmed, adopting the District Court’s opinion in full. In re Korean Air Lines Disaster of September 1, 1983, 265 U. S. App. D. C. 39, 829 F. 2d 1171 (1987). We granted certiorari, 485 U. S. 986 (1988), to resolve the conflict among the Courts of Appeals. (In addition to the Second Circuit, the Fifth is in disagreement with the District of Columbia Circuit’s resolution here. See In re Air Crash Disaster Near New Orleans, Louisiana, on July 9, 1982, 789 F. 2d 1092 (1986), reinstated, 821 F. 2d 1147 (1987) (en banc).)
II
Petitioners concede that by itself the Montreal Agreement imposes no sanction for failure to comply with its 10-point type requirement. They argue, however, that such a requirement is created by reading the Montreal Agreement in conjunction with the Warsaw Convention. This argument proceeds in two steps. First, petitioners assert that Article 3 of the Warsaw Convention removes the protection of limited liability if a carrier fails to provide adequate notice of the Convention’s liability limitation in its passenger tickets. Second, they contend that the Montreal Agreement’s 10-point type requirement supplies the standard of adequate notice under Article 3. Because we reject the first point, we need not reach the second.
Article 3 of the Warsaw Convention provides:
“(1) For the transportation of passengers the carriers must deliver a passenger ticket which shall contain the following particulars:
“(a) The place and date of issue;
“(b) The place of departure and of destination;
“(c) The agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right, the alteration shall not have the effect of depriving the transportation of its international character;
“(d) The name and address of the carrier or carriers;
“(e) A statement that the transportation is subject to the rules relating to liability established by this convention.
“(2) The absence, irregularity, or loss of the passenger ticket shall not affect the existence or the validity of the contract of transportation, which shall none the less be subject to the rules of this convention. Nevertheless, if the carrier accepts a passenger without a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this convention which exclude or limit his liability.”
Although Article 3(1)(e) specifies that a passenger ticket shall contain “[a] statement that the transportation is subject to the rules relating to liability established by this convention,” nothing in Article 3 or elsewhere in the Convention imposes a sanction for failure to provide an “adequate” statement. The only sanction in Article 3 appears in the second clause of Article 3(2), which subjects a carrier to unlimited liability if it “accepts a passenger without a passenger ticket having been delivered.” Several courts have equated nondelivery of a ticket, for purposes of this provision, with the delivery of a ticket in a form that fails to provide adequate notice of the Warsaw limitation. See In re Air Crash Disaster Near New Orleans, Louisiana, on July 9, 1982, supra; In re Air Crash Disaster at Warsaw, Poland, on March 11, 1980, 705 F. 2d 85 (CA2), cert. denied sub nom. Polskie Linie Lotnicze v. Robles, 464 U. S. 845 (1983); Deutsche Lufthansa Aktiengesellschaft v. CAB, 156 U. S. App. D. C. 191, 196-197, 479 F. 2d 912, 917-918 (1973); Lisi v. Alitalia-Linee Aeree Italiane, S. p. A., 370 F. 2d 508 (CA2 1966), aff’d by equally divided Court, 390 U. S. 455 (1968); Egan v. Kollsman Instrument Corp., 21 N. Y. 2d 160, 234 N. E. 2d 199 (1967), cert. denied, 390 U. S. 1039 (1968). See also Warren v. Flying Tiger Line, Inc., 352 F. 2d 494 (CA9 1965) (conditioning liability limitation upon delivery of tickets in such manner as to afford passengers a reasonable opportunity to take measures to protect against liability limitation); Mertens v. Flying Tiger Line, Inc., 341 F. 2d 851 (CA2) (same), cert. denied, 382 U. S. 816 (1965). But see Ludecke v. Canadian Pacific Airlines, Ltd., 98 D. L. R. 3d 52, 57 (Can. 1979) (rejecting the view of the American cases).
We cannot accept this interpretation. All that the second sentence of Article 3(2) requires in order to avoid its sanction is the “delivery]” of “a passenger ticket.” Expanding this to mean “a passenger ticket in compliance with the requirements of this Convention” is rendered implausible by the first sentence of Article 3(2), which specifies that “[t]he... irregularity... of the passenger ticket shall not affect the existence or the validity of the contract of transportation, which shall none the less be subject to the rules of this convention.” It is clear from this (1) that an “irregularity” does not prevent a document from being a “passenger ticket”; and (2) that an “irregularity” in a passenger ticket does not eliminate the contractual damages limitation provided for by the Convention. “Irregularity” means the “[qjuality or state of not conforming to rule or law,” Webster’s Second International Dictionary (1950), and in the present context the word must surely refer to the rules established by the Convention, including the notice requirement. Thus, a delivered document does not fail to qualify as a “passenger ticket,” and does not cause forfeiture of the damages limitation, merely because it contains a defective notice. When Article 3(2), after making this much clear, continues (in the second sentence) “Nevertheless, if a carrier accepts a passenger without a passenger ticket having been delivered, etc.,” it can only be referring to the carrier’s failure to deliver any document whatever, or its delivery of a document whose shortcomings are so extensive that it cannot reasonably be described as a “ticket” (for example, a mistakenly delivered blank form, with no data filled in). Quite obviously, the use of 8-point type instead of 10-point type for the liability limitation notice is not a shortcoming of such magnitude; indeed, one might well select that as a polar example of what could not possibly prevent a document from being a ticket.
Besides being incompatible with the language of the Convention, the proposition that, for purposes of Article 3(2), delivering a defective ticket is equivalent to failure to deliver a ticket, produces absurd results. It may seem reasonable enough that a carrier “shall not be entitled to avail himself of those provisions of this convention which exclude or limit his liability” when the ticket defect consists precisely of a failure to give the passenger proper notice of those provisions. But there is no textual basis for limiting the “defective-ticket-is-no-ticket” principle to that particular defect. Thus, the liability limitation would also be eliminated if the carrier failed to comply, for example, with the requirement of Article 3(1 )(d) that the ticket contain the address of the carrier.
The conclusion that defective compliance with the notice provision does not eliminate the liability limitation is confirmed by comparing Article 3(2) with other provisions of the Convention. Article 3 is a part of Chapter II of the Convention, entitled “Transportation Documents.” Just as Section I of that Chapter (which includes Article 3) specifies what information must be included in passenger tickets, Sections II and III specify what information must be included in, respectively, baggage checks and air waybills for cargo. All three sections require, in identical terms, “[a] statement that the transportation is subject to the rules relating to liability established by this convention.” Articles 3(l)(eJ, 4(2)(h), 8(q). All three sections also provide, again in identical terms, that if the relevant document (ticket, baggage check, or air waybill) has not been delivered (or, in the case of air waybill, “made out”), the carrier “shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability.” Articles 3(2), 4(4), and 9. But, unlike Section I, Sections II and III also specifically impose the latter sanction for failure to include in the documents certain particulars, including (though not limited to) the notice of liability limitation. Sections II and III thus make doubly clear what the text of Article 3(2) already indicates: that delivery of a defective document is something quite different from failure to deliver a document. And given the parallel structures of these provisions it would be a flouting of the text to imply in Section I a sanction not only withheld there but explicitly granted elsewhere. When such an interpretation is allowed, the art of draftsmanship will have become obsolete.
Petitioners and the United States as amicus curiae seek to explain the variance between Section I and Sections II and III (as well as the clear text of Article 3) as a drafting error, and lead us through the labyrinth of the Convention’s drafting history in an effort to establish this point. It would be absurd, they urge, for defective notice to eliminate liability limits on baggage and air freight but not on personal injury and death. Perhaps not. It might have been thought, by the representatives from diverse countries who drafted the Convention in 1925 and 1929 (an era when even many States of this country had relatively low limits on wrongful-death recovery) that the $8,300 maximum liability established for personal injury or death was a “fair” recovery in any event, so that even if the defective notice caused the passenger to forgo the purchase of additional insurance, he or his heirs would be treated with rough equity in any event. Cf. C. McCormick, Law of Damages § 104 (1935) (“In about one-third of the states, a fixed limit upon the recovery under the Death Act is imposed in the statute. The usual limit is $10,000, but in some instances the maximum is $7,500 or $5,000”). Quite obviously, however, the limitation of liability for baggage and freight (about $16.50 per kilogram, see Article 22(2)) was not set with an eye to fair value (the very notion of a “fair” average value of goods per kilogram is absurd), but perhaps with an eye to fair level of liability in relation to profit on the carriage — so that the shipper of lost goods misled by the inadequate notice would not be compensated equitably. Another possible explanation for the difference in treatment is that the limitations on liability prescribed for baggage and freight are much more substantial and thus notice of them is much more important. They include not just a virtually nominal monetary limit, but also total exclusion of liability for “an error in piloting, in the handling of the aircraft, or in navigation.” Article 20. Or perhaps the difference in treatment can be traced to a belief that people were much more likely, if adequate notice was given, to purchase additional insurance on goods than on their own lives — not only because baggage and freight are lost a lot more frequently than passengers, but also because the Convention itself establishes, in effect, an insurance-purchasing counter at the airport for baggage and freight, providing that if the consignor makes “a special declaration of the value at delivery and has paid a supplementary sum if the case so requires,” the carrier will be liable for actual value up to the declared sum. Article 22(2); see also Articles 4(g), 8(to).
These estimations of what the drafters might have had in mind are of course speculation, but they suffice to establish that the result the text produces is not necessarily absurd, and hence cannot be dismissed as an obvious drafting error. We must thus be governed by the text — solemnly adopted by the governments of many separate nations — whatever conclusions might be drawn from the intricate drafting history that petitioners and the United States have brought to our attention. The latter may of course be consulted to elucidate a text that is ambiguous, see, e. g., Air France v. Saks, 470 U. S. 392 (1985). But where the text is clear, as it is here, we have no power to insert an amendment. As Justice Story wrote for the Court more than a century and a half ago:
“[T]o alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty. Neither can this Court supply a casus omissus in a treaty, any more than in a law. We are to find out the intention of the parties by just rules of interpretation applied to the subject matter; and having found that, our duty is to follow it as far as it goes, and to stop where that stops — whatever may be the imperfections or difficulties which it leaves behind.” The Amiable Isabella, 6 Wheat. 1, 71 (1821).
For the reasons given above, we agree with the opinion of the Supreme Court of Canada, see Ludecke v. Canadian Pacific Airlines, Ltd., 98 D. L. R. 3d 52 (1979), that the Warsaw Convention does not eliminate the limitation on damages for passenger injury or death as a sanction for failure to provide adequate notice of that limitation. Accordingly, we affirm the judgment of the District of Columbia Circuit.
So ordered.
The relevant portion of the Montreal Agreement provides:
“2. Each carrier shall, at the time of delivery of the ticket, furnish to each passenger whose transportation is governed by the Convention... the following notice, which shall be printed in type at least as large as 10 point and in ink contrasting with the stock on (i) each ticket; (ii) a piece of paper either placed in the ticket envelope with the ticket or attached to the ticket; or (iii) on the ticket envelope:
“ADVICE TO INTERNATIONAL PASSENGER ON LIMITATION OF LIABILITY
“Passengers on a journey involving an ultimate destination or a stop in a country other than the country of origin are advised that the provisions of a treaty known as the Warsaw Convention may be applicable to the entire journey, including any portion entirely within the country of origin or destination. For such passengers on a journey to, from, or with an agreed stopping place in the United States of America, the Convention and special contracts of carriage embodied in applicable tariffs provide that the liability of certain (name the carrier) and certain other[*] carriers parties to such special contracts for death of or personal injury to passengers is limited in most cases to proven damages not to exceed US $75,000 per passenger, and that this liability up to such limit shall not depend on negligence on the part of the carrier. For such passengers travelling by a carrier not a party to such special contracts or on a journey not to, from, or having an agreed stopping place in the United States of America, liability of the carrier for death or personal injury to passengers is limited in most cases to approximately US $8,290 or US $16,580.
“The names of Carriers parties to such special contracts are available at all ticket offices of such carriers and may be examined on request.
“Additional protection can usually be obtained by purchasing insurance from a private company. Such insurance is not affected by any limitation of the carrier’s liability under the Warsaw Convention or such special contracts of carriage. For further information please consult your airline or insurance company representative.
“[*] Either alternative may be used.” Aeronautical Statutes and Related Materials 515 (compiled by Office of General Counsel, CAB, 1974).
For a similar reason, we need not discuss Department of Transportation (formerly CAB) Economic Regulation Part 221, 14 CFR §221.175(a) (1988), which was originally promulgated in 1963, before the Montreal Agreement, and which contains a similar requirement of 10-point type. This imports no sanctions of its own except a civil penalty, see 49 U. S. C. App. § 1471. Thus, even if (per impossibile) the Executive Branch could unilaterally prescribe what adequate notice under an international treaty consists of, the sanction of invalidating the damages limitations would still be lacking.
Justice Beennan accuses us of being “disingenuous” in saying that this is the only possible reading of Article 3. In the single paragraph supporting this accusation, he offers two arguments to show that Article 3 is “surely susceptible,” post, at 137, of another interpretation. First, he thinks it “not at all unreasonable to read the term ‘passenger ticket,’ when used... in Article 3(2)” to mean, not what it meant in Article 3(1), but rather to be a “shorthand for [the] longer phrase” consisting of all the requirements that Article 3(1) says a passenger ticket must contain. It seems to us that this suggested reading is unreasonable — not only because no sensible draftsman would use such strange “shorthand” instead of referring, in Article 3(2), to “such a passenger ticket” rather than simply “passenger ticket,” but also because the result produced by the suggested reading is nonsensical. The effect of the concurrence’s exegesis can be assessed by substituting for the phrase “the passenger ticket” in Article 3(2) the phrase “a regular passenger ticket” — by which we mean (as does the concurrence) a ticket in full compliance with Article 3(1). The first sentence of Article 3(2) then reads, in relevant part: “The... irregularity... of a regular passenger ticket shall not affect the existence or the validity of the contract of transportation.” The only way out of this absurdity is to posit that by “irregularity” Article 3(2) means something other than failure to comply with all the requirements of Article 3(1) — but there is no plausible “something other.”
Justice Brennan’s second argument is that the first sentence of Article 3(2) “quite clearly,” post, at 137 (emphasis in original), does not have the meaning we have described. As he reads that sentence, when it says that an irregular ticket “shall none the less be subject to the rules of this convention” it means to include among those “rules” the rule of the second sentence, that (as he interprets it) if a “regular passenger ticket” is not delivered the rule limiting liability does not apply. Though this is put forward as a separate argument, it obviously assumes the correctness of the first one, since if “passenger ticket” in the second sentence does not mean a “regular passenger ticket” the “rule” of that second sentence does not apply to the delivery of an “irregular” ticket, as opposed to the delivery of no ticket at all. Quite apart from that flaw, however, it is impossible to read the second sentence as setting forth a “rule” that is included among the “rules” referred to in the first sentence, because that second sentence begins with the word “Nevertheless,” It sets forth an exception to the operation of the first sentence — not a specification of something already included within it. The latter would be conveyed, not by a new sentence beginning “Nevertheless,” but by a new clause beginning “including the rule that.” As written, the second sentence plainly conveys the meaning that if the reason for the “absence” of a passenger ticket (covered by the first sentence) is that a passenger ticket was never delivered, the carrier shall “nevertheless” — despite the first sentence — be unable to avail himself of the rules excluding or limiting liability.
We may note that the alternative interpretation the concurrence believes it sees in the text — which would render the omission of any single particular listed in Article 3(1) a basis for imposing the sanction of the second sentence of Article 3(2) — is evidently not an interpretation that the concurrence itself is prepared to adopt, since it finds that to have been quite plainly rejected by the drafters. See post, at 146-147. Ultimately, then, even on its own terms the concurrence does not use the drafting history to resolve an ambiguity but rather to depart from any possible reading of the Treaty.
The relevant provisions of Sections II and III are as follows:
“SECTION II. BAGGAGE CHECK
“Article U
“(3) The baggage check shall contain the following particulars:
“(a) The place and date of issue;
“(b) The place of departure and of destination;
‘Yc) The name and address of the carrier or carriers;
“(d) The number of the passenger ticket;
“(e) A statement that delivery of the baggage will be made to the bearer of the baggage check;
“(f) The number and weight of the packages;
“(g) The amount of the value declared in accordance with article 22(2);
“(h) A statement that the transportation is subject to the rules relating to liability established by this convention.
“(4) The absence, irregularity, or loss of the baggage check shall not affect the existence or the validity of the contract of transportation which shall none the less be subject to the rules of this convention. Nevertheless, if the carrier accepts baggage without a baggage cheek having been delivered, or if the baggage check does not contain the particulars set out at (d), (f), and (h) above, the carrier shall not be entitled to avail himself of those provisions of the convention which exclude or limit his liability.
“SECTION III. AIR WAYBILL
“Article 8
“The air waybill shall contain the following particulars:
“(a) The place and date of its execution;
“(b) The place
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
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058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
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081. Nevada U.S. District Court
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084. New Mexico U.S. District Court
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086. New York Northern U.S. District Court
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088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
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092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
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099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
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103. Puerto Rico U.S. District Court
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105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
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110. Texas Eastern U.S. District Court
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112. Texas Southern U.S. District Court
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114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
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124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
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128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
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:
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songer_const1
|
106
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America, Plaintiff-Appellee, v. James A. WHITE, Defendant-Appellant.
No. 72-1039.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 18, 1972.
Decided Nov. 20, 1972.
Chauncey Eskridge and Aldus S. Mitchell, Judith Smith Leland, Chicago, 111., for defendant-appellant.
James R. Thompson, U. S. Atty., and William T. Huyck and Arnold Kanter, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.
Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and PELL, Circuit Judge.
CASTLE, Senior Circuit Judge.
The defendant-appellant, James A. White, prosecutes this appeal from the judgment of conviction and sentence entered by the District Court following his bench trial on an indictment charging him with selling heroin without a written order from the Secretary of the Treasury in violation of 26 U.S.C. § 4705 (1970). The court sentenced him to ten years imprisonment to run consecutively to a sentence of twenty-five years imposed in 1966, also for the sale of narcotics.
Defendant sets forth three arguments for the reversal of his conviction: (1) the evidence presented at trial was insufficient to prove his guilt beyond a reasonable doubt, (2) the District Court should have dismissed the indictment under the sixth amendment of the United States Constitution and rule 48(b) of the Federal Rules of Criminal Procedure because the fifteen month delay between the alleged crime and the indictment prejudiced his defense, and (3) the knowledge of his previous conviction possessed by the trial judge deprived him of trial by an impartial judge. We find that each of these contentions lacks merit.
1) Sufficiency of the Evidence.
Defendant attacks the sufficiency of the evidence upon which the District Court found him guilty, concentrating on the criminal background of Charles Galloway, a key government witness, and certain alleged inconsistencies in his testimony. Arguing that proof beyond a reasonable doubt is mandated by the due process clause of the fifth amendment, he urges this court to find that the government has not fulfilled this burden.
In resolving an attack upon the sufficiency of the evidence which has resulted in a defendant’s conviction, a reviewing court must view such evidence, together with all reasonable inferences which may be drawn therefrom, in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Tubbs, 461 F.2d 43, 45 (7th Cir. 1972); United States v. Bukowski, 435 F.2d 1094, 1104 (7th Cir. 1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971). We find that the record as a whole contains sufficient evidence upon which the trier of fact could find the defendant guilty as charged.
The first government witness was Agent John Peoples of the Federal Bureau of Narcotics and Dangerous Drugs. His testimony may be summarized as follows. On the night of March 18, 1970, while he and his partner Howard Hayes were patrolling in their government vehicle on the 7200 block of Stony Island Avenue in Chicago, they observed defendant James White being picked up by a green and white Cadillac driven by Mrs. Cornelia (“Pee Wee”) Rees and containing a passenger named Charles Galloway. Peoples and Hayes followed the Cadillac and its three occupants to a tavern at 55th and Prairie where White purchased what appeared to be a bottle of liquor. The car then proceeded to the vicinity of 53rd and Prairie where White once again left Rees and Galloway. Peoples dropped Agent Hayes off to continue surveillance of White on foot, and followed the Cadillac while it circled the block and eventually parked near an alley. Rees drove over to pick up White when he came out to the street about 20 minutes later, and then proceeded eastbound for several blocks before she stopped to allow White to take over the driving. White drove to 63rd and Martin Luther King Drive, where Galloway left the car, looked in both directions, and entered a kosher sandwich restaurant. At this point both agents followed Galloway and arrested him when he tried to run out of the restaurant. After taking Galloway to the restroom and searching him, they found two packages of white powder, one containing nine tinfoil packages and the other loose powder. The agents then took Galloway to the Bureau of Narcotics and Dangerous Drugs and conducted a field test on the contents of the two packages, getting positive reactions from both which indicated the presence of an opium derivative.
The next government witness, Charles Galloway, admitted being convicted in 1953 and 1956 for the possession of heroin, but said that he had not been convicted of anything since 1965, when he obtained a conditional release from the 15 year sentence imposed on him in 1956. He stated that on the night of March 18, 1970, White telephoned him and asked him if he wanted to “cop” (i. e. purchase some narcotics), since White was going out of town. The two agreed on a price of $300, and a half hour later White’s Cadillac, driven by “Pee Wee” Rees, came by to pick Galloway up. The two then met White at the 7200 block of Stony Island and drove him to a liquor store, and then dropped him off at the corner of 53rd and Prairie. As Rees and Galloway circled the block, Galloway saw White talking with a man in a max-icoat whom he later learned was Hayes. Eventually White came out to the street, and, after he had gotten into the car, he handed a cellophane-wrapped package to Pee Wee, who then handed it to Galloway. Galloway had previously given the $300 to Pee Wee in payment for the narcotics he had ordered over the phone from White. White then told Rees that he wanted to drive because he believed that he could “shake them,” and, after driving the car to 63rd and King Drive, he told Galloway to get out and take a cab. Galloway left the Cadillac, went into a kosher place, but tried to leave when he saw the federal agents enter. They restrained him, asked him what he had on him, and called him a liar and took him to the restroom for a search when he denied having anything. The search yielded two cellophane-wrapped packages — one which Galloway admitted under questioning that he had gotten from White through Rees and had not opened yet, and one which he had in his possession before he got into White’s car earlier that evening. Galloway admitted that he had not given White an order furnished by the Secretary of the Treasury for the narcotics. He denied being promised anything for his testimony, although he said there were no state or federal charges made against him arising out of his arrest for heroin possession on the night of March 18, 1970.
Howard Hayes, special agent of the Bureau of Narcotics and Dangerous Drugs and the partner of Agent Peoples, corroborated Peoples’ testimony about observing White get into the Cadillac, enter the liquor store on 55th and Prairie, and leave Rees and Galloway in the car at 53rd and Prairie. He testified that when he got out of his vehicle to observe White on foot, White walked back to him and asked him “what district he was working in.” After Hayes replied that he wasn’t a policeman and that he was awaiting someone, White left and entered a building. Hayes then rejoined Peoples in the government car, where they maintained surveillance of Rees and Galloway in the Cadillac. Hayes also recalled seeing the Cadillac pick up White, observing the change of drivers, and arresting and searching Galloway at the restaurant after he had tried to rush out the door and had denied getting out of any car to go into the restaurant.
Testifying on his own behalf, defendant denied that he had called Galloway on the night of March 18, 1970 and had offered to sell narcotics to him. He stated that he could not remember being on either Stony Island Avenue or Prairie Street on March 18, 1970, but denied that he had any conversation with Agent Hayes or had handed any narcotics to Mrs. Rees at that time. He testified that he had been living with Mrs. Rees, and had been convicted in the past for the sale of narcotics, a conviction which the Court of Appeals for the Seventh Circuit reversed and which the Supreme Court of the United States had reinstated the day before his arrest for the instant crime.
Defendant argues on this appeal that the testimony of Charles Galloway, which is the sole proof that the defendant actually sold narcotics on March 18, 1970, is insufficient to prove guilt beyond a reasonable doubt. He contends that .because Galloway was a convicted felon with an arguable incentive to modify his testimony and because the evidence amounted to the word of one felon against another, the trial judge should have found that the presumption of a defendant’s innocence raised a reasonable doubt as to his guilt. He also argues that Galloway’s testimony is unbelievable because of the unlikelihood that the package of narcotics could have been handed around the moving Cadillac the way Galloway said it was, and because the second package of narcotics found on Galloway by the agents was not produced at trial or adequately accounted for.
Defendant’s argument amounts to a demand that this court reverse the credibility determinations of the trier of fact. But “it is not the province of the Court of Appeals to retry the case, weigh the evidence or determine the credibility of witnesses. . . . ” United States v. Miles, 401 F.2d 65, 67 (7th Cir. 1968). And “[q]uestions of credibility have no bearing on the insuffiency of the evidence as a whole . and are not for the reviewing court’s decision.” United States v. Karigiannis, 430 F.2d 148, 151 (7th Cir.), cert. denied, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141 (1970). The District Court was well apprised of the criminal records of both White and Galloway, and made its credibility determinations in light of this impeachment and the cross examination by defendant’s counsel. We also recognize the problem of obtaining witnesses with unblemished backgrounds in narcotics prosecutions and the necessity of accepting testimony of informers and narcotics users, with reasonable skepticism and scrutiny of what they say. See, Hoffa v. United States, 385 U.S. 293, 311, 87 S.Ct. 408, 17 L.Ed.2d 374 (1967); United States v. Adams, 454 F.2d 1357, 1359-1360 (7th Cir. 1972). Moreover, as the District Court indicated in the colloquy following its finding of guilt, White’s denials that he had any conversation with Galloway or had seen Agent Hayes on March 18, 1970 were against the weight of the testimony of not only Galloway, but also Agents Peoples and Hayes. Certainly the trier of fact, faced with this contradiction of the defendant’s testimony, had doubts about his veracity elsewhere. We therefore hold that there is sufficient evidence in the record to sustain a finding of guilt.
2) The Delay in Bringing the Indictment
Defendant argues that his rights under the sixth amendment of the Constitution of the United States and rule 48(b) of the Federal Rules of Criminal Procedure were violated by the 15 month delay between the time of the alleged narcotics sale on March 18, 1970 and the indictment on June 24, 1971. He contends specifically that his defense was prejudiced by the death of Cornelia (“Pee Wee”) Rees on April 13, 1971, one week after he was arrested, because she could have materially assisted him in his defense by testifying concerning conversations among him, Galloway, and herself while riding together on March 18, 1970. Although defendant raised this issue in his motion to dismiss the indictment prior to trial, he did not request an evidentiary hearing to determine if actual prejudice resulted, but relied solely on an unsupported conclusion that the delay and following unavailability of Mrs. Rees was in itself sufficient to establish a violation of his constitutional rights. See, United States v. Pritchard, 458 F.2d 1036, 1038 (7th Cir. 1972).
Initially we note that defendant’s reliance on the sixth amendment and rule 48(b) is foreclosed by the decision of the United States Supreme Court in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). There the Court declared that rule 48(b) is “clearly limited to post-arrest situations,” Id. at 319, 92 S.Ct. at 463, and that the protection of the sixth amendment does not “extend to the period prior to arrest,” Id. at 321, 92 S.Ct. at 463, even though the passage of time might either cause evidence to be lost or deprive the defendant of witnesses. The Court did hold, however, that the due process clause of the fifth amendment would protect defendants who could show more than potential prejudice in the pre-arrest period, and agreed with the government’s concession that the due process clause would bar a .prosecution where a defendant demonstrated that the pre-indictment delay caused substantial prejudice to his right to a fair trial and that the delay was an intentional device of the government to gain a tactical advantage over him. Id. at 324, 92 S.Ct. at 455. But the Court refused to determine “when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution” although it did recognize that not every delay-caused detriment to a defendant’s ease should abort criminal proceedings. Id. at 324-325, 92 S.Ct. at 465. We need not consider the government’s contention in this case that, in order to gain a dismissal of an indictment, a defendant must demonstrate that the government has caused a delay in arresting or indicting him for its own advantage, for we find that defendant White has not shown actual prejudice caused by Mrs. Rees’ death during the time prior to his indictment to warrant dismissal of the charges against him.
This circuit has long held that, in order to obtain dismissal of an indictment because the delay in bringing it violated his right to due process of law, a defendant must allege and demonstrate actual prejudice to his defense caused by the delay. United States v. Hauff, 395 F.2d 555, 557 (7th Cir.), cert. denied, 393 U.S. 843, 89 S.Ct. 124, 21 L.Ed.2d 113 (1968); United States v. Deloney, 389 F.2d 324, 325-326 (7th Cir.), cert. denied, 391 U.S. 904, 88 S.Ct. 1652, 20 L.Ed.2d 417 (1968). Where witnesses have died or become unavailable prior to trial and the trial court has held no hearing on the prejudice resulting to the defendant, appellate courts have read the record to find whether these witnesses could have materially helped the defendant’s case. United States v. Aberson, 419 F.2d 820 (2d Cir.), cert. denied, 397 U.S. 1066, 90 S.Ct. 1497, 25 L.Ed.2d 687 (1970); United States v. Haggerty, 419 F.2d 1003 (7th Cir. 1969), cert. denied, 397 U.S. 1064, 90 S.Ct. 1502, 25 L.Ed.2d 686 (1970); United States v. Lee, 413 F.2d 910 (7th Cir. 1969), cert. denied, 396 U.S. 1022, 90 S.Ct. 595, 24 L.Ed.2d 515 (1970).
We cannot say that the testimony of Mrs. Cornelia Rees would have so materially helped the defendant’s case that her death before the indictment was returned prejudiced him. As was previously noted, defendant White denied that he had even been with Mrs. Rees or Galloway on the night of March 18, 1970. If Mrs. Rees corroborated this claim, her testimony would still be contradicted by Galloway and by the eyewitness accounts of the two federal agents. If she would testify to the conversations occurring among Galloway, White, and herself on that night, as defendant’s motion to dismiss the indictment alleged, she would be contradicting rather than corroborating White, who testified that he wasn’t even in the car. We find that, in the context of White’s own testimony, the loss of the testimony that Mrs. Rees allegedly could have given did not prejudice his defense so as to infringe upon his right to due process of law.
3) Denial of the Right to a Fair Trial by an Impartial Judge.
Defendant complains of the fact that the trial judge knew of his 1966 conviction for selling narcotics and his subsequent release by the reversal of this conviction by an opinion of the Court of Appeals which the Supreme Court in turn reversed. He argues that this knowledge deprived him of a fair trial by a judge who had not prejudged the case, and cites the following remark as evidence of the district judge’s predisposition :
The point is, Mr. White, if the Court of Appeals had properly interpreted the law you wouldn’t have been out on the street on March 18, 1970 to do this, and it is unfortunate that you have had this opportunity to commit another crime due to the error of the Court of Appeals in reversing your first conviction. .
The record shows, however, that the defendant’s own counsel elicited the facts mentioned by the trial judge,on direct ' examination of his client, and that the trial judge made his remarks only after he found the defendant guilty and only after the defendant had requested a lighter sentence than the judge had actually imposed. We find that his remarks were an explanation of the sentence he imposed rather than the rationale for his finding of guilt, and that the record fails to support the defendant’s contention that the trial judge had predetermined his guilt before the evidence was fully presented.
For the above reasons, the judgment order of conviction and sentence entered by the District Court is affirmed.
Affirmed.
. This section provided, in pertinent part:
(a) It shall be unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form, to be issued in blank for that purpose by the Secretary or his delegate.
Section 4705 was repealed by Pub.L. 91-513, title III, § 1101(b)(3)(A), Oct. 27, 1970, 84 Stat. 1292, effective May 1, 1971, which contained a savings provision specifying that any prosecutions for any violation of law occurring prior to the effective date of repeal would not be affected or abated by reason thereof. The provisions of § 4705 have been generally incorporated into 21 U.S.C. § 828 (1970).
. The penalties for violation of 26 U.S.C. § 4705 were prescribed in 26 U.S.C. § 7237 (1964), which stated in pertinent part:
(b) Whoever commits an offense, or conspires to commit an offense, described in section 4705(a) or section 4742(a) shall be imprisoned not less than 5 nor more than 20 years and, in addition, may be fined not more than $20,000. For a second or subsequent offense, the offender shall be imprisoned not less than 10 or more than 40 years and, in addition, may be fined not more than $20,000. .
As a second offender, defendant received the minimum sentence under § 7237. This section was also repealed by Pub.L. 91-513, subject to a savings provision.
. In the colloquy after the defendant had been found guilty, he in effect changed his testimony by absolutely denying that lie hail been at these places or hail been with Galloway.
. Perhaps the availability of Mrs. Rees at trial would have enabled defendant White to tell another story at trial which admitted his presence in the Cadillac on March IS, 1970, but then Iris claim of prejudice on appeal would amount to an admission of perjury in his actual testimony in the court below.
. Sec, United States v. White, 405 F.2d 838 (7th Cir. 1969), rev’d, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971).
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_indict
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the indictment was defective?" 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".
FEUCHT et al. v. KELLER.
No. 7144.
United States Court of Appeals for the District of Columbia.
Decided March 27, 1939.
Charles V. Imlay and John R. Reed, both of Washington, D. C., for appellants.
Charles L. Frailey, Joseph FitzGerald, Jr., James A. Purcell, and Louis J. FitzGerald, all of Washington, D. C., for appellee.
Before STEPHENS, EDGERTON, and VINSON, Associate Justices.
EDGERTON, Associate Justice.
Plaintiffs, as liquidating trustees of the Fletcher American National Bank of Indianapolis, sued Keller as guarantor of a collateral trust note for $12,000 made by White’s Restaurant Company, of Indianapolis, to the order of the bank. The District Court directed a verdict for the de-fondant on the ground that the suit was barred by the statute of limitations, and plaintiffs appeal.
In May, 1928, the restaurant owed the bank $12,000, represented by three notes endorsed by Keller. The bank and other creditors of the restaurant agreed to refund its obligations, and on October 11, 1928, a collateral trust agreement or indenture of trust, dated August 1, 1928, was executed by the bank as trustee and by the restaurant. The restaurant mortgaged its property and assigned its leases to the bank as trustee, and executed collateral trust notes secured by the trust agreement.
The trust agreement provided that in case of 30 days’ default in any of certain periodic payments which the restaurant promised to make to the trustee for the benefit of the noteholders, the trustee might take possession of the mortgaged property, or sell it, and that “in the event of any such sale or proceeding, the proceeds therefrom shall be applied to the pro rata payment of the remaining unpaid principal and interest of the outstanding notes after first deducting all sums due the Trustee, including the Trustee’s expense and cost of sale and all remainder, if any, shall be payable to the Company. In the event such sale or proceeding shall not yield proceeds sufficient to pay all said notes, interest and expenses in full, then the Company agrees to pay the deficit to the Trustee on demand.” The collateral trust notes were made payable to their registered holders “on or before January 1st, 1934.”
In October, 1928, the bank authenticated the notes as trustee and forwarded them to the creditors. The bank was a creditor as well as trustee. Its trust department had officers and records distinct from those of its credit department, and the bank as trustee handed to the bank as creditor a collateral trust note for $12,000. The credit department did not return a receipt to the trust department until the bank had demanded and obtained from Keller the separate guaranty now in suit. The other creditors of the restaurant got no such guaranty.
By the instrument in suit, defendant guaranteed to the extent of $12,000 all notes, etc., “that may have been or shall be discounted” by the bank for the restaurant. He agreed that if “any such debt is not paid at maturity * * * suit may be brought directly and immediately against the undersigned without first exhausting the person or persons primarily liable therefor.”
Because of unsuccessful business and a receivership suit, the restaurant on July 26, 1929, requested the bank as- trustee to take over its assets in accordance with the trust agreement. The trustee did so. On December 13, 1929, it notified the restaurant that it elected to sell the assets on January 15, 1930. The bank’s president forwarded the three original overdue notes to its attorney, for enforcement of defendant’s guaranty, under the erroneous impression that they constituted the obligation to which the guaranty referred. On December 14, 1929, the bank’s attorney made demand on defendant that he make good on his “surety-ship agreement in the amount of $12,000.00 covering the promissory notes” and stated •to him that: “As you undoubtedly know, the payments due under the trust agreement are all in default, and, therefore, the entire debt is now due and your suretyship has become an obligation calling for immediate payment.” In January, 1930, the bank sold the restaurant’s assets pursuant to the trust agreement and to the notice given in December, 1929. Nothing was realized for the restaurant’s creditors, and the $12,000 due the bank as a creditor is still unpaid. The bank as trustee never made demand on the restaurant for payment of the “deficit” (100%) remaining due on the notes after the sale, because it knew the restaurant had no property and the demand would therefore be an idle gesture.
The present suit on Keller’s guaranty was brought on August 3, 1935. The principal question is whether the right to maintain the action against Keller accrued, for the purposes of the three-year statute of limitations, before or after August 3, 1932. This depends on the question when the restaurant’s debt to the bank matured, within the meaning of defendant’s guaranty that he would be responsible “in the event that any such debt is not paid at maturity.”
Plaintiffs urge that the restaurant’s debt did not mature at the time of the fruitless sale of its assets in 1930, because the bank as trustee failed to make a demand on the restaurant after the sale. We cannot accept this contention. A default had occurred of such a sort that the trustee was authorized to, and did, sell the entire property of the debtor. The trustee was thereupon authorized and required by the trust agreement to apply any proceeds! after deduction of sums due it as trustee, to the “payment of the remaining unpaid principal and interest of the outstanding notes.” When a debtor’s property has been sold, in accordance with his contract, to satisfy his debt, ,and the contract provides that the debt shall be paid out of the proceeds of the sale and does not provide that the payment shall be postponed to any later date or event, it is a contradiction in terms to say that the debt has not yet matured. We think the restaurant’s debt, which defendant had guaranteed, must be regarded as having reached “maturity” not later than the date of the sale which was duly conducted for the purpose of discharging it.
The. restaurant’s promise, at the end of the quoted paragraph of the trust agreement, to “pay the deficit to the Trustee on demand,” casts no doubt on the conclusion that the entire debt became due at the time of the sale; on the contrary, it reenforces that conclusion. In general, one agrees to pay “on demand” obligations that are presently due, not those which are to become due in the future. The promise of the restaurant that, after the sale of the assets, it would pay the notes on demand, obviously made the notes demand obligations from the date of the sale. “A promissory note payable on demand is a present debt, payable without any demand, and the statute begins to run from its date.” Kenyon v. Youngman, 59 App.D.C. 300, 40 F.2d 812, 813.
It is true that if a note or the accompanying deed of trust provides that default in interest shall accelerate maturity “at the option” of the holder the note does not mature, so as to start the statute of limitations, on mere default; the holder must first exercise his option. Moline Plow Company v. Webb, 141 U.S. 616, 625, 12 S.Ct. 100, 35 L.Ed. 879; Wheeler & Wilson Mfg. Co. v. Howard, C.C., 28 F. 741. Cf. 34 A.L.R. 898. But that is not this case. Even when the contract states in absolute terms that the instrument becomes due upon default, it has sometimes been held that the period of limitations does'not begin to run upon default “without some affirmative action” by the creditor, “such as a notification to the debtor, by a suit or otherwise, that on account of the default he elects to treat the entire indebtedness as due. Attention has * * * been called to the fact that to hold such provisions as the one in question to be self-operative would be to confer on the debtor the right to take advantage of his own wrong; that is, to mature an indebtedness which was intended as an investment for a given period, in advance of the time specified on the face of his note or bond, by failing to keep his engagements.” That, again, is not this case; for here the trustee, although it made no idle demand upon the penniless restaurant, sold the entire property in order to collect the entire debt, which indicated as plainly as anything could its election to “treat the entire indebtedness as due.”
Cafritz Construction Company v. Mudrick, 61 App.D.C. 189, 59 F.2d 864, which both parties cite, throws no light upon the point. In that case the deed of trust provided for acceleration of the notes at the election of the holder; the holder elected to sue, and recovered. The other cases on which the bank relies are also distinguishable. In Union Trust Co. v. Detroit Motor Co., 117 Mich. 631, 76 N.W. 112, 113, the form of the guaranty was that the bonds “should be paid in accordance with the terms thereof;” the defendants guaranteed “the prompt payment of the same, both principal and interest, at the time and times specified in the bonds, and in each of them.” On a default in interest the trustee declared the principal due, and started foreclosure proceedings, in accordance with the terms of the trust agreement. The emphatic references to the “times specified in the bonds” and to “the terms thereof” were held to defeat a claim that the liability of the guarantors was accelerated. There is no similar language here. In Dougan v. Evansville & T. H. R. Co., 15 App.Div. 483, 44 N.Y.S. 503, 507, 508, a provision in a mortgage making the bond, on a default in interest, immediately collectible out of the mortgaged premises, with no provision making the bond collectible against the maker personally, was held not to mature the obligation of one who had guaranteed the bond “according to the tenor and effect thereof.” In the present case the contract makes the note collectible against the maker personally. In Morton v. Rock Bottom Coal Co., 91 W.Va. 169, 112 S.E. 396, it was held that the acceleration provision there construed did not give an individual bondholder a right of action against the maker of the bond. In the present case, the question who could have sued the restaurant is not involved; it is enough that the restaurant’s debt, however collectible, had matured.
If the bank’s contention, that demand by the trustee was necessary in order to accelerate the maturity of the restaurant’s debt and start the guarantor’s liability, could be sustained at all, it could only be giving a supposed literal meaning to “maturity,” and by disregarding the evident intention of the parties that defendant should become presently liable when the restaurant became presently liable. But a strict construction of the defendant’s guaranty, even if conceivably it might aid the plaintiffs so far as “maturity” is concerned, would defeat them on a different ground. The guaranty is in terms limited to notes “discounted” by the bank. The collateral trust note to which the parties intended, and the plaintiffs seek, to attach the guaranty, was never discounted. The plaintiffs’ case is therefore in this dilemma. Either the guaranty is to be construed in accordance with the evident intention of the parties, in which case it became a matured obligation in 1930 and the claim upon it is barred by the statute of limitations; or it is to be construed narrowly and literally, in which case it has never covered the note which plaintiffs hold.
If it were doubtful whether the guaranty matured in 1930, the construction which the parties placed upon the matter at the time would be entitled to great weight. Topliff v. Topliff, 122 U.S. 121, 7 S.Ct. 1057, 30 L.Ed. 1110; Thronateeska Pecan Co. v. Matthews, 5 Cir., 277 F. 361. The bank’s officers thought it had matured then, and instructed an attorney to enforce it; the attorney told defendant it had matured; and defendant did not question it. We need not consider whether, if the language of the guaranty had made a demand by the trustee on the restaurant necessary under normal circumstances, the obvious futility of demand under the particular circumstances would have dispensed with the requirement.
As the suit is barred by the statute of limitations, we need not inquire whether the guaranty was supported by consideration.
Affirmed.
D.C.Code, Tit. 24, § 341.
The cases are in conflict. 34 A.L.R. 901, 903.
Keene Five Cent Savings Bank v. Reid, 8 Cir., 123 F. 221, 224, certiorari denied 1.01 U.S. 567, 24 S.Ct. 841, 48 L.Ed. 305.
Question: Did the court rule that the indictment was defective?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_casetyp1_7-2
|
D
|
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".
POWELL et ux. v. WUMKES.
No. 10610.
Circuit Court of Appeals, Ninth Circuit.
April 14, 1944.
LI. R. Griffin, of San Bernardino, Cal., for appellant.
Nichols, Cooper & Hickson, of Pomona, Cal., and C. P. Von Herzen, of Los Angeles, Cal., for appellee.
Before MATHEWS, STEPHENS, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
In 1940 the appellants (whom we shall call the debtors) filed their petition for conciliation or an extension pursuant to § 75 of the Bankruptcy Act, 11 U.S.C.A. § 203, relating to agricultural compositions. Being unable to secure acceptance of their extension proposal, they amended their petition and were adjudicated bankrupts under subsection (s). The matter was then referred to the conciliation commissioner (acting as referee) for further proceedings, and in June of 1941 the commissioner made the usual order continuing the debtors in possession for a period of three years and fixing the rental to be paid.
The debtors had two parcels of real estate, the first of which is not involved here. The second parcel, containing about six acres planted to citrus fruits, was encumbered by a purchase money mortgage of $12,000 in favor of appellee Wumkes. This parcel had been appraised in the proceeding at $5,200. In December of 1942 the debtors petitioned for a reappraisal or a redetermination of the value of the property in line with the provisions of § 75, sub. s(3). A date for hearing was set, but appellee had removed from his former residence and the mailed notice did not reach him. The hearing was several times adjourned, being set finally for March 3, 1943. At that time appellee, who had meanwhile received notice of the proceeding, appeared with his attorney, but the attorney was permitted at his own request to withdraw before any testimony had been offered, leaving appellee without representation. A number of witnesses were examined, all on behalf of the debtors, and the commissioner later made findings in which he fixed the value of the parcel at $3,900. Appellee, through attorneys whom he had meanwhile employed, petitioned the commissioner for a rehearing, but his petition was denied. Lie then petitioned the District Judge for a review of the valuation order and of the commissioner’s order denying a rehearing.
Along with his petition for review appellee presented the affidavits of several persons, each of whom was apparently competent to testify as to values and all of whom were familiar with the property. One of the affiants stated the value of the parcel to be $8,500, another fixed its value at $8,000, and offers to purchase the land were submitted at figures substantially in excess of the value as determined by the commissioner. Appellee submitted also his own affidavit, claiming the value to be not less than $10,000. We may here add that in his petitions for rehearing and for review appellee claimed that because of the withdrawal of his attorney he had not been afforded an opportunity of presenting appropriate evidence before the commissioner in respect of the true value of the encumbered parcel; and further, that he understood his attorney had arranged for the calling of witnesses on his behalf, wheieas this had not been done.
Upon consideration of the petition and affidavits, together with the certificates on review, the District Court reversed the order denying a rehearing, set aside the commissioner’s valuation order, and referred the matter hack for a further hearing as to value. From this order the debtors appeal.
Order 47 of the General Orders in Bankruptcy, 11 U.S.C.A. following § 53, is pertinent. It provides: “Unless otherwise directed in the order of reference the report of a referee or of a special master shall set forth his findings of fact and conclusions of law, and the judge shall accept his findings of fact unless clearly erroneous. The judge after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.”
Order 47 is not too happily phrased, but considering its provisions in their entirety it would seem that they do not shackle the judge to the extent that an appellate court is circumscribed by Rule 52(a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The judge has large supervisory powers. Where he confines himself to a review of the record made before the referee he is not permitted to try factual questions de novo, that is to say, he is not at liberty to reject the findings of the referee merely because he disagrees with the latter as to the credibility of witnesses or the weight to be accorded conflicting evidence. But unlike an appellate court the judge is empowered, in appropriate circumstances, to receive further evidence; and on the basis of the enlarged record he may modify or make findings, or may recommit the matter for further hearing by the referee.
The Court of Appeals of the Eighth Circuit, in a series of cases, has had occasion to consider Order 47 in its relation to proceedings for the redetermination of value under § 75, sub. s(3), and has announced views substantially the same as those stated above. Equitable Life Assur. Soc. of United States v. Carmody, 131 F.2d 318; Rait v. Federal Land Bank, 135 F.2d 447; Dunsdon v. Federal Land Bank, 137 F.2d 84; Kauk v. Anderson, 137 F.2d 331; Rhodes v. Federal Land Bank, 8 Cir., 140 F.2d 612, 613. In the most recent of these decisions, Rhodes v. Federal Land Bank, the previous holdings are summarized in a footnote, where it is said that the judge has the right, “if the record suggests that a gross miscarriage of justice probably had occurred, to test the situation by receiving additional evidence, and, in the new legal situation thus created, to make such disposition of the matter as the entire evidence before him appears soundly to demand.”
The showing made on review here might well convince a judge that a rehearing should in fairness be accorded and appellee given an opportunity to present evidence. The referee may reach the same conclusion on the second hearing as he did on the first, but the showing indicated at least the possibility that a miscarriage of justice had occurred. The judge must be conceded a reasonable measure of discretion, and we think it enough to say that his discretion was not abused in this instance.
Affirmed.
The order was conditioned on the payment by appellee of a fee for the services of the debtors’ attorney.
A general right of review of orders of a referee is provided by § 39(c) of the Bankruptcy Act, 11 U.S.C.A. § 67(c). See also § 2(10) of the Act, 11 U.S.C.A. § 11(10), relating to powers of the bankruptcy court; Pfister v. Northern Illinois Finance Corp., 317 U.S. 144, 63 S. Ct. 133, 87 L.Ed. 146.
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_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 first listed appellant. 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".
CONNECTICUT PAPER PRODUCTS, Inc., v. NEW YORK PAPER CO.
No. 4902.
Circuit Court of Appeals, Fourth Circuit.
April 13, 1942.
Karl W. Flocks, of Washington, D. C., for appellant and cross-appellee.
C. Paul Parker, of Chicago, 111. (William Mercer Alexander, of Chicago, 111., on the brief), for appellee and cross-appellant.
Before SOPER and DOBIE, Circuit Judges, and WARING, District Judge.
DOBIE, Circuit Judge.
This was an action brought by Connecticut Paper Products, Incorporated (hereinafter called plaintiff), against New York Paper Company (hereinafter called defendant), upon three patents, all involving related subject matter, in which it was claimed that defendant had infringed each of the three patents in suit. The first patent was for a paper drinking cup (Ericson patent No. 1940406, issued December 19, 1933, upon application of June 30, 1932); the second patent was for a metal device for dispensing such cups (Emerson patent No. 2206838, issued July 2, 1940, upon application of April 15, 1940); the third patent was for a design for a paper cup dispenser (design patent to the same Emerson, No. 118578, issued January 16, 1940, upon application of November 4, 1939). ;
Judge Coleman, in the District Court, 39 F.Supp. 127, 131, held that the first patent (paper cup) was invalid under the prior art; that the second patent (metal dispenser) was valid and infringed by defendant; that the third patent (design patent) was invalid on the score that this patent involved only functional features without any substantial ornamental features. From the final decree entered in the lower court, plaintiff duly appealed to this Court and defendant filed a cross-appeal. We shall consider the three patents separately, in the order above indicated.
The Ericson Patent for a Paper Drinking Cup.
Judge Coleman held that this patent is invalid under the prior art. This holding, we think, is eminently correct. Said Judge Coleman, in his opinion: “We have no hesitancy in finding that the Ericson patent is invalid because anticipated by Dickerson”. Judge Coleman also discussed the obvious similarities between the Ericson cup and the Hogan cup. Any lingering doubt here, we feel, will be dispelled when the Ericson cup is compared with other paper cups ante-dating the Ericson patent.
As Judge Coleman well said in his opinion: “It is too well established to require citation of authorities that the object of the patent laws is to reward those who make some substantial discovery or invention which adds to the sum total of our knowledge and makes a step in the development of a given art. It was never the object of the patent laws to grant a monopoly for every trivial device, or for every shade or shadow of an idea which would naturally occur to any one skilled in the particular art. Such an indiscriminate creation of exclusive privileges would tend to discourage rather than stimulate invention.”
See, also, Atlantic Works v. Brady, 107 U.S. 192, 2 S.Ct. 225, 27 L.Ed. 438; Weidhaas v. Loew’s, Inc., 2 Cir., 125 F.2d 544.
And, as this Court (citing authorities therefor) said in Scott & Williams, Inc., v. Whisnant, 4 Cir., 126 F.2d 19, 23, decided February 17, 1942: “Again, the record makes clear that the * * * patent is in no sense basic or revolutionary. At best, it is no more than an ingenious improvement in a crowded field. * * * At the very least, we are justified in giving to the claims of the patent in suit and to the wording of the specifications, a narrow rather than a liberal interpretation.”
There are three claims in the Ericson patent, all substantially similar. We quote the most elaborate of these, Claim 3: “A paper drinking cup having a pair of opposed walls, one of said walls being formed by a pair of overlapping wings, each of which is provided with a flap at its lower edge, the other wall having an extension secured to its lower edge, said flaps and extension being of the same width as that of their respective walls, said overlapping wings providing a thickened triangular portion the base portion of which is substantially the same width as that of said walls, said flaps and extension being folded together in superimposed relation and secured to the base portion of said triangular portion to provide a closed bottom.”
Also we quote the first twentj^-three lines of the Ericson patent:
“This invention relates to paper drinking cups, and more specifically to the flat or envelope type of cup which is adapted to he stored in stacks in dispensing machines and to be withdrawn therefrom one by one in a flat condition.
“It is an object of the present invention to provide an improved cup of this character, one wall of which is provided with a substantially thickened triangular portion, the base of which is disposed adjacent the closed bottom of the cup and which gradually decreases in width towards the mouth of the cup. By means of such a structure, my improved cup may be readily opened by merely pressing the opposite side edges thereof.
“Another object of the present invention is to provide an improved cup of this character, the bottom portion of which will remain substantially flat while stored in the dispensing machine so that the cup may he easily taken therefrom.
“A further object of the present invention is to provide an improved cup of this character which is relatively simple in construction and hence may be cheaply and easily manufactured.”
We append also the drawing which accompanied the Ericson patent, together with lines 35-42 of the patent which seek to explain the drawing:
Also, we quote from Judge Coleman’s opinion, since we think they are important, some statements as to the obvious discrepancies between the description of the Ericson cup in the patent and the Ericson cup model actually introduced in evidence : “Ericson’s patent drawings and specifications describe a triangular overlap and specify that the base of the triangle is the full width of the bottom of the cup; whereas the Ericson cup model actually introduced in evidence does not have the edge of the overlapped side coming' down and meeting the corresponding edge of the bottom overlap. Furthermore, the Ericson model has a folded down portion on one of the top edges, giving a double reinforced part that is not shown in the patent. Also, what is more important, the model is molded in an open position, and dispensed from nested stacked formation as is the Dickerson cup; whereas the Ericson patent stresses the adaptability of the cups to having a plurality of them, ‘stored in a dispensing machine, one upon another, with the bottom of the lowermost cup of the stack exposed so that it may be grasped by the finger of the user and withdrawn from the dispensing machine in flattened condition’.”
Probably the basic claim of the Dickerson patent is Claim 3, which reads: “As a new article of manufacture, a paper drinking cup having its body portion in self-extended substantially rounded form, said body from its open mouth tapering in wedge-like form to a watertight bottom closure made by a straight edge transverse fold-up of the cup material secured to the body wall, the line of fold of said fold-up being óf sufficient length to provide a base for resting the cup against a finger of the user, when held to filling position in his hand.”
Also, we append a drawing of the Dickerson cup:
Below are appended drawings of six other patents for paper drinking cups, all granted before the Ericson patent:
In the light of what has already been said, the drawings incorporated in this opinion, and the observations in Judge Coleman’s opinion, we think it is apparent that the Ericson patent displays no essential novelty that amounts to patentable invention. Plaintiff, we think, has greatly exaggerated both the novelty and the importance, in the Ericson cup, of the triangular overlap tapering from the bottom to the top of the cup. We hold, accordingly, that the Ericson patent in suit is invalid under the prior art.
The Emerson Mechanical Dispenser Patent.
This patent was held by Judge Coleman to be valid and infringed by the device of defendant. We believe that this patent, too, is invalid under the prior art for lack of patentable novelty, since the device in question discloses not a new and patentable combination but rather a mere aggregation of elements, which were old and well known. This distinction between a new combination, which is patentable, and an aggregation of old elements, which is not, was well drawn by Justice Strong, nearly seventy years ago, in Hailes v. Van Wormer, 20 Wall. 353, 368, 87 U.S. 353, 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. Combined results are not necessarily a novel result, nor are they an old result obtained in a new and improved manner. 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. No one by bringing together several old devices without producing a new and useful result the joint product of the elements of the combination and something more than an aggregate of old results, can acquire a right to prevent others from using the same devices, either singly or in other combinations, or, even if a new and useful result is obtained, can prevent others from using some of the devices, omitting others, in combination.”
See, also, Reckendorfer v. Faber, 92 U.S. 347, 357, 23 L.Ed. 719; Walker on Patents, Dellers Edition, Vol. 1, page 218, Section 42. And see, also, decided by this Court, Victor Cooler Door, Inc., et al. v. Jamison Cold Storage Co., 4 Cir., 44 F.2d 288, 292; Doughnut Machine Corp. v. Joe-Lowe Corp. et al., 4 Cir., 67 F.2d 135, 137.
The line between the patentable combination and the non-patentable aggregation is, in actual practice, sometimes difficult to draw with accuracy and precision. And we are not unmindful of the remarks of Mr. Justice Frankfurter in his dissenting opinion in the very recent case of Pearce v. Commissioner of Internal Revenue, 62 S.Ct. 754, 761, 86 L.Ed. -, decided by the Supreme Court of the United States March 9, 1942: “In law as in life lines have to be drawn. But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere. The line must follow some direction of policy, whether rooted in logic or experience. Lines should not be drawn simply for the sake of drawing lines.”
Returning now to the terms of this patent, we find that Claim 5 of the Emerson dispenser patent reads: “In a paper cup dispenser, a rear element, a front element, and a lid, said rear element comprising an elongated base and a pair of extending flanges therefrom, said front element being generally U-shaped in transverse section with the legs of the U being bulged or bellied substantially throughout their length, said rear element being hinged to the legs of said front element at their respective bottoms, said lid being hinged to said rear element and being dish-shaped with a circumferential depending flange corresponding to the shape of the horizontal section of the front element and rear element when in closed position, and cam means located within the front element whereby the bottom cup of a stack may be released from the remainder of the stack, said dispenser being open at its bottom for dispensing purposes.”
The first twenty lines of the patent thus set out its objects and nature:
“This invention related to paper cup dispensing and more particularly to the dispensing of stacked paper cups one at a time as required.
“Prior to the instant invention paper cups have been dispensed from stack holders but oftentimes the user obtained two cups when only one was required and frequently the user had difficulty in detaching a single cup from the remainder of the stack. Other prior cup dispenser constructions are expensive and difficult to manufacture and require much attention and servicing in endeavor to keep the dispenser in operation.
“It is an object of the instant invention to provide a novel paper cup dispenser which is simple to fabricate, inexpensive to manufacture, and which effects the dispensing of one cup at a time regularly without jamming the stacked cups.
“It is a further object of the instant invention to teach a novel method of dispensing paper cups one at a time from a stack.”
Subjoined is Sheet 1 of the drawing accompanying the patent:
A very strong bit of evidence against the plaintiff’s claim of patentability here, we think, is found in the square green dispenser made and sold by plaintiff before the granting of the patent in suit. No patent was ever issued on the square green dispenser, and this dispenser has been in use and dedicated to the public for a sufficient length of time to render it non-patentable. Diagrams of cross-sections of the two dispensers’ are helpful here. In these diagrams, the dotted lines indicate the cup within the dispenser:
In our opinion, the variations between the two dispensers are of little importance and even less novelty. Thus, in the old dispenser, the cups are held and guided downward by the diagonally opposite corners of the square case; while, in the new dispenser, this function is performed by the guide bellies or bulges. That Emerson considered these guide bellies or bulges to be of primary importance is apparent from a casual reading of the patent; for they are set out and stressed in every claim in issue. We are not so impressed. Nor are these bellies or bulges altogether new in the art, as will be seen by an inspection of the Taylor patent (No. 1594134), the Rese patent (No. 1065395) and the Ohlsen patent (No. 1685292) — all in this same field.
Further, in the old dispenser, the cups passed at the bottom through a single metal piece with a central opening extending practically from one corner of the dispenser to the opposite diagonal corner; while the new dispenser contains, set on the side at the bottom, cam means in the nature of two metal plates, and set at a V-shaped angle sloping downwards and inwardly. The reversal, front to rear, of the casings of the two dispensers, and the pinched-in bottom of the new dispenser add little of practical consequence to the picture.
Our conclusion here is reinforced by an inspection of the patents of other dispensers in the prior art. Essentially these follow the same general pattern as the patent in suit. A comparison of these prior dispensers and the Emerson patent convinces us that the Emerson device is in reality a mere non-patentable aggregation of well-known elements and is in essence far from a new patentable combination.
The Emerson Design Patent.
We cordially agree with Judge Coleman that the Emerson design patent is invalid and we deem it unnecessary to add much' to what he has said on this subject in his opinion.
In Walker on Patents, Dellers Edition, Vol. 1, Sec. 138, page 434, we find: “Where the configuration of a design is made imperative by the elements which it combines and by the utilitarian purposes of the device, so that the design itself is nothing more than a necessary response to the purpose of the article designed, no patentable design results.”
This is amply supported by a long line of cases. See, especially, Standard Computing Scale Co. v. Detroit Automatic Scale Co., 6 Cir., 265 F. 281; Majestic Electric Development Co. v. Westinghouse, etc., Co., 9 Cir., 276 F. 676; Applied Arts Corporation v. Grand Rapids Metalcraft Corporation, 6 Cir., 67 F.2d 428, 430.
There is, too, a second and even stronger reason for holding the design patent invalid on the ground it lacked the requisite inventive characteristics. Walker on Patents, Lotsch Edition, Sections 41 and 45. It was early established that for a design to be patentable, there must be both originality and the exercise of the inventive faculty. Western E. M. Co. v. Odell, D.C., 18 F. 321. And the test of invention for a design patent is the same as that applied to mechanical patents, namely, was the design beyond the powers of the ordinary designer. F. I. A. T. v. A. Elliott Ranney Co., 2 Cir., 249 F. 973; Whiting Mfg. Co. v. Alvin Silver Co., 2 Cir., 283 F. 75; Metallic Industries, Inc., v. Brauning, 8 Cir., 279 F. 856; Strause Gas Iron Co. v. William M. Crane Co., 2 Cir., 235 F. 126. As was stated in Sodemann Heat & Power Co. v. Kauffman, 8 Cir., 275 F. 593, 597: “A design, to be patented, * * * must present to the eye of the ordinary observer a different effect from anything that preceded it, and render the article to which it is applied pleasing, attractive, and beautiful; there must be something akin to genius, an effort. of the brain, as well as the hand.”
A comparison of the patent in suit with other prior dispensers, particularly the Ajax dispenser, exhibited in Court, we think, rather clearly discloses that the Emerson design patent fails to meet this test.
The Emerson design patent, therefore, must be deemed void for anticipation and lack of invention.
We, accordingly, affirm the decree of the lower court to the extent that this decree holds the Ericson cup patent (No. 1940406) invalid and the Emerson design patent (No. 118578) invalid; while we reverse this decree to the extent of its holding that the Emerson cup dispenser patent (No. 2206838) is valid. Our decision that all three of the patents in suit are invalid makes it unnecessary for us to pass upon other questions involved.
Affirmed in part; reversed in part.
Question: This question concerns the first listed appellant. 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:
|
sc_certreason
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
UNITED STATES v. GRANDERSON
No. 92-1662.
Argued January 10, 1994
Decided March 22, 1994
Ginsburg, J., delivered the opinion of the Court, in which Blackmun, Stevens, O’Connor, and Souter, JJ., joined. Scalia, J., post, p. 57, and Kennedy, J., post, p. 60, filed opinions concurring in the judgment. Rehnquist, C. J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 69.
Thomas G. Hungar argued the cause for the United States. With him on the briefs were Solicitor General Days, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Bryson.
Gregory S. Smith, by appointment of the Court, 510 U. S. 806, argued the cause for respondent. With him on the brief was Stephanie Kearns
Briefs of amici curiae urging affirmance were filed for the American Bar Association by R. William Ide III and Antonio B. Ianniello; and for the National Association of Criminal Defense Lawyers by Stephen R. Sady.
Justice Ginsburg
delivered the opinion of the Court.
This case presents a question of statutory interpretation regarding revocation of a federal sentence of probation. The law at issue provides that if a person serving a sentence of probation possesses illegal drugs, “the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence.” 18 U. S. C. § 3565(a). Congress did not further define the critical term “original sentence,” nor are those words, unmodified, used elsewhere in the Federal Criminal Code chapter on sentencing. Embedded in that context, the words “original sentence” in § 3565(a) are susceptible to at least three interpretations.
Read in isolation, the provision could be taken to mean the reimposition of a sentence of probation, for a period not less than one-third of the original sentence of probation. This construction, however, is implausible, and has been urged by neither party, for it would generally demand no increased sanction, plainly not what Congress intended.
The Government, petitioner here, reads the provision to draw the time period from the initially imposed sentence of probation, but to require incarceration, not renewed probation, for not less than one-third of that period. On the Government’s reading, accepted by the District Court, respondent Granderson would face a 20-month mandatory minimum sentence of imprisonment.
Granderson maintains that “original sentence” refers to the sentence of incarceration he could have received initially, in lieu of the sentence of probation, under the United States Sentencing Guidelines. Granderson’s construction calls for a 2-month mandatory minimum. The Court of Appeals accepted Granderson’s interpretation, see 969 F. 2d 980 (CA11 1992); returns in other Circuits are divided.
The “original sentence” prescription of § 3565(a) was a late-hour addition to the Anti-Drug Abuse Act of 1988, a sprawling enactment that takes up 364 pages in the Statutes at Large. Pub. L. 100-690,102 Stat. 4181-4545. The provision appears not to have received Congress’ careful attention. It may have been composed, we suggest below, with the pre-1984 federal sentencing regime in the drafters’ minds; it does not easily adapt to the regime established by the Sentencing Reform Act of 1984.
According the statute a sensible construction, we recognize, in common with all courts that have grappled with the “original sentence” conundrum, that Congress prescribed imprisonment as the type of punishment for drug-possessing probationers. As to the duration of that punishment, we rest on the principle that “‘the Court will not interpret a federal criminal statute so as to increase the penalty . . . when such an interpretation can be based on no more than a guess as to what Congress intended.’” Bifulco v. United States, 447 U. S. 381, 387 (1980), quoting Ladner v. United States, 358 U. S. 169, 178 (1958). We therefore adopt Granderson’s interpretation and affirm the judgment of the Court of Appeals.
I
Granderson, a letter carrier, pleaded guilty to one count of destruction of mail, in violation of 18 U. S. C. § 1703(a). Under the Sentencing Guidelines, the potential imprisonment range, derived from the character of the offense and the offender’s criminal history category, was 0-6 months. The District Court imposed no prison time, but sentenced Granderson to five years’ probation and a $2,000 fine. As a standard condition of probation, Granderson was required to submit periodically to urinary testing for illegal drug use.
Several weeks after his original sentencing, Granderson tested positive for cocaine, and his probation officer petitioned for revocation of the sentence of probation. Finding that Granderson had possessed cocaine, the District Court revoked Granderson’s sentence of probation and undertook to resentence him, pursuant to § 3565(a), to incarceration for “not less than one-third of the original sentence.” The term “original sentence,” the District Court concluded, referred to the term of probation actually imposed (60 months) rather than the imprisonment range authorized by the Guidelines (0-6 months). The court accordingly sentenced Granderson to 20 months’ imprisonment.
The Court of Appeals upheld the revocation of the sentence of probation but vacated Granderson’s new sentence. 969 F. 2d 980 (CA11 1992). That court observed that the probation revocation sentence of 20 months’ imprisonment imposed by the District Court was far longer than the sentence that could have been imposed either for the underlying crime of destroying mail (six months) or for the crime of cocaine possession (one year). Id., at 983, and n. 2. The Court of Appeals called it “legal alchemy” to convert an “original sentence” of “ ‘conditional liberty/ ” with a correspondingly long term, into a sentence of imprisonment with a time span geared to the lesser restraint. Id., at 984, quoting United States v. Gordon, 961 F. 2d 426, 432 (CA3 1992). Invoking the rule of lenity, 969 F. 2d, at 983, the court concluded that the phrase “original sentence” referred to “the [0-6 month] sentence of incarceration faced by Granderson under the Guidelines,” not to the 60-month sentence of probation, id., at 984. Because Granderson had served 11 months of his revocation sentence — more than the 6-month maximum — the Court of Appeals ordered him released from custody. Id., at 985.
II
The text of § 3565(a) reads:
“If the defendant violates a condition of probation at any time prior to the expiration or termination of the term of probation, the court may . ..
“(1) continue him on probation, with or without extending the term or modifying [or] enlarging the conditions; or
“(2) revoke the sentence of probation and impose any other sentence that was available ... at the time of the initial sentencing.
“Notwithstanding any other provision of this section, if a defendant is found by the court to be in possession of a controlled substance . . . the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence.” (Emphasis added.)
The Government argues that the italicized proviso is unambiguous. The “original sentence” that establishes the benchmark for the revocation sentence, the Government asserts, can only be the very sentence actually imposed, i. e., the sentence of probation. In this case, the sentence of probation was 60 months; “one-third of the original sentence” is thus 20 months. But for two reasons, the Government continues, Granderson’s 20-month revocation sentence must be one of imprisonment rather than probation. First, the contrast in subsections (1) and (2) between “continuing]” and “revoking]” probation suggests that a revocation sentence must be a sentence of imprisonment, not a continuation of probation. Second, the Government urges, it would be absurd to “punish” drug-possessing probationers by revoking their probation and imposing a new term of probation no longer than the original. Congress could not be taken to have selected drug possessors, from the universe of all probation violators, for more favorable treatment, the Government reasons, particularly not under a provision enacted as part of a statute called “The Anti-Drug Abuse Act.”
We agree, for the reasons stated by the Government, that a revocation sentence must be a term of imprisonment. Otherwise the proviso at issue would make little sense. We do not agree, however, that the term “original sentence” relates to the duration of the sentence set for probation. The statute provides that if a probationer possesses drugs, “the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence.” This language appears to differentiate, not to equate or amalgamate, “the sentence of probation” and “the original sentence.” See United States v. Penn, 17 F. 3d 70, 73 (CA4 1994) (“a sentence of probation does not equate to a sentence of incarceration”). If Congress wished to convey the meaning pressed by the Government, it could easily have instructed that the defendant be incarcerated for a term “not less than one-third of the original sentence of probation,” or “not less than one-third of the revoked term of probation.”
The Government’s interpretation has a further textual difficulty. The Government reads the word “sentence,” when used as a verb in the proviso’s phrase “sentence the defendant,” to mean “sentence to imprisonment” rather than “sentence to probation.” Yet, when the word “sentence” next appears, this time as a noun (“original sentence”), the Government reads the word to mean “sentence of probation.” Again, had Congress designed the language to capture the Government’s construction, the proviso might have read: “[T]he court shall revoke the sentence of probation and sentence the defendant to a term of imprisonment whose length is not less than one-third the length of the original sentence of probation.” Cf. Reves v. Ernst & Young, 507 U. S. 170, 177 (1993) (“it seems reasonable to give ... a similar construction” to a word used as both a noun and a verb in a single statutory sentence).
As the Court of Appeals commented, “[probation and imprisonment are not fungible”; they are sentences fundamentally different in character. 969 F. 2d, at 984. One-third of a 60-month term of probation or “conditional liberty” is a sentence scarcely resembling a 20-month sentence of imprisonment. The Government insists and, as already noted, we agree, that the revocation sentence, measured as one-third of the “original sentence,” must be a sentence of imprisonment. But that “must be” suggests that “original sentence” refers the resentencer back to an anterior sentence of imprisonment, not a sentence of probation.
HH HH HH
Granderson s reading of the § 3565(a) proviso entails such a reference back. The words “original sentence,” he contends, refer back to § 3565(a)(2), the prescription immediately preceding the drug-possession proviso: the “other sentence that was available under subchapter A [the general sentencing provisions] at the time of the initial sentencing.” The Guidelines sentence of imprisonment authorized by subchapter A was the “original sentence,” Granderson argues, for it was the presumptive sentence, the punishment that probation, as a discretionary alternative, replaced. The Guidelines range of imprisonment available at Granderson’s initial sentencing for destruction of mail was 0-6 months. Starting at the top of this range, Granderson arrives at two months as the minimum revocation sentence.
A
Granderson’s interpretation avoids linguistic anomalies presented by the Government’s construction. First, Granderson’s reading differentiates, as does the proviso, between “the sentence of probation” that the resentencer must revoke and “the original sentence” that determines the duration of the revocation sentence. See supra, at 46. Second, Granderson’s construction keeps constant the meaning of “sentence” in the phrases “sentence the defendant” and “original sentence.” See ibid. While the Government cannot easily explain how multiplying a sentence of probation by one-third can yield a sentence of imprisonment, Granderson’s construction encounters no such shoal. See Gordon, 961 F. 2d, at 433 (“one-third of three years probation is one year probation, not one year imprisonment”).
Granderson’s reading of the proviso also avoids the startling disparities in sentencing that would attend the Government’s interpretation. A 20-month minimum sentence would exceed not only the 6-month maximum punishment under the Guidelines for Granderson’s original offense; it would also exceed the 1-year statutory maximum, see 21 U. S. C. § 844(a), that Granderson could have received, had the Government prosecuted him for cocaine possession and afforded him the full constitutional protections of a criminal trial, rather than the limited protections of a revocation hearing. Indeed, a 20-month sentence would exceed consecutive sentences for destruction of mail and cocaine possession (18 months in all).
Furthermore, 20 months is only the minimum revocation sentence, on the Government’s reading of the proviso. The Government’s interpretation would have allowed the District Court to sentence Granderson to a term of imprisonment equal in length to the revoked term of probation. This prison term — five years — would be 10 times the exposure to imprisonment Granderson faced under the Guidelines for his original offense, and 5 times the applicable statutory maximum for cocaine possession. It seems unlikely that Congress could have intended so to enlarge the District Court’s discretion. See Penn, 17 F. 3d, at 73.
B
Two of the Government’s arguments against Granderson’s interpretation are easily answered. First, the Government observes that the purpose of the Anti-Drug Abuse Act was to impose tough sanctions on drug abusers. See Brief for United States 22-26 (listing new penalties and quoting statements from Members of Congress that they intended to punish drug offenders severely). But we cannot divine from the legislators’ many “get tough on drug offenders” statements any reliable guidance to particular provisions. None of the legislators’ expressions, as the Government admits, focuses on “the precise meaning of the provision at issue in this case.” Id., at 24, and n. 4; cf. Busic v. United States, 446 U. S. 398, 408 (1980) (“[W]hile Congress had a general desire to deter firearm abuses, that desire was not unbounded. Our task here is to locate one of the boundaries, and the inquiry is not advanced by the assertion that Congress wanted no boundaries.”). Under Granderson’s interpretation, moreover, drug possessors are hardly favored. Instead, they are singled out among probation violators for particularly adverse treatment: They face mandatory, rather than optional, terms of imprisonment.
Next, the Government argues that the drug-possession proviso must be construed in pari materia with the parallel provision, added at the same time, governing revocation of supervised release upon a finding of drug possession. In the latter provision, the Government observes, Congress ordered a revocation sentence of “not less than one-third of the term of supervised release,” and it expressly provided that the revocation sentence should be “serve[d] in prison.” 18 U. S. C. § 3583(g). Correspondingly, the Government maintains, the probation revocation proviso should be construed to require a minimum prison term of one-third the term of probation. The Government acknowledges that, while Congress spelled out “one-third of the term of supervised release,” Congress did not similarly say “one-third of the term of probation.” However, the Government attributes this difference to the fact that, unlike probation under the current sentencing regime, supervised release is not itself an “original sentence,” it is only a component of a sentence that commences with imprisonment.
We are not persuaded that the supervised release revocation prescription should control construction of the probation revocation proviso. Supervised release, in contrast to probation, is not a punishment in lieu of incarceration. Persons serving postincarceration terms of supervised release generally are more serious offenders than are probationers. But terms of supervised release, because they follow up prison terms, are often shorter than initial sentences of probation. Thus, under the Government’s in pari materia approach, drug possessors whose original offense warranted the more serious sanction of prison plus supervised release would often receive shorter revocation sentences than would drug-possessing probationers.
The Government counters that Congress might have intended to punish probationers more severely because they were “extended special leniency.” Reply Brief for United States 13, n. 14. A sentence of probation, however, even if “lenient,” ordinarily reflects the judgment that the offense and offender’s criminal history were not so serious as to warrant imprisonment. In sum, probation sans imprisonment and supervised release following imprisonment are sentences of unlike character. This fact weighs heavily against the argument that the discrete, differently worded probation and supervised release revocation provisions should be construed in pari materia.
C
The history of the probation revocation proviso’s enactment gives us additional cause to resist the Government’s interpretation. The Anti-Drug Abuse Act, in which the proviso was included, was a large and complex measure, described by one Member of the House of Representatives as “more like a telephone book than a piece of legislation.” 134 Cong. Rec. 33290 (1988) (remarks of Rep. Conte). The proviso seems first to have appeared in roughly its present form as a Senate floor amendment offered after both the House and the Senate had passed the bill. See id., at 24924-24925 (House passage, Sept. 22); id., at 30826 (Senate passage, Oct. 14); id., at 30945 (proviso included in lengthy set of amendments proposed by Sen. Nunn, Oct. 14). No conference report addresses the provision, nor are we aware of any post-conference discussion of the issue. The proviso thus seems to have been inserted into the Anti-Drug Abuse Act without close inspection. Cf. United States v. Bass, 404 U. S. 336, 344 (1971) (applying rule of lenity, noting that statutory provision “was a last-minute Senate amendment” to a long and complex bill and “was hastily passed, with little discussion, no hearings, and no report”).
Another probation-related provision of the Anti-Drug Abuse Act, proposed shortly before the proviso, casts further doubt on the Government’s reading. That provision amends the prohibition against using or carrying an explosive in the commission of a federal felony, to provide in part: “Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection . . . .” Pub. L. 100-690, § 6474(b), 102 Stat. 4380, codified at 18 U. S. C. § 844(h) (emphasis added). This provision, notwithstanding its 1988 date of enactment, is intelligible only under pre-1984 law: The 1984 Sentencing Reform Act had abolished suspended sentences, and the phrase “place on probation” had yielded to the phrase “impose a sentence of probation.”
Granderson’s counsel suggested at oral argument, see Tr. of Oral Arg. 22-23, 29-31, 36-41, that the proviso’s drafters might similarly have had in mind the pre-1984 sentencing regime, in particular, the pre-1984 practice of imposing a sentence of imprisonment, suspending its execution, and placing the defendant on probation. See 18 U. S. C. § 3651 (1982) (for any offense “not punishable by death or life imprisonment,” the court may “suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best”). The proviso would fit the suspension-of-execution scheme precisely: The “original sentence” would be the sentence imposed but not executed, and one-third of that determinate sentence would be the revocation sentence. In that application, the proviso would avoid incongruities presented in Granderson’s and the Government’s interpretations of the words “original sentence”: An imposed, albeit unexecuted, term of imprisonment would be an actual, rather than a merely available, sentence, and one-third of that sentence would be a term of imprisonment, not probation. If Granderson could demonstrate that the proviso’s drafters in fact drew the prescription to match the pre-1984 suspension-of-execution scheme, Granderson’s argument would be all the more potent: The closest post-1984 analogue to the suspended sentence is the Guidelines sentence of imprisonment, that could have been implemented, but was held back in favor of a probation sentence.
We cannot say with assurance that the proviso’s drafters chose the term “original sentence” with a view toward pre1984 law. The unexacting process by which the proviso was enacted, however, and the evident anachronism in another probation-related section of the Anti-Drug Abuse Act, leave us doubtful that it was Congress’ design to punish drug-possessing probationers with the extraordinarily disproportionate severity the Government urges.
In these circumstances — where text, structure, and history fail to establish that the Government’s position is unambiguously correct — we apply the rule of lenity and resolve the ambiguity in Granderson’s favor. See, e. g., Bass, 404 U. S., at 347-349. We decide that the “original sentence” that sets the duration of the revocation sentence is the applicable Guidelines sentence of imprisonment, not the revoked term of probation.
IV
We turn, finally, to the Government’s argument that Granderson’s theory, and the Court of Appeals’ analysis, are fatally flawed because the Guidelines specify not a term but a range — in this case, 0-6 months. Calculating the minimum revocation sentence as one-third of that range, the mandatory minimum term of imprisonment would be 0-2 months, the Government asserts, which would permit a perverse result: A resentencing court could revoke a drug possessor’s sentence of probation, and then impose no sentence at all. Recognizing this curiosity, lower courts have used not 0-6 months as their starting place, but the top of that range, as the “original sentence,” which yields 2 months as the minimum revocation sentence. The Government complains that no court has explained why the top, rather than the middle or the bottom of the range, is the appropriate point of reference.
The reason for starting at the top of the range, however, is evident: No other solution yields as sensible a response to the “original sentence” conundrum. Four measures of the minimum revocation sentence could be hypothesized as possibilities, if the applicable Guidelines range is the starting point: The sentence could be calculated as (1) one-third of the Guidelines maximum, (2) one-third of the Guidelines minimum, (3) one-third of some point between the minimum and maximum, such as the midpoint, or (4) one-third of the range itself. The latter two possibilities can be quickly eliminated. Selecting a point between minimum and maximum, whether the midpoint or some other point, would be purely arbitrary. Calculating the minimum revocation sentence as one-third of the Guidelines range, in practical application, yields the same result as setting the minimum revocation sentence at one-third of the Guidelines minimum: To say, for example, that a 2-4 month sentence is the minimum revocation sentence is effectively to say that a 2-month sentence is the minimum.
Using the Guidelines minimum in cases such as the present one (0-6 month range), as already noted, would yield a minimum revocation sentence of zero, a result incompatible with the apparent objective of the proviso — to assure that those whose probation is revoked for drug possession serve a term of imprisonment. The maximum Guidelines sentence as the benchmark for the revocation sentence, on the other hand, is “a sensible construction” that avoids attributing to the legislature either “an unjust or an absurd conclusion.” In re Chapman, 166 U. S. 661, 667 (1897).
V
We decide, in sum, that the drug-possession proviso of § 3565(a) establishes a mandatory minimum sentence of imprisonment, but we reject the Government’s contention that the proviso unambiguously calls for a sentence based on the term of probation rather than the originally applicable Guidelines range of imprisonment. Granderson’s interpretation, if not flawless, is a securely plausible reading of the statutory language, and it avoids the textual difficulties and sentencing disparities we identified in the Government’s position. In these circumstances, in common with the Court of Appeals, we apply the rule of lenity and resolve the ambiguity in Granderson’s favor. The minimum revocation sentence, we hold, is one-third the maximum of the originally applicable Guidelines range, and the maximum revocation sentence is the Guidelines maximum.
In this case, the maximum revocation sentence is six months. Because Granderson had served 11 months imprisonment by the time the Court of Appeals issued its decision, that court correctly ordered his release. The judgment of the Court of Appeals is therefore
Affirmed.
Compare United States v. Penn, 17 F. 3d 70 (CA4 1994); United States v. Alese, 6 F. 3d 85 (CA2 1993) (per curiam); United States v. Diaz, 989 F 2d 391 (CA10 1993); United States v. Clay, 982 F. 2d 959 (CA6 1993), cert. pending, No. 93-52; United States v. Gordon, 961 F. 2d 426 (CA3 1992) (all interpreting “original sentence” to mean the period of incarceration originally available under the United States Sentencing Guidelines), with United States v. Sosa, 997 F. 2d 1130 (CA5 1993); United States v. Byrkett, 961 F. 2d 1399 (CA8 1992); United States v. Corpuz, 953 F. 2d 526 (CA9 1992) (all reading “original sentence” to refer to the term of the revoked probation).
The interpretation offered by Justice Kennedy — a reduced sentence of probation as the mandatory minimum — is notable for its originality. No court that has essayed construction of the prescription at issue has come upon the answer Justice Kennedy finds clear in “the text and structure of the statute.” Post, at 60, 68. But cf. post, at 67 (describing the statute as “far from transparent”).
The Sentencing Reform Act of 1984, for the first time, classified probation as a sentence; before 1984, probation had been considered an alternative to a sentence. See S. Rep. No. 98-225, p. 88 (1983).
Justice Kennedy’s novel interpretation would authorize revocation sentences under which drug possessors could profit from their violations. The present case is an example. The District Court determined, just over 4 months into Granderson’s 60-month sentence of probation, that Grander-son had violated his conditions of probation by possessing drugs. If Justice Kennedy were correct that the proviso allows a revocation sentence of probation, one-third as long as the sentence of probation originally imposed, then the District Court could have “punished” Granderson for his cocaine possession by reducing his period of probation from 60 months to just over 24 months. Justice Kennedy’s interpretation would present a similar anomaly whenever the drug-possessing probationer has served less than two-thirds of the sentence of probation initially imposed. Surely such an interpretation is implausible.
The dissent notes that the term “original sentence” has been used in a number of this Court’s opinions and in other statutes and rules, in each instance to refer to a sentence actually imposed. See post, at 72-73, and nn. 4-5. None of those cases, statutes, or rules, however, involves an interpretive problem such as the one presented here, where, if the “original sentence” is the sentence actually imposed, a “plain meaning” interpretation of the proviso leads to an absurd result. See supra, at 41, 45, and n. 4.
The dissent observes, further, that other federal sentencing provisions “us[e] the word ‘sentence’ to refer to the punishment actually imposed on a defendant.” ' Post, at 71, n. 2. In each of the cited instances, however, this reference is made clear by context, either by specifying the type of sentence (e. g., “sentence to pay a fine,” “sentence to probation,” 18 U. S. C. § 3551(c)), or by using a variant of the phrase “impose sentence” (see §§ 3553(a), (b), (c), (e); 3554-3558).
At a revocation hearing, in contrast to a full-scale criminal trial, the matter is tried to the court rather than a jury; also, the standard of proof has been held to be less stringent than the reasonable-doubt standard applicable to criminal prosecutions. See 18 U. S. C. § 3565(a); Fed. Rule Crim. Proc. 32.1; United States v. Gordon, 961 F. 2d 426, 429 (CA3 1992) (citing cases).
The dissent suggests that the statutory maximum for the original offense (five years in this case, see 18 U. S. C. § 1703(a)) is the maximum revocation sentence. See post, at 77, n. 8. The District Court, however, could not have imposed this sentence originally, without providing “the specific reason” for departing from the Guidelines range, 18 U. S. C. § 3553(c), and explaining in particular why “an aggravating . . . circumstance [exists,] of a kind, or to a degree, [that was] not adequately taken into consideration by the Sentencing Commission in formulating the guidelines . . . .” §3553(b). Upward departures from the presumptive Guidelines range to the statutory maximum are thus appropriate only in exceptional cases. See infra, at 56, n. 14. The dissent’s interpretation, however, would allow district courts to impose the statutory maximum as a revocation sentence in the routine exercise of their ordinary discretion.
A probation term of 1-5 years is available for Class C and D felonies; the corresponding term of supervised release is not more than 3 years. For Class E felonies, a 1-5 year probation term is available, but not more than a 1-year term of supervised release. For misdemeanors, a probation term of not more than 5 years is available; the corresponding term of supervised release is not more than 1 year. See 18 U. S. C. §§ 3661(b), 3583(b).
Debate over the conference bill took place in the middle of the night, see 134 Cong. Rec. 32633 (1988) (“I am cognizant that it is 2:20 in the morning, and I will not take long”) (remarks of Sen. Dole); id., at 33318 (House vote taken at 1 a.m.), with Congress anxious to adjourn and return home for the 1988 elections that were little more than two weeks away. Section-by-section analyses were produced after conference in both the Senate and the House, but neither publication casts much light on the proviso. See id., at 32707 (Senate); id., at 33236 (House).
See Cunningham, Levi, Green, & Kaplan, Plain Meaning and Hard Cases, 103 Yale L. J. 1561, 1579-1581 (1994).
The chief difficulty with such an interpretation is that pre-1984 law recognized two kinds of suspended sentences, each of which could lead to probation. While suspension of the execution of sentence, as mentioned, neatly fits Granderson’s theory, suspension of the imposition of sentence fits the theory less well: In that situation, no determinate “original sentence” would be at hand for precise calculation of the revocation sentence.
Justice Kennedy suggests that our interpretation of the proviso “read[s] a criminal statute against a criminal defendant,” post, at 67, and that to the extent the rule of lenity is applicable, it would “deman[d] the interpretation” advanced in his opinion — that the proviso establishes a mandatory minimum sentence of probation, one-third as long as the sentence of probation initially imposed, post, at 69. We note that Grander-son, the criminal defendant in this case, does not urge the interpretation Justice Kennedy presents. More to the point, both of Justice Kennedy’s assertions presuppose that his interpretation of the proviso is a permissible one. For reasons set out above, we think it is not. See supra, at 45, and n. 4.
Justice Scalia suggests that on our interpretation of the proviso, the mandatory minimum revocation sentence should include a fine as well as a term of imprisonment. See post, at 58. The term of probation, however, was imposed in lieu of a sentence of imprisonment, not in lieu of a fine. Revocation of the sentence of probation, we think, implies replacing the sentence of probation with a sentence of imprisonment, but does not require changing an unrevoked sentence earlier imposed.
See United States v. Penn, 17 F. 3d 70 (CA4 1994) (expressly declaring that the minimum revocation sentence is one-third of the top of the Guidelines range); United States v. Alese, 6 F. 3d 85 (CA2 1993) (per curiam) (same); United States v. Gordon, 961 F. 2d 426 (CA3 1992) (same); United States v. Clay, 982 F. 2d 959 (CA6 1993) (holding that the maximum revocation sentence is the top of the Guidelines range), cert. pending, No. 93-52; United States v. Diaz, 989 F. 2d 391 (CA10 1993) (vacating a revocation sentence that exceeded the top of the original Guidelines range). The Court of Appeals in the present case was not required to identify the minimum term, because Granderson had served five months more than the top of the Guidelines range by the time the opinion was issued. See 969 F. 2d 980, 985 (CA11 1992).
The Government observes that “in appropriate circumstances” the sentencing court may depart upward from the presumptive Guidelines range, limited in principle only by the statutory maximum. See 18 U. S. C. § 3663(b). According to the Government, it follows that if the “original sentence” is the “maximum available sentence,” then the statutory maximum rather than the top of the presumptive Guidelines range is the appropriate basis for the revocation sentence. Brief for United States 22. The short answer to the Government’s argument is that for cases in which the sentencing judge considers an upward departure warranted, a sentence of probation, rather than one of imprisonment, is a most unlikely prospect. It makes scant sense, then, to assume that an “original sentence” for purposes of probation revocation is a sentence beyond the presumptively applicable Guidelines range.
At oral argument the Government suggested that its own interpretation is more lenient than Granderson’s, in those rare cases in which the court has departed downward from the Guidelines to impose a sentence of probation. In United States v. Harrison, 815 F. Supp. 494 (DC 1993), for example, the court, on the Government’s motion, had departed downward from a 97-121 month Guidelines range and a 10-year statutory mandatory minimum to impose only a sentence of probation. When the Government moved to revoke probation for drug possession, the court held that the statute required basing the revocation sentence upon the term of probation rather than the Guidelines range, and, in the alternative, that even if the statute were ambiguous, the rule of lenity would so require. Having found §3565(a)’s drug-possession proviso ambiguous, we agree that the rule of lenity would support a shorter sentence, whether on Harrison’s analysis, or on the theory that the “applicable Guidelines range” is the maximum of a Guidelines range permitting a sentence of probation.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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songer_treat
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I
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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.
The COUNTY OF SULLIVAN, N. Y. and the Sullivan County Airport Commission, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent, and The State of New York and Mohawk Airlines, Inc., Intervenors.
No. 467, Docket 35585.
United States Court of Appeals, Second Circuit.
Argued Dec. 3, 1970.
Decided Jan. 4, 1971.
Don W. Crockett, Washington, D. C. (Robert M. Beckman, Washington, D. C., Carl P. Goldstein, Atty., County of Sullivan, Montieello, N. Y., and Theodore Drew, Asst. Sullivan County Atty., Montieello, N. Y., of counsel), for petitioners.
J. Michael Roach, Atty., Civil Aeronautics Board, Washington, D. C. (Richard W. McLaren, Asst. Atty. Gen., Gregory B. Hovendon, Atty., Dept, of Justice, Washington, D. C., R. Tenney Johnson, Gen. Counsel, Civil Aeronautics Board, Washington, D. C., O. D. Ózment, Deputy Gen. Counsel, Warren L. Sharf-man, Associate Gen. Counsel, Litigation and Research, and Robert L. Toomey, Atty., Civil Aeronautics Board, Washington, D. C., of counsel), for respondent.
Philip Weinberg, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., of counsel), for intervenor State of New York.
Raymond J. Rasenberger, Washington, D. C. (Frank J. Costello, Zuckert, Scoutt & Rasenberger, Washington, D. C., of counsel), for intervenor Mohawk Airlines, Inc.
Before FRIENDLY, SMITH and ANDERSON, Circuit Judges.
FRIENDLY, Circuit Judge:
This petition to review an order of the Civil Aeronautics Board concerns the rendition of air service by Mohawk Airlines, Inc. to Liberty/Monticello in Sullivan County, New York, an important resort area in the Catskill Mountains.
Mohawk’s authority to serve Liberty/Monticello, sometimes hereafter referred to as the Sullivan County Airport, dates back to 1952 when the Board granted certificate authority to Mohawk’s corporate predecessor, Robinson Air Corp., Certificate Renewal, 15 C.A. B. 940, 954-955 (1952). Because of the lack of a suitable airport, no service by fixed wing aircraft had been rendered, and a helicopter experiment proved unprofitable. In 1964, with such an airport finally in prospect, the Civil Aeronautics Board renewed this authority for a period terminating October 26, 1967. Mohawk Airlines, Inc., “Use It or Lose It” Investigation, 40 C.A.B. 393, 41 C.A.B. 263 (1964). On April 26, 1967, Mohawk made an application for a further renewal of authority to serve Liberty/Monticello “for three years from the present expiration date” and also to add it as an intermediate point on the carrier’s Boston-Cleveland and Boston-Pittsburgh routes. In one paragraph of the application Mohawk served notice that it “intends to rely upon section 9(b) of the Administrative Procedure Act, 5 U.S.C. § 558, and Part 377 of the Board’s Special Regulations.” The prayer for relief read as follows:
Wherefore, Mohawk prays that the Board amend its existing certificate of public convenience and necessity for Route 94 so as to authorize Mohawk to engage in scheduled air transportation as an air carrier of persons, property, and mail as herein-above applied for until October 26, 1970. Mohawk also prays for such other, further, and different relief as the Board may deem appropriate.
The last sentence of § 9(b) of the APA, now 5 U.S.C. § 558(c), provides:
When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.
Mohawk’s renewal application thus effected an extension of its Liberty/Monti-eello authorization beyond October 26, 1967, even though the Board had not acted thereon. The agency approved Mohawk’s failure to institute service until a suitable airport was completed. This was ultimately done, at a cost of over $7 million of federal, state and county funds. Mohawk began service on July 2, 1969. In April, 1970, it informed Sullivan County of its intention to allow the service to lapse on October 26, 1970, when it considered that the renewal of its authority achieved by the combined effect of its 1967 application and the last sentence of § 9(b) of the APA would expire.
The notification had the impact that must have been anticipated. On May 4, 1970, Sullivan County and its Airport Commission filed an application with the Board, apparently under § 401(g) of the Federal Aviation Act, to extend Mohawk’s authority to serve Liberty./Monticello and moved for an immediate hearing. When the Board got around to this on July 16, more than ten weeks later, it granted the motion and set the application for expedited hearing. Although Examiner Fitzmaurice then proceeded with commendable speed, it became apparent by mid-August that the proceeding would not be concluded by October 26, and the Sullivan interests moved, on August 13, that the Board direet Mohawk to continue service until final determination of the § 401(g) proceeding. On September 23, the Board issued an order observing that, for various reasons there stated, “it would be undesirable for Mohawk to discontinue its services during the pendency of the proceeding,” and granted an exemption under § 416(b) permitting the airline to continue to serve Liberty/Montieello until 60 days after final decision in the § 401(g) case. After various conversations, Mohawk informed the Sullivan officials and the Board on October 20 that it did not intend to avail itself of the permission given by the exemption but would discontinue serving the Sullivan County Airport on October 26 when it considered its obligations under the certificate to end.
This led to the motion resulting in the order here under review. The Sullivan authorities promptly made a further application to the Board, arguing that § 9(b) of the APA compelled Mohawk to furnish service until its 1967 renewal application was finally determined, and moving for an order to that end. On October 30 the Board denied the motion on the ground that it was powerless to require Mohawk to render servcie except as a possible outcome of the § 401(g) proceeding. Meanwhile Mohawk had discontinued service on October 26, and Examiner Fitzmaurice had rendered an initial decision in the § 401(g) case adverse to the Sullivan authorities. On November 18, the latter sought discretionary review of the Examiner’s decision under the Board’s Rule 28, 14 C.F. R. § 302.28. In addition, they had also instituted an action for a declaratory judgment and an injunction in the District Court for the Southern District of New York. It was agreed that proceedings there should be suspended pending review of the Board’s October 30 order in this court. The Sullivan authorities filed a petition for such review on November 9, which we heard on December 3.
If Mohawk’s renewal application had been for a period expiring October 26, 1970, simpliciter, the correctness of the Board’s decision would be so clear as not to require extended discussion. The final sentence of § 9(b) says that once a timely and sufficient application for renewal or a new license has been made, no “license with reference to an activity of a continuing nature” shall expire until that application has been finally determined. It does not say that an application for a renewal or a new license imposes an obligation beyond the terms sought, which the applicant does not wish to assume. If the words themselves left any doubt what the sentence meant, the context would remove it. The whole thrust of § 9(b) is to protect applicants and licensees, not to impose unsought obligations upon them. The first sentence directs that license applications shall be heard “within a reasonable time.” The second sentence protects against suspension or revocation unless written notice of the objectionable conduct is given to the licensee and he is afforded an opportunity to comply with all lawful requirements. The final sentence completes the circle by providing that if the licensee has timely sought renewal, the valuable rights conferred by a license for a limited term shall not be lost simply because the agency has not managed to decide the application before expiration of the existing license. As Mr. Justice Burton said, dissenting in Pan-Atlantic Steamship Corp. v. Atlantic Coast Line R.R., 353 U.S. 436, 444-445, 77 S.Ct. 999, 1005, 1 L.Ed.2d 963 (1957), in a passage with which the majority did not express disagreement:
The policy behind the third sentence of § .9(b) is that of protecting those persons who already have regularly issued licenses from the serious hardships occasioned both to them and to the public by expiration of a license before the agency finds time to pass upon its renewal.
S.ee also Attorney General’s Manual on the Administrative Procedure Act 91-92 (1947).
It may well be, although we do not decide the point, that when the holder of a certificate limited in time applies for a renewal for a fixed period, a literal application of the final sentence of § 9(b) of the APA and the public interest considerations mentioned by Mr. Justice Burton would prevent his withdrawing the application or ceasing service before the stipulated date except on authorization granted pursuant to § 401(g) or (j). But it would be stretching the language of the last sentence of § 9(b) outside its reasonable meaning or intended purpose to give it the effect of prolonging through an indefinite period of administrative inaction the authorization of an unwilling licensee beyond the fixed period for which he has sought renewal.
The Sullivan authorities argue that even if that should be so, a different result is required here because of the second sentence in the renewal application, usually dubbed the “catchall” clause, in which Mohawk prayed “for such other, further, and different relief as the Board may deem appropriate.” Examination of the Board’s files would doubtless reveal such precautionary language in certificate applications going back to the agency’s earliest days. The draftsmen of thirty years ago were very likely following equity pleading practice, see, e. g., Form 17 to F.R.Civ.P., without any particularly definite idea what they meant the clause to accomplish. Other practitioners followed their example for safety’s sake. Gradually certain uses did emerge. If a person applied for a permanent certificate but, after hearing, was given a temporary one, the “catchall” would surely protect against an adverse party’s claim of not having been put on proper notice. See, e. g., Salt Lake City—Rapid City Extension Case, 16 C.A.B. 594, 600 (1952). Whether the catchall clause would oblige the applicant to accept such a certificate or would require an applicant for a short-term certificate to accept one of longer duration are different questions, which do not seem to have arisen. An even more important usefulness was in matters of routing and points of service. The Board might decide to grant certain points sought by an applicant but not others, to arrange them in a different way, to impose restrictions against nonstop or turn-around service, or to authorize service to certain points not sought but nevertheless accepted with varying degrees of enthusiasm. The value of a catchall clause' in empowering the Board to authorize routes not specifically requested and in protecting against an adverse party’s claim of lack of notice when the Board gave such an authorization was impressively demonstrated by CAB v. State Airlines, Inc., 338 U.S. 572, 575-577, 70 S.Ct. 379, 94 L.Ed. 353 (1950). Again the issue whether a mere catchall clause would require an applicant to serve an unrequested stop which the Board included in its certificate seems not to have arisen; the applicant in North Central Airlines, Inc. v. CAB, 281 F.2d 18, 108 U.S.App.D.C. 185 (D.C.Cir. 1960), had gone considerably beyond the stereotyped phraseolgy in indicating willingness to serve additional unspecified cities..
The Board would scarcely have been justified and was much less required to read the catchall clause of Mohawk’s 1967 renewal application as expanding timewise the carrier’s extremely specific request for renewal of its authorization to serve Liberty/Monticello on segments 1 and 2 “for three years from the present expiration date.” The catchall clause could scarcely turn such an explicit declaration of desire to serve for a limited period even without a sifting of the facts into an indication of willingness to serve for whatever period the Board might choose to take to determine the renewal application. Mohawk expected that before the end of the specified term it would have had experience in operating to and from the Sullivan County Airport, which was scheduled for completion by June of 1968, and the proof of the pudding would then be in the eating. Mohawk has now had over a year’s experience in serving Liberty/Monticello and considers it a losing proposition. Whatever effect the catchall clause might have had if the Board had acted on the renewal application before October 26, 1970, and had decided to continue the authority beyond that date, or whatever bearing it may have on the Board’s power to force Liberty/Monticello upon Mohawk under § 401(g) if the agency should disagree with its Trial Examiner as to the conclusions to be drawn from the evidence developed in the case brought by Sullivan County under that section, issues on which we intimate no opinion, it did not have the effect of continuing Mohawk’s obligation to serve Liberty/Monticello after October 26, 1970, without an agency determination of any sort.
We therefore deny the petition to review. We also deny a motion for a mandatory injunction to direct the Board to compel continued service by Mohawk. This seems only to be asking the same thing in another way which would pose additional problems.
. Liberty/Monticello was designated as an intermediate point in segment 1 between New York, N. Y./Newark, N. J., and Buffalo and Niagara Falls, N. Y., and on segment 2 between New York, N. Y./Newark, N. J. and northern New York points. The remainder of these two authorizations was permanent.
. The County asserts the airport was “designed to meet all of Mohawk’s requirements.” Mohawk says the airport, especially the large terminal building, went far beyond them.
. If it becomes apparent that the agency will not complete proceedings before the stipulated date and the licensee wishes the license to continue, presumably he can amend his renewal application or file a new one. See 14 C.F.R. § 377.10(c).
. As Mr. Justice Reed pointed out in the opinion in that case, 281 F.2d at 21, the problem is related to but somewhat different from the issue of the Board’s power under § 401(g) [§ 401(h) of the earlier Civil Aeronautics Act of 1938, 52 Stat. 973, 989] to amend an existing certificate to include points the carrier does not wish to serve.
. Examiner Fitzmaurice’s initial decision contains other material indicating Mohawk’s scepticism in early 1967 concerning the Sullivan County operation.
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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songer_appel1_3_2
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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.
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 "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AIR FLOW SHEET METAL, INC., and Local Union No. 156, Sheet Metal Workers’ International Association, AFL-CIO, Respondents.
No. 16522.
United States Court of Appeals Seventh Circuit.
May 20, 1968.
Marcel Mallet-Prevost, Asst. General Counsel, William H. Carder, Attorney, N.L.R.B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Nancy M. Sherman, Attorney, N.L.R.B., for petitioner.
Max E. Hobbs, Larry T. Miller, Frank A. Higgins, Fort Wayne, Ind., Dale, Duemling & Miller, Fort Wayne, Ind., of counsel, for respondent Air Flow Sheet Metal, Inc.
Before CASTLE, KILEY and CUMMINGS, Circuit Judges.
KILEY, Circuit Judge.
The National Labor Relations Board found that respondent Union violated Secs. 8(b) (2) and (1) (A) of the National Labor Relations Act by causing Air Flow Sheet Metal, Inc., to discharge its employee Milligan for a reason other than non-payment of dues or initiation fees; and that Air Flow violated Secs. 8(a) (3) and (1) of the Act by discharging Milligan. The Board ordered, inter alia, that the Union cease and desist from its unlawful conduct and that Air Flow offer Milligan reemployment and make him whole for loss of pay. We agree with the Board that its order should be enforced.
Air Flow, of Fort Wayne, Indiana, is in the business of installing sheet metal products in building construction. As a member of a contractor’s association, it is party to a collective bargaining agreement with the Union. The security clause of the agreement requires as a condition of employment that an employee join the Union within eight days after employment.
Milligan was employed by Air Flow on September 1, 1965, and began work in Kokomo, Indiana. He applied for Union membership about September 15 and made a down payment on the initiation fee. On November 1 he was transferred to “the RCA job” at Marion, Indiana. On January 19, 1966, he was transferred to “the Corning Glass Works job” at Bluff ton, Indiana. His work on behalf of Air Flow terminated “on or about” January 20, 1966, and four days later he filed the unfair labor practice charges in this record.
The complaint alleges that the Union “on or about January 19 and 20, 1966,” caused Air Flow to Discharge Milligan at Air Flow’s Marion and Bluffton, Indiana, job sites and that the Union continues to prevent Air Flow from reinstating Milligan in his job. It is further alleged that the Union’s conduct was based on Milligan’s non-membership in the Union, his criticism of the Union, his failure to take a Union examination and his failure to obtain Union clearance for his employment. Air Flow and the Union denied substantially all the charges.
The Board adopted, in substance, the decision and recommendation of the Trial Examiner, in entering the order. The Examiner found that the Union caused Air Flow to discharge Milligan because he was not a Union member, and had not taken and passed an examination for journeymen sheet metal workers.
The issues raised by the Union and Air Flow are; whether the record supports the finding that there was a discharge; whether, if there was a discharge, it was for good cause; whether in suspending Milligan on January 20, 1966, the Union was within its right to enforce its Union rules; whether the Examiner’s credibility findings, favoring Milligan, are justified on the record; and whether the Union and Air Flow were denied a fair hearing because of the Examiner’s conduct.
The respondents contend they were denied a fair adversary hearing because the Examiner assumed the role of Board advocate. We have read the Trial Examiner’s questioning of General Counsel witnesses Ehrman, Krock and Milligan, and of respondents’ witnesses Quarles, Shaw and Ehrman. We think that the Trial Examiner went beyond his function of Examiner in certain instances by taking over the questioning of witnesses of both parties.
An examiner is not required to assume a wholly passive role and should participate in the proceeding whenever necessary to the end that the hearing proceed in an orderly, expeditious fashion. On the other hand, he should permit the attorneys for the parties to question the witnesses in their own way to develop their own cases. We do not find, as the court did in Tele-Trip Co. v. NLRB, 4 Cir., 340 F.2d 575, that the Examiner’s questioning was “argumentative” or displayed “a critical approach, obvious disbelief,” or an attitude “closely bordering on partisanship or even hostility.” The court in TeleTrip, although it did make the above findings and although it was highly critical of the examiner, p. 581, did not order a new hearing.
The record here merely shows an impatience on the Examiner’s part to allow the attorneys to evoke the testimony their own way. We disapprove, because we think this practice if approved might lead to implications of partiality and might lessen respect for the administrative process under the NLRA. We conclude, however, that the Examiner’s conduct here did not deny respondents a fair hearing, and did not lead to a distorted result.
We see no merit in the contention of respondents that the Examiner contributed to an unfair hearing because he permitted testimony outside the issues. The Examiner did make findings, not adopted by the Board, with respect to violations which had not been put in issue by the unfair labor practice charges. The testimony which related to these findings was introduced by respondents, as well as the General Counsel, and related to events the day before the January 20 discharge as well as events subsequent to the discharge. The testimony is not'unrelated to the charges actually made since the allegation of the charge was that the discharge took place on or about January 19 and 20 and since the testimony was relevant to the issue of the employer’s reason for discharging Milligan. We cannot find any prejudice to respondents because of the testimony on which the findings of additional violations were based.
We hold the testimony amply supports the Board’s conclusion that the Union violated Secs. 8(b) (1) (A) and 8(b) (2) by causing Air Flow to discharge Milligan because he had not taken the Union examination; and that Air Flow violated 8(a) (1) and (3) by discharging Milligan and refusing to reinstate him for reasons other than nonpayment of initation fees and dues.
The Examiner could, with substantial support find the following; Union Steward Beatty at a Union meeting January 17 reported that Milligan had stated to Union members on the RCA job that he did not have to, and would not, join the Union; that Union business agent Krock was informed the men would walk off the job unless the matter was straightened out and that Krock promised to go to the RCA job and straighten “it” out. On the morning of January 19, 1966, Krock and Beatty and Air Flow’s Project Manager Thomas and Superintendent Quarles met with Milligan. Thomas and Quarles heard Krock tell Milligan he could not work until he took the Union examination. Krock “suggested” Thomas and Quarles lay Milligan off until he took the examination. Thomas and Quarles, faced with a “slow down” on the job because of Milligan’s Union trouble, readily accepted the suggestion and ■told Milligan he had to be laid off. He was paid up to the end of the day.
Milligan then reported what happened to Ehrman, Air Flow’s Operations Manager. An hour later Ehrman told him he had not been “fired,” but had been transferred and to report the next morning at the Bluffton Corning Glass job. He reported January 20 to Shaw, superintendent of Air Flow’s subcontractor, who directed the sheet metal workers at Bluffton. Krock came to the job in the morning, told Milligan in Shaw’s presence that he had been suspended by the Union and could not work until he had taken the examination and been admitted to membership in the Union. Shaw told Milligan he could not work in view of the suspension. Milligan told Shaw to inform Ehrman of what happened and to say Milligan was on his way to get his check. When Milligan arrived at Ehrman’s office, his check had been prepared. Ehrman told him he could return to work when he had straightened out his trouble with the Union.
It is true that under the Union security clause Milligan was required to be a member of the Union for continued employment. But Milligan’s Sec. 7 rights and the restraints upon the Union in 8(b) (2) and upon Air Flow in 8(a) (3) are as much a part of the bargaining agreement as if they had been expressly stated. The Union could not cause the discharge of Milligan for non-membership in the Union unless he had failed to tender his initiation fee and dues, nor could Air Flow discharge him for non-membership if it knew, or should reasonably have known, that he was being denied membership for not taking an examination.
Respondent argues that if Milligan was fired it was for causing disturbances among the other men, and not for failure to take the Union examination. While it is probably true that Milligan was an abrasive element on the job, the Board could well infer that when Milligan was told by Thomas that Air Flow would have to “let him go,” it was not because of unsatisfactory performance but because of Milligan’s Union trouble and its effect on the work progress. Milligan had been on the RCA job for more than two months and there is no evidence that Thomas and Quarles had thought, before January 19, of discharging Milligan for unsatisfactory work or causing dissension. Moreover, Shaw’s statement on the 20th that Milligan could not work with a Union suspension and Ehrman’s statement on the 20th that Milligan could return to work after he was straightened out with the Union leave no doubt about the reason for Milligan’s discharge on January 20.
We conclude that Milligan’s discharge was not justified here, as was that of Gonzalez in NLRB v. V. C. Britton Co., 9 Cir., 352 F.2d 797, 799; and he did not voluntarily leave his job, as Ram did in NLRB v. Brown, 9 Cir., 310 F.2d 539, 546, 547.
What the Sixth Circuit said in NLRB v. Leece-Neville Co., 330 F.2d 242, about burdening the employer with the duty of investigating whether dues had been paid is not pertinent here, since there is substantial support in the record for the conclusion that the Company knew the reason for Milligan’s Union trouble was not failure to pay dues or fees. Moreover, there was no conflicting evidence before the employer as to the reason why the Union sought Milligan’s discharge as there was in the Leece-Nevitte case.
There is no merit in arguments that we should decide that Milligan was not discharged because he could not testify the word “fired” was used. The claim that he “quit” work on either day is ridiculous on this record. Nor is there merit in the claim that he was not believable because he is a “convicted liar” or because of his “record” of arrests, convictions and imprisonment.
We think the testimony for Air Flow carries its own weaknesses because of the conflict between the testimony of Krock, and that of Thomas and Quarles, with regard to what transpired at the January 19 meeting with Milligan; because of the incredibility of Shaw’s testimony that he was present, but did not hear, what Krock said to Milligan on January 20; and because of the incredibility of the testimony of Ehrman that he had Milligan’s check prepared in advance on January 20 for the reason that he had decided the day before to fire Milligan for reasons not related to the Union.
No case cited justifies our setting aside the Board’s credibility determinations on the record before us. We accept the credibility findings of the Examiner, adopted by the Board, as substantially supported by the record.
The order will be enforced.
. Local No. 156, Sheet Metal Workers’ International Association, AFL-CIO.
. The Board did not adopt the Examiner’s findings with respect to violations in the January 19 transfer of Milligan or in the denial of Union membership and reinstatement in employment because of his filing of charges with the Board. The reason is that these “violations” were neither charged in the complaint nor presented at the hearing.
. (b) It shall be an unfair labor practice for a labor organization or its agents—
(2) * * * to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;
Question: This question concerns the first listed appellant. 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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sc_respondent
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102
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
BRIDGE et al. v. PHOENIX BOND & INDEMNITY CO. et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 07-210.
Argued April 14, 2008
Decided June 9, 2008
Theodore M. Becker argued the cause for petitioners. With him on the briefs were Peter Buscemi and Joseph Brooks.
David W. DeBruin argued the cause for respondents. With him on the brief were Ian Heath Gershengorn and Lowell E. Sachnoff.
Eric D. Miller argued the cause for the United States as amicus curiae in support of respondents. On the brief were former Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, and Pratik A. Shah.
Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States of America by Gene C. Schaerr, Linda T. Coberly, Charles B. Klein, Robin S. Conrad, and Amar D. Sarwal; for the McKesson Corp. by Beth S. Brinkmann and Brian R. Matsui; and for the Washington Legal Foundation by Daniel J. Popeo and Richard A. Samp.
Briefs of amici curiae urging affirmance were filed for the State of Connecticut et al. by Richard Blumenthal, Attorney General of Connecticut, Robert B. Teitelman, Assistant Attorney General, and Barry C. Barnett, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Lisa Madigan of Illinois, Mike McGrath of Montana, Gary K. King of New Mexico, Marc Dann of Ohio, W. A. Drew Edmondson of Oklahoma, and Robert E. Cooper, Jr., of Tennessee; for the International Association of Insurance Receivers by C. Philip Curley, Cynthia H. Hyndman, and Robert S. Michaels; and for the National Association of Shareholder and Consumer Attorneys by Kevin P. Roddy and G. Robert Blakey.
Justice Thomas
delivered the opinion of the Court.
The Racketeer Influenced and Corrupt Organizations Act (RICO or Act), 18 U. S. C. §§ 1961-1968, provides a private right of action for treble damages to “[a]ny person injured in his business or property by reason of a violation” of the Act’s criminal prohibitions. § 1964(c). The question presented in this case is whether a plaintiff asserting a RICO claim predicated on mail fraud must plead and prove that it relied on the defendant’s alleged misrepresentations. Because we agree with the Court of Appeals that a showing of first-party reliance is not required, we affirm.
I
Each year the Cook County, Illinois, Treasurer’s Office holds a public auction at which it sells tax liens it has acquired on the property of delinquent taxpayers. Prospective buyers bid on the liens, but not in cash amounts. Instead, the bids are stated as percentage penalties the property owner must pay the winning bidder in order to clear the lien. The bidder willing to accept the lowest penalty wins the auction and obtains the right to purchase the lien in exchange for paying the outstanding taxes on the property. The property owner may then redeem the property by paying the lienholder the delinquent taxes, plus the penalty established at the auction and an additional 12% penalty on any taxes subsequently paid by the lienholder. If the property owner does not redeem the property within the statutory redemption period, the lienholder may obtain a tax deed for the property, thereby in effect purchasing the property for the value of the delinquent taxes.
Because property acquired in this manner can often be sold at a significant profit over the amount paid for the lien, the auctions are marked by stiff competition. As a result, most parcels attract multiple bidders willing to accept the lowest penalty permissible — 0%, that is to say, no penalty at all. (Perhaps to prevent the perverse incentive taxpayers would have if they could redeem their property from a winning bidder for less than the amount of their unpaid taxes, the county does not accept negative bids.) The lower limit of 0% creates a problem: Who wins when the bidding results in a tie? The county’s solution is to allocate parcels “on a rotational basis” in order to ensure that liens are apportioned fairly among 0% bidders. App. 18.
But this creates a perverse incentive of its own: Bidders who, in addition to bidding themselves, send agents to bid on their behalf will obtain a disproportionate share of liens. To prevent this kind of manipulation, the county adopted the “Single, Simultaneous Bidder Rule,” which requires each “tax buying entity” to submit bids in its own name and prohibits it from using “apparent agents, employees, or related entities” to submit simultaneous bids for the same parcel. Id., at 67. Upon registering for an auction, each bidder must submit a sworn affidavit affirming that it complies with the Single, Simultaneous Bidder Rule.
Petitioners and respondents are regular participants in Cook County’s tax sales. In July 2005, respondents filed a complaint in the United States District Court for the Northern District of Illinois, contending that petitioners had fraudulently obtained a disproportionate share of liens by violating the Single, Simultaneous Bidder Rule at the auctions held from 2002 to 2005. According to respondents, petitioner Sabre Group, LLC, and its principal Barrett Rochman arranged for related firms to bid on Sabre Group’s behalf and directed them to file false attestations that they complied with the Single, Simultaneous Bidder Rule. Having thus fraudulently obtained the opportunity to participate in the auction, the related firms collusively bid on the same properties at a 0% rate. As a result, when the county allocated liens on a rotating basis, it treated the related firms as independent entities, allowing them collectively to acquire a greater number of liens than would have been granted to a single bidder acting alone. The related firms then purchased the liens and transferred the certificates of purchase to Sabre Group. In this way, respondents allege, petitioners deprived them and other bidders of their fair share of liens and the attendant financial benefits.
Respondents’ complaint contains five counts. Counts I-IV allege that petitioners violated and conspired to violate RICO by conducting their affairs through a pattern of racketeering activity involving numerous acts of mail fraud. In support of their allegations of mail fraud, respondents assert that petitioners “mailed or caused to be mailed hundreds of mailings in furtherance of the scheme,” id., at 49, when they sent property owners various notices required by Illinois law. Count V alleges a state-law claim of tortious interference with prospective business advantage.
On petitioners’ motion, the District Court dismissed respondents’ RICO claims for lack of standing. It observed that “[o]nly [respondents] and other competing buyers, as opposed to the Treasurer or the property owners, would suffer a financial loss from a scheme to violate the Single, Simultaneous Bidder Rule.” App. to Pet. for Cert. 17a. But it concluded that respondents “are not in the class of individuals protected by the mail fraud statute, and therefore are not within the ‘zone of interests’ that the RICO statute protects,” because they “were not recipients of the alleged misrepresentations and, at best were indirect victims of the alleged fraud.” Id., at 18a. The District Court declined to exercise supplemental jurisdiction over respondents’ tortious-interference claim and dismissed it without prejudice.
The Court of Appeals for the Seventh Circuit reversed. It first concluded that “[standing is not a problem in this suit” because respondents suffered a “real injury” when they lost the valuable chance to acquire more liens, and because “that injury can be redressed by damages.” 477 F. 3d 928, 930 (2007). The Court of Appeals next concluded that respondents had sufficiently alleged proximate cause under Holmes v. Securities Investor Protection Corporation, 503 U. S. 258 (1992), and Anza v. Ideal Steel Supply Corp., 547 U. S. 451 (2006), because they (along with other losing bidders) were “immediately injured” by petitioners’ scheme. 477 F. 3d, at 930-932. Finally, the Court of Appeals rejected petitioners’ argument that respondents are not entitled to relief under RICO because they did not receive, and therefore did not rely on, any false statements: “A scheme that injures D by making false statements through the mail to E is mail fraud, and actionable by D through RICO if the injury is not derivative of someone else’s.” Id., at 932.
With respect to this last holding, the Court of Appeals acknowledged that courts have taken conflicting views. By its count, “[t]hree other circuits that have considered this question agree... that the direct victim may recover through RICO whether or not it is the direct recipient of the false statements,” ibid, (citing Mid Atlantic Telecom, Inc. v. Long Distance Servs., Inc., 18 F. 3d 260,263-264 (CA4 1994); Systems Management, Inc. v. Loiselle, 303 F. 3d 100,103-104 (CA1 2002); Ideal Steel Supply Corp. v. Anza, 373 F. 3d 251, 263 (CA2 2004)), whereas two Circuits hold that the plaintiff must show that it in fact relied on the defendant’s misrepresentations, 477 F. 3d, at 932 (citing VanDenBroeck v. CommonPoint Mortgage Co., 210 F. 3d 696,701 (CA6 2000); Sikes v. Teleline, Inc., 281 F. 3d 1350, 1360-1361 (CA11 2002)). Compare also Sandwich Chef of Texas, Inc. v. Reliance Nat. Indemnity Ins. Co., 319 F. 3d 205, 223 (CA5 2003) (recognizing “a narrow exception to the requirement that the plaintiff prove direct reliance on the defendant’s fraudulent predicate act... when the plaintiff can demonstrate injury as a direct and contemporaneous result of [a] fraud committed against a third party”), with Appletree Square I, L. P. v. W. R. Grace & Co., 29 F. 3d 1283,1286-1287 (CA8 1994) (requiring the plaintiff to show that it detrimentally relied on the defendant’s misrepresentations).
We granted certiorari, 552 U. S. 1087 (2008), to resolve the conflict among the Courts of Appeals on “the substantial question,” Anza, supra, at 461, whether first-party reliance is an element of a civil RICO claim predicated on mail fraud.
II
We begin by setting forth the applicable statutory provisions. RICO’s private right of action is contained in 18 U. S. C. § 1964(c), which provides in relevant part that “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.” Section 1962 contains RICO’s criminal prohibitions. Pertinent here is § 1962(c), which makes it “unlawful for any person employed by or associated with” an enterprise engaged in or affecting interstate or foreign commerce “to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” The term “racketeering activity” is defined to include a host of so-called predicate acts, including “any act which is indictable under... section 1341 (relating to mail fraud).” § 1961(1)(B).
The upshot is that RICO provides a private right of action for treble damages to any person injured in his business or property by reason of the conduct of a qualifying enterprise’s affairs through a pattern of acts indictable as mail fraud. Mail fraud, in turn, occurs whenever a person, “having devised or intending to devise any scheme or artifice to defraud,” uses the mail “for the purpose of executing such scheme or artifice or attempting so to do.” §1341. The gravamen of the offense is the scheme to defraud, and any “mailing that is incident to an essential part of the scheme satisfies the mailing element,” Schmuck v. United States, 489 U. S. 705, 712 (1989) (citation and internal quotation marks omitted), even if the mailing itself “contain[s] no false information,” id., at 715.
Once the relationship among these statutory provisions is understood, respondents’ theory of the case is straightforward. They allege that petitioners devised a scheme to defraud when they agreed to submit false attestations of compliance with the Single, Simultaneous Bidder Rule to the county. In furtherance of this scheme, petitioners used the mail on numerous occasions to send the requisite notices to property owners. Each of these mailings was an “act which is indictable” as mail fraud, and together they constituted a “pattern of racketeering activity.” By conducting the affairs of their enterprise through this pattern of racketeering activity, petitioners violated § 1962(c). As a result, respondents lost the opportunity to acquire valuable liens. Accordingly, respondents were injured in their business or property by reason of petitioners’ violation of § 1962(c), and RICO’s plain terms give them a private right of action for treble damages.
Petitioners argue, however, that because the alleged pattern of racketeering activity consisted of acts of mail fraud, respondents must show that they relied on petitioners’ fraudulent misrepresentations. This they cannot do, because the alleged misrepresentations — petitioners’ attestations of compliance with the Single, Simultaneous Bidder Rule — were made to the county, not respondents. The county may well have relied on petitioners’ misrepresentations when it permitted them to participate in the auction, but respondents, never having received the misrepresentations, could not have done so. Indeed, respondents do not even allege that they relied on petitioners’ false attestations. Thus, petitioners submit, they fail to state a claim under RICO.
If petitioners’ proposed requirement of first-party reliance seems to come out of nowhere, there is a reason: Nothing on the face of the relevant statutory provisions imposes such a requirement. Using the mail to execute or attempt to execute a scheme to defraud is indictable as mail fraud, and hence a predicate act of racketeering under RICO, even if no one relied on any misrepresentation. See Neder v. United States, 527 U. S. 1, 24-25 (1999) (“The common-law requirement] of 'justifiable reliance’... plainly ha[s] no place in the [mail, wire, or bank] fraud statutes”). And one can conduct the affairs of a qualifying enterprise through a pattern of such acts without anyone relying on a fraudulent misrepresentation.
It thus seems plain — and indeed petitioners do not dispute — that no showing of reliance is required to establish that a person has violated § 1962(c) by conducting the affairs of an enterprise through a pattern of racketeering activity consisting of acts of mail fraud. See Anza, 547 U. S., at 476 (Thomas, J., concurring in part and dissenting in part) (“Because an individual can commit an indictable act of mail or wire fraud even if no one relies on his fraud, he can engage in a pattern of racketeering activity, in violation of § 1962, without proof of reliance”). If reliance is required, then, it must be by virtue of § 1964(c), which provides the right of action. But it is difficult to derive a first-party reliance requirement from § 1964(c), which states simply that “[a]ny person injured in his business or property by reason of a violation of section 1962” may sue for treble damages. The statute provides a right of action to “[a]ny person” injured by the violation, suggesting a breadth of coverage not easily reconciled with an implicit requirement that the plaintiff show reliance in addition to injury in his business or property.
Moreover, a person can be injured “by reason of” a pattern of mail fraud even if he has not relied on any misrepresentations. This is a case in point. Accepting their allegations as true, respondents clearly were injured by petitioners’ scheme: As a result of petitioners’ fraud, respondents lost valuable liens they otherwise would have been awarded. And this is true even though they did not rely on petitioners’ false attestations of compliance with the county’s rules. Or, to take another example, suppose an enterprise that wants to get rid of rival businesses mails misrepresentations about them to their customers and suppliers, but not to the rivals themselves. If the rival businesses lose money as a result of the misrepresentations, it would certainly seem that they were injured in their business “by reason of” a pattern of mail fraud, even though they never received, and therefore never relied on, the fraudulent mailings. Yet petitioners concede that, on their reading of § 1964(c), the rival businesses would have no cause of action under RICO, Tr. of Oral Arg. 4, even though they were the primary and intended victims of the scheme to defraud.
Lacking textual support for this counterintuitive position, petitioners rely instead on a combination of common-law rules and policy arguments in an effort to show that Congress should be presumed to have made first-party reliance an element of a civil RICO claim based on mail fraud. None of petitioners’ arguments persuades us to read a first-party reliance requirement into a statute that by its terms suggests none.
Ill
A
Petitioners first argue that RICO should be read to incorporate a first-party reliance requirement in fraud cases “under the rule that Congress intends to incorporate the well-settled meaning of the common-law terms it uses.” Neder, supra, at 23. It has long been settled, they contend, that only the recipient of a fraudulent misrepresentation may recover for common-law fraud, and that he may do so “if, but only if... he relies on the misrepresentation in acting or refraining from action.” 4 Restatement (Second) of Torts §537 (1977). Given this background rule of common law, petitioners maintain, Congress should be presumed to have adopted a first-party reliance requirement when it created a civil cause of action under RICO for victims of mail fraud.
In support of this argument, petitioners point to our decision in Beck v. Prupis, 529 U. S. 494 (2000). There, we considered the scope of RICO’s private right of action for violations of § 1962(d), which makes it “unlawful for any person to conspire to violate” RlCO’s criminal prohibitions. The question presented was “whether a person injured by an overt act in furtherance of a conspiracy may assert a civil RICO conspiracy claim under § 1964(c) for a violation of § 1962(d) even if the overt act does not constitute ‘racketeering activity.’” Id., at 500. Answering this question in the negative, we held that “injury caused by an overt act that is not an act of racketeering or otherwise wrongful under RICO is not sufficient to give rise to a cause of action under § 1964(c) for a violation of § 1962(d).” Id., at 505 (citation omitted). In so doing, we “turn[ed] to the well-established common law of civil conspiracy.” Id., at 500. Because it was “widely accepted” by the time of RlCO’s enactment “that a plaintiff could bring suit for civil conspiracy only if he had been injured by an act that was itself tortious,” id., at 501, we presumed “that when Congress established in RICO a civil cause of action for a person ‘injured... by reason of’ a ‘conspiracy],’ it meant to adopt these well-established common-law civil conspiracy principles,” id., at 504 (quoting §§ 1964(c), 1962(d); alterations in original). We specifically declined to rely on the law of criminal conspiracy, relying instead on the law of civil conspiracy:
“We have turned to the common law of criminal conspiracy to define what constitutes a violation of § 1962(d), see Salinas v. United States, 522 U. S. 52, 63-65 (1997), a mere violation being all that is necessary for criminal liability. This case, however, does not present simply the question of what constitutes a violation of § 1962(d), but rather the meaning of a civil cause of action for private injury by reason of such a violation. In other words, our task is to interpret §§ 1964(c) and 1962(d) in conjunction, rather than § 1962(d) standing alone. The obvious source in the common law for the combined meaning of these provisions is the law of civil conspiracy.” Id., at 501, n. 6.
Petitioners argue that, as in Beck, we should look to the common-law meaning of civil fraud in order to give content to the civil cause of action § 1964(c) provides for private injury by reason of a violation of § 1962(c) based on a pattern of mail fraud. The analogy to Beck, however, is misplaced. The critical difference between Beck and this case is that in § 1962(d) Congress used a term — “conspiracy]”—that had a settled common-law meaning, whereas Congress included no such term in § 1962(c). Section 1962(c) does not use the term “fraud”; nor does the operative language of §1961(1)(B), which defines “racketeering activity” to include “any act which is indictable under... section 1341.” And the indictable act under § 1341 is not the fraudulent misrepresentation, but rather the use of the mails with the purpose of executing or attempting to execute a scheme to defraud. In short, the key term in § 1962(c) — “racketeering activity” — is a defined term, and Congress defined the predicate act not as fraud sim/pliciter, but mail fraud — a statutory offense unknown to the common law. In these circumstances, the presumption that Congress intends to adopt the settled meaning of common-law terms has little pull. Cf. Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U. S. 148, 162 (2008) (rejecting the argument that § 10(b) of the Securities Exchange Act of 1934, 15 U. S. C. § 78j(b), incorporates common-law fraud). There is simply no “reason to believe that Congress would have defined ‘racketeering activity’ to include acts indictable under the mail and wire fraud statutes, if it intended fraud-related acts to be predicate acts under RICO only when those acts would have been actionable under the common law.” Anza, 547 U. S., at 477-
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
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.
Althea KOPP, Appellant, v. UNITED STATES of America, Appellee.
No. 12458.
Circuit Court of Appeals, Eighth Circuit.
March 15, 1943.
Walter A. Raymond, of Kansas City, Mo. (Homer A. Cope and A. D. Had^ell, both of Kansas City, Mo., on the brief), for appellant.
Otto Schmid, Asst. U. S. Atty., of Kansas City, Mo. for appellee.
Before STONE, WOODROUGH, and RIDDICK, Circuit Judges.
PER CURIAM.
This is an appeal from judgment of conviction on five counts of an indictment, each of which charged entry of a member bank of the Federal Reserve System with intent to commit a felony. The felony alleged was cashing of a forged check which,- the indictment charged, was a felony under Sections 4571 and 4572 of the Revised Statutes of Missouri, 1939, Mo.R.S.A. §§ 4571, 4572.
This case is ruled by Jerome v. United States of America, 63 S.Ct. 483, 87 L. Ed. _, decided February 1, 1943. Accordingly, the judgment is reversed and the cause remanded with directions to set aside the judgment, to dismiss the indictment, and to order discharge of appellant from custody.
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_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, Plaintiff-Appellee, v. Charles Kyle GRAY, Defendant, Argonaut Insurance Company, Movant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Barbara Ann GASTON, Defendant, Argonaut Insurance Company, Movant-Appellant.
Nos. 77-2299 and 77-2300
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 2, 1978.
Janet Reno, Miami, Fla., for movant-appellant in both cases.
J. V. Eskenazi, U. S. Atty., Mervyn L. Ames, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee in both cases.
Before RONEY, GEE and FAY, Circuit Judges.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir 1970, 431 F.2d 409, Part I.
PER CURIAM:
In this appeal, the appellant Argonaut Insurance Company asserts that justice did not require the enforcement of two $100,000 appearance bond forfeitures entered against it in the court below and that these bonds should have been set aside under Fed.R.Crim.P. 46(e)(2). We decline to address this question, and consider instead whether the lower court abused its discretion in refusing to set aside the forfeitures. After careful review of the testimony, much of it taken confidentially in camera, we conclude that the lower court did not abuse its discretion, and affirm.
This Court has consistently held that the standard of review for a district court’s refusal to remit part or all of a bond forfeiture is whether the district court abused its discretion. United States v. Shelton, 444 F.2d 522, 523 (5th Cir. 1971); Brown v. United States, 410 F.2d 212, 218 (5th Cir. 1969). We are convinced that a similar standard should be applied when a district court refuses to set aside a bond forfeiture. See United States v. Foster, 417 F.2d 1254, 1256 (7th Cir. 1969). While reasonable minds could have concluded, contrary to the decision of the court below, that justice did not here require a bond forfeiture, we are not persuaded that the lower court abused its discretion in reaching the decision that it did.
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_constit
|
B
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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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
Frank YECK, Petitioner-Appellant, v. Truett GOODWIN, Superintendent, Central Correctional Institute, Respondent-Appellee.
No. 92-8150.
United States Court of Appeals, Eleventh Circuit.
March 9, 1993.
Darel C. Mitchell, Rich, Bass, Kidd and Witcher, Decatur, GA, for petitioner-appellant.
Susan Y. Boleyn, Mary Beth Westmore-land, Asst. Attys. Gen., Atlanta, GA, for respondent-appellee.
Before HATCHETT, EDMONDSON and BIRCH, Circuit Judges.
HATCHETT, Circuit Judge:
This case presents the issue of whether a lawyer’s representation of the appellant and a codefendant created such a conflict of interest that it adversely affected the lawyer’s performance. Finding no adverse effect on the lawyer’s performance, we affirm the district court’s denial of habeas corpus relief.
FACTS
On August 24, 1983, John Jackson called his estranged wife (“the victim”) of four months and told her that he wanted to reconcile their marriage. He suggested that they drive to “Clark’s Hill” to discuss their marriage. The next morning, on August 25, 1983, the victim met Jackson, and he told her that Frank Yeck, the appellant, had her bible and they should get it before going to Clark’s Hill. The victim felt uneasy about going to Yeck’s house because in October of 1981, she had been subjected to sexual bondage at Yeck’s house, but Jackson assured her it would be safe. With hesitation, the victim agreed, and she and Jackson drove to Yeck’s house.
Upon entering Yeck’s house, the victim realized that Jackson and Yeck had a prearranged agreement about what would happen to her. Under the agreement, Jackson would leave the victim with Yeck to perform sexual favors for a few days to extinguish a $200 debt Jackson and the victim owed Yeck. The victim testified that she did not object out of fear and because Jackson threatened her.
While Yeck, Jackson, and the victim stood in the living room, Yeck instructed the victim to remove all of her clothing. She complied without hesitation. After leading her into the bedroom, Yeck then left the bedroom and joined Jackson outside. With the victim’s consent, Jackson left the house in the victim’s automobile. Yeck returned to the bedroom and engaged in various sexual bondage acts with the victim.
Yeck claimed that he offered the victim several options: (1) leave her bible with him as collateral; (2) sign a mechanic’s lien on her car; (3) give him the car; (4) stay with him for a few days; or (5) leave with the bible. Yeck testified that the victim chose to stay with him. Yeck also testified that the victim was a willing partner; the victim claimed that she was not a willing partner, but afraid to object.
The next day Jackson returned. Yeck ordered the victim into the living room where he ordered her to kneel before him to show Jackson what had been done. After Yeck instructed the victim to remove her clothing, Jackson witnessed the victim’s bruised breasts, wrists, and ankles. Jackson promised that he would return to Yeck’s house to stay with the victim while Yeck was at work; instead, Jackson left the house and never returned. When Yeck left the house later that afternoon, the victim escaped and reported to law enforcement officers the events that had occurred at Yeck’s house.
PROCEDURAL HISTORY
Law enforcement officers arrested Yeck on the morning of August 27, 1983, and arrested Jackson on the afternoon of August 29, 1983. A grand jury indicted each one on one rape charge, two aggravated sodomy charges, and one false imprisonment charge. On September 7, 1983, the Superior Court of Columbia County, Georgia held a preliminary hearing at which the court appointed Douglas J. Flanagan, a lawyer, to represent Jackson. Yeck retained G. Larry Bonner as his lawyer. After the preliminary hearing, Yeck also retained Flanagan as his lawyer. Flanagan filed motions for bail for Yeck and Jackson on October 3, 1983. Yeck posted bail; Jackson did not post bail. On the same day, Flanagan also filed numerous pretrial motions on behalf of Yeck. On October 5, 1983, Flanagan entered pleas of not guilty for Yeck and Jackson. Prior to Yeck’s trial, Jackson entered into a plea agreement, which required him to testify in exchange for a guilty plea on only the false imprisonment charge.
On April 30, 1984, the jury found Yeck guilty on all four counts of the indictment. The next month, on May 30, 1984, Jackson changed his not guilty plea to guilty on the false imprisonment charge. On May 31, 1984, the court sentenced Jackson to five years on the false imprisonment charge. On the same day, May 31, 1984, the court sentenced Yeck to life imprisonment on the rape charge, twenty years each on the two aggravated sodomy charges, and five years on the false imprisonment charge, all to be served consecutively.
Also on the same day, May 31, 1984, Flanagan filed a motion for continuation of bail, a motion for supersedeas bond pending appeal, and a motion for a new trial on behalf of Yeck. Flanagan later represented Yeck in an appeal to the Court of Appeals of Georgia, which affirmed Yeck’s convictions and sentences in Yeck v. State, 174 Ga.App. 710, 331 S.E.2d 76 (1985).
On July 28, 1987, with a new lawyer, Yeck filed a petition for state habeas corpus relief in the Superior Court of Chatham County. As grounds for relief, Yeck alleged ineffective assistance of counsel and improper jury instructions. On May 16, 1988, the state court conducted a habeas corpus evidentiary hearing, and on June 29, 1988, the court denied Yeck relief. On October 19, 1988, the Supreme Court of Georgia denied Yeck’s application for a certificate of probable cause to appeal.
After exhausting state remedies, Yeck initiated this federal habeas corpus proceeding, In his amended petition, Yeck asserted ineffective assistance of counsel and improper jury instructions as grounds for relief. After a report and recommendation from a United States Magistrate Judge, the district court adopted the magistrate judge’s recommendation and denied Yeek’s habeas corpus petition. Yeck appeals the district court’s ruling.
ISSUES
We are asked to decide whether Yeck had ineffective assistance of counsel due to a conflict of interest, and whether the trial court erred in charging the jury.
DISCUSSION
The state court held a hearing on the issues raised in the habeas corpus petitions, adequately addressing the conflict of interest claim. Neither the magistrate judge nor the district court held evidentiary hearings. Generally, the state court’s findings are entitled to a presumption of correctness. 28 U.S.C. § 2254(d); Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir.1987). Because the lower court’s findings are supported by the record, they will be accorded the usual presumption of correctness. See 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981). Additionally, whether Yeck had ineffective assistance of counsel is a mixed question of law and fact reviewed de novo, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980)).
The Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) enunciated the proper standard for reviewing ineffective assistance of counsel claims due to alleged conflicts of interest where the defendant raised no objection to the joint representation at trial. According to Cuyler, Yeck must demonstrate that “an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718. Additionally, the Court held that where a defendant satisfies this standard, prejudice need not be shown. Cuyler, 446 U.S. at 349-50, 100 S.Ct. at 1719; Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. This court in Ruffin v. Kemp, 767 F.2d 748 (11th Cir.1985) defined an “actual conflict of interest” as an instance where “counsel’s introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the defense of another defendant whom the same counsel is representing.” Ruffin, 767 F.2d at 750 (quoting Baty v. Balkcom, 661 F.2d 391, 395 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982)).
In Ruffin, this court held that a court-appointed lawyer, who attempted to arrange for a plea bargain where one code-fendant would plead guilty and testify against the other, labored under an actual conflict of interest. Ruffin, 767 F.2d at 751. The court found that because the lawyer negotiated a plea bargain for one codefendant that required him to testify against the second codefendant, the lawyer could not negotiate a plea bargain for the second codefendant and offer his testimony against the first codefendant. Ruffin, 767 F.2d at 752. Ruffin also held that the habeas corpus petitioner must prove that this actual conflict had an adverse impact on his lawyer’s performance. Ruffin, 767 F.2d at 751. The court concluded that the lawyer’s actions of offering the first code-fendant’s testimony against the second effectively precluded plea bargaining for the first codefendant and constituted an adverse impact on counsel's performance.
This case is distinguishable from Ruffin. In this case, Jackson did not really testify against Yeck. Rather, Jackson’s testimony supported Yeck’s defense of consent. Jackson testified that when the victim learned of the arrangement, “[s]he didn’t say anything.” He also testified that when Yeck instructed her to undress, “[s]he didn’t stall, she didn’t hesitate a bit.” On cross-examination, Jackson repeatedly indicated that the victim chose to stay with Yeck after learning of the agreement. Jackson testified that the victim loaned him her automobile with the understanding that he would return for her later. Jackson’s most damaging testimony merely indicated that the victim seemed apprehensive about going to Yeck’s house and appeared “startled” when she learned of the agreement.
Also, during oral argument to this court, Yeck’s new lawyer argued that because Jackson did not withdraw his not guilty plea until after the jury convicted Yeck on all four counts, a conflict existed. He argues that the jury indictment form showed Flanagan as the lawyer for both Yeck and Jackson with not guilty pleas entered for both. This, however, did not damage Yeck; it helped him. Because the jury indictment showed that Jackson pleaded not guilty to the charges, Jackson appeared to the jury to be a credible witness because it showed that, like Yeck, he also believed the victim consented.
The state correctly argues that Jackson’s testimony supported Yeck’s defense. Yeck admitted that he performed various sexual bondage acts with the victim, but with the victim’s consent. Jackson testified that though the victim seemed apprehensive about going to Yeck’s house, she never indicated that she wanted to leave. Consequently, Yeck’s lawyer’s performance was not adversely affected.
We also find the other ineffective assistance of counsel claims to be meritless. Yeck alleges that he had ineffective assistance of counsel because of Flanagan’s failure to do the following: (1) to reserve objections to the trial court’s charge; (2) to object to allegedly highly prejudicial hearsay testimony; (3) to use demonstrative evidence to show the improbability of doing acts that the victim claims occurred; (4) to call Yeck’s mother to testify; (5) to submit jury instructions; (6) to properly investigate the case and talk to witnesses; (7) to notify the court of intent to introduce the past sexual behavior of the victim; (8) to submit a requested charge on mistake of fact; and (9) to enumerate as error on appeal the trial court’s failure to charge the jury on mistake of fact.
Ineffective assistance of counsel claims are reviewed under the standard enunciated in Strickland. Yeck must show that his lawyer performed deficiently and that prejudice resulted because of this deficient performance. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Generally, a strong presumption exists that the lawyer rendered adequate assistance. Harich v. Dugger, 844 F.2d 1464, 1469 (11th Cir.1988); Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. As the Supreme Court recognized, the judiciary must give deference when reviewing a lawyer’s performance because it is easy to determine, after reviewing the case, that the lawyer acted unreasonably. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The district court found these ineffective assistance of counsel claims to be meritless. We agree. Because it is more plausible to dispose of Yeck’s ineffective of assistance of counsel claims based on failure to show prejudice, we will first determine whether Yeck has demonstrated prejudice. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.
Yeck lists nine alleged ineffective assistance of counsel claims, then summarily concludes that “Flanagan had r ';uty to [Yeck] to fully investigate his case and interview these witnesses,” and that “Flanagan stated in the record that he was not trying to go into other sexual incidents and that he was only discussing Mr. Yeck.” Though Yeck listed numerous, bare allegations of deficient performance, he failed to demonstrate any prejudice. To show prejudice, Yeck must show a reasonable probability that but for Flanagan’s deficient performance, he would not have been found guilty. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Yeck failed to satisfy the Strickland standard of prejudice.
The district court found that Yeck’s allegations regarding the trial court’s jury instructions had been procedurally defaulted. Though Flanagan objected to the admissibility of the sexual paraphernalia, he failed to request a limiting instruction on the admissibility of that evidence, failed to raise on appeal the trial court’s failure to give a limiting instruction, and failed to request a charge to the jury on mistake of fact. Thus, these claims have been procedurally defaulted. To overcome a procedural default, Yeck must show the requisite cause and prejudice expressed in Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 2643-44, 91 L.Ed.2d 397 (1986). In Murray, the Court stated, “that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State's procedural rule.” Murray, 477 U.S. at 488, 106 S.Ct. at 2645. Yeck has not established the requisite cause and prejudice to overcome the procedural default. Rather, Yeck argues the merits of his claims. Because Yeck has failed to show cause, the examination of the prejudice standard is obviated. McClesky v. Zant, — U.S. -, -, 111 S.Ct. 1454, 1475, 113 L.Ed.2d 517, 550 (1991). Yeck has not satisfied the Murray test; thus, we will not reach the merits of this issue.
For the foregoing reasons, the district court’s denial of the petition for writ of habeas corpus is affirmed.
AFFIRMED.
A few cases have recognized that a subsequent case, Baty v. Balkcom, 661 F.2d 391, 396 (5th Cir.1981), appears to indicate that no adverse effect on counsel’s performance need be demonstrated, but Strickland and later cases in this circuit affirm the standard set forth in Cuyler. See Ruffin v. Kemp, 767 F.2d 748, 751 (11th Cir.1985); Stevenson v. Newsome, 774 F.2d 1558, 1562 (11th Cir.1985); United States v. Khoury, 901 F.2d 948, 968 (11th Cir.1990).
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer:
|
sc_caseoriginstate
|
37
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
NEW YORK v. P. J. VIDEO, INC., dba NETWORK VIDEO, et al.
No. 85-363.
Argued March 4, 1986
Decided April 22, 1986
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and O’Connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan and Stevens, JJ., joined, post, p. 884.
John J. DeFranks argued the cause for petitioner. With him on the briefs was Richard J. Arcara.
Paul John Cambria, Jr., argued the cause and filed a brief for respondents.
Charles B. Ruttenberg and James P. Mercurio filed a brief for the Video Software Dealers Association as amicus curiae urging affirmance.
Justice Rehnquist
delivered the opinion of the Court.
This case concerns the proper standard for issuance of a warrant authorizing the seizure of materials presumptively protected by the First Amendment. Respondents P. J. Video, Inc., and James Erhardt were charged in the village of Depew, New York, Justice Court with six counts of obscenity in the third degree under § 235.05(1) of the New York Penal Law. Respondents moved to suppress five videocassette movies that had been seized from respondents’ store, and that formed the basis for the obscenity charges against respondents, on the ground that the warrant authorizing the seizure was issued without probable cause to believe that the movies were obscene. The Justice Court granted the motion and dismissed the informations under which respondents were charged, and both the County Court of Erie County and the New York Court of Appeals affirmed. 65 N. Y. 2d 566, 483 N. E. 2d 1120 (1985). We granted certiorari to resolve the conflict between the decision of the New York Court of Appeals in the instant case and the decisions in Sequoia Books, Inc. v. McDonald, 725 F. 2d 1091 (CA7 1984), and United States v. Pryba, 163 U. S. App. D. C. 389, 502 F. 2d 391 (1974), cert. denied, 419 U. S. 1127 (1975). 474 U. S. 918 (1985). We now reverse the judgment of the Court of Appeals.
The obscenity charges against respondents arose out of an investigation by the Erie County District Attorney’s Office. Investigator David J. Groblewski was assigned to review 10 videocassette movies that had been rented from respondents’ store by a member of the Erie County Sheriff’s Department. Groblewski viewed the movies in their entirety, and executed affidavits summarizing the theme of, and conduct depicted in, each film. The affidavits were attached to an application filed by the village of Depew Police Department for a warrant to search respondents’ store.
A justice of the New York Supreme Court issued the warrant, authorizing the search of the store and the seizure of the movies. The warrant was executed the next day and, according to a sworn, itemized inventory statement, the police seized 1 or 2 copies of each of the 10 movies. A total of 13 videocassettes were seized. The justice who had issued the warrant ordered that the videocassettes be temporarily retained by the police as evidence for trial. See N. Y. Crim. Proc. Law §§690.05-690.55 (McKinney 1984).
Respondents ultimately were charged in the village of Depew Justice Court with violating the New York obscenity laws with respect to only 5 of the 10 movies. The affidavits describing these five movies appear in full in the Appendix to this opinion. Respondents moved for suppression of the seized videocassettes, alleging that the warrant authorizing their seizure was not supported by probable cause because the issuing justice had not personally viewed the movies. The Justice Court granted the motion and dismissed the in-formations under which respondents were charged, and on the State’s appeal the County Court of Erie County affirmed.
The New York Court of Appeals likewise affirmed, although on a different theory than that of the Justice Court. According to the Court of Appeals, “there is a higher standard for evaluation of a warrant application seeking to seize such things as books and films, as distinguished from one seeking to seize weapons or drugs, for example (Roaden v. Kentucky, [413 U. S. 496], 504 [1973]; Marcus v. Search Warrant, 367 U. S. 717, 730-731 [1961]). In applying the [Fourth] Amendment to such items, the court must act with ‘scrupulous exactitude’ (Stanford v. Texas, 379 U. S. 476, 481-485 [1965]; see also, Maryland v. Macon, 472 U. S. 463 [1985]).” 65 N. Y. 2d, at 569-570, 483 N. E. 2d, at 1123 (footnote omitted). Using this “higher” probable-cause standard to review the affidavits submitted in support of the warrant application, the Court of Appeals stated:
“Many of the scenes described contain explicit sexual activity, patently offensive by any constitutional standard, but the allegations of the affidavits do not indicate whether they constitute all, most or a few of the scenes presented in the films. . . . The descriptions of the action are not supplemented by references to the narrative or dialogue of the films and the affiant attempted to describe the ‘character’ or ‘theme’ of the movies by settings having nothing to do with the plot .... He made no attempt to reveal the story line (or lack of one) of the films or demonstrate that their ‘predominant appeal’ was to prurient interest. In short, none of the affidavits permit an inference that the scenes described are more than a catalog of offensive parts of the whole.” Id., at 570-571, 483 N. E. 2d, at 1124.
The Court of Appeals concluded that the affidavits did not contain sufficient information to permit the issuing justice, “applying contemporary community standards, to judge the films as a whole and determine that they are within the statutory definitions of obscenity and thus are not entitled to constitutional protection.” Id., at 572, 483 N. E. 2d, at 1124 (footnote omitted). One judge dissented, arguing that the affidavits contained enough information for the issuing justice “to reasonably believe that the video movies were obscene as legislatively defined.” Id., at 573, 483 N. E. 2d, at 1125 (Jasen, J., dissenting).
We have long recognized that the seizure of films or books on the basis of their content implicates First Amendment concerns not raised by other kinds of seizures. For this reason, we have required that certain special conditions be met before such seizures may be carried out. In Roaden v. Kentucky, 413 U. S. 496 (1973), for example, we held that the police may not rely on the “exigency” exception to the Fourth Amendment’s warrant requirement in conducting a seizure of allegedly obscene materials, under circumstances where such a seizure would effectively constitute a “prior restraint.” In A Quantity of Books v. Kansas, 378 U. S. 205 (1964), and Marcus v. Search Warrant, 367 U. S. 717 (1961), we had gone a step farther, ruling that the large-scale seizure of books or films constituting a “prior restraint” must be preceded by an adversary hearing on the question of obscenity. In Heller v. New York, 413 U. S. 483 (1973), we emphasized that, even where a seizure of allegedly obscene materials would not constitute a “prior restraint,” but instead would merely preserve evidence for trial, the seizure must be made pursuant to a warrant and there must be an opportunity for a prompt postseizure judicial determination of obscenity. And in Lee Art Theatre, Inc. v. Virginia, 392 U. S. 636 (1968), we held that a warrant authorizing the seizure of materials presumptively protected by the First Amendment may not issue based solely on the conclusory allegations of a police officer that the sought-after materials are obscene, but instead must be supported by affidavits setting forth specific facts in order that the issuing magistrate may “focus searchingly on the question of obscenity.” Marcus, supra, at 732; see also Stanford v. Texas, 379 U. S. 476, 486 (1965).
The New York Court of Appeals construed our prior decisions in this area as standing for the additional proposition that an application for a warrant authorizing the seizure of books or films must be evaluated under a “higher” standard of probable cause than that used in other areas of Fourth Amendment law. But we have never held or said that such a “higher” standard is required by the First Amendment. In Heller, we said:
“[S]eizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film. If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party,' the seizure is constitutionally permissible. . . .
“The necessity for a prior judicial determination of probable cause will protect against gross abuses . . . .” 413 U. S., at 492-493 (emphasis added; footnotes omitted).
We think that this passage from Heller, emphasizing the requirement that the magistrate determine probable cause as a means of safeguarding First Amendment interests, and eschewing any suggestion that the standard of probable cause in the First Amendment area is different than in other contexts, suggests that we saw no need for the latter requirement. In our view, the longstanding special protections described above, and enunciated in cases such as Roaden, A Quantity of Books, Marcus, Heller, and Lee Art Theatre, are adequate to ensure that First Amendment interests will not be impaired by the issuance and execution of warrants authorizing the seizure of books or films. We think, and accordingly hold, that an application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally.
That standard was recently set forth by this Court in Illinois v. Gates, 462 U. S. 213 (1983):
“‘[T]he term “probable cause,” . . . means less than evidence which would justify condemnation .... It imports a seizure made under circumstances which warrant suspicion.’ [Locke v. United States, 7 Cranch 339, 348 (1813).] . . . Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision.
“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for. . . concluding,]’ [Jones v. United States, 362 U. S. 257, 271 (1960),] that probable cause existed.” Id., at 235, 238-239.
Applying the Gates standard to the affidavits in the instant case, we think it clear beyond peradventure that the warrant was supported by probable cause to believe that the five films at issue were obscene under New York law. Respondents concede that the affidavits describing the five films adequately established probable cause with respect to the second of the three elements of obscenity under the statute, namely, that the movies depicted “in a patently offensive manner” the various kinds of sexual conduct specified in the statute. See N. Y. Penal Law §235.00(l)(b) (McKinney 1980). Our review of the affidavits convinces us that the issuing justice also was given more than enough information to conclude that there was a “fair probability” that the movies satisfied the first and third elements of the statutory definition, namely, that the “predominant appeal [of the movies] is to the prurient interest in sex,” and that the movies “lac[k] serious literary, artistic, political, and scientific value.” See N. Y. Penal Law §§235.00(l)(a), (c) (McKinney 1980). As Judge Jasen of the Court of Appeals noted in his dissent in the present case:
“Each of the affidavits describing the films clearly state at the outset that ‘the content and character of the above mentioned video movie is as follows.’ Inasmuch as the magistrate was reviewing affidavits describing movies which were advertised by defendants as ‘adult cassette movies,’ it was reasonable for him to believe that the affidavits faithfully and accurately described the substance of each movie as a whole. Each affidavit describes the numerous acts of deviate sexual intercourse and the objectification of women occurring in each film which the majority concede to be offensive. Each film is of relatively short duration. Manifestly, the acts described in each movie consume a substantial time span. Thus, the magistrate may reasonably have concluded that the described, successive acts of deviate sexual intercourse pervaded each film. When the title of each movie is considered together with its plot and setting, its general theme and serious value, if any, may reasonably be discerned. The films were described in each of the five nonconclusory affidavits in such a fashion as to permit the magistrate to focus searchingly on the issue of obscenity. Under these circumstances, there was a reasonable basis for the magistrate to authorize the seizure of the films in question.” 65 N. Y. 2d, at 580, 483 N. E. 2d, at 1130 (emphasis in original).
We believe that the analysis and conclusion expressed by the dissenting judge are completely consistent with our statement in Gates that “probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” 462 U. S., at 244, n. 13. We hold that, evaluated under the correct standard of probable cause, the warrant was properly issued and the videocassettes of the five movies should not have been suppressed. The judgment of the New York Court of Appeals is accordingly reversed, and the cause remanded to that court for further proceedings not inconsistent with this opinion.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
AFFIDAVIT
STATE OF NEW YORK ) COUNTY OF ERIE ) SS: CITY OF BUFFALO )
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney’s Office and prior to this, a member of the New York State Police for approximately 25 years.
On September 26th, 1983 I viewed the video tape movie “CALIFORNIA VALLEY GIRLS,” which was rented on September 20th, 1983, from Network Video, 5868 Transit Road, Depew, New York. This movie was rented by Detective Sergeant Vincent Costanza, a member of the Erie County Sheriff’s Department. This movie was viewed in my office starting at 12:00 Noon and lasted until 1:33 P.M.
The content and character of the above mentioned video movie is as follows: Six white females, approximately 18 to 25 years of age, are unemployed and attempt to make a living by becoming prostitutes. The first scene is a bedroom scene where two females are involved in love making, fondling and cunnilingus. The second scene depicts a white male and a white female having intercourse in the back of a van. The third scene is a house scene where six girls, all white females are introduced to the art of love making. One male, approximately 35 years of age, is teaching the girls the art of fellatio with each one of them performing this act on him. The next scene is a bedroom scene in a home where a husband and wife, a white male and a white female, alone with a girl, a white female, perform various sexual acts which include intercourse, fellatio, anal intercourse and cunnilingus. The movie ends with some lesbianism where the wife performs cunnilingus on the girl while she performs fellatio on the husband and they engage in intercourse and anal intercourse.
[Signature] David J. Groblewski Confidential Criminal Investigator
Subscribed and sworn to before me this [21] day of November, 1983.
[Signature] Notary Public
AFFIDAVIT
STATE OF NEW YORK ) COUNTY OF ERIE ) SS: CITY OF BUFFALO )
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney’s Office and prior to this, a member of the New York State Police for approximately 25 years.
On September 23rd, 1983, I viewed the video tape movie “TABOO II,” which was rented on September 20th, 1983, from Network Video, 5868 Transit Road, Depew, New York. This movie was rented by Detective Sergeant Vincent Costanza, a member of the Erie County Sheriff’s Department. This movie was viewed in my office starting at 9:00 A.M. and with several interruptions lasted until 12:12 P.M.
The content and character of the above mentioned video movie: The theme of the movie is a middle-class neighborhood where a home is the place where all the sexual acts are performed. The movie starts with a brother and sister, a white male and white female, fondling each other. The second scene is another house scene where a white male and white female are giving a rubdown to a white female. The sexual acts that follow include cunnilingus and fellatio. There is also intercourse and the scene closes with the male placing his penis between the girl’s breasts and ejaculating into and over her mouth. In another scene there is some incestuous type activity between the brother and the sister where again fellatio and intercourse are performed. At one point during the movie the mother enters the bedroom and observes the two performing the sexual acts and becomes depressed about the situation. In a later scene the son and his mother are on a couch where they become involved in sexual acts of intercourse and fellatio. The movie closes with the mother and father asleep in their bedroom at which time the daughter enters and sleeps next to her father, where they perform incestuous acts of intercourse, and she performs fellatio on her father.
[Signature]
Subscribed and sworn to before me this [21] day of November, 1983
[Signature] Notary Public
AFFIDAVIT
STATE OF NEW YORK ) COUNTY OF ERIE ) SS: CITY OF BUFFALO )
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney’s Office and prior to this, a member of the New York State Police for approximately 25 years.
On September 29th, 1983, I viewed the video tape movie “TABOO,” which was rented on September 27th, 1983 from Network Video, 5868 Transit Road, Depew, New York. This movie was rented by Detective Sergeant Vincent Costanza, a member of the Erie County Sheriff’s Department. This movie was viewed in my office starting at 11:00 A.M. and lasted until 11:55 A.M. and watched again commencing at 1:42 P.M. and lasting until 2:23 P.M.
The content and character of the above mentioned video movie is as follows: The first scene is a bedroom scene where two white females and one white male perform various acts of fellatio, cunnilingus and intercourse. The second scene is a house party scene where many white males and white females are involved in various acts of intercourse, fellatio and cunnilingus. There is also a scene where females perform acts of cunnilingus on each other. The movie portrays at one point a bedroom scene with a white male, the son, laying in bed naked, at which time his mother, a white female enters the room. She makes love to him and incestuous acts of intercourse, placing of the penis between her breasts, ejaculation and cunnilingus are performed.
[Signature] David J. Groblewski Confidential Criminal Investigator
Subscribed and sworn to before me this [21] day of November, 1983
[Signature] Notary Public
AFFIDAVIT
STATE OF NEW YORK ) COUNTY OF ERIE ) SS: CITY OF BUFFALO )
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney’s Office and prior to this, a member of the New York State Police for approximately 25 years.
On September 28th, 1983, Detective Sergeant Vincent Costanza, a Member of the Erie County Sheriff’s Department and I viewed the video tape movie “ALL AMERICAN GIRLS,” which was rented on September 27th, 1983 from Network Video, 5868 Transit Road, Depew, New York. This movie was viewed in my office starting at 11:35 A.M., and lasted until 1:00 P.M.
The content and character of the above mentioned video movie is as follows: The theme of the movie is a home of one of the six girls, all white females who had previously attended high school and were meeting for a reunion. The first scene is two girls in a room performing acts of lesbianism, namely cunnilingus on each other. They are met by a white male and they perform acts of fellatio on him, have intercourse and all leave the room. Throughout the movie the girls reminisce about their high school days with each one depicting her sexual acts with her male partner. The sexual acts which followed included intercourse, fellatio and eunnilingus.
[Signature] David J. Groblewski Confidential Criminal Investigator
Subscribed and sworn to before me this [21] day of November, 1983
[Signature] Notary Public
AFFIDAVIT
STATE OF NEW YORK ) COUNTY OF ERIE ) SS: CITY OF BUFFALO )
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney’s Office and prior to this, a member of the New York State Police for approximately 25 years.
On October 3rd, 1983, Detective Sergeant Vincent Costanza, a member of the Erie County Sheriff’s Department and I viewed the video tape movie “DEBBIE DOES DALLAS,” which was rented on September 30th, 1983, by Vincent Costanza from Network Video, 5868 Transit Road, Depew, New York. This movie was viewed in my office starting at 2:50 P.M. and lasted until 4:23 P.M.
The content and character of the above mentioned video movie is as follows: The theme of the movie is a girl moving out west for a change of atmosphere. The first scene is a jail scene where a white female is in jail after she had been put there by the so-called Sheriff, a white male, and she performs fellatio on him. The two then perform intercourse, at which time he removes his pants and ejaculates over her buttocks. The second scene is the ranch, a so-called house of ill repute, a bedroom scene in which a white male and a white female are involved in various sexual acts including fellatio, cunnilingus and intercourse. At the end of the scene the male ejaculates in and over the female’s mouth. The third scene, a bathroom scene, depicts some lesbianism involving three girls. They participate in love making, foreplay and performing cunnilingus on each other. Throughout, the movie depicts some lesbianism along with sexual acts of intercourse, fellatio and cunnilingus.
[Signature] David J. Groblewski Confidential Criminal Investigator
Subscribed and sworn to before me this [21] day of November, 1983
[Signature] Notary Public
Section 235.05(1) (McKinney Supp. 1986) provides:
“A person is guilty of obscenity in the third degree when, knowing its content and character, he:
“1. Promotes, or possesses with intent to promote, any obscene material. . . .”
“Obscenity in the third degree is a class A misdemeanor.”
The statutory definition of “obscenity,” which is derived from Miller v. California, 413 U. S. 15 (1973), appears at § 235.00(1) (McKinney 1980):
“. . . Any material or performance is ‘obscene’ if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex, and (b) it depicts or describes in a patently offensive manner, actual or simulated: sexual intercourse, sodomy, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals, and (c) considered as a whole, it lacks serious literary, artistic, political, and scientific value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audiences.”
The 10 movies were entitled “California Valley Girls,” “Taboo II,” “Taboo,” “All American Girls,” “Debbie Does Dallas,” “Body Magic,” “Deep Throat,” “Every Which Way She Can,” “Filthy Rich,” and “Little Girls Blue.”
The five movies that formed the basis for the obscenity charges against respondents were “California Valley Girls,” “Taboo II,” “Taboo,” “All American Girls,” and “Debbie Does Dallas.”
Respondents argue that the decision of the New York Court of Appeals rested on adequate and independent state grounds, namely, provisions of the New York Constitution and various state-court decisions, and that we therefore lack jurisdiction to review that decision. We disagree. As we explained in Caldwell v. Mississippi, 472 U. S. 320 (1985):
“[W]e will not assume that a state-court decision rests on adequate and independent state grounds when the ‘state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.”’ Id., at 327, quoting Michigan v. Long, 463 U. S. 1032, 1040-1041 (1983).
Here, the New York Court of Appeals cited the New York Constitution only once,'near the beginning of its opinion, and in the same parenthetical also cited the Fourth Amendment to the United States Constitution. Moreover, the Court of Appeals repeatedly referred to the “First Amendment” and “Fourth Amendment” during its discussion of the merits of the case, strongly indicating that it believed that its decision was governed by federal law. Finally, although the Court of Appeals cited several state-court decisions, the only citations appended to the crucial language quoted in the text were to the federal decisions in Roaden v. Kentucky, 413 U. S. 496 (1973), Marcus v. Search Warrant, 367 U. S. 717 (1961), Stanford v. Texas, 379 U. S. 476 (1966), and Maryland v. Macon, 472 U. S. 463 (1985). We conclude, in the absence of a “plain statement” to the contrary, that the decision of the Court of Appeals was premised on federal, not state, law.
Contrary to the position apparently taken by the Justice Court in the instant case, we have never held that a magistrate must personally view allegedly obscene films prior to issuing a warrant authorizing their seizure. See Lee Art Theatre, Inc. v. Virginia, 392 U. S., at 637. On the contrary, we think that a reasonably specific affidavit describing the content of a film generally provides an adequate basis for the magistrate to determine whether there is probable cause to believe that the film is obscene, and whether a warrant authorizing the seizure of the film should issue.
Respondents contend that the seizure in the instant case was not limited to only one copy of each film, but instead extended to all copies of the films that the police were able to find during their search of respondents’ store. According to respondents, the seizure had the effect of severely restricting public access to the films, and thereby constituted a “prior restraint.” Respondents therefore argue that this case is properly governed not by Heller v. New York, 413 U. S. 483 (1973), but by Roaden v. Kentucky, supra, where this Court stated that the seizure of an allegedly obscene film, under circumstances where the seizure “brought to an abrupt halt an orderly and presumptively legitimate . . . exhibition” of the film, “calls for a higher hurdle in the evaluation of reasonableness.” Id., at 504.
We reject this contention. Our reference in Roaden to a “higher hurdle ... of reasonableness” was not intended to establish a “higher” standard of probable cause for the issuance of a warrant to seize books or films, but instead related to the more basic requirement, imposed by that decision, that the police not rely on the “exigency” exception to the Fourth Amendment warrant requirement, but instead obtain a warrant from a magistrate who has ‘“foeus[ed] searchingly on the question of obscenity.’” Id., at 506, quoting Marcus v. Search Warrant, supra, at 732.
We also note that the burden is on the defendant to make a pretrial showing of a “substantial restraint” if he wishes to escape the rule of Heller, supra, that a mere seizure to preserve evidence does not impose on the State a duty to conduct an adversary hearing of the sort described in Marcus, supra. Respondents made no such pretrial showing in this case.
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_respond1_2_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 "private organization or association". Your task is to determine what category of private associations best describes this litigant.
CADILLAC GAGE COMPANY, INC., Plaintiff-Appellant, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, et al., Defendants-Appellees.
No. 74-2333.
United States Court of Appeals, Sixth Circuit.
May 23, 1975.
John A. Entenman, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich., for plaintiff-appellant.
John A. Fillion, Jordan Rossen, Edwin Fabre, Leonard R. Page, United Auto Workers, Detroit, Mich., Lawrence G. Campbell, Dickinson, Wright, McKean & Culdip, Detroit, Mich., for defendants-appellees.
Before WEICK, McCREE and MILLER, Circuit Judges.
.PER CURIAM.
This appeal is from an order of the District Court granting a motion for summary judgment enforcing the award of an arbitrator for the payment of benefits under Cadillac Gage Company’s pension plan to its employee, Robert E. Jerome, who became totally and permanently disabled.
Cadillac Gage had filed suit in the District Court under the provisions of § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to vacate the arbitrator’s award, claiming that the arbitrator in making his award acted in excess of his contractual authority and therefore the award was null and void. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).
Prior to making application for his pension Jerome had applied for workmen’s compensation benefits under Michigan law, claiming that in the course of his employment he developed emphysema and other ailments which he attributed to the hazards of his employment. The arbitrator stated:
It is agreed by Company and Union that he became totally and permanently disabled.
The claim under the Workmen’s Compensation Act was settled by an Agreement to Redeem Liability, entered into between Jerome and Cadillac Gage, whereby Cadillac Gage agreed to make a lump sum payment to Jerome in the sum of $19,000, to redeem its potential liability under the Act. The agreement was approved by a Redemption Order entered by the Hearing Referee of the Workmen’s Compensation Commission. At the same time Jerome signed a Release and Waiver of Seniority, which provided:
Whereas Robert E. Jerome has filed a claim under the Workmen’s Compensation Act for injury alleged to have resulted from his employment, and whereas the employer, Cadillac Gage Co., has denied liability, the undersigned Robert E. Jerome, in consideration of a settlement of this claim through redemption proceedings with the Workmen’s Compensation Department, does hereby voluntarily quit his employment with the Cadillac Gage Co., waives any and all seniority rights he may have and releases any claim he may have for re-employment based on such seniority rights.
After the time for appeal from the Redemption Order of the Referee had expired, Cadillac Gage made payment of the sum of $19,000, which sum was distributed under the terms of the Order for the payment of medical bills, attorney’s fees and the balance to Jerome.
Following settlement of the Workmen’s Compensation claim Jerome applied to the company for a Total and Permanent Disability Pension, which application was transmitted to the Board of Administration of the Pension Plan. The function of the Board was to determine all disputes between the company and its employees over their pension claims. The Board consisted of three members appointed by the company and three members appointed by the International Union, and an Impartial Chairman or arbitrator in the event of disagreement of the other six Board members.
The company and union members became deadlocked over the question of allowance of the pension, and they agreed upon the Impartial Chairman or arbitrator to settle the dispute.
It was the position of the company that Jerome was no longer an employee of the company at the time he filed his application for a pension and that he waived all rights to a pension when he signed the Agreement to Redeem Liability for his Workmen’s Compensation benefits and the Release and Waiver of Seniority.
Article II, Section 4(a) of the Pension Plan provides in relevant part:
An employe who, subsequent to July 1, 1960, is determined to be totally and permanently disabled hereunder prior to attaining age 65, and who has at least 15 years of credited service, shall be eligible for a disability pension as hereinafter provided. .
Section 4(b) provides in part:
An employe shall be deemed to be totally and permanently disabled when, on the basis of medical evidence satisfactory to the Board, he is found to be wholly and permanently prevented from engaging in any regular occupation or employment .
The powers of the Board are contained in the Pension Plan which in part provided:
To make findings of facts and determinations as to the rights of any employe applying for retirement benefits, and to afford any such individual dissatisfied with any such finding or determination, the right to a hearing thereon.
The Board conducted hearings and adopted findings of fact and determinations as to the rights of Jerome. They are embodied in the written opinion of the Impartial Chairman or arbitrator. Essentially he found:
As Impartial Chairman, it appears to me that neither party has placed proper bearing on the one fulcrum on which decision must rest — the date upon which Jerome became eligible, if at all, for permanent and total disability pension. It was not on December 16. He had already waived his seniority rights on the first of that month. Nor was it December 1st. If he had any right to a disability pension, and I conclude that he did, it was on the date he suffered permanent and total disability. Note Section 4(a) of Article III: “An employee who ... is determined to be totally and permanently disabled hereunder prior to attaining age 65, and who has at least 15 years of credited service, shall be eligible for a disability pension,” (reduced to 10 years after September 1, 1961). Jerome, by the express language of this section, became eligible for á disability pension, not on December 1, not on December 16, but at the time he was “determined to be totally and permanently disabled.” The exact date may be indecisive, and certainly is not now susceptible of accurate ascertainment, but it had to occur before or during the progress of the proceedings in Workmen’s Compensation and thus before December 1, 1971. The Company so acknowledged at least tacitly when it entered into the Agreement of Redemption. It conceded as much during the hearings in this matter.
If it is accepted, as I believe it must, that Jerome’s eligibility for disability pension occurred at some such earlier period, then the dates of December 1 and 16, the waiver of re-employment rights, the waiver of seniority, the lack of Union representation, are all irrelevant to this issue. A waiver of disability pension may be effected after eligibility has occurred only by virtue of Section 5 of the 1966 Agreement Covering the Amended Pension Plan, entitled Suspension of Benefits at Option of Employee and then only if the employee should “request the Board of Administration in writing to suspend payment for any period of all or any part of such pension otherwise payable to him hereunder.” Needless to say, this was not done.
I find that Jerome became eligible for Permanent and Total Disability Pension prior to December 1, 1971 and that none of the documents signed by him in November and December, 1971 operated as a waiver of his right to such pension. As duly designated Impartial Chairman of the Board of Administration, I vote that Robert E. Jerome’s application for pension due to total and permanent disability retirement be approved, and that payment thereof be made in accordance with the terms and conditions of the Pension Plan as though approval had been voted at the meeting of the Boa,rd of Administration on January 21, 1972. Lacking precise data as to when the disability commenced, I vote that it be deemed, for purposes of this matter, to have commenced on November 26, 1971, the date of execution of the Agreement of Redemption. (A. 20-22)
The District Judge recognized that the arbitrator was bound to follow the provisions of the Pension Plan where they are unambiguous and that he could not add to or subtract therefrom. The District Judge found, however, that the provisions were ambiguous, stating:
It is ambiguous as to whether employee means presently employed or at one time employed. It is ambiguous as to whether the pension rights vest at the time when the board makes its determination of disability or at the time determined by the board when the disability occurred. These ambiguities create problems of interpretation and it is within the power of the board to interpret. This Court’s judgment about what the language means or what the parties intended is no better than the arbitrator’s judgment. Having agreed to a system whereby such problems are resolved by an arbitrator — and I point out that the company had a voice in the selection of the arbitrator — the company must now live with the decision that was made by the arbitrator. (A. 48)
It is significant that at the time the papers were signed for the settlement of the Workmen’s Compensation claim, nothing was stated about a waiver or release of pension rights to which Jerome was entitled since he was totally and permanently disabled. None of the agreements executed by Jerome provided that he was waiving his pension rights; nor was the Workmen’s Compensation Referee, who entered the order, advised that the rights of the claimant to a pension were being waived.
In our opinion the arbitrator had full power and authority to interpret the pension agreement. It certainly needed interpretation, and we have no authority to substitute our judgment for that of the arbitrator in his interpretation of the contract. Morris v. Werner-Continental, Inc., 466 F.2d 1185 (6th Cir. 1972); Chambers v. Beaunit Corp., 404 F.2d 128 (6th Cir. 1968); Baldwin-Montrose Chem. Co. v. International Union, United Rubberworkers, 383 F.2d 796 (6th Cir. 1967); Kroger Co. v. International Bhd. of Teamsters, Local 661, 380 F.2d 728 (6th Cir. 1967); United Steelworkers v. Caster Mold & Mach. Co., 345 F.2d 429 (6th Cir. 1965); Retail Clerks Int’l Assn., Local 128 & 633 v. Lion Dry Goods, Inc., 341 F.2d 715 (6th Cir. 1965).
The judgment of the District Court is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant?
A. business, trade, professional, or union (BTPU)
B. other
Answer:
|
songer_casetyp1_7-3-3
|
C
|
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 - commercial disputes".
GOVERNMENT EMPLOYEES INSURANCE COMPANY, a corporation created under the laws of the District of Columbia, and licensed to do business in the State of New Mexico, Appellant, v. UNITED STATES of America, Appellee.
No. 7998.
United States Court of Appeals Tenth Circuit.
July 22, 1965.
Rehearing Denied Sept. 16, 1965.
Lowell White, of White & Steele, Denver, Colo., for appellant.
Robert J. Yollen, Attorney, Department of Justice, Washington, D. C. (John W. Douglas, Asst. Atty. Gen., John Quinn, U. S. Atty., and Alan S. Rosen-thal, Attorney, Department of Justice, Washington, D. C., on the brief), for appellee.
Before MURRAH, Chief Judge, LEWIS, Circuit Judge, and KERR, District Judge.
KERR, District Judge.
This is an appeal by Government Employees Insurance Company from a judgment entered by the United States District Court for the District of New Mexico determining that Appellant was liable to the United States for the amount of the judgment rendered against the United States in an action brought pursuant to the Federal Tort Claims Act. The crux of the problem before us is whether the insurer intended to and did cover the United States as an additional “insured” when it defined the word “insured” to include the named insured and “any person or organization legally responsible for the use” of the automobile.
The facts are not in dispute. Otto and Christine Nilson sustained injuries from a collision between a vehicle owned and operated by Otto Nilson and a truck owned and operated by Price T. Crume, the named insured. Their original complaint against Price T. Crume was dismissed and a First Amended Complaint was filed, which made the United States of America the sole defendant. Upon motion of the United States, the District Court ordered that a Third Party Complaint be filed against the Government Employees Insurance Company. The District Court expressly found that Price T. Crume was negligent in the operation of his vehicle; that at the time of his negligent acts and at the time of the accident, he was an employee of the United States and was acting within the scope and course of his employment; and that the automobile liability insurance policy issued by the Government Employees Insurance Company to Price. T. Crume was in full force and effect at the time of the collision. The Court further found that at the time of the accident the United States was a person or organization legally responsible for the use of Mr. Crume’s automobile and that the United States was an “insured” within the terms of the liability policy. The District Court concluded as a matter of law that the United States was an additional insured and had properly asserted its rights as an insured under the policy by way of a Third Party Complaint. Judgment was thereupon entered that the plaintiffs recover from the United States of America the sum of $15,000, that the Intervenor, Phoenix Assurance Company of New York, recover from the United States the sum of $750 for property damages, and that the United States recover from the third party defendant, the Government Employees Insurance Company, the sum of $15,750.00.
We find no fault with the trial court’s Findings of Fact and Conclusions of Law. The United States is not claiming indemnity against the Government Employees Insurance Company. It seeks, rather, to recover from the insurer on the contractual obligation of liability to the United States as an insured who has been found legally obligated to pay the claims of persons injured from the negligence of a government employee in the course of his government employment.
Appellant claims that the indemnity insurance policy issued to Crume was not intended to protect the United States; that the United States is not “a person or organization” within the meaning of the policy and therefore is not an insured under the policy of insurance. Appellant further claims that it has a valid defense against the claim of the United States for its failure to comply with the conditions precedent to liability under the policy of insurance, namely, Appellant’s right to have sole control of all phases of the defense of any claim against an insured, including the right to use its own attorneys and to demand a jury trial. Appellant denies liability to the United States for the further reason that the judgment in favor of the plaintiffs against the United States was entered upon the stipulation and agreement between the plaintiffs and the United States without the written agreement of the appellant contrary to the requirements of the policy.
Appellant’s position is not supported by the facts and is contrary to the applicable judicial pronouncements which we consider legally sound. On the policy, the named insured’s occupation was given as “Gov’t Hunter”, and the purposes for which the truck was to be used were Usted as “Pleasure and Business”. The term “insured” was defined as the named insured and “any person or organization legally responsible for the use” of the automobile. The facts in this case, the conditions under which the policy was issued, and the provisions of the Federal Tort Claims Act combine to dictate the conclusion that the United States is' an additional insured and a “person” under the policy definition of the term “insured”.
The purpose of the Federal Tort Claims Act was “to render the Government liable in tort as a private individual would be under like circumstances.” Richards et al v. United States et al., 369 U.S. 1, 6, 82 S.Ct. 585, 589, 7 L.Ed.2d 492 (1962), italics added; 28 U.S.C. §§ 1346 (b) and 2674. The design of the Act was to characterize the United States as a private employer. Congress intended to put an end to the many private claims with which it had been burdened, and to do so it shed the cloak of sovereignty and entered the market place, so to speak. The United States, therefore, is liable as a person, and concomitant with that liability is the right to be insured as a private person within the unlimited coverage of the insurance policy here in issue.
The Government Employees Insurance Company issued its liability policy to Price T. Crume in February 1961, and on February 13, 1962, it was renewed for another year. Section 2679 of Title 28 U.S.C., was amended on September 21, 1961, to take effect six months after its enactment, or in March 1962. The collision occurred in June 1962. When the policy issued to Price T. Crume was renewed, therefore, the Government Employees Insurance Company was bound to know that only the United States was suable for the torts of its employees committed within the scope of their employment. The Company’s intention to insure the United States is implicit in its conduct. By insuring a government employee for the use of his vehicle on government business, the Government Employees Insurance Company obligated itself to pay on behalf of the United States as an insured all sums which the United States would become legally obligated to pay as damages sustained by any person caused by accident and arising out of the ownership, maintenance or use of the government employee’s automobile.
Knowing full well that the named insured could not be sued for injuries or damages sustained from his negligence while performing his duties as a government hunter, it must be assumed that the insurer tacitly understood that its requirements respecting jury trial, the conduct of the trial by its own attorneys, and the written permission to set-tie would not be applicable when suit would be brought under the Federal Tort Claims Act. When it renewed the policy, the insurer knew or should have known, that such provisions were unenforceable with respect to the United States as the person legally responsible for the use of the insured vehicle. It cannot now, therefore, rely on those requirements to defeat the rights of the United States as an insured under the policy.
The pacesetters, Rowley v. United States, E.D.Utah, 140 F.Supp. 295, and Irvin v. United States, supra, were decided in 1956 and 1957 respectively. In essence they held that the United States was an insured under the clause, “any person or organization legally responsible for the use” of the automobile. Retaining such words in its policy insuring a government employee, the Government Employees Insurance Company acquiesced to the prior decisions. Had it intended to escape such construction of the so-called omnibus clause and to divest itself of an obligation to the United States as an insured, it had ample opportunity to do so between 1957 and 1961 or 1962. It must be presumed that the appellant, by continuing to use the words, “persons or organization legally responsible for the use” of the automobile, understood their meaning to be consonant with the repeated judicial interpretations. Wachovia Bank and Trust Company v. Manufacturers Casualty Insurance Company, M.D.No.Car., 171 F.Supp. 369 (1959). The respectable authorities accumulated since the Rowley and Irvin decisions have not deviated from the rationale that policies specifying the governmental occupation of the named insured and the use of the automobile for business imply an intent to insure the United States.
The Federal Tort Claims Act equates the United States with a private person. The Government Employees Insurance Company, itself, wrote the insurance policy and is bound by its own language consistent with prior judicial construction thereof. It must now fulfill its obligations to the United States of America as an insured and assume its contractual liability under the policy.
In view of the meaning attributed to the statute and the insurance policy, the various other contentions of Appellant require no discussion. Suffice it to say that no additional risk is hereby imposed on the Government Employees Insurance Company, and no intrusion is made on its constitutional rights.
Affirmed.
. The Trial Judge relied on Irvin v. United States, D.So.Dak., 148 F.Supp. 25; Nis-tendirk v. United States v. M. F. A. Mutual Insurance Company, W.DMo., 225 F.Supp. 884; and Vaughn et al. v. United States v. Tennessee Farmers Mutual Insurance Company, W.D.Tenn., 225 F.Supp. 890.
. 28 U.S.C. § 2679(b) as amended reads as follows: “The remedy by suit against the United States as provided by section 1346(b) of this title for damage to property or for personal injury, including death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the daim.”
. 44 C.J.S. Insurance § 293, Pages 1154-1155: “Terms used in a policy which have by prior judicial decisions been given a definite meaning, will be regarded as being used in view of such established construction and be governed thereby; and if the insurer continues to issue, without change, policies, clauses of which have been judicially construed, it will be considered as issuing them with that construction placed on them, even though such construction violates the literal sense of the words used.”
. Nistendirk v. United States of America v. M. F. A. Mutual Insurance Company, W.D.Mo., 225 F.Supp. 884 (1964); Vaughn et al. v. United States of America v. Tennessee Farmers Mutual Insurance Company, W.D.Tenn., 225 F. Supp. 890 (1964); Patterson v. United States of America et al. v. State Farm Mutual Automobile Insurance Company, E.D.Tenn., 233 F.Supp. 447 (1964); Barker v. United States of America v. National Insurance Underwriters-National Associated Underwriting Company, N.D. Ga., 233 F.Supp. 455 (1964); Gahagan v. State Farm Mutual Automobile Insurance Company and United States of America, W.D.La., 233 F.Supp. 171 (1964); and the following unreported decisions : Chatham v. Hunt and The United States of America v. National Insurance Underwriters, M.D.Ga., 1964; Davenport v. United States of America v. Farmers Mutual Automobile Insurance Company, S.D.Iowa, 1964; Town v. United States of America v. Allstate Insurance Company, S.D.Cal., 1964; Gabriel v. United States of America v. Virginia Farm Bureau Mutual Insurance Company, W.D.Va.; Helms v. United States of America v. State Farm Automobile Insurance Company, W.D.No.Car., 1963.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
|
songer_two_issues
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean 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.
CITY OF ST. PAUL, a Municipal Corporation, Appellant, v. CHICAGO, ST. PAUL, MINNEAPOLIS AND OMAHA RAILWAY COMPANY, and Chicago and Northwestern Railway Company, Appellees.
No. 19151.
United States Court of Appeals Eighth Circuit.
May 6, 1969.
Rehearing Denied July 2, 1969.
Mehaffy, Circuit Judge, dissented.
Jon R. Duckstad, Asst. Corp. Counsel, City of St. Paul, Minn., for appellant; Joseph P. Summers, Corp. Counsel, City of St. Paul, Minn., on the briefs.
Philip Stringer, of Stringer, Donnelly & Sharood, St. Paul, Minn., for appel-lees; R. Paul Sharood, St. Paul, Minn., on the brief.
Before MATTHES, MEHAFFY and HEANEY, Circuit Judges.
HEANEY, Circuit Judge.
The City of St. Paul appeals from a judgment enjoining the enforcement of an amendatory zoning ordinance restricting building heights in a downtown river front area and adjudging the rezoning unconstitutional.
The rezoned area includes a city park which stretches more than three blocks along the edge of a sharp bluff overlooking the Mississippi River and Valley. The appellees’ property lies from forty to ninety feet below the surface of the park at the foot of the bluff and is separated from the Mississippi River by railroad tracks and a waterfront street.
The ordinance imposed height restrictions which effectively prohibit the erection of building on the appellees’ property which would rise above the level of the park and the adjacent bluff.
The city park and the appellees’ property lies largely between the Wabasha Street and Robert Street bridges which cross the Mississippi River and serve as the gateways to the downtown area from the south. The park was established in 1930 and serves to open up the southern approach to the core area which lies immediately to the north of the park. It further serves as a passive recreational area for residents, shoppers, visitors and an estimated 23,000 to 25,000 downtown employees.
In the early 1960’s the St. Paul Housing and Redevelopment Authority undertook planning for the renewal and redevelopment of the downtown core area with the cooperation of other public agencies and private interests. The plan was formally adopted in 1964. A similar task was undertaken by the City Planning Department as a part of an effort to develop a comprehensive plan for the entire city. The downtown portion of the comprehensive plan was adopted in March of 1963, and the plan as a whole in April 1963. Both the renewal plan and the comprehensive plan envisioned that the park would remain and that no structures would be built on the railroads’ property which would rise above the level of the park.
The area immediately north of the zoned area has undergone the contemplated intensive redevelopment. The Hilton Hotel, Degree of Honor, Y.W.C.A. and Federal Courts buildings have been erected in the last few years. Block J has been cleared for the construction of a high rise apartment building. Further north in the core area, the Osborn, Northwestern National Bank and Farm Credit Bank buildings have been completed and more construction is contemplated.
At about the time that the public agencies began their planning, the railroads started a program of disposing of its non-operating property throughout its system. The manager of the Real Estate Department of the railroad contacted a number of parties, beginning in the Spring of 1961, in an effort to stimulate interest in the subject property. He testified that publicity in the Fall of 1963, regarding the possible imposition of height restrictions on the property, dampened the sales effort. In late 1963, the railroads received an offer to purchase about one-half of the property, i. e., the land at the Wabasha Street end, for $4.00 per square foot. It was subject to the condition that the premises not be zoned so as to prohibit the construction of structures above the existing grade of the park. The management of the railroads rejected the offer on the basis that the property was needed for the railroad’s operating purposes. At least two other potential purchasers of the property, who did not intend to build above the level of the park, indicated an interest but made no firm offers.
A consulting firm was engaged by the railroads in February, 1966, two months prior to trial, with a view toward a determination of the highest and best use of the property. The railroads’ only interest was to sell the property. The study indicated that the highest and best use would be to construct a motel and four high rise apartments which would rise from ten to twenty-two stories above the park. This use would give the apartment occupants the benefit of the light and view over the river valley but in so doing, would equally deprive others of these benefits. It would also result in the closing off the “front door” of the core area from the southern approaches. The study envisioned building on the property originally deemed necessary for operating purposes. A witness for the railroads testified that the problem had been resolved and the property was available.
Although the record is not clear, the city, in the Fall of 1963, apparently first became aware that the railroads were attempting to sell the river bottom property for the possible construction of buildings that would rise above the park level.
A number of municipal authorities and boards, including the Housing and Redevelopment Authority, the Planning Boards and the Zoning Board recommended the imposition of height restrictions. The action of the Planning Board was taken after a public hearing. The resolution passed by that Board recited that the rezoning was reasonably related to existing land uses, overall needs of the community and the planning for future land use.
On September 3, 1964, the City Council, after a public hearing at which the railroads were the sole voice in opposition, unanimously approved an ordinance restricting height in the questioned area and directed the corporation counsel to draft such an ordinance. The City Council formally adopted the ordinance on September 20, 1966.
In May of 1966, the appellees brought suit for a declaratory judgment and asked that the proposed ordinance be declared void and unconstitutional. Following the formal enactment of the ordinance, the appellees filed a supplemental complaint and asked that the enforcement of the ordinance be enjoined or, in the alternative, money damages be awarded.
The District Court found that the fair value of the property prior to the passage of the ordinance was $320,000, and that its after value was $150,000. There is substantial evidence in the record to support this finding.
The court also found that the ordinance was unreasonable and arbitrary and, therefore, not a valid exercise of the police power because: (1) it bore no substantial relationship to health, safety, morals or the general welfare, and was enacted for aesthetic reasons only; (2) it was an instance of spot zoning and not part of a comprehensive plan; and (3) it was a confiscation without compensation in that the benefit to the public was small in comparison to the detriment of the property owner. The court concluded that the ordinance was “unconstitutional as violative of due process of law.” It enjoined enforcement of the ordinance.
The court held that the appellees were not entitled to damages for enforcement of the ordinance during the pendency of the action as any damages during that period were minimal and speculative.
“Since it is clear that this was a good faith attempt by the city to exercise its police power and since there is no demonstration that there will be any further improper interference with the plaintiffs’ property rights, the Court does not at this time award damages and thus, in effect, turn this action into an eminent domain proceeding.”
It retained jurisdiction for the purpose of granting any further relief which might become necessary and proper under 28 U.S.C. § 2202. We reverse.
The appellees concede that the city’s purpose is a public one. They acknowledge that the city can accomplish its objective by the proper exercise of its eminent domain power — compensating the railroads for the damage to their property. They argue, however, that the ordinance is violative of the Fifth Amendment to the United States Constitution and Article 1, Section 13 of the Minnesota Constitution in that it takes the railroads’ property without compensation.
Neither constitutional provision interposes a barrier to the imposition of restrictions on the use of private property if a zoning ordinance is enacted pursuant to a valid exercise of the police power. Goldblatt v. Town of Hempstead, 369 U.S. 590, 593, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); City of Marysville v. Standard Oil Co., 27 F.2d 478 (8th Cir. 1928), aff’d, Standard Oil Co. v. Marysville, 279 U.S. 582, 49 S.Ct. 430, 73 L.Ed. 856 (1929); Kiges v. City of St. Paul, 240 Minn. 522, 62 N.W.2d 363, 369-370 (1953); State ex rel. Beery v. Houghton, 164 Minn. 146, 204 N.W. 569, 54 A.L.R. 1012 (1925), aff’d mem., 273 U.S. 671, 47 S.Ct. 474, 71 L.Ed. 832 (1927). The test of whether the enactment falls within that power is one of reasonableness.
The zoning ordinance will be sustained unless its “ * * * provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926). Gorieb v. Fox, 274 U.S. 603, 608-609, 47 S.Ct. 675, 71 L.Ed. 1228 (1927); McMahon v. City of Dubuque, Iowa, 255 F.2d 154, 158-159 (8th Cir.), cert. denied, 358 U.S. 833, 79 S.Ct. 53, 3 L.Ed.2d 70 (1958); Naegele Outdoor Adv. Co. v. Village of Minnetonka, 281 Minn. 492, 162 N.W.2d 206, 212 (1968); State ex rel. Howard v. Village of Roseville, 244 Minn. 343, 70 N.W.2d 404, 407 (1955).
In reviewing the trial court’s determination of invalidity, we examine the record not to see whether its findings are supported by evidence but to ascertain upon the whole record whether it is possible to say that the legislative choice is without rational basis. South Carolina State H. Dept. v. Barnwell Bros., 303 U.S. 177, 191-192, 58 S.Ct. 510, 82 L.Ed. 734 (1938); Weinberg v. Northern Pac. Ry. Co., 150 F.2d 645, 648 (8th Cir. 1945).
Fairly debatable questions as to the reasonableness, wisdom and propriety of an ordinance are not for the determination of the courts but for that of the legislative body on which rests "the duty and responsibility of the decision. Standard Oil Co. v. Marysville, supra; Naegele Outdoor Adv. Co. v. Village of Minnetonka, 162 N.W.2d at 209.
The mere fact that the ordinance seriously depreciates the value of the complainants’ property is not enough to establish its invalidity. Goldblatt v. Town of Hempstead, supra at 594, 82 S.Ct. at 990, American Wood Products Co. v. City of Minneapolis, 21 F.2d 440, 444 (D.Minn.1927) (J. Sanborn), aff’d, 35 F.2d 657 (8th Cir. 1929); Kiges v. City of St. Paul, 62 N.W.2d at 369. Nor can it be invalidated on the grounds that aesthetic considerations will be furthered if it is permitted to stand. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954); Naegele Outdoor Adv. Co. v. Village of Minnetonka, supra; State ex rel. Twin City Bldg. & Inv. Co. v. Houghton, 144 Minn. 1, 174 N.W. 885, 176 N.W. 159, 162, 8 A.L.R. 585 (1920).
An examination of the entire record in the light of the above standards convinces us that the trial court erred in substituting its judgment for that of the City Council. In so holding, we note that the city’s answers to the railroads’ interrogatories were vague, conclusionary, unresponsive and not in accordance with Rule 33, Federal Rules of Civil Procedure. If these answers reflected accurately the sum of the Council’s reasons for enacting the ordinance, we would have no alternative but to hold that they were inadequate. The record indicates, however, that the Council’s action was preceded by studies and recommendations of other municipal agencies; and, that reports of these studies were communicated to the Council. It also shows that the Council conducted a public hearing before passing the ordinance. From a reading of the record, it is fair to say that as a result of the reports and recommendations it received from the public agencies, the Council had before it most of the evidence developed at trial before the District Court including the following:
(1) The passage of the ordinance was preceded by studies and favorable recommendations of the Housing and Redevelopment Authority, the Planning Board (after a public hearing) and the Zoning Board. These recommendations were communicated to the City Council. American Wood Products Co. v. City of Minneapolis, supra, at 444. See, Ostrand v. Village of North St. Paul, 275 Minn. 440, 147 N.W.2d 571, 573 (1967).
(2) The City Council held a public hearing prior to the adoption of the ordinance. The Housing and Redevelopment Authority, the Planning Board, the Metropolitan Improvement Committee, the Y.W.C.A., the St. Paul Automobile Club and the Downtown Department of the Chamber of Commerce appeared at the hearing and submitted their views as to why the ordinance should be adopted.
(3) Mr. B. Warner Shippee, the former director of the Housing and Redevelopment Authority, testified at trial that the downtown renewal project had three objectives:
“First, the economic improvement of the city and the central business district. Secondly, its physical improvement; and thirdly, in the course of doing this the removal of blight, deleterious structures and influences of economic disuse in the area.”
Mr. Shippee further testified that when the Authority undertook the renewal project, it acted on the assumption “that the area in front of the mall would be kept clear of obstructions- — -that, [the] park would remain and provide sort of a front door for the Capitol Center downtown project as well as generally the central business district.” He added that the subject area was directly related to the renewal project and that the Authority felt that high rise construction could have an adverse affect on property values and the renewal project.
“ * * * The Authority actually took cognizance of this problem in a meeting of June 11, 1964, * * *. * * * [T]he authority commissioners after discussing the matter moved unanimously that it was their opinion that the ordinance [restricting height] was feasible and in the best interest of the community. The discussion had related to the relationship of the ordinance to the Capitol Center Downtown Renewal project. * *
(4) Dr. Noland Heiden, City Planner for the City of St. Paul, quoted from the comprehensive city plan as follows:
“ ‘A sixth land use area of the central business district can be called the “south Kellogg” area and will remain largely as it now exists. It is composed of the blocks along the edge of the river bluff south of Kellogg Boulevard and presently contains industrial office operations * * *. The major proposal is to extend the Kellogg Mall one block up to the east to the post office. This would more fully open up the “front porch” of the central business district and provide necessary land for street improvements designed to facilitate access to the central business district from Warner Road.’ ”
(5) Appellees’ witnesses conceded that the property values on the north side of Kellogg Boulevard would be diminished by the erection of high rise building on the appellees’ property which would partially obstruct the view of the river valley. See, State ex rel. Saveland Park Holding Corp. v. Wieland, 269 Wis. 262, 69 N.W.2d 217, 222, cert. denied, 350 U.S. 841, 76 S.Ct. 81, 100 L.Ed. 750 (1955).
No evidence was offered at trial to show: that the ordinance was designed to restrict competition, compare, Pearce v. Village of Edina, 263 Minn. 553, 118 N.W.2d 659, 671, n. 1 (1962); or that the railroads acquired the property with the expectation that it would be used in the manner they now seek, compare, Alexander v. City of Minneapolis, 267 Minn. 155, 125 N.W.2d 583, 585 (1963); or that the railroads cannot continue to use their property as they have in the past.
In our view, the appellees’ reliance on Ostrand v. Village of North St. Paul, supra; Alexander v. City of Minneapolis, supra; Pearce v. Village of Edina, supra; and Olsen v. City of Minneapolis, 263 Minn. 1, 115 N.W.2d 734 (1962), is misplaced. While there is language in each opinion supporting the appellees’ position — that an amendatory zoning ordinance designed to protect aesthetic values and resulting in the diminution of the market values of the complainants’ property is invalid- — that language must be viewed in the light of the facts in those cases. Those factual situations were significantly different from the one presented here. We would add that in those four cases, as in those where a contrary result was reached, the Minnesota Court made it clear that the test is one of reasonableness.
We are convinced that were this case presented to the Minnesota Supreme Court, it would hold that the determination of the City Council — that the ordinance was reasonably related to the protection of public welfare — would be permitted to stand. In our view, the action of the City Council was based “on reason arid logic and not on whim and caprice.” It promoted a legitimate police power objective — -the renewal of the core area of Downtown St. Paul so as to be a desirable place in which to work, shop, live and enjoy cultural and recreational activities. The benefit to the public in preserving these values was great in comparison to the diminution in market values suffered by the appellees.
Reversed.
. See Appendixes I, II and III.
. In 1922, as part of a general zoning ordinance, the appellees’ property was subjeet-ed to a height restriction of one hundred feet. Property on top of the bluff was restricted to a height of one hundred and fifty feet. In 1929, the height restrictions were removed and the appellees’ property has not been subject to restrictions until the present ordinance was enacted. There is no evidence indicating that either the city or the railroads considered high rise construction on appellees’ property before the 1980’s.
. An appellee witness testified with respect to the considerations that went into the establishment of the park in the 1930’s. “St. Paul was going to be progressive. We were going places and we did with a 29 million dollar bond issue: built a new court house [and streets to improve traffic on the north side of the Loop], I can’t give you the thinking of the men that made all the decisions in those days, but I would assume [that the park location was chosen] because of its scenic value, and the outlook over the river and the fact that it was just a delightful place to be.”
. The Chicago, St. Paul, Minneapolis and Omaha Railway Company is the owner in fee of the property. On December 31, 1956, under authority from the Interstate Commerce Commission, the property was leased to the Chicago and Northwestern Railway Company. For convenience, the appellees will be occasionally referred to as the “railroads.”
. The appellees’ study demonstrating the highest and best use of the property calls for the construction of a motel and four apartment buildings containing 600 apartment units on 102,000 square feet. Under the St. Paul Zoning Code, Chapters 16 through 64, the appellees could not have constructed the 600 apartments without obtaining a variance. It requires 544,200 square feet of land. If the appellees devoted the entire 102,000 square feet to apartments, less than 125 units could be constructed under the Code provisions. The granting of a variance is discretionary and the decision to grant or deny one cannot be reversed in the absence of a clear abuse of that discretion. State v. Gunderson, 198 Minn. 51, 268 N.W. 850, 851 (1936).
. The appellees (plaintiffs below) began this action by filing a complaint on May 20, 1966, praying for a declaratory judgment. At that time, the subject ordinance had not been formally adopted but the adoption of the ordinance in principle on September 3, 1964, had the effect of restraining the sale of the subject property. The District Court, on August 31, 1964, denied the appellant’s (defendant below) motion to dismiss the action for failure to state a claim and lack of jurisdiction. The court held that while no jurisdiction existed to declare unconstitutional any ordinance which might impose height restrictions on the subject property in the future, the complaint presented an actual controversy with respect to the ordinance adopted in principle. The City Council, on September 20, 1966, formally adopted the ordinance we consider here and the appellees amended their complaint accordingly.
. The Fifth Amendment to the United States Constitution provides in part: “ * * * nor shall private property be taken for public use without just compensation.” Article 1, Section 13 of the Minnesota Constitution provides: “Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.”
The appellees argue that the Minnesota provision imposes a stricter standard than that under the federal provision. Because we believe that the ordinance does not violate the Minnesota Constitution as it has been interpreted by the Supreme Court of Minnesota, we express no opinion on whether a more stringent standard exists.
. “ ‘ * * * The power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public is not — and, consistently with the existence and safety of organized society cannot be — burdened with the condition that the state must compensate suck individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community.’ ”
Goldblatt v. Town of Hempstead, 369 U.S. 590, 593, 82 S.Ct. 987, 989 (1962).
. “The public use, which sustains the taking of property under the power of eminent domain upon compensation paid, differs from the public interest or welfare which justifies the restriction of the individual in the use of his property without compensation, in consideration of the public interest and common welfare of the community. * * *
* * * * *
“Zoning statutes are becoming common. The police power in its nature indefinable, and quickly responsive, in the interest of common welfare, to changing conditions, authorizes various restrictions upon the use of private property as social and economic changes come. A restriction, which years ago would have been intolerable, and would have been thought an unconstitutional restriction of the owner’s use of his property, is accepted now without a thought that it invades a private right. As social relations become more complex, restrictions on individual rights become more common.”
State ex rel. Beery v. Houghton, 164 Minn. 146, 204 N.W. 569, 569-570 (1925), aff’d mem., 273 U.S. 671, 47 S.Ct. 474 (1927).
. “This is not to say, however, that governmental action in the form of regulation cannot be so onerous as to constitute a taking which constitutionally requires compensation. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 * * ». There is no set formula to determine where regulation ends and taking begins. Although a comparison of values before and after is relevant, see Pennsylvania Coal Co. v. Mahon, supra, it is by no means conclusive, see Hadacheek v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 * * *, where a diminution of value from $800,000 to $60,000 was upheld. * *
Goldblatt v. Town of Hempstead, supra, at 594, 82 S.Ct. at 990.
. “ * * * The concept of the public welfare is broad and inclusive. * * * The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.”
Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 103 (1954).
, “ * * * The mere fact that the adoption of a zoning ordinance reflects a desire to achieve aesthetic ends should not invalidate an otherwise valid ordinance. Thus, if the challenged restriction is reasonably related to promoting the general welfare of the, community or any other legitimate police power objective, the fact that aesthetic considerations were a significant factor in motivating its adoption cannot justify holding it unconstitutional. * * (Citations omitted.)
Naegele Outdoor Adv. Co. v. Village of Minnetonka, 281 Minn. 492, 162 N.W.2d 206, 212 (1968).
. <i * * * n jg time that courts recognize the aesthetic as a factor in life. Beauty and fitness enhance values in public and private structures.”
State ex rel. Twin City Bldg. & Inv. Co. v. Houghton, 144 Minn. 1, 176 N.W. 159, 162 (1920).
. The trial court found that the traffic and fire protection problems which could be created by the construction of high rise buildings on appellees’ property were not unreasonable and were an insufficient basis on which to sustain the ordinance. We place primary reliance on other factors in sustaining the ordinance.
. “Interrogatory number 9: ‘How and in what manner and to what extent does Ordinance No. 13346 promote public health.’ Answer: ‘Unable to answer specifically.’
“Interrogatory number 10: ‘How and in what manner and to what extent does Ordinance No. 13346 promote public safety.’ Answer: ‘Unable to answer specifically.’
“Interrogatory number 11: ‘How, in what manner and to what extent does Ordinance number 13346 promote public order.’ Answer: ‘Unable to answer specifically.’
“Interrogatory number 12: ‘How, in what manner, and to what extent does Ordinance No. 13346 promote public convenience.’ Answer: ‘Unable to answer specifically.’
“Interrogatory number 13: ‘How, in what manner and to what extent does Ordinance No. 13346 promote public prosperity.’ Answer: ‘Unable to answer specifically.’
“Interrogatory number 14: ‘How, in what manner and to what extent does Ordinance No. 13346 promote general welfare.’ Answer: ‘Promotes the general welfare in a general way.’ ”
. Mr. Rohland H. Thomssen, Executive Vice President of the Clapp-Thomssen Company of St. Paul, a leading real estate firm in the city, and Mr. Stanley Miller, Vice President of the Real Estate Research Corporation, a real estate eon-suiting firm employed by the railroads, testified that the value of properties on the north side of Kellogg Boulevard would be diminished by high rise construction on appellees’ property.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_appnatpr
|
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 "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 of America ex rel. Shahid El Hussein MUHAMMAD o/c Maynard Prater, Relator-Appellant, v. Hon. Vincent R. MANCUSI, as Warden of Attica State Prison, Attica, New York, Respondent-Appellee.
No. 809, Docket 33951.
United States Court of Appeals, Second Circuit.
Argued May 25, 1970.
Decided Oct. 22, 1970.
Edmund R. Schroeder, Morton E. Grosz, Milton Adler, New York City, for appellant.
Brenda Soloff, Asst. Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen., for appellee.
Before WATERMAN, FRIENDLY and HAYS, Circuit Judges.
PER CURIAM:
The one issue presentéd by this appeal from the denial, without a hearing, of appellant’s petition for a writ of habeas corpus in the United States District Court for the Southern District of New York, Metzner, J., is whether an examination at the FBI headquarters in New York City of a briefcase and wallet which were in defendant’s possession at the scene and time of his arrest in the public lobby of a bank was unconstitutional as an “unreasonable search.”
Following a robbery of money orders from a camera store located in the Bronx, the FBI was informed by a bank employee that appellant was in a branch office of the bank and was seeking to cash suspect money orders. Two FBI agents went to the bank forthwith and, upon ascertaining that the money orders in question were ones taken in the camera store robbery, there arrested appellant, made a limited search of his person, and took from him a briefcase he had been carrying. Appellant was taken directly to FBI headquarters where he was questioned, and his personal effects, including the briefcase, were examined. The briefcase contained 44, and his wallet 4, of the stolen money orders.
At appellant’s trial in state court for the camera store robbery, the money orders discovered by the search at FBI headquarters were, over objection, introduced into evidence as those stolen from the camera store. Appellant was convicted and sentenced to serve a term of from 15 to 30 years in prison. After appealing his conviction without success to the state appellate courts certiorari review was denied by the United States Supreme Court, Muhammad v. New York, 392 U.S. 944, 88 S.Ct. 2288, 20 L.Ed.2d 1406 (1968).
Appellant recognizes that the warrant-less search of the briefcase and the seizure of the money orders would have been proper if the search had been conducted at the time of his arrest in the lobby of the bank, but he claims, relying upon the rule in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), reaffirmed in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), that the Government was foreclosed from searching it and seizing its contents without a warrant after he and the briefcase had been removed from the scene of the arrest.
This contention is entirely frivolous. Nothing could be more consistent with a decent regard for the preservation of appellant’s right to human dignity than the act of the officers here in not publicly overhauling appellant's personal effects in the lobby of the bank. Officers may indeed promptly conduct more thorough searches of an arrested person and of the personal effects in his possession at the time of his arrest at a more convenient place than the spot of arrest. We have so held in the past subsequent to Preston, e. g., United States v. Frankenberry, 387 F.2d 337 (2 Cir. 1967); United States v. Caruso, 358 F.2d 184 (2 Cir.), cert. denied, 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966). And, in accord with an able opinion of Judge Coffin of the First Circuit, United States v. DeLeo, 422 F.2d 487, 491-493 (1 Cir.), cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970), demonstrating that the reasoning of the above cases, and numerous other cases like them, has not been overruled by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), we now hold here, subsequent to Chimel.
Moreover, we do not find Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) apposite. Here the challenged search is a search of a suspect’s person and of his personal effects in his immediate possession at the time of his arrest when there was probable cause to effect that arrest. The examination of appellant’s briefcase at the FBI headquarters presents no‘different constitutional issue than a search there of his suit pockets, or hatband, would present.
The order below is 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_r_stid
|
39
|
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.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
UNITED STATES of America ex rel. Joseph DALTON, a/k/a Daniel Dalton, Appellant, v. David N. MYERS, Superintendent, State Correctional Institution, Graterford, Pennsylvania.
No. 15037.
United States Court of Appeals Third Circuit.
Submitted Jan. 7, 1965.
Decided March 8, 1965.
Joseph Dalton, pro se.
Ward F. Clark, William J. Carlin, Dist. Atty., Doylestown, for appellee.
Before BIGGS, Chief Judge, and KALODNER and SMITH, Circuit Judges.
BIGGS, Chief Judge.
Dalton is appealing from a denial of a petition filed by him for a writ of habeas corpus. He alleges evidence, unlawfully seized by state officers, was introduced into evidence at his trial in the state court in contravention of rights secured to him by the Fourth and Fourteenth Amendments of the Constitution under the opinion of the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
Dalton was convicted of burglary, larceny and conspiracy by the Court of Oyer and Terminer of Bucks County. His conviction became final when sentence was imposed on June 15, 1962, almost a year after the Supreme Court’s decision in Mapp, supra. Under these circumstances, Mapp applies retrospectively to Dalton. United States ex rel. Clark v. Maroney, 339 F.2d 710 (3 Cir. 1964); United States ex rel. Mancini v. Rundle, 337 F.2d 268 (3 Cir. 1964); United States ex rel. Campbell v. Rundle, 327 F.2d 153 (3 Cir. 1964).
Dalton did not raise the issue of the alleged illegal search and seizure at his trial. He did attempt to raise it, however, on direct appeal. The Superior Court of Pennsylvania refused to pass on the question on the procedural ground that this issue had not been raised in the trial court and was not, therefore, cognizable on direct appeal. Commonwealth v. Dalton, 199 Pa.Super. 388, 185 A.2d 653 (1962), allocatur denied May 17, 1963, cert. denied, Dalton v. Myers, 375 U.S. 933, 84 S.Ct. 337, 11 L.Ed.2d 265 (1963). Dalton then attempted to raise the constitutional issue in the United States district court. Commonwealth ex rel. Dalton v. Myers, 227 F.Supp. 526 (E.D.Pa.1964).
The court below examined the Pennsylvania law and arrived at the conclusion that while the Pennsylvania courts would nob determine the issue on direct appeal, under the Pennsylvania decision of Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 194 A.2d 143 (1963), the remedy of habeas corpus was available to him in the state courts.
Dalton then applied to the state courts for habeas corpus. His petition, however, was denied by the Court of Common Pleas of Bucks County on the procedural ground that he could not raise on collateral attack grounds of error that he had not raised at his trial or on appeal. He again petitioned the court below for a writ of habeas corpus and was again denied a hearing because he had failed to exhaust his available state remedies.
In Campbell, supra, this court, after analyzing Pennsylvania law, on January 17, 1964, came to the same conclusion on substantially similar facts as did the court below on Dalton’s first petition for habeas corpus. We held that the state court should first have a chance to change its position to conform to what we deem to be the law. Subsequently, however, the Court of Common Pleas of York County denied the application for a writ of habeas corpus on the same procedural ground as did the Court of Common Pleas of Bucks County in the case at bar. The Superior Court affirmed that decision, sub. nom., Commonwealth ex rel. Ensor v. Cummings, 204 Pa.Super. 1, 201 A.2d 291 (1964). The Supreme Court reversed the Superior Court and held that the procedural defect does not prevent collateral attack. 416 Pa. 510, 207 A.2d 230 (1965). This decision was not handed down until January 5, 1965, almost a year after we had held that the petitioner was entitled to a hearing on the merits of his cause. Prior to the Pennsylvania Supreme Court’s decision in Ensor, and cognizant of procedural delays, this court in the Mancini and Clark cases, supra, elected to take jurisdiction.
The question presently before us is whether we should again send Dalton back to the state courts to seek relief. It is now crystal clear that under Ensor, Dalton is entitled to a hearing under the law of Pennsylvania. However, at the time Dalton petitioned the court below in his second application Ensor hád not yet been decided. On the contrary, it was settled in the Superior Court that Dalton was barred from raising the constitutional questions which he sought to have the Pennsylvania courts adjudicate. Commonwealth ex rel. Stoner v. Myers, 199 Pa.Super. 341, 185 A.2d 806 (1962), allocatur denied March 13, 1963; Commonwealth ex rel. Ensor v. Cummings, 204 Pa.Super. 1, 201 A.2d 291 (1964). At that time an appeal to the Superior Court would have been pointless. Appeal from the Superior Court to the Supreme Court is discretionary and the Supreme Court had not yet decided Ensor and had already denied allocatur in Stoner. It seems apparent that on these facts Dalton had exhausted his available state court remedies. See Clark and Mancini, supra.
We are free nonetheless as a matter of comity to attempt to maintain the delicate balance of judicial power between the Commonwealth of Pennsylvania and the United States and to remit Dalton to the state courts for his remedy. Compare United States ex rel. Drew v. Myers, 327 F.2d 174 (3 Cir. 1964). We believe that the state tribunals will now pursue the correct course and will do so promptly. We are aware that Dalton has twice asked courts of the Commonwealth of Pennsylvania to review his constitutional question and is now before the United States courts for the second time with the same request, and he has not yet had a hearing. We note also that he has nearly completed his minimum sentence. Moreover, there is a significant difference between the case at bar and those of Clark and of Mancini, supra. In those cases this court was able to dispose of the merits of the cause without further hearing. In the instant case a hearing on the merits of Dalton’s claim is necessary. There must necessarily be some further delay, regardless of whether we remand Dalton’s case to the court below or in effect send him back to a state tribunal for hearing. Because we have no doubt that the state court will grant Dalton a prompt hearing as it is now required to do under the Ensor decision, supra, we will affirm the decision of the court below.
. Dalton received a sentence of not less than two and a half years and not more than five years.
Question: What is the state of the first listed state or local government agency that is a respondent?
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_appel1_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 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 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).
Frank ARENA, Plaintiff, Appellant, v. LUCKENBACH STEAMSHIP COMPANY, Inc., et al., Defendants, Appellees.
No. 5601.
United States Court of Appeals First Circuit.
May 11, 1960.
Rehearing Denied June 10, 1960.
George P. Donovan, East Boston, Mass., for appellant.
Leo F. Glynn, Boston, Mass., for Luckenbach S. S. Co., Inc., appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
This is an action brought by a longshoreman injured in the port of Boston while engaged in loading a vessel owned by the defendant. The loading operations were in the sole control of a stevedoring company, plaintiff’s employer. The plaintiff was injured when a loading board tipped and spilled rolls of paper into the hold. The complaint alleges negligence in the failure to supply a safe place to work and in supplying defective loading equipment. It also alleges unseaworthiness, again, the allegedly defective loading equipment. At the close of plaintiff’s case the court directed a verdict for the defendant. The plaintiff appeals.
There was no conflict in the testimony. On the morning in question the vessel was simultaneously loading and unloading cargo. The plaintiff was at the bottom of one of the number 2 hatch “tanks.” The hatch was serviced by two winches. The after winch was engaged in discharging canned goods, and the forward one in loading rolls of printing paper. The cargo in each instance was carried on boards. The boards for paper were 5' wide and 8' long, suspended from two slings, or lanyards, fastened on the sides at points somewhat in from the corners. The can boards were suspended from the ends. We will call these boards, for want of a better term, sideboards and end-boards, respectively. Although the record is not altogether clear, apparently for as long as any witness could remember it was customary in the port of Boston to use side-boards for loading rolls of paper of this type, and end-boards for various other purposes. There was no evidence of any previous failure. These particular rolls were about 2y2 in diameter and S' long. Five rolls, as was “the usual custom in the port of Boston,” were placed upon a board — a layer of three, and on top of that, a layer of two. Nets permanently attached to each end of the board served, when tied across one to the other, to keep the rolls from rolling off. Longitudinal slippage of the rolls was contained by the sling, or lanyards, from which the board was suspended on each side.
The loading equipment of the vessel consisted of a fixed derrick, or pole, from which two booms were suspended, one stationed inshore, and the other “offshore,” over the hatch. There was a winch, with a separate control for each boom. Movement of the cargo from shore to ship was effected by taking up on the offshore falls and slackening on the inshore. The winch was electric, with three speeds each way. Prior to the accident some thirty loads had been brought aboard without incident. Three longshoremen who were on deck at the time testified about the one in question. The first said that as the board came aboard, “it looked like as if it was tipped a little.” The second said it was “swinging a little.” According to this witness, the winchman “steadied the load on deck to take the swing out of the load. When he had it steadied he started down the hold again. He steadied it again over the hatch and then the load tipped up.” All of the rolls rolled out. There was no evidence that any equipment failed, and no one testified, hypothetically or otherwise, as to what caused the upset.
The defendant having had nothing to do with the loading of the vessel, liability depends upon proof of defective or improper equipment. The only testimony as to the winch came from the third witness, the winchman. He stated that “it was beautiful.” He added that it ran “a little faster than usual.” When asked what he meant by this he said he was referring to high speed only. He did not characterize this speed as excessive, but repeated that the winch was “beautiful.” Even if this speed could be thought to be a defect, the witness was not asked, and there was no testimony from which it could be gathered, what speed or speeds the winch had been operated in with respect to this particular load. For all that appears, high speed was used only when the board was light. Nor was there any suggestion that it was unusual for a load to swing a little or tip a little, or that the rate of speed, in high or otherwise, had been the cause of such movement. Although the burden upon a longshoreman to establish causation is not heavy, there must be some evidence that whatever might be claimed to be a defect in the vessel had some connection with the occurrence. The defendant, on this record, could not be charged simply because high speed on this winch was faster than on some others.
The plaintiff bases his attack principally upon the board. There was no evidence that this particular board was damaged or defective. Nor were its lanyards or nets. The board, with its appurtenances, continued to be used for further loading. Apparently, not even any net lines had been injured. Although no witness testified directly what caused the accident to occur, we believe it can be deduced. When the winchman was asked whether he observed anything about the load as it was coming in, he stated, “This was one thing I noticed. The net. They had three bales on the bottom and two on the top * * * This net here had three rolls on the bottom; for two nothing was on them to hold them * * * and these two bales on top they shifted on me * * * The board went up straight and down like that.” In other words, with no fastening over the top rolls, and the nets partly filling the spaces between the bottom rolls which would normally help retain them, the top rolls were free to shift, which would further unbalance the board, and accentuate the movement with the eventual result. In view of the fact that even the bottom layer of rolls came out and the nets were not found to be injured after the accident, it may well be that the nets had not been tied at all, but were simply held over the bottom rolls by the weight of the top ones until their shifting released the tension. In any event, the improper loading was not chargeable to the defendant.
The plaintiff’s contention, which is purely counsel’s suggestion, as no witness so testified, is that so-called end-boards would have prevented this accident, and that the vessel was accordingly unseawoi oiy. There are two answers to this. In the first place, if the lanyards had been at the ends instead of at the sides of the board, there would have been no protection against end-wise slipping of the rolls. The nets were there to guard against roll-offs. The board was not defective simply because the longshoremen who loaded it neglected to do so in the proper fashion. Secondly, even if it could be found that end-boards rather than side-boards should have been used, the choice of side-boards was the stevedore’s. There was no evidence of unavailability of end-boards. If anything, the record suggests the contrary. A vessel is not unseaworthy simply because the improper type of equipment was used by someone unless, also, it appears that the proper type was unavailable. In the ice cream case, of which plaintiff makes much, the waiter’s use of a knife was forced upon him by the absence of the proper tool. Ferguson v. Moore-McCormack Lines, 1956, 352 U.S. 521, 522, 77 S.Ct. 457, 1 L.Ed.2d 511.
Before concluding, we wish to speak of the pleadings. Except for an admission that the defendant was a foreign corporation doing business in Massachusetts, and an allegation of lack of knowledge as to the citizenship of the plaintiff, the defendant’s answer denied every allegation in the complaint. F.R.Civ.P. 11, 28 U.S.C.A. provides in part, “The signature of an attorney constitutes a certificate by him that he has read the pleading; [and] that to the best of his knowledge * * * and belief there is good ground to support it. * * * For a wilful violation of this rule an attorney may be subjected to an appropriate disciplinary action.” It is difficult to believe that counsel who signed this answer had good grounds to assert, among other things, that his client did not either own, operate or manage the vessel, that the plaintiff was not employed by the stevedore, and that he was not injured, or even aboard the vessel. It is a breach of counsel’s obligation to the court to file an answer creating issues that counsel does not affirmatively believe have a basis.
Judgment will enter affirming the judgment of the District Court.
. This company was named as a third party defendant, but did not participate in the appeal, and is not referred to in this opinion as a defendant.
. No witness was called who had loaded the board, or who had seen it being loaded.
. Boards are stevedore’s property. We assume, without deciding, that the obligation of seaworthiness applies to equipment such as this, if used for performing a regular ship’s function, even though not customarily ship’s property. Cf. Considine v. Black Diamond S.S. Corp., D.C.D.Mass.1958, 163 F.Supp. 107.
. In his brief plaintiff states that the nets were only 2 feet long. There is no testimony from anyone as to the length of the nets. A photograph in evidence demonstrates them to be approximately 5 feet long, even when not stretched taut. We could not say that they could not go to the top of the top layer. There was no direct testimony that they could, or could not, but the fact that the winch-man spoke of noticing that the nets were only over the bottom rolls and that the top rolls were free indicates that this was not customary.
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)". 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_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.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellant.
No. 72-2834.
United States Court of Appeals, Fifth Circuit.
March 27, 1973.
Kalvin M. Grove, S. Richard Pincus, Chicago, Ill., Melbourne D. McLendon, Atlanta, Ga., Robert A. Penney, Boston, Mass., for defendant-appellant.
John deJ. Pemberton, Jr., Acting Gen. Counsel, E. E. O. C., Washington, D. C., Joseph Ray Terry, Jr., Regional Atty., E. E. O. C., Atlanta, Ga., Julia P. Cooper, Beth Don, E. E. O. C., Washington, D. C., for plaintiff-appellee.
Before WISDOM, GEWIN and COLEMAN, Circuit Judges.
PER CURIAM:
This appeal arises out of an action brought by the Equal Employment Opportunity Commission under Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972 P.L. 92-261,. 86 Stat. 103 (March 24, 1972), seeking reinstatement and back pay for the allegedly aggrieved party, Sandra Drew, pending final disposition of her charge before the Commission. The Appellant, Liberty Mutual Insurance Company (Liberty), complains of an order issued by the District Court, 346 F.Supp. 675, requiring it to reinstate Mrs. Drew to her former position and directing that she be given back pay with interest from the date of her discharge.
We are unable to agree with the contention of Liberty that the record fails to support the action taken by the District Court. Our review of the record fails to convince us that the District Court abused its discretion in issuing the order. However, we take note of the fact that the order of the District Court has provided Mrs. Drew with full pay for a period of almost one full year. In addition, she was allowed interest on the back pay awarded to her during the period of her discharge before reinstatement.
Pursuant to inquiry by this Court on oral argument, counsel for both parties informed the Court that nothing substantial has been accomplished by the Commission with respect to Mrs. Drew’s complaint since the District Court entered its order. This ease should receive immediate attention and the controversy should be brought to a proper conclusion. We do not approve the delay by the Commission which is evident in this case, especially in circumstances in which the relationship between employer and employee is seriously affected by the terms of an injunctive order.
We remand the case to the District Court with Directions to institute appropriate procedures to require the Commission to proceed with the investigation and possible disposition of the complaint involved in accordance with the duties imposed upon it by the applicable statutes and that this litigation be brought to a conclusion without further undue delay.
Affirmed and remanded.
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:
|
songer_r_bus
|
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 "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.
THE THOMAS J. CLEAVER. THE MARY C. McNALLY. LYNCH et al. v. McNALLY et al.
No. 4509.
Circuit Court of Appeals, Third Circuit.
Oct. 13, 1931.
Rehearing Denied Nov. 28, 1931.
Acker, Manning & Brown, of Philadelphia, Pa. (J. T. Manning, Jr., and S. B. Fortenbaugh, Jr., both of Philadelphia, Pa., of counsel), for appellants.
Biddle, Paul, Dawson & Yocum, of Philadelphia, Pa. (Howard H. Yocum and James M. West, 3d, both of Philadelphia, Pa., of counsel), for appellees.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
DAVIS, Circuit Judge.
This is an appeal from an interlocutory decree entered in the District Court Of the United States for the Eastern District of Pennsylvania, sustaining in part and dismissing in part a libel in admiralty. The libel was filed by the appellants to recover damages for injuries to the barge Thomas. J. Cleaver, and to her cargo, which were occasioned by a collision between the barge and a drawbridge, while the barge was being towed by the tug Mary C, McNally, and by her subsequent sinking.
The steam tug McNally was towing two barges, the Cleaver and the Rita Dempsey from Sparrows Point, Md., to Laurel, Del. On this voyage, the tug proceeded up the Nantieoke river in Maryland with the barges lashed on either side of her. Before reaching the Baltimore, Chesapeake & Atlantic Railroad Bridge which crosses the river at Vienna, Md., the tug dropped the barges astern and lashed them together, side by side; the Cleaver being on the port side. She resumed her journey up the river toward the starboard draw of the bridge, towing the barges on hawsers 12 to 15 fathoms in length and attempted to take them through a draw only 58 feet in width. Their double breadth measured 47 feet 6 inches. This left a clearance of only 5 feet 3 inches on each side of the barges.
When they entered the draw, the Dempsey sheered and her helmsman put her wheel hard to the starboard to avoid hitting an abutment of the bridge. However, her starboard bow struck a piling a glancing blow that caused the Cleaver to be pushed over toward the port, and in consequence her port bow struck a steel caisson with considerable force. Without retarding speed, the tug carried her tow on for a half mile, and then stopped. Captain Lynch of the Cleaver, who has since died, examined his barge, and failed to find any material damage. Captain Harrison of the tug asked Captain Lynch to go back to the bridge with him for “a few minutes” and examine it. Lynch went and left the Cleaver at anchor with an inexperienced deck hand on board. The journey to the bridge occupied five minutes, and they remained there, not “a few minutes,” but during a period of time, variously estimated to be from on'e-half hour to an hour and a half. As soon as it was noticed by those left in charge of the Dempsey and Cleaver that the Cleaver was settling into the water* the tug, in response to signals, immediately returned and attempted to save her by beaching her on the flats. But she was filling so rapidly that they were unable to prevent her from sinking.
The District Court properly found that the master of the tug did not exercise due care in attempting to bring the two barges abreast through the draw in view .of the small passage therein and his lack of knowledge of the tidal and stream conditions of the river. He is accordingly liable for the damages resulting from the collision at the bridge. The Margaret, 94 U. S. 494, 24 L. Ed. 146; The J. P. Donaldson, 167 U. S. 599, 17 S. Ct. 951, 42 L. Ed. 292.
But the more important question is whether or not the tug is also liable for the damages resulting from the sinking of the Cleaver. The lower court found that she was not, but that the sinking was due solely to the intervening negligence of her master.
The District Court relied upon two cases as authority for the conclusion that the proximate cause of the sinking was the negligence of her master in leaving her and going back to the bridge with the tug.
The first of those cases is The Mars (D. C.) 9 F.(2d) 183, in which it was held that the intervening negligence on the part of the master was the proximate cause of the sinking, and not the damage done by the collision. In that ease the collision caused a hole to be made in the side, of the barge some three inches above the water line when the barge was empty, and the following day she was loaded in such a way as to bring her water line below the hole and she sank. The court held the loading to be the proximate cause of her sinking. The hole was obvious and would have been discovered by the most casual examination, but no examination whatever was made and the conclusion of the court was inevitable. The facts in that case were very different from those in the ease at bar.
The second case is the Eclipse Lighterage & Transportation Co. v. Cornell Steamboat Co. (C. C. A.) 242 F. 927. There a barge was moored at night along a canal bank. A tug struck the barge such a blow that it awakened her watchman, who was sleeping in her cabin. The watchman got up and, having observed what happened, made only a “casual” examination and then returned to' his sleep. He was awakened by shouts the next morning and had only time to escape ashore before she sank. The court held that the tug was liable for the collision, but not for the sinking of the barge, for the reason that the damage which caused the leakage would have been immediately discovered on' a proper examination and that the failure to make such examination was the intervening efficient cause which produced the damage.
The collision in the instant case was caused by the want of due care on the part of the master of the tug. The tug, being liable for the collision, would also be liable for the subsequent sinking of the barge, if there was no intervening negligence that broke the causal connection between the collision and the sinking.
It is urged that the failure of the master of the barge to’ make a proper examination to discover any damage done to his barge and his subsequent desertion of it to return to the bridge was negligence that caused its sinking.
There is no evidence that the master of the barge failed to make a suitable examination. There is evidence that he made an examination, and, in the absence of anything to the contrary, he is presumed to have fulfilled his duty and to have made an examination that was proper under the circumstances. The Annie Lindsley, 104 U. S. 185, 191, 26 L. Ed. 716; Cincinnati, N. O. & Texas Pacific R. Co. v. Rankin, 241 U. S. 319, 327, 36 S. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265. There is no evidence of what he did during the half hour between the collision and his leaving the barge -to go to the bridge with the captain of the tug, except that he made the examination. We do not know how long that required. Captain Harrison made a “guess” that it was “about five minutes.” No one said that Captain Lynch in examining his boat did not sound his wells, go below and fore and aft to make as thorough an examination as the cargo and circumstances permitted.- There is every reason to suppose that he did make such an examination. He was part owner of the barge, had the reputation of being a reliable barge master and of thoroughly understanding his duties. The burden was upon the appellees to show at the trial that the examination made by the master after the collision was not a proper one, and this they failed to do. Therefore, the presumption stands, and we cannot without evidence penalize the dead master nor his estate for not doing what he is presumed to have done. There is, accordingly, a serious question as to whether or not Captain Lynch was negligent in leaving his barge for a “few minutes” under these circumstances.
But if he was negligent in leaving the barge in charge of an inexperienced deck hand and returning to the bridge with the lug, that does not make him liable and relieve the tug wholly or in part unless his negligence became the intervening, efficient cause which itself produced the injury. The captain of a barge, who is shown to be negligent, cannot be made liable for the sinking unless his neglect caused it. The Farragut, 10 Wall. (77 U. S.) 334, 19 L. Ed. 946; The Fannie, 11 Wall. (78 U. S.) 238, 20 L. Ed. 114; The Annie Lindsley, 104 U. S. 185, 191, 26 L. Ed. 716. “Where there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it.” Milwaukee & St. Paid R. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Texas & Pacific R. Co. v. Stewart, 228 U. S. 357, 33 S. Ct. 548, 57 L. Ed. 875; Muller v. Globe & Rutgers Fire Insurance Co. (C. C. A.) 246 F. 759, 762; Smith v. Pejepscot Paper Co. (D. C.) 46 F.(2d) 469, 471.
The Cleaver was a wooden barge about 175 feet in length, and, at that time, loaded with a 575-ton cargo of slag. She was thirty-two years old. If she were sprung or injured below her water line (as she in fact was), the damage, unless it were immediately serious, could not have been discovered by any reasonable examination. Because of her age, the seams above the water line would be well dried and she would fill as a sieve if the water rose above that line. It is uncontradieted that the seams and butts on the port and starboard sides of the barge from the bow to a point between the Nos. 1 and 2 hatches had to be “searched” and caulked after she was raised. The barge did not begin to settle so as to be noticed until about an hour and a half after the accident, and she then filled so rapidly that nothing could be done to save her. The Cleaver was lashed side by side with the Dempsey, whose master and deck hand were both on deck. Any settling of the Cleaver in the water would have been perfectly obvious to them. The captain of the Dempsey said that the Cleaver had settled over a foot when he first noticed it. This, of course, was only a guess, and indicates that, when the settling began, it proceeded fast. The settling was imperceptible until it had proceeded to some, and it may be considerable, extent.
But even if we assume that Captain Lynch was negligent in leaving the barge and that, had he not done so, he would have discovered that she was sinking sooner than did Captain Minnick of the Dempsey, the question arises as to whether or not he could have saved her had he remained on hoard and done his full duty. The only means available were a pump and a siphon, hut the pump was small and able to keep out ordinary seepage only and it required considerable time to rig up the siphon. It had to he hauled on deck, a gasoline pump had to be brought up from below, and a hole cut into the side of the barge in which to fit the siphon. Our conclusions must be based upon competent evidence, and there is no evidence that this could have been done in time to have saved her after the settling had proceeded far enough to he discovered, or that it would have saved her if it had been done. Only five minutes elapsed from the time it was first noticed that the barge was settling until -the tug reached her and began to beach her, but she was sinking so fast that she could not be beached and so filled and sank within twenty to thirty minutes in spite of all that could be done. Whether or not the settling would have been sooner discovered if Captain Lynch had remained on the barge, and whether or not, if sooner discovered, she could have been beached and saved from sinking, are guesses and not facts established by evidence. There is, therefore, no evidence showing that the barge could have been saved from sinking had Captain Lynch remained on board.
No intermediate efficient cause, that broke the connection between the collision and sinking of the barge, having been established, the decree of the District Court is affirmed as to its award of damages for the collision, and reversed as to its failure to award damages for the sinking.
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:
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sc_issue_1
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15
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case 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.
UNITED STATES v. WADE.
No. 334.
Argued February 16, 1967.
Decided June 12, 1967.
Beatrice Rosenberg argued the cause for the United States. With her on the brief were Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Nathan Lewin and Ronald L. Gainer.
Weldon Holcomb argued the cause and filed a brief for respondent.
Mr. Justice Brennan
delivered the opinion of the Court.
The question here is whether courtroom identifications of an accused at trial are to be excluded from evidence because the accused was exhibited to the witnesses before trial at a post-indictment lineup conducted for identification purposes without notice to and in the absence of the accused’s appointed counsel.
The federally insured bank in Eustace, Texas, was robbed on September 21, 1964. A man with a small strip of tape on each side of his face entered the bank, pointed a pistol at the female cashier and the vice president, the only persons in the bank at the time, and forced them to fill a pillowcase with the bank’s money. The man then drove away with an accomplice who had been waiting in a stolen car outside the bank. On March 23, 1965, an indictment was returned against respondent, Wade, and two others for conspiring to rob the bank, and against Wade and the accomplice for the robbery itself. Wade was arrested on April 2, and counsel was appointed to represent him on April 26. Fifteen days later an FBI agent, without notice to Wade’s lawyer, arranged to have the two bank employees observe a lineup made up of Wade and five or six other prisoners and conducted in a courtroom of the local county courthouse. Each person in the line wore strips of tape such as allegedly worn by the robber and upon direction each said something like "put the money in the bag,” the words allegedly uttered by the robber. Both bank employees identified Wade in the lineup as the bank robber.
At trial, the two employees, when asked on direct examination if the robber was in the courtroom, pointed to Wade. The prior lineup identification was then elicited from both employees on cross-examination. At the close of testimony, Wade’s counsel moved for a judgment of acquittal or, alternatively, to strike the bank officials’ courtroom identifications on the ground that conduct of the lineup, without notice to and in the absence of his appointed counsel, violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to the assistance of counsel. The motion was denied, and Wade was convicted. The Court of Appeals for the Fifth Circuit reversed the conviction and ordered a new trial at which the in-court identification evidence was to be excluded, holding that, though the lineup did not violate Wade’s Fifth Amendment rights, “the lineup, held as it was, in the absence of counsel, already chosen to represent appellant, was a violation of his Sixth Amendment rights....” 358 F. 2d 557, 560. We granted certiorari, 385 U. S. 811, and set the case for oral argument with No. 223, Gilbert v. California, post, p. 263, and No. 254, Stovall v. Denno, post, p. 293, which present similar questions. We reverse the judgment of the Court of Appeals and remand to that court with direction to enter a new judgment vacating the conviction and remanding the case to the District Court for further proceedings consistent with this opinion.
I.
Neither the lineup itself nor anything shown by this record that'Wade was required to do in the lineup violated his privilege against self-incrimination. We have only recently reaffirmed that the privilege “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature....” Schmerber v. California, 384 U. S. 757, 761. We there held that compelling a suspect to submit to a withdrawal of a sample of his blood for analysis for alcohol content and the admission in evidence of the analysis report were not compulsion to those ends. That holding was supported by the opinion in Holt v. United States, 218 U. S. 245, in which case a question arose as to whether a blouse belonged to the defendant. A witness testified at trial that the defendant put on the blouse and it had fit him. The defendant argued that the admission of the testimony was error because compelling him to put on the blouse was a violation of his privilege. The Court rejected the claim as “an extravagant extension of the Fifth Amendment,” Mr. Justice Holmes saying for the Court:
“[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” 218 U. S., at 252-253.
The Court in Holt, however, put aside any constitutional questions which might be involved in compelling an accused, as here, to exhibit himself before victims of or witnesses to an alleged crime; the Court stated, “we need not consider how far a court would go in compelling a man to exhibit himself.” Id., at 253.
We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have. It is no different from compelling Schmerber to provide a blood sample or Holt to wear the blouse, and, as in those instances, is not within the cover of the privilege. Similarly, compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a “testimonial” nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. We held in Schmerber, supra, at 761, that the distinction to be drawn under the Fifth Amendment privilege against self-incrimination is one between an accused’s “communications” in whatever form, vocal or physical, and “compulsion which makes a suspect or accused the source of ‘real or physical evidence,’ ” Schmerber, supra, at 764. We recognized that “both federal and state courts have usually held that... [the privilege] offers no protection against compulsion to submit to' fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Id., at 764. None of these activities becomes testimonial within the scope of the privilege because required of the accused in a pretrial lineup.
Moreover, it deserves emphasis that this case presents no question of the admissibility in evidence of anything Wade said or did at the lineup which implicates his privilege. The Government offered no such evidence as part of its case, and what came out about the lineup proceedings on Wade’s cross-examination of the bank employees involved no violation of Wade’s privilege.
II.
The fact that the lineup involved no violation of Wade’s privilege against self-incrimination does not, however, dispose of his contention that the courtroom identifications should have been excluded because the lineup was conducted without notice to and in the absence of his counsel. Our rejection of the right to counsel claim in Schmerber rested on our conclusion in that case that “[n]o issue of counsel’s ability to assist petitioner in respect of any rights he did possess is presented.” 384 U. S., at 766. In contrast, in this case it is urged that the assistance of counsel at the lineup was indispensable to protect Wade’s most basic right as a criminal defendant — his right- to a fair trial at which the witnesses against him might be meaningfully cross-examined.
The Framers of the Bill of Rights envisaged a broader role for counsel than under the practice then prevailing in England of merely advising his client in “matters of law,” and eschewing any responsibility for “matters of fact.” The constitutions in at least 11 of the 13 States expressly or impliedly abolished this distinction. Powell v. Alabama, 287 U. S. 45, 60-65; Note, 73 Yale L. J. 1000, 1030-1033 (1964). “Though the colonial provisions about counsel were in accord on few things, they agreed on the necessity of abolishing the facts-law distinction; the colonists appreciated that if a defendant were forced to stand alone against the state, his case was foredoomed.” 73 Yale L. J., supra, at 1033-1034. This background is reflected in the scope given by our decisions to the Sixth Amendment’s guarantee to an accused of the assistance of counsel for his defense. When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today’s law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to “critical” stages of the proceedings. The guarantee reads: “In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence.” (Emphasis supplied.) The plain wording of this guarantee thus encompasses counsel’s assistance whenever necessary to assure a meaningful “defence.”
As early as Powell v. Alabama, supra, we recognized that the period from arraignment to trial was “perhaps the most critical period of the proceedings...,” id., at 57, during which the accused “requires the guiding hand of counsel...,” id., at 69, if the guarantee is not to prove an empty right. That principle has since been applied to require the assistance of counsel at the type of arraignment — for example, that provided by Alabama — where certain rights might be sacrificed or lost: “What happens there may affect the whole trial. Available defenses may be irretrievably lost, if not then and there asserted....” Hamilton v. Alabama, 368 U. S. 52, 54. See White v. Maryland, 373 U. S. 59. The principle was also applied in Massiah v. United States, 377 U. S. 201, where we held that incriminating statements of the defendant should have been excluded from evidence when it appeared that they were overheard by federal agents who, without notice to the defendant’s lawyer, arranged a meeting between the defendant and an accomplice turned informant. We said, quoting a concurring opinion in Spano v. New York, 360 U. S. 315, 326, that “[a]nything less... might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’ ” 377 U. S., at 204.
In Escobedo v. Illinois, 378 U. S. 478, we drew upon the rationale of Hamilton and Massiah in holding that the right to counsel was guaranteed at the point where the accused, prior to arraignment, was subjected to secret interrogation despite repeated requests to see his lawyer. We again noted the necessity of counsel’s presence if the accused was to have a fair opportunity to present a defense at the trial itself:
“The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the ‘right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial examination’.... ‘One can imagine a cynical prosecutor saying: “Let them have the most illustrious counsel, now. They can’t escape the noose. There is nothing that counsel can do for them at the trial.” ’ ” 378 U. S., at 487-488.
Finally in Miranda v. Arizona, 384 U. S. 436, the rules established for custodial interrogation included the right to the presence of counsel. The result was rested on our finding that this and the other rules were necessary to safeguard the privilege against self-incrimination from being jeopardized by such interrogation.
Of course, nothing decided or said in the opinions in the cited cases links the right to counsel only to protection of Fifth Amendment rights. Rather those decisions “no more than reflect a constitutional principle established as long ago as Powell v. Alabama....” Massiah v. United States, supra, at 205. It is central to that principle that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial. The security of that right is as much the aim of the right to counsel as it is of the other guarantees of the Sixth Amendment — the right of the accused to a speedy and public trial by an impartial jury, his right to be informed of the nature and cause of the accusation, and his right to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor. The presence of counsel at such critical confrontations, as at the trial itself, operates to assure that the accused’s interests will be protected consistently with our adversary theory of criminal prosecution. Cf. Pointer v. Texas, 380 U. S. 400.
In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.
III.
The Government characterizes the lineup as a mere preparatory step in the gathering of the prosecution’s evidence, not different — for Sixth Amendment purposes — from various other preparatory steps, such as systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial.
IV.
But the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: “What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent — not due to the brutalities of ancient criminal procedure.” The Case of Sacco and Vanzetti 30 (1927). A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor — ■ perhaps it is responsible for more such errors than all other factors combined.” Wall, Eye-Witness Identification in Criminal Cases 26. Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.
Moreover, “[i]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.”
The pretrial confrontation for purpose of identification may take the form of a lineup, also known as an “identification parade” or “showup,” as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno, supra. It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification. But as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations. “Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on....” Miranda v. Arizona, supra, at 448. For the same reasons, the defense can seldom reconstruct the manner and mode of lineup identification for judge or jury at trial. Those participating in a lineup with the accused may often be police officers; in any event, the participants’ names are rarely recorded or divulged at trial. The impediments to an objective observation are increased when the victim is the witness. Lineups are prevalent in rape and robbery prosecutions and present a particular hazard that a victim’s understandable outrage may excite vengeful or spiteful motives. In any event, neither witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect. And if they were, it would likely be of scant benefit to the suspect since neither witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences. Improper influences may go undetected by a suspect, guilty or not, who experiences the emotional tension which we might expect in one being confronted with potential accusers. Even when he does observe abuse, if he has a criminal record he may be reluctant to take the stand and open up the admission of prior convictions. Moreover, any protestations by the suspect of the fairness of the lineup made at trial are likely to be in vain; the jury’s choice is between the accused’s unsupported version and that of the police officers present. In short, the accused’s inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.
What facts have been disclosed in specific cases about the conduct of pretrial confrontations for identification illustrate both the potential for substantial prejudice to the accused at that stage and the need for its revelation at trial. A commentator provides some striking examples:
“In a Canadian case... the defendant had been picked out of a line-up of six men, of which he was the only Oriental. In other cases, a black-haired suspect was placed among a group of light-haired persons, tall suspects have been made to stand with short non-suspects, and, in a case where the perpetrator of the crime was known to be a youth, a suspect under twenty was placed in a line-up with five other persons, all of whom were forty or over.”
Similarly state reports, in the course of describing prior identifications admitted as evidence of guilt, reveal numerous instances of suggestive procedures, for example, that all in the lineup but the suspect were known to the identifying witness, that the other participants in a lineup were grossly dissimilar in appearance to the suspect, that only the suspect was required to wear distinctive clothing which the culprit allegedly wore, that the witness is told by the police that they have caught the culprit after which the defendant is brought before the witness alone or is viewed in jail, that the suspect is pointed out before or during a lineup, and that the participants in the lineup are asked to try on an article of clothing which fits only the suspect.
The potential for improper influence is illustrated by the circumstances, insofar as they appear, surrounding the prior identifications in the three cases we decide today. In the present case, the testimony of the identifying witnesses elicited on cross-examination revealed that those witnesses were taken to the courthouse and seated in the courtroom to await assembly of the lineup. The courtroom faced on a hallway observable to the witnesses through an open door. The cashier testified that she saw Wade “standing in the hall” within sight of an FBI agent. Five or six other prisoners later appeared in the hall. The vice president testified that he saw a person in the hall in the custody of the agent who “resembled the person that we identified as the one that had entered the bank.”
The lineup in Gilbert, supra, was conducted in an auditorium in which some 100 witnesses to several alleged state and federal robberies charged to Gilbert made wholesale identifications of Gilbert as the robber in each other’s presence, a procedure said to be fraught with dangers of suggestion. And the vice of suggestion created by the identification in Stovall, supra, was the presentation to the witness of the suspect alone handcuffed to police officers. It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police. See Frankfurter, The Case of Sacco and Vanzetti 31-32.
The few cases that have surfaced therefore reveal the existence of a process attended with hazards of serious unfairness to the criminal accused and strongly suggest the plight of the more numerous defendants who are unable to ferret out suggestive influences in the secrecy of the confrontation. We do not assume that these risks are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification. Williams & Hammelmann, in one of the most comprehensive studies of such forms of identification, said, “[T]he fact that the police themselves have, in a given case, little or no doubt that the man put up for identification has committed the offense, and that their chief pre-occupation is with the problem of getting sufficient proof, because he has not 'come clean,’ involves a danger that this persuasion may communicate itself even in a doubtful case to the witness in some way....” Identification Parades, Part I, [1963] Crim. L. Rev. 479, 483.
Insofar as the accused’s conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him. Pointer v. Texas, 380 U. S. 400. And even though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. Thus in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — “that’s the man.”
Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was “as much entitled to such aid [of counsel]... as at the trial itself.” Powell v. Alabama, 287 U. S. 45, 57. Thus both Wade and his counsel should have been notified of the impending lineup, and counsel’s presence should have been a requisite to conduct of the lineup, absent an “intelligent waiver.” See Carnley v. Cochran, 369 U. S. 506. No substantial countervailing policy considerations have been advanced against the requirement of the presence of counsel. Concern is expressed that the requirement will forestall prompt identifications and result in obstruction of the confrontations. As for the first, we note that in the two cases in which the right to counsel is today held to apply, counsel had already been appointed and no argument is made in either case that notice to counsel would have prejudicially delayed the confrontations. Moreover, we leave open the question whether the presence of substitute counsel might not suffice where notification and presence of the suspect’s own counsel would result in prejudicial delay. And to refuse to recognize the right to counsel for fear that counsel will obstruct the course of justice is contrary to the basic assumptions upon which this Court has operated in Sixth Amendment cases. We rejected similar logic in Miranda v. Arizona concerning presence of counsel during custodial interrogation, 384 U. S., at 480-481:
“[A]n attorney is merely exercising the good professional judgment he has been taught. This is not cause for considering the attorney a menace to law enforcement. He is merely carrying out what he is sworn to do under his oath — to protect to the extent of his ability the rights of his client. In fulfilling this responsibility the attorney plays a vital role in the administration of criminal justice under our Constitution.”
In our view counsel can hardly impede legitimate law enforcement; on the contrary, for the reasons expressed, law enforcement may be assisted by preventing the infiltration, of taint in the prosecution’s identification evidence. That result cannot help the guilty avoid conviction but can only help assure that the right man has been brought to justice.
Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as “critical.” But neither Congress nor the federal authorities have seen fit to provide a solution. What we hold today “in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect.” Miranda v. Arizona, supra, at 467.
V.
We come now to the question whether the denial of Wade’s motion to strike the courtroom identification by the bank witnesses at trial because of the absence of his counsel at the lineup required, as the Court of Appeals held, the grant of a new trial at which such evidence is to be excluded. We do not think this disposition can be justified without first giving the Government the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification. See Murphy v. Waterfront Commission, 378 U. S. 52, 79, n. 18. Where, as here, the admissibility of evidence of the lineup identification itself is not involved, a per se rule of exclusion of courtroom identification would be unjustified. See Nardone v. United States, 308 U. S. 338, 341. A rule limited solely to the exclusion of testimony concerning identification at the lineup itself, without regard to admissibility of the courtroom identification, would render the right to counsel an empty one. The lineup is most often used, as in the present case, to crystallize the witnesses’ identification of the defendant for future reference. We have already noted that the lineup identification will have that effect. The State may then rest upon the witnesses’ unequivocal courtroom identification, and not mention the pretrial identification as part of the State’s case at trial. Counsel is then in the predicament in which Wade’s counsel found himself — realizing that possible unfairness at the lineup may be the sole means of attack upon the unequivocal courtroom identification, and having to probe in the dark in an attempt to discover and reveal unfairness, whde bolstering the government witness’ courtroom identification by bringing out and dwelling upon his prior identification. Since counsel’s presence at the lineup would equip him to attack not only the lineup identification but the courtroom identification as well, limiting the impact of violation of the right to counsel to exclusion of evidence only of identification at the lineup itself disregards a critical element of that right.
We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U. S. 471, 488, “ ‘[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Maguire, Evidence of Guilt 221 (1959).” See also Hoffa v. United States, 385 U. S. 293, 309. Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.
We doubt that the Court of Appeals applied the prop'er test for exclusion of the in-court identification of the two witnesses. The court stated that “it cannot be said with any certainty that they would have recognized appellant at the time of trial if this intervening lineup had not occurred,” and that the testimony of the two witnesses “may well have been colored by the illegal procedure [and] was prejudicial.” 358 F. 2d, at 560. Moreover, the court was persuaded, in part, by the “compulsory verbal responses made by Wade at the instance of the Special Agent.” Ibid. This implies the erroneous holding that Wade’s privilege against self-incrimination was violated so that the denial of counsel required exclusion.
On the record now before us we cannot make the determination whether the in-court identifications had an independent origin. This was not an issue at trial, although there is some evidence relevant to a determination. That inquiry is most properly made in the District Court. We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing to determine whether the in-court identifications had an independent source, or whether, in any event, the introduction of the evidence was harmless error, Chapman v. California, 386 U. S. 18, and for the District Court to reinstate the conviction or order a new trial, as may be proper. See United States v. Shotwell Mfg. Co., 355 U. S. 233, 245-246.
The judgment of the Court of Appeals is vacated and the case is remanded to that court with direction to enter a new judgment vacating the conviction and remanding the case to the District Court for further proceedings consistent with this opinion.
It is so ordered.
The Chief Justice joins the opinion of the Court except for Part I, from which he dissents for the reasons expressed in the opinion of Mr. Justice Foutas.
Mr. Justice Douglas joins the opinion of the Court except for Part I. On that phase of the case he adheres to the dissenting views in Schmerber v. California, 384 U. S. 757, 772-779, since he believes that compulsory lineup violates the privilege against self-incrimination contained in the Fifth Amendment.
Holt was decided before Weeks v. United States, 232 U. S. 383, fashioned the rule excluding illegally obtained evidence in a federal prosecution. The Court therefore followed Adams v. New York, 192 U. S. 585, in holding that, in any event, “when he is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material,'is competent.” 218 U. S., at 253.
See Powell v. Alabama, 287 U. S. 45, 60-65; Beaney, Right to Counsel in American Courts 8-26.
See Note, 73 Yale L. J. 1000, 1040-1042 (1964); Comment, 53 Calif. L. Rev. 337, 347-348 (1965).
See, e. g., Powell v. Alabama, 287 U. S. 45; Hamilton v. Alabama, 368 U. S. 52; White v. Maryland, 373 U. S. 59; Escobedo v. Illinois, 378 U. S. 478; Massiah v. United States, 377 U. S. 201.
See cases cited n. 4, supra; Avery v. Alabama, 308 U. S. 444, 446.
Borchard, Convicting the Innocent; Frank & Frank, Not Guilty; Wall, Eye-Witness Identification in Criminal Cases; 3 Wigmore, Evidence § 786a (3d ed. 1940); Rolph, Personal Identity; Gross, Criminal Investigation 47-54 (Jackson ed. 1962); Williams, Proof of Guilt 83-98 (1955); Wills, Circumstantial Evidence 192-205 (7th ed. 1937); Wigmore, The Science of Judicial Proof §§ 250-253 (3d ed. 1937).
See Wall, supra, n. 6, at 26-65; Murray, The Criminal Lineup at Home and Abroad, 1966 Utah L. Rev. 610; Napley, Problems of Effecting the Presentation of the Case for a Defendant, 66 Col. L. Rev. 94, 98-99 (1966); Williams, Identification Parades, [1955] Crim. L. Rev. (Eng.) 525; Paul, Identification of Acc
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
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 the defendant. 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.
Houston McELROY, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
No. 71-2997.
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Feb. 2, 1972.
Rehearing Denied April 4, 1972.
Before JOHN R. BROWN, Chief Judge, and INGRAHAM, and RONEY, Circuit Judges.
Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
Affirmed. See Local Rule 21.
. In his habeas petition filed below, the appellant contended that he was convicted on the basis of insufficient evidence, and that his privately-retained counsel rendered ineffective representation.
. See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
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.
Sam B. HERRON, Sr. v. V. A. HERRON, Jr.
No. 16671.
United States Court of Appeals Fifth Circuit.
May 23, 1958.
Phil Stone, James Stone & Sons, Oxford, Miss., Joel P. Walker, Jr., Chatham & Walker, Hernando, Miss., for appellant.
Chester L. Sumners, Smallwood, Sum-ners & Hickman, Oxford, Miss., James McClure, Sr., McClure, Fant & McClure,. Sardis, Miss., for appellee.
Before RIVES, BROWN and WISDOM, Circuit Judges.
WISDOM, Circuit Judge.
This is an appeal from the United States District Court from the Northern District of Mississippi dismissing appellant’s complaint. Jurisdiction is based on diversity of citizenship.
The proceedings in the district court that produced this appeal raise the following question: Was it reversible error for the district court to allow defendant to raise the defense of the statute of limitations on a motion that the court insisted on treating as a motion to dismiss and not as a motion for a summary-judgment when—
(1) it was necessary to go outside of the pleadings to prove the application of the statute of limitations,
(2) the object of the motion was to try the main issue in the case and the effect of the dismissal was a decision on the merits, and
(3) the complainant had no notice, of the hearing and no opportunity to meet the issues?
The question answers itself. The com-, plainant never had his day in court.. There was reversible error.
I.
Suit was to establish a trust. Sam. Herron, Sr., appellant, filed a complaint against his nephew, V. A. Herron, Jr., alleging that for many years the defendant operated a store in Oakland, Yalo-busha County, Mississippi, as trustee for-the heirs of Mrs. B. M. Herron. The complaint prayed that: (1) a trust be-decreed; (2) the defendant produce books and records pertaining to the operation of the store, for inspection and: copying; and, (3) a master be appointed to take an accounting of the operation of the store for the period from 1932 to the date of the suit.
Mrs. Herron died in 1925. There was no administration of her estate. Her sole heirs were four children — Sam, his two brothers, and sister. They agreed orally to keep their inherited property intact and to operate their mother’s farm and store under the name of “The B. M. Herron Estate”. The store failed, but in 1932 a new store was established with the sum of $500 taken from the funds of the estate. Sam Herron alleged that the heirs agreed that the store would be operated by V. A. Herron, Jr., as trustee for the owners of “The B. M. Herron Estate”. Over the years the $500 increased and multiplied until, with other causes, it produced a first-class family feud.
II.
The pleadings in the district court proliferated to a point characteristic of litigated family feuds. That is the point where a profusion of pleadings confounds the lawyers and confuses the courts.
Following a series of motions by both sides, and an amended complaint, the defendant filed an answer denying that there was any trust and setting up the following defenses: (1) lack of jurisdiction; (2) the statutes of limitations for three, six, and ten years; (3) laches; (4) estoppel; and (5) res judicata. November SO, 1956, appellant filed a motion for production and inspection of documents, with supporting affidavits, and served notice that the motion would be called for hearing December 14, 1956. December 3, 1956, appellee filed a motion invoking the statute of frauds and also moved for a preliminary hearing on the special pleas and defenses of statute of limitations, statute of frauds, laches, es-toppel and res judicata. The court was not asked to fix the date of such hearing. The hearing on appellant’s motion was continued by consent to January 7, 1957. On that day, appellee filed a supplemental answer and specific “plea for abatement”, asking that the complaint be dismissed, because of the pendency of proceedings on the same issue (but with conflicting allegations) in the Chancery Court of Yalobusha County between Sam Herron, appellant, and V. A. Herron, Sr.
The matter came on for hearing January 7, 1957 on appellant’s motion for production and inspection of defendant’s books. Appellant received a rude surprise. His motion was not heard. His suit was dismissed.
The sequence of events at the hearing is unclear. This is what happened' — more or less. Counsel for appellee made a long preliminary statement giving his view of the case, referring to his special defenses and pleas, including the specific plea of abatement, and urging his right to examine the complainant, especially to make proof of the specific plea of abatement and of his defenses which he regarded as pleas of abatement. Appellant objected that: he had not had five days notice, as required under Rule 6(d), 28 U.S.C.A.; appellee had not obtained any order allowing the filing; he was taken by surprise for he had not expected complainant to be called as a witness, and the complainant should not be compelled to testify without notice at a hearing called for another purpose. Appellant objected also to the appellee’s motion of December 3, on the ground that it did not conform to the Federal Rules. If intended as a motion for a summary judgment, appellant had no notice; the motion did not allege that there was no issue of fact, and, it is manifest that the complaint and answer raise many material issues of fact. Appellee answered: (1) his pleas and special defenses referred only to matters of record; (2) he had the right to examine complainant to show that there was no basis for the complainant’s motion; (3) the plea raising the special defenses of the statute of frauds, statute of limitations, res judicata, and laches was “in no sense a motion for a summary judgment, but * * * pleas in abatement”. Counsel for appellant then stated that he had no objection to the examination of his client, if it were limited to matters relating to his motion for production of books. He insisted, however, that (1) he should be protected against surprise and that (2) defendant’s pleas amounted to a motion for a summary judgment.
Here, the trial judge observed that the appellee’s plea was “a motion to dismiss, as I understand, on various grounds, the statute of limitations, the plea of res judicata, laches, now they all stand strictly on the record”. Counsel for appellee stated that as to the specific plea of abatement (in regard to the Chancery proceedings), “which actually has not been filed”, the proof was a matter of record; as to the statute of limitations, it was necessary “to examine him [complainant] for the purpose of determining whether the likelihood of a trust ever having existed in the first instance, whether he can show the existence of such a trust”. The trial judge pointed out: “Thai is getting into the trial of the cause on the merits”. Counsel for appellee repudiated the idea: “I don’t think that is the way the case shapes up * * * [Before defendant is compelled to produce his books, the complainant] must at least go forward with sufficient proof to indicate to this Court that there may be some basis for the claim that the trust ever existed and on that basis, we want to examine him.”
The trial court persisted: “I’m trying to discuss your motion [not appellant’s] * * * Your Statute of Limitations * * * [I] sn’t all of that a simple hard cold question of admitted facts, according to the pleadings?” Counsel for appellee explained that he wished to question the complainant as to when he learned about the trust and when he claimed that the trust was breached. The trial judge then held: “with respect to the Statute of Limitations you [appellee] may examine his [complainant] * * * and your examination will be confined strictly to that * * * I will hold you on that motion to this particular matter”. In a last gasp, counsel for complainant again objected.
The examination of Sam Herron was-extensive. It was a cross-examination, not preceded by any direct testimony, going fully into the merits of the case, as-to whether there was a trust. There were no other witnesses. At the conclusion of the testimony, the trial judge held that there was no trust. The Court’s-order was that “the cause is barred by the' Statute of Limitations”, on the ground that, since there was no trust, plaintiff’s, only action was for conversion of funds-barred by the three-year 'Statute of Limitations, Code Miss.1942, § 729.
The record shows that the attorneys for both parties were surprised that the hearing was determinative of the case. But it was small wonder that the attorney for complainant was surprised. His motion for production and inspection of defendant’s books — the reason for the hearing — was lost in the shuffle. Instead, he found that the trial judge had decided the case on the merits, on a motion never set for a hearing. With grace and skill, counsel for appellee argues that the only surprise at the hearing was the surprise of appellant’s counsel at his client’s testimony.
III.
The parties and the court never reached any agreement as to what ap-pellee’s motion was or what it was intended to do. Appellee insisted that, although he complied with the requirement of the Federal Rules in pleading the statute of limitations and other affirmative defenses in his answer and in his supplemental motion, they are “pleas in abatement” and in no sense a motion for a summary judgment. Appellant insisted that appellee’s motion was one for summary judgment. The trial judge stated In his order that “the cause came on for hearing on motion of the defendant to dismiss on plea of statute of limitations”.
“Pleas in abatement”, as such, have been abolished. Rule 7(c). The dismissal of the complaint was based, therefore, on a motion to dismiss or a motion for summary judgment.
Under Rule 6(d) appellant was entitled to five days notice of the hearing of a motion to dismiss. Rule 6(d) is not a hard and fast rule, however, and if it is shown that a party had actual notice and time to prepare to meet the questions raised by the motion of an adversary, Rule 6(d) should not be applied. Here, appellant had no notice. His attorney expected to argue his own motion. The witness was examined closely, without the records; although an important part of his case, as shown by the complaint, was that records should be produced and inspected in order to determine the facts. It is just such surprise that the Federal Rules were designed to prevent.
It is clear that Rule 8(c) requires affirmative defenses to be pleaded, in order to prevent surprise. There is general agreement also, under Rule 9(f), that even the defenses of limitations or laches may be asserted by motion to dismiss for failure to state a claim — provided that the complaint shows affirmatively that the claim is barred. Suckow Borax Mines v. Borax Consolidated, 9 Cir., 1950, 185 F.2d 196; Berry v. Chrysler Corp., 6 Cir., 1945, 150 F.2d 1002; Reeves Steel Construction Co. v. Weiss, 6 Cir., 1941, 119 F.2d 472; Panhandle Eastern Pipeline Co. v. Parish, 10 Cir., 1948, 168 F.2d 238; Gossard v. Gossard, 10 Cir., 1945, 149 F.2d 111; 2 Moore’s Federal Practice, Sec. 8.28, p. 1698; 1 Barron & Holtzoff, Federal Practice & Proc., Sec. 281, p. 520.
Even if a complaint does not show on its face the factual basis for an affirmative defense, a litigant may go beyond the pleadings, under Rule 56, by a motion for a summary judgment. But only if the facts are undisputed. The 1946 amendment to Rule 12(b) requires a motion to dismiss to be treated as a motion for summary judgment, if the movant goes outside the pleadings to prove his affirmative defense. “In short, the motion to dismiss is thereby converted into a motion for summary judgment.” Suckow Borax Mines v. Borax Consolidated, 9 Cir., 1950, 185 F.2d 196, 205. See Butcher v. United Elec. Coal Co., 7 Cir., 1949, 174 F.2d 1003; Notes of the Advisory Committee on Rules, 28 U.S.C.A. 12(b)
The rules safeguard a complainant from surprise. Rule 56 requires that the motion for a summary judgment be served “at least 10 days before the time fixed for the hearing”. Rule 6(d) requires five days. Under Rule 56 “the pleadings depositions, and admissions on file, with the affidavits, if any, [must] show that there is no genuine issue as to any material fact”. The amendment to Rule 12(b) provides that if matters outside the pleadings are to be considered and the motion converted to one for summary judgment, “all parties shall be given a reasonable opportunity to present all material made pertinent to such a motion by Rule 56”.
The instant case is similar to Butcher v. United Elec. Coal Co., 7 Cir., 1949, 174 F.2d 1003, 1006. That was a suit for an accounting and recognition of a constructive trust. The defendant filed a motion to dismiss, setting up the statute of limitations, laches, and the statute of frauds. The district court granted the motion and dismissed the suit. The Court of Appeals reversed the district court, holding: “According to Rule 12 (b) and its associated Rule 56, summary .judgment may be rendered only if there are no genuine issues of fact to be re.solved * * *. On such a motion it is no part of the court’s function to decide issues of fact, but solely to determine whether there are any such issues of fact to be tried. * * * [T]he limitation * * * [is] the usual type which is to be relied upon as a matter of affirmative defense and which may be avoided by various facts such as those which appellant was denied opportunity to bring forward. * * * The basis for the decision was not that there were no controverted issues, but rather that there were such issues, as to all of which the court ruled adversely to appellant, although ‘on a motion to dismiss because the complaint fails to state a cause of action, the facts set forth in the complaint are assumed to be true * * *.’ ”
Rule 34 states that when a party moves for production of books and records he must show good cause. Rule 43 (b) permits a defendant to interrogate a complainant. These two rules, however, cannot be used, singly or together, to circumvent the express requirements of Rule 12(b) and 56.
Spiralling back through the convolutions in this case to the original complaint, we find an action to establish an oral trust allegedly created in 1932. Denial that there was a trust produced a material issue of fact. In going into the disputed facts and in dismissing the suit, the trial judge went beyond the scope of his authority as defined in Rules 12(b) and 56.
The solid justice embedded in these two rules is well illustrated in the instant case. There may or may not have been a trust. But the complainant was entitled to a fair shake at proving the existence of the trust. Instead, without notice, without an opportunity to produce witnesses or to examine books and records of obvious bearing on the issue, without realizing what was happening to him — it happened: the case was disposed of on the merits. Rules 12(b) and 56 are to prevent just such an oddity.
Complainant never had his day in court. The judgment is reversed and remanded.
. The Court held: “From the testimony of the plaintiff in this case, it seems to me there could be no question in the world as to the fact that the defendant in this ease, Aubrey Herron, Junior, was nothing in the world in connection with this business but a clerk and a bookkeeper. He had no authority in connection with the business, according to the testimony of the plaintiff, and he was simply there to do what the brothers of the plaintiff instructed him to do. He was not the manager. He couldn’t do anything except a few manual things around the store, except as he was directed to do. There is no proof in the world in the testimony of the plaintiff, and I think it contradicts that of the defendant that this defendant could have been a party to any trust at that time. He was merely a bookkeeper and clerk, to some extent, in running a little business which they all agreed might be run in the name of that young man, aceord-ing to the testimony of the plaintiff in this ease, and that existed up to the time of the purchase of the Moore property and its transfer to him, and the transfer of some merchandise. It seems to me-that that brings this case into a situation where, if the plaintiff had any right against the defendant at all, he had a, right of action for a conversion of funds, that that would be controlled by the-Three Tear Statute of Limitation. It seems that that statute is bound to apply,, and the Court would so hold. * * *
“Order
“This cause came on for hearing on motion of the defendant to dismiss on plea of Statute of Limitations, Statute of' Fraud and Laches, and the Court, having heard and considered the same, finds that the cause is barred under the Statute of' Limitations.
“It Is, Therefore, Ordered that the-complaint be dismissed with prejudice at the cost of the complainant. * * * ”
. 28 U.S.C.A. 12(b) p. 339:
“The addition at the end of subdivision b makes it. clear that on a motion under rule 12(a) (6) extraneous material may not be considered if the court excludes it, but if tlie court does not exclude such material the motion shall bo treated as a motion for summary judgment and disposed of as provided in rule 56. It will also be observed that if a motion under rule 12(b) (6) is thus converted into a summary judgment motion, the amendment insures that both, parties shall be given a reasonable opportunity to submit affidavits and extraneous proofs to avoid taking a party by surprise through the conversion of the motion into .a motion for summary judgment. In this manner and to this extent the amendment .regularizes the practice above described. As courts are already dealing with, cases in this way, the effect of this amendment is really only to define the practice carefully and apply the requirements of the summary judgment rule in the disposition of the motion.”
See Kithcart v. Metropolitan Life Ins. Co., 8 Cir., 1945, 150 F.2d 997.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_genapel2
|
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 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.
LUMBER PRODUCTS ASS’N, Inc., et al. v. UNITED STATES.
No. 10011.
Circuit Court of Appeals, Ninth Circuit.
Aug. 23, 1944.
Rehearing Denied Oct. 14, 1944.
Maurice E. Harrison, Moses Lasky, Brobeck, Phleger & Harrison and James M. Thomas, all of San Francisco, Cal., for Lumber Products Ass’n group of appellants.
Joseph O. Carson, II, of Indianapolis, Ind., Harry N. Routzohn, of Dayton, Ohio, and Hugh K. McKevitt and Jack M. Howard, both of San Francisco, Cal., for certain Labor Union appellants.
Joseph O. Carson, of Indianapolis, Ind., Charles H. Tuttle and Thomas E. Kerwin, both of New York City, and Hugh K. Mc-Kevitt, of San Francisco, Cal.’ for appellant United Brotherhood of Carpenters and Joiners of America.
Clarence E. Todd, of San Francisco, Cal., for appellant Alameda County Building & Construction Trades Council.
Morgan J. Doyle, of San Francisco, Cal., for appellants Boorman Lumber Co. et al.
Charles S. Burdell, Sp. Asst. to Atty. Gen., of Seattle, Wash., and Joseph L. Alioto and George W. Hippeli, both of San Francisco, Cal., John S. Harlow, of Seattle, Wash., and James McI. Henderson, of San Francisco, Cal. (Tom C. Clark, Asst. Atty. Gen., and Frank J. Hennessy, U. S. Atty., of San Francisco, Cal., of counsel), for appellee.
Before GARRECHT, DENMAN, and HEALY, Circuit Judges.
DENMAN, Circuit Judge.
This is an appeal from a judgment of the district court sentencing appellants for violation of Section 1 of the Sherman Anti-Trust Act, on finding the several appellants guilty or acting on pleas of nolo contendere. They were among a large group indicted on two counts for combining and conspiring to violate that Act. The second count was dismissed upon motion of the government.
For convenience in describing the parties to the alleged conspiracy, one group of the present appellants will be designated as the “Union Group” and the remaining appellants as the “Manufacturer Group.” The former group is composed of the United Brotherhood of Carpenters and Joiners of America, an international union affiliated with the A. F. of L., two area Trade Councils, two local unions, affiliated with the above international, and several officers and members of these associations. The latter group is composed of Trade associations, corporations and individuals.
All of the appellants were engaged in or otherwise associated with the manufacture, distribution, sale or installation of mill work and patterned lumber in the San Francisco Bay Area.
The facts alleged to constitute the charge of the indictment show that prior to 1936 at least 80% of the mill work and patterned lumber used in the San Francisco area was produced in states other than California. The principal area of production was in Washington and Oregon. The processing of lumber products in the latter two states was with the most developed equipment and on a large scale mass basis in which, in some instances, raw timber was converted into finished lumber in a single continuous operation. This method of production was in marked contrast to the apparently more costly, small plant operations of the Bay area manufacturers, in which the skilled labor of craftsmen was used. The labor used in the Washington and Oregon production, though organized, was on a lower wage scale than that of the Bay area mill workers at the time the alleged conspiracy was formed, though it does not appear that the annual wage of the out-of-state labor was lower or their cost of living as high.
The Manufacturer Group involved here produced substantially all the mill work and patterned lumber made in the area. All of the craftsmen skilled in the production or installation of these products had to be members of a local of the Union Group before they could work for the Manufacturers. It was alleged that under these circumstances the combined power of these two groups was great. It is apparent that such monopoly power well could impose a greatly increased cost to the smaller home builder and others in the great building activity of such a state as California, with its extraordinary immigration of the past two decades.
It was further alleged that in 1936 the Union Group demanded an increase in wages. This demand was acceded to by the Manufacturer Group in exchange for an agreement by the unions to prevent the sale and shipment to the Bay area of products manufactured outside of California. This agreement was reduced to a written contract between the parties in which they agreed that “* * * no material will be purchased from, and no work will be done on any material or article that has had any operation performed on same by Saw Mills, Mills or Cabinet Shops, or other distributors that do not conform to the rates of wage and working conditions of this agreement.” This exclusionary clause was alleged to be subject to certain named exceptions.
The Manufacturer Group circulated among the trade price lists and market reports which effected artificial and noncompetitive prices for mill work and patterned lumber. These were enforced by the Union Group by picketing, work stoppages and other means, preventing the use of materials purchased in violation of the terms of the contract.
On the basis of the alleged facts and conduct it was finally charged that the object and effect of the combination was to stop the sale of mill work and patterned lumber by manufacturers in other states in the San Francisco area and to prevent lumber yards and jobbers in that area from purchasing such out-of-state products and thereby permit the raising and fixing of prices in such products. It was further charged that the conspiracy had succeeded in its object and that prices of mill work and patterned lumber had been arbitrarily and unreasonably increased.
All of the defendants demurred to the indictment. This was overruled by the trial court. Thereafter all the parties here making up the Manufacturers Group withdrew their pleas of not guilty and entered pleas of nolo contendere. The parties falling in the Union Group maintained their plea of not guilty, were tried and found guilty by verdict of a jury.
The first issue common to all of the appellants is the sufficiency of the indictment. It is contended that the trial court erred in refusing to sustain the demurrers which were based on the ground that the allegations of the indictment failed to state a crime under the Sherman Act in that the agreement between the parties merely embodied legitimate objectives of labor, successfully obtained through the process of collective bargaining in termination of a labor dispute. Appellants urge here that the doctrines of the Supreme Court decisions in Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311, 128 A.L.R. 1044, and United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788, are controlling.
Appellants argue that nothing unlawful is charged, for it is well established that labor may lawfully refuse to work on any product it sees fit and from this freedom it follows that labor may make the intention of such a refusal the terms of a contract.
The government argues that the allegations of the indictment cannot be so narrowly construed. They must be viewed in the light of all the facts charged, and, though such a provision in a contract may not be invalid on its face, the factual context in which it will work, its alleged purpose and ultimate effect cannot be ignored in determining its actual validity. Considering all these factors the government contends that the agreement was for the express purpose of committing the offense of violating the Sherman Act; that the gains in wages to the labor conspirators and in the profits to the co-conspiring manufacturers from their monopoly grip on the home builder and other consumers of such lumber products in the San Francisco area were not mere fortuitous and incidental results of the agreement; and that Congress in enacting the Norris-LaGuardia Act did not intend that labor should be free so purposefully to conspire with its employers to exact a tribute from the consumers of their products.
We agree with the government that the charges of the indictment and the factual allegations made in their support are not of a restraint upon commerce merely incident to the ordinary disruption of the production of an employer, arising out of a protracted labor dispute and necessary to the achieving of a legitimate objective of organized labor. Rather there is here alleged a combination for a direct restraint upon commerce with an objective of destroying the competition of that commerce and permitting the fixing and maintenance of the local area prices at an arbitrary, artificial and non-competitive level. It is such intended restraints for such an objective at which the sanctions of the Sherman Act are directed.
Nor are the appellants aided by the statement in the Apex case that the restrictive effect upon the power of an employer to compete in commerce by the elimination of price competition based on differences in labor standards, resulting from the successful consummation of a wage agreement by a union, is not within the Sherman Act. Not only was the price competition of mill work and patterned lumber products of Washington and Oregon attributed in part to more efficient, technically improved, large scale methods, but here the elimination of competition was not a result merely incidentally flowing from the achieved objective of increased wages but the means of obtaining it. Also there is not here the protection or preservation of a previously existing interest lending reasonableness to a restraint, but rather the bold pursuit of restraint for the direct mutual advantage of the parties, to be gained by the monopoly price tribute from the consumer.
Because organized labor may lawfully strike, picket or boycott in support of its demands for higher wages which an employer may or may not be able to pay, it does not follow that labor and the employer may agree to use these weapons to destroy the competition- of interstate commerce and give the employer a monopoly price raising contract and thereafter “split the take.” Such conduct is not within the scope of the immunity described in the Apex case.
Likewise the monopoly purposes and objective of the agreement between the labor unions and the manufacturers distinguishes the conduct charged here from that held under the provisions of the Norris-LaGuardia Act to be immune from prosecution in United States v. Hutcheson, supra. In that case the dispute was between two unions and the effect on interstate commerce was an incident to and not the objective of the defendants’ conduct. That case clearly indicates that, as shown in the Apex case, there is an area of conduct of combined labor and capital violative of the Sherman Act which is not immunized from prosecution under the Norris-LaGuardia Act. This appears in the statement of Mr. Justice Frankfurter’s opinion, 312 U.S. at page 242, 61 S.Ct. at page 466, 85 L.Ed. 788, that “So long as a union acts in its self-interest and does not combine with non-labor groups, [footnote below] the licit and the illicit under § 20 are not to be distinguished by any judgment regarding the wisdom or unwisdom, the rightness or wrongness, the selfishness or unselfishness of the end of which the particular union activities are the means.”
In United States v. Brims, 272 U.S. 549, 47 S.Ct. 169, 71 L.Ed. 403, so cited in the Hutcheson case, the Supreme Court held violative of the Sherman Act a conspiracy of manufacturers of mill work, building contractors, and union carpenters, to check competition from non-union-made mill work coming from other states, to accomplish which the manufacturers and contractors were to employ only union carpenters, who would refuse to install the non-union mill work. This combination of labor “with non-labor groups” so held to violate the Sherman Act even lacked the element here charged of the enforcement of the employers’ artificial and non-competitive price list, circulated to the trade and forced upon the consumer by the picketing and work-stoppages of the unions. There the conspirators, the Supreme Court states (272 U.S. at page 552, 47 S.Ct. at page 170, 71 L.Ed. 403), “wished to eliminate the competition of Wisconsin and other nonunion mills, which were paying lower wages and consequently could undersell them. Obviously it would tend to bring about the desired result , if a general combination could be secured under which the manufacturers and contractors would employ only union carpenters with the understanding that the latter would refuse to install non-union-made mill work. And we think there is evidence reasonably tending to show that such a combination was brought about, and that, as intended by all the parties, the so-called outside competition was cut down and thereby interstate commerce directly and materially impeded. The local manufacturers, relieved from the competition that came through interstate commerce, increased their output and profits; they gave special discounts to local contractors; more union carpenters secured employment in Chicago, and their wages were increased. These were the incentives which brought about the combination. The nonunion mills outside the city found their Chicago market greatly circumscribed or destroyed; the price of building was increased, and, as usual under such circumstances, the public paid excessive prices.”
In the four cases succeeding United States v. Hutcheson, in which the Supreme Court sustained, without opinion, the dismissals of the indictments, there is a charge of a purpose to restrain interstate commerce, but in no one of them does it appear that the labor dispute is ended and emerging from it are monopolies, previously purposed and intended, in which both labor and employer successfully divide the gain from the price raising of the combination. In three of them the combination is between labor groups alone. In one, United States v. International Hod Carriers’ and Common Laborers’ District Council of Chicago and Vicinity, 313 U.S. 539, 61 S.Ct. 839, 85 L.Ed. 1508, the Supreme Court sustained the district court (United States v. Carrozzo, 37 F.Supp. 191, 193, 196) which had dismissed the indictment in which it was charged that the combined labor unions “by means of strikes and threats of strikes . . . force paving contractors in the Chicago area to enter into working agreements with the defendant Council requiring paving contractors using truck mixers in the Chicago area to employ the same number of men which they would employ if truck mixers were not used; * * *”
Here is no allegation of a combination of unions and employers to restrain interstate commerce such as is referred to in the opinion in the Hutcheson case. If there be an impediment to the interstate commerce in truck mixers of concrete by so forcing the employers to the extra expense of mixing concrete by hand labor, it is, as stated in the opinion of the district court “only indirect and incidental,” and as that opinion also states “In the instant case no acts are alleged to have been performed which would constitute restraint of trade in commercial competition in the marketing of truck-mixers.” 37 F.Supp. 196. Furthermore, the coercion of the employers is against the employers’ interest and solely for the interest of the union members. The situation is strikingly different from one where the agreement between employers and unions for the exclusion of the articles from outside the state is purposed at once to raise prices by monopoly pricing and create an increased wage by such pricing.
Here the Manufacturer Group and the Union Group are no longer “participating or interested in a labor dispute” as that term is used in § 5 of the Norris-LaGuardia Act. The dispute is past. The labor and: non-labor groups are combined. The acts described in § 4 of that Act and section 20 of the Clayton Act, some of which are charged in the indictment here to have been committed by the now non-disputant unions and their members and their manufacturing employers are not to secure any legitimate advance of the laborer’s interest. They are squeezing implements to extort what, in effect, is a capital levy on the home builder and other consumers. Their lack of organization makes them helpless to defend themselves against the monopolistic conspirators.
We hold that Congress in enacting the Norris-La Guardia Act and the Clayton Act did not give immunity to the “wrongness” and the “illicit” of this character of combination of labor with non-labor groups. The district court committed no error in overruling the demurrers and in refusing to dismiss the indictment.
It is contended that the trial court erred in denying the defendants’ motion for a directed verdict in that there was insufficient evidence to support the charges of the indictment. But in reviewing the record we find evidence of agreements between the two groups and conduct on the part of each directed at the elimination of competition from the northern products by the price control and other acts from which a jury well could find a concert of action and purpose to unlawfully restrain interstate commerce. Therefore, the trial court did not err in submitting the case to the jury.
Appellant United Brotherhood of Carpenters and Joiners of America does not argue here the question of the sufficiency of the evidence to support the charge that some form of agreements existed between the local labor groups and the employer group or that they may have had as their objectives the suppression of commerce. But it does raise, separately, the issue of whether there was evidence of its knowing of or being a party to the found combination or conspiracy.
There was evidence showing knowledge and participancy by the president, vice-president and field representative of the international in the negotiation of working agreements in the Bay area between the local organizations and the mill operators. There was also evidence of approval of those agreements by those officers acting in their capacity of final arbiters of problems or differences which might arise between locals. We cannot say there was nothing upon which the jury could find this appellant, through its authorized agents in pursuit of its accepted policy, was a party to the combination.
The Alameda County Building and Construction Trades Council attacks the sufficiency of the evidence as to it in the same manner. We find ample evidence of the Council aiding in the enforcement of an agreement to exclude certain types of lumber and determining whether certain dealers should be placed on the unfair list for violating the agreements from which the jury could find participation in the conspiracy. The trial court did not err in refusing an instructed verdict for this appellant.
Error is claimed by two of the defendants, Christian A. Wilder and Charles Gustafson, both of the Manufacturer Group, in the trial court’s overruling of their plea to its jurisdiction and in rendering judgment and imposing sentence on them. The grounds urged are that they, as individuals, had not been indicted by a grand jury. Rather, it is contended, only the firms of which they are partners had been indicted.
Paragraph 8 of the first count of the indictment states, in part, “The following named individuals, partnerships and corporations * * * are hereby indicted and made defendants herein * * * The legal status and principal place of business or residence of the owners are listed below.” There then follows a page set out in five columns. In the first of these are listed eight names of business houses. The second column lists “Legal Status,” i.e., corporation, partnership, individuals. The third column lists “Names of partners or individuals,” and included among the names under the heading are those of Wilder and Gustafson.
It requires no strained construction to find the obvious. Clearly those two defendants were included among the “following named individuals” who were indicted. The trial court did not err in its ruling on their pleas and motions.
Appellants of Local No. 42 and Local No. SSO of the United Brotherhood of Carpenters and Joiners assert that the trial court erred in sustaining the government’s demurrer to their pleas founded on an alleged immunity said to arise out of the forced production of subpoena duces tecum of the records and documents of these unions by the grand jury. This contention has been foreclosed by the recent decision of the Supreme Court in United States v. White, 64 S.Ct. 1248.
Like error is claimed by appellants Ryan, O’Leary and Helbing, who were officers or business agents of the Locals or Councils indicted. Pursuant to subpoenas duces tecum addressed to their organizations, these men appeared before the grand jury and, under protest, produced the desired organizational records and documents. It is clear from the decision in the White case that these defendants could not claim a personal immunity arising out of the production of documents held in their custody in an official capacity.
However, in addition to their producing union books and papers, each was forced to testify before the grand jury. The question is then raised as to whether their testimony concerned in a substantial way their own connections with the transactions for which they were subsequently found guilty as charged. Heike v. United States, 227 U.S. 131, 144, 33 S.Ct. 226, 57 L.Ed. 450. The trial court found no such substantiality and concluded they were not immune from prosecution under 15 U.S.C.A. § 32.
The transcript of their testimony given before the grand jury is included within the record now before us. Ryan v. United States, 9 Cir., 128 F.2d 551, 552. It shows that each identified the organizational records produced; that each was an officer or agent of his respective union, and that each outlined the organizational structure and relationships between the several unions. None of such testimony is within the area of immunity. United States v. Greater New York Live Poultry C. of C., D.C.N.Y., 34 F.2d 967, certiorari denied, 283 U.S. 837, 51 S.Ct. 486, 75 L.Ed. 1448.
The grand jury transcript further shows that Ryan identified as being his own a signature on a contract dated September 21, 1926. He was then asked, “Do you recall the circumstances under which that contract was negotiated * * * ?” and answered by describing how conference committees chosen by the parties, the unions and employers, negotiated such agreements. The next question was, “Now, in connection with the contract I have just handed you, * * * did you personally sit in at these negotiations?” to which he answered “Yes.”
True, that identification by an officer of his signature on a contract entered into by his organization may not have sufficient relationship to the investigated transaction to warrant granting immunity. Cf. United States v. Illinois Alcohol Co., 2 Cir., 45 F.2d 145, 149. Certainly the description of the methods of negotiations in themselves are not within the protected area. Where an individual is required to answer whether he participated in the negotiations of a contract a clause of which is subsequently set forth in an indictment found against him charging its operation to be one of the means “of effectuating * * * [an] * * * unlawful combination and conspiracy,” it cannot be said that his testimony has no substantial bearing on a transaction and its criminality founded on merely some imaginary hypothesis. Ex parte Irvine, C.C., 74 F. 954, 960; Mason v. United States, 244 U.S. 362, 365, 37 S.Ct. 621, 61 L.Ed. 1198; United States v. Molasky, 7 Cir., 118 F.2d 128, 134; Doyle v. Hofstader, 257 N.Y. 244, 177 N.E. 489, 87 A.L.R. 418. Proof of this portion of the contract was treated by the government as one of the vital links in the chain of evidence summing up the existence of a conspiracy to restrain trade, cf. United States v. Murdock, 284 U.S. 141, 150, 52 S.Ct. 63, 76 L.Ed. 210, 82 A.L.R. 1376, and acknowledgment of having participated in its negotiations would “tend” in rather a strong sense to incriminate him. United States v. St. Pierre, 2 Cir., 132 F.2d 837, 838, 147 A.L.R. 240. That the contract on its face may have been lawful, United States v. Weisman, 2 Cir., 111 F.2d 260, 262, or that the defendant signed it in an official capacity cannot be said to destroy his immunity ás an individual in all circumstances.
As to appellant O’Leary, in addition to identifying to the grand jury union documents explaining entries in the minute books, describing the labor conditions prevailing during the period of the conspiracy, negotiations over wages, he was asked if he worked in a “Negotiating Committee” made up of union representatives and employer representatives which worked on a stabilization agreement. He answered in the affirmative. Further testimony before the grand jury, warranting him immunity is stated in the footnote.
Regarding the testimony of appellant Helbing before the grand jury, information of negotiations between the unions and the employers similar ini kind to that of O’Leary was given. In addition he was asked if he knew a Mr. Jones of Jones Hardwood Company. He answered, “I have spoken to the gentleman.”
“Q. As a matter of fact, you called on him, didn’t you, and asked him to put up one of those placards that the Grand Jury has seen here? A. He asked me first- — - he sent me a letter in reference to certain things and conditions, and I went down to see Mr. Jones.
“Q. And you asked him at that time to put up a placard didn’t you? A. Yes, to boost local material.
“Q. Now, do you recall some doors that were coming in for a Ferry Building job down here, from a concern in Wisconsin? A. No, I can’t recall that.
“Q. You don’t? Don’t you recall that Mr. Jones had ordered some doors from this concern in Wisconsin and that he couldn’t bring them in here? A. No, he was given concessions — I didn’t transact that particular part of it. There were two of us on the job, here, part of the time last year.
“Q. Do you recall Mr. Helbing, that due to the fact that this company in Wisconsin did not have the label, that Mr. Jones obtained certain letters from them stating that they were fully organized A. F. of L. with their local union number on those letters? Do you recall that? A. No, I don’t. What I did tell Mr. Jones was this, when he asked me the question in reference to those doors. I said, When the time arrives, when you have doors coming in here, why, we will take it up.’ ”
Among the objects of the conspiracy alleged in the indictment was the exclusion of mill work and patterned lumber manufactured in states other than California. Among the means and methods alleged was “defendants * * * by means of pickets and threats to picket, forced the Jones Hardwood Company of San Francisco to cancel an order for mill work and patterned lumber from the Roddis Lumber and Veneer Company of Marshfield, Wisconsin * He H=”
At the trial the government introduced a letter addressed to Helbing’s local in which the Jones Hardwood Company inquired whether there were restrictions on certain doors manufactured in Wisconsin. During the course of the government’s cross-examination of Helbing he was again interrogated regarding his conversations with Jones.
Apart from O’Leary’s and Helbing’s participation in the negotiations between the unions and the manufacturers, it is clear that the grand jury questions bearing on their own conduct relating to the exclusion of the out-of-state products coming into the area had a very substantial relationship to the transactions found to restrain commerce and a direct tendency to incriminate them if other facts were found. To subpoena a person to appear and testify before a grand jury investigating possible unlawful restraints on interstate commerce and then force him to answer in what manner he kept articles of such commerce from being sold, certainly is to invade the area of incrimination and raise the immunity granted by 15 U.S.C.A. § 32. The trial court erred in refusing to dismiss the indictment as to these three defendants.
Those appellants who pleaded not guilty and were tried excepted to certain instructions such as the following:
“In this case the question is whether the labor union defendants entered into a combination with the non-labor defendants whereby the defendants intended to or did bring about an undue restriction of or interference with interstate commerce in mill work or patterned lumber.” “If you find that the employer and labor union defendants entered into an agreement or understanding, oral or written, under the terms of which the employer defendants agreed not to purchase patterned lumber and mill work manufactured under a lower wage scale than that prevailing in the San Francisco Bay Area, including patterned lumber and mill work manufactured in States outside the State of California; * * * such an agreement or understanding would constitute a violation of the Sherman Act as charged in the indictment. It would constitute no defense under the law, either to the employer defendants or to the union defendants that the agreement or understanding may have been arrived at in settlement of a labor dispute; * * *”
These instructions were covered by an overall instruction based upon the rule stated in the Hutcheson case. It is “Labor unions or their members may join together in promoting their self-interest, even though their acts in so doing may result in an undue obstruction of interstate commerce. But they can do this only so long as they act in their self-interest and do not combine with non-labor groups.” There is abundant evidence convincing to us as well as to the jury, that the unions did not confine their efforts to promoting their self-interest but combined with the employers, creating a monopoly excluding mill work from other states, for their employers’ interest as well. We find no prejudicial error in the instructions.
The judgment against all the appellants, save Ryan, O’Leary, and Helbing is affirmed. As to the latter three, the judgment is reversed and as to them their immunity requires that the indictment should be dismissed.
Affirmed in part and reversed in part.
15 U.S.C. § 1, 15 U.S.C.A. § 1.
Cf. Edwards v. United States, 312 U.S. 473, 61 S.Ct. 669, 85 L.Ed. 957.
See 28 Cal.L.Rev. (1940) 747, 759.
See 28 Cal.L.Rev.(1940) 747, 759.
“Cf. United States v. Brims, 272 U.S. 549, 47 S.Ct. 169, 71 L.Ed. 403, involving a conspiracy of mill work manufacturers, building contractors and union carpenters.
United States v. Building & Construction Trades Council, 313 U.S. 539, 61 S.Ct. 839, 85 L.Ed. 1508; United States v. Carrozzo, D.C., 37 F.Supp. 191; United States v. International Hod Carriers’, etc., Council, 313 U.S. 539, 61 S.Ct. 839, 85 L.Ed. 1508; United States v. American Federation of Musicians, D.C., 47 F.Supp. 304; Id., 318 U.S. 741, 63 S.Ct. 665, 87 L.Ed. 1120.
“No court of the United States shall have jurisdiction to issue a restraining order or temporary or permanent injunction upon the ground that any of the persons participating or interested in a labor dispute constitute or are engaged in an unlawful combination or conspiracy because of the doing in concert of the acts enumerated in section 4 of this title.” 29 U.S.C. § 105, 29 U.S.C.A. § 105.
“No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
“(a) Ceasing or refusing to perform any work or to remain in any relation of employment ; * * *
“(e) Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence; * * *
“(g) Advising or notifying any person of an intention to do any of the acts heretofore specified;
“(h) Agreeing with other persons to do or not to do any of the acts heretofore specified ; and
“(i) Advising, urging, or otherwise causing or inducing without fraud or violence the acts heretofore specified, regardless of any such undertaking or promise as is described in section 3 of this title.” 29 U.S.C. § 104, 29 U.S.C.A. § 104.
38 Stat. 738, 29 U.S.C. § 52, 29 U.S.C. A. § 52. “No restraining order or injunction shall be granted by any court of the United States, or a judge or the judges tbereof, in any cáse between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving, or growing out of, a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property, or to a property right, of the party making the application, for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney.
“And no such restraining order or injunction shall prohibit any person or persons, whether singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do; or from attending at any place where any such person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information, or from peacefully persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute, or from recommending, advising, or persuading others by peaceful and lawful means so to do; or from paying or giving to, or withholding from, any person engaged in such dispute, any strike benefits or other moneys or things of value ; or from peaceably assembling in a lawful manner, and for lawful purposes ; or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto; nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States.”
O’Leary was further asked: “Now, referring to the minutes of January 13, 1939, I notice that it states, ‘Business Agent O’Leary reported checking over the sidings and freight sheds and mills during the week and not finding any hot mill work.’ Do you recall the circumstances surrounding your activities as mentioned in this excerpt from the minutes?” Answer “Yes.” Then the following questions and answers were put and given.
“Q. Would you state them to the Grand Jury? A. Well, every once in a while somebody will break out with a rash over there that there is a hell of a lot of nonunion mill work coming in from the North — .
“Q. That is, from Washington and Oregon? A. Yes, I guess they don’t come in from British Columbia, and they want to know what the hell the business agent is doing, — ‘How are we going to live and work here if that cheap work comes in?’ and naturally enough, they want me to go out and check on it.
“Q. When you go out and check, what do you do? A. Go around to all the sidings and look them over, and see if there is any cars setting on them, and see what is in them.
“Q. If you find that there is any so-called ‘hot mill work’ in any cars on any of these sidings, what do you do then? A. Go to the employer, or the man that is purchasing them and try to get him to use local made mill work. Now, in using the words ‘mill work’ it has to do with moldings— there was a time when all surfaced material used to bear the label, and the carpenters would not handle it unless it did. At present, why, four-side stuff can come in; we don’t bother about it, but if there is moldings comes in we object to it.”
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_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
Jeffrey J. HEFFERNAN, Petitioner
v.
CITY OF PATERSON, NEW JERSEY, et al.
No. 14-1280.
Supreme Court of the United States
Argued Jan. 19, 2016.
Decided April 26, 2016.
Mark Frost, Philadelphia, PA, for petitioner.
Ginger D. Anders for the United States, as amicus curiae, by special leave of the Court, supporting the petitioner.
Thomas C. Goldstein, Bethesda, MD, for respondents.
Stuart Banner, Eugene Volokh, UCLA School of Law, Supreme Court Clinic, Los Angeles, CA, Fred A. Rowley, Jr., Grant A. Davis-Denny, Andrew G. Prout, Munger, Tolles & Olson LLP, Los Angeles, CA, Mark B. Frost, Counsel of Record, Ryan M. Lockman, Mark B. Frost & Associates, Philadelphia, PA, for petitioner.
Edward A. Hartnett, Seton Hall University School of Law, Victor A. Afanador, Counsel of Record, Susana Cruz Hodge, Erik E. Sardiña, Lite DePalma Greenberg LLC, Newark, NJ, Albert C. Lisbona, Beth Connell O'Connor, Dwyer, Connell & Lisbona, Gary Potters, Potters & Delia Peitra, Fairfield, NJ, Thomas P. Scrivo, McElroy, Deutsch, Mulvaney & Carpenter, Newark, NJ, Roosevelt Jean, Chasan, Leyner, & Lamparello, Secaucus, NJ, for respondents in Opposition.
Thomas C. Goldstein, Goldstein & Russell, P.C., Bethesda, MD, Gary Potters, Potters & Delia Peitra, Fairfield, NJ, Roosevelt Jean, Chasan Leyner &, Lamparello, Secaucus, NJ, Domenick Stampone, City of Paterson, Paterson, NJ, Victor A. Afanador, Erik E. Sardiña, Lite DePalma Greenberg, LLC, Edward A. Hartnett, Seton Hall University School of Law, Newark, NJ, Albert C. Lisbona, Beth Connell O'Connor, Dwyer, Connell & Lisbona, Fairfield, NJ, Ryan P. Mulvaney, McElroy, Deutsch, Mulvaney &, Carpenter, LLP, Newark, NJ, for respondents.
Justice BREYER delivered the opinion of the Court.
The First Amendment generally prohibits government officials from dismissing or demoting an employee because of the employee's engagement in constitutionally protected political activity. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ; Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) ; but cf. Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 564, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). In this case a government official demoted an employee because the official believed, but incorrectly believed, that the employee had supported a particular candidate for mayor. The question is whether the official's factual mistake makes a critical legal difference. Even though the employee had not in fact engaged in protected political activity, did his demotion "deprive" him of a "right ... secured by the Constitution"? 42 U.S.C. § 1983. We hold that it did.
I
To decide the legal question presented, we assume the following, somewhat simplified, version of the facts: In 2005, Jeffrey Heffernan, the petitioner, was a police officer in Paterson, New Jersey. He worked in the office of the Chief of Police, James Wittig. At that time, the mayor of Paterson, Jose Torres, was running for reelection against Lawrence Spagnola. Torres had appointed to their current positions both Chief Wittig and a subordinate who directly supervised Heffernan. Heffernan was a good friend of Spagnola's.
During the campaign, Heffernan's mother, who was bedridden, asked Heffernan to drive downtown and pick up a large Spagnola sign. She wanted to replace a smaller Spagnola sign, which had been stolen from her front yard. Heffernan went to a Spagnola distribution point and picked up the sign. While there, he spoke for a time to Spagnola's campaign manager and staff. Other members of the police force saw him, sign in hand, talking to campaign workers. Word quickly spread throughout the force.
The next day, Heffernan's supervisors demoted Heffernan from detective to patrol officer and assigned him to a "walking post." In this way they punished Heffernan for what they thought was his "overt involvement" in Spagnola's campaign. In fact, Heffernan was not involved in the campaign but had picked up the sign simply to help his mother. Heffernan's supervisors had made a factual mistake.
Heffernan subsequently filed this lawsuit in federal court. He claimed that Chief Wittig and the other respondents had demoted him because he had engaged in conduct that (on their mistaken view of the facts) constituted protected speech. They had thereby "depriv[ed]" him of a "right ... secured by the Constitution." Rev. Stat. § 1979, 42 U.S.C. § 1983.
The District Court found that Heffernan had not engaged in any "First Amendment conduct," 2 F.Supp.3d 563, 580 (D.N.J.2014) ; and, for that reason, the respondents had not deprived him of any constitutionally protected right. The Court of Appeals for the Third Circuit affirmed. It wrote that "a free-speech retaliation claim is actionable under § 1983 only where the adverse action at issue was prompted by an employee's actual, rather than perceived, exercise of constitutional rights." 777 F.3d 147, 153 (2015) (citing Ambrose v. Robinson, 303 F.3d 488, 496 (C.A.3 2002) ; emphasis added). Heffernan filed a petition for certiorari. We agreed to decide whether the Third Circuit's legal view was correct. Compare 777 F.3d, at 153 (case below), with Dye v. Office of Racing Comm'n, 702 F.3d 286, 300 (C.A.6 2012)
(similar factual mistake does not affect the validity of the government employee's claim).
II
With a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate. See Elrod v. Burns, supra ; Branti v. Finkel, supra . The basic constitutional requirement reflects the First Amendment's hostility to government action that "prescribe[s] what shall be orthodox in politics." West Virginia Bd. of Ed . v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). The exceptions take account of "practical realities" such as the need for "efficiency" and "effective[ness]" in government service. Waters v. Churchill, 511 U.S. 661, 672, 675, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) ; see also Civil Service Comm'n, supra, at 564, 93 S.Ct. 2880 (neutral and appropriately limited policy may prohibit government employees from engaging in partisan activity), and Branti, supra, at 518, 100 S.Ct. 1287 (political affiliation requirement permissible where affiliation is "an appropriate requirement for effective performance of the public office involved").
In order to answer the question presented, we assume that the exceptions do not apply here. But see infra, at 1419. We assume that the activities that Heffernan's supervisors thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish, see Rutan v. Republican Party of Ill., 497 U.S. 62, 69, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) ("joining, working for or contributing to the political party and candidates of their own choice"), but that the supervisors were mistaken about the facts. Heffernan had not engaged in those protected activities. Does Heffernan's constitutional case consequently fail?
The text of the relevant statute does not answer the question. The statute authorizes a lawsuit by a person "depriv[ed]" of a "right ... secured by the Constitution." 42 U.S.C. § 1983. But in this context, what precisely is that "right?" Is it a right that primarily focuses upon (the employee's) actual activity or a right that primarily focuses upon (the supervisor's) motive, insofar as that motive turns on what the supervisor believes that activity to be? The text does not say.
Neither does precedent directly answer the question. In some cases we have used language that suggests the "right" at issue concerns the employee's actual activity. In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), for example, we said that a court should first determine whether the plaintiff spoke " 'as a citizen' " on a " 'matter[ ] of public concern,' " id., at 143, 103 S.Ct. 1684. We added that, if the employee has not engaged in what can "be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge." Id., at 146, 103 S.Ct. 1684. We made somewhat similar statements in Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), and Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).
These cases, however, did not present the kind of question at issue here. In Connick, for example, no factual mistake was at issue. The Court assumed that both the employer and the employee were at every stage in agreement about the underlying facts: that the employer dismissed the employee because of her having circulated within the office a document that criticized how the office was being run (that she had in fact circulated). The question was whether the circulation of that document amounted to constitutionally protected speech. If not, the Court need go no further.
Neither was any factual mistake at issue in Pickering. The Court assumed that both the employer (a school board) and the employee understood the cause for dismissal, namely, a petition that the employee had indeed circulated criticizing his employer's practices. The question concerned whether the petition was protected speech. Garcetti is substantially similar. In each of these cases, the only way to show that the employer's motive was unconstitutional was to prove that the controversial statement or activity-in each case the undisputed reason for the firing-was in fact protected by the First Amendment.
Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994), is more to the point. In that case the Court did consider the consequences of an employer mistake. The employer wrongly, though reasonably, believed that the employee had spoken only on personal matters not of public concern, and the employer dismissed the employee for having engaged in that unprotected speech. The employee, however, had in fact used words that did not amount to personal "gossip" (as the employer believed) but which focused on matters of public concern. The Court asked whether, and how, the employer's factual mistake mattered.
The Court held that, as long as the employer (1) had reasonably believed that the employee's conversation had involved personal matters, not matters of public concern, and (2) had dismissed the employee because of that mistaken belief, the dismissal did not violate the First Amendment. Id., at 679-680, 114 S.Ct. 1878. In a word, it was the employer's motive, and in particular the facts as the employer reasonably understood them, that mattered.
In Waters, the employer reasonably but mistakenly thought that the employee had not engaged in protected speech. Here the employer mistakenly thought that the employee had engaged in protected speech. If the employer's motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here? After all, in the law, what is sauce for the goose is normally sauce for the gander.
We conclude that, as in Waters, the government's reason for demoting Heffernan is what counts here. When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983 -even if, as here, the employer makes a factual mistake about the employee's behavior.
We note that a rule of law finding liability in these circumstances tracks the language of the First Amendment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the "right of the people to be secure in their persons, houses, papers, and effects ...," the First Amendment begins by focusing upon the activity of the Government. It says that "Congress shall make no law ... abridging the freedom of speech." The Government acted upon a constitutionally harmful policy whether Heffernan did or did not in fact engage in political activity. That which stands for a "law" of "Congress," namely, the police department's reason for taking action, "abridge[s] the freedom of speech" of employees aware of the policy. And Heffernan was directly harmed, namely, demoted, through application of that policy.
We also consider relevant the constitutional implications of a rule that imposes liability. The constitutional harm at issue in the ordinary case consists in large part of discouraging employees-both the employee discharged (or demoted) and his or her colleagues-from engaging in protected activities. The discharge of one tells the others that they engage in protected activity at their peril. See, e.g ., Elrod, 427 U.S., at 359, 96 S.Ct. 2673 (retaliatory employment action against one employee "unquestionably inhibits protected belief and association" of all employees). Hence, we do not require plaintiffs in political affiliation cases to "prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance." Branti, 445 U.S., at 517, 100 S.Ct. 1287. The employer's factual mistake does not diminish the risk of causing precisely that same harm. Neither, for that matter, is that harm diminished where an employer announces a policy of demoting those who, say, help a particular candidate in the mayoral race, and all employees (including Heffernan), fearful of demotion, refrain from providing any such help. Cf. Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (explaining that overbreadth doctrine is necessary "because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions"). The upshot is that a discharge or demotion based upon an employer's belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake.
Finally, we note that, contrary to respondents' assertions, a rule of law that imposes liability despite the employer's factual mistake will not normally impose significant extra costs upon the employer. To win, the employee must prove an improper employer motive. In a case like this one, the employee will, if anything, find it more difficult to prove that motive, for the employee will have to point to more than his own conduct to show an employer's intent to discharge or to demote him for engaging in what the employer (mistakenly) believes to have been different (and protected) activities. We concede that, for that very reason, it may be more complicated and costly for the employee to prove his case. But an employee bringing suit will ordinarily shoulder that more complicated burden voluntarily in order to recover the damages he seeks.
III
We now relax an assumption underlying our decision. We have assumed that the policy that Heffernan's employers implemented violated the Constitution. Supra, at 1416. There is some evidence in the record, however, suggesting that Heffernan's employers may have dismissed him pursuant to a different and neutral policy prohibiting police officers from overt involvement in any political campaign. See Brief for United States as Amicus Curiae 27-28. Whether that policy existed, whether Heffernan's supervisors were indeed following it, and whether it complies with constitutional standards, see Civil Service Comm'n, 413 U.S., at 564, 93 S.Ct. 2880 are all matters for the lower courts to decide in the first instance. Without expressing views on the matter, we reverse the judgment of the Third Circuit and remand the case for such further proceedings consistent with this opinion.
It is so ordered.
Justice THOMAS, with whom Justice ALITO joins, dissenting.
Today the Court holds that a public employee may bring a federal lawsuit for money damages alleging a violation of a constitutional right that he concedes he did not exercise. Ante, at 1416. Because federal law does not provide a cause of action to plaintiffs whose constitutional rights have not been violated, I respectfully dissent.
I
This lawsuit concerns a decision by the city of Paterson, New Jersey (hereinafter City), to demote one of its police officers, Jeffrey Heffernan. At the time of Heffernan's demotion, Paterson's mayor, Jose Torres, was running for reelection against one of Heffernan's friends, Lawrence Spagnola. The police chief demoted Heffernan after another officer assigned to Mayor Torres' security detail witnessed Heffernan pick up a Spagnola campaign sign when Heffernan was off duty. Heffernan claimed that he picked up the sign solely as an errand for his bedridden mother. Heffernan denied supporting or associating with Spagnola's campaign and disclaimed any intent to communicate support for Spagnola by retrieving the campaign sign. Despite Heffernan's assurances that he was not engaged in protected First Amendment activity, he filed this lawsuit alleging that his employer violated his First Amendment rights by demoting him based on its mistaken belief that Heffernan had communicated support for the Spagnola campaign.
II
Title 42 U.S.C. § 1983 provides a cause of action against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects ... any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution." For Heffernan to prevail on his § 1983 claim, then, a state actor must have deprived him of a constitutional right. Nothing in the text of § 1983 provides a remedy against public officials who attempt but fail to violate someone's constitutional rights.
There are two ways to frame Heffernan's First Amendment claim, but neither can sustain his suit. As in most § 1983 suits, his claim could be that the City interfered with his freedom to speak and assemble. But because Heffernan has conceded that he was not engaged in protected speech or assembly when he picked up the sign, the majority must resort to a second, more novel framing. It concludes that Heffernan states a § 1983 claim because the City unconstitutionally regulated employees' political speech and Heffernan was injured because that policy resulted in his demotion. See ante, at 1418. Under that theory, too, Heffernan's § 1983 claim fails. A city's policy, even if unconstitutional, cannot be the basis of a § 1983 suit when that policy does not result in the infringement of the plaintiff's constitutional rights.
A
To state a claim for retaliation in violation of the First Amendment, public employees like Heffernan must allege that their employer interfered with their right to speak as a citizen on a matter of public concern. Whether the employee engaged in such speech is the threshold inquiry under the Court's precedents governing whether a public employer violated the First Amendment rights of its employees. See Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). If the employee has not spoken on a matter of public concern, "the employee has no First Amendment cause of action based on his or her employer's reaction to the speech." Ibid. If the employee did, however, speak as a citizen on a matter of public concern, then the Court looks to "whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public." Ibid.
Under this framework, Heffernan's claim fails at the first step. He has denied that, by picking up the yard sign, he "spoke as a citizen on a matter of public concern." Ibid. In fact, Heffernan denies speaking in support of or associating with the Spagnola campaign. He has claimed that he picked up the yard sign only as an errand for his bedridden mother. Demoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is not unconstitutional.
To be sure, Heffernan could exercise his First Amendment rights by choosing not to assemble with the Spagnola campaign. Cf. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (freedom of expression "includes both the right to speak freely and the right to refrain from speaking at all" (internal quotation marks omitted)). But such an allegation could not save his claim here. A retaliation claim requires proving that Heffernan's protected activity was a cause-in-fact of the retaliation. See University of Tex. Southwestern Medical Center v. Nassar, 570 U.S. ----, ----, 133 S.Ct. 2517, 2534, 186 L.Ed.2d 503 (2013). And Heffernan's exercise of his right not to associate with the Spagnola campaign did not cause his demotion. Rather, his perceived association with the Spagnola campaign did.
At bottom, Heffernan claims that the City tried to interfere with his constitutional rights and failed. But it is not enough for the City to have attempted to infringe his First Amendment rights. To prevail on his claim, he must establish that the City actually did so. The City's attempt never ripened into an actual violation of Heffernan's constitutional rights because, unbeknownst to the City, Heffernan did not support Spagnola's campaign.
Though, in criminal law, a factually impossible attempt like the City's actions here could constitute an attempt, there is no such doctrine in tort law. A plaintiff may maintain a suit only for a completed tort; "[t]here are no attempted torts." United States v. Stefonek, 179 F.3d 1030, 1036 (C.A.7 1999) (internal quotation marks omitted); see also Sebok, Deterrence or Disgorgement? Reading Ciraolo After Campbell, 64 Md. L. Rev. 541, 565 (2005) (same). And "there can be no doubt that claims brought pursuant to § 1983 sound in tort." Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). Because Heffernan could claim at most that the City attempted to interfere with his First Amendment rights, he cannot prevail on a claim under the theory that the City infringed his right to speak freely or assemble.
B
To get around this problem of factual impossibility, the majority reframes Heffernan's case as one about the City's lack of power to act with unconstitutional motives. See ante, at 1417. Under the majority's view, the First Amendment prohibits the City from taking an adverse employment action intended to impede an employee's rights to speak and assemble, regardless of whether the City has accurately perceived an employee's political affiliation. The majority surmises that an attempted violation of an employee's First Amendment rights can be just as harmful as a successful deprivation of First Amendment rights. Ante, at 1419. And the majority concludes that the City's demotion of Heffernan based on his wrongfully perceived association with a political campaign is no different from the City's demotion of Heffernan based on his actual association with a political campaign. Ante, at 1418.
But § 1983 does not provide a cause of action for unauthorized government acts that do not infringe the constitutional rights of the § 1983 plaintiff. See Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) ("In order to seek redress through § 1983, ... a plaintiff must assert the violation of a federal right, not merely a violation of federal law "). Of course the First Amendment "focus[es] upon the activity of the Government." Ante, at 1418. See Amdt. 1 ("Congress shall make no law ..."). And here, the "activity of Government" has caused Heffernan harm, namely, a demotion. But harm alone is not enough; it has to be the right kind of harm. Section 1983 provides a remedy only if the City has violated Heffernan's constitutional rights, not if it has merely caused him harm. Restated in the language of tort law, Heffernan's injury must result from activities within the zone of interests that § 1983 protects. Cf. Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. ----, ----, n. 5, 134 S.Ct. 1377, 1389, n. 5, 188 L.Ed.2d 392 (2014) (discussing the zone-of-interests test in the context of negligence per se ).
The mere fact that the government has acted unconstitutionally does not necessarily result in the violation of an individual's constitutional rights, even when that individual has been injured. Consider, for example, a law that authorized police to stop motorists arbitrarily to check their licenses and registration. That law would violate the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). And motorists who were not stopped might suffer an injury from the unconstitutional policy; for example, they might face significant traffic delays. But these motorists would not have a § 1983 claim simply because they were injured pursuant to an unconstitutional policy. This is because they have not suffered the right kind of injury. They must allege, instead, that their injury amounted to a violation of their constitutional right against unreasonable seizures-that is, by being unconstitutionally detained.
Here too, Heffernan must allege more than an injury from an unconstitutional policy. He must establish that this policy infringed his constitutional rights to speak freely and peaceably assemble. Even if the majority is correct that demoting Heffernan for a politically motivated reason was beyond the scope of the City's power, the City never invaded Heffernan ' s right to speak or assemble. Accordingly, he is not entitled to money damages under § 1983 for the nonviolation of his First Amendment rights.
The majority tries to distinguish the Fourth Amendment by emphasizing the textual differences between that Amendment and the First. See ante, at 1418 ("Unlike, say the Fourth Amendment ..., the First Amendment begins by focusing upon the activity of the Government"). But these textual differences are immaterial. All rights enumerated in the Bill of Rights "focu [s] upon the activity of the Government" by "tak[ing] certain policy choices off the table." District of Columbia v. Heller, 554 U.S. 570, 636, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ; see also Hohfeld, Some Fundamental Legal Conceptions As Applied in Judicial Reasoning, 23 Yale L.J. 16, 30, 55-57 (1913) (recognizing that an immunity implies a corresponding lack of power). Fourth Amendment rights could be restated in terms of governmental power with no change in substantive meaning. Thus, the mere fact that the First Amendment begins "Congress shall make no law" does not broaden a citizen's ability to sue to vindicate his freedoms of speech and assembly.
To reach the opposite conclusion, the majority relies only on Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality opinion). See ante, at 1418 - 1419. But Waters does not support the majority's expansion of § 1983 to cases where the employee did not exercise his First Amendment rights. The issue in Waters was whether a public employer violated the First Amendment where it reasonably believed that the speech it proscribed was unprotected. The Court concluded that the employer did not violate the First Amendment because it reasonably believed the employee's speech was unprotected: "We have never held that it is a violation of the Constitution for a government employer to discharge an employee based on substantively incorrect information." 511 U.S., at 679, 114 S.Ct. 1878. And the Court reaffirmed that, to state a First Amendment retaliation claim, the public employee must allege that she spoke on a matter of public concern. See id., at 681, 114 S.Ct. 1878.
Unlike the employee in Waters, Heffernan admits that he was not engaged in constitutionally protected activity. Accordingly, unlike in Waters, he cannot allege that his employer interfered with conduct protected by the First Amendment. "[W]hat is sauce for the goose" is not "sauce for the gander," ante, at 1418, when the goose speaks and the gander does not.
* * *
If the facts are as Heffernan has alleged, the City's demotion of him may be misguided or wrong. But, because Heffernan concedes that he did not exercise his First Amendment rights, he has no cause of action under § 1983. I respectfully dissent.
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
Factual impossibility occurs when "an actor engages in conduct designed to culminate in the commission of an offense that is impossible for him to consummate under the existing circumstances." 1 P. Robinson, Criminal Law Defenses § 85, p. 422 (1984). Canonical examples include an attempt to steal from an empty pocket, State v. Wilson, 30 Conn. 500, 505 (1862), or an attempt to commit false pretenses where the victim had no money, People v. Arberry, 13 Cal.App. 749, 757, 114 P. 411 (1910).
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
sc_partywinning
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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 identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
UNITED STATES v. ARNOLD, SCHWINN & CO. et al.
No. 25.
Argued April 20, 1967.
Decided June 12, 1967.
Richard A. Posner argued the cause for the United States. With him on the brief were Solicitor General Marshall, Assistant Attorney General Turner and Howard E. Shapiro.
Robert C. Keck argued the cause for appellee Arnold, Schwinn & Co. With him on the brief were Harold D. Burgess and James G. Hiering. Earl E. Pollock argued the cause and filed a brief for appellee Schwinn Cycle Distributors Association.
Mr. Justice Fortas
delivered the opinion of the Court.
The United States brought this appeal to review the judgment of the District Court in a civil antitrust case alleging violations of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1. Direct appeal is authorized by § 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U. S. C. § 29. The complaint charged a continuing conspiracy since 1952 between defendants and other alleged co-conspirators involving price fixing, allocation of exclusive territories to wholesalers and jobbers, and confinement of merchandise to franchised dealers. Named as defendants were Arnold, Schwinn & Company (“Schwinn”), the Schwinn Cycle Distributors Association (“SCDA”), and B. F. Goodrich Company (“B. F. Goodrich”).
At trial, the United States asserted that not only the price fixing but also Schwinn’s methods of distribution were illegal per se under § 1 of the Sherman Act. The trial lasted 70 days. The evidence, largely offered by appellees, elaborately sets forth information as to the total market interaction and interbrand competition, as well as the distribution program and practices.
The District Court rejected the charge of price fixing. With respect to the charges of illegal distribution practices, the court held that the territorial limitation was unlawful per se as respects products sold by Schwinn to its distributors; but that the limitation was not unlawful insofar as it was incident to sales by Schwinn itself to franchised retailers where the wholesaler or jobber (hereinafter referred to as the distributor) functioned as agent or consignee, including distribution pursuant to the “Schwinn Plan” described below.
The United States did not appeal from the District Court’s rejection of its price-fixing charge. The appellees did not appeal from the findings and order invalidating restraints on resale by distributors who purchase products from Schwinn.
In this Court, the United States has abandoned its contention that the distribution limitations are illegal per se. Instead we are asked to consider these limitations in light of the “rule of reason,” and, on the basis of the voluminous record below, to conclude that the limitations are the product of “agreement” between Schwinn and its wholesale and retail distributors and that they constitute an unreasonable restraint of trade.
Appellee Schwinn is a family-owned business which for many years has been engaged in the manufacture and sale of bicycles and some limited bicycle parts and accessories. Appellee SCDA is an association of distributors handling Schwinn bicycles and other products. The challenged marketing program was instituted in 1952. In 1951 Schwinn had the largest single share of the United States bicycle market — 22.5%. In 1961 Schwinn’s share of market had fallen to 12.8% although its dollar and unit sales had risen substantially. In the same period, a competitor, Murray Ohio Manufacturing Company, which is now the leading United States bicycle producer, increased its market share from 11.6% in 1951 to 22.8% in 1961. Murray sells primarily to Sears, Roebuck & Company and other mass merchandisers. By 1962 there were nine bicycle producers in the Nation, operating 11 plants. Imports of bicycles amounted to 29.7% of sales in 1961.
Forty percent of all bicycles are distributed by national concerns which operate their own stores and franchise others. Another 20% are sold by giant chains and mass merchandisers like Sears and Montgomery Ward & Company. Sears and Ward together account for'20% of all bicycle sales. Most of these bicycles are sold under private label. About 30% of all bicycles are distributed by cycle jobbers which specialize in the trade, and the remaining 10% by hardware and general stores.
Schwinn sells its products primarily to or through 22 wholesale distributors, with sales to the public being made by a large number of retailers. In addition, it sells about 11% of its total to B. F. Goodrich for resale in B. F. Goodrich retail or franchised stores. There are about 5,000 to 6,000 retail dealers in the United States which are bicycle specialty shops, generally also providing servicing. About 84% of Schwinn’s sales are through such specialized dealers. Schwinn sells only under the Schwinn label, never under private label, while about 64% of all bicycles are sold under private label. Distributors and retailers handling Schwinn bicycles are not restricted to the handling of that brand. They may and ordinarily do sell a variety of brands.
The United States does not contend that there is in this case any restraint on interbrand competition, nor does it attempt to sustain its charge by reference to the market for bicycles as a whole. Instead, it invites us to confine our attention to the intrabrand effect of the contested restrictions. It urges us to declare that the method of distribution of a single brand of bicycles, amounting to less than one-seventh of the market, constitutes an unreasonable restraint of trade or commerce among the several States.
Schwinn’s principal methods of selling its bicycles are as follows: (1) sales to distributors, primarily cycle distributors, B. F. Goodrich and hardware jobbers; (2) sales to retailers by means of consignment or agency arrangements with distributors; and (3) sales to retailers under the so-called Schwinn Plan which involves direct shipment by Schwinn to the retailer with Schwinn invoicing the dealers, extending credit, and paying a commission to the distributor taking the order. Schwinn fair-traded certain of its models at retail in States permitting this, and suggested retail prices for all of its bicycles in all States. During the 1962-1962 period, as the District Court found, “well over half of the bicycles sold by Schwinn have been sold direct to the retail dealer (not to a cycle distributor) by means of Schwinn Plan sales and consignment and agency sales.” Less than half were sold to distributors.
After World War II, Schwinn had begun studying and revamping its distribution pattern. As of 1951-1952, it had reduced its mailing list from about 15,000 retail outlets to about 5,500. It instituted the practice of franchising approved retail outlets. The franchise did not prevent the retailer from handling other brands, but it did require the retailer to promote Schwinn bicycles and to give them at least equal prominence with competing brands. The number of franchised dealers in any area was limited, and a retailer was franchised only as to a designated location or locations. Each franchised dealer was to purchase only from or through the distributor authorized to serve that particular area. He was authorized to sell only to consumers, and not to unfranchised retailers. The District Court found that while each Schwinn franchised retailer “knows that he is an unrestricted retail dealer, free to sell at his own price to any person who wants to buy on a retail basis. . . . [He] knows also that he is not a wholesaler and that he cannot sell as a wholesaler or act as an agent for some other unfranchised dealer, such as a discount house retailer .... When he acts as such an agent he subjects his franchise to cancellation at will by Schwinn.”
Schwinn assigned specific territories to each of its 22 wholesale cycle distributors. These distributors were instructed to sell only to franchised Schwinn accounts and only in their respective territories which were specifically described and allocated on an exclusive basis. The District Court found “that certain cycle distributors have in fact not competed with each other . . . and that in so doing they have conspired with Schwinn to unreasonably restrain competition contrary to the provisions of Section 1 of the Sherman Act.” The court, however, restricted this finding and its consequent order to transactions in which the distributor purchased the bicycles from Schwinn for resale, as distinguished from sales by the distributor as agent or consignee of Schwinn or on the Schwinn Plan. The United States urges that this Court should require revision of the decree in this respect to forbid territorial exclusivity regardless of the technical form by which the products are transferred from Schwinn to the retailer or consumer.
The District Court rejected the Government’s contention that Schwinn had in fact canceled the franchises of some retailers because of sales to discount houses or other unfranchised dealers, nor did it find that distributors have been cut off because of sales to unfranchised retailers or violation of territorial limitations. The United States urges that this is “clearly erroneous.” In any event, it is clear and entirely consistent with the District Court’s findings that Schwinn has been “firm and resolute” in insisting upon observance of territorial and customer limitations by its bicycle distributors and upon confining sales by franchised retailers to consumers, and that Schwinn’s “firmness” in these respects was grounded upon the communicated danger of termination. Our analysis will embrace this conclusion, rather than the finding which is urged by the Government and which was refused by the trial court that Schwinn actually terminated retail franchises or cut off distributors for the suggested reasons.
We come, then, to the legal issues in this case. We are here confronted with challenged vertical restrictions as to territory and dealers. The source of the restrictions is the manufacturer. These are not horizontal restraints, in which the actors are distributors with or without the manufacturer’s participation. We have held in such a case, where the purpose was to prevent the distribution of automobiles to or by “discounters,” that a “classic conspiracy in restraint of trade” results. United States v. General Motors Corp., 384 U. S. 127 (1966); see also Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207 (1959); Timken Roller Bearing Co. v. United States, 341 U. S. 593 (1951). Nor is this a case of territorial or dealer restrictions accompanied by price fixing, for here the issue of unlawful price fixing was tendered, litigated, decided against the appellant, and appellant has not appealed. If it were otherwise— if there were here a finding that the restrictions were part of a scheme involving unlawful price fixing, the result would be a per se violation of the Sherman Act. United States v. Sealy, Inc., ante, p. 350; United States v. Bausch & Lomb Co., 321 U. S. 707, 724 (1944). Because of the posture of the case and the failure of the Government to urge the point, we do not here pause to consider whether a case might be presented, short of unlawful price fixing, in which the activities of the manufacturer to affect resale prices — whether styled price “maintenance” or “stabilization” or otherwise — would fatally infect vertical customer restrictions so as to require a conclusion of per se violation. The Government does not contend that a per se violation of the Sherman Act is presented by the practices which are involved in this appeal (that is, without reference to the practice which the lower court enjoined and which is not before us). Accordingly, we are remitted to an appraisal of the market impact of these practices.
In White Motor Co. v. United States, 372 U. S. 253 (1963), this Court refused to affirm summary judgment against the manufacturer even though there were not only vertical restrictions as to territory and customer selection but also unlawful price fixing. The Court held that there was no showing that the price fixing was “an integral part of the whole distribution system” and accordingly it declined to outlaw the system because of the possibility that a trial laying bare “the economic and business stuff out of which these arrangements emerge” might demonstrate their reasonableness. Id., at 263. So here we must look to the specifics of the challenged practices and their impact upon the marketplace in order to make a judgment as to whether the restraint is or is not “reasonable” in the special sense in which § 1 of the Sherman Act must be read for purposes of this type of inquiry. Chicago Board of Trade v. United States, 246 U. S. 231, 238 (1918); Standard Oil Co. v. United States, 221 U. S. 1, 51 (1911); Apex Hosiery v. Leader, 310 U. S. 469, 498 (1940).
We first observe that the facts of this case do not come within the specific illustrations which the Court in White Motor articulated as possible factors relevant to a showing that the challenged vertical restraint is sheltered- by the rule of reason because it is not anticompetitive. Schwinn was not a newcomer, seeking to break into or stay in the bicycle business. It was not a “failing company.” On the contrary, at the initiation of these practices, it was the leading bicycle producer in the Nation. Schwinn contends, however, and the trial court found, that the reasons which induced it to adopt the challenged distribution program were to enable it and the small, independent merchants that made up its chain of distribution to compete more effectively in the marketplace. Schwinn sought a better way of distributing its product: a method which would promote sales, increase stability of its distributor and dealer outlets, and augment profits. But this argument, appealing as it is, is not enough to avoid the Sherman Act proscription; because, in a sense, every restrictive practice is designed to augment the profit and competitive position of its participants. Price fixing does so, for example, and so may a well-calculated division of territories. See United States v. Socony-Vacuum Oil Co., 310 U. S. 150 (1940). The antitrust outcome does not turn merely on the presence of sound business reason or motive. Here, for example, if the test of reasonableness were merely whether Schwinn’s restrictive distribution program and practices were adopted “for good business reasons” and not merely to injure competitors, or if the answer turned upon whether it was indeed “good business practice,” we should not quarrel with Schwinn’s eloquent submission or the finding of the trial court. But our inquiry cannot stop at that point. Our inquiry is whether, assuming nonpredatory motives and business purposes and the incentive of profit and volume considerations, the effect upon competition in the marketplace is substantially adverse. The promotion of self-interest alone does not invoke the rule of reason to immunize otherwise illegal conduct. It is only if the conduct is not unlawful in its impact in the marketplace or if the self-interest coincides with the statutory concern with the preservation and promotion of competition that protection is achieved. Chicago Board of Trade, supra, at 238.
On this basis, restraints as to territory or customers, vertical or horizontal, are unlawful if they are “ancillary to the price-fixing” (White Motor Co. v. United States, supra, at 260) or if the price fixing is “an integral part of the whole distribution system.” (Bausch & Bomb, supra, at 720.) In those situations, it is needless to inquire further into competitive effect because it is established doctrine that, unless permitted by statute, the fixing of prices at which others may sell is anticompetitive, and the unlawfulness of the price fixing infects the distribution restrictions. Cf. Sealy, supra, and Bausch <fc Lomb, supra. At the other extreme, a manufacturer of a product other and equivalent brands of which are readily available in the market may select his customers, and for this purpose he may “franchise” certain dealers to whom, alone, he will sell his goods. Cf. United States v. Colgate & Co., 250 U. S. 300 (1919). If the restraint stops at that point — if nothing more is involved than vertical “confinement” of the manufacturer’s own sales of the merchandise to selected dealers, and if competitive products are readily available to others, the restriction, on these facts alone, would not violate the Sherman Act. It is within these boundary lines that we must analyze the present case.
The District Court here enjoined appellees from limiting the territory within which any wholesaler or jobber may sell any Schwinn product which it has purchased. It held that these are agreements to divide territory and, as such, are per se violations of § 1 of the Sherman Act. The court made clear that it confined its order to transactions in which the distributor purchases from Schwinn. As to consignment, agency and Schwinn Plan transactions, the court held that, in these instances, “Schwinn has a right to allocate its agents or salesmen to a particular territory.” The court also held that the franchising of retailers was reasonable in view of the competitive problem presented by “giant” bicycle retailers such as Sears and Ward and by other mass merchandisers, and it declined to enjoin appellees’ practices with respect to confinement of sale by distributors or Schwinn to franchised retailers, or to forbid Schwinn and its distributors from continuing to prohibit franchised retailers from selling to discount houses or other unfranchised retailers for resale to the public.
As noted above, appellees have not appealed from the District Court’s order, and, accordingly, we have before us only the Government’s pleas: (1) that the decree should not be confined to sale transactions between Schwinn and wholesalers but should reach territorial restrictions upon distributors whether they are incident to sale and resale transactions or to consignment, agency or Schwinn-Plan relationship between Schwinn and the distributors; (2) that agreements requiring distributors to limit their distribution to only such retailers as are franchised should be enjoined; and (3) that arrangements preventing franchised retailers from supplying non-franchised retailers, including discount stores, should also be forbidden.
As to point (2), the Government argues that it is illogical and inconsistent to forbid territorial limitations on resales by distributors where the distributor owns the goods, having bought them from Schwinn, and, at the same time, to exonerate arrangements which require distributors to confine resales of the goods they have bought to “franchised” retailers. It argues that requiring distributors, once they have purchased the product, to confine sales to franchised retailers is indistinguishable in law and principle from the division of territory which the decree condemns. Both, the Government argues, are in the nature of restraints upon alienation which are beyond the power of the manufacturer to impose upon its vendees and which, since the nature of the transaction includes an agreement, combination or understanding, are violations of § 1 of the Sherman Act. Cf. Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373 (1911); United States v. Bausch & Lomb Co., supra; Klor’s, Inc. v. Broadway-Hale Stores, Inc., supra; Fash ion Originators’ Guild v. FTC, 312 U. S. 457 (1941); United States v. General Motors Corp., 384 U. S. 127 (1966). We agree, and upon remand, the decree should be revised to enjoin any limitation upon the freedom of distributors to dispose of the Schwinn products, which they have bought from Schwinn, where and to whomever they choose. The principle is, of course, equally applicable to sales to retailers, and the decree should similarly enjoin the making of any sales to retailers upon any condition, agreement or understanding limiting the retailer's freedom as to where and to whom it will resell the products.
The appellant vigorously argues that, since this remedy is confined to situations where the distributor and retailer acquire title to the bicycles, it will provide only partial relief; that to prevent the allocation of territories and confinement to franchised retail dealers, the decree can and should be enlarged to forbid these practices, however effected — whether by sale and resale or by agency, consignment, or the Schwinn Plan. But we are dealing here with a vertical restraint embodying the unilateral program of a single manufacturer. We are not dealing with a combination of manufacturers, as in Klor’s, or of distributors, as in General Motors. We are not dealing with a “division" of territory in the sense of an allocation by and among the distributors, see Sealy, supra, or an agreement among distributors to restrict their competition, see General Motors, supra. We are here concerned with a truly vertical arrangement, raising the fundamental question of the degree to which a manufacturer may not only select the customers to whom he will sell, but also allocate territories for resale and confine access to his product to selected, or franchised, retailers. We conclude that the proper application of § 1 of the Sherman Act to this problem requires differentiation between the situation where the manufacturer parts with title, dominion, or risk with respect to the article, and where he completely retains ownership and risk of loss.
As the District Court held, where a manufacturer sells products to his distributor subject to territorial restrictions upon resale, a per se violation of the Sherman Act results. And, as we have held, the same principle applies to restrictions of outlets with which the distributors may deal and to restraints upon retailers to whom the goods are sold. Under the Sherman Act, it is unreasonable without more for a manufacturer to seek to restrict and confine areas or persons with whom an article may be traded after the manufacturer has parted with dominion over it. White Motor, supra; Dr. Miles, supra. Such restraints are so obviously destructive of competition that their mere existence is enough. If the manufacturer parts with dominion over his product or transfers risk of loss to another, he may not reserve control over its destiny or the conditions of its resale. To permit this would sanction franchising and confinement of distribution as the ordinary instead of the unusual method which may be permissible in an appropriate and impelling competitive setting, since most merchandise is distributed by means of purchase and sale. On the other hand, as indicated in White Motor, we are not prepared to introduce the inflexibility which a per se rule might bring if it were applied to prohibit all vertical restrictions of territory and all franchising, in the sense of designating specified distributors and retailers as the chosen instruments through which the manufacturer, retaining ownership of the goods, will distribute them to the public. Such a rule might severely hamper smaller enterprises resorting to reasonable methods of meeting the competition of giants and of merchandising through independent dealers, and it might sharply accelerate the trend towards vertical integration of the distribution process. But to allow this freedom where the manufacturer has parted with dominion over the goods — the usual marketing situation — would violate the ancient rule against restraints on alienation and open the door to exclusivity of outlets and limitation of territory further than prudence permits.
The Government does not here contend for a per se rule as to agency, consignment, or Schwinn-Plan transactions even though these may be used — as they are here — to implement a scheme of confining distribution outlets as in this case. Where the manufacturer retains title, dominion, and risk with respect to the product and the position and function of the dealer in question are, in fact, indistinguishable from those of an agent or salesman of the manufacturer, it is only if the impact of the confinement is “unreasonably” restrictive of competition that a violation of § 1 results from such confinement, unencumbered by culpable price fixing. Simpson v. Union Oil Co., 377 U. S. 13 (1964). As the District Court found, Schwinn adopted the challenged distribution programs in a competitive situation dominated by mass merchandisers which command access to large-scale advertising and promotion, choice of retail outlets, both owned and franchised, and adequate sources of supply. It is not claimed that Schwinn’s practices or other circumstances resulted in an inadequate competitive situation with respect to the bicycle market; and there is nothing in this record — after elimination of the price-fixing issue — to lead us to conclude that Schwinn’s program exceeded the limits reasonably necessary to meet the competitive problems posed by its more powerful competitors. In these circumstances, the rule of reason is satisfied.
We do not suggest that the unilateral adoption by a single manufacturer of an agency or consignment pattern and the Schwinn type of restrictive distribution system would be justified in any and all circumstances by the presence of the competition of mass merchandisers and by the demonstrated need of the franchise system to meet that competition. But certainly, in such circumstances, the vertically imposed distribution restraints— absent price fixing and in the presence of adequate sources of alternative products to meet the needs of the unfranchised — may not be held to be per se violations of the Sherman Act. The Government, in this Court, so concedes in this case.
On this record, we cannot brand the District Court's finding as clearly erroneous and cannot ourselves conclude that Schwinn’s franchising of retailers and its confinement of retail sales to them — so long as it retains all indicia of ownership, including title, dominion, and risk, and so long as the dealers in question are indistinguishable in function from agents or salesmen — constitute an “unreasonable” restraint of trade. Critical in this respect are the facts: (1) that other competitive bicycles are available to distributors and retailers in the marketplace, and there is no showing that they are not in all respects reasonably interchangeable as articles of competitive commerce with the Schwinn product; (2) that Schwinn distributors and retailers handle other brands of bicycles as well as Schwinn’s; (3) in the present posture of the case we cannot rule that the vertical restraints are unreasonable because of their intermixture with price fixing; and (4) we cannot disagree with the findings of the trial court that competition made necessary the challenged program; that it was justified by, and went no further than required by, competitive pressures; and that its net effect is to preserve and not to damage competition in the bicycle market. Application of the rule of reason here cannot be confined to intrabrand competition. When we look to the product market as a whole, we cannot conclude that Schwinn’s franchise system with respect to products as to which it retains ownership and risk constitutes an unreasonable restraint of trade. This does not, of course, excuse or condone the per se violations which, in substance, consist of the control over the resale of Schwinn’s products after Schwinn has parted with ownership thereof. Once the manufacturer has parted with title and risk, he has parted with dominion over the product, and his effort thereafter to restrict territory or persons to whom the product may be transferred — whether by explicit agreement or by silent combination or understanding with his vendee — is a per se violation of § 1 of the Sherman Act.
Accordingly, the judgment of the District Court is reversed and the cause remanded for the entry of a decree in accordance with this opinion.
It is so ordered.
Mr. Justice Clark and Mr. Justice White took no part in the decision of this case.
B. F. Goodrich negotiated a consent decree with the Government prior to trial, and dropped out of the case.
Its parts and accessory business is less than 4% of its total sales. Like other bicycle producers, Schwinn manufactures the basic parts of its bicycles and purchases components from parts producers.
Schwinn’s brief represents that presently about 75% of all Schwinn sales are now made under the Schwinn Plan; that there are no longer any consignment agreements; and that only two cycle distributors remain under agency contract.
The United States did not perfect this point below, and its Jurisdictional Statement in this Court did not expressly request revision of the decree. Appellees strenuously urge that we should for these reasons refuse to consider the United States’ present argument that the decree should be enlarged as stated. See Supreme Court Rules 15 (1) (c)(1) and 40 (1) (d)(2); General Pictures Co. v. Electric Co., 304 U. S. 175, 177-179 (1938). While we regard with disfavor the Government’s practice in this case, both with respect to the point here at issue and its change of theory, in view of the nature and importance of the case, we shall not reject the tendered issues because the request for the substance of the relief was embraced in the question presented in the Jurisdictional Statement and because appellees have not been adversely affected.
The United States, having abandoned its contention that the restraints in the present case are per se violations of the Sherman Act, now urges “a standard of presumptive illegality/' presumably on the basis of a showing that a product has been distributed by means of arrangements for territorial exclusivity and restricted retail and wholesale customers. We do not consider this additional subtlety which was not advanced in the trial court. The burden of proof in antitrust cases remains with the plaintiff, deriving such help as may be available in the circumstances from particularized rules articulated by law — such as the per se doctrine. Cf. Standard Oil Co. v. United States, 283 U. S. 163, 179 (1931).
We have no occasion here to consider whether a patentee has any greater rights in this respect. Compare United States v. General Electric Co., 272 U. S. 476 (1926), with United States v. New Wrinkle, Inc., 342 U. S. 371 (1952); United States v. Line Material Co., 333 U. S. 287 (1948); and United States v. Masonite Corp., 316 U. S. 265 (1942).
We do not regard Schwinn’s claim of product excellence as establishing the contrary.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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sc_casedisposition
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C
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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.
COHEN v. CALIFORNIA
No. 299.
Argued February 22, 1971
Decided June 7, 1971
Harlan, J., delivered the opinion of the Court, in which Douglas, BrenNan, Stewart, and Marshall, JJ., joined. BlackmuN, J., filed a dissenting opinion, in which Burger, C. J., and Black, J., joined, and in which White, J., joined in part, post, p. 27.
Melville B. Nimmer argued the cause for appellant. With him on the brief was Laurence R. Sperber.
Michael T. Sauer argued the cause for appellee. With him on the brief was Roger Arnebergh.
Anthony G. Amsterdam filed a brief for the American Civil Liberties Union of Northern California as amicus curiae urging reversal.
Mr. Justice Harlan
delivered the opinion of the Court.
This case may seem at first blush too inconsequential to find its way into our bdoks, but the issue it presents is of no small constitutional significance.
Appellant Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating that part of California Penal Code § 415 which prohibits “maliciously and willfully disturb [ing] the peace or quiet of any neighborhood or person . ■. . by . . . offensive conduct . . . He was given 30 days’imprisonment. The facts upon which his conviction rests are detailed in the opinion of the Court of Appeal of California, Second Appellate District, as follows:
“On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words ‘Fuck the Draft’ which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.
“The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct in fact commit or threaten to commit any act. of violence. The defendant did not make any loud or unusual noise, nor was there any evidence that he uttered any sound prior to his arrest.” 1 Cal. App. 3d 94, 97-98, 81 Cal. Rptr. 503, 505 (1969).
In affirming the conviction the Court of Appeal held that' “offensive conduct” means “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,” and that the State had,proved this element because, on the facts of this case, “[i]t was certainly reasonably foreseeable that .such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forceably remove his jacket.” 1 Cal. App. 3d, at 99-100, 81 Cal. Rptr., at 506. The California Supreme Court, declined review by á divided vote. We brought the case here, postponing the consideration of the question of our jurisdiction over this appeal to a hearing of the case on the merits. 399 U. S. 904. We now reverse. .
The question of our jurisdiction need not detain us long. Throughout the proceedings below, .Cohen consistently claimed that, as construed to apply to the facts of this case, the statute infringed his rights to freedom of expression guaranteed by the First and Fourteenth Amendments of the Federal Constitution. That contention has been rejected by the highest California state court in which review could be had. Accordingly, we are fully satisfied that Cohen has properly invoked our jurisdiction by this appeal. 28 U. S. C. § 1257 (2) ; Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282 (1921).
I
In order to lay hands on the precise issue which this case' involves, it is useful first to canvass various matters which this record does not present.
The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only “conduct”, which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon “speech,” cf. Stromberg v. California, 283 U. S. 359 (1931), not upon any separately identifiable conduct which allegedly was intended by Cohen- to be perceived by others as expressive of particular views but which, on its face, does not necessarily convey any r. ,„ssage and hence arguably could be regulated without effectively repressing Cohen’s ability to. express himself. Cf. United States v. O’Brien, 391 U. S. 367 (1968). Further, the State certainly lacks power to' punish Cohen for the underlying content of the message the inscription. conveyed. At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected. Yates v. United States, 354 U. S. 298 (1957).
Appellant’s conviction, then, rests-squarely upon his exercise of the “freedom of speech” protected from arbitrary governmental interference by the Constitution and can be justified, if at all, only as a valid regulation of the manner in which he exercised that freedom, not as a permissible prohibition on the substantive message it conveys. This does not end the inquiry, of course, for the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses. In this vein, too, however, we think it important to note that several issues typically associated with such problems are not presented here.
In the first place, Cohen was tried under a statute applicable throughout the entire State. Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not.be tolerated in certain places. See Edwards v. South Carolina, 372 U. S. 229, 236-237, and n. 11 (1963). Cf. Adderley v. Florida, 385 U. S. 39 (1966). No fair reading of the phrase “offensive conduct” can be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created.
In the second place, as it comes to us, this case cannot be said to fall within those relatively few categories of instances where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply upon a showing that such a form was employed. This is not, for example, an obscenity case. Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. Roth v. United States, 354 U. S. 476 (1957). It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket.
This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called “fighting words,” those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this' instance it was clearly not “directed to the person of the hearer.” Cantwell v. Connecticut, 310 U. S. 296, 309 (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State’s police power .to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U. S. 315 (1951); Terminiello v. Chicago, 337 U. S. 1 (1949). There is, as. noted above, no showing that anyone who saw Cohen was in fact violently aroused or that appellant intended .such a result.
Finally, in arguments before this Court much has been made of the claim that Cohen’s distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant’s crude form of protest. Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. See, e. g., Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971). While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcotne views and ideas which cannot be totally banned from the public dialogue, e. g., Rowan v. Post Office Dept., 397 U. S. 728 (1970), we have at the'same time consistently stressed that “we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech.” Id., at 738. The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing if is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.
In this regard, persons confronted were in a quite different posture than, say, those subjected to the raucous emissions of sound trucks blaring outside their residences. Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes. And, while it may be that one has a more substantial claim to a recognizable privacy interest when walking through a courthouse corridor than, for example, strolling through Central Park, surely it is nothing like the interest in being free from unwanted expression in the confines of one’s own home. Cf. Keefe, supra. Given the subtlety and complexify of the factors involved, if Cohen’s "speech’’ was otherwise entitled to constitutional protection, we do not think the fact that some unwilling “listeners” in a public building may have been briefly exposed to if can serve to justify this breach of the peace conviction where, as here, there was no evidence that persons powerless to avoid appellant’s conduct did in fact object to it, and where that portion of the statute upon which Cohen’s conviction rests evinces no concern, either on its face or ns construed by the California courts, with the special plight of the captive auditor, but, instead, indiscriminately sweeps within its prohibitions all “offensive conduct” that disturbs "any neighborhood or person.” Cf. Edwards v. South Carolina, supra.
> — i
Against this background, the issue flushed by this caso stands out in bold relief. Tt is whether California can excise, a,s “offensive conduct,” one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary.
The rationale of the California court is plainly untenable. At most it reflects an “undifferentiated fear or apprehension of disturbance [which] is not enough to overcome the right to freedom of expression.” Tinker v. Des Moines Indep. Community School Dist., 393 U. S. 503, 508 (1969). We have been shown no evidence that substantial, numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen. There may be some persons about with such lawless and violent proclivities, but that is an insufficient base upon which to erect, consistently with constitutional values, a governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression. The argument amounts to little more than the self-defeating proposition that to avoid physical censorship of one who has not sought to provoke such a response by a hypothetical coterie of the violent and lawless, the States may more appropriately effectuate that censorship themselves. Cf. Ashton v. Kentucky, 384 U. S. 195, 200 (1966); Cox v. Louisiana, 379 U. S. 536, 550-551 (1965)!
Admittedly, it is not so obvious that the First and Fourteenth Amendments must be.taken to disable the States from punishing public utterance of this unseemly expletive in order to maintain what they regard as a suitable level of discourse within the body politic. We think, however, that examination and reflection will reveal the shortcomings of a contrary viewpoint.
At the outset, we cannot overemphasize that, in our judgment, most situations where the State has a justifiable interest in regulating speech will fall within one or more of the various established exceptions, discussed, above but not applicable here, tó the usual rule that governmental bodies may not prescribe the form or content of individual expression. Equally important to our conclusion is the constitutional backdrop against which our decision must be made. The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the . premise of individual dignity and choice upon which our political system rests. See Whitney v. California, 274 U. S. 357, 375-377 (1927) (Brandéis, J., concurring).
To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why “[w] holly neutral futilities . . . come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons,” Winters v. New York, 333 U. S. 507, 528 (1948) (Frankfurter, J., dissenting), and why “so long as the means are peaceful, the communication need not meet standards of acceptability,” Organization for a Better Austin v. Keefe, 402 U. S. 415, 419 (1971).
Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.
Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable .of relatively precise, detached explication, but otherwise inexpressible emotions as. well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said, “[o]ne of the prerogatives of American citizenship is the right to criticize .public men and measures — and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.” Baumgartner v. United States, 322 U. S. 665, 673-674 (1944).
Finally, and in the same vein, we cannot indulge the -facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running.the risk of opening the door to such grave results.
It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth. Amendments, ■ make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only 'arguably sustainable rationale for the conviqtion here at issue, the judgment below must be
Reversed.
The statute provides in full:
“Every person who maliciously, and willfully disturbs the peace or quiet of any neighborhood or person, by loud or unusual noise, or by tumultuous or offensive conduct, or threatening,‘-traducing, quarreling, challenging to fight, or fighting, or who, on the public streets of any unincorporated town, or upon the public highways in such unincorporated town, run any horse race, either for a wager or for amusement, or fire any gun or pistol in such unincorporated town, or use any vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner, is guilty of a misdemeanor, and upon conviction by any Court of competent jurisdiction shall be punished by fine not exceeding two hundred dollars, or by imprisonment in the County Jail for not more than ninety days, or by both fine and imprisonment, or either, at the discretion of the Court.”
The suggestion has been made that, in light of the supervening opinion of the California Supreme Court in In re Bushman, 1 Cal. 3d 767, 463 P. 2d 727 (1970), it is “not at all certain that the California Court of Appeal’s construction of § 415 is now the authoritative California construction.” Post, at 27 (Blackmun-, J., dissenting) . In the course of the Bushman opinion, Chief Justice Traynor stated:
“[One] may . ... be guilty of disturbing-the peace through 'offensive’ conduct [within the meaning of § 415] if by his actions he wilfully and maliciously incites others to violence or engages in conduct likely to incite others to violence. (People v. Cohen (1969) 1 Cal. App. 3d 94, 101, [81 Cal, Rptr. 503].)” 1 Cal. 3d at 773, 463 P. 2d, at 730.
We perceive no difference of substance between the Bushman construction and that of the Court of Appeal, particularly in light of the Bushman court’s approving citation of Cohen.
It is illuminating to note what transpired when Cohen- entered a courtroom in the building. ' He removed his jacket and stood with it folded over his arm. Meanwhile, a policeman sent the presiding judge a note suggesting that Cohen be held in contempt of court. The judge declined to do so and Cohen was arrested by the officer only after he emerged from the courtroom. App. 18-19.
In fanl., oilier portions of (lie same, slalitle rio make some sueli distinctions. For example, the stain to also prohibits disturbing "I,ho peace or quiet. . . . by loud or unusual noise” and using "vulgar, profane, or indecent, language within the presence or hearing of women or children, in a loud and boisterous manner.” See n. 1, supra. This second-quoted provision in particular serves to put the actor on much fairer notice as to what is prohibited. It- also buttresses our view that the, "offensive, conduct” portion, as construed and applied in this ease, cannot legitimately be justified in this Court as designed or intended to make, fine distinctions between differently situated recipients.
The amicus urges, with some force, that this issue is not properly before us since the statute, as construed, punishes only conduct that might cause others to react violently. However, because the opinion below appears to erect a virtually irrebuttable presumption that use of this word will produce such results, the statute as thus construed appears to impose, in effect, a flat ban on the public utterance .of this word. With the case in this posture, it does not seem inappropriate to inquire whether any other rationale might properly support this result. While we think it clear, for the reasons expressed above, that no statute which merely proscribes “offensive conduct” and has been construed as broadly as this one was below can subsequently be justified in this Court as discriminating between conduct that occurs in different places or that offends only certain persons, it is not so unreasonable to seek to justify its full broad sweep on an alternate rationale such as this. Because it is not so patently clear that acceptance of the justification presently under consideration would render the statute overbroad or unconstitutionally vague, and because the answer to appellee’s argument seems quite clear, we do not pass on the contention that this claim is not presented on this record.
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:
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songer_treat
|
B
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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.
Irene BARTSCH, Plaintiff-Appellant, v. METRO-GOLDWYN-MAYER, INC., Defendant-Appellee.
No. 224, Docket 31633.
United States Court of Appeals Second Circuit.
Argued Dec. 6, 1967.
Decided Feb. 16, 1968.
Monroe E. Stein, New York City (Heit & Rothenberg, New York City, Stanley Rothenberg, New York City, of counsel), for plaintiff-appellant.
Eugene L. Girden, New York City (Coudert Brothers, New York City, Carleton G. Eldridge, Jr., New York City, of counsel), for defendant-appellee.
Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.
FRIENDLY, Circuit Judge:
This appeal from a judgment of the District Court for the Southern District of New York raises the question whether, on the facts here appearing, an assignee of motion picture rights to a musical play is entitled to authorize the telecasting of its copyrighted film. Although the issue seems considerably closer to us than it did to Judge Bryan, we affirm the judgment dismissing the complaint of the copyright owner.
In January 1930, the authors, composers, and publishers of and owners of certain other interests in a German musical play “Wie Einst in Mai,” which had been produced in this country as “May-time” with a changed libretto and score, assigned to Hans Bartsch
the motion picture rights and all our right, title and interest in and in connection with such motion picture rights of the said operetta or musical play, throughout the world, together with the sole and exclusive rights to use, adapt, translate, add to and change the said operetta or musical play and the title thereof in the making of motion picture photoplays, and to project, transmit and otherwise reproduce the said work or any adaptation or version thereof, visually or audibly by the art of cinematography or any process analogous thereto, and to copyright, vend, license and exhibit such motion picture photoplays throughout the world; together with the further sole and exclusive rights by mechanical and/or electrical means to record, reproduce and transmit sound, including spoken words, dialogue, songs and music, and to change such dialogue, if extracted from said works, and to interpolate or use other dialogue, songs and music in or in connection with or as part of said motion picture photo-plays, and the exhibition, reproduction and transmission thereof, and to make, use, license, import and vend any and all records or other devices required or desired for any such purposes.
In May of that year Bartsch assigned to Warner Bros. Pictures, Inc.
the motion picture rights throughout the world, in and to a certain musical play entitled “Wie Einst in Mai,” libretto and lyrics by Rudolf Schanzer and Rudolph Bernauer, music by Walter Kollo and Willy Bredschneider, for the full period of all copyrights and any renewed and extended terms thereof, together with the sole and exclusive right to use, adapt, translate, add to, subtract from, interpolate in and change said musical play, and the title thereof (subject so far as the right to use said title is concerned to Paragraph 7 hereof), in the making of motion picture photoplays and to project, transmit and otherwise reproduce the said musical play or any adaptation or version thereof visually or audibly by the art of cinematography or any process analogous thereto, and to copyright, vend, license and exhibit such motion picture photoplays throughout the world, together with the further sole and exclusive right by mechanical and/or electrical means to record, reproduce and transmit sound, including spoken words, dialogue, songs and music, and to change such dialogue, if extracted from said musical play, and at its own expense and responsibility to interpolate and use other dialogue, songs and music in or in connection with or as part of said motion picture photoplays, and the exhibition, reproduction and transmission thereof, and to make, use, license, import, vend and copyright any and all records or other devices made or required or desired for any such purposes.
By another clause Bartsch reserved the right to exercise for himself the rights generally granted to Warner Brothers insofar as these concerned German language motion pictures in certain countries and subject to specified restrictions:
but it is expressly understood and agreed that nothing herein contained shall in any way limit or restrict the absolute right of Purchaser to produce, release, distribute and/or exhibit the photoplay or photoplays produced hereunder based in whole or in part on “Wie Einst in Mai” and/or “May-time,” in all countries of the world, including the territory mentioned in this paragraph, at any time, and regardless of the right herein reserved to the Owner.
A further clause recited
The rights which the Purchaser obtains from the Owner in “Wie Einst in Mai” and/or “Maytime” are specifically limited to those granted herein. All other rights now in existence or which may hereafter come into existence shall always be reserved to the Owner and for his sole benefit, but nothing herein contained shall in any way limit or restrict the rights which Purchaser has acquired or shall hereafter acquire from any other person, firm or corporation in and to “Wie Einst in Mai” and/or “Maytime.”
Warner Brothers transferred its rights to defendant Metro-Goldwyn-Mayer, Inc. early in 1935, which made, distributed and exhibited a highly successful motion picture “Maytime.” The co-authors of the German libretto, one in 1935 and the other in 1938, transferred all their copyright interests and renewal rights to Bartsch, whose rights in turn have devolved to the plaintiff, his widow. The controversy stems from MGM’s licensing its motion picture for television, beginning in 1958.
Although the district judge upheld MGM’s contention that the 1930 assignment from Bartsch to Warner Brothers included the right to permit telecasting of the motion picture to be made from the musical play, he thought there was “a further reason why plaintiff cannot prevail in this action,” namely, that Bartsch had granted all that he had. This does not do justice to plaintiff’s argument. Her position is that in 1930 Bartsch not only did not but could not grant the right to televise the motion picture since, under the similar language of the assignment to him, it was not his to grant; her claim of infringement is based not on the 1930 assignment to Bartseh of the motion picture rights but on the authors’ later assignments of the full copyright.
The district court, appearing to consider that defendant’s rights turned on the authorization “to project, transmit and otherwise reproduce the said musical play or any adaptation or version thereof visually and audibly by the art of cinematography or any process analogous thereto,” concluded that television came within the phrase we have italicized. We have grave doubt on that score. We freely grant that “analogous” is a broader word than “similar,” and also that the first step in a telecast of a film, namely, the projection of the motion picture to an electronic pickup, is “analogous” to throwing the picture on a theatre screen. But to characterize the to us nigh miraculous processes whereby these images actuate airwaves so as to cause electronic changes in sets in millions of homes which are then “unscrambled” or “descanned” and thus produce pictures on television screens — along with the simultaneous electronic transmission of sound —as “analogous” to cinematography pushes the analogy beyond the breaking point. This is particularly so since the district court’s construction would seem to lead to the conclusion that the assignment would entitle the assignee to “project, transmit and otherwise reproduce” the musical play by a live telecast — a right which pretty clearly was not granted and indeed has not been claimed.
As we read the instruments, defendant’s rights do not turn on the language we have been discussing but rather on the broad grant, in the assignments to and from Bartseh, of “the motion picture rights throughout the world,” which were spelled out to include the right “to copyright, vend, license and exhibit such motion picture photoplays throughout the world.” The “to project, transmit and otherwise reproduce” language appears rather to have been directed at how the musical play was to be made into a photo-play. This may well have seemed a more vexing problem in 1930, due to uncertainties as to the best method for linking visual and audible reproduction, cf. Paramount Publix Corp. v. American TriErgon Corp., 294 U.S. 464, 55 S.Ct. 449. 79 L.Ed. 997 (1935), and whether a grant of motion picture rights to a play or novel included the right to sound reproduction, see L. C. Page & Co. v. Fox Film Corp., 83 F.2d 196 (2 Cir. 1936), than today. Being unclear whether sound reproduction would require alterations in previous methods of converting a play into a photoplay, Warner Brothers sought and obtained a considerable degree of freedom in that regard. On this view the clause whose meaning has been so hotly debated is irrelevant to the point here at issue, and decision turns rather on whether a broad assignment of the right “to copyright, vend, license and exhibit such motion picture photoplays throughout the world” includes the right to “license” a broadcaster to “exhibit” the copyrighted motion picture by a telecast without a further grant by the copyright owner.
A threshold issue — which the pre-Erie L. C. Page decision was not required to take into account — is whether this question should be determined under state or federal law. The seventeenth paragraph of Bartsch’s assignment says, somewhat unhelpfully, that “Each and every term of this agreement shall be construed in accordance with the laws of the United States of America and of the State of New York.” [Emphasis supplied.] We hold that New York law governs. The development of a “federal common law” of contracts is justified only when required by a distinctive national policy and, as we found in T. B. Harms v. Eliscu, 339 F.2d 823, 828 (2 Cir. 1964), citing many cases, “the general interest that copyrights, like all other forms of property, should be enjoyed by their true owner is not enough to meet this * * * test.” Contrast Murphy v. Colonial Savings and Loan Ass’n, 388 F.2d 609 (2 Cir. 1967), and Ivy Broadcasting Company, Inc. v. American Telephone & Telegraph Co., 391 F.2d 486 (2 Cir. 1968), with McFaddin Express, Inc. v. Adley Corp., 363 F.2d 546 (2 Cir.), cert. denied, 385 U.S. 900, 87 S.Ct. 206, 17 L.Ed.2d 132 (1966). The fact that plaintiff is seeking a remedy granted by Congress to copyright owners removes any problem of federal jurisdiction but does not mean that federal principles must govern the disposition of every aspect of her claim. Cf. DeSylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956).
Unfortunately, when we turn to state law, we find that it offers little assistance. Two other situations must be distinguished. This is not a case like Manners v. Morosco, 252 U.S. 317, 40 S.Ct. 335, 64 L.Ed. 590 (1920), cited with approval, Underhill v. Schenck, 238 N.Y. 7, 143 N.E. 773, 33 A.L.R. 303 (1924), in which an all encompassing grant found in one provision must be limited by the context created by other terms of the agreement indicating that the use of the copyrighted material in only one medium was contemplated. The words of Bartsch’s assignment, as we have shown, were well designed to give the assignee the broadest rights with respect to its copyrighted property, to wit, the photo-play. “Exhibit” means to “display” or to “show” by any method, and nothing in the rest of the grant sufficiently reveals a contrary intention. Nor is this case like Kirke La Shelle Co. v. Paul Armstrong Co., 263 N.Y. 79, 188 N.E. 163 (1938), in which the new medium was completely unknown at the time when the contract was written. Rather, the trial court correctly found that, “During 1930 the future possibilities of television were recognized by knowledgeable people in the entertainment and motion picture industries,” though surely not in the scope it has attained. While Kirke La Shelle teaches that New York will not charge a grantor with the duty of expressly saving television rights when he could not know of the invention’s existence, we have found no case holding that an experienced businessman like Bartsch is not bound by the natural implications of the language he accepted when he had reason to know of the new medium’s potential.
Plaintiff, naturally enough, would not frame the issue in precisely this way. Instead, she argues that even in 1930 Warner Brothers often attempted to obtain an express grant of television rights and that its failure to succeed in Bartsch’s case should persuade us that, despite the broad language, only established forms of exhibition were contemplated. She buttresses this argument by producing a number of 1930 assignments to Warner Brothers, some of which specifically granted the right to televise motion pictures and others of which granted full television rights, and by adducing testimony of the Warner Brothers lawyer who had approved the assignment from Bartsch that on many occasions Warner Brothers attempted to secure an express grant of such rights but did not always succeed.
However, this is not enough to show that the Bartsch assignments were a case of that sort. For all that appears Warner Brothers may have decided that, in dealing with Bartsch, it would be better tactics to rely on general words that were sufficiently broad rather than seek an express inclusion and perhaps end up with the opposite, or may have used a form regular in the industry without thinking very precisely about television, or — perhaps most likely — may simply have parroted the language in the grant from Bartsch’s assignors to him on the theory it would thus be getting all he had, whatever that might be. Indeed, it is really the assignment to Bartsch rather than the one from him that must control. While plaintiff suggests that Warner Brothers may have furnished Bartsch the forms to be used with his assignors, this is sheer speculation. There is no showing that the form was unique to Warner Brothers; indeed the contrary appears.
With Bartsch dead, his grantors apparently so, and the Warner Brothers lawyer understandably having no recollection of the negotiation, any effort to reconstruct what the parties actually intended nearly forty years ago is doomed to failure. In the end, decision must turn, as Professor Nimmer has suggested, The Law of Copyright § 125.3 (1964), on a choice between two basic approaches more than on an attempt to distill decisive meaning out of language that very likely had none. As between an approach that “a license of rights in a given medium (e. g., ‘motion picture rights’) includes only such uses as fall within the unambiguous core meaning of the term (e. g., exhibition of motion picture film in motion picture theaters) and exclude any uses which lie within the ambiguous penumbra (e. g., exhibition of motion picture film on television)” and another whereby “the licensee may properly pursue any uses which may reasonably be said to fall within the medium as described in the license,” he prefers the latter. So do we. But see Warner, Radio and Television Rights § 52 (1953). If the words are broad enough to cover the new use, it seems fairer that the burden of framing and negotiating an exception should fall on the grantor; if Bartsch or his assignors had desired to limit “exhibition” of the motion picture to the conventional method where light is carried from a projector to a screen directly beheld by the viewer, they could have said so. A further reason favoring the broader view in a case like this is that it provides a single person who can make the copyrighted work available to the public over the penumbral medium, whereas the narrower one involves the risk that a deadlock between the grantor and the grantee might prevent the work’s being shown over the new medium at all. Quite apart from the probable impraeticality, the assignments are broad enough even on plaintiff’s view to prevent the copyright owners from licensing anyone else to make a photoplay for telecasting. The risk that some May might find the nation’s television screens bereft of the annual display of “Maytime,” interlarded with the usual liberal diet of commercials, is not one- a court can take lightly.
Affirmed.
. The plaintiff points to paragraph 13 of the agreement, reproduced in the text, as indicating an intention to exclude television rights. The provision limits the rights of the assignee to those “specifically * * * granted herein,” and saves to Bartsch “all other rights now in existence or which may hereafter come into existence.” We cannot read this as standing for more than the truism that whatever Bartsch had not granted, he had retained.
. In Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481, cert. denied, 351 U.S. 926, 76 S.Ct. 783, 100 L.Ed. 1456 (1956), the Third Circuit, applying Pennsylvania law, held that a 1935 contract granting moving picture rights did not permit the grantee to televise the film. However, unlike Bartsch, the grantor, Ettore, was not an experienced businessman but a prize fighter, and the Court relied heavily on his lack of sophistication in determining whether it was fair to charge him with knowledge of the new medium. Id. at 491, n. 14.
. From all that appears, it would seem that this first assignment was negotiated in Germany and that German law would apply in its interpretation. Since neither party has suggested that German law differs from New York law in any relevant respect, we have not embarked on an independent investigation of the matter. El Hoss Engineering & Transportation Co. v. American Independent Oil Co., 183 F.Supp. 394, 399 (S.D.N.Y.1960), rev’d on other grounds, 289 F.2d 346 (2 Cir.), cert. denied, 368 U.S. 837, 82 S.Ct. 51, 7 L.Ed.2d 38 (1961). Though new Rule 44.1 establishes that courts may, in their discretion, examine foreign legal sources independently, it does not require them to do so in the absence of any suggestion that such a course will be fruitful or any help from the parties. Miller, Federal Rule 44.1 and the “Fact” Approach to Determining Foreign Law: Death Knell for a Die Hard Doctrine, 65 Mich.L.Rev. 615, 692-702 (1967).
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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songer_direct1
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A
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What follows is an opinion from a United States Court of Appeals.
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Charlotte JAMES, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Kathy BUTLER, Individually and as Surviving Wife and Heir of Eddy Butler, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Susan B. CLARDY, Individually and as Natural Tutrix of the Minors, Bridget Marie Clardy and Kenneth Clardy, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Nos. 83-2276, 83-4522.
United States Court of Appeals, Fifth Circuit.
Sept. 4, 1984.
Opinion on Granting Rehearing En Banc Oct. 17, 1984.
Sharp, Ward, Price & Hightower, T. John Ward, Richard F. Hightower, Longview, Tex., Old & Old, Mount Pleasant, Tex., for James’ and Butler.
Robert J. Wortham, U.S. Atty., Beaumont, Tex., William J. Cornelius, Jr., Asst. U.S. Atty., Tyler, Tex., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., Rosemary Den-son and Thomas L. Jones, Torts Branch, Civ. Div., Dept, of Justice, Washington, D.C., for the U.S.
D’Amico, Curet & Dampf, Sam J. D’Amico, Baton Rouge, La., for Clardy.
Before GOLDBERG, RUBIN and REAV-LEY, Circuit Judges.
REAVLEY, Circuit Judge:
These cases present the question whether Section 3 of the Flood Control Act of 1928, 33 U.S.C. § 702c (1976), gives the United States absolute immunity for its negligence in the operation of flood control projects. Following the analysis of prior cases, we are obliged to answer in the affirmative, but we take this opportunity to express the opinion that the legislative history analysis previously followed is erroneous and has led to an application of this provision not intended by its framers.
I. STATEMENT OF THE CASE
A. James v. United States
On June 8, 1979, Charlotte James and Kathy Butler were skiing near the dam structure at Millwood Reservoir in Arkansas. The United States Corps of Engineers was discharging water from the dam at a high rate, creating a strong current. The skiers fell near the dam and were pulled by the current through the tainter gates. Eddy Butler dived into the water to assist his wife, Kathy, and was also pulled through the structure. He drowned, and his wife and Charlotte James sustained physical injuries.
No signs warned of the danger of the current. A cable with a string of orange buoys attached to it, which usually delineated the area of danger, had broken and drifted when struck by floating debris. Only one of five white anchor buoys was in the vicinity of the danger area. Government personnel knew that these warning devices were not in place but did not attempt to repair them because of the dangerous current. They took no other steps to warn the public of the danger.
After a bench trial the district judge found that the plaintiffs were not negligent, that the agents of the United States willfully and maliciously failed to warn of a known danger, and that this failure was a proximate cause of the plaintiffs’ injuries. The judge set the damages at $1,000,000 to Kathy Butler for her injuries and the wrongful death of her husband, and $40,-000 to Charlotte James for her personal injuries. He concluded, however, that section 702c of the Flood Control Act barred plaintiffs’ recovery since the injuries resulted from flood waters related to a flood control project.
B. Clardy v. United States
On May 17,1980, Kenneth Clardy and his father Joseph Clardy were fishing along Bayou Courtableau, a United States flood control project designed to direct excess floodwaters from Bayou Courtableau Basin through the West Atchafalaya Basin protection levee in Louisiana. The gates of the structure were opened to the maximum capacity, creating a strong current. The Clardy’s boat became disabled and drifted into the inlet channel. As it was drawn through the open gates of the spillway, the boat overturned and threw Kenneth Clardy into the approach basin. He drowned while being pulled through the 220 foot long south barrel of the drainage structure.
Only two faded signs at the entrance of the drainage structure warned of the dangerous current. By the time the signs could be seen, boaters were already in the current. The district judge entered summary judgment for the United States, holding that 33 U.S.C. § 702c immunized it from liability for negligence related to the operation of a flood control project.
II. CURRENT INTERPRETATION OF THE FLOOD CONTROL ACT
The recurrence of floods in the alluvial Mississippi River Valley prompted the United States, in partnership with the states and local governments, to build a network of levees in 1883 along 950 miles of the river banks from Cape Girardeau, Missouri to the Gulf of Mexico. United States v. Sponenbarger, 308 U.S. 256, 261, 60 S.Ct. 225, 226-227, 84 L.Ed. 230 (1939). This network of flood control projects, known as the Eads Plan, proved inadequate when a flood of disastrous proportions occurred in 1927. Id. Congress responded by passing the Mississippi Flood Control Act of 1928, authorizing $300,000,000 for flood control projects designed to prevent future disasters. See National Manufacturing Co. v. United States, 210 F.2d 263, 270 (8th Cir.), cert. denied, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1108 (1954). The Act provided in the second paragraph of section 3 (33 U.S.C. § 702c):
No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place: Provided, however, that if in carrying out the purposes of sections 702a, 702b to 702d, 702e to 702g, 702h to 702j, 702k, 702Z and 702m of this title it shall be found that upon any stretch of the banks of the Mississippi River it is impracticable to construct levees, either because such construction is not economically justified or because such construction would unreasonably restrict the flood channel, and lands in such stretch of the river are subjected to overflow and damage which are not overflowed or damaged by reason of the construction of levees on the opposite banks of the river it shall be the duty of the Secretary of the Army and the Chief of Engineers to institute proceedings on behalf of the United States Government to acquire either the absolute ownership of the lands so subjected to overflow and damage or floodage rights over such lands.
This provision has been applied to flood control projects other than those on the Mississippi River. 33 U.S.C. § 701e (1976); e.g., Lenoir v. Porters Creek Watershed District, 586 F.2d 1081, 1086 n. 4 (6th Cir. 1978); Callaway v. United States, 568 F.2d 684, 686 (10th Cir.1978); Clark v. United States, 218 F.2d 446, 452 (9th Cir. 1954); National Manufacturing Co., 210 F.2d at 274. In interpreting the provision, most courts have cited only the general disclaimer portion stating that no liability shall attach for any flood damage at any place. See, e.g., Burlison v. United States, 627 F.2d 119, 121 (8th Cir.1980), cert, denied, 450 U.S. 1030, 101 S.Ct. 1740, 68 L.Ed.2d 225 (1981); Lunsford v. United States, 570 F.2d 221, 227 (8th Cir.1977); Stover v. United States, 332 F.2d 204, 205 n. 1 (9th Cir.), cert. denied, 379 U.S. 922, 85 S.Ct. 276, 13 L.Ed.2d 335 (1964); National Manufacturing Co., 210 F.2d at 270. By reviewing only this portion of the section, the courts have construed it to grant immunity in the “broadest and most emphatic language.” National Manufacturing Co., 210 F.2d at 270; see also Morici Corp. v. United States, 681 F.2d 645, 647 (9th Cir. 1982); Florida East Coast Railway v. United States, 519 F.2d 1184, 1192 (5th Cir.1975); McClaskey v. United States, 386 F.2d 807, 808 (9th Cir.1967).
In National Manufacturing Co., the first case to deal extensively with section 3, the court interpreted the section to provide absolute immunity to the government for any negligence related to floods or flooding. 210 F.2d at 271. There, owners of property along the Kansas River sued the United States for failing to warn of a flood which damaged their property. The Eighth Circuit stated:
Section 3 plainly bars recovery against the United States. The section does not limit the bar against such recovery to cases where floods or flood waters are the sole cause of damages. It does bar liability of any kind from damages “by” floods or flood waters but it goes further and in addition it bars liability for damages that result (even directly) “from” floods. The use of the word “from” in addition to “by” makes it clear that the bar against federal liability for damages is made to apply wherever floods or flood waters have been substantial and material factors in destroying or damaging property. The language used shows Congressional anticipation that it will be claimed after the happening of floods that negligence of government employees was a proximate cause of damages where floods or floodwaters have destroyed or damaged goods. But the section prohibits government liability of “any kind” and at “any place.” So that uniformly and throughout the country at any place where there is damage “from” or “by” a flood or flood waters in spite of and notwithstanding federal flood control works no liability of any kind may attach to or rest upon the United States therefor.
The complaint in that case was not directed at government employees engaged in flood control construction, but was confined to flood forecasters. Id. at 275. Consequently the holding need not have relied upon section 702c which deals solely with liability for construction of flood control projects. It was, in fact, justified in part on grounds of public policy rather than on a legislative grant of immunity. Id. at 274. Nonetheless, National Manufacturing absolved the United States of all liability from any damage resulting from floods on the basis of section 702c.
This court has declined to construe section 702c as a wholesale immunization provision. If the flooding is unconnected with flood control projects, the United States may be subject to liability. Graci v. United States, 456 F.2d 20, 27 (5th Cir. 1971). Thus, where the government’s construction of a navigation project diverted flood water to plaintiff’s property, its actions did not come within the section 702c’s grant of immunity. Id.; Seaboard Coast Line Railroad Co. v. United States, 473 F.2d 714 (5th Cir.1973) (no immunity for flooding of plaintiff’s property caused by construction of drainage ditch at aircraft maintenance center). Similarly, the Ninth Circuit has held 702c not to bar liability where the governmental action was wholly unrelated to any act of Congress authorizing expenditures of federal funds for flood control. See Peterson v. United States, 367 F.2d 271, 276 (9th Cir.1966) (no immunity for dynamiting ice jam which resulted in flooding of properties downstream).
If the government’s negligence is related to a flood control project, the immunity of the government appears to be absolute. In Florida East Cost Railway Co. v. United States, 519 F.2d 1184 (5th Cir.1975), the United States had built levees and other structures that altered the natural drainage of an area, causing washouts. The United States knew of this problem but took no steps to correct it or to notify the railroad of the danger. The soil around a railroad culvert eroded, causing the derailment of a Florida East Coast train. This court held that the United States was insulated from liability under section 702c even when its own negligence caused or aggravated the losses. Id. at 1191.
The Fourth Circuit has held that the government may not enjoy immunity if the negligent action was unrelated to the project’s operation for flood control purposes; if the action pertained to recreational purposes rather than flood control purposes, the absolute bar of section 702c may be avoided. Hayes v. United States, 585 F.2d 701, 702-703 (4th Cir.1978). This reasoning was rejected by the Ninth Circuit in Morid Corp. v. United States, 681 F.2d at 648, where it stated that the purpose of the project, rather than the purpose of the employee’s conduct, determines the government’s immunity under section 702c. This circuit has adopted the Ninth Circuit's view that the project must be wholly unrelated to any act of Congress authorizing expenditures of federal funds for flood control. Florida East Coast Railway Co., 519 F.2d at 1191. Even when the United States failed to warn the railway company of the danger of a washout, this negligent action, unrelated to the construction of the flood control project, was held to be within the immunity of section 702c. Id.
III. OUR PLAINTIFFS UNDER CURRENT LAW
The cases on appeal are ruled by the inquiry of whether the government’s negligent action was related to a federal flood control project. If so, under the controlling precedent, 702c bars liability. Both dam projects in these cases were constructed and operated at least in part for flood control purposes. Even if the project were designed for flood control but operated at the time of the negligence for another purpose such as recreation, the operation that caused the damage would not be “wholly unrelated” to a congressionally authorized flood control project. Morici Corp., 681 F.2d at 648. Plaintiffs have a difficult burden to meet in showing that their injuries had no relation to a flood control project. Indeed, it is insurmountable.
Section 702c provides that “no liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters ____” Appellants argue that immunity may not be invoked under this section because the damages were not caused by floods or flood waters. Clardy, for example, contends that a fact question exists as to whether the waters in Bayou Courtableau were at flood stage, and therefore she deserves the opportunity to prove that the wrongful death was unrelated to flood waters. Liability of the United States for damages due to operation of a flood control project, however, does not depend upon a change in the stage or source of the water in which a plaintiff is immersed. The government enjoys the same immunity whether the water be a giant surge from melting snow and cloudburst or a placid lake on a summer day.
We recognize the harshness as well as the inconsistencies that may result from the controlling precedent of absolute immunity. If, for example, the Corps of Engineers in charge of a flood control project sends out a boat to replace the buoys warning skiers of the water current and, in the process, runs over a swimmer, the government may have immunity. If a fisherman on that dam is run over by a negligent government employee whose federal work is unrelated to the flood control project, the fisherman may recover.
IV. BACK TO THE SOURCE
Against this floodtide of authority, and despite the sometimes-heard argument that Congress has signaled its agreement with the statutory construction by leaving the statute unchanged, we believe the effect given section 702c is unwarranted. The United States has sovereign immunity and cannot be sued except when Congress has so provided. Ickes v. Fox, 300 U.S. 82, 96, 57 S.Ct. 412, 417, 81 L.Ed. 525 (1937). The Federal Tort Claims Act of August 2, 1946, had not been passed in 1928 or 1936 when section 702c was enacted and amended, and the United States therefore had no liability for damages in tort from floods created or aggravated by the construction of public works for flood control purposes, except with regard tó a taking of private property for public uses. See Jackson v. United States, 230 U.S. 1, 22, 33 S.Ct. 1011, 1019, 57 L.Ed. 1363 (1913); Bedford v. United States, 192 U.S. 217, 224, 24 S.Ct. 238, 240, 48 L.Ed. 414 (1904). Why, then, would a 1928 act include a waiver of liability for damages from flood control projects at a time when the government’s absolute immunity was unquestioned?
In 1883, the United States, in cooperation with the state and local governments, constructed a network of flood control projects to alleviate or prevent flooding on the Mississippi River. United States v. Sponenbarger, 308 U.S. 256, 261, 60 S.Ct. 225, 227, 84 L.Ed. 230 (1939). The Mississippi River Commission instigated, planned, and executed the project, following a policy of building “levees only” and of closing every outlet on the river, save one. H.R.Rep. No. 1072, 70th Cong., 1st Sess. 1, 5 (1928). The federal government contributed $71,000,-000 to the completion of the Commission plan; the state and local governments eontributed $170,000,000. Id. Total local contributions for flood control projects in this region reached $292,000,000. S.Rep. No. 619, 70th Cong., 1st Sess. 1, 3 (1928).
In 1927 a disastrous flood claimed 200 lives, left 700,000 temporarily homeless, and caused property damage in excess of $200,000,000. Id. The “levee only” policy was described as the “monumental blunder of the age” and the Mississippi River Commission was discredited. H.R.Rep. 1072, 70th Cong. 1st Sess. 1, (1928). Congress moved quickly to establish a new flood control plan. It asked the Mississippi River Commission and the Secretary of War each to submit a plan. The plan submitted for the Secretary of War by the Chief of Engineers (the Jadwin Plan), would have required local interests to provide all of the rights of way for the flood control projects, thereby enabling the federal government to keep its contribution to the plan at approximately $296,400,000 over ten years. S.Rep. No. 619, 70th Cong. 1st Sess. 1, 11 (1928). The Commission plan would have required the federal government to bear the costs for the acquisition of land as well as for construction at a total of $560,000,-000. Id. Congress compromised the two plans, electing to retain the principle of local contribution, but accepting the $292,-000,000 previously expended by local interests on the failed levee system plan as compliance with the contribution requirement. H.R.Rep. No. 1100, 70th Cong., 1st Sess. 1, 3 (1928). Congress authorized the United States to “pay just compensation for all rights of way and damages, including expenses to railroads or others in changing their property.” Id. at 12 (emphasis added). In spite of this, it authorized only $325,000,000 in federal funds for the plan. Id. at 13. Section 3 of both the House and Senate versions required that title to the lands be turned over to the states. Id. at 5. In a conference committee version, Section 3 was modified, in amendment 14, to state:
The United States shall provide flow-age rights for additional destructive flood waters that will pass by reason of diversions from the main channel of the Mississippi River: Provided, that in all cases where the execution of the flood control plan herein adopted results in benefits to property such benefits shall be taken into consideration by way of reducing the amount of compensation to be paid.
No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place: Provided, however, That if in carrying out the purposes of this act it shall be found that upon any stretch of the banks of the Mississippi River it is impracticable to construct levees, either because such construction is not economically justified or because such construction would unreasonably restrict the flood channel, and lands in such stretch of the river are subjected to overflow and damage which are not now overflowed or damaged by reason of the construction of levees on the opposite banks of the river it shall be the duty of the Secretary of War and the Chief of Engineers to institute proceedings on behalf of the United States Government to acquire either the absolute ownership of the lands so subjected to overflow and damage or floodage rights over such lands.
S.Doc. No. 91, 70th Cong., 1st Sess. 1 (1928) (Conference Report). This was the first mention of the disclaimer of liability for “damages” and, as noted in Graci v. United States, 301 F.Supp. 947, 953, n. 8 (E.D.La.1969), the legislative history provides little insight into Congress’ intent in enacting it.
We think, however, that section 3 must be read in its entirety to determine Congress’ true intent. The legislative history reveals that Congress was concerned with allocating the costs of a major public works program between the federal government and the state and local interests in the wake of a financial, administrative, and engineering debacle. Having assumed greater financial responsibility than initially proposed by effectively waiving state and local contribution, Congress sought in conference to adjust its outlays for construction by excepting from its share the costs of the items considered to be “damages” — acquisition of property for flowage rights, construction of spillways, and destruction of property in conjunction with the construction of the flood control projects.
The juxtaposition of the general disclaimer of liability for damages with the proviso for the acquisition of certain lands for overflow of flood waters where levees could not be constructed suggests their interrelation. We think it clear that Congress intended to disclaim liability for “takings” and not liability for consequential damages. We find support for this reading in the language authorizing the United States to “pay just compensation for all rights of way and damages, including expenses to railroads or states in changing their property.” H.R.Rep. No. 1100, 70th Cong., 1st Sess. 1, 3 (1928) (emphasis added). Committee testimony further supports this conclusion. Appearing before the Senate Committee on Commerce, H. Generes Dufour, an attorney from New Orleans and a member of the Mayor’s Flood Policy Committee in the City of New Orleans, told the Senate Committee:
Let me remove any misconception as to what is meant by the term “damages.” They are not speaking of damages in the sense of those consequential damages that may result from a break of a levee in the future which may overflow some places. It is settled by the jurisprudence of the United States Supreme Court that neither the Federal Government nor the State is responsible for damages resulting from a break in a dam or levee. The damage that is spoken of in the proposal is the damage in the taking. You may not take the right of way on which a railroad is built in the sense that you take the fee, but when you cause that railroad to be moved or reconstructed in order to create a spillway, let us say, you damage the railroad, and it is a damage in the taking; it a damage resulting from acquisition of necessary property, whether you pay for the property and take the fee or whether you pay damages in the way of flowage right, or whether you destroy a railroad or other property. It is the constitutional protection against the taking of property without just compensation which is involved, and not the consequential damage in the future resulting from the failure of the protective works.
Mississippi River Flood Control Act of 1928: Hearings on S. 3740 Before Senate Committee on Commerce, 70th Cong., 1st Sess., Vol. 1 p. 73 (Jan. 24, 1928).
We believe that only this definition of “damages” explains the placement of the disclaimer in section 3 adjacent to two provisions related to the taking of private property for public purposes. It also explains why the Congress would add the provision at a time when it enjoyed absolute immunity from consequential damages. If our interpretation is correct, the Federal Tort Claims Act, 28 U.S.C. § 2674 (1976), should subject the United States to tort claims for flood control projects “in the same manner and to the same extent as a private individual under like circumstances ”
Y. CONCLUSION
Having espoused our view of the intent of Congress, we are nonetheless bound by the prior decisions of panels of this circuit. Following Florida East Coast Railway, 519 F.2d at 1192, and Graci, 456 F.2d at 26, we must affirm the district court’s decision in James v. United States and Butler v. United States that Section 702c bars plaintiffs’ recovery for injuries. We must likewise affirm entry of summary judgment against the plaintiff in Clardy v. United States.
AFFIRMED.
. At the time of the original flood control bill and in the 1928 Act, the only flood control projects authorized by Congress were on the Mississippi River and the Sacramento River. The prior flood control act and the 1928 Act applied to both projects. H.R.Rep. No. 1100, 70th Cong., 1st Sess. 1, 9 (1928). The title of the Mississippi Flood Control Act is therefore a misnomer.
. It has become the accepted rule that section 702c immunity extends to artificially created floods as well as to government actions which may aggravate the damages in natural floods. See Aetna Ins. Co. v. United States, 628 F.2d 1201, 1204 (9th Cir. 1980), cert, denied, 450 U.S. 1025, 101 S.Ct. 1732, 68 L.Ed.2d 220 (1981); Burlison v. United States, 627 F.2d 119, 121 (8th Cir.1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1740, 68 L.Ed.2d 225 (1981); Callaway v. United States, 568 F.2d 684, 686 (10th Cir.1978).
. Even if our rule limited immunity of the government to cases in which the damage itself is caused by "floods and flood waters,” it would be of no help to the Clardy’s; waters so described include man-made flow in normal channels. Id; Aetna Ins. Co. v. United States, 628 F.2d 1201, 1204 (9th Cir.1980); Burlison v. United States, 627 F.2d 119, 121 (8th Cir.1980).
The United States filed an affidavit stating that the flood gates of the Courtableau Drainage Structure were open to alleviate flood conditions. Clardy failed to file a controverting affidavit or other competent evidence challenging this affidavit. Under any view of the law as presently declared, she failed to show that a genuine issue of material fact existed. Fed.R. Civ.P. 56(c), (e); United States v. An Article of Drug, 725 F.2d 976, 984-85 (5th Cir.1984).
We likewise reject James' and Butler’s contention that because the waters were in their channels, as opposed to overflowing their banks, they were not flood waters. The waters that swept Eddy Butler to his death and injured Kathy Butler and Charlotte James were release waters from the reservoir. The record shows that the release was required because the lake was at flood stage. Witnesses referred to the waters as “flood waters." Whether waters are retained behind a dam, break through a dam, or are released through a dam, they are flood waters for purposes of section 702c, so long as they relate to a flood control project. See Florida East Coast Ry. Co., 519 F.2d at 1192; Graci v. United States, 456 F.2d at 26.
. Several courts have considered this question. The Eighth Circuit, the first to address this question, stated in National Mfg. Co.:
It was not indicated in the 1928 Act that Congress expected to carry on the federal flood control projects without imposing upon the United States certain obligations to affected owners of property. The constitutional prohibition against the taking of private property for public use without just compensation was kept in view, U.S. v. Sponenbarger, 308 U.S. 256, 60 S.Ct. 225, 84 L.Ed. 230, and provision for compensation to be paid to landowners in certain circumstances is contained in the same section 3 which prohibits any federal liability for damage from or by floods or flood waters. The Federal Tort Claims Act of August 2, 1946, had not been passed in 1928 or 1936 and the government then had a certain sovereign immunity from suit for torts but when Section 3 is read in its context it is clear Congress meant by it that damages from or by floods or flood waters should not afford any basis of liability against the United States regardless of whether the sovereign immunity was availed of or not. The declaration of Section 3 negates the existence of a cause of action against the United States in the situation covered by it.
210 F.2d at 270-271 (footnote omitted). The Ninth Circuit concluded in Peterson, 367 F.2d at 275:
When Section 702c was enacted in 1928, and reenacted in 1936, the Federal Tort Claims Act had not been enacted, and the United States, broadly speaking, possessed sovereign immunity from actions sounding in tort. Hence, it cannot be asserted that Congress intended Section 702c to be but a declaration of existing law. Rather, it is clear that Congress intended by the enactment of Section 702c in the Act of May 15, 1928, and in similar subsequent flood control Acts to be an integral part of a plan or policy on the part of the Government to embark on a vast construction program to prevent or minimize the incidences of loss occurring from floods and flood waters by the building of dikes, dams, levees, and related works, and to keep the Government entirely free from liability for damages when loss occurs, notwithstanding the works undertaken by the Government to minimize it.
In Aetna Ins. Co., the court said:
Plaintiffs also argue that since at the time the immunity statute was passed, some twenty years before the Federal Tort Claims Act, there was no governmental liability for negligence, the immunity statute could not have been intended to provide immunity for negligent conduct in connection with flooding. An equally compelling argument can be made, however, that given the existing broad language of the immunity provision, Congress in passing the Federal Tort Claims Act should have manifested an intent to include flood damage arising out of negligence within the scope of the Federal Tort Claims Act. The legislative history is at best equivocal and the matter has been resolved for our purposes by repeated decisions of the Court which have held that 702c bars suits based on negligence. McClaskey v. United States, supra; Stover v. United States, supra; Clark v. United States, supra.
628 F.2d at 1205 (footnote omitted). We find these explanations unpersuasive. We do not see section 702c as a restatement of the sovereign immunity principle so well established at the time 702c was enacted.
. In a message to Congress, President Coolidge stated that it was "axiomatic that states and other local authorities should supply all land and assume all pecuniary responsibility for damages that may result from the execution of the project.” S.Rep. No. 619, 70th Cong. 1st Sess. at 11 (1928). (emphasis added).
. The House estimate of the cost of the Commission plan was $625,000,000, including the value of the required rights of way. H.R.Rep. No. 1100, 70th Cong. 1st Sess. 1, 11 (1928).
. Congress made a number of compromises. It created a board including the Secretary of War, Chief of Engineers and the Chairman of the Mississippi River Commission to work out the differences in the two plans. It then named the Chief of Engineers as supervisor of the projects, but authorized the Commission to do the work. S.Rep. No. 619, 70th Cong. 1st Sess. 1, 9-10 (1928).
. The language of a House Report defining the “boundaries of the sovereign immunity waived” by the Federal Tort Claims Act may be revitalized:
The first section of section 402 exempts from the bill claims based upon the performance of discretionary functions or duties on the part of a Federal agency or Government employee, whether or not the discretion involved be abused, and claims based upon the act or omission of a Government employee exercising due care in the execution of a statute or regulation, whether or not valid. This is a highly important exception, intended to preclude any possibility that the bill might be construed to authorize suit for damages against the Government growing out of an authorized activity such as a flood-control or irrigation project, where no negligence on the part of any Government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious, or that the statute or regulation authorizing the project was invalid.
See Dalehite v. United States, 346 U.S. 15, 28 n. 21, 73 S.Ct. 956, 964 n. 21, 97 L.Ed. 1427 (1953). But see Aetna Ins. Co., 628 F.2d at 1205 n. 2. This language further suggests that Congress entertained the concept that the United States could be liable for its employees’ negligence related to a flood control project.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_r_natpr
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1
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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 respondents in the case that fall into the category "natural persons". 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.
ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. KING.
No. 5559.
Circuit Court of Appeals, Fourth Circuit.
April 9, 1947.
F. Dean Rainey and C. F. Haynsworth, Jr., both of Greenville, S. C. (Haynsworth & Haynsworth and Rainey and Fant, all of Greenville, S. C., on the brief), for appellant.
Miller C. Foster and Jesse W. Boyd, both of Spartanburg, S. C. (Johnson, Johnson & Foster, of Spartanburg, S. G, on the brief), for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
DOBIE, Circuit Judge.
The scope of an aviation exclusion clause in a contract of life insurance is the question raised by this appeal. The insured, Lieutenant Drew L. King, a resident of South Carolina, was a flight observer serving with the Civil Air Patrol. He met his death on February 9, 1943, and this suit was instituted by the beneficiary of the policy, the appellee here, against the insurance company, appellant, for the full amount of the policy. The lower court awarded judgment to the plaintiff on stipulated facts. The insurance company has duly appealed.
At eight o’clock in the morning of the day mentioned the insured and a pilot left their base for a routine coastal patrol flight off the shores of North Carolina. The patrol was made in a land based plane along with another plane of like make. About an hour and one-half after take-off, the plane in which the insured was riding developed serious engine trouble. This emergency forced the pilot to bring the plane down at sea some thirty miles from the coast. Apparently the descent was sufficiently controlled to permit putting the plane on the water in a normal landing position. The men managed to inflate their life jackets and free themselves from the plane before it sank a few minutes later.
There is no question that both men were alive at this time as they were seen to signal the other plane. 'A subsequent examination confirmed the belief that the men were not injured by the impact of the plane striking the water. Meanwhile the occupants of the second plane, after dropping an emergency kit, circled the distressed men and tried to establish radio contact with the base. At Noon, which was two and one-half hours later, no help had arrived and the second plane, because of a shortage of gasoline, was forced to return to the base. The men in the- water were alive at that time. When a Navy boat finally arrived at two in the afternoon, both men were dead.
A Naval physician (not an eyewitness to the events) issued a statement of death after examining the bodies, which contained the diagnosis: “Drowning as result of exposure in the water after failure of airplane motor.”
The contract of insurance, which the insured had made in South Carolina with the appellant insurance company, contained the following clause: “This order shall not be liable to any person for any benefit for death resulting from participation, as a passenger or otherwise, in aviation or aeronautics, (except as a fare paying passenger in a licensed aircraft operated on a regular schedule).”
Although South Carolina law would be controlling, the highest court in that State has never considered the precise question here involved. Accordingly the lower court, in an effort to apply South Carolina law, resorted to some general maxims of insurance law that have been invoked on occasions by South Carolina courts. By stressing particularly the insured’s uninjured physical dis-engagement from the airplane, and coupling this with the rule of construction that ambiguous or doubtful clauses must be resolved against an insurer, the District Court reached the conclusion that the exclusion clause of the policy was not applicable. We are unable to agree with that conclusion either on reason or authority.
Aside from the many authorities on this question (to which we will advert later in this opinion), we think the exclusion clarise clearly comprehends the very situation that here developed. Any other conclusion must ignore the plain meaning and presence of the word “resulting.” To give that word the effect that it must have in everyday speech (and as understood by laymen as well as lawyers) obviates the necessity for technical and artificial rules of construction. In our view of the case it is as undesirable as it is unnecessary to borrow from the law of torts the nuances and subtleties which attend such a phrase as “proximate cause” and to attempt an application of these nuances and subtleties to the facts of the instant case. There is little, if anything, to construe. In undertaking an aerial flight over the ocean in a land-based plane, man must reckon with the perils of the sea which are as imminent and real as the unrelenting force of gravity. Just as flight over the land brings forth the danger of violent collision with the earth, we have the dangers of the sea in over-water flight. That men may remain alive for varying periods of time before succumbing does not change the picture. We think it a rather violent fiction to say that death, under such circumstances, comes from accidental drowning. Common knowledge and experience fairly shout of the dangers of shock, exposure and drowning when a flight is taken over water in the winter time in a land based plane.
Out of the abundance of wisdom that comes with hind-sight it might have been better to have also inserted the words “directly or indirectly” in the exclusion clause. Actually such words were not vital here and would have added little to the force of the word “resulting.”
We are asked by counsel for appellee to notice the harrowing experiences and remarkable rescue of Captain Eddie Rickenbacker. The contention is made that when a man leaves a plane under such conditions he is in a position of “potential safety,” i. e., he can be saved. To pursue this somewhat ingenious argument is to invert the real question of the case. It is true that rescue, routine or fortuitous, may remove a man from peril. But it does not follow that the failure of rescue brings the peril that causes death. When the insured was in the cold waters of the Atlantic Ocean in February, he was not in a position of “potential safety.” He was in imminent peril of death, unless rescue came and also came quickly. We are unable to see how, under these circumstances, death resulted in any way other than from participation in aviation.
There is more than ample authority to support this view. In Neel v. Mutual Life Ins. Co. of N.Y., 2 Cir., 131 F.2d 159, the insured, after landing his plane on the ocean, was drowned while trying to reach shore. Under a similar aviation exclusion clause, the insurer was held not liable. Judge Augustus Hand, speaking for the Court, said (131 F.2d at page 160) : “The policy provides that Double Indemnity shall not be payable if death resulted ‘from participation in aeronautics’ and it seems quite contrary to the natural meaning of the proviso to say that Stubbs did not meet his death from ‘participation in aeronautics’ merely because he may hot have been killed by impact upon the water. If he landed in the open sea, even though without immediate injury, drowning was an almost inevitable consequence. To say that his death did not result ‘from participation in aeronautics’ would exclude from the proviso of the policy the most ordinary risks involved and limit the effect of the clause in an unexpected and unreasonable way. As Judge Cardoza said in Bird v. St. Paul F. & M. Ins. Co., 224 N.Y. 47, 120 N.E. 86, 87, 13 A.L.R. 875: ‘General definitions of a proximate cause give little aid. Our guide is the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract. It is his intention, expressed or fairly to be inferred, that counts. * * * The same cause producing the same effect may be proximate or remote as the contract of the parties seems to place it in light or shadow. That cause is to be held predominant which they would think of as predominant. A common-sense appraisement of everyday forms, of speech and modes of thought must tell us when to stop. It is an act of “judgment as upon a matter of fact.” ’ ”
This was followed in Green v. Mutual Benefit Life Ins. Co., 1 Cir., 144 F.2d 55, in which the insured, a Naval aviator, was forced to land his plane on the water and was drowned while attempting to reach his life raft. Other instructive cases are Pittman v. Lamar Life Insurance Co., 5 Cir., 17 F.2d 370; Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99, 57 A.L.R. 615; and Blonski v. Banker’s Life Co., 209 Wis. 5, 243 N.W. 410. Compare: Commercial Union Assurance Co. v. Pacific Union Club, 9 Cir., 169 F. 776; Pacific Union Club v. Commercial Union Assurance Co., 12 Cal.App. 503, 509, 107 P. 728; Tierney v. Occidental Life Insurance Co. of California, 89 Cal.App. 779, 265 P. 400.
Counsel for the beneficiary virtually conceded in oral argument (as indeed they must) that the Neel and Green cases, supra, are indistinguishable in principle from this case. They rely, however, on Bull v. Sun Life Assurance Co. of Canada, 7 Cir., 141 F.2d 456, certiorari denied, 323 U.S. 723, 65 S.Ct. 55, 89 L.Ed. 581. In that case the insured went down a few hundred yards from shore, after his plane was damaged by anti-aircraft fire. After the emergency landing, the insured was seen standing on the fuselage, attempting to launch a rubber boat. Other members of the crew, who had already escaped in a rubber raft dived into the water when a Japanese plane swept low to strafe the crippled American plane. An explosion was heard, the crippled plane burst into flames, and the insured was never seen again. In holding the insurer liable, the Court, by a two to one decision, emphasized the war risk of enemy fire and noted that the jury could have found this intervening force caused death. We agree with the observation in the Green case which viewed the intervening force in the Bull case as a distinguishing feature. 144 F.2d 55 at page 58.
We come, then,' to the last argument of the plaintiff (appellee) which is that, irrespective of the foregoing, the South Carolina law would permit recovery in a case of this character. This phase of the argument rests primarily on the dictum in Bolt v. Life & Casualty Ins. Co. of Tennessee, 156 S.C. 117, 152 S.E. 766, 767: “* * * our court has made it the almost universal rule to construe any clause of an insurance policy against the insurer, when there existed the least doubt as to the meaning of the language employed.”
We agree that this is an exceedingly broad statement. Nevertheless, in our view of the instant case, the meaning of the language employed in the policy is clear on its face. In any event, we believe that the highest court in South Carolina would not make specific application of such a generalized dictum, which, if applied to the facts here, would fly in the face of reason and the very considerable authority that has expressed the view we now follow. It would certainly not conform with accepted theories of proximate cause. See Horne v. Atlantic Coast Line R. Co., 177 S.C. 461, 181 S.E. 642.
Counsel for appellee, while not contending that we are bound by it, have cited a decision rendered in the Court of Common Pleas for the County of Spartanburg which allowed the same plaintiff to recover on a similar policy with another insurance company on the same statement of facts now before us. That opinion, not binding on other South Carolina courts, is not binding' on us and we cannot treat it as a final expression of South Carolina law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. While we entertain nothing but respect for that court, we must reject its view of this case for the reasons previously expressed. That opinion, it might be added, which was rendered July 29, 1946, relied on the District Court’s ruling in the instant case now before us.
The case of Goethe v. New York Life Ins. Co., 183 S.C. 199, 190 S.E. 451, is urged as an instance in which terms in insurance policies should be construed according to the ordinary and usual understanding of its signification by “common people.” We are unable to see how this strengthens the plaintiff’s case, for our conclusion is reached by the express adoption of the rule urged by plaintiff.
We have carefully considered other cases cited by the plaintiff: McGee v. Globe Indemnity Co., 173 S.C. 380, 175 S.E. 849; Young v. Life & Casualty Ins. Co. of Tennessee, 204 S.C. 386, 29 S.E.2d 482; Myers v. Ocean Mftg. Co., 4 Cir., 99 F.2d 485; Manufacturers Accident Indemnity Co. v. Dorgan, 6 Cir., 58 F. 945, 22 L.R.A. 620, and find them inapplicable and not controlling.
The judgment of the lower court is reversed.
Reversed.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
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 the defendant. 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.
UNITED STATES of America, Plaintiff-Appellee, v. James R. HOFFA, Thomas Ewing Parks, Larry Campbell, and Ewing King, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Ewing KING, Defendant-Appellant.
Nos. 20271, 20272.
United States Court of Appeals, Sixth Circuit.
Jan. 21, 1971.
See also, 7 Cir., 436 F.2d 1243.
Morris A. Shenker, St. Louis, Mo. (James P. Hoffa, Detroit, Mich., Harvey M. Silets, Chicago, 111., Cecil Branstetter, Nashville, Tenn., Jacques M. Schiffer, Rockville Center, Long Island, N. Y., on the brief), for appellants Hoffa, Parks and Campbell.
Moses Krislov, Cleveland, Ohio (Harold E. Brown, Brown & Frazier, Chattanooga, Tenn., on the brief), for appellant King.
Robert J. Rosthal, Dept, of Justice, Washington, D. C. (Will Wilson, Asst. Atty. Gen., Jerome M. Feit, Michael T. Epstein, Attys., Dept, of Justice, Washington, D. C., John L. Bowers, U. S. Atty., Chattanooga, Tenn., on the brief), for appellee.
Before PECK, McCREE and BROOKS, Circuit Judges.
BROOKS, Circuit Judge.
In March of 1964 defendants-appellants, James R. Hoffa, Thomas Ewing Parks, Larry Campbell and Ewing King, were convicted for endeavoring to influence, impede and intimidate jurors in the discharge of their duties. (18 U.S. C. § 1503 — The Federal Obstruction of Justice Statute). The alleged jury tampering involved attempts by these defendants to influence jurors who served on a case in which Hoffa was a defendant — the Test Fleet Case. Following the convictions for jury tampering, appellants filed motions for new trial which were denied and each conviction and the denial of the motions for new trial were affirmed by this Court, United States v. Hoffa, 349 F.2d 20 (6th Cir. 1965), affirmed 385 U.S. 293, 87 S. Ct. 408, 17 L.Ed.2d 374 (1966), reh. denied 386 U.S. 940 and 386 U.S. 951, 87 S.Ct. 970, 17 L.Ed.2d 880 (1967). A second group of motions for new trial were filed by appellants and denied. See United States v. Hoffa, 247 F.Supp. 692 (D.C.1965), affirmed 376 F.2d 1020 (6th Cir. 1967), cert. denied 389 U.S. 859, 88 S.Ct. 102, 19 L.Ed.2d 124 (1967). Appellants then filed a third round of motions for a new trial alleging newly discovered evidence. These motions were also denied, United States v. Hoffa, 247 F.Supp. 692 at 698 (D.C. 1965), affirmed 382 F.2d 856 (6th Cir. 1967), cert. denied 390 U.S. 924, 88 S.Ct. 854, 19 L.Ed.2d 984 (1968). Finally, a fourth group of motions for new trial were filed, and it is a result of these motions that this case comes to us for review. This fourth attempt to obtain a new trial was denied by the District Court, United States v. Hoffa, 268 F. Supp. 732 (D.C.1967), and affirmed by this Court, 398 F.2d 291 (6th Cir. 1968). Appellant King did not perfect an appeal from the denial of his fourth motion for a new trial. After this Court affirmed the last denial of the motions for a new trial, 398 F.2d 291 (6th Cir. 1968), a certiorari petition was filed in the United States Supreme Court. While this certiorari petition was pending, the Solicitor General of the United States, complying with the Supreme Court’s decision in Kolod v. United States, 390 U. S. 136, 88 S.Ct. 752, 19 L.Ed.2d 962 (1968), disclosed that “although none of these petitioners was ever the subject of electronic surveillance directed against him two of the petitioners did participate in conversations which were monitored during the course of electronic surveillance directed against others.” The Supreme Court then granted certiorari, set aside the judgment of this Court, and remanded the case to the District Court to determine “whether the surveillances at issue were unlawful.” See, Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969).
While the Supreme Court’s remand order applied to only appellants Hoffa, Parks and Campbell, the District Court permitted appellant King to participate in the remand hearing treating his motion as a petition for habeas corpus. At the time of the remand hearing, all appellants except Hoffa had completed serving their sentences. After a six day evidentiary hearing to determine the lawfulness of the surveillance, the District Court concluded “that no violation of any defendant’s lights has been shown under the direction given by the United States Supreme Court in Gior-dano v. United States” and affirmed the convictions and sentences imposed upon the defendants. See, United States v. Hoffa, 307 F.Supp. 1129 (D.C.1970). It is from this ruling that appellants have now appealed. As can readily be seen, the history of this litigation is long and involved. However, on this appeal we are only presented with the question of the correctness of the District Court’s ruling on the legality of the electronic surveillances, and we affirm that determination.
The electronic surveillances in these eases were accomplished by wire tapping of telephones and “bugging” (strategic placing of an electronic receiving device so as to overhear the conversation of individuals within proximity of the device) . The Hoffa surveillances consisted of four “buggings” of the executive offices of two gambling casinos in Las Vegas, Nevada, and three monitorings of radio telephone conversations over special FM frequencies in Detroit, Michigan. The District Court concluded that these surveillances did not violate the rules established in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L. Ed.2d 441 (1963), as to surveillances accomplished by means of trespass, and none of appellant Hoffa’s constitutional rights were violated.
Appellant Campbell’s surveillance consisted of some 254 monitorings of radio telephone conversations. These monitor-ings were accomplished by simply listening in on a special FM frequency that the Teamsters Union used in transacting business by radio telephone. The District Court concluded that since anyone with an FM receiver could have heard these conversations, there was no violation of appellant Campbell’s Fourth Amendment rights.
There were no electronic surveillances of appellant Parks, and the thrust of his argument on this appeal is that the surveillances of Hoffa, Campbell and King, if illegal, in some way violated his constitutional rights. This same argument is made by appellants Hoffa and Campbell with respect to the surveillances of appellant King. On this appeal, neither Hoffa nor Campbell challenge the District Court’s ruling on the legality of their respective surveillances, but rather question the correctness of the District Court’s ruling on the legality of King’s surveillance. Since it is concluded that the King surveillance was legal, it is not necessary to reach the issue of whether appellants Hoffa, Campbell and Parks have standing to raise alleged violations of appellant King’s constitutional rights.
There was only one electronic surveillance (a “bugging”) of appellant King, and it is this surveillance appellants argue was unlawful. An associate of the appellants who was also a government informant had his automobile wired with an electronic receiver and tape recorder. The informant arranged a meeting with appellant King and the two men rode around Nashville, Tennessee, in the informant’s automobile engaging in a ninety minute conversation which was taped.
Appellant King raises several constitutional challenges to this surveillance. First, it is alleged that the surveillance violated his Fourth Amendment right to be free of illegal searches and seizures. The taping of the conversation between the government informant and King took place with the consent of the informant, see, Kaufer v. United States, 394 U.S. 458, 89 S.Ct. 1223, 22 L.Ed.2d 414 (1969); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L. Ed. 1270 (1952); cf. United States v. Osborn, 350 F.2d 497 (6th Cir. 1965), affd. Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); and was not the by-product of a trespass onto appellant’s premises, see, Alderman v. United States, 394 U.S. 165, 171-176, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Cf. United States v. Hoffa, 349 F.2d 20, 48 (6th Cir. 1965). Thus, under existing Supreme Court interpretation, it cannot be said that King’s Fourth Amendment rights were violated by the fashion in which this electronic surveillance was accomplished.
Second, King alleged that his Fifth and Sixth Amendment rights were violated by the government’s surveillance of this conversation. It is argued that the surveillance was constitutionally impermissible because it resulted in his giving evidence against himself without being advised of his Fifth Amendment rights or his right to assistance of counsel. The difficulty with appellant’s challenges to the surveillance on Fifth and Sixth Amendment grounds is that they require an unwarranted extension of existing'case precedents. Respecting the claim .of violation of appellant’s Fifth Amendment right, present case law, notably Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires some element of compulsory self-incrimination. Here there was neither an in-custodial interrogation nor any compelling pressure applied which forced appellant to incriminate himself. See also, Hoffa v. United States, 385 U. S. 293, 304, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) . Furthermore, appellant's attack on the surveillance based on alleged violation of his Sixth Amendment right to assistance of counsel does not find support in present case law. See, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). In Escobedo there was an in-custodial interrogation after arrest without assistance of counsel and in Massiah the surreptitious surveillance took place after indictment following Massiah’s retention of counsel, pleading not guilty to the charge for which he was indicted and his release on bail. In this case the surveillance of appellant King took place the day preceding his indictment. An argument similar to appellant’s based on the contention that at the time of the surveillance he was “a virtual defendant” was made by appellant Hoffa in the initial appeal of this case and rejected by the Supreme Court. See, Hoffa v. United States, 385 U.S. 293, 309, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Accordingly, it is concluded that appellant King’s Sixth Amendment right to assistance of counsel was not violated by the surveillance in this case.
Appellant also maintains that government non-disclosure of the surveillance and recording of the conversation at the original trial constituted suppression of material evidence under the rules recognized in Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967) , and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). At the evidentiary hearing upon remand by the Supreme Court, the District Court reviewed the transcribed text of the conversation and concluded that “while portions of the recording do relate to the case, they are neither of an incriminating nor an exculpating nature.” (Appended to this opinion is the text of the conversation.) A reading of the Brady decision indicates that suppression of evidence following request for disclosure violates due process “where the evidence is material either to guilt or to punishment, * * * ” Brady v. Maryland, 373 U.S. 83 at 87, 83 S.Ct. at 1197. Independently reviewing the conversation, we agree with the District Court’s conclusion that the conversation was neither of an incriminating nor exculpatory character requiring disclosure.
The last argument raised by appellant is that non-disclosure of the surveillance at the original trial, following a request for production of all electronic surveillances, violated 18 U.S.C. § 3500 —The Jencks Act. The simple answer to this contention is that 18 U.S.C. § 3500 applies to production of statements “made by a Government witness or prospective Government witness (other than the defendant) to an agent of the Government * * (Emphasis added). The recorded conversation between appellant King and the government informant is simply not a statement made “to an agent of the government.” See, United States v. Sopher, 362 F.2d 523, 526 (7th Cir. 1966), cert. denied 385 U. S. 928, 87 S.Ct. 286, 17 L.Ed.2d 210 (1966).
The judgment of the District Court is affirmed.
APPENDIX
UNITED STATES DISTRICT COURT EXHIBIT No. 12 TRANSCRIPTION OF TAPE RECORDING
King: Ed, I’m sure glad you came out of that damn thing down there.
Partin: Picked that damn paper up there and read about the thing coming up tomorrow, and get a book and it’s in the book. Which way you ?
King: Go straight on down.
Partin: Who is that fellow Tibbens or Tippens mentioned in that book?
King: He’s the one that came in here and reported to the Judge while they were trying to select a jury that he had been offered some money and that, that, and the other.
Partin: What does he do ?
King: * * I don’t think he does anything, Ed.
Partin: * * * do you reckon they got enough to bring out some indictments on that thing up there ?
King: I don’t know. I doubt seriously that with a story like this in here that they will bring indictments. There’s a little piece in the paper today, I don’t know whether you saw it or not, saying the grand jury would have to meet to return indictments.
Partin: Damn if they didn’t have you;
King: They shore got me in there haven’t they?
Partin: The only thing they missed was where you were going hunting so they must not give the whole story, must have added a lot together.
King: The truth of the matter is, Ed, the night I went down to this place, went down there and met with this Mutt Pitts and went to his house * * * and when you come right down to it, now this is the actual facts, I told my wife I had to go to Mutt's place; that we were going to arrange for a rabbit hunt Thanksgiving. I wanted to try out this old car I got off George anyway to see whether it was any good or not. When we got down there, this old boy’s wife’s daddy is real bad sick, but he’s a real good friend of mine, real good, and we sat up there and drank coffee and had some cokes for a while. This old boy said we ought to be able to see him in a few minutes, I’ll go down and see and get some Coca Colas. When he came back he said this old boy wants to see you after while. He wants to get a promotion. He has been on the patrol 12 years. So we talked, and we talked, and we made him talk, or I made him talk. And then, I don’t know whether he has changed his story or not. They say that he has, but this story in the magazine says he hasn’t. The magazine is still writing the same story that he gave before the damn court up there. So, I don’t know whether he has or whether he hasn’t, but in view of this very thing during this time and many many other times the record will prove that I have been to every one of them suckers, these boys at one time or another to get promotions for these guy. So, hell fire, I talked to the Governor the other day. He said I’m so glad that Jimmy Hof fa beat them * * *. He sure did. I talked to the Chief of Police last night, right over there, and he said I’m so glad that Hoffa outsmarted everybody up there * *. That’s about all I’ve heard recently.
Partin: Do you think that if they got indictments they can convict anybody here * * *?
King: I doubt it very seriously. I doubt it very very seriously. I sure do. I’m going to get me a lawyer and beat their ass. There’s one here in town that can beat any of them — Jack Norman. I’ll get him.
Partin: How, look this fellow that they called. Do you know Tweel ?
King: (Unintelligible, but apparently a negative reply.)
Partin: Do you think that highway patrolman will stay put?
King: I have always believed he would stay put. However, there have been a lot of rumors circulating around that he has changed his story from what he hold the Court because he was afraid and all this, that and the other but I do not believe he has done it. And I don’t see how anybody else would know it either, you know, unless they’ve been in there. So, as far as I am concerned there’s, and Jim, I been in Philadelphia with him for a week, every day, he don’t believe that they will even get any indictments, not after this long period of time. Five months have gone by.
Partin: Speaking of Chuck, I don’t know how to figure Chuck. On night we were coming from O’Brien’s in a cab, and he drove around and around and around and all of a sudden jumped out, said I’ll see you later, and got in an old two tone Buick. Acted like he was scared to death.
* * * * *
Partin: I read in the paper about that damn longshoreman * * *.
King: I am not convinced that they can get a conviction on me or anybody else since they have taken as much time as they have. If it takes them that long for them to get us, it will take them a damn sight longer to make them stand up.
Partin: Is Jimmy worried ?
King: Don’t seem to be, a bit.
Some talk here about Fields.
Partin: What’s he doing now? (Believed to refer to Don Vestal).
King: Nothing that I know of. Was with steelworkers last account I had of him. They made me put him back and I’m fixing to put him back out on the * * as soon as I can have a board meeting.
Partin: He don’t come to the hall, or nothing ?
King: He comes to the meetings but he won’t stay but about 15 or 20 minutes. I start lowering the boom on his ass and he will leave right away.
Some talk here about where Vestal lives — talk about some grievance and about somebody retiring. Some speculation as to whether Vestal lives on Grandview Drive or Avenue.
King: If that highway patrolman stays put, they ain’t got a thing.
Partin: What about that little fellow * * * ?
King: Who went with me? He’s just as solid as that bus up yonder. Yes sir, I was down to his house just a little while back. Me and my wife were down there Sunday evening. That’s when I called up the Marshal and told him I was going down there and if he wanted to go he wouldn’t have to drive his own car, he could go with me.
Partin: You know where they sell General tires? I need me one on the left front wheel.
King: There’s one down on Broad Street.
Some talk about a union election lost by Teamsters to Steelworkers.
King: Those fellows up yonder (meaning Philadelphia), they damn near run me crazy. That was a rough deal up there. One boy went wild, he went all to pieces. One of our men. * * *
Partin: Wonder how many indictments they will come out with ?
King: They will either come out with a real small amount, Ed, or they will get a whole damn bunch of us. I’m convinced that they are going to indict me, a boy out of Detroit Larry Campbell, Chuck, Hoffa, and maybe at least three more. * *
Partin: Looks to me like they will have a rough time getting a Judge who doesn’t know all about this thing.
Partin: How will Broda stand up?
King: He’s all right. Ed, he don’t know a thing.
Partin: Does he know anything about me at all?
King: No, sir, Ed, he don’t know a thing in the world about me. As far as he knows the night we swapped cars we swapped for the purpose of him trading for the Thunderbird and me taking his car. That’s all he knows now. I wouldn’t have, you see I knew how weak he was. If somebody hit him over the head with a blackjack he would sing the star spangled banner * *
Partin: I believe Twell is the weak link in this thing. I always will believe it.
King: Do you reckon?
Partin: He hasn’t come around. He told me he wanted me to meet him in Miami; that he would call me and he ain’t called me yet.
King: I guess I remember the man, but I can’t place him.
King: I have another man here who is really giving me all the trouble he can * * * Perry Canaday, that served that workhouse sentence about four years ago on the barber shops. He works with Super Service. He’s telling everybody he can run into he hoped they put me in the penitentiary. He’s mad at me because I would not hire him. I couldn’t hire him on account of his record, if I wanted to. I did not want to in the first place because he is stupid. He’s beating his gums everyday and one of these days I am going to have to knock him on his ass myself, as sure as God made little apples * * *
Partin: Didn’t you see them damn cars following you like that book said?
King: Well, they didn’t follow me period they were watching Paschal’s home and once they saw this car with Nashville license in the driveway of this Paschal’s home, then’s when they turned to the * * You see they hadn’t seen me. That is the reason you know the magazine said they put these spotters out to watch me when I got home to make sure I was driving that car because they did not put me in that car down there. They didn’t follow me to Woodbury. They were watching Paschal’s house and when Mutt Pitts took my car and went down there to get some coca colas and went by James Morris’ house to see whether he had come in or not, that’s when they got suspicious and wondered who was driving the car and everything.
King: Pull up on that rack right there. I used to know an old boy out here. Don’t know whether he is still out here or not.
(Apparently stopped at McDowell General Tire Service and had a tire put on front wheel. Were out of the car most of the time.)
King: Okay Bob, good to see you.
Partin: Man, that saved me $18.00.
King: We could go back out this way and hunt that house up for sure •¡f * * h’s ^012 instead of 1211.
Partin: You all had a lot of fun in Philadelphia?
King: * * * I talked to Jim for an hour and a half. I told him I was going back to Tennessee; that I had a flight out the next morning. They are two hours faster than we are. I got home in time to do a day’s work. We stayed up so damn much up there, day and night. I got a cold and I ain’t been able to throw it off yet.
Partin: His spirits were pretty good after that?
King: Oh year * * * After the vote came in, we went down to the union hall.
Partin: Didn’t they indict Chuck up there ?
King: Hell yes, we talked about that. Jim said it wouldn’t count up. Indicted him on that car and that damn ship deal. A convoy off a ship or something or other. Of course, he’s an eager beaver * * •:;• jje shakes down every operator that he has anything to do with * * He told me this himself.
Partin: That’s what hurts us, things like that.
Partin: Bufalino told me Campbell got messed up with some whores up there * * *
King: Is that right ?
Some talk of Jimmy giving someone two minutes to get out of town. Some more talk about Campbell. King indicated he saw Campbell in Detroit and Campbell said he had tried to call King when he was in Nashville for the grand jury.
Partin: What about that fellow Bell, did I ever meet him ?
King: I don’t know. I didn’t, Ed, I probably saw him.
Partin: He must have gone crazy on that damn phone, the way the paper talked.
King: Most of his calling was from out of town though, it wasn’t in town. He called Tenpenny, Mutt Pitts and this highway patrolman and everybody else.
Partin: Did he know them ?
King: He was trying to buy a race horse.
Partin: You are talking about that guy on the jury?
King: No, that official — that longshoreman, Bell.
King: He called them from Memphis and everywhere he stopped.
Here, they apparently located a house at 1012 Grandview Avenue. King gave Partin instructions as to how to go out of town, by going out Granny White Pike. King said something about having called Dick Farrel.
King: Jim, he’s been just jam up with me.
Partin: You went all out for him. He ought to be.
King: He told somebody up in Philadelphia the other day, this is Ewing King, said he helped me down in Nashville more than anybody will ever know.
Partin: I laughed that morning you told Jimmy that woman would sit there til hell froze over.
King: That would have happened.
Partin: That was on account of kicking that woman off?
King: Yep.
Partin: He brightened up too, didn’t he?
King: Yes.
King: He (apparently referring to O’Brien) told me more lies than you ever heard tell of. He said his Daddy got killed on a picket line. Jimmy raised him up since he was three years old. I was putting up with a lot of bull.
Partin: Why did Jimmy get messed up with him?
King: Family obligations * * *
Partin: Why did he get messed up with that stuff on the ship ?
King: Ed, that’s just one of those things * * He gets himself into everything that comes along.
Some talk here about John J. Hooker, Sr. and John J. Hooker, Jr.
King: Miller (possibly referred to judge William E. Miller, U. S. District Court) hates me with a passion.
Partin: Who don’t he hate ?
King: I haven’t lost a thing with him, so that feeling is mutual.
Here, they exchanged pleasantries, said good-by.
. The limited .scope of appellate review in this case is dictated by the Supreme Court's remand order in Giordano v. United States, 394 U.S. 310, 312-313, 89 S.Ct. 1163, 1165, 22 L.Ed.2d 297 (1969). There it was spelled out that since “[i]t is not evident from the records * * * whether the surveillances at issue were unlawful * * * ‘the District Court must develop the relevant facts and decide if the Government’s electronic surveillance was unlawful.’ Of course, a finding by the District Court that the surveillance was lawful would make disclosure and further proceedings unnecessary." The newly discovered facts developed during the remand hearing and referred to in Judge MeCree’s opinion concurring in part and dissenting in part arc not properly before us, see United States v. Beal, 404 F.2d 58 (6th Cir. 1969), cert. denied 393 U.S. 1084, 89 S.Ct. 869, 21 L.Ed.2d 778; United States v. Aguillar, 387 F.2d 625 (2nd Cir. 1967), and appropriate procedures which are to be originated in the District Court are available if appellate review of these matters are sought. See, Rule 33, Federal Rules of Criminal Procedure.
. Appellant Hoffa’s right to raise alleged violations of appellant King’s constitutional rights also stems from the fact that Hoffa was indicted and convicted as an aider and abettor of King for jury tampering. Because of this fact, Hoffa may have more of a concrete right than Campbell or Parks to raise questions about the validity of the King surveillance. However, as we conclude that the surveillance was legal, we do not reach this question.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_appel2_1_4
|
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 appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". Your task is to determine what subcategory of business best describes this litigant.
AMERICAN AIRLINES, Inc., et al. v. CIVIL AERONAUTICS BOARD.
No. 9739.
United States Court of Appeals Seventh Circuit.
Dec. 8, 1949.
Paul M. Godehn, John T. Lorch, Chicago, Ill., Henry L. Hill, Chicago, Ill. (Mayer, Meyer, Austrian & Platt, Chicago, Ill., of counsel), for petitioners.
Emory T. Nunneley, Jr., Greer M. Murphy, Warren L. Sharfman, Washington, D. C. , Edward Dumbauld, William D. McFarlane, Department of Justice, Washington, D. C., Hardy K. Maclay, Washington, D. C., Charles P. Taft, Cincinnati, Ohio, Richard Bentley, Kenneth B. Hawkins, Richard H. Merrick, Chicago, Ill. (Headley, Taft & Headley, Cincinnati, Ohio, Cassels, Potter & Bentley, Chicago, Ill., Landis, Gewirtz & Maclay, Washington, D. C., of counsel), for intervenor Air Freight Forwarders Ass’n.
C. J. Burrill, E. C. Riordan, Chicago, Ill. (Haskins, Maguire & Haskins, Chicago, Ill., of counsel), for intervener International Forwarding Co.
Homer S. Carpenter, Washington, D. C., Gregory A. Gelderman, Chicago, Ill. (Turney, Carpenter & Turney, Washington, D. C, of counsel), for intervener Acme Air Express, Inc.
- Before DUFFY, FINNEGAN and LIN-DLEY, Circuit Judges.
LINDLEY, Circuit Judge.
■ Petitioners seek to reverse an order of the Civil Aeronautics Board authorizing air freight forwarders to engage indirectly in interstate air transportation. They do not ask us to review the evidence but contend that the findings are insufficient to sustain the order and that the board has erroneously interpreted the law.
The suit had its inception in a consolidated proceeding known as the Air Freight Forwarder Case, where some 78 parties filed applications under the Civil Aeronautics Act, 49 U.S.C.A. § 401 et seq., requesting the board to issue either certificates of public convenience and necessity or exemption orders permitting them to engage in indirect air transportation as air freight forwarders. Air freight forwarders, who have become active but comparatively recently, procure shipments from shippers, assemble them and tender the consolidated lot gathered from the various shippers to an air carrier for transportation at a bulk rate which is lower than the rates collected by the forwarders from the shippers. The forwarder assumes the responsibility of a carrier, though he carries no merchandise himself but ships entirely by air in other carriers’ airplanes. Upon arrival of the consolidated shipment at the airport of destination, the forwarder divides the bulk shipment and distributes the separate portions thereof to the individual consignees. The difference between the high rates collected by forwarders and the low rates paid by them to carriers is commonly spoken of as the “spread” and provides the forwarder with expenses and profits.
When the applications were filed, petitioners, consisting 'of permanently certified air carriers, engaged directly in transportation of persons, property and mail by air within the United States, having intervened, opposed them. After hearing and recommendation by the examiner, the board, on September 8, 1948, entered the order now on review.
In order properly to understand the order and its scope and significance, it is essential that we examine the statutory law involved. Section 401 (a) of the Civil Aeronautics Act of 1938, 49 U.S.C.A. §§ 401, 481, provides that no air carrier shall engage in air transportation unless a certificate issued by the board authorizes such service. Section 401(d) provides that: “The Board shall issue a certificate authorizing the whole or any part of the transportation covered by the application, if it finds that the applicant is fit, willing, and able to perform such transportation properly, and to conform to the provisions of this Act and the rules, regulations, and requirements of the Board hereunder, and that such transportation is required by the public convenience and necessity; otherwise such application shall be denied.”
Air freight forwarders, as we have seen, do not carry anything by air. They are classed as air carriers because they are included in the definition of that term in Section 1(2) of the Act, the pertinent portion of which follows: “ ‘Air carrier’ means any citizen of the United States who undertakes, whether directly or indirectly or by a lease or any other arrangement, to engage in air transportation: Provided, That the Board may by order relieve air carriers who are not directly engaged in the operation of aircraft in air transportation from the provisions of this Act to the extent and for such periods as may be in the public interest.”
The board denied the applications for certificate of convenience and necessity but concluded that the forwarders, as indirect ■carriers, should be relieved from the provisions of the Act, adopted a regulation covering allowance of applications for air freight forwarders and directed that the 58 applicants be permitted to operate under exemption upon complying with the terms of the regulation. The board denied relief to such of the applicants as had abandoned their application during the progress of the proceedings and such of them as sought international rights and those directly or indirectly controlled by railroad interests. It made no finding that the applicants exempted were fit, willing and able to furnish public service as forwarders or that their operations were required by the public convenience and necessity; and it is largely upon this lack of finding that petitioners ground their objections to the order.
In other words, it is insisted by petitioners that the failure to make a finding that the applicants were fit, willing and able to perform transportation properly and that such transportation was required by the public’s convenience and necessity as provided in Section 401 (d) of the Act is a fatal defect. However, it is provided in Section 1(2) of the Act that the board may by order exempt air • carriers who are not directly engaged in the operation of aircraft “to the extent and for such periods as may be in the public interest,” and the board found that it was in the public interest to relieve such carriers from the provisions of the Act to -the extent and for the period fixed. Our question then is whether, when the board enters upon a determination of whether it will grant exemption to an indirect carrier, that is, whether it will relieve the indirect carrier from the other provisions of the Act as provided in Section 1(2), it is necessary for the board to follow the standards of Section 401 under which, before authorizing the carrier to act, it must find that the applicant is fit, willing and able and that its operation is in the public interest. If the board was not bound to adhere to that standard and if it had a right under the statute; in the exercise of its' discretion, to excuse indirect carriers, that is, those who do not engage directly in air operations, from the requirements of the Act, thén its order was proper.
We think petitioners are over-meticulous in their conception of the standard fixed by the statute. These forwarders do not engage in air transportation;'' they merely gather freight on the ground, assemble it, deliver it so assembled to the carrier for shipment, then, after shipment has. ended, divide it and deliver it to the several consignees. All their activities are on, the ground. , The board found that their operations tend to help the direct air carriers.by •increasing .the volume of air transportation and are, therefore, of benefit to petitioners. The board reasoned that, inasmuch as the applicants were in the unique position of being subject to the Act as indirect carriers but performed no function in the air and, inasmuch as they were comparatively recent newcomers in the indqstry, there was insufficient evidence to show that their operations were such that they should háve certificates under 'Section 401,'that is, certificates of convenience and necessity; but that, in view of their' limited activities, they should have certificates of exemption from any requirement of the Act, limited in time.
We think the order did not contravene the purpose of the statute but rather carried it into effect. Apparently Congress contemplated that for all kinds of carriers there should be two methods by which operations could be authorized; first, for all operations, certificates of convenience and necessity might issue; second, for, indirect operations, certificates of exemption might issue. The plain reading of the statute impels this conclusion. It is unambiguous and, when properly construed, its language leads only to this one conclusion. Section 401 clearly requires the board, before issuing a certificate, to find that the transportation authorized is required by the public’s convenience and necessity and that the applicant is fit, willing and able; but the proviso of Section 1(2), just as clearly fails to include any such requirements and authorizes the board to issue relief or exemption .orders- for indirect carriers “to the extent and for such periods as may be in the public interest.” The first section is concerned with the necessity or convenience demanding air transportation service and the second, with the advisability of relieving indirect carriers of the obligation .of proving such necessity. We agree with the board that if the test for determining whether an indirect carrier should be relieved of the obligation of proving ,necessity ’ is to require proof of necessity in every case, it would completely nullify the purpose of Congress as expressed in Section 1(2). As said in Cox v. Hart, 260 U.S. 427, 435, 43 S.Ct. 154, 157, 67 L.Ed. 332: “The office of a proviso is well understood.' It is to except something .from the operative effect, or to qualify or restrain the generality, of the substantive enactment to which it is attached.” “If possible, the act is to be given such construction as will permit both' the enacting clause and the proviso to stand and be construed together with a view to carry into effect the whole purpose of the law. 1 Kent, Com. 463.” White v. United States, 191 U.S. 545, 551, 24 S.Ct. 171, 172, 48 L.Ed. 295. See also Foster v. United States, 7 Cir., 47 F.2d 892. Applying these principles to the Civil Aeronautics Act, we think there can be no question that the board properly construed each of the sections and that there is no requirement of proof of convenience and necessity of the proposed operations to be read into Section 1(2) in order to preserve other portions of the Act and its basic objective's.
That ground for distinction between direct carriers and indirect carriers exists, is substantiated by the findings which stand unimpeached before us. Indirect carriers do not operate aircraft; they merely gather freight on the ground to be carried in aircraft; they do not compete with direct aircraft carriers, such as petitioners, in the operation of airplanes. All of .the merchandise gathered by forwarders must move from them to and over one of the direct carriers, and for carrying it, the direct carrier receives the full amount of the legal tariffs. The forwarder has relatively a very small investment. Obviously the functions of direct and indirect carriers are in no wise competitive and Congress was perfectly justified in distinguishing their respective functions and in relieving the indirect carrier from the obligations imposed on direct carriers by virtue of Section 401. We think the findings of the board and the language of the Act are such that the order of the agency charged with the administration of the law must be approved. National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 130, 64 S.Ct. 851, 88 L.Ed. 1170; Unemployment Compensation Commission v. Aragan, 329 U.S. 143, 153, 154, 67 S.Ct. 245, 91 L.Ed. 136.
The petitioners apparently contend that sufficient subsidiary findings of fact upon the part of the board to support the ultimate finding are lacking. We do not have the transcript of evidence before us but we do find subsidiary findings clearly indicating the basis for the decision and demonstrating the reasonableness ’ of the. ultimate finding that the temporary exemption of air freight forwarders' from certain provisions of the Act is in the public interest. It should be remembered and emphasized that “administrative finality is not, of course, applicable only to agency finding of ‘fact’ in the narrow, literal sense. The (agency’s) findings * * * based upon judgment and prediction, as well as upon ‘facts’ * * * are not subject to reexamination by the court unless they * * * were not arrived at in ‘accordance with legal standards.’ ” Securities and Exchange Comm. v. Central-Illinois Securities Corp., 1949, 338 U.S. 96, 69 S.Ct. 1377, 1393. See also Securities and Exchange Comm. v. Chenery Corp., 332 U.S. 194, 207, 67 S.Ct. 1575, 1760, 91 L.Ed. 1995.
The regulation creates a distinct class of indirect carriers known as Air Freight Forwarders, a member of which is defined by the following language: One who, "1, assembles and consolidates or provides for assembling and consolidating of such property and performs or provides for the performance of brake-bulk and distributing operations with respect to such consolidated shipments, 2, assumes responsibility for the transportation of such property from the point of receipt to point of destination, and 3, utilizes for the whole or any part of the transportation of such shipments, the services of a direct air carrier subject to the Act.” It provides that no person may operate as an air freight forwarder without first procuring a letter of registration from the board; that such letter shall issue only if an application supplying certain detailed information has been filed and then, only if it appears that the applicant’s operations will not be inconsistent with the public interest. The authorization may be revoked at any time and is not valid beyond five years.. All such forwarders are exempted from the requirement of proof of fitness, willingness and ability and of public convenience and necessity. This regulation, we think, is clearly within the purview of the authority granted to the board by Section 1(2) of the Civil Aeronautics Act which we have quoted. The plain intent is that a forwarder may be relieved from the requirements of the Act to such extent as the board concludes is in the' public interest. There is no requirement of proof that the operations of the forwarder be in the public interest, but, rather, the forwarder is to be relieved if the board finds that such exemption is in the public interest, and this the board did find. It found also that, upon consideration of all the facts and evidence of record, the public interest in and the need of air forwarders had been sufficiently established to justify the authorization of freight forwarder operations for a limited period during which essential experience might be developed upon which a permanent policy could be soundly determined.
' In support of this are many subsidiary findings, — for example, — air freight would be used profitably and extensively by the public. There exists a tremendous potential for air freight. Many valuable services would be accorded shippers by air freight forwarders. Similarly, large benefits would accrue to direct carriers from forwarder operations. Forwarders, through their solicitations, would develop new air cargo business and help overcome the directional unbalance of trade. From these and other findings, it is apparent that the board found reasonable basis for believing that it should try out the proposed course of action outlined in its regulation and acted accordingly.
Obviously, we are not concerned with the question of whether this was a wise course of action. Nor are we concerned with whether we would have entered the order ourselves or whether the board’s interpretation is the only reasonable one. Our function is limited; we may only inquire as to whether the board’s interpretation of the statute has warrant in the record and a reasonable basis in law. Unemployment Compensation Commission v. Aragan, 329 U.S. 143, 153-154, 67 S.Ct. 245, 91 L.Ed. 136. See also National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 88 L.Ed. 1170.
It would seem unnecessary to reiterate that presumptively the board’s order is correct and, under any and all circumstances, its decision entitled to great weight. We think it clear that it can not be said that the board has failed to make adequate findings in this case, where it is dealing largely with an experimental undertaking. The language of the Supreme Court in Railroad Commission v. Rowan & Nichols Oil Company, 310 U.S. 573, 60 S.Ct. 1021, 1024, 84 L.Ed. 1368 is pertinent: “Certainly in a domain of knowledge still shifting and growing, and in a field where judgment is therefore necessarily beset by the necessity of inferences bordering on conjecture even for those learned in the art, it would be presumptuous for courts, on the basis of conflicting expert testimony, to deem the view of the administrative tribunal, acting under legislative authority, offensive to the Fourteenth Amendment. * * * Plainly these are not issues for our arbitrament. * * * It is not for the federal courts to supplant the Commission’s judgment even in the face of convincing proof that a different result would have been better.” See also 310 U.S. 576, 61 S.Ct. 346, where the same case was under consideration: “When we consider the limiting conditions of litigation — the adaptability of the judicial process only to issues definitely circumscribed and susceptible of being judged by the techniques and criteria within the special competence of lawyers — it is clear that the Due Process Clause does not require the feel of the expert to be supplanted by an independent view of judges on the conflicting testimony and prophecies and impressions of expert witnesses.”
Petitioners contend that the board improperly held that the second proviso of Section 408(b) of the Act is inapplicable to the acquisition of control of an indirect air carrier. That Section makes unlawful various kinds of acquisitions of control in the absence of approval of the board as provided in Section 408(b). Under the section, an air carrier or any other common carrier may not “acquire control of any air carrier in any manner whatsoever” unless the board approves. But the board is required to grant approval unless it finds that the proposed acquisition of control will not be consistent with the public interest, subject, however, to two ■ further provisos. The first requires the board to withhold approval of control which would result in creating a monopoly and thereby restrict competition or jeopardize another air carrier not a party to the acquisition of air control. The second, with the interpretation of which we are concerned here, is, so far as pertinent, as follows: “Provided further, That if the applicant is a carrier other than an air carrier, or a person controlled by a carrier other than an air carrier or affiliated therewith * * * the Board shall not enter such an order of approval unless it finds that the transaction proposed will promote the public interest by enabling such carrier other than an air carrier to use aircraft to public advantage in its operation and will not restrain competition.” 49 U.S.C.A. § 488.
The board found that the limitations of the statute were applicable to certain applicants controlled either directly or indirectly, by surface common carriers, and with this action petitioners seem to agree. The board further concluded, however, in deciding whether control of an air freight forwarder by a surface freight forwarder should be approved, that “the second proviso does not apply in a case where the company of which control is acquired is an air freight forwarder,” saying: “We believe that Congress did not intend it to be applicable. The language of the section is such as to indicate that it was directed to the case of control of a direct air carrier by a direct common carrier or by a person controlled by or controlling such common carrier or affiliated therewith. The requirements laid down therein were obviously framed with reference to the experience of direct carriers and are at best inappropriate' where indirect carriers are involved. We hold accordingly that the second proviso of section 408(b) does not apply in this situation.”
Though the board did not follow the literal language of the second proviso, it is clear that it made its interpretation in order to avoid an anomalous result, contrary to the congressional intent. If the proviso literally applied to forwarders, as contended by petitioners, the board could approve the control of a direct air carrier by a direct common carrier on making the findings specified in the second proviso but could never approve the control of an indirect carrier by indirect common carriers, since indirect carriers never “use” aircraft, and the findings required by the second proviso could never be made. We agree with the board that the proviso is not a prohibition but a restriction, and that, since the dangers sought to be guarded against by Section 408 are obviously more acute in the acquisition of control of a direct air carrier than in the case of the acquisition of control of an indirect air carrier, Congress did not intend to “permit the former under specified conditions and to prohibit completely the latter.” It certainly did not use language indicating an intention to accomplish that end, for, as it is clear from the findings that there were no indirect carriers in existence at the time the Act wa? passed and that Congress was concerned only with the problem of direct air carriers, the use of the words “indirect air carriers” was obviously inadvertent and misleading.
When it passed the Act, Congress was concerned only with direct carriers. Any fear that the surface forwarders might dominate the field of air freight forwarders is inconsistent with the express finding that such control is not inconsistent with the public interest and will not create a monopoly and thereby restrain competition or jeopardize any direct or indirect carrier. As a matter of fact, the board refused to approve the control of air freight forwarders by railroads because of the dominant position such air forwarders would thus secure in relation to independent air forwarders. We think that the interpretation of the statute by the board in order to avoid incongruous result and in order to effectuate the intent of Congress was proper under United States v. American Trucking Ass’ns, 310 U.S. 534, at 542-544, 60 S.Ct. 1059, 84 L.Ed. 1345 and authorities there cited. To the same effect is the recent decision of the Court of Appeals for the Second Circuit in North American Utility Securities Corp. v. Posen, et al., 1949, 176 F.2d 194. We conclude that the board’s interpretation of the second proviso of Section 408(b), which makes it inapplicable to the acquisition of control of an air freight forwarder, carries out the intent of Congress and is a reasonable and proper interpretation of that provision binding upon this court. National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 130, 64 S.Ct. 851, 88 L.Ed. 1170; Unemployment Compensation Commission v. Aragan, 329 U.S. 143, 153-154, 67 S.Ct. 245, 91 L.Ed. 136.
We have said nothing thus far concerning the Railway Express Agency. The proceedings before the board also involved applications by that company. It furnishes ground facilities and gathers and dispatches air express under contracts between it and air carriers holding certain certificates of convenience and necessity. This indirect air transportation furnished by the agency is authorized by a temporary exemption issued in 1941 pursuant to Section 1 (2) of the Act. Railway Express Agency, Inc., Grandfather Certificate, 2 C.A.B. 531. In the present case, the agency requested that it be granted permanent rather than temporary authority and be permitted to handle air freight as well as air express and to use the facilities of noncertificated as well as certificated air carriers. In its order, after continuing the agency’s operations in air express under a certificate of exemption, the board directed to the agency to negotiate revised air express agreements containing terms specified by the board and to submit to the board within six months any revised agreements that might be entered into as a result of such negotiations. Petitioners contend that by this order directing the agency to negotiate revised air express agreements, the board exceeded its power.
Petitioners transport air express as well as air freight. The ground facilities used belong to the agency and are used for air express purposes pursuant to contracts between it and the carriers approved by the board. It is contended that the order was entered without due notice to petitioners and is not supported by essential findings; that the original hearing did not contemplate any inquiry into the agreement between the agency and the air carriers; that evidence was received at the hearing regarding existing agreements but that the parties were not notified before or at the time of the hearing that the board intended to consider the contracts previously existing and that the first notice appeared in the examiner’s report to which petitioners objected and excepted; that because of these facts, the entry of the order over petitioners’ objections denied them due process, in view of the fact that petitioners did not have fair opportunity to present evidence or cross-examine witnesses with respect to the validity of the board’s objections to existing agreements or as to the best available method for curing such objections thereto, if valid. Petitioners insist that, though the board has power under the Act to approve or disapprove, it has no power to direct that contracts between the carriers subject to the Act and the agency be renegotiated in accordance with specific terms dictated by the board.
The board contends that the merits of petitioners’ claim in this respect are not before the court, because no justiciable controversy between the parties and the board has arisen. We think the board’s position sound. Its direction to the agency does not impose 'any obligation or restraint upon petitioners. It commands nothing of them. It denies them no authority previously granted. It subjects them to no liability, civil or criminal. Thus, in Chicago & Southern Airlines, Inc., v. Waterman Steamship Corporation, 333 U.S. 103, 68 S.Ct. 431, 437, 92 L.Ed. 568, the court said: “Until the decision of the Board has Presidential approval, it grants no privilege and denies no right. It can give nothing and can take nothing away from the applicant or a competitor. It may be a step, which if erroneous will mature into a prejudicial result, as an order fixing valuations in a rate proceeding may foreshow and compel a prejudicial rate order. But administrative orders are not reviewable unless and until they impose an obligation, deny a right or fix some legal relationship as the consummation of the administrative process. United States v. Los Angeles & Salt Lake R. Co., 273 U.S. 299, 47 S.Ct. 413, 71 L.Ed. 651; United States v. Illinois Central R. Co., 244 U.S. 82, 37 S.Ct. 584, 61 L.Ed. 1007; Rochester Telephone Corp. v. United States, 307 U.S. 125, 131, 59 S.Ct. 754, 757, 83 L.Ed. 1147.” Inasmuch as petitioners have lost nothing and have had imposed upon them no obligation by the board’s direction to the agency and no final order has been entered, we think that no right of petitioners to complain has matured.
The order is affirmed.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". What subcategory of business best describes this litigant?
A. railroad
B. boat, shipping
C. shipping freight, UPS, flying tigers
D. airline
E. truck, armored cars
F. other
G. unclear
Answer:
|
songer_appbus
|
2
|
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.
BASS RIVER ASSOCIATES, t/a Bass River Yachting Center and Mariner Houseboats, Inc., Appellants v. The MAYOR, TOWNSHIP COMMISSIONER, PLANNING BOARD OF BASS RIVER TOWNSHIP and Bass River Township.
No. 83-5727.
United States Court of Appeals, Third Circuit.
Argued July 3, 1984.
Decided Aug. 31, 1984.
Edward V. Cattell, Jr. (argued), Stuart M. Goldstein, Cattell & Keating, Haddon-field, N.J., for appellants.
Richard J. Shackleton (argued), James E. Bishop, Frank A. Buczynski, Jr., Shackleton, Hazeltine & Dasti, Ship Bottom, N.J., for appellees.
Before HIGGINBOTHAM, SLOVITER, Circuit Judges, and GREEN, District Judge.
Hon. Clifford Scott Green, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
At issue is the validity of an ordinance of Bass River Township, N.J., that bans “floating homes.” The plaintiffs are the owner of a marina and a builder of houseboats, who together had planned to sell and moor boats. They were unable to do so because the township adopted the exclusionary ordinance as a response to the plaintiffs’ proposal. Plaintiffs challenged the constitutionality of the measure in the United States District Court for the District of New Jersey. The district court rejected their challenge. We will affirm.
I.
FACTS
Bass River Township, in the pine barrens of New Jersey, is a sparsely populated, ecologically fragile area. Its waters are used by campers and boaters, and the estuarine areas contain oyster beds. The township does not have a police force or trash collection service, and it depends on volunteer firefighters. All real estate development is governed by the township’s master plan, subdivision and site plan ordinance, and zoning ordinances, as well as the New Jersey Pinelands Protection Act, N.J.S.A. 13:18A-1 et seq. (1979 & Supp. 1984), and Coastal Area Facility Review Act, N.J.S.A. 13:19-1 et seq. (1979). Under the master plan, minimum lot size for a dwelling is 3.2 acres.
Appellant Bass River Associates devised a plan to buy an existing 32-acre marina on the Bass River, to install amenities and, in a dealership agreement with appellant Mariner Houseboats, to sell and moor houseboats there. Sixty-six boats were to be moored in the eight-acre basin. The boats were designed for year-round living; they could either be towed from location to location or propelled by optional outboard engines but none of those built through 1982 were ordered with an optional outboard. App. at 80a. Sewage was to be removed by a vacuum pump system and discharged elsewhere, but the boats would discharge water from the bath, laundry and kitchen, termed “gray water”.
The appellants and their architect presented the plan to township officials, who did not expressly oppose it. Appellants then purchased the marina. It is not clear what the parties’ understanding was at this point. However, very soon thereafter, the township drafted the ordinance banning floating homes and the Board of Commissioners conducted a hearing. There, the marina project was opposed by state officials, shellfish industry representatives, and the chief of the local volunteer fire company, among others. The opposition was based primarily on ecological concerns but a consultant also anticipated problems involving trash disposal, flood and ice storm damage, traffic and parking, and police protection.
The Board then adopted the ordinance, which provides, in principal part:
(a) No Floating Home shall be occupied and no Floating Home Marina shall be permitted in any zone within the Township of Bass River.
(b) No marina shall permit in water or out of water storage of any Floating Home.
(c) No person, firm or corporation shall operate or cause to be operated a Floating Home Marina or rent, hold out for rent or sell any site or space for the location of a Floating Home.
Bass River Township, N.J., Ordinance 83-1, Section II (January 20, 1983).
The ordinance distinguishes between houseboats, which are defined in Section I as “those vessels not designed primarily for residential dwelling units,” and “floating homes,” defined as “any vessel in fact used, designed, or occupied as a permanent dwelling unit.” The ban applies only to floating homes. It is undisputed that the appellants were the only persons adversely affected by Ordinance 83-1 when it was enacted.
The appellants claimed in district court that the ordinance (1) was preempted by the federal licensing and water pollution statutes and (2) violated the appellants’ due process and equal protection rights. The district court discussed and rejected the preemption argument in an unreported opinion. App. at 55a, and the case then proceeded to trial on the due process and equal protection issues. After trial the court dismissed the appellants’ complaint. Bass River Associates v. Mayor of Bass River Township, 573 F.Supp. 205 (D.N.J.1983). The appellants appeal on both the preemption and Fourteenth Amendment issues.
II.
PREEMPTION
A.
Licensing of Vessels
The appellants contend that Ordinance 83-1 is preempted by the federal legislation providing for ship licenses. They argue that because the boats used as floating homes would carry federal ship licenses the township may not exclude them from navigable waters. The district court rejected this argument on the ground that Congress intended the grant of licenses to protect the passage of vessels in interstate commerce and that that federal interest is not implicated in this case. We agree.
The appellants do not identify the specific statutory provision that they believe is preemptive. We proceed on the assumption that they refer to 46 U.S.C.A. § 12109 (1983) (formerly 46 U.S.C. § 651) and that the issuance of licenses to the floating homes comes within that section. It provides in its entirety:
§ 12109. Pleasure vessel licenses
(a) A pleasure vessel license may be issued for a vessel that is—
(1) eligible for documentation; and
(2) to be operated only for pleasure.
(b) A licensed pleasure vessel may proceed between a port of the United States and a port of a foreign country without entering or clearing with the Customs Service.
(c) The Secretary may prescribe by regulation reasonable fees for issuing, renewing, or replacing a pleasure vessel license, or for providing any other service related to a pleasure vessel license. The fees shall be based on the costs of the service provided.
Other statutory sections provide for licenses to be granted vessels engaged in the coastwise trade, 46 U.S.C.A. § 12106 (formerly 46 U.S.C. § 65i) and the fisheries, 46 U.S.C.A. § 12108 (formerly 46 U.S.C. § 65k). In addition to a license, vessels in the latter two categories must have a registry authorizing their use in the coastwise or fisheries trade. There is no registry for pleasure vessels.
The legal effect of a license (or documentation) alone is explained as follows:
§ 12104. Effect of documentation
A certificate of documentation is—
(1) conclusive evidence of nationality for international purposes, but not in a proceeding conducted under the laws of the United States;
(2) except for a pleasure vessel license, conclusive evidence of qualification to be employed in a specified trade; and
(3) not conclusive evidence of ownership in a proceeding in which ownership is in issue.
46 U.S.C.A. § 12104 (formerly 46 U.S.C. § 65g) (emphasis added).
It is evident from examination of the various federal laws related to vessels and shipping, many of which were revised and consolidated in 1983 into new Title 46 of the United States Code, that no provision explicitly preempts state regulation or licensing of pleasure vessels. It is of some interest and no small significance that a provision in the same title does provide for federal preemption of state and local laws or regulations in the area of equipment performance and safety standards. 46 U.S.C.A. § 4306 (formerly 46 U.S.C. § 1459). While the absence of an explicit preemption provision as to pleasure vessel licenses is not conclusive, it is relevant that when Congress recently carefully reviewed the series of laws related to shipping, it chose not to include a provision expressing its intent to make federal licenses preemptive.
As the Supreme Court has observed recently, absent explicit preemptive language, state or municipal legislation can nonetheless be preempted where Congress has shown an intent to occupy the field, or, in the absence of such a showing of intent, where the two measures conflict. Silkwood v. Kerr-McGee Corp., — U.S.-, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984); Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983).
Turning then to the first inquiry as to Congressional intent, it is well established that “we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). In determining whether Congress had the “clear and manifest purpose” of occupying the field of regulation, we first examine the statutory language.
Appellants concede that there is no federal compulsion to obtain a federal license for a pleasure vessel. At the owner’s option, a boat may navigate with either a federal or state license. The reasons why pleasure vessels obtain federal licenses are unrelated to such lofty federal purposes as free passage along the navigable waters. They are, on the contrary, related to the financial transaction between the vessel’s owner and mortgagee. Because a vessel must be federally licensed to be granted a preferred ship mortgage under the Ship Mortgage Act, 46 U.S.C. §§ 911 et seq., owners ordinarily obtain federal licenses to satisfy mortgagees’ requirements. See generally, G. Gilmore & C. Black, The Law of Admiralty, 695, 702-06 (2d. ed. 1975). Since appellants would have no preemption argument if the vessels had state licenses, which they are free to obtain, it is illogical to conclude that Congress intended to preempt local regulation merely by making a federal license available.
Furthermore, there is no legislative history of the licensing statutes to which appellants have referred us or which we have found containing any statement of an intent to supersede state regulation. In this respect, this case differs materially from Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1972), where the Court held that the State of Washington’s ban on large tankers in Puget Sound was preempted by federal legislation. In that case, the claim of preemption was supported by a statement in the legislative history of the preempting federal legislation, the Ports and Waterways Safety Act (PWSA), that state regulation of size and safety requirements for oil tankers “is not contemplated,” see id. at 174, 98 S.Ct. at 1003. Furthermore, the Ray Court was concerned about maintaining uniform international standards and the need to accommodate foreign vessels, see id. at 167-68, 98 S.Ct. at 999, 1000, an issue conspicuously absent here. The PWSA patently does not preempt local regulation for environmental goals. See Chevron U.S.A. v. Hammond, 726 F.2d 483 (9th Cir.1984).
As authority for their preemption claim, the appellants rely primarily on cases involving commercial vessels. First among these is Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824), holding that a state grant of a monopoly to a steamboat line was preempted by the federal Enrollment and Licensing Act. In Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960), upon which the appellants also rely, the Court held that local air pollution regulations were not preempted by the federal licensing provisions but confirmed in dictum that “[a] state may not exclude from its waters a ship operating under a federal license.” Id. at 447, 80 S.Ct. at 818. Finally, in Douglas v. Seacoast Products, Inc., 431 U.S. 265, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977), the Court invalidated a Virginia statute barring foreign corporations from obtaining commercial fishing licenses in Virginia and barring nonresidents of Virginia from catching menhaden in the Virginia portion of the Chesapeake Bay. After an extensive discussion of Gibbons, the Douglas Court concluded that a license not only establishes the vessels’ nationality but “ ‘implies, unequivocally, an authority to licensed vessels to carry on’ the activity for which they are licensed.” Id. at 280, 97 S.Ct. at 1749 (quoting Gibbons, 22 U.S. (9 Wheat.) at 212).
We find these cases inapposite, however, because they are based in the commerce power. As the Douglas Court explained, Gibbons’ historic importance lies in its discussion of the commerce power, 431 U.S. at 275, 97 S.Ct. at 1746; the Gibbons Court concluded that “it seems very clear, that the whole act on the subject of the coasting trade, according to those principles which govern the construction of statutes, implies, unequivocally, an authority to licensed vessels to carry on the coasting trade.” 22 U.S. (9 Wheat.) at 212 (emphasis added). The Douglas Court applied the same rationale to fishing licenses:
[T]here can be no question today that [power under the Commerce Clause] exists where there is some effect on interstate commerce. The movement of vessels from one State to another in search of fish, and back again to processing plants, is certainly activity which Congress could conclude affects interstate commerce. Accordingly, we hold that, at the least, when Congress re-enacted the license form in 1936, using language which, according to Gibbons, gave licensees “all the right which the grantor can transfer,” it necessarily extended the license to cover the taking of fish in state waters, subject to valid state conservation regulations.
431 U.S. at 281-82, 97 S.Ct. at 1750 (footnotes and citations omitted).
In Gibbons and Douglas, then, the Court vindicated the federal interest facilitating interstate commerce. The same congressional purpose, even if it was not clear at the time of the Gibbons decision, has since been ratified by the re-enactment of substantially the same provisions of the licensing statute. See Douglas, 431 U.S. at 279, 97 S.Ct. at 1748. But as section 12104 makes clear, the policy has not beep extended to pleasure vessels.
The statute clearly distinguishes between pleasure vessels and commercial vessels. For the latter it provides registry “authorizing the vessel to be employed in the coastwise trade, the Great Lakes trade, or the fisheries, as the case may be,” 46 U.S.C.A. § 12105; for the former there is no reference to any “authority”. For pleasure vessels, as section 12104 makes explicit, Congress did not authorize any particular activity but simply provided a means of establishing the vessel’s nationality.
Since pleasure vessels may carry state rather than federal licenses, it is apparent that the federal license is not required to authorize a pleasure vessel to sail on navigable waters in the United States. However, the absence of a federal license would not open the door to state power to proscribe such navigation, because it is well settled that even in the absence of a congressional exercise of power under the Commerce Clause, that clause “prevents the States from erecting barriers to the free flow of interstate commerce.” Raymond Motors Transportation Inc. v. Rice, 434 U.S. 429, 440, 98 S.Ct. 787, 793, 54 L.Ed.2d 664 (1978). In any event, the Bass River Township ordinance is not interpreted by the township as prohibiting the passage of floating homes in township waters, and that is not the use intended by appellants. We thus conclude that Gibbons and its progeny are inapposite and that Congress did not intend its licensing legislation to preempt local regulation of pleasure vessels, including prohibition of specified types of vessels, in pursuit of legitimate local goals.
Since we find no manifest intent by Congress to displace local legislation, we must, under the two-tier preemption analysis of Silkwood v. Kerr-McGee, — U.S. -, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984), look to see whether there is a conflict between the two measures in question. The local law will be invalidated if compliance with both is impossible or if the local legislation presents an obstacle to the accomplishment of the full purposes of the federal legislation. See also Chevron U.S.A. v. Hammond, 726 F.2d at 486.
Our inquiry will be brief, for we find no basis for claiming such conflict. First, compliance presents no problem because there is no requirement that an owner obtain a federal license. Second, as we stated above, the purpose.of the licensing provision for pleasure boats is limited to identification of the vessel by nationality — a purpose in no way thwarted by Ordinance 83-1. We thus reject appellants’ claim of preemption based on the federal shipping license statute.
B.
Federal Water Pollution Control Act
The appellants’ claim that Ordinance 83-1 is preempted by regulation of vessel waste discharges in the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (1982) suffers in the first instance from the fact that the ordinance does not on its face purport to regulate or even prohibit discharge of gray water. Thus appellants’ preemption claim as to water pollution must be based either on the fact that one of the purposes underlying the ordinance was concern about gray water discharge that would emanate from floating homes or on their argument that “the failure of the Congress or the [United States Coast Guard] to preclude gray water discharge in coastal waters from commercial or pleasure vessels can only be construed as an affirmative ruling that such discharge may continue.” Appellants’ Brief at 38. These claims are too farfetched to merit serious consideration. It is untenable that Congress by imposing some pollution controls intended to compel the states and local communities to permit the mooring of floating homes, even though there were other legitimate reasons unrelated to pollution for the local decision to exclude such homes. Surely the fact that Congress has authorized regulation of pollution from factories does not mean that it has so preempted the field that municipalities must henceforth permit factory construction in hitherto residential areas.
Even were the ordinance to be considered an antipollution regulation, appellants’ preemption claim must fail. The district court found that the appellants’ contention is answered by the federal statute itself. App. at 60a-63a. We agree. Section 1370 provides:
Except as expressly provided in this chapter, nothing in this chapter shall (1) preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution; except that if an effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance is in effect under this chapter, such State or political subdivision or interstate agency may not adopt or enforce any effluent limitation ... which is less stringent than the effluent limitation ... under this chapter; or (2) be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.
33 U.S.C. § 1370. This clearly shows Congress’ intent not to preempt state antipollution efforts. While the FWPCA and its amending statutes were drawn as a strict and comprehensive scheme, see generally, Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), Congress was motivated primarily by the ineffectiveness of state controls. Congress nonetheless envisioned a joint federal-state effort. According to the statement of purpose in 33 U.S.C. § 1251(b), “[i]t is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.” See also Pacific Legal Foundation v. Costle, 586 F.2d 650, 657 (9th Cir.1978), rev’d on other grounds, 445 U.S. 198, 100 S.Ct. 1095, 63 L.Ed.2d 329 (1980).
The courts have held, apparently without exception, that the Act does not preempt state remedies but vests the states with authority to impose controls more stringent than those required by the federal scheme. E. g., Chevron, U.S.A. v. Hammond, 726 F.2d 483 (9th Cir.1984) (state prohibition of discharge of oil-polluted ballast); Menzel v. County Utilities Corp., 712 F.2d 91, 93 n. 3 (4th Cir.1983) (sewage treatment regulations); Pennsylvania Coal Mining Association v. Watt, 562 F.Supp. 741, 746-47 (M.D.Pa.1983) (standards for surface mining effluents). Furthermore, the purposes of the federal Act and of Ordinance 83-1 are consistent. See Lake Carriers’ Association v. Kelley, 527 F.Supp. 1114, 1122 (E.D.Mich.1981) (three-judge court), aff'd without opinion, 456 U.S. 985, 102 S.Ct. 2264, 73 L.Ed.2d 1280 (1982). Thus we find little doubt about the policy evinced by section 1370, and no merit in the appellants’ contention that “Congress has left no room for state supplementation.” Brief of Appellants at 15.
Nor do we find any conflict in the operation of the two statutes. As with the licensing provisions, there is no difficulty in complying with both section 1322 and Ordinance 83-1. We also find no way, obviously, in which Ordinance 83-1 hinders attainment of the FWPCA’s goals. The two measures do not regulate the same subject matter. Except for the fact that both seek to alleviate water pollution (and the Bass River ordinance has the additional purposes of preventing fire, traffic and public safety hazards), the statutes are not related. Thus we also reject appellants’ preemption argument insofar as it relies on the Federal Water Pollution Control Act.
III.
DUE PROCESS AND EQUAL PROTECTION
Since Ordinance 83-1 is not preempted by federal legislation, it may be treated as zoning legislation and evaluated like any other exercise of the police power. The appellants have presented due process and equal protection challenges to the ordinance, but these were heard at trial and considered thoroughly by the district court. Judge Bissell found the ordinance to be a reasonable exercise of the police power, rationally related to the legitimate state goals of minimizing ecological damage and fire hazards. We adopt the reasoning in his published opinion, 573 F.Supp. 205, as the appellants have not presented any persuasive challenge to his conclusion that the ordinance had rational bases.
IV.
CONCLUSION
We conclude that the township’s prohibition of floating homes is not preempted by the federal vessel licensing or water pollution statutes, and that it is a valid exercise of the police power. The judgment of the district court will be affirmed.
. The ordinance also provides that "[n]o marina shall use or permit to be used more than 5% of the total number of its approved boat slips or moorage sites for houseboats." Ordinance 83-1, Section 11(d). That subsection has not been challenged in this litigation, however.
. The parties agree that appellants’ boats are "vessels” for most purposes, as the district court acknowledged in its pretrial opinion. See App. at 56a. However, the boats’ status as vessels is irrelevant except to establish the applicability of the licensing statutes.
. To be eligible for documentation, the vessel must be at least 5 net tons and owned by a United States citizen. 46 U.S.C.A. § 12102 (1983) (formerly 46 U.S.C. § 65b). The floating homes in question apparently would meet these criteria.
. We need not consider in this case the extent to which a local ordinance could constitutionally be applied to ships navigating in interstate waters within the state or local boundaries. Cf. American Trucking Associations, Inc. v. Larson, 683 F.2d 787 (3d Cir.), cert. denied, 459 U.S. 1036, 103 S.Ct. 448, 74 L.Ed.2d 603 (1982). In both Gibbons and Douglas, the Court stressed the discriminatory nature of the state statutes in favoring citizens over noncitizens. Unlike those statutes, Ordinance 83-1 is evenhanded and does not discriminate against foreign vessels.
. Read literally, the ordinance might be read as prohibiting even the temporary mooring of a floating home that is moving from one site to another. The township concedes that it may not prohibit such a temporary mooring, and argues that the ordinance, when read together with the definition of a floating home as a "permanent dwelling unit” and in its context as a zoning measure, should not be so read. Without ruling on this construction, we note the district court’s finding that the floating homes that are the subject of this litigation are “designed primarily for homes for dockside use.” 573 F.Supp. at 206. Our ruling is thus confined to the factual predicate before us.
. Appellants’ contention that while the township could regulate their vessels in any reasonable manner it cannot exclude them entirely because the boats carry federal licenses and are subject to federal controls has been rejected by the Supreme Court. All zoning is by definition exclusionary. The Supreme Court established in Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), that a municipality may exclude certain types of structures altogether for traditional police power goals. It is not the stringency of the local restriction but the purpose of the federal legislation that is determinative. See Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm’n, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). We recognize that under some circumstances the exclusion of ships or vessels would be so "clearly arbitrary and unreasonable” that it has no "substantial relation to the public health, safety, morals or general welfare.” Euclid v. Ambler Realty Co., 272 U.S. at 395, 47 S.Ct. at 121. However, this record does not establish either the arbitrariness or unreasonableness that breaches the standard announced in Euclid. See Part III infra.
. Section 1322 of the Federal Water Pollution Control Act, governing marine sanitation devices, requires on-board treatment of sewage but not of gray water (except in the Great Lakes). 33 U.S.C. § 1322. Section 1322(f)(1) explicitly preempts state legislation "with respect to the design, manufacture, or installation or use of any marine sanitation device,” but the statute makes no reference to other kinds of pollution-control measures.
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:
|
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".
WORKINGMEN’S LOAN ASS’N v. UNITED STATES.
No. 3939.
Circuit Court of Appeals, First Circuit.
April 18, 1944.
Jackson R. Collins, of New York City (Edmund Burke and Fíale & Dorr, all of Boston, Mass., of counsel), for appellant.
Homer R. Miller, Sp. Asst, to Atty. Gen. Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, A. F. Prescott, and Roland A. Cormier, Sp. Assts. to Atty. Gen., and Edmund J. Brandon, U. S. Atty., and George F. Garrity, Asst. U. S. Atty., both of Boston, Mass., for appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAGRUDER, Circuit Judge.
Appellant taxpayer was incorporated in 1888 by special act of the Massachusetts legislature for the purpose of lending money with or without security, and is presently qualified and licensed under the Massachusetts Small Loan Act, Mass.G.L. (1932) c. 140, §§ 96-114. It sued in the court below to recover back the amount paid for the year 1937 as personal holding company surtax imposed under § 351 of the Revenue Act of 1936, 49 Stat. 1648, as amended by § 1 of the Revenue Act of 1937, 50 Stat. 813, 26 U.S.C.A. Int.Rev. Acts, page 936.
Admittedly, the taxpayer falls within the statutory definition of the term “personal holding company” if at least 80% of its gross income for the taxable year consisted of “interest” within the meaning of § 353 and of the applicable regulation. At the trial the taxpayer sought to establish that over 20% of its gross income consisted of charges for services rendered to borrowers which were properly separable from “interest” charges for the use of money lent. The District Court gave judgment for the defendant, accepting the government’s contention that the case on its facts was controlled by our decision in Noteman v. Welch, 1 Cir., 1939, 108 F.2d 206.
We think that the facts presented in the present record are significantly different from the facts of the Noteman case, and that the latter case is not controlling here, though some of the- language in our Note-man opinion may have been misleading to the District Court.
In Noteman v. Welch we pointed out that the contracts, of loan did not assign any specific portion of the payments made by borrowers to particular charges properly separable from interest. In that case the lender made a blanket charge of 3% per month upon unpaid balances of principal, the promissory notes executed by the borrowers reciting that of this charge “approximately one per cent is for interest; and approximately two per cent is for expenses. * * * ” The gross income of the taxpayer consisted entirely of payments received from borrowers. The taxpayer had the burden of establishing that over 20% of such payments was for something other than “interest.” In support of the recital on the promissory notes that the borrowers were being charged approximately 1% per month for “interest” and approximately 2% per month for “expenses,” the taxpayer introduced in evidence its corporation income tax return for the taxable year showing $104,514 as its gross income from payments by borrowers, and total deductions for expenses in the amount of $61,808.50. The latter sum was the whole amount of the lender’s operating and overhead expenses in running its business; obviously such a composite item could not be claimed as charges for services to borrowers in addition to the charge for the use of borrowed money. We said (108 F.2d at page 213): “A borrower has no interest in the rent which the finance company pays for its offices, in the cost of its office supplies, in the management fees which it pays to an affiliate, in the salaries of its employees, in the cost of its advertising, or in its losses for bad debts, except as those operating expenses require the finance company to charge the borrower more for the use of the money borrowed.” We proceeded to examine the taxpayer’s breakdown of the expense items and concluded that it was impossible, on the record before us, to allocate any definite portion of the same to charges for services rendered to borrowers properly separable from interest. For instance, we pointed out that the item claimed as expenses for “Investigation of Borrower and Security” represented “the expense of investigating all applicants, though on the average loans are made only to four out of seven investigated. Thus, the actual borrowers bear the overhead expense of investigating rejected applicants. So, the expense of investigating security is spread over all borrowers, including those who borrow without security.” Again, we pointed out that the sums allocatéd for expenses of pursuing delinquent debtors, like losses for bad debts, “obviously do not represent services or expenses in connection with loans to borrowers who are not delinquent; yet they are charged to all borrowers in the undifferentiated item of 2 per cent a month ‘for expenses’. ”
Our holding in the Noteman case was that the taxpayer had failed to sustain the burden of proving that over 20%' of its gross income was derived from sources other than interest. We recognized, however, that charges made by lenders in connection with making loans are not necessarily all “interest” within the meaning of § 351, and that .the loan contract may properly call for the rendition of certain specified services by the lender for which a separate charge is to be made in addition to interest.
It is of course true that a borrower may have costs in connection with procuring a loan over and above the interest charge for the use of borrowed money. He may, for example, have to pay the expense of procuring a credit rating in a mercantile agency, or the fee of a certified public accountant for preparing a balance sheet, or an appraiser’s fee for appraising property which he offers as security, or the fee of a lawyer for searching a title. In the case of the small individual borrower who applies to a personal finance company for a loan, services of this nature, for which the borrower would otherwise have to pay a third person, are not uncommonly rendered by the finance company for a separate charge in addition to interest. This is well recognized in cases applying the usury statutes. See 21 A.L.R. 871; 63 A.L.R. 836; 105 A.L.R. 810; Am. L. Inst. Restatement of Contracts, § 533. Such separate charges for services actually rendered are legitimate, unless excessive in amount and designed as a cloak for obtaining interest at a higher rate than that permitted by law. See Collins, Evasion and Avoidance of Usury Laws (1940) 8 Law and Contemporary Problems 54.
We now come to the facts in the case at bar. The evidence was all stipulated. The relevant portions of the stipulation are as follows:
“5. That if a witness by the name of E. T. Felter, who was assistant treasurer of the Workingmen’s Loan Association, were produced by the plaintiff and gave evidence, he would testify in substance according to the contents of an affidavit made by the said E. T. Felter, copy of which is attached hereto, hereby made a part hereof, and marked Exhibit 4.
“6. That the initial charges for investigation, identification, inspection and appraisal as set forth in the affidavit of Mr. Felter are the customary and usual charges made by concerns engaged in business similar to that conducted by the plaintiff.
* * * * *
“13. That in 1937 the gross income of the plaintiff was $125,714.18. That of this amount $37,544.46 is from initial charges, the detail of which is set forth in Exhibit 4. Of the gross income $88,159.72 came from ‘interest.’ That the fees represented 29.88 per cent of the gross income of the plaintiff; that ‘interest’ represented only 70.12 per cent.
“14. That neither party is to be prejudiced by the use of the phrases ‘interest,’ ‘interest and charges,’ ‘interest and services,’ or similar phrases when used (a) in the body of the stipulation, (b) concerning the plaintiff’s books, records or activities, and (c) in the statements of counsel.”
The affidavit of E. T. Felter which was made part of the stipulation of facts was to the following effect, with reference to the manner in which the taxpayer conducted its business: In making loans and keeping i'ts books, the taxpayer has had the practice of separating what it regards as the interest charges from charges for sefvices to borrowers in investigating, identifying, inspecting and appraising the credit and security of the borrower. A so-called “initial charge” for these separate services is made known to the borrower before the loan is consummated and is collected in advance as a flat sum which does not vary with .the duration of the loan. These initial charges, as distinguished from interest, are adjusted to the nature of the loan. In the case of unsecured loans the borrower makes an initial payment of from $3 to $5, depending on the size of the loan, plus an additional sum equal to 2% of the face of the note. In the case of secured loans there is- an initial charge of $5, plus an additional charge varying between 2% and 7%, depending upon the type of security involved. The interest rate, as distinguished from the initial charge, is 1 % a month on the unpaid balance; this is the only charge mentioned in the form .of promissory note executed by borrowers from the taxpayer.
It is to be emphksized that these initial charges are adjusted to the amount and type of loan, secured or unsecured,- and are specifically allocated, by agreement with the borrower, to the expense of “investigation, identification, inspection and appraisal.” They are' “the customary and Usual charges made by concerns engaged in business similar to that conducted by the plaintiff.” They'are paid-in advance, and do not depend upon- the duration -of the loan, whereas in the Noteman case the blanket charge- for “expenses” was fixed at ' 2% á ■ month on the unpaid balances and fan along during the whole life of the loan. There- was no suggestion that the present taxpayer’s charges for specific initial services-were excessive and a mere-'device for concealing an. exaction not permitted by law. Indeed, as indicated in the 'Noteman case, the personal -finance company ■ in Massachusetts gains no particular advantage by segregating'.the charges for initial ■services and the charges for interest, because the Massáchusétts ;.S'máll Loaii Act authorizes the Commissioner of Banks to prescribe an over-all charge “for interest and expenses” not to exceed 3% a month, to be paid by the borrower; beyond this “No charge, bonus, fee, expense or demand of any nature whatsoever” may be exacted from the borrower in connection with the loan. As a matter of fact, the aggregate charges made by the present taxpayer appear to be substantially less than the maximum allowed-by law.
Inview of the stipulated facts, it is our opinion that the taxpayer made out its case for a refund.
Thejudgment of the District Court is vacated, and the case is remanded to that court for the entry of judgment for the plaintiff in the appropriate amount.
“Sec. 351. Surtax on Personal Holding Companies
“There shall be levied, collected, and paid, for each taxable year (in addition to the taxes imposed by Title I), upon the undistributed adjusted net income of every personal holding company a surtax equal to the sum of the following:
“(1) 65 per centum of the amount thereof not in excess of $2,000; plus
“(2) 75 per centum of the amount thereof in excess of $2,000.”
“Sec. 352. Definition of Personal Holding Company
“(a) General rule. For the purposes of this title and of Title I the term ‘personal holding company’ means any corporation if—
“(1) Gross income requirement. At least 80 per centum of its gross income for the taxable year is personal holding company income as defined in section 353; but if the corporation is a personal holding company with respect to any taxable year, then, for each subsequent taxable year, the minimum percentage shall be 70 per centum in lieu of-80 per centum, until a taxable year during the whole of the last half of which the stock ownership required by paragraph (2) does not exist, or until the expiration of three consecutive taxable years in each of which less than 70 per centum of the gross income is personal holding company income; and
“(a) Stock ownership requirement. At any time during the last half of the taxable year more than 50 per centum in value of its outstanding stock is owned, directly or indirectly, by or for not more than five individuals.
“(b) Exceptions. The term ‘personal holding company’ does not include a corporation exempt from taxation under section 101, a bank as defined in section 104, a life insurance company, a surety company, or except with respect to a taxable year ending on or before the date of the enactment of the Revenue Act of 1937, a foreign personal holding company as defined in section 331.”
“Sec. 353. Personal Holding Company Income
“For the purposes of this title the term ‘personal holding company income’ means the portion of the gross income which consists of:
“(a) Dividends, interest, royalties (other than mineral, oil, or gas royalties), annuities.”
Treasury Regulations 94, promulgated under the Revenue Act of 1936:
“Art. 351-2. Classification of a Personal Holding Company.— * * *
“(3) Interest.—The term ‘interest’ means any amounts, includible in gross income under Title I, received for the use of money loaned.”
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:
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songer_appnatpr
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1
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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.
GRANITO v. UNITED STATES.
No. 10564.
United States Court of Appeals District of Columbia Circuit.
Argued June 19, 1950.
Decided July 3, 1950.
Mr. Hans A. Nathan, Washington, D. C., for appellant.
Mr. Richard M. Roberts, Asst. U. S. Atty, Washington, D. C., with whom Messrs. George Morris Fay, U. S. Atty, Harold H. Bacon and Joseph M. Howard, Asst. U. S. Attys, all of Washington, D. C., were on the brief, for appellee.
Before CLARK, PROCTOR, and BAZELON, Circuit Judges.
PER CURIAM.
We find no error in the record on this appeal. The credibility of the complaining witness’ story of how appellant unlawfully came into possession of his automobile was a matter peculiarly within the province of the jury. Likewise the court’s instructions were in all respects adequate for the purposes of this case.
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_appel1_1_3
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G
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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 "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.
COMMONWEALTH BANK et al. v. UNITED STATES.
No. 8312.
Circuit Court of Appeals, Sixth Circuit.
Nov. 13, 1940.
Charles F. Meyler and Leo F. Covey, both of Detroit, Mich.-, for appellants.
Leon F. Cooper, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gem., Sewall Key and Leon F. Cooper, Sp. Assts. to Atty. Gen., and John C. Lehr and T. Thomas Smith, both of Detroit, Mich., on the brief), for appellee.
Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.
SIMONS, Circuit Judge.
The suit was brought by the United States to enforce liability against the appellant bank and two of its officers, for failure to surrender property or property rights alleged to be in the possession of the bank, belonging to a delinquent taxpayer, and subject to distraint under § 1114(e) of the Revenue Act of 1926, 26 U.S.C.A. Int.Rev.Acts, page 325. The bank defended upon the ground that it possessed no property of the taxpayer and if so had rights therein superior to the claims of the government, and with its codefendants appeals from a judgment in favor of the United States.
The delinquent taxpayer is John J. Hoefle (see Hoefle v. Commissioner, 6 Cir., 114 F.2d-713, decided September 16, 1940), who for several years carried a substantial commercial checking account with the bank. On October 31, 1933, affidavits were served upon the bank, sworn to by Wm. C. Rands, of Detroit, setting forth that his name, and the name of a corporation of which he was president, had been forged upon dividend checks issued by various corporations in which Rands, or Rands, Inc., was the payee, aggregating upwards of $30,000, and demanding payment from the bank, and all other responsible parties, for the amount of the checks. Photostatic copies of the allegedly forged checks, filed with the affidavits, disclosed that they were endorsed in the name of the payee, followed by the name “John J. Hoefle.” An investigation made by the bank showed that the checks had been deposited by Hoefle, credited to his account, and the proceeds paid out upon his signature. The deposited checks had been collected from drawee banks, through various other banks and clearing houses. At the time of the investigation, Hoefle had a balance in his checking account of $552.64, but on the 26th of October, he had deposited an additional sum of $10,310.73, against which cashier’s checks in like amount, payable to the Collector of Internal Revenue at Detroit, had been delivered to him. Inquiry at the Collector’s office brought the information that the cashier’s checks had not been delivered to the Collector, and there was no record there of any sum owing by Hoefle for taxes. On November 2, Hoefle returned the cashier’s checks to the bank with the request that they be canceled and new checks, in the same aggregate amount, issued, one of them payable to Hoefle himself, and others to the Collector, whereupon the bank informed Hoefle of Rands’ claim of forgery and advised him that all his funds would be held by the bank as an off-set against his liability to it.
On the 10th of November, Hoefle presented at the bank a general assignment of all his right to money on deposit, and all other property in the possession of the bank, to one Schaeffer. He was advised that the assignment would not be honored until the bank’s liabilities, arising out of Hoefle’s deposits, had been determined and satisfied. On December 11th, the Collector at Detroit made a demand upon Hoefle for the payment of delinquent taxes in excess of $50,000, in pursuance of certificates of assessment received from Washington. Contemporaneously the Collector filed with the Register of Deeds for Wayne County, Michigan, and with the Clerk of the United States District Court for the Eastern District of Michigan, notice of a tax lien claimed by the government, against all property and property rights belonging to Hoefle. Warrants of distraint followed on December 21, 1933, and a notice of levy, together with copies of the distraint warrants and lien notice, was served upon the bank together with a demand that it surrender all money, property, and property, rights belonging to Hoefle. The bank refused, advising the Collector of the possibility that it might be held liable for alleged forgeries of checks deposited by Hoefle, and that no funds belonging to him would be surrendered until its liability had been determined.
The government began its action on February 6, 1936. In the meantime, numerous claims had been filed against the bank by banks which had endorsed the allegedly forged checks in process of collection, and Rands had brought suits against the drawers of the checks, including one against a Canadian Corporation, in the Supreme Court of Ontario. All of the defendants called upon the bank to defend. Conceiving that liability would be asserted against it in the event that Rands should prevail, the bank undertook defense and.expended substantial sums in investigation, retainer of attorneys, and preparation for trial.' The first case to reach trial was that in Ontario, where the bank successfully defended on a by-law of the dividend-paying corporation, which constituted the issuance and mailing of a dividend check payment of its dividend obligation. The Ontario judgment, with other circumstances, led to a settlement between Rands, Hoefle, and the appellant bank, whereby the liability of each of the parties, growing out of the alleged forgeries, was discharged. The settlement was consummated in May, 1937, and by it the bank’s loss first became fixed and determinable.
Schaeffer was permitted to intervene in the proceedings below, to plead his assignment of Hoefle’s claim against the bank, and to pray for judgment against it. The bank responded with a denial of the intervener’s rights under the assignment. Upon trial, appellants and appellee offered to waive a jury, but the intervener declined. At the close of all the proofs, the court, of its own motion and over the objections of all parties, dismissed the intervener from the proceeding, and, acting upon the earlier waiver of the remaining parties, dismissed the jury, took the cause under advisement, and later, upon announcing findings of fact and conclusions of law, entered judgment for the government for an amount equal to Hoefle’s deposit balance including the impounded cashier’s checks.
Section 1114(e) of the Revenue Act of 1926, provides that any person in possession of property or rights to property subject to distraint, upon which a levy has been made, shall, upon demand by the Collector, or his deputy, surrender such property or rights unless they were subject to an attachment or execution under judicial process, and that any person who fails ,to do so shall be liable to the United States in a sum equal to the value of the property or rights not surrendered, up to the amount of the taxes for the collection of which the levy was made.
The first contention of the appellant is that there was no valid levy against Hoefle, because ten days had not elapsed between the date of notice and demand and the levy, and that the levy was, therefore, premature and void. We need give little consideration to this contention since the appellant is not the taxpayer and the latter is not here to complain. United States v. First Capital Nat. Bank, 8 Cir., 89 F. 2d 116; United States v. American Exchange Irving Trust Co., D.C.N.Y., 43 F. 2d 829. Were the controversy one that involved, primarily, priority of liens, inquiry might be made as to their validity, though this we do not decide. There is no issue here, however, of priority. If the bank has a lien upon funds owing by it to Hoefle, its lien is clearly prior to that of the government.
That the appellant has been in doubt as to the legal principle to be invoked again.st the imposition of the liability asserted by the government, is obvious. At the outset it claimed a lien upon funds ostensibly belonging to Hoefle. Concluding, however, that there were no specific funds in its possession belonging to Hoefle, .since the relationship of a bank to its depositor is merely that of a creditor. Keyes v. Paducah & I. R. Co., 6 Cir., 61 F.2d 611, 86 A.L.R. 203, and Hoefle’s deposit was not ear-marked, or set apart from other funds of the bank, it sensed anomaly in claiming a lien upon its own funds. It now takes the position that it was not in possession of property or rights of property belonging to the debtor, because its indebtedness to Hoefle had become subject.to the terms of an agreement it had made with Hoefle, prior to the levy, whereby the bank acquired the right to indemnify itself for any expense incurred by it as a result of such claims, the consideration for the agreement being the bank’s undertaking to defend against them and to pay over to Hoefle any balance remaining, with interest thereon at savings bank rates. This necessitates some amplification of the facts of record.
Appellant’s counsel, Meyler, gave evidence that, following Hoefle’s first call upon the bank, and before the date of the tax levy, Hoefle had had an interview with him during which an agreement had been reached that the bank might hold any funds to which Hoefle was entitled, as indemnity against any loss or expense which it might incur by reason of the alleged forgeries, and that if Hoefle would assist and cooperate in the defense of claims against the bank, any part of the fund eventually determined to be his would carry savings bank interest, that the bank carried put this agreement, was successful in resisting judgments that ultimately might have imposed a liability upon Hoefle or the bank, and incurred thereby an expense in excess of $7,000. It is this sum which it seeks to set off against any moneys owing to Hoefle.
It is undisputed that the bank incurred no liability by reason of its endorsement and collection of the allegedly forged dividend checks. Its claim of right to be compensated for the expense incurred in defending suits, including those to which it was not itself a party, rests entirely upon the oral agreement claimed to have been made with Hoefle. The court below found the terms of the alleged agreement to be vague and uncertain. Meyler’s testimony is uncorroborated, and Hoefle was not called by either side as a witness. The court assumed that if he had been, he would have testified adversely to the bank’s contention and that there was no such oral agreement. The presumption is unwarranted. Meyler is a practitioner in good standing in this circuit; has been for many years attorney for the bank; and Hoefle’s interests were adverse. No inference may be invoked that Meyler’s testimony was either deliberately, or, through faulty memory, inaccurate. We have said, upon another occasion, Voltz v. Treadway & Marlatt, 6 Cir., 59 F.2d 643, 644, “While the testimony of interested parties to an alleged parol assignment should undoubtedly be received with some caution, In re Macauley, D.C.Mich., 158 F. 322, yet where such parol assignment is established by testimony which is uncontradicted and credible, by witnesses who are not impeached, and there are no circumstances which cast doubt upon their truthfulness, it will be upheld.”
But to accept the truth of Mr. Meyler’s testimony is not to determine the validity of the alleged parol agreement, or the definiteness of its terms. The court found them vague and uncertain, and so they appear to be. Undoubtedly, what the parties to the agreement had principally in mind, was a possible loss to the bank upon its endorsements. No loss was sustained. There are, moreover, circumstances which indicate that neither Hoefle nor the bank recognized any oral assignment to result from Mr. Meyler’s interview with Hoefle. The interview took place on or about November 6 or 8, 1933. Yet within a few days thereafter, Hoefle appeared at the bank with an assignment to Schaeffer, dated November 2, 1933. The bank, in refusing to recognize the assignment, asserted no right to retain the funds under any agreement made between Hoefle and Meyler. It made no entry upon its books indicating that the items were held as an indemnity, or pledge, to secure Hoefle’s possible liability to it. Throughout the controversy its ledger sheet, reflecting Hoefle’s account, showed a balance of $500, without notation that this sum was retained in pledge of any contingent liability. Likewise, is there no notation upon the cashier’s checks impounded, to indicate that they too were held as a pledge for security against loss or expense for defending suits. There is no charge against Hoefle’s account for sums expended in litigation or preparation for trial, and it must be presumed that such items were charged to general operating expenses. Nor was there credit to Hoefle for savings bank interest, in accordance with the terms of the agreement. While the bank’s defense against litigation, and Hoefle’s cooperation with it, is consistent with the terms of the agreement, the circumstances are equally consistent with the purpose of both to protect individual interests. The conclusion is inescapable that the bank either did not authorize or ratify Meyler’s agreement with Hoefle, or, having done so, repudiated it, and so also did Hoefle.
The Bank’s contention that there was error in dismissing Schaeffer as an intervener is of no avail to it. Schaeffer did not appeal and the bank’s answer to his intervening petition was a denial of Schaeffer’s rights under his assignment. There is ample basis in the record for a conclusion that the assignment was but a subterfuge designed to defeat the claim of the United States. The loan for which it stood as security was, in fact, a withdrawal of Hoefle’s own funds from an account carried in the name of Schaeffer, his brother-in-law. Whether the dismissal of the intervening petition is an adjudication of its invalidity, we do not undertake to decide. The court made an order preserving the evidence bearing upon the Schaeffer assignment, in the event that at another time, and in other litigation, its validity might come into question. This was for the protection of the bank.
Finally, it must be said that the terms of the statute, under which the tax levy was made, recognize no defense except where there is no property or property right of the taxpayer in the defendant’s possession, where the property or right is not subject to distraint, or is subject to an attachment or execution under some judicial process. The proceeding authorized is not an action in rem, nor is it a suit for the collection of a tax. It is a suit to enforce personal liability for failure to surrender property belonging to delinquent taxpayer.
The judgment below 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_counsel2
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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.
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
Bobby WILLIAMS, Plaintiff-Appellant, v. Larry BENNETT, et al., Defendants-Appellees.
No. 81-7037.
United States Court of Appeals, Eleventh Circuit.
Oct. 29, 1982.
Rehearing Denied Dec. 20, 1982.
Robert L. Wiggins, Charles M. Quinn, Bryan & Appell, Birmingham, Ala., Kelso Jones, Asst. Atty. Gen., Medical Services Administration, Montgomery, Ala., for plaintiff-appellant.
James R. Seale, Montgomery, Ala., for all defendants-appellees except Cook.
Stephen Glassroth, Montgomery, Ala. (Court Appointed), for Cook.
Before HILL and HATCHETT, Circuit Judges, and GOLDBERG, Senior Circuit Judge.
Honorable Irving L. Goldberg, U. S. Circuit Judge for the Fifth Circuit, sitting by designation.
JAMES C. HILL, Circuit Judge:
On January 10, 1978 in the Holman Prison in Atmore, Alabama, appellant Bobby Williams was assaulted by fellow inmate Larry Cook while Williams was sleeping in his dormitory bunk. Cook inflicted multiple stab wounds which rendered Williams a permanent quadriplegic. At the time of the incident, the dormitory housed medium security prisoners, and no prison guards were stationed either inside or outside the dormitory.
Williams filed a damage action in the district court under 42 U.S.C. §§ 1983,1985, and 1986 and the eighth and fourteenth amendments against the Alabama Board of Corrections and its members, the Board’s commissioner and deputy commissioner, the warden and deputy wardens of Holman Prison, and the captain and assistant captain of the guards at the prison, all in their official and individual capacities. Williams alleged that his personal injuries were the result of the deprivation of his right under the eighth amendment to be free from cruel and unusual punishment and of his right under the fourteenth amendment to be free from deprivation of life, liberty, and property without due process of law. The complaint also named Larry Cook as an individual defendant, alleging a state law assault and battery claim.
Prior to trial the district judge granted partial summary judgment in favor of the Alabama Board of Corrections and all other defendants, except Larry Cook, in their official capacities on the basis of their eleventh amendment immunity. Just after commencement of trial the state law claim against defendant Cook was dismissed for lack of subject matter jurisdiction. At the close of the evidence the court granted a directed verdict for the captain and assistant captain of the guards. A jury verdict was rendered in favor of the remaining defendants in their individual capacities and Williams appeals.
For the reasons developed below, we conclude that:
(1) The district court properly dismissed the proceedings against defendant Cook.
(2) The court properly held that, under the eleventh amendment, the Board of Corrections and other defendants, insofar as they were sued in their official capacities, were immune from damage liability.
(3) Prior litigation established that Williams was confined in violation of the eighth amendment and that his injuries, being the result of foreseeable peril, were at least concurrently caused by that wrongful deprivation of constitutional freedom.
(4) The injunction issued in the prior litigation is of no moment insofar as it anticipated an expected date of compliance. Although relevant to contempt proceedings, the time allowance in the injunction did not vary appellees’ duties under the Bill of Rights.
(5) The defense of good faith qualified immunity is not available to appellees because prior litigation put them on notice that the conditions of confinement at the prison were unconstitutional.
(6) In order to recover, however, Williams must prove that one or more of the individual defendants acted with such callous indifference to Williams’ safety as to amount to constitutional wrongdoing, and that such wrongdoing produced the constitutional deprivation. Evidence that an individual defendant had neither the authority nor the resources to prevent the deprivation is material to this issue.
(7) The district court improperly instructed the jury that the state could not be compelled to pay any part of a judgment in favor of Williams.
(8) Williams may not maintain a Bivins -type action under the eighth amendment in addition to his claims under section 1983.
(9) The direction of a verdict in favor of defendants Chancery and Raines is reversed. Their liability vel non should be reappraised in light of our conclusions as to the applicable principles.
I PROLOGUE
In order to appraise the legal setting in which the case was tried we must direct our attention to a prior class action under 42 U.S.C. § 1983 involving conditions in the Alabama Penal system. In Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), aff’d with modifications sub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977), rev’d in part sub nom. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 56 L.Ed.2d 1114 (1978), the district court held that living conditions in Alabama prisons, including exposure to the constant threat of violence from other inmates, constituted cruel and unusual punishment in violation of the eighth amendment. The court concluded that, by housing inmates “in virtually unguarded, overcrowded dormitories, with no realistic attempt... to separate violent, aggressive inmates from those who are passive or weak,” the Alabama prison system had failed to carry out its constitutional duty to provide inmates reasonable protection from the constant threat of violence. Id. at 329. Accordingly, the court entered injunctive relief against, inter alia, the commissioner, deputy commissioner, and members of the Board of Corrections in their individual and official capacities, “their agents, employees, successors in office and any other acting in concert with them.” Id. at 331. The decree directed that only minimum custody inmates be assigned to dormitories and that at least one guard be stationed inside and one guard outside the dormitories at all times. Id. at 333.
The district judge who entered the injunction in 1976 conducted hearings in September, 1978 to determine the extent of compliance with the Pugh order. The judge’s findings and conclusions therefore covered the conditions in the Alabama prisons at the time of the incident upon which the current action is based. Having reviewed the evidence of efforts toward compliance, the court held that “[t]he very fact of confinement in Alabama’s Penal System continues to contravene the Eighth and Fourteenth Amendment rights” of the inmates. Newman v. Alabama, 466 F.Supp. 628, 630 (M.D.Ala.1979). With respect to the state’s duty to provide inmates reasonable protection from violence, the court observed:
Defendants admit noncompliance with the requirement that guards be stationed in the living areas, including dormitories. The dormitories, they say, are too dangerous for the guards to enter. That fear is well taken. The number of reported incidents of prosecutable crimes of violence shows a steady increase over the last four years....
The Board has not taken the first steps to curb the pattern of violence which makes a mockery of the Eighth Amendment’s protection against cruel and unusual punishment. The Board has deliberately ignored the requirement that guards be stationed in the dormitory units at night.
Id. at 632 (emphasis added).
II THE INSTITUTION EXITS
The Pugh litigation determined that the conditions of Williams’ confinement denied him the protection afforded prison inmates by the eighth amendment and that the cruel and unusual punishment thus inflicted was his constant exposure to the very sort of violence he experienced. The Alabama Penal System, as an institution, was being unconstitutionally operated. Williams attempted to sue the institution itself by naming as defendant the Board of Corrections and its officials and employees in their official capacities. If these defendants were proper parties for a damage suit, his task would have been far easier. However, on the basis of the eleventh amendment’s acknowledgement of sovereign immunity, the district court entered a partial summary judgment in favor of the Alabama Board of Corrections and its officials and employees insofar as they were sued in their official capacities. Williams now challenges the application of sovereign immunity on two grounds. Initially, he argues that the Board of Corrections should not be considered the “state” for eleventh amendment purposes. In the alternative, he argues that a recent Alabama statute should be construed as a partial abrogation of any immunity the Board may have enjoyed previously.
The eleventh amendment has evolved to stand for the proposition that an unconsenting state is immune from damage suits brought in federal court by its own citizens or by citizens of another state. Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 39 L.Ed.2d 358 (1979); Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). The amendment effectively bars such actions for monetary relief even when the state is not named as a party. If the judgment necessarily will be paid from the state treasury, and the state is the real party in interest, then the state may invoke its sovereign immunity. Id. 415 U.S. at 664, 94 S.Ct. at 1356; Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). Although Williams maintains that the Board of Corrections is amenable to suit because it is political subdivision operating independent of the state, his argument is precluded by the Supreme Court’s decision in Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 56 L.Ed.2d 1114 (1978). In Alabama v. Pugh, the Court concluded:
There can be no doubt, however, that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit.
438 U.S. at 782, 98 S.Ct. at 3057 (citation omitted).
Recognizing that the Board and its officials may invoke the eleventh amendment when sued in their official capacity, we turn now to plaintiff’s contention that the state has since elected to waive its constitutional immunity by consenting to such suits. In 1979, the Alabama legislature enacted a statute in which the state agreed to pay up to $100,000 for judgments awarded against officials and employees of the Board of Corrections. Ala.Code § 41-9-74 (1981 Supp.). Williams maintains that by enacting this statute the legislature intended to effectuate a limited waiver of eleventh amendment immunity. We disagree.
Waiver of a state’s eleventh amendment immunity can be found only when evidenced “by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” Edelman, 415 U.S. at 673, 94 S.Ct. at 1360 (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909).); accord Florida Department of Health & Rehabilitative Services v. Florida Nursing Home Association, 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981). In evaluating the statute for evidence of waiver, we therefore begin with an analysis of its language. The introductory paragraph of section 41-9-74 states that Alabama will pay final judgments awarded against Board officials in suits arising out of official acts “[a]s part of the consideration of the employment or appointment” of the individuals. Ala.Code § 41-9-74(a) (1981 Supp.). This language suggests that the statute was designed to be an employment benefit, analogous to liability insurance, for any Alabama correctional employee who may be sued individually for acts arising in the course of employment. Cf. Reeves v. City of Jackson, 608 F.2d 644, 654 n.6 (5th Cir. 1979) (a state municipality does not waive its immunity by purchasing liability insurance). Section 41-9-74 makes no mention of suits against the state or against the Board itself as an independent political body. Instead, the statute indicates that its indemnity provision runs to individuals by specifically listing those employees who may claim the benefit of its coverage. In addition, the provision that awards will be paid only to the extent that coverage is not provided by an insurance carrier suggests further that payments pursuant to the statute were intended to be nothing more than an insurance supplement for individuals, see Ala.Code § 41-9-47(a), and perhaps to afford some measure of relief to plaintiffs required to sue those who might otherwise be judgment proof individuals.
Williams relies most heavily on paragraph (c) of the statute by arguing that the legislature considered sovereign immunity, but decided to waive its protection insofar as a particular judgment did not exceed $100,000. This construction of the statute, however, ignores a clause which alters the meaning of paragraph (c). The relevant language reads as follows:
“Nothing in this section shall be deemed to waive the sovereign immunity of the state with respect to a claim covered under this section or to authorize the payment of any judgment or settlement against aforesaid commissioner, deputy commissioner, members of the board of corrections, officers, employees and agents, to the extent that the same exceeds the sum of $100,000.
Id. § 41-9-74(c) (emphasis added). We are not persuaded that this provision expresses the intent of the legislature to waive sovereign immunity; rather, the legislature appears to reaffirm Alabama’s sovereign immunity and simply to limit payments made pursuant to the statute to $100,000.
Our construction of section 41-9-74 is consistent with Alabama’s traditional reluctance to waive its sovereign immunity. For example, the Alabama Constitution unequivocally states “That the State of Alabama shall never be made a defendant in any court of law or equity.” Ala.Const. art. I, § 14. Moreover, the Alabama Supreme Court consistently maintains that “[sjince our Constitution unequivocally prohibits suits against the state, the legislature may not consent to such a suit.” Armory Commission v. Staudt, 388 So.2d 991, 992 (Ala.1980); accord Druid City Hospital Board v. Epperson, 378 So.2d 696, 697 (Ala.1979); Dunn Construction Co. v. Board of Adjustments, 234 Ala. 372, 175 So. 383 (1937). Because of Alabama’s unequivocal affirmation of sovereign immunity, and because section 41-9-74 fails to represent a clear expression of intent to waive that immunity in federal court, we hold that the Board may not be subject to suit; however, while its officials and/or employees may not be sued in their official capacities, they are, individually subject to suits for acts or omissions in connection with their official duties. The grant of partial summary judgment is affirmed.
Ill DEFENDANT COOK- EXITS
The district court dismissed the assault and battery claims against defendant Larry Cook for lack of subject matter jurisdiction. On appeal, Williams urges that Cook’s dismissal was improper because the court had pendent jurisdiction over these state law claims. We disagree.
A federal court may exercise pendent jurisdiction over state law claims by parties properly before it, provided the federal and state law claims derive from a common nucleus of operative fact and that adjudication of the state claim will not prove inconvenient or unfair to the litigants or unduly burden the proceedings. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Jackson v. Stinchcomb, 635 F.2d 462 (5th Cir. 1981); Silva v. Vowell, 621 F.2d 640 (5th Cir. 1980), cert. denied, 449 U.S. 1125, 101 S.Ct. 941, 67 L.Ed.2d 111 (1981). Implicit in the traditional concept of pendent jurisdiction is that the court already has jurisdiction over all the parties involved, whether because they are diverse or because a substantial federal claim has been asserted against the defendant. Here, however, Cook was not a diverse party. Nor was any substantial federal claim asserted against him. Because Cook is not a state official, he was not involved in the section 1983 claim. Moreover, Williams failed to proffer sufficient evidence to maintain that Cook and state correctional officials conspired to deprive Williams of his constitutional rights in violation of 42 U.S.C. § 1985(3) (1976). See Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Crowe v. Lucas, 595 F.2d 985 (5th Cir. 1979).
Accordingly, the only possible source of jurisdiction over the state law claim against Cook lies in the nascent concept of pendent party jurisdiction. Under this theory, a court in some limited circumstances may bring in “state” parties over which it could not otherwise exercise jurisdiction. See Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976); Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1377 n.7 (5th Cir. 1980); Boudreaux v. Puckett, 611 F.2d 1028, 1030-31 (5th Cir. 1980); see, e.g., Connecticut General Life Insurance Co. v. Craton, 405 F.2d 41 (5th Cir. 1968). The exercise of such pendent party jurisdiction turns on judicial economy considerations and whether “... Congress has expressly or impliedly negated the existence of jurisdiction of a pendent claim or party.” Boudreaux, 611 F.2d at 1031.
The exercise of pendent party jurisdiction already has been rejected in the context of diversity jurisdiction. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). Although we recognize that the policies supporting federal question jurisdiction differ from those supporting diversity jurisdiction and thus may compel a different approach to pendent party jurisdiction in federal question cases, see generally Note, A Closer Look at Pendent and Ancillary Jurisdiction: Toward a Theory of Incidental Jurisdiction, 95 Harv.L.Rev. 1935, 1942-43 (1982), we need not resolve the issue. The exercise of pendent jurisdiction is a discretionary decision reserved to the district court. See Jackson supra, 635 F.2d at 472-73; Gregory v. Mitchell, 634 F.2d 199, 202 (5th Cir. 1981). As such, the district court was in the best position to determine if joinder of the state law claim against Cook would interfere
with the disposition of Williams’ federal civil rights claim. We are not faced here with a case of a federal court accused of exercising jurisdiction beyond that authorized by Congress. Instead, we are presented with a case where a trial judge, acting within his discretion, chose not to exercise pendent party jurisdiction and deferred to state courts resolution of the state law claim of assault and battery. In light of the tenuous nature of pendent party jurisdiction and its emphasis on judicial economy, we conclude that the court acted within its discretion in dismissing defendant Cook.
IV THE CASE REMAINING
With Cook dismissed from the suit and the Alabama Prison System immune from damage liability, Williams is left with claims against the remaining defendants in their individual capacities. Because of the Pugh decision, proof of actionable wrongdoing by the prison system, in its corporate form, would appear to have been a straightforward matter. The case remaining against the individuals working in various capacities in the system, however, is far more complicated. Thus, before we evaluate the effect of Pugh on the remaining case, we find it important to focus on the nature of Williams’ prima facie case under 42 U.S.C. § 1983 for violation of his eighth amendment rights.
“In order to state a § 1983 cause of action against prison officials based on a constitutional deprivation resulting from cruel and unusual punishment, there must be at least some allegation of a conscious or callous indifference to a prisoner’s rights, thus raising the tort to constitutional stature.” Wright v. El Paso County Jail, 642 F.2d 134, 136 (5th Cir. 1981). Accord Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Woodall v. Foti, 648 F.2d 268, 272 (5th Cir. 1981) (per curiam). To establish a deprivation of his eighth amendment rights, Williams therefore must bear the burden of proving deliberate indifference on the part of each of the defendant officials to his need for reasonable protection from violence. Only this degree of disregard for a prisoner’s rights “can offend ‘evolving standards of decency’ in violation of the Eighth Amendment” and can separate official conduct that is actionable under section 1983 from simple negligence which is not actionable under section 1983. Estelle v. Gamble, 429 U.S. at 106, 97 S.Ct. at 292.
Section 1983 imposes additional proof requirements when that statute is used as the vehicle to vindicate substantive constitutional rights. The statute provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The italicized language plainly requires proof of an affirmative causal connection between the actions taken by a particular person “under color of state law” and the constitutional deprivation. See Monell v. Department of Social Services, 436 U.S. 658, 692, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978) (causation requirement precludes imposition of vicarious liability on municipality for acts of its employees absent proof that execution of official policy inflicts injury); McLaughlin v. City of LaGrange, 662 F.2d 1385, 1388 (11th Cir. 1981) (per curiam); Rheuark v. Shaw, 628 F.2d 297, 305 (5th Cir. 1980), cert. denied, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 365 (1981).
In Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), the Supreme Court expounded on the nature of the causal link which must be established. Under review in Rizzo was the entry of injunctive relief against the mayor, police commissioner, and other officials of the City of Philadelphia in a section 1983 action alleging a pervasive pattern of police mistreatment of minority citizens and of Philadelphia residents in general. The Court reversed the judgment of the district court, finding fault with the theory of liability upon which it was based. Specifically, the Court disapproved the imposition of liability for the officials’ failure to act in the face of a statistical pattern of police misconduct absent proof that the supervisory defendants had “direct responsibility for the actions” of those police officers who had engaged in the misconduct. Id. at 375-76, 96 S.Ct. at 606 (emphasis added). The former Fifth Circuit also has elaborated on the necessary causal link between officials’ acts or omissions and the constitutional deprivation. “ ‘Personal participation’ is only one of several theories which can be used to establish causation.... Another theory... is that a supervisory defendant is subject to § 1983 liability when he breaches a duty imposed by state or local law, and this breach causes plaintiff’s constitutional injury.” Sims v. Adams, 537 F.2d 829, 831 (5th Cir. 1976) (citations omitted). From Rizzo and Sims it is clear that the inquiry into causation must be a directed one, focusing on the duties and responsibilities of each of the individual defendants whose acts or omissions are alleged to have resulted in a constitutional deprivation.
Thus, in order to prevail against any one of the individual defendants, Williams must prove the following:
1. That being confined in a dormitory with inmates other than minimum security inmates without guards being present deprived him of his eighth amendment right to be free from cruel and unusual punishment because of the danger of violence.
2. That the individual defendant intentionally, or by callous indifference, was a cause of the constitutional deprivation.
3. That this deprivation was a legal cause of his injuries.
Williams contends that the Pugh litigation collaterally estops defendants from re-litigating the issue of whether he (and other inmates of Holman Prison) was deprived of his right to be free from cruel and unusual punishment by exposure to violence. For this reason, Williams continues, the district court erred in admitting evidence of defendants’ good faith attempts to comply with the dictates of the Pugh injunction. We agree only in part with Williams’ argument.
V PUGH IN PERSPECTIVE
The Pugh litigation, the findings and conclusions of the court, and the injunctive relief granted, have been woven into this case from the start. It is from this perspective that we evaluate the principles of preclusion and their proper place in these proceedings.
A.
Preclusive effect will be given to the adjudication of an issue litigated in a prior proceeding if the issue in the subsequent proceeding is identical to the one involved in the prior action, the issue was actually litigated, and the determination of the issue was necessary in the prior action. Stovall v. Price Waterhouse Co., 652 F.2d 537, 540 (5th Cir. 1981); Johnson v. United States, 576 F.2d 606, 615 (5th Cir. 1978). In the present case Williams seeks to estop the defendants from relitigating issues they purportedly litigated and lost in the Pugh action, thus invoking the offensive use of collateral estoppel. In Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), the Supreme Court granted federal trial courts broad discretion to permit the offensive use of collateral estoppel, indicating, however, that the exercise of this discretion is circumscribed by considerations of fairness to the defendant in foreclosing relitigation of an issue. Id. 439 U.S. at 331-32, 99 S.Ct. at 651-52. A trial judge may justifiably refuse to allow offensive use of collateral estoppel if the defendant did not have an incentive to litigate the issue vigorously in the prior proceeding or if the defendant did not have a full and fair opportunity to litigate it. Id. at 332, 99 S.Ct. at 652.
Under the circumstances of this case we conclude that the defendant officials are collaterally estopped to relitigate the issue of whether the conditions and practices in Holman Prison violated Williams’ eighth amendment right to be free from cruel and unusual punishment. The parties there actually litigated, and the district court necessarily decided, one of the same basic issues at stake in this action— namely, whether the conditions and practices to which Williams was exposed as an inmate of Holman, including the failure adequately to guard dormitories and to assign only minimum security prisoners to dormitories, amounted to cruel and unusual punishment. To state it more precisely, the Pugh decision forecloses relitigation on the issue of whether Williams was denied reasonable protection from violence. That decision, however, does not preclude litigation on the issue of the degree of culpability of each defendant — that is, whether each defendant exhibited “deliberate indifference,” which was a producing cause of the eighth amendment violation.
We do not perceive an unfairness in es-topping the defendants’ relitigation of the eighth amendment issue. All of the current defendants — with the exception of the warden, deputy warden, captain, and assistant captain of the guards at Holman — or their predecessors in office were named defendants in the Pugh litigation. In light of the serious constitutional violations alleged and the broad declaratory and injunctive relief sought in Pugh, the defendants had every incentive to litigate the eighth amendment issue fully and vigorously. The journey of the case through the appellate courts evidences the fact of their vigorous defense. See Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977), rev’d in part sub nom, Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 56 L.Ed.2d 1114 (1978). Moreover, there are no procedural opportunities in the present case that were unavailable to the Pugh defendants and of a kind that would be likely to alter the resolution of the eighth amendment issue. See Parklane Hosiery, 439 U.S. at 332 n. 19, 99 S.Ct. at 652 n. 19.
Although not stated with the desired precision, Williams’ counsel did move “... for a directed verdict in regard to the question of cruel and unusual punishment.” Record, at 1115. Indeed, the motion was somewhat lost among other motions which were far from deserved. Nevertheless, without suggesting that everything moved for in the same oration had merit, a directed finding of cruel and unusual punishment should have been made by the district court.
B.
The degree of culpability of each of the individual defendants and his causal role in the physical injuries suffered by Williams as a result of his exposure to the constant threat of violence present us with a different matter. As we have pointed out above, only a gross deviation from the standard of care owed — specifically in this case a callous indifference to Williams’ need for protection from violence — is actionable as an eighth amendment violation under section 1983. In our view, Pugh does not estop each of the current defendant officials from attempting to establish that he did not exhibit such deliberate indifference. Although the district judge involved in the Pugh litigation castigated the state for its failure to take seriously its responsibility for operating its prisons in conformity with constitutional mandates, at times referring to the deliberate disregard of steps ordered in the Pugh injunction, see, e.g., Newman v. Alabama, 466 F.Supp. 628, 632 (M.D.Ala.1979), it is clear that Pugh did not resolve the state of mind or intent of any particular one of the current defendants in failing to perform acts within his official responsibility. Hence one of the prerequisites of collateral estoppel, identity of these issues in the prior and subsequent actions, is missing here. The district court’s comments in Pugh addressed the corporate fault of the state officialdom with responsibility for operation of the Alabama penal system, not the existence of individual fault on the part of each of — or any one of — the current defendants. The latter focus is critical here. For example, it would be unfair to penalize with personal monetary liability an individual Board of Corrections member whose vigorous efforts to hire sufficient prison guards, or to assign available guards so as adequately to staff the dormitories, were overruled by the contrary views of a majority of the Board. On the other hand, it would be highly relevant to the establishing of personal liability to introduce evidence that an individual defendant, having jurisdiction over an adequate number of guards and over Williams’ dormitory at the time of the stabbing announced: “I’m not going to station a guard in that dorm. Those prisoners deserve what they can do to one another.” Such matters remain to be litigated.
Accordingly, we conclude that Pugh has no preclusive effect on the issue of individual constitutional wrongdoing. Our examination of the Pugh litigation convinces us that the causation element in that case is not identical to the causation requirement at issue here. To be sure, as the language of section 1983 plainly requires, a causal connection between the constitutional deprivation and the defendants’ acts or omissions is as much an element of liability for purposes of entering injunctive relief in Pugh as it is in the present damages action. See, e.g., Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1979) (injunctive relief). It also is clear that the parties in Pugh, collectively, as the corporate officialdom, were in a position to end the constitutional violation. However, when individuals are being sued in individual capacities for damages for personal injuries, the causation inquiry must be more refined and focused than that undertaken in Pugh, where only declaratory and injunctive relief were sought for constitutional violations pervading an entire prison system. In Pugh the focus for causation purposes was on whether the combined acts or omissions of all state officials with some responsibility for operation of the Alabama penal system created living conditions in the prisons which violated the eighth amendment. Thus the approach of the district court in Pugh was broad and generalized. From that approach ensued a sweeping injunction against all officials with any responsibility with respect to the prisons’ operation. By contrast, the critical causation issue here must be whether each individual defendant was in a position to take steps that could have averted the stabbing incident at Holman but, through callous indifference, failed to do so. Resolution of this issue necessarily entails a very individualized approach, taking into account the duties, discretion and means of each defendant.
There can be no duty, the breach of which is actionable, to do that which is beyond the power, authority, or means of the charged party. One may be callously indifferent to the fate of prisoners and yet not be liable for their injuries. Those whose callous indifference results in liability are those under a duty — possessed of authority and means — to prevent the injury-
We find support for our holding that Pugh has a preclusive effect on the eighth amendment issue but not on the issues of individual liability in a former Fifth Circuit case arising from a very similar factual background. In Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979), the plaintiff, a former prisoner in the Mississippi State Penitentiary, sued prison officials under 42 U.S.C. § 1983 for damages arising from, inter alia, a stabbing by a fellow inmate that had rendered him a permanent paraplegic. The plaintiff had participated in a prior prisoners’ class action under section 1983 and other civil rights statutes against various state officials. Gates v. Collier, 349 F.Supp. 881 (N.D.Miss.1972), aff’d, 501 F.2d 1291, 1322 (5th Cir. 1974). In Gates the plaintiff class had secured broad declaratory and injunctive relief from, inter alia, violations of the inmates’ eighth amendment rights through the officials’ failure to provide adequate protection against physical assaults by other inmates. The district court’s holding was affirmed on appeal, with the circuit court adopting the trial court’s finding of fact and conclusions of law as its own. Gates v. Collier, 501 F.2d 1291, 1322 (5th Cir. 1974). On appeal of the plaintiff’s subsequent damage action of personal injuries, the former Fifth Circuit was called upon to determine the effect of the prior Gates litigation on the plaintiff’s case. The defendant officials argued that res judicata barred the plaintiff’s entire damage suit because, as a member of the Gates class, he could have litigated the personal injury claim in the prior action. The plaintiff contended that the defendants were collaterally estopped by the Gates suit from attacking certain findings regarding the unconstitutionality of the prison conditions. The court rejected the res judicata argument for essentially the same reasons that prompt us to deny collateral estoppel on the deliberate indifference and causation issues and permitted collateral estoppel on the constitutionality of the prison conditions just as we do now. See Bogard v. Cook, 586 F.2d 399, 409 (5th Cir. 1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979).
C.
Despite the necessity of litigating each defendants’ responsibility for the prison’s condition, the Pugh findings preclude defendants’ contention that the unconstitutional condition under which Williams was forced to live was not a proximate cause of his injuries. In reaching this conclusion, we distinguish between the individualized causation requirement (proof that a defendant contributed to the unconstitutional prison conditions), and the more generalized caus
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_geniss
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G
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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. 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".
STEVENS BROS. FOUNDATION, INC., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 17332.
United States Court oí Appeals Eighth Circuit.
Nov. 15, 1963.
Frank J. Hammond, of Briggs & Morgan, St. Paul, Minn., John M. Sullivan and John J. King, St. Paul, Minn., on the brief, for petitioner.
Ralph A. Muoio, Attorney, Dept, of Justice, Washington, D. C., Louis F. Oberdorfer, Asst. Atty. Gen., Washington, D. C., and Meyer Rothwacks, Attorney, Dept, of Justice, Wash., D. C., on the brief, for respondent.
Before SANBORN and MATTHES, Circuit Judges, and ROBINSON, District Judge.
MATTHES, Circuit Judge.
'This case is before us on petition to review a decision of the Tax Court which sustained, to a large extent, the Commissioner’s assessment of deficiencies in corporate income and personal holding company taxes, and penalties against Stevens Bros. Foundation, Inc. (Foundation). The questions on review are whether the Tax Court erred in holding that:
(1) Foundation had — -
(a) not been operated exclusively for charitable purposes during its taxable years 1948 through 1955;
(b) unreasonably accumulated income during its taxable years 1952 through 1958;
and therefore that Foundation was not exempt from taxation as a charitable organization during its taxable years 1948 through 1958.
(2) The Commissioner did not abuse.his discretion in retroactively revoking a 1947 ruling exempting Foundation from •taxation as a charitable organization.
(3) Foundation was a personal holding company for the taxable years 1952 through 1954, and 1956 through 1958.
(4) Foundation was subject to additions to tax for failure to file corporation income tax returns for its taxable years 1948 through 1954, and for failure to file personal holding company tax returns for its taxable years 1952, 1953, and 1954.
(5). Foundation failed to prove that it incurred capital losses of $9,849.40 due to the worthlessness of certain securities it held.
(6) Foundation received ordinary income of $25,778.24 from the Cheatham Lock project in 1955, rather than a long-term capital gain of $48,306.44 and an ordinary loss of $22,528.20.
The basic facts, in the main stipulated and undisputed, are set forth at length in the Tax Court’s opinion, 39 T.C. IT' (1962). Certain background features of this controversy are stated in Stevens Brothers & Miller-Hutchinson Co. v. Commissioner, 24 T.C. 953 (1955). Rather than reiterate the facts in detail, we need only restate those necessary to highlight the nature of the issues now before us.
Foundation was incorporated under the laws of Delaware on December 31, 1942, by Edward Fenton Stevens (Stevens), his wife, and two of his brothers, and maintains its principal office in St. Paul, Minnesota. Six other persons — related to Stevens either by blood or marriage— were subsequently admitted to membership in Foundation.
In 1943, Foundation applied for exemption from federal income taxes as a charitable corporation, and by letter of May 1, 1947, was granted exempt status by the Commissioner, subject to redetermination if Foundation should change its character or purpose or its method of operation. There is no doubt that Foundation was organized for charitable purposes and that its charter so provided.
The four founders of Foundation were also partners in Stevens Bros. Contractors (Partnership), and shared equally in Partnership’s profits until the death of one partner in 1955; thereafter, the remaining three persons shared equally. During the years here involved, Partnership owned two-thirds of the stock of a construction company known as Stevens Bros. & Miller-Hutchinson Company, Inc. (Corporation). Stevens was president of Corporation and R. C. Hutchinson— who had no interest in Foundation or Partnership — was its secretary-treasurer.
In 1947, Hutchinson, who was then in active charge of Corporation, consulted with Stevens about bidding on a contract to build the floor at the Algiers Locks in Louisiana. The Government required a bid bond, and the surety company had informed Hutchinson that it would not issue a bond on Corporation’s bid unless an additional $50,000 in cash was absolutely subordinated to the contract. “[Corporation's funds were pretty well tied up” at that time in other jobs, and the bank with which Corporation normally did its business refused to lend it the additional money. On May 29, 1947, Foundation’s board of directors agreed to advance $50,000 to Corporation in return for one-third of the profits from the job, plus repayment of the advance.
Shortly thereafter, Hutchinson advised Foundation that the surety company now insisted on having $75,000 subordinated to the contract instead of the previous $50,000 requirement. On July 1, 1947, the earlier agreement was cancelled, and Foundation agreed to advance the larger amount to Corporation in return for one-half of the profits from the contract, plus repayment of the advance. Corporation’s bid was accepted, and Foundation advanced the $75,000.
In 1948, Foundation advanced an additional $40,000 to Corporation to pay for certain material required before further work could be done on the project. No additional consideration was received by Foundation for this $40,000, but the sum was ultimately returned.
Before the Algiers Lock floor contract was completed, Corporation bid on the contract for erection of the walls at the same lock, received the award, and unsuccessfully attempted to secure a bond for the contract bid without being required to furnish additional funds. After Corporation’s bank once again would not advance the funds, the agreement between Foundation and Corporation covering the floor contract was extended to the wall contract, and the $75,000 previously advanced was left with Corporation.
Before the wall contract was completed, Corporation was invited by T. L. James & Company, Inc. (James) to bid on the contract for the Cheatham Lock project in Tennessee. James and Corporation were awarded the contract and agreed to divide the profits from the project equally. Since Foundation then extended the financial terms of the Algiers Lock project agreement to cover the Cheatham Lock project, half of Corporation’s share of the profits under the Cheatham contract was to go to Foundation. In addition to the $75,000 covered by the extended agreement, Foundation also advanced $25,000 on August 20, 1951, and $50,000 on October 4, 1951 for use on the Cheatham Lock project.
The $75,000 original advance and the $75,000 additional investment in the Cheatham Lock project in 1951 were returned to Foundation about 1953, and its construction project relationship with Corporation was terminated in 1954. Foundation was adequately compensated for its involvement in the construction projects, and no part of the profits it derived from them was diverted to its members.
Sometime in 1947 or 1948, Stevens secured a patent for a therapeutic heating device for Foundation. The costs of developing and manufacturing the heaters were incurred by Partnership and treated as a gift by it to Foundation. Foundation distributed free of charge to hospitals, old folks’ homes, and individuals about 100 heaters worth approximately $4,510.25.
About 1952, Foundation began making educational loans to college students. Repayment was waived in the case of most or all of the 32 loans, totaling $4,605, made during Foundation’s taxable years 1953 through 1955. For its taxable years 1956 through 1958, Foundation made 36 loans, totaling $7,496, which are extended without question when a student advances a good reason for delay in payment.
Foundation’s books indicate receipts, disbursements and student loans as foilows:
Contribu-Contribu-
tions retions,
Fiscal ceived and Gifts,
Year other in-Grants, Student Surplus
Through come Expenses Etc. Loans Balance
1947 $105,611.75 139.87 4,227.50 -0-101,244.38
1948 87,810.98 27.00 1,245.25 -0-187,783.11
1949 35,024.83 19,315.75 235.00 -0-203,257.19
1950 181,471.85 24,715.33 1,825.00 -0-358,188.71
1951 94,967.41 19,237.00 1,000.00 -0-432,919.12
1952 73,782.91 19,230.00 1,250.00 -0-486,222.03
1953 38,317.89 19,295.00 2,090.00 -0-503,154.92
1954 19,741.79 9,630.00 3,931.64 -0-509,335.07
1955 20,680.41 1,450.00 2,015.00 -0-526,550.48
1956 14,331.00 1,392.20 2,150.00 770.00 537,339.28
1957 24,278.26 3,571.00 1,600.00 1,725.00 556,446.54
1958 49,014.52 2,050:55 1,725.00 5,001.00 601,685.51
Total $745,033.60 $120,053.70 $23,294.39 $7,496.00
Partnership loaned certain sums of money to Foundation from February, 1946, to October, 1953. The total outstanding on the first day of any month during that period ranged from $496,-973.71 to $969,211.62, and averaged $783,266.59 for that period. Foundation paid no interest on these loans through 1948, and thereafter until 1954 paid various rates of interest. Since 1954 Foundation has not borrowed funds from Partnership or from any other source and has not paid any interest to Partnership.
At the time of trial herein, Foundation’s investments had a total value of $950,000.
On or before August 20, 1953, Foundation’s members determined a plan to accumulate $1,000,000 in Foundation, from which they calculated an annual income of $50,000 could be derived. They deemed this income sufficient to meet expenses and still carry out Foundation’s charitable purposes.
On information returns for each of its taxable years 1948 through 1954, Foundation answered “No” to the following questions:
“Have you had any sources of income or engaged in any activities which have not previously been reported to the Bureau?..........
(Yes or No)
If so, attach detailed statement.”
By letter dated August 24, 1954, Commissioner notified Foundation that its tax exempt status was revoked. By letter dated September 8, 1954, the District Director at St. Paul notified Foundation that it was liable for federal corporation income tax returns and enclosed forms for the years 1948 to 1953, inclusive. After audit, various conferences and other negotiations, Commissioner notified Foundation of specific deficiences by letter of June 14, 1960.
1 — Exemption Issue
(a) — Non-Charitable Operation
Under § 101(6) of the Internal Revenue Code of 1939 and § 501(e) (3) of the 1954 Code, an organization is entitled to be exempt from taxation if it satisfies the following conditions: (1) it must be ■organized and operated exclusively for religious, charitable * * * or educational purposes; (2) no part of its net ■earnings can inure to the benefit of any private shareholder or individual; (3) it cannot engage in substantial political er lobbying activity.
The crucial question here is whether Foundation’s participation in the Algiers and Cheatham Lock projects supports the Tax Court’s finding that it was not operated “exclusively” for charitable purposes and that such involvement was “to a substantial extent an effort to benefit its founders.” In our view, this is largely a fact issue and, being so, the finding of the Tax Court must stand unless it is clearly erroneous or was induced by an erroneous view of the law. See and compare Samuel Friedland Foundation v. United States, D.N.J., 144 F.Supp. 74, 85 (1956); Cleveland Chiropractic College v. C. I. R., 8 Cir., 312 F.2d 203, 204 (1963).
The meaning of the term “exclusively” as used in the statutes is no longer open to debate. In Better Business Bureau of Wash., D. C. v. United States, 326 U.S. 279, 66 S.Ct. 112, 90 L. Ed. 67 (1945), the Supreme Court, in giving effect to § 811(b) (8) of the Social Security Act (in terms substantially the same as § 501(c) (3) of Int.Rev.Code), made this pronouncement:
“In this instance, in order to fall within the claimed exemption, an organization must be devoted to educational purposes exclusively. This plainly means that the presence of a single noneducational purpose, if substantial in nature, will destroy the exemption regardless of the number or importance of truly educational purposes.” 326 U.S. at 283, 66 S.Ct. at 114, 90 L.Ed. 67.
See also, Duffy v. Birmingham, 8 Cir., 190 F.2d 738 (1951); American Institute for Economic Research v. United States, Ct.Cl., 302 F.2d 934 (1962), cert. denied, 372 U.S. 976, 83 S.Ct. 1109, 10 L.Ed.2d 141 (1963); Scripture Press Foundation v. United States, Ct.Cl., 285 F.2d 800 (1961), cert. denied, 368 U.S. 985, 82 S. Ct. 597, 7 L.Ed.2d 523 (1962); Leon A. Beeghly Fund v. Commissioner of Internal Revenue, 35 T.C. 490, 523 (1960), affirmed 310 F.2d 756 (6 Cir. 1962). So here, in order for Foundation to occupy exempt status, it must be devoted to charitable purposes exclusively, and if there is present in its operations a single noncharitable purpose substantial in nature, though it may have other truly and important charitable purposes, it is not entitled to be exempt.
Foundation insists that its participation in the Algiers and Cheatham Lock projects was incidental to its tax exempt purposes, was not in furtherance of substantial nonqualified purposes, and that the benefits derived by its founders from such transactions were of an incidental nature. Additionally, Foundation emphasizes that it benefited from the business ventures to the extent of $178,387.-55. From the foregoing, Foundation reasons that it was in fact operated exclusively for charitable purposes within the concept of the teachings of the Supreme Court in Better Business Bureau v. United States, supra, 326 U.S. 279, 66 S.Ct. 112, 90 L.Ed. 67.
We have accorded these and other arguments advanced by Foundation due and careful consideration and are not persuaded that the finding of the Tax Court on this issue is clearly erroneous. To the contrary, we are convinced that such finding is supported by substantial evidence and that in reaching its conclusion the Tax Court applied the proper legal standards. In the final analysis, it cannot be denied that the funds of Foundation were used in an appreciable amount and in a manner which, while beneficial to Foundation, also resulted in a substantial benefit to its founders. It was hardly a coincidence that Foundation was contacted by Mr. Hutchinson and asked to give financial support to Corporation’s construction ventures. Upon a reasonable assessment of the undisputed facts, a logical inference is that Foundation came to the rescue of Corporation at a time when the latter was unable to procure additional financing from its bank and other sources and when it was hard put for the requisite amount of cash necessary to satisfy the bonding company, and that Foundation made it possible for Corporation to bid on the projects. And, of course, it is of prime significance that the controlling interest in Corporation was owned by the individuals who constituted Partnership and who also were the creators of Foundation. The amount involved in the construction projects belies the assertion that these business ventures were merely incidental, or that the profit, as channeled through Corporation to Partnership and ultimately realized by Foundation’s creators, was of an incidental nature. In our view, the questioned activities and the use made of Foundation funds in connection with such activities closely parallel, in principle, the situation in Leon A. Beeghly Fund, supra, 35 T.C. 490, where, as here, the organization forfeited its tax exempt status because of such activities. We are likewise of the view that Samuel Friedland Foundation v. United States, supra, 144 F. Supp. 74, upon which Foundation places strong reliance, is readily distinguishable and not controlling herein.
On the noncharitable operation issue we sustain the Tax Court.
(b) — Unreasonable Accumulations
Encompassed within the exemption issue, the Tax Court also found that Foundation had unreasonably accumulated income during its taxable years 1952 through 1958. We affirm this finding. ■
Under § 3814 of the Internal Revenue Code of 1939 and § 504 of the 1954 Code (the successor to § 3814), tax exempt status is denied to any organization described in § 501(c) (3) of the 1954 Code,
“if the amounts accumulated out of income during the taxable year or any prior taxable year and not actually paid out by the end of the taxable year—
“(1) are unreasonable in amount or duration in order to carry out the charitable, educational, or other purpose or function constituting the basis for such organization’s exemption * * * ”
In the Friedland case, supra, 144 F. Supp. at 92, the court, in considering the yardstick to be applied in determining whether accumulations were unreasonable, stated,
“What the true test appears to be is this, — Does the charitable organization have a concrete program for the accumulation of income which will be devoted to a charitable purpose and in the light of existing circumstances is the program a reasonable one?”
While realizing that no formula is devisable for determining reasonableness in all cases, the court pointed to four significant factors to be considered, applied them to the facts, and found that Friedland Foundation had a definite and' reasonable program and a charitable object for accumulation. These factors were: (a) Purpose of accumulation and dollar goal — $500,000 for construction of medical research center at Brandéis University; (b) Funds available at starting point to be devoted to accumulation— $50,000; (c) Likelihood of further contributions — $50,000 per year; and (d) Extent of time required to reach dollar goal — 6, 7 or 8 years.
In Erie Endowment v. United States, 3 Cir., 316 F.2d 151 (1963), the Third Circuit, confronted with the same problem, affirmed the district court’s holding that the accumulations were unreasonable. In so doing, the court took note of the ruling of the Tax Court in this case, see Note 16, 316 F.2d at 155, stated that the factual situations in the two cases were comparable, see Note 19, 316 F.2d at 155, 156, and also made the following general pronouncement:
“ ‘Reasonableness,’ that hobgoblin of judicial minds, can only be divined on the basis of all relevant facts. The standard to be applied is whether the taxpayer can justify the total accumulation of income at the end of the taxable year, in terms of both time and amount, on the basis of a rational total program of charitable intent. The plan must be viewed in its entirety. An eight year plan of accumulation to provide a medical research center for a university costing $500,000 may be reasonable; so may a ten year period of accumulation to build up sufficient funds to pay retirement benefits to employees where that is the sole purpose of the foundation; so may accumulation for the purpose of obtaining sufficient funds to construct and maintain a civic building where the charitable organization was formed for that specific purpose.” 316 F.2d at 155.
Mindful of these principles, we are impelled to conclude that the Tax Court here correctly decided that the accumulations were unreasonable within the meaning of the statute. Several salient facts stand out. Foundation did not have a concrete or definite charitable program requiring the accumulation of a large percentage of its income. Under its corporate charter, Foundation possessed broad charitable powers, but the fact remains that it failed to formulate and design a meaningful charitable program, one having a definite functional objective. We recognize that at some time during the years in question- — the Tax Court found that it was on or before August 20, 1953 — - Foundation determined that its dollar goal value would be $1,000,000, and that based upon a 5% return, its annual investment income would be $50,000. We have also considered that in 1951 or 1952 Foundation began making educational loans to students attending colleges. However, these loans and grants were not made as the result of any formulated or definite plan and such aid was not geared to the amount of Foundation’s income. In the absence of a concrete program no reasonable justification appears for the large accumulations for the years in question.
Neither are we impressed with Foundation’s argument that the Tax Court improperly. considered accumulations prior to the enactment of the unreasonable accumulations statute in 1950. As demonstrated, this Act operated prospectively to deny tax exempt status. However, it is clear from the wording of the statute that accumulations of the taxable year and preceding years are to be considered in resolving the question whether the accumulations were unreasonable. See Erie Endowment v. United States, supra, 316 F.2d at 156, fn. 20.
2 — Retroactive Revocation Issue
By letter dated May 1, 1947, the Commissioner informed Foundation that it was exempt from federal income tax under the provisions of § 101(6) of the Internal Revenue Code and that “accordingly) you will not be required to file income tax returns unless you change the character of your organization, the purposes for which you were organized, or your method of operation. Any such changes should be reported immediately to the collector of internal revenue for your district in order that their effect upon your exempt status may be determined.” As previously stated, the Commissioner revoked this tax exemption ruling by letter to Foundation dated August 24, 1954. Thereafter, the Commissioner applied the revocation ruling retroactively.
The Commissioner is empowered to prescribe the extent to which any ruling made by him shall be applied retroactively. Section 7805(b) of the 1954 Code provides:
“The Secretary or his delegate may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect.”
This section is substantially the same as its predecessor — § 3791(b) of the 1939 Code. In Automobile Club of Mich. v. Commissioner, 353 U.S. 180, 184, 77 S. Ct. 707, 1 L.Ed.2d 746 (1957), the Supreme Court stated that it is clear from the language of the foregoing statute and its legislative history that Congress thereby confirmed the authority of the Commissioner to correct any ruling, regulation or treasury decision retroactively, but empowered him, in his discretion, “to limit retroactive application to the extent necessary to avoid inequitable re-É suits.”
“The Commissioner’s action may not be disturbed unless, in the circumstances of this case, the Commissioner abused the discretion vested in him by § 3791(b) of the 1939 Code.” 353 U.S. at 184, 77 S.Ct. at 710, 1 L.Ed.2d 746.
See and compare, Birmingham Business College, Inc. v. C. I. R., 5 Cir., 276 F.2d 476 (1960); Lesavoy Foundation v. Commissioner of Internal Revenue, 3 Cir., 238 F.2d 589 (1956); Cleveland Chiropractic College v. C. I. R., supra, 8 Cir., 312 F.2d 203. Thus, the question for decision here is whether the Commissioner acted arbitrarily in directing that the ruling be applied retroactively.
Foundation’s efforts to demonstrate that its information reports were adequate and sufficient to apprise the Commissioner of its entry into the business activities which led to denial of its tax exempt status are far from convincing. By way of summary, it appears that on July 1, 1947, shortly after the tax exempt ruling, Foundation became involved with Corporation in the Algiers Lock project, but failed to disclose this fact to the Commissioner in its information return filed for its taxable year which ended March 31, 1948. To the contrary, Foundation answered “No” to the question:
“9. Have you had any sources of income or engaged in any activities which have not previously been reported to the Bureau?..........
(Yes or No)
If so, attach detailed statement.”
Foundation also failed to disclose its assets and liabilities as required on “Schedule A — Balance Sheets” of the information return. Likewise, Foundation in its returns filed for taxable years ending March 31, 1949, March 31, 1950, and March 31, 1951, disclosed no information of its activities with Corporation, although as previously shown, it became further involved in the lock projects. The first hint of the transactions appeared in Foundation’s information return filed for the year ending March 31, 1950, when under heading “10 — Other Income,” Foundation reported “Algiers Lock Investment — $128,410.60.” This amount was more than 10%. of the total income reported for that year, but Foundation failed to attach an itemized schedule in accordance with the instructions. Again in its 1951 return, Foundation reported under “Other Income — Algiers Lock Investment — $24,198.71,” and again also failed to attach the required itemized schedule. Apparently, examination of the 1951 return and discovery of the $24,198.71 item of income caused the Commissioner to begin the investigation which resulted in his revocation of the 1947 ruling.
The foregoing events and the ensuing correspondence between Commissioner and Foundation negate arbitrary action or an abuse of discretion by Commissioner.
Foundation seeks to draw an analogy between this case and Lesavoy Foundation v. Commissioner, supra, 238 F.2d 589, where the Third Circuit reversed the Tax Court, 25 T.C. 924, which had sustained the Commissioner’s retroactive revocation of a certificate of exemption from taxation issued to a charitable organization. In our view, Lesavoy is readily distinguishable. There, unlike the present situation, the Foundation reported on its information return that it had engaged in “activities which have not previously been reported to the Bureau,” revealed that it had purchased a spinning mill company, and attached a balance sheet listing assets, inventory, liabilities, and gross receipts which reflected substantial sales of yarn and cloth.
On this issue we affirm the Tax Court.
3 — Personal Holding Company Issue
Sustaining the Commissioner in part, the Tax Court held that Foundation qualified as a personal holding company for its taxable years 1952 through 1954 and 1956 through 1958. We reverse the Tax Court on this issue.
Under the Personal Holding Company statute, § 501(a) of the 1939 Code and § 542(a) of the 1954 Code, the term “personal holding company” means any corporation (with certain exceptions not pertinent here) if — (1) at least 80 percent of its gross income for the taxable year is personal holding company income as defined in another section (502 of 1939 Code, 543 of 1954 Code), and (2) at any time during the last half of the taxable year more than 50 percent in value of its outstanding stock is owned, directly or indirectly, by or for not more than five individuals.
As in the Tax Court, Foundation here concedes that it meets test (1) — i. e., it had the requisite kind of income to be a personal holding company. The crucial question is whether the requirements of test (2) are present — i. e., whether Foundation’s “members” are of the general equivalence of stockholders in stock corporations so as to satisfy the stock ownership test.
The provisions of Foundation’s corporate charter pertinent to this issue provide that: the corporation does not have authority to issue capital stock; the four incorporators shall be members upon payment of $1 each to the corporation; no part of the corporation’s net income shall inure to the benefit of any member; and the corporation has broad powers to amend any provision of the charter. The charter does not provide for distribution of assets upon dissolution.
Although Foundation never issued capital stock or amended its charter, Commissioner contended in the Tax Court that because of the reserved power to amend the charter, Foundation’s members had the right to share in its property upon dissolution and therefore were equivalent to stockholders in stock corporations. The Tax Court held that for the taxable year 1948 Foundation’s memberships did not correspond to stock holdings for personal holding company-tax purposes, but on a theory of its own, sustained the Commissioner on this issue as to other taxable years.
In 1951 the Delaware legislature amended its Revised Code of 1935 to permit consolidation of or merger between stock and non-stock corporations. This amendment added a new section to the Delaware Revised Code of 1935, now appearing as § 257, Title 8, of Delaware Code Annotated, and reading in pertinent part as follows:
“ § 257. (a) Any one or more non-stock corporations, whether organized for profit or not organized for profit, organized under the provisions of this chapter, or existing under the laws of this State, may consolidate or merge with one or more stock corporations, whether organized for profit or not organized for profit, organized under the provisions of this chapter, or existing under the laws of this State, into a single corporation which may be any one of the constituent corporations or a new corporation to be formed by means of such consolidation or merger as shall be specified in the agreement provided for in subsection (b) of this section. The new corporation or the surviving constituent corporation may be organized for profit or not organized for profit and may be a stock corporation or a membership corporation.
“* * In such consolidation or merger the interests of members of a constituent non-stock corporation may be treated in various ways so as to convert such interests into interests of value, other than shares of stock, in the proposed new or resulting stock corporation or into shares of stock in the proposed new or resulting stock corporation, voting or non-voting, or into creditor interests or any other interests of value equivalent to their membership interests in their non-stock corporation.”
Without supporting authority, the Tax Court concluded that “despite the fact that the predecessors of Del.Code Ann. tit. 8, secs. 102(a) (4), 242(a), and 281, set forth supra, were not amended by this 1951 Act, we conclude that the Delaware Legislature intended to and did change the law to give to members in nonstock corporations the right to share in the current or accumulated profits of those corporations,” and that for the taxable years 1952 through 1958 Foundation’s memberships constitute “stock” within the meaning of the Personal Holding Company statute.
Although we sustain the determination that Foundation was not an exempt organization for federal income tax purposes, the present issue posits the question whether under state law the property of a charitable organization can be distributed or paid to its members by way of dividends or ultimately on dissolution. The Commissioner recognizes that we look to the state law in resolving this question, and in his brief, states:
“Taxpayer is a nonstock, nonprofit corporation organized under the General Corporation Law of Delaware * * * and its certificate of incorporation makes no provision for the disposition of assets in the event of dissolution. However, on the basis of the relevant state law, the Tax Court determined that, prior to 1951, members of a Delaware non-stock nonprofit corporation could not share in the assets of the corporation on liquidation * * *. Accordingly, it found that prior to that time taxpayer’s memberships were not equivalent to stock for personal holding company purposes because they lacked the necessary beneficial interest in the assets of the corporation.”
Specifically, then, we must decide whether the 1951 amendment was intended to cover charitable non-stock, nonprofit corporations so as to permit Foundation to merge with a profit, stock corporation and to give Foundation’s members — as held by the Tax Court — the right to share in the current or accumulated profits of Foundation, even though there was no actual merger. Foundation states that the Tax Court’s interpretation of the amendment — now Title 8 Del.Code Ann. § 257 — endangers the status of existing charitable corporations under Delaware law, and, in effect, prohibits the formation of new ones. Commissioner, in support of the Tax Court’s self-spun theory, argues that for state law purposes, a charitable corporation is not endangered in Delaware, for it will remain charitable in nature until merged with a stock company. Opposed to Foundation’s contention that the doctrine of cy pres would prevent its funds from being diverted to its members, Commissioner further asserts that the doctrine, although applied in Delaware as to charitable trusts, has not yet been applied as to charitable corporations “and would appear to be foreclosed by the 1951 amendment. * * * ” Commissioner points to the general liberality of Delaware corporation law, asserts that “the legislature apparently saw fit to allow” such mergers, and on oral argument, revealed that perhaps the Delaware statute “would permit a church to merge with a large profit corporation.”
In our view, the Tax Court’s interpretation of § 257 is diametrically opposed to prevailing principles of law dealing with charitable corporations. Generally, on the dissolution of a charitable corporation, the doctrine of cy pres is applicable, and a gift to the corporation does not revert to the donor — and, to be sure, cannot be distributed to the members of the charitable corporation. See IV Scott, Trusts § 397.3, at 2797-2798 (2d ed. 1956). Ordinarily, the principles which are applicable to charitable trusts are applicable to charitable corporations —certainly the doctrine of cy pres pertains to both, and “it is probably more misleading to say that a charitable corporation is not a trustee than to say that it is....” IV Scott, Trusts § 348.-1, at 2559, 2553-2554 (2d ed. 1956); National Foundation v. First National Bank of Catawba County, 4 Cir., 288 F. 2d 831, 836 (1961); Miller v. Mercantile-Safe Deposit & Trust Company, 224 Md. 380, 168 A.2d 184, 188 (1961); Trustees of Rutger’s College in N. J. v. Richman, 41 N.J.Super. 259, 125 A.2d 10, 26 (1956). It has been held that the legislature has no power to destroy or to vary the terms of a valid charitable trust. IV Scott, Trusts § 348, at 2552 (2d ed. 1956). Additionally, the power of amending a corporate charter cannot be exercised to entirely change the nature of a corporation, or to change substantially its objects and purposes. Fletcher, Cyclopedia Corporations, Vol. 7, Ch. 43, § 3718, at 886 (Perm. ed.).
With these general rules in mind, we turn to Delaware law to determine whether its legislature and its courts have adhered to the prevailing principles. We, like the Tax Court and the parties to this action, recognize that the Delaware statutory law here involved has not been construed by the courts of that state insofar as it applies to non-stock, nonprofit corporations. Nevertheless, upon careful scrutiny of Delaware statutory and decisional law, we are firmly convinced that the Tax Court’s interpretation of that law is erroneous.
The Delaware courts have recognized that “[generally speaking, the law favors charitable trusts, and they will not be declared void if they can by any possibility, consistent with law, be considered as good.” Union Methodist Episcopal Church v. Equitable Trust Company, 32 Del.Ch. 197, 83 A.2d 111, 114 (1951). Construing a testamentary bequest in trust for a charitable purpose, the Court of Chancery of Delaware, in Delaware Trust Company v. Graham, 30 Del.Ch. 330, 61 A.2d 110, 113 (1948), stated that there “seems to be no good reason why judicial cy pres should not be applied
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:
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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".
TANDY CORPORATION, Plaintiff-Appellant, v. MALONE & HYDE, INC., Defendant-Appellee.
No. 84-5277.
United States Court of Appeals, Sixth Circuit.
Argued April 9, 1985.
Decided July 31, 1985.
I.C. Waddey, Jr., Waddey & Newport, and Daniel C. Kaufman, argued, Nashville, Tenn., for plaintiff-appellant.
D.L. Lansden, argued, Dennis J. Meaker, Walter H. Crouch, Michael E. Moore, Waller, Lansden, Dortch & Davis, Nashville, Tenn., Alan S. Cooper, Banner, Birch, McKie & Beckett, and Stephanie K. Wade, Washington, D.C., for defendant-appellee.
Before MERRITT and CONTIE, Circuit Judges, and KINNEARY, District Judge.
The Honorable Joseph P. Kinneary, Judge, United States District Court for the Southern District of Ohio, sitting by designation.
MERRITT, Circuit Judge.
In this trademark infringement appeal concerning the legal standards applicable to the equitable defense of laches, plaintiff Tandy claims that defendant Malone and Hyde’s use of the trademark “AUTO SHACK” infringes Tandy’s marks “RADIO SHACK,” “THE SHACK,” and “SHACK.” The District Court granted Malone and Hyde's summary judgment motion on the basis of laches without reaching the merits and barred both injunctive and monetary relief. The District Court barred on grounds of unreasonable delay plaintiff’s action brought 32 months after it arose. The Court gave no deference or presumptive effect to the three-year statute of limitations which would be applicable if the action were characterized as one at law instead of in equity. Because the Court erred in failing to give presumptive effect to the three-year legal limitations period, we reverse and remand for further proceedings.
I.
In 1977, defendant Malone and Hyde, a wholesale and retail grocer, considered going into the retail auto parts business through acquisition of an existing chain of stores. Defendant negotiated with Mr. Scavariel, owner of several stores in Phoenix, Arizona, operating under the name “Auto Shack, Inc.” After unsuccessful acquisition negotiations, defendant decided to enter the auto parts business by starting a new operation. Scavariel helped defendant in this process by providing information on supplier networks, marketing techniques, inventory design, and management. Scavariel then gave defendant permission to use the name AUTO SHACK in areas outside Arizona.
Malone and Hyde opened its first AUTO SHACK store in July 1979. By August it had opened five AUTO SHACK stores and had spent approximately $25,000 in promoting the name. By March 1982 it had opened 55 AUTO SHACK stores and had spent approximately $1.5 million promoting the name.
Plaintiff learned of defendant’s use of the AUTO SHACK mark in July 1979 when defendant opened its first store. From that point Tandy began to document instances of public confusion. In March 1982 Tandy notified Malone and Hyde of its objections to the mark AUTO SHACK. Tandy filed suit against Malone and Hyde in April 1982.
The District Court held that Tandy’s 32-month delay in notifying Malone and Hyde of its objections to the AUTO SHACK mark was “inexcusable and unreasonable,” and that the delay had substantially prejudiced Malone and Hyde. 581 F.Supp. 1124 at 1128. The District Court therefore granted summary judgment on the basis of laches. The Court then analyzed whether laches should bar injunctive as well as monetary relief and determined that “the interests and equities of the parties and the public” required a denial of all relief. 581 F.Supp. at 1131. The District Court’s opinion does not refer to the three-year Tennessee statute for tortious injury to property, Tenn.Code Ann. § 28-3-105 (1980), which the parties appear to agree is the applicable state limitation statute.
The District Court, in applying the doctrine of laches, erred in failing to give the appropriate presumptive effect to Tennessee’s three-year limitations period. A brief review of the equitable doctrine of laches and the common law history of trademark litigation is helpful in order to put the issue before us in perspective.
II.
The substantive and remedial doctrines of trademark law draw upon legal principles developed both at law and in equity. Although trademark litigation began as early as the 1600’s, the law of trademarks did not undergo significant development until the nineteenth century, when the increasing use of trademarks to symbolize and market products created the need for defining and protecting owners’ rights. See F. Schechter, The Historical Foundations of the Law Relating to Trademarks 122-45 (1925).
Both equity and law courts decided trademark cases in England during the early stages of trademark development, but equitable principles seem to have dominated that process because injunctive relief was generally considered the first and most effective step for courts to take in redressing a trademark infringement. Id. American courts also stressed equitable relief’ and principles in their responses to trademark disputes. See, e.g., Hanover Star Milling Co. v. Allen & Wheeler Co., 208 F. 513, 516 (7th Cir.1913). Thus, prior to statutory protection for trademarks, courts determined rights and liabilities primarily on the basis of equitable theory. They treated the damages portion of such suits as an equitable action in the nature of an accounting. Consistent with this history of trademark law, § 34 of the Lanham Act of 1946 allows for injunctive relief “according to the principles of equity,” 15 U.S.C. § 1116 (1982), and § 35 allows monetary relief “subject to the principles of equity,” id., § 1117.
Despite this pervasive equity background, the damages or accounting aspect of trademark infringement actions are considered legal actions for purposes of the jury trial clause of the Seventh Amendment. In Dairy Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), the Supreme Court held that a litigant has a right to a jury trial in an infringement action for money damages on the theory that “an adequate remedy at law” is available. 369 U.S. at 478, 82 S.Ct. at 900. Thus infringement actions are hybrids, a mixture of law and equity.
The Lanham Act does not contain a statute of limitations. In determining when a plaintiffs suit should be barred under the Act, courts have consistently used principles of laches as developed by courts of equity. See, e.g., Saratoga Vichy Spring Co., Inc. v. Lehman, 625 F.2d 1037, 1040 (2d Cir.1980); Polaroid Corp. v. Polaroid Electronics Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961).
Under equitable principles the statute of limitations applicable to analogous actions at law is used to create a “presumption of laches.” This principle “presumes” that an action is barred if not brought within the period of the statute of limitations and is alive if brought within the period. See Note, Developments in the Law — Statutes of Limitations, 64 Harv.L. Rev. 1177, 1184 (1950). See also DeSilvio v. Prudential Lines, Inc., 701 F.2d 13 (2d Cir.1983) (a determination of laches in admiralty must include reference to the analogous statute of limitations); Goodman v. McDonnell Douglas Corp., 606 F.2d 800 (8th Cir.1979), cert. denied 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980) (analogous statute of limitations is “important consideration” in action under Veterans’ Reemployment Rights Act). See also Reconstruction Finance Corp. v. Harrisons & Crosfield, 204 F.2d 366, 370 (2d Cir.), cert. denied 346 U.S. 854, 74 S.Ct. 69, 98 L.Ed. 368 (1953) (petition for order permanently enjoining defendant from arbitrating a claim against plaintiff); Shell v. Strong, 151 F.2d 909 (10th Cir.1945) (action for specific performance of a contract). We have recently followed this so-called “presumption” or general principle on a similar issue in the patent context. See TWM Manufacturing Co. v. Dura Co., 592 F.2d 346, 348 (6th Cir.1979) (applicable legal limitations period is the normal period to be used for laches).
The general principle outlined in TWM and other laches cases provides that, in the absence of unusual circumstances, a suit will not be barred before the analogous statute has run but will be barred after the statutory time has run.
This principle has been applied in trademark cases. Layton Pure Food Co. v. Church & Dwight, 182 F. 35, 40 (8th Cir. 1910) (except under “unusual conditions or extraordinary circumstances,” a federal court applying a limitation statute by analogy will not bar damages remedy in a trademark infringement action if the analogous statute of limitation would not bar the action).
Several reasons underlie the use of the statutory period as the laches period. It enhances the stability and clarity of the law by applying neutral rules and principles in an evenhanded fashion rather than making the question purely discretionary. It also requires courts to make clear distinctions between threshold or special defenses or pleas in bar and the merits of the case. It enhances the rationality and objectivity of the process by preventing courts from short circuiting difficult issues on the merits by confusing or conflating the merits of an action with other defenses.
Although early federal decisions faithfully followed the presumption, later decisions outside the trademark area have somewhat eroded the requirement that only “extraordinary circumstances or unusual conditions” defeat the presumption favoring the statutory limitations period. See, e.g., Gruca v. United States Steel Corp., 495 F.2d 1252, 1259 and n. 8 (3d Cir.1974) (effect of the analogous statute of limitation on a claim in equity is only burden-shifting). Some courts recently have looked at the analogous statute as simply one factor to be weighed in a determination of unreasonable delay and prejudice. See Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 805 (8th Cir.1979), cert. denied 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980). Some courts in ruling on purely equitable claims have analyzed the effect of the analogous state limitation both before and after it has elapsed, and have concluded that unreasonable prejudicial conduct short of the limitation can bar the equitable claim. See, e.g., Cannon v. Uni versity Health Sciences/Chicago Medical School, 710 F.2d 351 (7th Cir.1983) (on claim for injunctive relief arising under 42 U.S.C. § 1983, laches can shorten the applicable time under the state limitation statute); Gruca v. United States Steel Corp., 495 F.2d 1252, 1259 n. 8 (3d Cir.1974) (reference to an analogous statute of limitation “does not determine the minimum limit of the delay necessary to invoke the first element of the laches doctrine.”)
The presumption should remain strong and uneroded in trademark eases. They are not “purely equitable” suits, as the Supreme Court noted in Dairy Queen, supra. They are mixed actions in law and equity. A strong presumption enhances objectivity and clear analysis in decision making. It clarifies and broadens the protection of the public from confusion and deception.
We therefore affirm the rule in the trademark context that, if the analogous statute of limitation has not elapsed, there is a strong presumption that plaintiff’s delay in bringing the suit for monetary relief is reasonable. Only rarely should laches bar a case before the analogous statute has run. Cf. Shouse v. Pierce County, 559 F.2d 1142, 1147 (9th Cir.1977) (noting in the context of § 1983 action that it is “extremely rare for laches to be effectively invoked when a plaintiff has filed his action before limitations in an analogous action of law has run.”)
III.
The District Court did not consider the application of the presumption to the facts of this case. The applicable statute is the three year statute for tortious injury to property, Tenn.Code Ann. § 28-3-105 (1980). To set aside the presumptive period, a court must articulate compelling reasons. Although the trial court here correctly placed the burden on each of the laches elements on the defendant, the court did not test the defendant’s proof against a standard that presumed Tandy’s 32-month delay to be reasonable.
When we apply this standard to the present case, it is clear that Tandy’s behavior does not compel the extraordinary imposition of laches before the analogous statute has run. Malone and Hyde has pointed to no evidence of bad faith on Tandy’s part, nor of any effort by Tandy to mislead Malone and Hyde. There is no evidence of behavior amounting to acquiescence, a doctrine related to laches relying on express or implied consent theories, by Tandy. A reasonable businessman should be afforded some latitude to assess both the impact of another’s use of an allegedly infringing trademark as well as the wisdom of pursuing litigation on the issue. The 32-month delay may be evidence of corporate indecision but it is not so unreasonable as to overcome the presumption afforded by the analogous 3-year statute.
IV.
In addition to its conclusion that Tandy’s 32-month delay was sufficiently unreasonable to invoke laches, the District Court held that Malone and Hyde justifiably relied on Tandy’s inaction against Scavariel’s Arizona-based AUTO SHACK store. The District Court essentially held that Malone and Hyde could “tack on” the time during which Scavariel developed the marks in Arizona, a period of three years, to demonstrate further the unreasonableness of Tandy’s delay.
This holding is error. For purposes of laches an assignee of a trademark can tack on the period during which the assignor used the mark, PepsiCo, Inc. v. Grapette Co., 416 F.2d 285 (8th Cir.1969), but only when the mark is assigned in conjunction with the sale of the goodwill of the business to which it is attached. Section 10 of the Lanham Act, 15 U.S.C. § 1060 (1982), so provides. There was no such transfer here.
Scavariel had developed an apparently prosperous Phoenix based business, and had generated goodwill from the consuming public in that geographic area. Had Scavariel sold his Phoenix business to Malone and Hyde along with his permission for Malone and Hyde to use the name AUTO SHACK, he would have assigned both the mark and its goodwill. Instead, Scavariel kept the Arizona business. Although he was forthcoming and helpful to Malone and Hyde in providing information about auto parts marketing, perhaps with an eye toward a future working relationship or merger, he did nothing that conveyed to Malone and Hyde the good will of the business. See Greenlon, Inc. of Cincinnati v. Greenlawn, Inc., 542 F.Supp. 890 (S.D.Ohio 1982), for similar facts and reasoning. The transaction functioned as a naked assignment and nothing more. Thus, a tacking argument dependent on an assignment theory fails.
In addition, Malone and Hyde may not justifiably rely on Tandy’s inaction against Scavariel in a contained geographic area as a bar to challenging their widespread use of the mark in areas outside of that contained area. See Conan Properties, Inc. v. Conans Pizza, Inc., 752 F.2d 145 (5th Cir.1985). Tandy’s failure to object to limited geographic use of a mark does not bar it from objecting later to widespread use of the mark. Id. at 152.
Accordingly, the judgment of the District Court is reversed and remanded for proceedings not inconsistent with this opinion.
. The standard requiring only unreasonable delay and prejudice to the defendant used by the District Court below has been used by other courts in cases in which the plaintiff sought to extend the normal legal statute of limitation period, see Gardner v. Panama R.R. Co., 342 U.S. 29, 30-31, 72 S.C.t. 12, 13-14, 96 L.Ed. 31 (1951), or cases in which no issue has been made regarding the presumptive effect of the analogous statute of limitation, see, e.g., American Home Products Corp. v. Lockwood Mfg. Co., 483 F.2d 1120 (6th Cir.1973); Cuban Cigar Brands N. V. v. Upmann International, Inc., 457 F.Supp. 1090 (S.D.N.Y.1978), aff’d 607 F.2d 995 (2d Cir.1979). This more general, less rigorous standard should not be used when the plaintiff brings an action prior to expiration of a presumptively effective statute of limitation.
. In the context of purely equitable relief, the correct standard may be the somewhat more general and discretionary standard of determining only unreasonable delay and prejudice to the defendant. See Patterson v. Hewitt, 195 U.S. 309, 25 S.Ct. 35, 49 L.Ed. 214 (1904). To deny injunctive relief in trademark litigation, however, some affirmative conduct in the nature of an estoppel, see, e.g., James Burrough Ltd. v. Sign of Beefeater, Inc., 572 F.2d 574, 578-79 (7th Cir.1978), or conduct amounting to "virtual abandonment,” see University of Pittsburgh v. Champion Products, Inc., 686 F.2d 1040, 1044-45 (3d Cir.1982), is necessary. On the basis of the record before us, Tandy’s behavior does not fit either of the above categories. Therefore, the District Court erred in using laches to bar both forms of relief.
. Section 10, 15 U.S.C. § 1060 provides in relevant part:
A registered mark or a mark for which application to register has been filed shall be assignable with the goodwill of the business in which the mark is used, or with that part of the goodwill of the business connected with the use of and symbolized by the mark, and in any such assignment it shall not be necessary to include the goodwill of the business connected with the use of and symbolized by any other mark used in the business or by the name or style under which the business is conducted. Assignments shall be by instruments in writing duly executed____
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:
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songer_applfrom
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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 identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES of America, Plaintiff-Appellee, v. Harold Hall PASLAY, a/k/a Pat Paslay, Defendant-Appellant.
No. 90-8832.
United States Court of Appeals, Eleventh Circuit.
Sept. 3, 1992.
David W. Wallace, Marietta, Ga., for defendant-appellant.
Kent Alexander, Leo E. Reichert, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-ap-pellee.
Before BIRCH, Circuit Judge, JOHNSON , and BOWNES , Senior Circuit Judges.
See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit.
Honorable Hugh H. Bownes, Senior U.S. Circuit Judge for the First Circuit, sitting by designation.
JOHNSON, Senior Circuit Judge:
I. STATEMENT OP THE CASE
Harold Hall Paslay appeals his sentence for two of five counts of conviction. For the reasons that follow, we vacate his sentence on these counts and remand.
A. Background Facts
In 1986, appellant Paslay embarked on a bold scheme to defraud hundreds of people by selling them franchises in a “legal expense” insurance company. In the scheme, Paslay sold distributorships in American Legal Distributors, Inc. (ALD). The distributorships, which cost purchasers between $2,500 and $25,000, allowed the purchasers to direct market legal insurance policies to the public. In order to help secure investors, Paslay paid “singers” to provide potential investors with untrue testimonials regarding the profitability of ALD distributorships.
Through brochures placed in local stores, the distributors were to sell legal insurance policies directly to the public. ALD promised to pay the distributors a commission on the policies that they sold. The policies ostensibly provided policyholders with free or reduced-rate legal assistance through the Lawyer Access Network (LAN). Policyholders were told that the LAN consisted of attorneys throughout the nation who would provide legal assistance either free of charge or at a substantial discount.
Paslay’s scheme soon collapsed. When distributors and policyholders attempted to access the LAN, they discovered that it was non-existent. Before the scheme came to an end, however, Paslay had sold at least 375 distributorships in over 30 states. Investors were defrauded of around $3.3 million.
B. Procedural History
On November 8, 1989, a federal grand jury indicted Paslay on thirty-four criminal counts relating to the ALD/LAN scheme. On December 12, 1989, Paslay pled not guilty to all counts. However, on April 25, 1990, pursuant to a plea bargain, Paslay changed his plea to guilty on the following five counts: count I, which alleged mail fraud in violation of 18 U.S.C.A. § 1341 (1984); count IV, which alleged transportation of stolen goods, securities, or money in violation of 18 U.S.C.A. § 2314 (West Supp. 1992); counts XXVII and XXXII, which each alleged wire fraud in violation of 18 U.S.C.A. § 1343 (1984); and count XXXIV, which alleged a criminal conspiracy to commit mail fraud and wire fraud in violation of 18 U.S.C.A. § 371 (1966).
On July 25, 1990, the government mailed Paslay a copy of its presentencing memorandum, which recommended an upward departure from the sentencing guidelines in light of Paslay’s past and continuing involvement in fraudulent schemes. On August 16, 1990, the district court sentenced Paslay. The lower court divided its sentencing between the three counts that arose prior to the guidelines and the two counts that ostensibly arose after the applicability of the guidelines.
The lower court imposed five year sentences for counts IV, XXVII, and XXXII, all of which related to activities occurring prior to the effective date of the sentencing guidelines. The sentences were to run consecutively with each other, for a total of fifteen years imprisonment, and concurrently with the sentences for counts I and XXXIV.
Regarding the counts ostensibly arising after the applicability of the sentencing guidelines, the lower court sentenced Pas-lay to thirty months imprisonment for count I, and to sixty months imprisonment for count XXXIV. The sixty and thirty month sentences were to run consecutively with each other but concurrently with the sentences for the pre-guidelines counts. In order to reach the ninety month total, the lower court departed from the guidelines by adding four points to Paslay’s base offense level. The lower court justified its departure based on both the harm Paslay caused to his accomplices and Paslay’s use of a weapon or dangerous instrumentality during the pendency of his scheme. See U.S.S.G. § 5K2.0 (general rule); id. at § 5K2.6 (weapon or dangerous instrumentality). Finally, the lower court sentenced Paslay to three years supervised release to follow his sentences, ordered him to pay $3.3 million in restitution, and imposed a $50 special assessment per count, for a total of $250 in special assessments.
II. ISSUES
In his direct appeal, Paslay argues that the lower court’s upward departure from the sentencing guidelines was improper for two primary reasons. First, Paslay asserts that the lower court improperly relied on the “victimization” of his accomplices in making its four-level departure. Second, Paslay claims that he was not accorded proper notice of the lower court’s grounds for departing from the guidelines under Burns v. United States, — U.S. -, -, 111 S.Ct. 2182, 2186-87, 115 L.Ed.2d 123 (1991). In addition, Paslay argues that the lower court abused its discretion by denying him a two-level reduction in offense level for acceptance of responsibility.
III. ANALYSIS
A. The Upward Departure
Paslay contends that the lower court’s decision to add four points to his offense level was at least partly unauthorized by the guidelines. This Court employs a three-step test when evaluating a lower court’s decision to depart from the guidelines. The first question is “whether the guidelines adequately consider a particular factor so as to preclude a district court from relying upon it as a basis for departure. We exercise de novo review of this question of law.” United States v. Weaver, 920 F.2d 1570, 1573 (11th Cir.1991). The second step is for the reviewing Court to examine the factual basis for the lower court’s departure. Id. This review is limited to a search for “clear error.” Id. Finally, if the first and second tests have been satisfied, this Court must make a de novo review of the “reasonableness” of the departure. Id.
A proper analysis of whether the lower court’s upward departure was justified necessarily begins with an examination of the reasons proffered by the lower court for its departure. See id. In the case at bar, the lower court departed for two reasons: (1) “in effecting the scheme, violent behavior was utilized in that Mr. Paslay used an aluminum instrument, a baseball bat or hammer, to bash in Mrs. Mednick’s [his corporate counsel] car ... and, on Mr. Pas-lay’s instructions, one of his employees used a pistol to shoot and flatten one of Mrs. Mednick’s automobile tires,” and (2) some of the accomplices (the “singers”) would not have become felons had Paslay not organized the scheme. Transcript, at 70-72. See also U.S.S.G. § 5K2.6 (use of weapon or dangerous instrumentality incident to crime); id. at § 5K2.0 (general statement regarding unguided departures — applicable to court’s “victimization” of the accomplices rationale).
The sentencing court’s reliance on the “victimization” of the singers was misplaced on the facts of this case. The guidelines provide for a four-level upward departure if a person is a “leader” or “organizer” of a criminal enterprise. U.S.S.G. § 3Bl.l(a). The application notes to this provision provide that “[fjactors the court should consider include ... the recruitment of accomplices_” Id. at application note 3 (emphasis added). See U.S.S.G. § 3Bl.l(a); Weaver, 920 F.2d at 1573. See generally United States v. Robinson, 898 F.2d 1111, 1118 (6th Cir.1990) (§ 8Bl.l(a) takes into account the use of an “intermediary” to commit a crime; consequently, sentencing court could not rely on defendant’s use of an intermediary to justify an upward departure). Section 3Bl.l(a)’s consideration of the “recruitment of accomplices” anticipates some degree of participation in the criminal activity by the accomplices. Moreover, a crime involving accomplices routinely will involve some level of “victimization,” if by “victimization” one means that those recruited would not have become involved in a criminal enterprise and would have remained law-abiding citizens but for their recruitment. If a district court wishes to make an upward departure for the “victimization” of accomplices based on their recruitment, the victimization resulting from the recruitment must be of a kind or degree not inherent in their recruitment. See U.S.S.G. § 3Bl.l(a); United States v. Sasnett, 925 F.2d 392, 398 (11th Cir. 1991); Weaver, 920 F.2d at 1573. In addition, the guidelines specifically take into account the exploitation of vulnerable victims. See U.S.S.G. § 3A1.1. Although the alleged “victims” in this case were also accomplices, we see no reason why fraud perpetrated on vulnerable accomplices could not be subsumed under this section. See generally United States v. Smith, 930 F.2d 1450, 1454-56 (10th Cir.) (applying section 3A1.1 to a person other than the direct victim of the crime of conviction), cert. denied, — U.S. -, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991). At the outset then, the district court’s reliance on section 5K2.0 to support its “victimization” rationale must relate to “victimization” of a kind or degree not already subsumed within sections 3Bl.l(a) or 3A1.1. Weaver, 920 F.2d at 1573.
The government argues that section 3Bl.l(a) does not take into account a scenario wherein the organizer “tricks” his accomplices into participating in a crime. Neither the government nor the district court considered the potential applicability of section 3A1.1. Assuming arguendo that an upward departure pursuant to section 5K2.0 for “victimization” of a kind or degree not comprehended by sections 3Bl.l(a) or 3A1.1 would be proper, we find that the facts in this case do not establish “victimization” of a kind or degree sufficient to support an additional departure under section 5K2.0. The “victims’Vaccomplices in this case were the “singers”: people who took money from Paslay to falsely represent to potential investors that they were happy, wealthy, distributors of Paslay’s insurance products. In point of fact, the singers were not distributors and had no direct or actual knowledge of whether the distributorships that they were promoting had any value whatsoever. The astounding scope of the singers’ lies regarding the quality of ALD investments belies any claim that they were mere innocents duped into participating in the scheme. Cf. United States v. Anderson, 895 F.2d 641, 642-44 (9th Cir.1990) (where bona fide innocent dupe involved, dupe’s participation improperly considered through section 3Bl.l(a)), vacated and remanded, 942 F.2d 606 (9th Cir.1991) (en banc). Thus, although the sentencing court’s conclusion that the singers would not have participated in a fraudulent scheme had they not been recruited by Paslay may well be true, that observation does not justify a finding by this Court that the specific recruitment at issue in this case is not of the same sort expressly contemplated by section 3Bl.l(a). Moreover, to the extent that victimization of particularly vulnerable persons is at issue, we fail to see how the victimization at issue differs from that already expressly considered in a potentially applicable guideline. See U.S.S.G. § 3A1.1 (praying upon vulnerable victims).
Because the guidelines provide adequate consideration of the recruitment of the “singers,” the lower court’s reliance on section 5K2.0 as a basis for an unguided upward departure was not permissible. See Sasnett, 925 F.2d at 398; Weaver, 920 F.2d at 1573. We do not foreclose the possibility of a sentencing court making an upward departure under section 5K2.0 based on the “victimization” of one’s partners in crime. Rather, on the facts of this case, we have not found sufficient support in the record to remove the case from the compass of either sections 3A1.1 or 3Bl.l(a). See generally United States v. Ponder, 963 F.2d 1506, 1509-10 (11th Cir.1992).
The other reason proffered by the lower court to justify its upward departure from the guidelines — the use of a weapon or dangerous instrumentality — is entirely proper and is warranted in this case. The general guideline and offense characteristics for fraud do not take into account the use of a weapon or dangerous instrumentality, and the record shows that Paslay used a weapon or dangerous instrumentality incident to his crime. An upward departure of up to four levels would not necessarily be unreasonable on these facts. Weaver, 920 F.2d at 1573; U.S.S.G. § 5K2.6 (authorizing an upward departure for the use of a weapon or dangerous instrumentality). See also U.S.S.G. § 2F1.1 (guideline for fraud, which provides no special consideration for fraud involving the use of weapon or dangerous instrumentality); Sasnett, 925 F.2d at 395, 398 (approving an upward departure of 30 months under sections 5K2.2 and 5K2.5 on a sentence with a normal range of 24-30 months because of appropriate facts). The only problem the Court faces, then, is how to apportion the four-level increase between the two reasons proffered by the lower court. Because the record does not establish the relationship between the two reasons and the ultimate four-level departure, we conclude that a remand is necessary in order to allow the district court to either apportion the four-level increase (and omit the increase attributable to court’s “victimization” rationale) or to explain why a four-level increase is appropriate under section 5K2.6 alone.
B. Bums Notice
Paslay claims that the lower court’s upward departure pursuant to section 5K2.6 was improper because he did not receive advance notice of the court’s intention to make an upward departure on the basis of this provision.
Paslay’s sentencing hearing occurred in August 1990. In June 1991, the Supreme Court held that a sentencing court may not make an upward departure from the guidelines absent advance notice to the defendant. Burns v. United States, — U.S. -,-, 111 S.Ct. 2182, 2186-87, 115 L.Ed.2d 123 (1991). See also United States v. Cornog, 945 F.2d 1504, 1513 (11th Cir. 1991) (sentencing court must provide a defendant “notice and an opportunity to comment before it departs upward”). “[BJefore a district court can depart upward on a ground not identified as a ground for an upward departure either in the presentence report or in a prehearing submission by the Government, Rule 32 [of the Federal Rules of Criminal Procedure] requires that the district court give the parties reasonable notice that it is contemplating such a ruling.” Burns, — U.S. at -, 111 S.Ct. at 2187. The Bums Court did not specify what constitutes a “reasonable” amount of time. Id. at-n. 6, 111 S.Ct. 2187 n. 6. However, in the case at bar, the district court provided Paslay with no time between its decision to contemplate an upward departure under section 5K2.6 and its announcement of the upward departure. This course of action is inconsistent with Bums.
To be sure, in Bums the sentencing court sua sponte decided to make an upward departure, at-, 111 S.Ct. at 2184-85, whereas in the case at bar, the prosecutor suggested an upward departure based on section 5K2.6 at the sentencing hearing. Transcript, at 43-44, 71. However, this distinction is irrelevant to the application of Bums. Bums requires that pursuant to Fed.R.Crim.P. 32, criminal defendants be provided notice prior to the sentencing hearing of the specific grounds for any upward departure that a sentencing court is considering. Bums at- -, 111 S.Ct. at 2186-87. Just as in Bums, the criminal defendant in this case, Paslay, was put in the position of making an on-the-spot defense against a ground for an upward departure about which he had received no advance notice. On these facts, Bums is controlling. See id. See also United States v. Kalady, 941 F.2d 1090, 1096-97, 1101-02 (10th Cir.1991) (applying Bums where presentence report did not adequately explain the particular recommended range for an upward departure). Although the government’s sentencing memorandum did suggest an upward departure, it did not specifically suggest a departure based on section 5K2.6.
Finally, we note that Paslay did not object at the sentencing hearing to the lower court’s decision to rely on section 5K2.6 based on a lack of prior notice. Nor has Paslay made a proffer as to how he was prejudiced by the lack of prior notice. Thus, it is unclear at this point whether Paslay actually suffered any prejudice from the lower court’s failure to provide Bums notice. Rule 52(a) of the Federal Rules of Criminal Procedure instructs this Court to disregard errors that do not affect the “substantial rights” of the accused. Although the Bums Court did not expressly address the applicability of the harmless error doctrine to Bums violations, we see no reason why the harmless error rule would not apply with full force. Fed. R.Crim.P. 52(a); Arizona v.. Fulminante, — U.S.-,-, 111 S.Ct. 1246, 1263-66, 113 L.Ed.2d 302 (1991); United States v. Lane, 474 U.S. 438, 448 n. 11, 106 S.Ct. 725, 731 n. 11, 88 L.Ed.2d 814 (1986). The Supreme Court has repeatedly emphasized that Rule 52(a) is to be broadly applied. United States v. Mechanik, 475 U.S. 66, 71-72, 106 S.Ct. 938, 942-43, 89 L.Ed.2d 50 (1986); Lane, 474 U.S. at 444-50, 106 S.Ct. at 729-32. We therefore hold that a Bums violation is subject to harmless error review. We also note that because the right to prior notice of the grounds for an upward departure implicates the due process clause of the Fifth Amendment, see Burns, — U.S. at--, 111 S.Ct. at 2187, the “harmless beyond a reasonable doubt” standard set forth in Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 826-28, 17 L.Ed.2d 705 (1967), applies to violations of Bums.
Unfortunately, neither the appellant nor the appellee has addressed the potential applicability of the harmless error doctrine to this case. Moreover, our independent review of the record does not provide a clear answer as to whether the Burns violation at issue was “harmless beyond a reasonable doubt.” Chapman at 24, 87 S.Ct. at 828. However, given the procedural posture of this case, we need not decide whether the error raised on appeal was harmless.
We have already determined that Pas-lay’s sentence must be vacated and remanded for resentencing. See supra, part 111(A). Because a remand is necessary on other grounds, we instruct the sentencing court to provide Paslay with the required Bums notice prior to resentencing him if the sentencing court wishes to make an upward departure on count XXXIV on a ground not previously specifically identified. See United States v. Pool, 937 F.2d 1528, 1531-32 (10th Cir.1991). Simply put, in light of the need for resentencing on other grounds, we do not find it necessary to determine whether the lower court’s initial failure to comply with Bums provides an independent basis for vacating the sentence. See id.
C. Acceptance of Responsibility
Section 3E1.1 allows sentencing courts to grant a two offense level reduction if the defendant has clearly accepted responsibility for his crime. U.S.S.G. § 3E1.1. This Court’s review of a denial of a section 3E1.1 reduction is limited: “The district court is in a unique position to evaluate whether a defendant has accepted responsibility for his acts, and this determination is entitled to great deference on review.” United States v. Pritchett, 908 F.2d 816, 824 (11th Cir.1990). “Unless the court’s determination is without foundation, it should not be overturned on appeal.” Id. Consequently, this Court will overturn on appeal denials of the two point reduction only when the facts in the record clearly establish that a defendant has accepted personal responsibility. See United States v. Howard, 923 F.2d 1500, 1505 (11th Cir.1991). The burden of proof on this issue is with Paslay; a defendant is entitled to the two-level reduction only if he “clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3El.l(a). See Howard, 923 F.2d at 1505.
Admittedly, this is a close question. Paslay pled guilty and cooperated with authorities. However, his probation officer testified that he did not seem at all remorseful. In addition, the lower court found that although Paslay had expressed regret, this expression was late in coming. Given the deference due to the lower court’s finding in this matter, we decline to reverse the lower court’s decision to deny Paslay the two-level reduction under section 3El.l(a).
IV. CONCLUSION
We VACATE Paslay’s sentence on counts I and XXXIV and REMAND this case to the district court for further proceedings consistent with this opinion.
. The lower court improperly classified count I, which involved criminal activity occurring entirely before November 1, 1987, as a sentencing guidelines count. See Sentencing Hearing Transcript, at 65-66, 70-71 (August 16, 1990) (hereinafter "Transcript"). Count I alleged mail fraud occurring “on or about July 28, 1987.” Although a conviction based on a conspiracy occurring both prior to and after the effective date of the guidelines is to be treated as a guidelines count, see United States v. Nixon, 918 F.2d 895, 906-07 (11th Cir.1990), sentencing for a conviction related to a discrete crime committed incident to such a conspiracy is governed by the guidelines only if that crime occurred after November 1, 1987. See United States v. Metallo, 908 F.2d 795, 800 (11th Cir.1990), cert. denied, — U.S.-, 112 S.Ct. 1483, 117 L.Ed.2d 625 (1992); United States v. Pippin, 903 F.2d 1478, 1480-81 (11th Cir.1990); United States v. Curry, 902 F.2d 912, 917 (11th Cir.), cert. denied, — U.S.-, 111 S.Ct. 588, 112 L.Ed.2d 592 (1990). In an alternative sentence on count I, the sentencing court stated that even if count I was not a guidelines count it would have sentenced Paslay to thirty months’ imprisonment on count I to run concurrently with the sentence for counts IV, XXVII, and XXXII, and consecutively with the sentence imposed for count XXXIV. We rely upon the district court’s alternative sentence for count I in this appeal.
. Paslay voluntarily turned over to the government a lake house valued at approximately $300,000. The lower court applied this amount against the restitution portion of the sentence, leaving Paslay to pay an additional $3 million in restitution.
. We believe that it can reasonably be said of many, if not most, accomplices that their participation in a criminal enterprise was a direct byproduct of their recruitment.
. Unfortunately, neither the government nor the district court considered the potential applicability of section 3A1.Í.
.Some of the more colorful examples include statements by "singers” to potential investors to the effect that their husbands were contemplating quitting their regular jobs because of the fabulous returns on their ALD distributorship. All of the singers used aliases, and some of them possessed more than one alias. Paslay paid the singers $20 to $25 per reference.
. Indeed, Paslay does not dispute that a guided upward departure of some sort pursuant to section 5K2.6 would be proper.
. The lower court did not explain whether the two reasons given for the four level increase operated cumulatively or in the alternative. It appears that the sentencing court relied on both reasons separately in arriving at a total departure of four levels. See Transcript, at 71 (the lower court explained "[o]ne of the reasons is that in affecting the scheme, violent behavior was utilized,” and then stated “[t]he Court further departs from the guidelines for reasons not contemplated by the Sentencing Commission”). However, the lower court did not apportion the four level increase between the two reasons. See id. at 71-72.
.On remand the lower court could (but need not) reimpose the four level increase relying solely on the weapon/dangerous instrumentality guided departure provided in section 5K2.6. Although this Circuit has not yet addressed the size of a permissible upward departure under section 5K2.6, we believe that a four level increase in offense level would not be unreasonable in this case given the use of a baseball bat and the discharge of a gun. See United States v. Gaddy, 909 F.2d 196, 199-200 (7th Cir.1990). Cf. United States v. Connor, 950 F.2d 1267, 1276-77 (7th Cir.1991) (example of where departure not warranted under section 5K2.6).
. We note that Bums applies retroactively to this case because the Bums Court applied the result in Bums to the parties in the case. James B. Beam Distilling Co., Inc. v. Georgia, — U.S. -,-, 111 S.Ct. 2439, 2445-46, 115 L.Ed.2d 481 (1991); Lufkin v. McCallum, 956 F.2d 1104, 1106-08 (11th Cir.1992).
. Consequently, this Court need not address the particulars of the "reasonable time” requirement.
. In an unpersuasive argument, the government suggests that it provided Paslay with "constructive notice" that an upward departure based on section 5K2.6 would be sought. The government’s citation on this point is to the facts section of its sentencing memorandum. In its recommendation section, the government suggested an upward departure based solely on Paslay’s history of involvement in criminal schemes. In its sentencing memorandum, the government never so much as hinted that an upward departure was warranted under section 5K2.6. In fact, the government first suggested that the lower court could rely on section 5K2.6 during the sentencing hearing. Transcript, at 43-44. Moreover, the presentence investigation report did not put Paslay on notice that an upward departure based on section 5K2.6 would be considered.
To accept the government’s position that any mention of facts sufficient to warrant an upward departure in a sentencing memorandum satisfies the Bums notice requirement would be to eviscerate Bums. Bums holds that a criminal defendant is entitled to prior notice of the specific grounds the sentencing court is considering relying upon for an upward departure not otherwise "identified" in the presentence report or the prosecution’s sentencing memorandum. See Bums, — U.S. at-, 111 S.Ct. at 2187. "Identified” means more than discernable through close study of the facts section of the government’s presentence memorandum coupled with extensive perusal of the guidelines. For a defendant to be on notice for purposes of Bums that a specific ground may be relied upon to justify an upward departure based on a pre-sentence document, we hold that the document must affirmatively indicate that an upward departure is appropriate based on a particular ground, each and every ground offered in support of an upward departure must be clearly stated, the facts supporting each such ground must be plainly set forth, and the defendant must be provided with the document setting forth the potential ground (or grounds) for the upward departure within a “reasonable” amount of time prior to the sentencing hearing. See id. at-, 111 S.Ct. at 2185-86. Cf. United States v. Hill, 951 F.2d 867, 868 (8th Cir.), cert. denied, — U.S. -, 112 S.Ct. 2945, 119 L.Ed.2d 569 (1992); United States v. Andrews, 948 F.2d 448, 449 (8th Cir.1991). Anything less is inconsistent with the mandate of Bums.
. The Comog Court also failed to address whether the harmless error doctrine applied to Bums claims. Comog, 945 F.2d at 1514.
. We also note that ordinarily this Court will review a Bums violation only for “plain error” if a defendant fails to make a timely objection based on Bums before the sentencing court. See Fed.R.Crim.P. 52(b); United States v. Solomon, 856 F.2d 1572, 1575 (11th Cir.1988), cert. denied, 489 U.S. 1070, 109 S.Ct. 1352, 103 L.Ed.2d 820 (1989). We have not applied a plain error analysis in this particular case only because the right at issue (Bums notice) did not clearly exist at the time the plain error rule would have required Paslay to make an objection. See Hormel v. Helvering, 312 U.S. 552, 557-58, 61 S.Ct. 719, 721-22, 85 L.Ed. 1037 (1941); United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983), cert, denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984); see also United States v. Godoy, 821 F.2d 1498, 1504 (11th Cir. 1987) (plain error rule is not jurisdictional and may be waived in "exceptional” circumstances), cert. denied, 484 U.S. 1044, 108 S.Ct. 778, 98 L.Ed.2d 864 (1988)); United States v. Hosford, 782 F.2d 936, 938 n. 1 (11th Cir.) (example of Court waiving the plain error rule), cert. denied, 476 U.S. 1118, 106 S.Ct. 1977, 90 L.Ed.2d 660 (1986). We caution that for all cases in which sentencing occurs after June 13, 1991 (the date Bums issued), Bums notice will be subject to waiver and limited, review under the plain error rule when a defendant fails to make a timely objection predicated on Bums in district court. ■
.This Circuit has not determined whether there is a significant difference between the Rule 52(a) standard of harmless error review and the Chapman standard. See United States v. Lehder-Rivas, 955 F.2d 1510, 1517 n. 3 (11th Cir. 1992). However, in this case we need not resolve the question of whether a significant difference exists between the Rule 52(a) standard and the Chapman standard, because the rule at issue in this case implicates interests clearly protected by the due process clause. Burns, — U.S. at-, 111 S.Ct. at 2187. See generally Lehder-Rivas, 955 F.2d at 1517 n. 3; Lane, 474 U.S. at 446 n. 9, 106 S.Ct.. at 730 n. 9. Cf. United States v. Drummond, 903 F.2d 1171, 1174 (8th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 759, 112 L.Ed.2d 779 (1991).
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_usc2
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15
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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 15. 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.
ALBERT PICK-BARTH CO., Inc., et al. v. MITCHELL WOODBURY CORPORATION.
No. 2648.
Circuit Court of Appeals, First Circuit.
March 18, 1932.
See also (D. C.) 36 F.(2d) 974; (C. C. A.) 41 F.(2d) 148.
Edward F. MeClennen, of Boston, Mass. (Jacob J. Kaplan, of Boston, Mass., on the brief for Pick-Barth Co., Inc.; Leo S. Hamburger, of Boston, Mass., on the brief for Stuart and McDonald), for all appellants.
Claude B. Cross, of Boston, Mass. (Edward C. Park and Wilhington, Cross, Proctor & Park, all of Boston, Mass., on the brief), for appellee.
Before BINGHAM and WILSON, Circuit Judges, and HALE, District Judge.
WILSON, Circuit Judge.
This is an action brought in the District Court of Massachusetts under section 7 of the Sherman Anti-Trust Law, as amended by section 4 of the Clayton Act (sections 1 and 15, title 15, USCA), and is here on appeal by defendants from the judgment in that court.
By section 1 of the Sherman Act, “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to he illegal.”
Section 7 of the Sherman Act as amended by section 4 of the Clayton Act provides that: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”
The declaration of the plaintiff in substance alleges: That the plaintiff was engaged in interstate commerce; that the defendant corporation was one of a combination of corporations controlled by allied interests engaged in the same trade or business as the plaintiff, and constituted the largest and a dominating factor in that trade throughout the United States; that the defendants Stuart and McDonald were, prior to January 1, 1929, trusted employees of the plaintiff, having access to its records, plans, lists of customers, present and prospective, cost records, and other data; that said defendants entered into a conspiracy to deprive the plaintiff of its interstate business in its kitchen equipment and kitchen utensils, and to restrain or destroy the competition of the plaintiff with the defendant corporation in the several states; that in furtherance of such conspiracy, and by arrangement with the defendant corporation, the said Stuart and McDonald left the plaintiff’s employ and entered the employ of the defendant corporation, and took with them the plaintiff’s list of customers, . present and prospective, cost records, plans, and other data necessary to the conduct of its said business, and also induced the other members of the trained organization and staff of the plaintiff in its kitchen equipment department to leave without notice to the plaintiff, and enter the employ of the defendant corporation; that before leaving its employ, said Stuart and McDonald secretly solicited the plaintiff’s customers in behalf of the defendant corporation abd did other acts to prevent the plaintiff acquiring new business, all of which the plaintiff alleges was a violation of section 1 of the Anti-Trust Act, and injured it in its business and property.
A demurrer to the declaration was filed by the defendants on the ground that the declaration set forth no violation of section 1-of the Anti-Trust Act; that no violation of the act resulted from the establishing by the defendant of a place of business in Massachusetts for dealing in kitchen equipment, and even though the defendants did engage certain of the plaintiff’s employees they were not under contract with the plaintiff; and admitting the defendants did all it is alleged, it constituted no offense under the anti-trust laws, in that there was no allegation of an unreasonable restraint of interstate commerce.
This court, however, in 41 F.(2d) 148, held that the declaration sufficiently set out a conspiracy to restrain trade between the several states; that it alleged with substantial certainty that a conspiracy existed and its purpose was to deprive the plaintiff of its interstate trade in kitchen equipment and to destroy competition therein; that although each of the several acts alleged to have been done in furtherance of the alleged conspiracy might not alone constitute any federal offense, it is of no consequence if, taken together, the intent and purpose was to restrain interstate commerce. Swift & Co. v. United States, 196 U. S. 375, 395, 25 S. Ct. 276, 49 L. Ed. 518; Binderup v. Pathe Exchange, 263 U. S. 291, 312, 44 S. Ct. 96, 68 L. Ed. 308. The object and intent of the combination determines its legality. Loewe v. Lawlor, 208 U. S. 274, 297, 28 S. Ct. 301, 52 L. E. 488, 13 Ann. Cas. 815.
It is urged, however, that this court in its opinion laid down the law for the trial of the ease, and to the effect that no damages could be recovered unless it was shown that any restraint that resulted from any acts of the defendants unreasonably affected interstate trade, and to the injury of plaintiff’s interstate business. But the law laid down in support of a declaration on demurrer may not apply to every state of facts that may be proven under the declaration. The only issue on demurrer is whether there are sufficient allegations to support an action. Pennsylvania Mining Co. v. United Mine Workers (C. C. A.) 28 F.(2d) 851, 853. The facts proven may require an application of law in addition to that laid down in support of a declaration on the issue raised by a demurrer.
In holding that the declaration contained sufficient allegations to sustain an action, and in reversing the judgment of the District Court in sustaining the demurrer, this court held [page 150 of 41 F.(2d)] that: “It can hardly be said that allegations that the defendants entered into a conspiracy to restrain the competition of the plaintiff in trade and commerce among the several states, and to deprive it of its business and to obtain that business for the defendant, do not charge with substantial certainty an intent to restrain commerce and-the full and free flow of interstate competition. Addyston Pipe Co. v. United States, 175 U. S. 211, 241, 242, 20 S. Ct. 96, 44 L. Ed. 136.”
And again: “We think from a survey of the decisions it must be held that any combination the intent of which is*to suppress competition in interstate commerce, is unreasonable, and, if put into effect, may be said unduly to obstruct trade. If a merger is formed for a lawful purpose, and through the result of increased output and decreased overhead prices can be and are reduced, and as a result a less favored competitor is unable to compete in interstate commerce, no offense results because of the lessened competition. If, however, the merger or combination can be shown to have been formed with the intent to destroy a competitor and suppress its( interstate competition and the intent is accomplished, it is within the prohibition of the statute.”
And, finally: “The acts complained of were all calculated to destroy the plaintiffs interstate business, as alleged, through the efforts of its old employees working against it, not only openly but secretly ’ while in its employ, and in behalf of a competitor, which is a dominant factor in the business throughout the United States.”
While at the close of its opinion as original! y drafted this court said that the plaintiff could not recover if the proof showed no more than inconvenience in conducting its business and no effect upon its interstate trade, or that its losses resulted from another cause than the restraint or diminution of its interstate commerce, upon its attention being called to this statement as not being an accurate statement of the law, in view of the allegations in the declaration, it was stricken out.
The opinion of the court on the issues raised by the demurrer, therefore, should not be construed to require that in order for the plaintiff to recover it must show that its losses resulted directly from a suppression of its interstate trade, but if they flowed from any act of the defendants in furtherance of an unlawful combination with the intent to restrain interstate trade, it is sufficient to enable it to recover.
At the trial in the court below, the jury were asked to make special findings, and the following questions were submitted to them, and their answers are appended:
“Q. 3. Did the defendants or any of them conspire together to deprive the plaintiff of its business in kitchen equipment and furnishings? A. Yes.
“Q. 1 (a). If so, which of said defendants were parties to said conspiracy? A. Albert Piek-Barth Co., Inc., George A. Stuart and John J. McDonald.
, “Q. 2. Was a substantial part of the plaintiff’s business affected by said conspiracy of an interstate character? A. Yes.
“Q. 2 (a). If so, was the amount of such interstate business substantial? A. Yes.
“Q. 3. Were the defendants in conspiracy as aforesaid actuated by any purpose or intent to eliminate or restrict the competition of the plaintiff in interstate trade in kitchen furnishings and equipment? A. Yes.
“Q. 4. Was the business of the plaintiff in kitchen furnishings and equipment a substantial factor in the interstate trade in those commodities in New England? A. Yes.
Q. 4 (a). If so, did the defendant’s acquisition of the plaintiff’s business effect an unreasonable restraint of trade? A. No.
“Q. 5. Wbat is the amount of the plaintiff’s damages sustained by reason of said conspiracy? A. $40,000.”
Thereupon the plaintiff moved for a directed verdict for the plaintiff for $40,000. The presiding judge then said:
“What I think I will do is, in view of the answer to the third qirestion, I will let the jury return a verdict for the plaintiff in the alternative form for $40,000, and then I will take up the questions of law on motion.
“Mr. Foreman and gentlemen, assuming that actual intent to interfere with interstate trade, by means of a conspiracy, subjects the parties to it to damages, you should return the verdict for the plaintiff here for the amount of the damages, and you may therefore return a verdict for the plaintiff in the alternative form. I have put it in that form so that if the plaintiff is not in fact entitled to recover, a proper correction may he made by this court, or by the Circuit Court of Appeals, or by the Supreme Court of the United States.”
On motion of the defendant to set aside all the special findings except as to question 4 (a), and of the plaintiff to set aside the finding as to 4 (a), the presiding judge in overruling the motion of both parties held:
“While the question is not free from doubt, the opinion taken as a whole intimates I think that interstate business is protected by the Sherman and Clayton Acts against intentional interference and injury of tor-tious character inspired by the intent here found,'and that where such injury and intent are shown it is not necessary to prove injury to the public by unreasonable restraint. It follows that special finding 4(a), viz., that the defendant’s acquisition of the plaintiff’s business did not effect unreasonable restraint of that trade, is immaterial, and that judgment should be entered on the verdict for the plaintiff.
“If cm the other hand a conspiracy to injure or steal an interstate business is not actionable under these statutes unless it affected the public interest injuriously, special finding 4 (a) determines that fact in the defendant’s favor, and the alternative verdict for the defendant should be entered.”
The defendant corporation thereupon appealed and filed forty-eight assignments of error, the defendant Stuart twenty-one, and the defendant McDonald twenty-three. The appellate courts have many times expressed their disapproval of such methods. Many of the assignments here are merely repetitions of others, of at least preserve no additional rights.- Such methods not only are calculated to confuse counsel on the other side as to what the real contention of the appellant is, but .also place an unnecessary burden on the court.
While the rule (11) of this court respecting assignments of error provides that the appellant shall file with his petition for appeal “an assignment of error which shall set out separately and particularly each error asserted and intended to be urged,” it does not mean that counsel shall set forth substantially the same error in as many different forms as can be devised.
As the court said in Phillips, etc., Constr. Co. v. Seymour, 91 U. S. 646, 648, 23 L. Ed. 341: “This practice of unlimited assignments is a perversion of the rule, defeating all its purposes, bewildering the counsel of the other side, and leaving the court to gather from a brief, often as prolix as the assignments of error, which of the latter are really relied on.”
Also see Chesapeake & D. Canal Co. v. United States, 250 U. S. 123, 124, 39 S. Ct. 407, 63 L. Ed. 889.
It has even been held that such unnecessary prolixity of assignments may justify a dismissal of an appeal. Patterson v. Mobile Gas Co., 271 U. S. 131, 132, 46 S. Ct. 445, 70 L. Ed. 870. Attention is also called to the following eases: Sartain v. United States (C. C. A.) 16 F.(2d) 704; Welter v. United States (C. C. A.) 4 F.(2d) 342; McWhorter v. United States (C. C. A.) 297 F. 120; Fitter v. United States (C. C. A.) 258 F. 567; Clark v. United States (C. C. A.) 258 F. 437.
The gist of the forty-five assignments by the appellant in this case we think may be fairly summarized, thus: That the district judge erred in refusing to direct a verdict for the defendant on the ground (1) that there was no evidence to warrant the special findings of the jury except as to 4 (a); (2) by reason of its finding that no unreasonable restraint of interstate trade resulted from the defendant’s acquisition of the plaintiff’s business; and (3) that there was no evidence to warrant the finding that the plaintiff was damaged to the extent of $40,000 in its interstate business; and (4).that any damages the plaintiff suffered did not result from any tortious acts of the defendants.
In the main the assignments are of alleged errors in specific rulings on the various elements which are included in the above summary. As to the assignments of error, either on the ground that the evidence did not warrant the findings of fact except the answer to 4 (a), or in the failure to give the several instructions as requested by the defendant, we think no prejudicial error is shown, and it is not necessary to consider them seriatim.
As to whether there was evidence to support the special findings and whether the presiding judge erred in not directing a verdict for the defendants in view of the jury’s finding that the acquisition of the plaintiff’s kitchen equipment business — or so much as the defendant corporation acquired — did not result in an unreasonable restraint of interstate trade, the admissions in the answer and the undisputed evidence disclose that the plaintiff is, and in 1928 was, a corporation engaged in a wholesale and retail business in the city of Boston (dealing in china, glassware, crockery, and kindred lines of merchandise, and especially in designing, manufacturing, and installing kitchen utensils and equipment for restaurants, clubs, hotels, and large institutions); that its business was in a large measure through the New England States and was therefore interstate; that the defendant Albert Pick-Barth Company, Inc., is a New York corporation organized in 1928, and is one of a number of associated or subsidiary corporations, all controlled through stock ownership by the Albert Pick-Barth Company, Inc., a Maryland corporation; that these allied corporations are engaged in business closely related, if not wholly similar, to that of the defendant corporation, and in combination constituted the largest and a dominating factor in the United States in this line of trade; that prior to 1929, the only one of these Pick-Barth Companies engaged in business in the New England States was the L. Barth & Co., Inc., which had a branch office in Boston, and was, prior to that time, to a limited extent only, an interstate competitor of the plaintiff corporation in the kitchen equipment business; that the defendant Stuart was at one time president and treasurer of the Mitchell Woodbury Company, the predecessor of the plaintiff, Mitchell Woodbury Corporation, and until December 31, 1928, was an employee of the plaintiff corporation; that the defendant McDonald was also an employee of the plaintiff as manager of its kitchen equipment business; that in October, 1928, .Stuart entered into an agreement with the plaintiff to purchase, or for an option to purchase, at any time prior to January 1, 1929, the kitchen equipment business of the plaintiff; that hearing that the Piek-JBarth interests were contemplating’ extending their business in Massachusetts, Stuart first entered into negotiations with officers of the L. Barth & Co., Inc., to take over his option or contract to purchase the kitchen equipment business of the plaintiff and employ Mm as their representative in New England; that he represented to them that he could bring with him all the employees of the plaintiff in this branch of their business and their records and plans; that those negotiations fell through, an Stuart was unable to finance the proposition alone, and the representatives of the Pick-Barth Companies in the early part of December, 1928, on learning that Stuart’s contract did not entitle him to the records and plans of the plaintiff, refused to join in the plan proposed by Stuart.
It is not contended that up to this point there was any violation of the Anti-Trust Acts, or that any violation would have resulted from the carrying out of tho 71la.11 first proposed by Stuart, so long as it was confined to taking over the contract or option to purchase tho kitchen equipment business of the plaintiff.
There was evidence, however, from which we think the jury from its answers to the questions submitted to it must have found that Stuart became aware in the early part of December, 1928, that the rqiresentatives of the Pick-Barth interests were not interested in taking over his o]>tion or contract with the plaintiff, but that if he had the records of the, plaintiff in his kitchen equipment department, and was free of any complications under his contract, they would be interested in establishing a, place of business in Boston, on a much larger scale than they had previously done, and under the- management of Stuart and McDonald. It also appeared that they had been endeavoring to secure the services of McDonald for several years.
There was also evidence in support of the jury’s special finding that there was a conspiracy between these defendants, the purpose and intent of which was to acquire the plaintiff’s business in kitchen equipment for the Pick-Barth interests, and to eliminate the plaintiff as a competitor in this line, and that the conspiracy was in process of development during December, 3928, and January and February, 1929 ; on the part of the defendant corporation, to organize and establish its business in Massachusetts by opening a. 7>lace of business in Boston willi the former employees of the plaintiff added to its staff; on the part of Stuart and McDonald in holding off until the afternoon of December 31st before notifying the plaintiff that Stuart would, not take up- his option or fulfill his contract to purchase, whichever it may have been, or that McDonald and the other employees in the kitchen equipment department would leave, as they did, on January 1st, against the protests of the plaintiff; and, further, by Stuart and McDonald, one or both of them, taking with them a large part of the records, plans, and designs, including' the list of customers of the plaintiff, which were not entirely restored except as the result of an action in the courts.
At tho time of leaving the employ of the plaintiff, Stuart informed the president of the company that they would see that the plaintiff got no now business in that line. It also appeared that Stuart and Ms counsel had previously informed representatives of the .Pick-Barth interests that if they — Stuart and McDonald- — did not obtain the records of the plaintiff, they could familiarize themselves with them in a short time.
Other evidence in support of the jury’s findings also showed that, even before leaving the plaintiff’s employ, Stuart had taken steps to secure offices in Boston, and as soon as ho and McDonald had severed their connection with the plaintiff, they set 117) an organization consisting of the former staff of the plaintiff in its kitchen equipment department, and solicited trade among the customers of the plaintiff, whoso business immediately showed a marked decrease during 192-9. It was some time before the plaintiff could perfect another organization in its kitchen equipment department, and a,s a result of the action of Stuart and McDonald in conjunction with the defendant corporation, it suffered considerable loss of business, both interstate and intrastate. That Stuart and McDonald were backed financially by tho defendant corporation from the time they left the plaintiff’s employment on January 1st, 1929, can hardly be questioned upon the evidence.
While the jury found that there was a conspiracy between the defendants to eliminate the plaintiff as a competitor in interstate trade in kitchen equipment, in which it was a substantial factor throughout the New England States, either because it was not fully accomplished, and there was no evidence that the public directly suffered from an increase in prices as a result of tho acts of tho defendants, and the plaintiff after a time succeeded in re-establishing an organization in. its kitchen equipment department, or because the jury misunderstood the instructions ,o£ the court in this respect, the jury found that “the acquisition of the plaintiff’s business did not effect an unreasonable restraint of trade.”
The chief contention of the counsel for the defendants is that, under the decisions of the Supreme Court, unless there was unreasonable restraint of interstate trade, there is no violation of the Anti-Trust Acts, and a verdict should have been entered for the de-, fendants.
But we think it is not necessary to show an unreasonable restraint of interstate trade as an accomplished fact, if a conspiracy is proved, the intent and purpose of which, if carried out, would eliminate the largest competitor of one of the conspirators in a particular section of the country, which competitor controlled a substantial part of the trade in that section, and one of the methods of suppressing such competition was unlawful or unfair competition. Such a result, if accomplished, would clearly be an unreasonable restraint of trade. United States v. Trenton Potteries Co., 273 U. S. 392, on page 397, 47 S. Ct. 377, 379, 71 L. Ed. 700, 50 A. L. R. 989, in which ease the court said:
“Our view of what is a reasonable restraint of commerce is controlled by the recognized purpose of the Sherman Law itself. Whether this type of restraint is reasonable or not must be judged in part at least, in the light of its effect on competition, for, whatever difference of opinion there may be among economists as to the social and economic desirability, of an unrestrained competitive system, it cannot be doubted that the Sherman Law and the judicial decisions interpreting it are based upon the assumption that the public interest is best protected from the evils of monopoly and price control by the maintenance óf competition.”
In Hitchman Coal & Coke Co. v. Mitchell, Individually et al., 245 U. S. 229, 259, 38 S. Ct. 65, 75, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461, the court said: “Certainly, if a competing trader should endeavor to draw custom from his rival, not by offering better or cheaper goods, employing more competent salesmen, or displaying more attractive advertisements, but by persuading the rival’s clerks to desert him under circumstances rendering it difficult or embarrassing for him to fill their places, any court of equity would grant an injunction to restrain this as unfair competition.” A conspiracy to eliminate a competitor in interstate trade by such a method would be unlawful.
Whether a conspiracy is legal or illegal, is a question of law depending on the facts proven as to the nature of the conspiracy. If it is a price fixing combination, it is not a question to be proven whether the prices fixed are reasonable; but if it is found that the purpose of the combination is to fix prices, as a matter of law it is a conspiracy or combination in unreasonable restraint of trade, United States v. Trenton Potteries Co., supra, because it restricts competition to which the public is entitled.
If a conspiracy is proven, the purpose or intent of which is by unfair means to eliminate a competitor in interstate trade and thereby suppress competition, such a conspiracy, we think, is a violation of section 1 of the Sherman Act. It is the intent and purpose which determines the legality of the conspiracy or combination. Loewe v. Lawlor, supra. If acts done in furtherance of such unlawful purpose — though the unlawful purpose is not accomplished to such an extent as to constitute an unreasonable restraint of interstate trade — result in injury tó a competitor in his business and property, such injured person may recover damages for whatever injuries he has thereby suffered.
To constitute an offense under section 1 of the Sherman Act, it is not necessary, if a conspiracy is proven, the purpose and intent of which was to eliminate by unfair means a competitor in interstate trade, to show that the public was affected, and to what extent. Nor is it necessary under this act, as it is at common law, to prove any overt acts in order to constitute the offense defined in section 1; but if overt acts are proved in furtherance of the offense defined in section 1, and any one is thereby injured in his business or property, the conspirators under section 7 of the Act are liable therefor.
In Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390, 396, 27 S. Ct. 65, 66, 51 L. Ed. 241, the court said: “There can be no doubt that Congress had power to give an action for. damages to an individual who suffers by breach of the law. Montague v. Lowry, 193 U. S. 38, 24 S. Ct. 307, 48 L. Ed. 608. The damage complained of must almost or quite always be damage in property, that is, in the money of the plaintiff, which is owned within some particular state. In other words, if Congress had power to make the acts which led to the damage illegal, it could authorize a recovery for the damage, although the latter was suffered wholly within the boundaries of one state. 'Finally, the fact that the sale was not so connected in its terms with the unlawful combination as to be unlawful (Connolly v. Union Sewer. Pipe Co., 184 U. S. 540, 22 S. Ct. 431, 46 L. Ed. 679), in no way contradicts the proposition that the motives and inducements to make it were so affected by the combination as to constitute a wrong.”
So in this case, the jury having found as facts that the defendants conspired together to deprive the plaintiff of its kitchen equipment business, a substantial part of which was between the states and a substantial factor, at least, in interstate commerce in the New England States, and that the defendants, in whatever they did in furtherance of the conspiracy, were actuated by a purpose and intent to eliminate or restrain by unfair methods, and in a substantial degree, the competition of the plaintiff in interstate trade, it was an unlawful conspiracy.
They were, therefore, each guilty of the offense defined in section 1 of the Sherman Act; and under section 7, as amended by the Clayton Act, were liable for all damages to the plaintiff’s business and property, of whatever nature, suffered through their acts in furtherance of their unlawful purpose. We are of the opinion that there was no error in the presiding judge directing- the jury to bring in a verdict for the plaintiff for the amount of the damages found by them.
The judgment of the District Court for the plaintiff is affirmed, with costs.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 15. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_procedur
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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 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.
In the Matter of MUSKEGON MOTOR SPECIALTIES, Debtor. MUSKEGON MOTOR STOCKHOLDERS PROTECTIVE COMMITTEE, Appellant, v. Louis F. DAVIS, Trustee, Appellee.
No. 16492.
United States Court of Appeals Sixth Circuit.
Sept. 29, 1966.
John R. Starrs, Detroit, Mich. (Wurzer, Higgins & Starrs, Detroit, Mich., on the brief), for appellant.
David Ferber, Washington, D. C. (Thomas B. Hart, Adm., J. Kirk Windle, Sp. Counsel, Grant Guthrie, Atty., Chicago Regional Office, S. E. C., Chicago, 111., Philip A. Loomis, Jr., Gen. Counsel, David Ferber, Sol., Richard Nathan, Atty., S. E. C., Washington, D. C., on the brief), for Securities and Exchange Commission.
Joseph S. Radom, Detroit, Mich. (Leonard Meldman, Detroit, Mich., on the brief), for appellee.
Maxwell F. Badgley, Jackson, Mich. (Clifford H. Domke, Jackson, Mich., of counsel), for prospective purchasers of stock.
John A. Ziegler, Jr., Detroit, Mich. (Dickinson, Wright, McKean & Cudlip, Robert E. McKean, Detroit, Mich., of counsel), for Wyman-Gordon Company, Unsecured Creditors.
Before WEICK, Chief Judge, and PHILLIPS and CELEBREZZE, Circuit Judges.
WEICK, Chief Judge.
This is an appeal by a stockholders’ committee representing preferred stockholders of the Muskegon Motor Specialties Company, a Delaware corporation, (hereinafter referred to as Muskegon) from an order of the District Court approving a plan of reorganization under Chapter X of the Bankruptcy Act, 11 U.S.C. §§ 501-676 (1965) Muskegon has owned and operated the Jackson Crankshaft Division, which machines and processes crankshafts for the motor truck industry, since 1930. Since 1955, it has also owned all of the shares of stock of its subsidiary, the Detroit Brick & Block Company, which produces sand-lime bricks for residential and commercial construction in the metropolitan Detroit area. Other diversified divisions of Muskegon, acquired at various stages of its corporate life, have been sold off during the pendency of the Chapter X proceedings.
The District Court held a hearing on a plan of reorganization submitted by the Creditors Committee in December, 1964, more than three and one-half years after the commencement of the proceedings, which plan provided for exchanging shares of stock for creditors’ claims, and evidence was then adduced to the effect that Muskegon was insolvent. The creditors’ plan was dropped and the Trustee submitted an amended plan of reorganization. Hearings on the Trustee’s amended plan were held in January, 1965, at which time additional expert testimony as to the insolvency of Muskegon and the future prospects for the reorganized Jackson Crankshaft Division (Detroit Brick & Block not being insolvent) was adduced by the Creditors Committee and the Trustee in support of the amended plan. No evidence was offered at that time by the preferred shareholders or the Securities and Exchange Commission, and the District Court entered an order finding Muskegon insolvent and approved the amended plan on January 25, 1965. Later, after the required consent of the creditors had been received, the Court confirmed the plan on March 1, 1965.
Because of the appeal from the order of January 25 by the newly-formed Stockholders Protective Committee, no steps were taken to implement the amended plan. The Committee represents holders of the Class A preferred stock of Muskegon, it being generally agreed that the common stock and Class B preferred have no interest remaining in the corporation. In June 1965, SEC moved to vacate the orders approving and confirming the amended plan because of an alleged significant change in the financial outlook of the Jackson Crankshaft Division. The District Court granted this motion on June 23,1965. The proponents of the plan moved for a rehearing of SEC’s motion to vacate. On the rehearing, which was permitted by this Court pending the appeal, additional expert testimony on the issue of solvency of Muskegon was presented in the District Court both by the Creditors Committee and, for the first time, by the Stockholders Committee. On October 25,1965, the District Court filed an opinion and order confirming its original finding of insolvency, vacating the order of June 23, 1965, and denying the motion of SEC to vacate the orders of January 25 and March 1, 1965, approving and confirming the amended plan. SEC, by statute , is given no right of appeal, but it submitted briefs supporting the appeal of the Stockholders Committee and participated in the oral argument.
The Trustee’s amended plan of reorganization which engendered this lengthy and complex dispute provides for the payment in full of all costs and expenses of administration, taxes, wage liabilities, claims incurred during the Trustee’s operation of Jackson Crankshaft, and of all secured creditors. General unsecured creditors are given the choice of accepting 45% of the face amount of their claims in cash or 33 and % % in stock of the new corporation. The interests of the old shareholders, both common and preferred, are eliminated because of the finding of insolvency. Instead, a group of local businessmen has agreed to subscribe for 20,000 of the new shares of common stock of the reorganized corporation and has placed the purchase price of $200,000 in escrow for this purpose. The remaining 12,500 new shares will be taken by the largest unsecured creditor and four smaller creditors in lieu of a cash settlement of their claims. In addition, the new group has arranged a bank loan in the amount of $400,000, secured by mortgage, to finance the payments to the creditors who elected to take cash.
Before the District Court can confirm a plan of reorganization under Chapter X, even one accepted in good faith by the required percentage of creditors, it must be satisfied that the plan is “fair, equitable, and feasible,” 11 U.S.C. § 621. This standard, developed through the years from the prior practices of the federal courts in equity receiverships, must be applied through the exercise of independent judgment of the District Court. As a prerequisite to such a finding, the court must test the plan by the rule of absolute priority; that is, the plan must preserve for each set of interests the priority which it held before the reorganization. Northern Pacific Railway Co. v. Boyd, 228 U.S. 482, 33 S.Ct. 554, 57 L.Ed. 931 (1913); Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 60 S.Ct. 1, 84 L.Ed. 110 (1939), rehearing denied, 308 U.S. 637, 60 S.Ct. 258, 84 L.Ed. 529 (1939). See also Marine Harbor Properties, Inc. v. Manufacturer’s Trust Co., 317 U.S. 78, 63 S.Ct. 93, 87 L.Ed. 64 (1942). In most cases this means that the shareholders of the debtor corporation have no right to participate in the new corporation until all the claims of creditors have been satisfied in cash or by some other method agreeable to them. Thus, if the corporation is insolvent, if the total of its assets is less than its liabilities, then there is no room in the new corporation for the old shareholders unless they contribute fresh capital. Otherwise, they benefit at the expense of creditors who have not been satisfied commensurate with their pre-existing priorities over the shareholders.
In order to measure the fairness of a plan as between creditors and shareholders, some valuation of the debt- or corporation must be made to determine the issue of solvency or insolvency and so provide a guide for the apportionment of interests in the new reorganized business. Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 524, 61 S.Ct. 675, 85 L.Ed. 982 (1941). Although property may be valued in several ways, the courts have long held that earning capacity, the capitalization of future profits, is the appropriate method of valuation in connection with Chapter X proceedings. Consolidated Rock Products Co. v. Du Bois, supra at 526, 61 S.Ct. 675. This is because the very purpose of Chapter X is to preserve the going concern value of a business through the continuation of operations, and so avoid the uneconomic expedient of a forced sale of the assets.
The sole issue that emerges here from the welter of charts, projections, audits, appraisals, expert opinion, and other evidence is the propriety of the District Court’s determination that Muskegon was insolvent. Insolvency was a question of fact to be determined by the District Court from all of the evidence. We do not hear this case de novo. Our function is only to determine whether the order of the District Court finding Muskegon insolvent is supported by substantial evidence. We have no right to disturb it unless we find it to be clearly erroneous, Rule 52(a) Fed.RuIes Civ. Proc.; nor need we pass upon the fairness of the plan with respect to creditors, since they have approved it and it was not questioned either in the District Court or here. The problem involved in determining the issue of solvency is emphasized by the judgmental character of valuation by future earning capacity and the divergent assumptions and conclusions expressed not only by the opposing parties, but also among various experts who testified in the case. We hold that, on the record before us, the District Court’s determination of insolvency, in his carefully prepared opinion, was supported by substantial evidence and is not clearly erroneous.
In bankruptcy, a finding of insolvency is arrived at by a comparison of the assets (here being the capitalized value of future earnings) with liabilities. The calculation of either of these factors will thus affect the final determination. In its turn, each of these elements is a function of other calculations and projections which in this ease were the subjects of extensive expert testimony and are not the outcome of mere mathematical calculation.
The capitalized value of the business is a function of its estimated average annual future earnings and the rate of capitalization, or “multiplier”. The earnings base is itself determined by two factors: projected future sales and the estimated profit margin on those sales. The plan proponents presented several witnesses with various appraisals of Jackson Crankshaft. Chief among these were Dr. DeSpelder and Mr. Welling. The shareholders presented the testimony of Mr. Taylor. Mr. Taylor was the only witness who ever found the company to be solvent — Welling, DeSpelder, and other witnesses offered by the proponents of the plan found insolvency, though to different degrees. Muskegon was also insolvent by a wide margin in the two appraisals ordered by the Court. As on all other relevant factors, these witnesses differed, and it is instructive to examine and compare their findings and opinions.
Both Welling and Taylor used the same projected sales figures in ascertaining average pre-tax earnings for the next five years in the crankshaft business. Their results differed solely because Welling adopted an average profit rate of 6% of sales, while Taylor allowed a 7.7% rate of profit on those same sales. As the District Court pointed out, Welling’s figure seems more realistic in view of the past history of the company. Moreover, Mr. Taylor arrived at his figure by dropping the high and low profit years from the period 1961-65 and averaging the remaining three years. In so doing, he eliminated the very low (1.4%) figure for the year 1964. This omission is. particularly significant since the low profits of 1964 were the result of a risk inherent in Muskegon’s crankshaft business. In fact, it sustained heavy losses imposed on it that year due to unexpected demands for added production by the Ford Motor Company, a customer which accounts for 50% of Muskegon’s crankshaft business. Because of the need to satisfy Ford on short notice in order to retain its business, unskilled workers had to be hired and inefficient plant operation was required, with resulting high costs and low profits. (It should also be noted that Mr. Taylor contended for a very high multiplier, which again disregards the risk stemming from Muskegon’s heavy dependence on the Ford business^ — thus, in effect, twice eliminating this important factor from his appraisal.)
Dr. DeSpelder estimated an average net profit over the next five years of $280,000, more than double Mr. Welling’s estimate of $136,980 and more than 50% above Mr. Taylor’s figure of $175,451. He differed with Taylor and Welling in applying a projected sales rate of approximately $500,000 more per year and in using a profit rate of 7% for the crankshaft business. It is illuminating to note that if Dr. DeSpelder’s assumed net pretax profit is applied to the sales figures used by Mr. Taylor, the resulting estimate of profit rates differs by only 0.1%, yet Dr. DeSpelder found insolvency while Mr. Taylor found solvency.
The chief controversy in this case, however, does not center on the varying estimates of projected earnings, divergent as they may be. Rather, it focuses on the rate of capitalizing those earnings, the so-called “multiplier”. This figure is a rough estimate of the risk figure inherent in a particular business. All of the witnesses presented by the plan’s proponents agreed that a figure of 5 or less was the appropriate multiplier for the crankshaft business, indicating an expected return of 20% on investment. Mr. Taylor, however, applied a multiplier of 9.1 to his estimated earnings base and this was the main factor in his high valuation of the Jackson Crankshaft Division.
The proponents’ witnesses arrived at a multiplier of 5 through an independent analysis of the risks in the character of the crankshaft business and the particular situation of Muskegon. Some of the factors on which they relied were the cyclical nature of the truck industry in general; the fact that Muskegon supplied only labor for one product and had no other ; the fact that it had only about seven customers; the dependence of Muskegon on one large customer which might decide to begin producing its own crankshafts or otherwise disrupt Muskegon’s profits as in 1964; the age and condition of the plant and equipment; and possible uncertainties in management, expenses and operations. Mr. Taylor, on the other hand, arrived at his 9.1 estimate of appropriate capitalization by mere mathematical calculation of the price-earnings ratios of a group of selected auto parts manufacturers listed on the stock exchange. The District Court rejected this sole dependence on stock market data, and we agree.
Two factors lead to this rejection. First, of the 36 companies used by Mr. Taylor in his computations, few if any can be considered comparable to Muskegon. None had sales in 1964 of less than four times Muskegon’s sales of that year and some had more than 100 times its sales. Certainly a simple, unqualified or unadjusted calculation made from these figures cannot be accepted at face value. Second, we cannot sanction the direct application of ratios derived solely from the stock market in the valuation of a small, unlisted company with no market for its shares. While the price-earnings ratios of the larger companies in the same industrial grouping may be considered as relevant evidence to some extent, they cannot serve as a sole guide to value under the guise of infallible “market judgments”. As the District Court rightly emphasized, the stock market is daily influenced by factors of a speculative or emotional nature that do not necessarily enter into a realistic evaluation of long-run economic values. The pressure of fads and rumors often causes distortions in price ratios which should not be considered in a careful long-term valuation. Thus, even though Mr. Taylor could have referred in part to stock market figures, they cannot be accepted as the sole determinant of value here.
Further, if Dr. DeSpelder’s figures are once again adjusted for comparison with Mr. Taylor’s, we find there is less difference than appears on the surface. Thus, if DeSpelder’s total valuation of $1,400,000 is superimposed on Taylor’s earnings base of $175,451, it appears that a multiplier of 8 results. This means that if DeSpelder had used the same earnings base as Taylor, he would have chosen a multiplier very close to Taylor’s. Since risk estimates are inherent both in the earnings base estimates (as to projected sales and profit rates) and in the calculation of the multiplier, as we noted in regard to the 1964 Ford order, it is apparent that in their overall appraisals of the risks and value of the Jackson Crankshaft Division, Taylor and DeSpelder differed very little. This is demonstrated by the proximity of their total appraised values: DeSpelder — $1,400,000; Taylor —$1,596,604.
The other main appraisal, that of Mr. Welling, differed substantially from either of these two. Mr. Welling found a going concern value for the Jackson Division of only $684,900. This was the natural result of his use of lower sales, profit, and multiplier figures all in the same estimate. There is no correspondingly high counter-appraisal to balance Mr. Welling’s figures. Thus, the District Court would have the right to decide that although Taylor and DeSpelder were in substantial agreement on the value of the crankshaft business, DeSpelder’s appraisal was the more reliable. If Taylor had used Welling’s lower profit rate and earnings base, thus accounting for the Ford risk factor illustrated in 1964, as a counterbalance to his high mutliplier, his valuation would actually fall below that of Dr. DeSpelder — $1,246,518.
Before turning to the other element of the Muskegon valuation, the going-concern appraisal of the wholly-owned Detroit Brick subsidiary, it may be helpful to focus on the other factor in the finding of insolvency, the liabilities. A miscalculation of liabilities can be as damaging as an error in valuation of assets. However, here, despite appellants’ contention, the District Court correctly found that the debtor corporation’s liabilities totalled $1,350,000 exclusive of accrued interest and administrative expenses. This figure is in substantial agreement with that contended for in the brief of SEC and appears both in the order confirming the plan on March 1, 1965, and in the opinion on the motion for rehearing dated October 8, 1965. The expenses of the Chapter X administration since 1961 will total approximately $200,000, as all the parties agree. Since the determination of liabilities is being made with the continuation of the business in mind, the statutory interest accruing on the creditors’ claims must also be considered as a liability before any interest is allocated to the stockholders. Otherwise, the creditors would be denied their “absolute priority”. A finding of solvency would necessitate the payment of interest at the statutory rate, so that accrued amount must be considered in determining solvency. Ruskin v. Griffiths, 269 F.2d 827 (2d Cir. 1959) cert. denied 361 U.S. 947, 80 S.Ct. 402, 4 L.Ed.2d 381 (1960). This accrual totals at least $300,000 and makes the total liabilities of Muskegon at least $1,850,000 exclusive of a contested tax claim of more than $42,000. The SEC estimated liabilities on July 1,1965 at $1,923,294.
Thus, with liabilities of between $1,-850,000 and $1,900,000 the District Court would have had to find a value of at least $450,000 for the Detroit Brick & Block Company subsidiary in order to find solvency using Dr. DeSpelder’s estimate of the Jackson Crankshaft Division ($1,400,000) or, using Mr. Taylor’s valuation ($1,596,604), at least $253,396. According to Mr. Welling’s estimate, solvency would be almost impossible to find, since Detroit Brick would have to be worth more than the Jackson Division in order for their total value to equal or exceed the liabilities.
It is apparent that on the key issue of solvency the valuation of Detroit Brick & Block assumes special importance. Dr. DeSpelder, using an earnings base of $77,700 and a multiplier of 4, found a going-concern value of $310,800. Mr. Taylor, however, arrived at a figure of $521,820, based on an estimated earnings base of $44,600 and a multiplier of 11.7. If Mr. Taylor’s earnings projection is used for both totals, thus focusing all risk and economic judgments on the choice of the multiplier or rate of capitalization, it will be seen that Dr. DeSpelder would have used a multiplier of almost 7, rather than 4.
The main difference between DeSpelder and Taylor here is the high multiplier applied by Taylor. He testified that it was calculated by computing the price-earnings ratios of two comparable brick supply companies. However, it is clear that this mathematical operation alone cannot justify the use of such a high rate of capitalization, especially in the face of other evidence and the testimony of other equally qualified experts. First, there is some evidence that offers of $175,000 and $200,000 have been tendered for the purchase of the brick company in the recent past. Although these are by no means conclusive of full value, they are at least some evidence of what it would bring on the market. Second, the earnings records of Detroit Brick & Block show that over the past 18 years, it has sustained substantial losses in eight years and earned a profit in only ten. The net average annual pre-tax profit for the company was only $14,341, far below even Mr. Taylor’s low projection of $44,600 after taxes. Finally, the brick company is tied to its customers in the construction industry and shares their fortunes in that volatile and cyclical business, a factor which hardly justifies assigning it a multiplier higher than that used for Jackson Crankshaft in the auto parts industry. Considering all these factors, it cannot be said that the District Court’s failure to accept and adopt Mr. Taylor’s valuation in boto was wrong.
This extensive review of the complex and conflicting evidence presented during the course of the hearings on solvency reveals one fundamental fact: the District Court would have had to accept each and every contention of the appellants at full face value in order even to approach a finding of solvency. The District Judge saw and heard the testimony of all of the expert witnesses and was in a much better position to pass upon their credibility than we are. He was familiar with the proceedings and the affairs of Muskegon. If any weight whatever is given to the voluminous evidence presented by the proponents of the plan of reorganization, then substantial support for the finding of insolvency is provided. In such a situation, the finding of insolvency can in no way be deemed clearly erroneous under Rule 52(a). Dudley v. Mealey, 147 F.2d 268 (2d Cir. 1945) cert. denied 325 U.S. 873, 65 S.Ct. 1415, 89 L.E.d. 1991 (1945); In re Plankinton Building Co., 148 F.2d 119 (7 Cir. 1945) cert. denied Harvey v. Grossman, 326 U.S. 729, 66 S.Ct. 36, 90 L.Ed. 483 (1945). The valuation of a business remains an art based on the use of informed, careful judgment (including that of the court), and it cannot be expected to yield mathematically precise results. Consolidated Rock Products Co. v. Du Bois, supra, 312 U.S. at 526, 61 S.Ct. 675.
The unsecured creditors, most of whom elected to take cash, have already been delayed for more than five years in realizing on their claims. These creditors are satisfied with and have approved the plan of reorganization and are resisting the efforts of the preferred shareholders to share in the assets and further delay the closing of the estate.
Although the unsecured creditors are not being made whole either in cash or stock and could not be so compensated in the reasonable future, the preferred shareholders still think that some provision should have been made in the plan for them to share in the assets of the debtor. They all had the opportunity to participate in the reorganized company by putting up some new money, but they declined to contribute anything to its capital. Instead, the preferred shareholders are complaining about the alleged unconscionable bargain the group of local businessmen will receive for their $200,000 investment, even though the shareholders declined to invest in the reorganized company. The shareholders paint a rosy picture about the prospects of the reorganized company over the next five years, but this fails to take into account that the investors could lose their money in the event of a business recession, strikes and labor stoppages in the reorganized company or in the plants of their customers, or other adverse conditions. The shareholders ought not to be permitted to gamble on the future of the reorganized company with the money owing to creditors that is so long past due.
For these reasons, the judgment of the District Court is affirmed.
. The proceedings were originated under Chapter XI on April 12, 1961, and thereafter, on motion of the Securities and Exchange Commission, were transferred to Chapter X.
. 11 U.S.C. § 608.
. The names of these four creditors and the amounts of their claims are not shown in the record filed in this Court.
. The proponents of the amended plan presented several other witnesses in addition to DeSpelder and Welling. In general, witnesses Sanders and Wade, both CPA’s, corroborated Dr. DeSpelder’s opinion on the going concern value of the Jackson Crankshaft Division. Mr. Nicholson, an investment banker, used multipliers similar to those of DeSpelder, Sanders, and Wade, but projected a much lower earnings base ($112,000) and so found a value of only $448,000 for the crankshaft business. Finally, Mr. Zick, who testified at the summer hearings along with Mr. Welling, used a multiplier of 5 and found a value of only $389,000 for Jackson Crankshaft. Thus, every witness called by the proponents found Muskegon to be insolvent.
The District Court appointed two appraisers to value the physical assets, based on a premise of liquidation rather than reorganization. These witnesses, Legg and Horton, together found a valuation of $634,980 at forced sale and $805,044 at fair market for the land, buildings, machinery and equipment of Jackson Crankshaft Division. Apparently, no discount factor was applied to the value of the accounts receivable in the Trustee’s balance sheets, despite the fact that they, too, might decline drastically in value if the company were to be liquidated rather than reorganized and continued. Although a liquidation valuation is not the proper method for determining solvency in reorganization hearings, and was not so used here,' the high degree of insolvency that these figures reveal makes the need for an equitable reorganization all the more clear so as to avoid further damage to the interested parties.
. An additional risk factor, probably accounted for in the witnesses’ earnings projections, rather than the multiplier factor, is the necessity of funding Muskegon’s large deficiency in contributions to its employees’ pension funds. In order to make up these deficiencies, maintain current payments, and meet future increases that may be negotiated by the unions, Muskegon will experience a heavy drain on its income for many years to come. This is virtually a fixed cost as far as the amortization of past deficiencies is concerned and constitutes one of the major risks being assumed by the new owners.
. See footnote 4, supra.
. The figure which appears in paragraph 4 of the order of March 1, 1965, is actually $1,260,150.78. However, this is exclusive of secured debts then owing.
. If $31,019 of liabilities of the defunct Ridge Sales subsidiary is also included, the Court’s finding almost exactly matches that of the SEC.
. Of the other witnesses, Mr. Nicholson found a going-concern value for Detroit Brick of approximately $200,000 and Mr. Zick estimated a liquidation value of $230,000 after finding a going-concern value of only $74,635. The Legg-Horton liquidation appraisal of the physical assets of Detroit Brick showed $191,974 at fair market value and $152,525 at forced sale.
. If post-tax figures were used for the average annual profit 1948-65, thus making a more accurate comparison, the difference between Taylor’s projection and the actual earnings history would be even greater.
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_respond1_7_2
|
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 concerns the first listed respondent. 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").
Javier DIAZ, et al., Plaintiffs, Appellees, v. Vincent CIANCI, Etc., et al., Defendants, Appellees. Louis DeFrances, et al., Defendants, Appellants.
No. 83-1609.
United States Court of Appeals, First Circuit.
Argued April 4, 1984.
Decided June 25, 1984.
Joseph F. Penza, Jr., Providence, R.I., with whom Olenn & Penza, Providence, R.I., was on brief, for Vincent Cianci; etc., et al.
David A. Cooper, Providence, R.I., for Javier Diaz, et al.
Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and HUNTER, Senior District Judge.
Of the Western District of Missouri, sitting by designation.
ELMO B. HUNTER, Senior District Judge.
Javier Diaz sued to recover damages for injuries sustained at the hands of the Providence Police after being stopped for a traffic violation. Diaz’s grandmother joined in the suit to recover medical expenses she incurred for Diaz as a result of the beating. At the close of plaintiffs’ case, the City and its officials were granted a directed verdict and trial proceeded solely against the individual patrolmen. After a three day trial, the jury returned verdicts favorable to both plaintiffs against all three individual defendants granting actual and punitive damages. The defendants appeal the judgment of the district court on three principal grounds: (1) exclusion of evidence of Diaz’s juvenile conviction for assault arising out of the same incident; (2) exclusion of evidence pertaining to the activities of officers Glancy and Grover and evidence that officer Glancy was injured in his struggle at the scene with a third party; and (3) improper jury instruction.
(1) The trial court granted plaintiff’s motion in limine and barred introduction of the fact that Diaz had been prosecuted and found guilty of assaulting DeFrances and Grover during the very incident which gave rise to the instant litigation. This ruling was based on alternative reasons. The trial court found that the evidence should be excluded under Federal Rules of Evidence 403. The court exercised its discretion to exclude otherwise relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice, or if.it would be misleading to the jury. The court found that the juvenile adjudication suffered by the plaintiff if revealed to the jury would result in unfair prejudice. The court was concerned that the evidence would be taken by the jury to indicate that the force the police used was necessary, when in fact the conviction might have been based on a minimum amount of force used by the plaintiff. Since the jury would be able to hear all of the first hand evidence relating to whether the force used by the police was reasonable, the value of introducing the conclusion of a prior fact finder was considered substantially less weighty than the potential unfair prejudice it might cause.
Alternatively, the trial court found that the juvenile adjudication was not admissible under Rhode Island General Laws § 14-1-40 which prohibits the use of the disposition of juvenile proceedings as evidence against the child in any case or proceeding in any other court. Given the great possibility of prejudice and the potential for confusion on the part of the jury,' the trial judge acted within the permissible bounds of his discretion in excluding the evidence of Diaz’s juvenile adjudication. See Shepard v. General Motors Corp., 423 F.2d 406, 408 (1st Cir.1970). Since exclusion of the evidence was permissible under the federal rules, we find it unnecessary to decide whether the Rhode Island statute overrides application of the federal rules and required exclusion of the evidence.
(2) The trial court excluded some evidence pertaining to officers Glancy and Grover’s activities at the scene of the beating and excluded an emergency room report pertaining to officer Glancy’s injuries inflicted by one of Diaz’s passengers, Dennis Isom. Defendants claim they were entitled to have the jury hear their account of what they were doing with Dennis Isom during the time that Diaz was beaten. They claim the testimony was admissible on the issue of whether they were in a position to intervene to stop the other officer and keep him from violating Diaz’s rights. Defendants concede that the trial court admitted evidence on this point, but claim they should have been able to go into greater detail so that the testimony would have carried more weight. The record is clear that the court did in fact allow both officer Glancy and officer Grover to testify about their activities with respect to Isom at the time officer DeFranees was beating Diaz. For example, officer Grover testified that he saw Isom grab DeFranees around the neck, that Grover and Glancy attempted to enter the back seat to stop Isom and were both kicked by Isom in the process and that Glancy was knocked down. Grover further testified that Glancy and Grover apprehended Isom and placed him in the patrol car, that during their struggle with Isom they didn’t see the struggle going on between DeFranees and Diaz, that after Isom was put in the patrol car De-Frances and Diaz were rolling on the sidewalk and that Grover saw DeFrances strike Diaz. Grover testified that after reporting to the station, they were told to go to the hospital to get medical attention, and that the doctor told him to take off one and one-half days.
Glancy testified that while he was trying to get Isom out of the back seat his attention was on Isom and he was unable to observe what was going on in the front seat. Glancy testified that he did not have the ability to observe DeFrances from the time of the initial scuffle with Isom until after Isom had been apprehended and taken into custody. At that point Glancy was approximately 25 feet from the Diaz vehicle, and could not see the ongoing fight with Diaz. . Glancy stated he saw the be-. ginning of the fight with Diaz, and could have been in a position to stop DeFrances, but instead decided to arrest Isom.
A review of .the evidence excluded indicates that all of the excluded evidence was cumulative. The record at several points shows testimony pertaining to the confrontation Grover and Glancy claim to have had with Isom. The defense attorney admitted to the trial judge that the principal reason the evidence was offered was to rebut plaintiffs evidence on matters collateral to the central issues of the case. App. at 292-93. The trial judge did not abuse his discretion in excluding the cumulative evidence pertaining to a collateral matter.
(3) Defendants contend that the instructions to the jury allowed a finding for the plaintiffs and against officers Glancy and Grover “if they found Glancy and Grover at the scene where a beating was taking place and did nothing to prevent it,” even if there was no finding that Glancy and Grover were in a position to do anything about - the beating. The jury was instructed that there was no evidence that officers Glancy or Grover beat the plaintiff, and that they could only find Glancy and Grover liable upon a finding that:
(1) They in fact saw the infliction upon the plaintiff of the alleged beating, that is, of the alleged unconstitutional conduct; and
(2) They failed to act, and that their failure to act sprang from an intent on their part to deprive the plaintiff of his civil rights.
The instructions as given did go further than the defendant claims is necessary. The cases cited by defendant indicate that a police officer may be liable for mere failure to intervene to stop a violation of civil rights when the officer was in a position to intervene. See, Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir.1981). This would amount to liability for mere unreasonable nonfeasance. The instructions as given allowed the jury to find the defendants liable only if their failure to act was caused by an intent to deprive Diaz of his constitutional rights. In affirming the judgment under the instructions given, we do not decide whether a finding of intent is required to impose liability. Rather, we merely find that if the instructions were erroneous, any error was in favor of and not prejudicial to the appellants.
The judgment of the district court is affirmed.
Question: This question concerns the first listed respondent. 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:
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sc_respondentstate
|
41
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
TERRELL v. MORRIS, SUPERINTENDENT, SOUTHERN OHIO CORRECTIONAL FACILITY
No. 88-7535.
Decided October 10, 1989
Per Curiam.
Petitioner Terrell is incarcerated in a state prison in Ohio. After applying for state-law postconviction relief, he petitioned for a federal writ of habeas corpus pursuant to 28 U. S. C. §2254 (1982 ed.).
Terrell’s habeas petition includes an ineffective-assistance-of-counsel claim. The Ohio courts held in postconviction proceedings that Terrell had defaulted this claim by failing to raise it when represented by new counsel on direct appeal. In so doing, the Ohio courts relied upon State v. Cole, 2 Ohio St. 3d 112, 113-114, 443 N. E. 2d 169, 171 (1982). The Cole rule postdated Terrell’s appeal, which was decided on December 30, 1981. Before Cole, Ohio had permitted ineffective-assistance claims in collateral challenges even if a petitioner had not raised those claims when represented by new counsel on direct appeal. See State v. Hester, 45 Ohio St. 2d 71, 71-72, 74-75, 341 N. E. 2d 304, 305, 307 (1976) (permitting a postconviction ineffective assistance claim to go forward despite a failure to raise the issue on direct appeal); see also Cole, supra, at 113-114, 443 N. E. 2d, at 171 (expressly modifying Hester).
Terrell thus could not have known that he would default his ineffective-assistance claim by his new counsel’s failure to raise it on direct appeal. Terrell argued to the Federal District Court that the State could not invoke its procedural default rule retroactively. The District Judge agreed and proceeded to the merits of Terrell’s ineffective-assistance claim.
The Sixth Circuit disposed of Terrell’s pro se appeal in a per curiam, unpublished opinion. Terrell v. Marshall, 872 F. 2d 1029 (1989) (judgment order). The Court of Appeals held that “the District Court properly determined that Terrell’s” ineffective-assistance claim, as well as several other claims, “were not re viewable” because of Terrell’s “failure to raise these claims in state court proceedings.” App. to Pet. for Cert. A-2. The District Court had, however, made no such determination: the District Court reached the merits of the ineffective-assistance claim because the only applicable procedural default rule postdated Terrell’s conviction. The Court of Appeals neither noted nor addressed the retroactivity issue.
The Sixth Circuit, by its unpublished opinion, affirmed a decision that the District Court never made, and so never reviewed that court’s actual decision. Review of the procedural bar and retroactivity issues should be undertaken based on a correct formulation of the ruling in the District Court. Accordingly, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted. The judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
The author of the Court of Appeals’ unpublished opinion may have relied on the Magistrate’s conclusion that petitioner’s ineffective-assistanee-of-counsel claim was barred by procedural default. See App. to Pet. for Cert. C-4. The Magistrate, however, had. neither noted nor addressed the retroactivity issue that the District Court resolved in petitioner’s favor. Because the question whether the Ohio Supreme Court’s decision in State v. Cole, 2 Ohio St. 3d 112, 443 N. E. 2d 169 (1982), should be given retroactive effect may govern the disposition of a significant number of ineffective-assistance-of-counsel claims, the question clearly merits the attention of the Court of Appeals. Moreover, since the answer to the question requires a familiarity with Ohio law, it should not be addressed in this Court before we have the benefit of the Court of Appeals’ views.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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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.
GALLARDO, Treasurer of Porto Rico, v. COOMBS et al.
Circuit Court of Appeals, First Circuit.
November 27, 1928.
No. 2256.
, William Cattron Rigby, Lieutenant Colonel, Judge Advocate, John A. Hull, Major General, Judge Advocate General, both of Washington, D. C. (James R. Beverley, Atty, Gen. of Porto Rico, on the brief), for appellant.
Dean Hill Stanley, of Washington, D. C. (David A. Buckley, Jr., of New York City, on the brief), for appellees.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge.
This is a suit at law begun in the United States District Court for Porto Rico on May 20, 1920, by the trustees in dissolution of the Fajardo Sugar Company — which, was doing business in Porto Rico until February, 1919 — against the treasurer of Porto Rico, to recover seven-twelfths of an income tax — $28,806.18—vol-untarily paid by the Fajardo Company on January 3 or 7, 1919, under Act No. 59 of the Porto Rican Legislature, approved December 4,1917. A jury trial was,1 in writing,, waived by both parties. The court below found for the plaintiff in the full amount claimed, $16,803.57.
This ease, like most tax eases, turns upon the construction ’ of statutes — the ascertainment of the legislative intent. Until June 26,. 1919, Porto Rico was subject to the federal income tax under the Act of September 8> 1916, 39 Stat. 756. But by the War Revenue Act of October 3, 1917, 40 Stat. 300, and. again by the Act of February 24, 1919, 40 Stat. 1087, Congress vested in the Porto Ri-can Legislature power to amend, modify, or repeal the federal income law otherwise there operative. The first exercise of this new power was by the passage of Special Act No. 59 of December 4, 1917, entitled “An act to provide additional revenues for the people of Porto Rico through the levying of certain additional income taxes, and for other purposes.” By section 1 of this act it was provided: “That in addition to any normal or additional taxes imposed by existing law, there shall be levied,” etc., for the year July 1,1917, to June 30, 1918, an income tax oh a stated sliding scale. By its terms, Act No. 59 covers the year ending June 30, 1918, and no other period. Sections 7 and 8 provide for returns within 60 days from the end of the tax year, and the payment of the tax within 15 days after notice from the treasurer of his determination of the amount thereof. It thus contemplated actual collection in the fall of 1918. Under this act the Fajardo Sugar Company made a return of an income of $756,154.40, and paid on January 3 or 7, 1919, a tax of $28,806.18, without protest. In the record is a certificate from the treasurer’s office, dated August 3, 1927, stating that the company made “its income tax return for the taxable year ended July 31,1918,” and this certificate was apparently carelessly adopted both by counsel and by the court below as accurate. It was not; for, as noted above, under Act No. 59 the taxable year ended June 30, 1918, not July 31, 1918. No tax was; or could be, assessed under it for a year ending July 31, 1918. This blundering admission of the Porto Rican tax authorities of a payment to July 31,1918, under a statute applicable only until June 30, 1918, is fairly characteristic of this entire record and of the loose and careless proceedings in the tax department and in the trial before the court below.
While, about a year later, the Porto Rican Legislature, by Act No. 8, approved December 12, 1918, continued Act No. 59 in force for the next fiscal year, ending June 30, 1919 — Act No. 8 was never put into actual operation for tax-levying purposes; for, on June 26, 1919, the Legislature dealt, generally, with its plenary income tax powers by enacting an elaborate act of 83 sections, Act No. 80 — and repealed, or (more accurately) made inoperative in Porto Rico, the federal tax act, as well as section 1 of Act No. 8, which extended Act No. 59 for another year.
The amount of the income tax paid by the Fajardo Sugar Company under the new general Act No. 80 for the calendar year 1918 is not shown by evidence; but there is in the record a letter from the sugar company’s attorney to the treasurer, dated December 13, 1923 (replete with inconsistencies), in which it is stated:
“In addition to having paid a tax imposed by law No. 59 for the income derived since January 1, 1918, to July 31, 1918, the company also paid, in accordance with Law No. 80, for the same period, the sum of $60,322.-72.”
Probably the writer intended to say, not that $60,322.72 was paid “for the same period” — i. e., January 1 to July 31, 1921, seven months — but for the year 1918. However that may be, there is neither allegation nor evidence that the tax assessed under Act No. 80 for the calendar year 1918 was not paid in full and without protest.
The court ruled:
“Act No. 80 of June 26, 1919, was made effective and took effect January 1, 1918, and was intended to supersede and did supersede any and all other income tax laws on and after said January 1, 1918, and among them Act No. 59. The Fajardo Sugar Company paid in excess under Act No. 59 that portion of the tax corresponding to the income from January 1, 1918, to July 31, 1918, the income for whieh period was only subject to the tax provided for by Act No. 89. That complainants as trustees of the Fajardo Sugar Company are therefore entitled to a refund of seven-twelfths of $28,806.18, or $16,803.57.
“Upon the approval of said Act No. 80, the treasurer of Porto Rico was in duty bound to credit the Fajardo Sugar Company with the payment made under Act 59, to wit, $16,803.57, and not having done so, he should be compelled to return the said amount to the complainants.”
Passing the error as to seven months, instead of six months, this ruling amounts to holding that Act No. 80 is to be construed as requiring taxes levied under Special Act No. 59 on income for the first half of 1918, already paid (unless long overdue), to be applied as payment pro tanto of taxes assessed under No. 80, enacted a year and a half later.
To sustain this ruling, we must find in Act No. 80 clear directions to the treasurer to ascertain and credit as part payment of taxes levied thereunder all taxes levied and paid under Act No. 59 on income accrued in 1918. It is not enough to hold Act No. 59 “repealed,” for it had done its -work, and was (as to this taxpayer at least) functus officio; nor that it was “superseded,” whatever that may mean; for Act No. 80 authorized the levy of taxes for the calendar year 1918, and clearly such taxes must be collected under the terms of Act No. 80. The sole question, then, is whether, under the sections in No. 80 dealing with collection, we find directions to credit any part of taxes collected under an act passed a year and a half previous. There are no such directions. Sections 64 and 65 are headed, “Collection of Income Tax,” and simply provide that taxes levied under Act No. 80 shall be collected by the treasurer through the same summary proceedings provided by existing law for the collection of property taxes, and that the treasurer shall give proper receipts for payments. This mandate to the treasurer was absolutely unqualified; it required him to collect all — not a part — of the tax levied under that act; previous collections under Act No. 59 were no more part payment of taxes levied under No. 80 than previous collections under the federal act of 1916, supra.
Other tests of statutory construction lead to the same result. In this ease we have not only the contemporaneous construction of the executive officers charged with the enforcement of the act, but apparently of the taxpayers; many of them large concerns, presumably acting under the advice of experienced and competent counsel. Under these conditions, this well-established doctrine has unusual weight. See Baltzell v. Mitchell (C. C. A.) 3 F.(2d) 428, 430; Old Colony Trust Co. v. Malley (C. C. A.) 19 F.(2d) 346, 347. Inferentially, all other taxpayers in Porto Rico made like payments, in like manner, without protest. To affirm the judgment below would apparently put this taxpayer in a class by itself, exonerating it from a substantial tax paid by all other concerns in like status.
Again, Act No. 80 provides no method for determining and applying the amount of the income tax accruing for the first half of 1918 as payment pro tanto of the tax imposed by Act No. 80. There is no presumption that the profits of a taxpayer for the last half of 1917 were equal to its' profits for the first half of 1918. It was a time' of war and of widely fluctuating prices, particularly in the sugar industry. To hold, as the court below held, that the tax paid under Act No. 59 should be prorated by periods (erroneously seven-twelfths, instead of six-twelfths), is to ignore the logical basis of the ruling, which obviously was that all income taxes for 1918 under both acts should be based solely on the profits of 1918. As the Legislature provided no method of determining what proportion of the tax under No. 59 for the year ending June 30, 1918, was based on profits accruing after January 1, 1918, the inference is irresistible that no such offset (or credit) was intended. To make Act No. 80 workable on the theory of the court below would require us to read into it provisions (inter alia) for new returns under Act No. 59, showing profits for each six months of the tax year July 1,1917, to June 30, 1918, and then to credit taxes paid on the profits of the second six months as part payment of the new tax assessed under Act No. 80.
If we turn to the specific language in Act No. 80, relied upon by the appellee’s counsel in support of their proposition, we reach the same result. The definition of “taxable year” in section 2, entitled “General Definitions,” does not help the appellees. It reads:
“The term ‘taxable year’ means an accounting period of twelve months upon the basis of which net income shall be computed pursuant to this act. The first taxable year for the purposes of this act, shall be the calendar year ending the thirty-first day of December, nineteen hundred and eighteen, or any accounting period of twelve months ending during the calendar year nineteen hundred and eighteen. Subsequent taxable year shall be computed from the date on which the first taxable year expires: Provided, that in no ease shall a tax rate higher than the one established by income laws in force on said date be collected on income obtained prior to January 1, 1918.”
The proviso at the end of section 2 that “in no case shall a tax rate higher than the one established by income laws in force on said date be collected on income obtained prior to Jarmary 1,1918,” has no application to income accrued after January 1, 1918, the sole subject-matter of Act No. 80.
Sections 77, 78 and 79 read:
“Section 77. That pursuant to the provisions of section 5 of the federal Act of October 3,1917, granting power to the Legislature of Porto Rico to amend, alter, modify or repeal the income-tax laws in force in Porto Rico, through proper legislation, there is hereby repealed in Porto Rico the federal Act of September 8, 1916, as amended October 3,1917, except that the same shall continue in force with regard to the levying and collection of all taxes accrued thereunder and for the levying and collection of all fines heretofore imposed or which it may be necessary to impose in connection with said taxes: Provided, that for the calendar year 1918 no income tax shall be collected which is different from that established by this act.
“Section 78. That all laws or parts of laws in conflict herewith are hereby repealed; but the provisions thereof shall continue in force as regards the levying and collection of all taxes accrued thereunder, and for the levying and collection of all fines imposed or that may be imposed in connection with said taxes; and any appropriation made for the purpose of carrying out the provisions of said laws shall also remain in force.
“Section 79. That section 1 of Act No. 8, approved December 12, 1918, entitled ‘An act to continue in force the provisions of an act entitled “An act to provide additional revenues for the People of Porto Rico, through the levying of certain additional income taxes, and for other purposes,” approved December 4, 1917, for the purpose of reconstructing the insular buildings and aiding the municipalities, school boards and private persons in the reconstruction of buildings that have been damaged by reason of the recent earthquakes; to create a board; to authorize the Governor of Porto Rico to borrow certain amounts, and for other purposes,’ be, and the same is hereby, repealed.”
Prom section 77, counsel excerpt and rely upon the language at the end:
“That for the calendar year 1918 no income tax shall be collected which is different from that established by this act.” But this language must be read in the light of its context; the context shows that the Legislature was, by this section, for the first time, exercising its power to make the federal law inoperative for the future in Porto Rico; but with a saving clause that the federal law should remain in force so far as necessary to cover the collection of any uncollected tax accrued thereunder. Then by way of caution — lest the saving clause should be overextended into a possible basis for a new assessment under the federal law — it added the proviso, “That for- the calendar year 1918 no income tax shall be collected which is different from that established by this act.” But this proviso plainly refers to the old federal law; it does not refer to the Special Income Tax Act, No. 59, passed by the Porto Rican Legislature itself. And it looks to future assessments; not to assessments made nearly a year earlier under Act No. 59 and presumably already collected and spent. This proviso cannot be twisted nor extended into a requirement that the treasurer should ascertain the amount of income paid by taxpayers, under Act No. 59, on profits accrued during the first half of 1918, and credit such payment to the amount assessed under the new general Act No. 80.
Section 78 leads to the same conclusion. It provides: “That all laws or parts of laws in conflict herewith are hereby repealed; but the provisions thereof shall eontirme i/n force as regards the levying and collection of all taxes accrued thereunder.” Act No. 59 is not in conflict; it was not repealed; and the saving clause is broad enough to cover any taxes accrued under it and then unpaid. If the Porto Rican Legislature had intended that taxes already paid or long overdue under Special Act No. 59 should offset, pro tanto, taxes accruing under the General Act No. 80, it would have said so in plain terms. It would not have left a provision, — so unusual and so inconsistent with wartime needs, —to be inferred (years after) out of a definition of the taxable year and the repeal in Porto Rico of the federal income tax law.
Some significance also attaches to the provision in section 79, expressly repealing section 1 of Act No. 8 (which extended for another year Act No. 59) without indicating any purpose not to leave Act No. 59 in full operation and effect for the tax year July 1,1917, to June 30,1918. If the Legislature had intended to make Act No. 59 in effect inoperative for the latter half of the tax year covered by it, it would not have repealed the extension of the act for another tax year without mentioning the first six .months of 1918, as to which, as is now argued, Act No. 59 was “superseded.” Otherwise put, section 79 shows an intent to leave all rights created by Act No. 59 unaffected.
Our general conclusion that Act No. 80 had no legal effect, upon taxes levied and/or paid under Act No. 59, makes it unnecessary for us to deal with the other defenses urged by appellant’s learned counsel: (1) That the payment was voluntary and cannot be recovered under well-settled doctrine. 2 Cooley, Taxation (3d Ed.) pp. 1495-1504, and cases cited; 34 Cyc. p. 1178 et seq.; (2) that it is barred by the statute of limitations.
This suit was brought nearly 7 years after a voluntary payment of the tax under Act No'. 59, more than 3% years after the first written notice to the treasurer of the claim now made. Only the clearest expression of legislative purpose, both to create, and to keep alwe, such a claim, would warrant a court in thus depleting a public treasury. We perceive no legal basis for this suit.
The judgment of the District Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion; the appellant recovers costs of appeal.
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_respond1_1_2
|
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 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".
W. P. ALLEN, Appellant, v. CITIZENS’ BANK & TRUST COMPANY, OF MIDDLESBORO, KENTUCKY, Appellee.
No. 3064.
Circuit Court of Appeals, Fourth Circuit.
May 1, 1931.
See, also, 43 F.(2d) 549.
S. H. Sutherland, of Clintwood, Va. (S. H. & George C. Sutherland, of Clintwood, Va., on the brief), for appellant.
B. H. Sewell, of Janesville, Va., and E. M. Fulton, of Wise, Va., for appellee.
Before PARKER and NORTHCOTT, Circuit Judges, and COLEMAN, District Judge.
PER CURIAM.
This was a suit oh certain promissory notes. Defendant contended that he had been released from liability thereunder by plaintiff’s acceptance under a deed of assignment which he had executed for the benefit of creditors. ' Plaintiff contended that it had not accepted under the deed of assignment, and that, if what was done be construed as an acceptance thereunder, it was not binding, because made under mistake as to the legal effect of certain instruments. The judge below ruled that plaintiff had not accepted the deed of assignment, and permitted recovery on the notes on condition that plaintiff disclaim any rights under it.
A majority of the court are of opinion that what was done by plaintiff amounted to an election to take under the deed of assignment, but that this election was made as a result of mistake, and that plaintiff, for that reason, is not bound thereby, where, upon acquiring knowledge of its rights, it withdrew its claim made under the deed of assignment. The judgment below will accordingly be affirmed.
Affirmed.
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_applfrom
|
J
|
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).
HARTFORD ACCIDENT & INDEMNITY CO. v. COOPER PARK DEVELOPMENT CORPORATION.
No. 9581.
Circuit Court of Appeals Third Circuit
Argued June 8, 1948.
Decided Aug. 20, 1948.
Thomas M. Farr, of Camden, N.J. (Nor-cross & Farr, of Camden, N. J., on the brief), for appellant.
Samuel P. Orlando, of Camden, N. J., for appellee.
Before BIGGS, GOODRICH, and KALODNER, Circuit Judges.
KALODNER, Circuit Judge.
In July, 1942, plaintiff issued a Workmen’s Compensation insurance policy to the defendant through its general agent, Fried and Fishman Company, Inc. The latter firm was also engaged at the time in a general real estate brokerage business, and acted as the rental and management agent of the defendant’s housing development in Camden County, New Jersey.
Monthly statements were rendered by Fried and Fishman to the defendant itemizing rental income, commission chargés and disbursements for advertising, repairs, insurance, mortgage interest, real estate taxes, etc. The December, 1943, statement charged the defendant with the $3600.26 insurance premium involved in the present appeal, listing it as a payment made to “F. & F. (Audit for Comp.)”. Although Fried and Fishman so charged the defendant’s rental account with the payment of the premium, it failed to account to the plaintiff. The latter brought suit for this, as well as other premiums, in June, 1947. At the trial, defendant contended that payment had been made of the $3600.26 when Fried and Fishman deducted that sum from the rental account and credited itself with the receipt of that amount as above stated. The defendant admitted liability as to the other premiums totaling $490.58 plus interest of $75.68, or a total of $566.26.
On the record as stated both plaintiff and defendant moved for directed verdicts. The defendant’s motion was denied and the plaintiff’s motion granted. The instant appeal followed.
To the defendant’s contention, here as below, that there was a payment of the premium to the plaintiff, the latter asserts that it is the law that an agent cannot agree that a credit on his private indebtedness to the insured shall constitute payment of the premium on the policy. Here, says the plaintiff, the agent was indebted to the defendant to the extent of his rental collections and he could not satisfy any part of that indebtedness by accepting a credit on it in payment of the premium.
The authorities relied on by the plaintiff in support of its contention are in no way dispositive of the issue in the case sub judice. Parenthetically, it may be noted that it has not cited any New Jersey decisions, although the insurance policy was issued in New Jersey and accordingly, the law of New Jersey governs, as we held in Wooton Hotel Corporation v. Northern Assur. Co., Limited, 3 Cir., 1946, 155 F.2d 988.
Proceeding to a consideration of the New Jersey cases, as we are required to do under Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, we find that payment to an agent authorized to collect premiums constitutes payment to the insurance company even though the agent fails to remit. Zriny v. Hartford Fire Ins. Co., 1932, 10 N.J.Misc. 181, 158 A. 430. The agent has no implied authority to waive payment of the premium in money and to take in lieu thereof merchandise, but should he do so testimony may be submitted to establish consent, estoppel or ratification by the insurance company. Cohen v. New Zealand Ins. Co., 1924, 100 N.J.L. 110, 126 A. 417, 418; Fidelity & Deposit Co. of Maryland v. Brocks Garage, Inc., 1918, 92 N.J.L. 239, 104 A. 132.
Pertinent to the issue here involved is the case of Carson v. Jersey City Ins. Co., 1881, 43 N.J.L. 300, 39 Am.Rep. 584. There, the agent, on delivering the policy, received the insured’s note payable to him individually. The agent took the note to his own bank, discounted it and the proceeds were credited to his account. Subsequently the insured suffered a loss by fire. The following day the agent remitted to the insurance company. The note itself was not paid by the insured until after the fire. The insurance company, having received information of the fire, refused to accept the agent’s remittance, contending that the mere acceptance by the agent of the insured’s note did not constitute payment of the premium. The court ruled, however, that “ * * * as soon as the note was discounted and Pearce (the agent) received the proceeds, the premium was actually paid, as much so as if he had received for it a check on a bank or an order on a third person which was paid on presentation.” (Emphasis supplied.) The opinion pointed out that the significant fact was that funds of the insured had come into the hands of the agent. Said the court (page 309 of 43 N.J.L.) :
“The agent had authority to receive the premium for the company. Payment of it to him was payment to the company; and when the money for it actually came into his hands from the discounting of the note, the premium was actually paid * * (Emphasis supplied.)
Of particular significance is the reference in the Carson case to Chickering v. Globe Mut. Life Ins. Co., 1874, 116 Mass. 321, where it had also been heldi that when the funds of the assured come into the hands of the agent there is a payment binding on the insurance company. In that case one Osborn was the agent of the insurance company. He was also the agent of the firm of Chickering & Sons for the sale of pianos. It was the practice for the firm to pay the insurance premiums of its partners, one of whom was a Colonel Chickering. There was also a “general understanding” between Osborn and the Chickerings that any charge which Osborn had against the Colonel for insurance premiums “should be set off” against any charge which Chickering & Sons should have against him. The Colonel’s premium on a life insurance policy became due February 9, 1871. Some time prior to that date Osborn told the Colonel he had “taken care of” the premium for him. Osborn was indebted to the Chickering firm on a running account between them. The Colonel died on February 14, 1871, before Osborn had remitted to the insurance company. Under the terms of Osborn’s insurance agency he was required to make a statement of his accounts on the first and fifteenth of every month on all premium collections and to remit at the same time. The insurance company refused to make payment on the policy contending that there had not been a payment of the premium. Suit was brought by the decedent’s widow and the insurance company defended on the specific ground that “in the absence of usage or express contract, an agent cannot receive payment of a debt due his principal by offsetting his private debt.”
The court held that if the facts as related were established, there was a valid payment of the premium under the circumstances. In disposing of the insurance company’s contention that the agent cannot receive “payment” by offsetting his private debt, the court said, page 330:
“It is objected that the effect of such an arrangement would be to render Osborn a debtor to the corporation without their consent; but it is difficult to see how it could have any effect in that respect, to distinguish it from a payment in any other mode. If it were an actual placing of money in the hands of their agent, it would add to the fund which he held in trust for the defendants, and would not make him their debtor in my other capacity or mode.” (Emphasis supplied.)
While the New Jersey courts have not squarely ruled on the question here involved, we believe that the New Jersey view is indicated by the specific ruling in the Carson case and its citation, with apparent approval, of the Chickering case. Our belief is strenthened by the reference, by the Court of Errors and Appeals of New Jersey, in Cohen v. New Zealand Ins. Co., supra, to the Carson case. On that basis there is no difficulty in disposing of the question under consideration.
There is a striking similarity between the instant case and the Chickering case. In both cases the agent simultaneously represented the insurance company and the insured in their respective businesses; there was a running account between the agent and his non-insurance principal; the agent offset the amount of the premium against his indebtedness to his non-insurance principal and thereafter there was a balance in the running account due his noninsurance principal. In both cases the insurance company advanced the identical contention, almost verbatim, that “an agent cannot receive payment of a debt to his principal by offsetting his private debt.”
On its facts, the instant case is even more favorable to the defendant’s position. Here the agent was a general agent of the plaintiff. Under paragraph 2 of the Agency Agreement “accounts of money due the Company” were to be rendered monthly by the agent and “the balance shown to be due to the Company shall be paid not later than sixty days after the end of the month for which the account is rendered.” The foregoing clearly demonstrates the existence of a creditor-debtor relationship between the plaintiff and its agent with respect to premium collections. There was no earmarking of premium payments and no trust relationship with respect to them. When the agent collected the premium he became the plaintiff’s debt- or and was allowed an extended period for payment of his debt — “sixty days after the end of the month for which the account is rendered.”
In addition, here the agent acted as defendant’s real estate management agent. The practice or general usage of such agents in charging disbursements in payment of proper insurance premiums against rental income is so well established that judicial notice may be taken thereof. Restatement of the Law of Agency, § 36g. What the agent did in paying the insurance premium and charging it against the rental account is a settled practice on the part of real estate management agents. Had the matter gone to the jury, that practice might well have been taken into consideration in determining whether the agent had actually charged the defendant’s rental account with payment of the insurance premium. It might also have been considered by the jury as establishing consent or ratification by the plaintiff. Cohen v. New Zealand Ins. Co., supra.
Finally, plaintiff contends that the defendant offered no evidence to prove that the rentals received by the agent were paid in cash, and that it may well be that the rent payments were paid by “some other medium of exchange”, and thereby came under the rule prohibiting payment of premiums except by cash, check or draft. Nothing more need be said in disposition of that contention than that in the instant case the agent had charge of some 134 dwellings and in the absence of specific evidence on the nature of the rental payments the jury could reasonably have drawn the inference that the rentals were in fact paid by cash, check or draft.
The conclusion is inevitable that the directing of a verdict in plaintiff’s favor was erroneous. The proper approach to a solution in this case lies in the question, whether the insured’s agent appropriated to himself in his capacity as agent for the insurance company funds belonging to the insured. And once plaintiff’s agent received the premium, under the applicable law, it is deemed paid to the insurance company. On this basis, the case was one for the jury, for if the jury believed the defendant’s evidence and made the inferences permissible under the circumstances, defendant was entitled to a verdict.
Accordingly, the judgment of the District Court will be reversed and the case will be remanded for further proceedings not inconsistent with this opinion.
The policy was for the period of July 7, 1942, to July 7, 1943. As is usual in such policies, an estimated premium was stated therein and was paid, but the ultimate amount of the premium was to be based upon an audit by the plaintiff of the payroll accounts of the defendant and application thereto of stipulated rates. Such an audit was made. The amount of the additional premium so determined was $3600.26 and it became due on the completion of the audit in September, 1943.
Plaintiff cites 2 Couch, Cyclopedia of Insurance Law, p. 1473; Turlington, v. Metropolitan Life Insurance Co., 193 N.C. 481, 13-7 S.E. 422; Fernan v. Prudential Insurance Company of America, Mo.App., 162 S.W.2d 281.
Under paragraph 1 of the Agency Agreement the agent was authorized “to issue and deliver policies” in “Camden County, New Jersey and vicinity.”
Under the terms of his insurance agency Osborn was required to hold premiums which he collected as a separate trust fund. He was further obligated to invest the collected premiums (after deduction of his commissions) in certified checks or drafts and to remit the latter to his principal when he submitted his accounts on the first and fifteenth of the month.
In the case at bar, although the offset for the premium payment in December, 1943, exceeded that month’s rental collections, there was still at that time a balance in the running account in defendant’s favor as evidenced by the fact that on December 81, 1943, the agent owed the defendant $3660.42 (page 54, N. T.; also Exhibit D4, Defendant’s Balance Sheet of December 31, 1943).
Wooddy v. Old Dominion Ins. Co., 31 Grat. 362, 31 Am.Rep. 732, decided by the Supremo Court of Virginia in 1879, is of some interest here. There the insurance agent rented a house from the insured and when the latter tendered him money in payment of the premium the agent declined it, stating that he had money in his hands due to the insured on account of rent which he would credit on the premium. The court held that this constituted “payment” of the premium within the meaning of a policy condition requiring actual payment of the premium to the company, or its agent, although the agent failed to remit prior to the occurrence of a loss.
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:
|
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.
SEARFOSS v. LEHIGH VALLEY R. CO.
No. 253.
Circuit Court of Appeals, Second Circuit.
April 1, 1935.
Stephen A. Machcinski, of New York City (Edward J. McCrossin, of New York City, of counsel), for plaintiff-appellee.
Alexander & Green, of New York City (H. S. Ogden, of New York City, of counsel), for defendant-appellant.
Before MANTON, L. HAND, and CHASE, Circuit Judges.
CHASE, Circuit Judge.
This action was brought under the Federal Employers’ Liability Act (45 USCA § 51 et seq.) to recover for personal injuries sustained by the plaintiff when returning from work at the end of the day on a rail- - road motorcar provided by the defendant for that purpose and operated by an employee of the defendant upon defendant’s railroad. The plaintiff was a track repairman in the employ of the defendant. On August 1, 1933, the motorcar upon which he was riding with some twenty other such employees ran into a caboose at the end of a freight train of the defendant which had stopped on a sharp curve where it was hidden from the view of the operator of the motorcar until he reached a point so near the caboose that he was unable, at the speed he was running, to stop in time to avoids collision.
The defendant does not deny the jurisdiction of the court under the act, supra, as applied to the facts in this case; nor that the motorcar was being operated at an excessive and negligent rate of speed. The only other claimed negligent act of the defendant in stopping its train as it did was not submitted to the jury.
The jury returned a substantial verdict for the plaintiff which the defendant moved to set aside. The motion was denied upon condition that a remittitur be filed as to a portion of the amount,’ and after that was done the judgment on the verdict from which this appeal was taken was entered.
Two errors are claimed. One relates to the basis upon which the court fixed the amount of the remittitur upon the filing of which the denial of the motion to set aside the verdict was conditioned and the other to the exclusion of evidence.
The verdict as returned by the jury was for $43,000. The motion to set it aside being made at once, the court stated that it was excessive and should be reduced to $20,-000. Counsel for the plaintiff, however, having asked and been granted permission to submit a brief before final action on the motion, succeeded in having the motion held for further consideration.
The court later re-announced its decision to set aside the verdict and grant a new trial unless the plaintiff consented to a reduction. In so doing a short memorandum was filed in which it was stated that in the previous announcement immediately after the reception of the verdict no thought had been given to the counsel fee and necessary expenses the plaintiff would have to pay. Presumably the expenses referred to were the expenses of the trial. This was the reason given for making a reduction of the verdict to $30,000 instead of to $20,000 the condition upon which the motion was denied. Obviously it was not a sound reason, for the only recovery for trial expenses to which the plaintiff is entitled is limited to his taxable costs. But despite this, there was no reversible error. The first expression of the court’s opinion as to the amount of the verdict decided nothing. The matter remained open until the eventual decision was made. That decision was an exercise of the court’s discretion in favor of the defendant even though not so much in its favor as it had been led to expect. Where the claimed ex-cessiveness of a verdict is not purely a matter of law — as where the maximum recovery permitted by a statute has been exceeded— but is only one of judgment as to the amount proved by the evidence, the decision rests with the trial court. Southern Railroad Co. v. Bennett, 233 U. S. 80, 34 S. Ct. 566, 58 L. Ed. 860. This court lacks the power to re-dew as a question of fact the subject of excessive damages. Fairmount Glass Works v. Coal Co., 287 U. S. 474, 481, 53 S. Ct. 252, 77 L. Ed. 439; Jacque v. Locke Insulator Corporation (C. C. A. 2) 70 F.(2d) 680; Ford Motor Co. v. Hotel Woodward Co. (C. C. A. 2) 271 F. 625, 630. Lacking that power, we cannot decide that the judgment as rendered was in fact excessive. Consequently no reversible error has been shown in the denial, upon the condition finally imposed, of the motion to set aside the verdict and grant a new trial. For the limitations upon our power to review the action of a trial court upon motions for a new tidal, see Miller v. Maryland Casualty Co. (C. C. A.) 40 F.(2d) 463.
The defendant endeavored to prove on the question of damages that the plaintiff was guilty of contributory negligence in failing to protest to the driver of the motorcar that his speed was excessive. It appeared that the plaintiff was familiar with the track over which the car was being operated and knew that it was approaching a sharp curve where the view ahead was obstructed but neither warned the driver nor made any protest as to the excessive speed of the car. When the driver of the car was being examined as a witness at the trial, he was asked by the defendant if he would have reduced the speed if any of the men had protested. On objection by the plaintiff the question was excluded.
The court later correctly charged the jury that the burden of proving contributory negligence was upon the defendant and explained its effect on the question of damages. In this connection the legal significance of the plaintiff’s failure to warn the driver of the motorcar, provided the jury found that the circumstances were such that the duty was his under the law, was adequately covered. The duty was expressly conditioned upon a finding by the jury “that such warning would have been heeded and the accident avoided.” This was but a recognition of the fact that, as it is the ability to act to prevent or minimize his injuries that imposes the duty upon the plaintiff to give a warning or make a protest, where that ability is lacking no duty exists for the law does not require a futile act. And that is precisely what made the exclusion of the question harmful error. The defendant was required to prove, to show the plaintiff’s contributory negligence, a fact which the court refused to permit it to prove by the only witness who could have absolute knowledge of the subject. It may well be argued that the jury was entitled to infer that a protest or warning, if given, would have been heeded and would have prevented the accident. While that is true enough, it is equally true that the defendant was entitled to introduce competent direct evidence upon the subject. To compel it to leave a question of fact of such importance on the matter of damages to inference merely was to deny its right to prove by direct evidence a material issue raised by the pleadings. The exclusion of the question was harmful error provided the evidence was competent.
In this regard it is urged that the driver of the car could only have testified as to his present opinion concerning what he would have done under circumstances which never existed; that he could only have given a conclusion based upon an hypothesis contrary to fact. Such reasoning, however, loses sight of the real character of such evidence. While the question was in the form of a condition contrary to fact, it called not for an opinion or conclusion but for an answer showing the car driver’s present knowledge of his willingness while driving the car before the accident to accept and be guided by a warning or protest as to speed. He of all men was competent to state that fact and because the defendant was denied the right to have him do so it is reasonable to believe that the jury was deprived of evidence which should have had a material bearing upon the size of the verdict.
Judgment reversed.
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:
|
sc_casedisposition
|
D
|
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.
RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL UNIONS NOS. 128 AND 633, v. LION DRY GOODS, INC., et al.
No. 73.
Argued January 17, 1962.
Decided February 26, 1962.
S. O. Lip-pman argued the cause for petitioners. With him on the briefs were Joseph E. Finley and Tim L. Bornstein.
Merritt W. Green argued the cause for respondents. With him on the briefs was Eugene F. Howard.
Mr. Justice Brennan
delivered the opinion of the Court.
Section 301 (a) of the Labor Management Relations Act, provides that “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” The questions presented in this case are: (1) Does the scope of “contracts” within § 301 (a) include the agreement at bar, claimed to be not a “collective bargaining contract” but a “strike settlement agreement”? (2) If otherwise includible, is the “strike settlement agreement” cognizable under § 301 (a), although the petitioners, the labor-organization parties to the agreement, acknowledged that they were not entitled to recognition as exclusive representatives of the employees of the respondents?
The opinions below appear to rest upon alternative holdings, answering in the negative each of these questions. The District Court’s conclusion that it lacked jurisdiction over the subject matter, 179 F. Supp. 564, was affirmed in a brief per curiam by the Court of Appeals, saying: “The contract here involved is not a collective bargaining agreement between an employer and a labor organization representing its employees. We think that the trial court was correct in reaching the conclusion that collective bargaining contracts between a union and an employer are the only contracts intended to be actionable in a United States District Court under the provisions of section 301 (a).” 286 F. 2d 235. We granted certiorari because of the importance of the questions to the enforcement of the national labor policy as expressed in § 301 (a). 366 U. S. 917. We hold that the lower courts erred and remand the cause for trial and further proceedings consistent with this opinion.
The petitioners, local unions of the Retail Clerks International Association, brought this action on the sole jurisdictional basis of § 301 (a) and (b), seeking to compel respondents’ compliance with two allegedly binding arbitration awards. Respondents are two department stores in Toledo, Ohio, covered by the Labor Management Relations Act. For some years prior to 1967, petitioners had been the collective bargaining representatives of respondents’ employees and had been parties to collective bargaining agreements with respondents. In November 1957, negotiations for renewal contracts ended in impasse. A strike ensued against one of the respondents, Lasalle’s, and continued until December 24, 1958; the dispute with the other respondent, Lion Dry Goods, continued during the whole of those 13 months although no strike occurred. On December 24, 1958, the parties ended their dispute with the aid of the Toledo Labor-Management-Citizens’ Committee (hereinafter, L-M-C), a local mediation and arbitration body. Negotiations by means of L-M-C mediation had produced a “Statement of Understanding” satisfactory to all parties.
The Statement contained such key points of settlement as the unions’ acknowledgment that they were not then entitled to recognition as exclusive representatives, and would not seek such recognition unless and until certified as so entitled in single store unit elections conducted by the National Labor Relations Board, and Lasalle’s agreement to reinstate striking employees without discrimination. Both stores also agreed to continue in effect detailed wage and hour schedules and provisions as to working conditions and other benefits, incorporated as exhibits to the Statement. All terms of employment had been in force prior to December 24,1958, except an agreement by the stores to provide and pay fully for specified insurance coverage. The stores wrote the L-M-C delivering the Statement, calling it “the basis on which the heretofore existing dispute between [the Locals] and our compan [ies] is to be fully and finally resolved,” and specifying that “The conditions to be performed and met by us are, of course, subject to and conditioned upon the receipt by your organization of guarantees from the respective labor organizations to make the principles enumerated [in the Statement] completely effective.” A few days later the Locals wrote the L-M-C that “we herewith agree to the conditions and guarantees of the Statement of Understanding.” The conditions to be performed by each side were performed and the dispute was terminated. In a few months, however, new grievances arose, including the two that generated this case. First. The unions claimed under the Statement the right of access to the employees’ cafeteria in order to communicate with employees during their non-working time. The stores claimed that Statement ¶ 6 gave no right of access to the employees’ cafeterias, for those are not “areas of the store which are open to customers.” Second. Two Lasalle’s employees, salesladies in the men’s furnishings department, had been fully reinstated except that the saleslady formerly assigned to sell men’s shirts was assigned to sell men’s sweaters, and the other saleslady, who had been selling sweaters, now was assigned to sell shirts. The Locals submitted these matters to the L-M-C under the procedure of Statement ¶ 7; the stores and the Locals participated fully in the ensuing arbitration proceedings; and the award went to the Locals on both grievances. The stores’ refusal to accede to those awards prompted this suit.
The District Court viewed as crucial the question whether the Statement given by the stores to the L-M-C and then concurred in by the Locals, constituted “such a contract as is contemplated by Section 301 (a).” 179 F. Supp., at 567. Although the opinion is somewhat ambiguous, we read it as holding that there was a contract between the Locals and the stores but that only certain kinds of contracts are within the purview of § 301 (a) and this was not one of them. We interpret the District Court as holding that to be within § 301 (a), contracts must be “collective bargaining contracts, or agreements arrived at through collective bargaining,” ibid.; and further, must be with a union that is the recognized majority representative of the employees. The court found that the Statement of Understanding met neither test. The Court of Appeals’ brief affirmance, supra, fails to make clear whether it agreed with both of those limitations on §301 (a), or with only one and if so which one.
It is argued that Congress limited § 301 (a) jurisdiction to contracts that are “collective bargaining contracts,” meaning, so runs the argument, only agreements concerning wages, hours, and conditions of employment concluded in direct negotiations between employers and unions entitled to recognition as exclusive representatives of employees.
The words of § 301 (a) require no such narrow construction as is suggested; rather, they negate it. First. The Section says “contracts” though Congress knew well the phrase “collective bargaining contracts,” see, e. g., § 8 (d), § 9 (a), § 201 (c), § 203 (d), § 204 (a)(2), § 211 (a). Had Congress contemplated a restrictive differentiation, we may assume that it would not have eschewed “collective bargaining contracts” unwittingly. Moreover, Congress provided in § 211 (a) : “For the guidance and information of interested representatives of employers, employees, and the general public, the Bureau of Labor Statistics . . . shall maintain a file of copies of all available collective bargaining agreements and other available agreements and actions thereunder settling or adjusting labor disputes.” Whatever the proper construction of that Section, insofar as it reflects upon § 301 (a) at all, it supports the inference that “contracts” does include more than “collective bargaining agreements,” at least as respondents would define them. Second. If “contracts” means only collective bargaining contracts, the subsequent words “or between any such labor organizations” are superfluous, for if there is a collective bargaining agreement between unions it follows that as to that agreement, one union is the employer and the other represents employees. See Office Employes Union v. Labor Board, 353 U. S. 313. Congress was not indulging in surplusage: A federal forum was provided for actions on other labor contracts besides collective bargaining contracts. See, e. g., United Textile Workers v. Textile Workers Union, 258 F. 2d 743 (no-raiding agreement). But, it is urged, though Congress meant that labor organizations could sue one another in federal courts on other contracts between themselves, suits between employers and unions were still limited to actions on collective bargaining contracts: The provision for suits between labor organizations was inserted in Conference. Differing House and Senate bills were reconciled in Conference. The House bill spoke of suits involving a violation of “an agreement between an employer and a labor organization or other representative of employees . . . .” The Senate bill read “contracts concluded as the result of collective bargaining between an employer and a labor organization . . . .” It is urged that the Conference compromise upon the word “contracts” reflects a desire to use one word to cover both suits between employers and unions, and suits between unions. But it seems obvious that had Congress intended any limiting differentiation, this would have been accomplished by retaining the Senate bill’s phrasing for agreements between employers and unions and then providing specifically for the application of the statute to “contracts between any such labor organizations.” Third. A 1959 enactment, § 8 (f), explicitly contemplates contracts that would not fit respondents’ concept of “collective bargaining agreements.” It authorizes contracting with unions that represent persons not yet even hired by the employer. Such a contract might cover only hiring procedures and not wages, hours, and conditions of employment. Nothing supports the improbable congressional intent that the federal courts be closed to such contracts.
We find, then, from a reading of the words of § 301 (a), both in isolation and in connection with the statute as a whole, no basis for denying jurisdiction of the action based upon the alleged violation of the “strike settlement agreement.”
Furthermore, the statute’s purpose would be defeated by excluding such contracts from “contracts” cognizable under § 301 (a). See Charles Dowd Box Co. v. Courtney, 368 U. S. 502. If this kind of strike settlement were not enforceable under § 301 (a), responsible and stable labor relations would suffer, and the attainment of the labor policy objective of minimizing disruption of interstate commerce would be made more difficult. It is no answer that in a particular case the agreement might be enforceable in state courts: a main goal of § 301 was precisely to end “checkerboard jurisdiction,” Seymour v. Schneckloth, 368 U. S. 351, at 358. See Charles Dowd Box Co. v. Courtney, supra.
Lastly, legislative history refutes the argument that Congress intended to omit agreements of the kind in suit from “contracts” falling within the purview of § 301 (a).
We need not decide whether or not this strike settlement agreement is a “collective bargaining agreement” to hold, as we do, that it is a “contract” for purposes of § 301 (a). “Contract in labor law is a term the implications of which must be determined from the connection in which it appears.” J. I. Case Co. v. Labor Board, 321 U. S. 332, 334, It is enough that this is clearly an agreement between employers and labor organizations significant to the maintenance of labor peace between them. It came into being as a means satisfactory to both sides for terminating a protracted strike and labor dispute. Its terms affect the working conditions of the employees of both respondents. It effected the end of picketing and resort by the labor organizations to other economic weapons, and restored strikers to their jobs. It resolved a controversy arising out of, and importantly and directly affecting, the employment relationship. Plainly it falls within § 301 (a). “[Fjederal courts should enforce these agreements on behalf of or against labor organizations and . . . industrial peace can be best obtained only in that way.” Textile Workers Union v. Lincoln Mills, 353 U. S. 448, 455.
Only a few words are necessary to dispose of respondents’ second contention, that even if this agreement were otherwise within § 301 (a), petitioners’ disclaimer of entitlement to recognition as exclusive representatives puts them out of court. This issue does not touch upon whether minority unions may demand that employers enter into particular kinds of contracts or the circumstances under which employers may accord recognition to unions as exclusive bargaining agents. The question is only whether “labor organization representing employees” in § 301 (a) has a meaning different from “labor organization which represents employees” in § 301 (b). In United States v. Ryan, 350 U. S. 299, we rejected the argument that § 301 (b) was limited to majority representatives. Neither the words, purpose, nor history of the statute suggests any reason for a different construction of the virtually identical words of subsection (a). Nor can “labor organization representing employees” in § 301 (a) be read as differing from “any such labor organizations” in that subsection’s very next phrase, and plainly, in suits between labor organizations, their right to recognition as exclusive representatives vis-a-vis employers has no relevance whatever.
“Members only” contracts have long been recognized. See, e. g., Consolidated Edison Co. v. Labor Board, 305 U. S. 197. Had Congress thought that there was any merit in limiting federal jurisdiction to suits on contracts with exclusive bargaining agents, we might have expected Congress explicitly so to provide, for example, by enacting that § 301 (a) should be read with § 9 (a). Compare §8 (a)(3), §8 (a)(5), §8 (b)(3), §8 (b)(4), §8(d). Moreover, § 8 (f), the 1959 amendment considered supra, p. 27, contemplates contracting with unions that would not represent a majority. Lastly, if the federal courts’ jurisdiction under § 301 (a) required a preliminary determination of the representative status of the labor organization involved, potential conflict with the National Labor Relations Board would be increased, cf. La Crosse Telephone Corp. v. Wisconsin Employment Relations Board, 336 U. S. 18; Amazon Cotton Mill Co. v. Textile Workers Union, 167 F. 2d 183, and litigation would be much hindered.
We conclude that the petitioners’ action for alleged violation of the strike settlement agreement was cognizable by the District Court under §301 (a). The judgment of the Court of Appeals is reversed and the cause is remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.
61 Stat. 156, 29 U. S. C. § 185 (a).
Respondents claim that the cause is moot since, after the commencement of this action, the petitioners merged with Local 954 of the same International Union to form a new Local 954. Petitioners deny mootness and move to add or substitute Local 954 as a party. The facts of the merger make this case indistinguishable from De Veau v. Braisted, 363 U. S. 144; see also Labor Board v. Insurance Agents’ International Union, 361 U. S. 477. We therefore hold that the case is not moot, and the petitioners’ motion to add Local 954 as a party is granted.
Before 1957, the respondents and two other downtown Toledo department stores, through an organization, Retail Associates, Inc., recognized the petitioners as representatives of their employees and executed collective bargaining agreements with the petitioners on a multi-employer basis. When the 1957 impasse developed, the petitioners struck one of those two other stores and it promptly contracted separately with the petitioners. Respondents and the second of the two other stores petitioned the National Labor Relations Board to conduct an election among the employees of the three stores as a single bargaining unit. The petitioners reacted with a demand that each store negotiate separately. Simultaneously, the petitioners called the strike at respondent Lasalle’s. The dispute produced considerable litigation. See Local 128, Retail Clerks v. Leedom, 42 LRR Man. 2031; Retail Associates, Inc., 120 N. L. R. B. 388; Retail Clerks Assn. v. Leedom, 43 LRR Man. 2004, 2029.
A few days before December 24, 1958, the L-M-C proposed a plan for settling the dispute. Discussions ensued between the Committee and the respondents, and between the Committee and the petitioners. At no time were direct negotiations carried on between petitioners and the respondents. Each side made known to the L-M-C the conditions under which it was willing to resolve the dispute and the L-M-C discussed these conditions with the other side. In this manner a basis for settlement was fashioned which was embodied in the Statement referred to in the text.
The Lasalle’s Statement of Understanding (exhibits omitted) reads as follows:
"1. Employees of Lasalle’s, who have been absent due to the strike, will be re-instated without discrimination because of any strike activities and without loss of seniority provided they make application for reinstatement in the form and manner provided for by the employer within fifteen days of receipt of notice from the employer.
“2. All such employees who have complied with the provisions of Paragraph 1 above, will be returned to work not later than February 2, 1959, as scheduled by the Company, in their former position classifications if vacant or in positions comparable in duties and earning opportunities.
“3. It is understood that returning strikers will devote their best efforts to their work'and to serving the customers of Lasalle’s, recognizing that stability of employment depends upon the success of the business.
“4. Lasalle’s will warrant to the L-M-C that the Company will not reduce rates of pay presently in effect or withdraw or reduce employee benefit programs currently provided. This assurance includes all improvements offered by the Company through the L-M-C on November 15th, 1957, which are already in effect. No employee will be discriminated against, by reason of Union activities, membership or non-membership. All employees will continue to have job security and no employee will be discharged except for just cause. Wage schedules currently in effect are appended as Exhibit A. Copies of hours and working conditions and other existing benefits, as requested by L-M-C are attached as Exhibit B.
“5. Neither the Company nor the Union will interfere with the employee’s right to join or not to join a union, as provided and guaranteed by the Labor-Management-Relations Act. Nothing contained herein is to be construed as giving recognition to the union unless at some future time within the discretion of the union, the union is certified as having been chosen by a majority of employees in a single store unit election conducted by the National Labor Relations Board.
“6. The Union agrees that it will not request bargaining rights unless it proves its right to represent the employees as provided in Paragraph 5 above; nor will the employer recognize any union except upon certification by the N. L. R. B.; nor will the Company file a petition for election unless a claim for representation is made upon the employer. Nothing herein shall preclude an employee representative from entering areas of the store which are open to customers; or from communicating with employees, provided such communication is on the employee’s non-working time and in no way interferes with the operating of the business.
“7. Any individual employee who may have a grievance involving an interpretation or application of or arising under the terms of this understanding with the L-M-C, and who has presented such grievance to his supervisor and the Personnel Department without reaching a satisfactory solution, may take his case to the chairman of the L-M-C who in turn shall refer the case to a panel of the L-M-C, whose majority decision and order shall be final and binding. The panel shall render its decision and order within fifteen days after the grievance has been submitted to it. The procedure regulating the hearing of the grievance by the L-M-C panel shall be determined by the panel.
“8. The Union will agree that immediately upon receipt of this statement of understanding by the Toledo Labor-Management-Citizens Committee it will cease all picketing, boycotting or other interference with the business of Lasalle’s, or R. H. Macy & Co., Inc. wherever located. The Union, the strikers, and the Company shall withdraw forthwith all petitions, unfair labor practice charges and litigation before the National Labor Relations Board and the Courts and further agree not to institute in the future any litigation involving or arising out of the instant dispute. The Union and the Employer shall execute mutually satisfactory releases, releasing and discharging each other, the International Union, the local unions involved, and representatives of the union in their representative or individual capacity, labor papers, and all other labor organizations or their representatives who acted in concert or cooperation in connection with the dispute, from any and all claims, demands, causes of action, of whatever nature or description arising out of the labor dispute, including but not limited to the strikes, picketing, boycotting, and all other activities which may have taken place up to the present date.
“9. This understanding shall become effective in accordance with the letter of transmittal dated December 24, 1958.”
The Lion Store’s Statement is identical except for the omission of paragraphs 1, 2 and 3.
The parties’ trial stipulation says, inter alia: “[T]he employee cafeterias in the downtown stores of the defendants . . . are located in areas in each of the stores not open to customers; . . .”
The District Court relied for its view of the limited meaning of “contracts” under §301 (a) upon Schatte v. International Alliance, 84 F. Supp. 669. However, that case decided as to § 301 only that the section did not apply to a cause of action which arose before its enactment. 182 F. 2d 158, 164-165.
Apart from the question of its cognizability under §301 (a), it is clear that the Statement constitutes a contract between the parties. This is so, although they did not negotiate directly but through a mediator, and did not conjoin their signatures on one document. The record makes obvious that neither the parties nor L-M-C contemplated two independent agreements, one by each side with L-M-C only, unenforceable by either side against the other.
The parties stipulated as to the arbitration proceedings that it was “assumed by all parties in attendance to be a meeting of a panel chosen ... to perform proper functions delegated to such a panel under the provisions of . . . [the] Statements of Understanding . . . .” They further stipulated that “nothing . . . [herein] is to preclude the Court from finding that the settlement of December 24, 1958, was a collective bargaining agreement.” In their answer in the District Court, respondents denied “that there is in existence any contract between the plaintiffs, or either of them, and the defendants, or either of them, or that there is in existence any agreement between the parties, collectively or singly, whereby the [L-M-C] is given any right or authority to arbitrate any grievance which the plaintiffs might claim to have.” Petitioners claim and the respondents do not deny that at no time prior to their answer had respondents suggested there was no contract: they complied with the conditions for ending the dispute, they continued following the old wage and hour schedules and other provisions, they participated in the arbitration proceedings and they asked the L-M-C to reconsider their awards on the merits.
Respondents’ contention throughout, whether because of the stipulation or otherwise, has been not to negate the existence of any contract at all, but rather to deny that there is a contract of the kind contemplated by § 301 (a). The District Court so construed the defense, 179 F. Supp., at 565. The Court of Appeals appears to have agreed; see supra. And at no point in their brief in this Court do respondents argue that no contract exists; they agree that the only issue is jurisdictional.
The court emphasized that the Statement disclaimed the Locals’ right to be recognized as exclusive bargaining agent until so certified by the National Labor Relations Board.
61 Stat. 156, 29 U. S. C. § 181 (a).
2 N. L. R. B., Legislative History of the Labor Management Relations Act, 1947, pp. 1535, 1543.
1, id., at 221, 279.
73 Stat. 545, 29 U. S. C. (Supp. II) § 158 (f).
See 1 and 2 N. L. R. B., supra, n. 9, at 94, 151, 221, 279, 297, 336-367, 399-400, 409, 421-424, 436, 475 (see id., at 441), 569-570, 873, 927, 993, 1013, 1014, 1037, 1043, 1044, 1065-1066, 1074, 1076, 1078, 1118, 1123-1124, 1128, 1133, 1145-1146, 1150, 1166, 1208, 1325, 1342-1343, 1446, 1456, 1461, 1483, 1488, 1497, 1524, 1539, 1543, 1557-1558, 1619, 1626, 1654. None of the many references to “collective bargaining contracts” evinces a consideration of the meaning or scope of that phrase.
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:
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sc_petitioner
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
FORD MOTOR CO. (CHICAGO STAMPING PLANT) v. NATIONAL LABOR RELATIONS BOARD et al.
No. 77-1806.
Argued February 28, 1979
Decided May 14, 1979
White, J., delivered the opinion of the Court, in which BURGER, C. J., and BreNNAN, Stewart, Marshall, Powell, RehNquist, and SteveNS, JJ., joined. Powell, J., filed a concurring opinion, post, p. 503. BlacK-müN, J., filed an opinion concurring in the result, post, p. 504.
Theophil C. Kammholz argued the cause for petitioner. With him on the briefs were Stanley R. Strauss and William J. Rooney.
Norton J. Come argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General McCree, Deputy Solicitor General Wallace, and John S. Irving. John A. Fillion argued the cause for respondent United Automobile Workers Local 588. With him on the brief were M. Jay Whitman, Irving M. Friedman, and Jerome Schur
P. Kevin Connelly filed a brief for the National Automatic Merchandising Assn, as amicus curiae urging reversal.
J. Albert Woll, Robert Mayer, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.
Mr. Justice White
delivered the opinion of the Court.
The principal question in this case is whether prices for in-plant cafeteria and vending machine food and beverages are “terms and conditions of employment” subject to mandatory collective bargaining under §§ 8 (a)(5) and 8 (d) of the National Labor Relations Act. 49 Stat. 452, as amended, 29 U. S. C. §§ 158 (a)(5) and 158 (d).
I
Petitioner, Ford Motor Co., operates an automotive parts stamping plant in Chicago Heights, Ill., employing 3,600 hourly rated production employees. These employees are represented in collective bargaining with Ford by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, and by its administrative component, Local 588, a respondent here.
For many years, Ford has undertaken to provide in-plant food services to its Chicago Heights employees. These services, which include both cafeterias and vending machines, are managed by an independent caterer, ARA Services, Inc. Under its contract with Ford, ARA furnishes the food, management, machines, and personnel in exchange for reimbursement of all direct costs and a 9% surcharge on net receipts. Ford has the right to review and approve the quality, quantity, and price of the food served.
Over the years, Ford and the Union have negotiated about food services. The National Labor Relations Board (Board) found:
“Since 1967, the local contract has included provisions dealing with vending and cafeteria services. The contracts have covered the staffing of service lines, adequate cafeteria supervision, restocking and repairing vending machines, and menu variety. The 1974 local agreement also states, 'the Company recognized its continuing responsibility for the satisfactory performance of the caterer and for the expeditious handling of complaints concerned with such performance.’ ” Ford Motor Co. (Chicago Stamping Plant), 230 N. L. R. B. 716 (1977), enf’d, 571 F. 2d 993 (CA7 1978).
Ford, however, has always refused to bargain about the prices of food and beverages served in its in-plant facilities.
On February 6, 1976, Ford notified the Union that cafeteria and vending machine prices would be increased shortly by unspecified amounts. The Union requested bargaining over both price and services and also asked for information relevant to Ford’s involvement in food services in order to assist bargaining. These requests were refused by Ford, which took the position that food prices and services are not terms or conditions of employment subject to mandatory bargaining.
The Union then filed an unfair labor practice charge with the Board, alleging a refusal to bargain contrary to § 8 (a) (5). The Board sustained the charge, ordering Ford to bargain on both food prices and services and to supply the Union with the relevant information requested. Ford Motor Co. (Chicago Stamping Plant), supra. In doing so, the Board reaffirmed its position, expressed in several prior cases, that prices of in-plant-supplied food and beverages are generally mandatory bargaining subjects, a position that had not been accepted by reviewing courts. The Board also noted that the circumstances of this case made it a particularly strong one for invoking the duty to bargain.
The case came before the Court of Appeals for the Seventh Circuit on Ford’s petition for review and the Board’s cross-petition for enforcement. That court, while adhering to its prior decision in NLRB v. Ladish Co., 538 F. 2d 1267 (1976), which had refused enforcement of a Board order to bargain about in-plant food prices, enforced the Board’s order here because, “under the facts and circumstances of this case, in-plant cafeteria and vending machine food prices and services materially and significantly affect and have an impact upon terms and conditions of employment and therefore are mandatory subjects of bargaining.” 571 F. 2d, at 1000. The court was particularly influenced by the lack of reasonable eating alternatives for employees, declaring that “[t]he food one must pay for and eat as a captive customer within the employer’s plant can be viewed as a physical dimension of one’s working environment.” Ibid.
Because of the importance of the issue and the apparent conflict between the decision below and decisions of other Circuits, see n. 6, supra, we granted certiorari. 439 U. S. 891 (1978). We affirm the judgment of the Court of Appeals for the Seventh Circuit enforcing the Board’s order to bargain.
II
The Board has consistently held that in-plant food prices are among those terms and conditions of employment defined in § 8 (d) and about which the employer and union must bargain under §§8(a)(5) and 8(b)(3). See n. 6, supra. Because it is evident that Congress assigned to the Board the primary task of construing these provisions in the course of adjudicating charges of unfair refusals to bargain and because the “classification of bargaining subjects as ‘terms or conditions of employment’ is a matter concerning which the Board has special expertise,” Meat Cutters v. Jewel Tea Co., 381 U. S. 676, 685-686 (1965), its judgment as to what is a mandatory bargaining subject is entitled to considerable deference.
Section 8 (a) (5) of the National Labor Relations Act, as originally enacted, declared it an unfair practice for the employer to refuse to bargain collectively. Act of July 5, 1935, 49 Stat. 453. Although the Act did not purport to define the subjects of collective bargaining, § 9 (a) made the union selected by a majority in a bargaining unit the exclusive representative of the employees for bargaining about “rates of pay, wages, hours of employment, or other conditions of employment.” Under these provisions, the Board was left with the task of identifying on a case-by-case basis those “other conditions of employment” over which management was required to bargain.
In 1947, the Taft-Hartley Act amended the National Labor Relations Act to obligate unions as well as management to bargain; and § 8 (d) explicitly defined the duty of both sides to bargain as the obligation to “meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment....” 61 Stat. 142, now codified at 29 U. S. C. § 158 (d). The original House bill had contained a specific listing of the issues subject to mandatory bargaining, H. R. 3020, 80th Cong., 1st Sess., § 2 (11) (1947); H. R. Rep. No. 245, 80th Cong., 1st Sess., 22-23, 49 (1947), but this attempt to “strait-jacke[t]” and to “limit narrowly the subject matters appropriate for collective bargaining,” id., at 71 (minority report); see also 93 Cong. Rec. 3446-3447 (1947) (remarks of Rep. Klein), was rejected in conference in favor of the more general language adopted by the Senate and now appearing in § 8 (d). S. 1126, 80th Cong., 1st Sess., § 8 (d) (1947); see 93 Cong. Rec. 6444 (1947) (summary report of Sen. Taft); cf. H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 8, 34 (1947). It is thus evident that Congress made a conscious decision to continue its delegation to the Board of the primary responsibility of marking out the scope of the statutory language and of the statutory duty to bargain. This case, therefore, is one of those situations in which we should “recognize without hesitation the primary function and responsibility of the Board...,” NLRB v. Insurance Agents, 361 U. S. 477, 499 (1960), which is that “of applying the general provisions of the Act to the complexities of industrial life... and of ‘[appraising] carefully the interests of both sides of any labor-management controversy in the diverse circumstances of particular cases’ from its special understanding of ‘the actualities of industrial relations.’ ” NLRB v. Erie Resistor Corp., 373 U. S. 221, 236 (1963), quoting NLRB v. Steelworkers, 357 U. S. 357, 362-363 (1958).
Of course, the judgment of the Board is subject to judicial review; but if its construction of the statute is reasonably defensible, it should not be rejected merely because the courts might prefer another view of the statute. NLRB v. Iron Workers, 434 U. S. 335, 350 (1978). In the past we have refused enforcement of Board orders where they had “no reasonable basis in law,” either because the proper legal standard was not applied or because the Board applied the correct standard but failed to give the plain language of the standard its ordinary meaning. Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U. S. 157, 166 (1971). We have also parted company with the Board’s interpretation where it was “fundamentally inconsistent with the structure of the Act” and an attempt to usurp “major policy decisions properly made by Congress.” American Ship Building Co. v. NLRB, 380 U. S. 300, 318 (1965). Similarly, in NLRB v. Insurance Agents, supra, at 499, we could not accept the Board’s application of the Act where we were convinced that the Board was moving “into a new area of regulation which Congress had not committed to it.”
The Board is vulnerable on none of these grounds in this case. Construing and applying the duty to bargain and the language of § 8 (d), “other terms and conditions of employment,” are tasks lying at the heart of the Board’s function. With all due respect to the Courts of Appeals that have held otherwise, we conclude that the Board’s consistent view that in-plant food prices and services are mandatory bargaining subjects is not an unreasonable or unprincipled construction of the statute and that it should be accepted and enforced.
It is not suggested by petitioner that an employee should work a full 8-hour shift without stopping to eat. It reasonably follows that the availability of food during working hours and the conditions under which it is to be consumed are matters of deep concern to workers, and one need not strain to consider them to be among those “conditions” of employment that should be subject to the mutual duty to bargain. By the same token, where the employer has chosen, apparently in his own interest, to make available a system of in-plant feeding facilities for his employees, the prices at which food is offered and other aspects of this service may reasonably be considered among those subjects about which management and union must bargain. The terms and conditions under which food is available on the job are plainly germane to the “working environment,” Fibreboard Paper Products Corp. v. NLRB, 379 U. S. 203, 222 (1964) (Stewart, J., concurring). Furthermore, the company is not in the business of selling food to its employees, and the establishment of in-plant food prices is not among those “managerial decisions, which lie at the core of entrepreneurial control.” Id., at 223 (Stewart, J., concurring). The Board is in no sense attempting to permit the Union to usurp managerial decisionmaking; nor is it seeking to regulate an area from which Congress intended to exclude it.
Including within § 8 (d) the prices of in-plant-supplied food and beverages would also serve the ends of the National Labor Relations Act. “The object of this Act was not to allow governmental regulation of the terms and conditions of employment, but rather to insure that employers and their employees could work together to establish mutually satisfactory conditions. The basic theme of the Act was that through collective bargaining the passions, arguments, and struggles of prior years would be channeled into constructive, open discussions leading, it was hoped, to mutual agreement.” H. K. Porter Co. v. NLRB, 397 U. S. 99, 103 (1970). As illustrated by the facts of this case, substantial disputes can arise over the pricing of in-plant-supplied food and beverages. National labor policy contemplates that areas of common dispute between employers and employees be funneled into collective bargaining. The assumption is that this is preferable to allowing recurring disputes to fester outside the negotiation process until strikes or other forms of economic warfare occur.
The trend of industrial practice supports this conclusion. In response to increasing employee concern over the issue, many contracts are now being negotiated that contain provisions concerning in-plant food services. In this case, as already noted, local agreements between Ford and the Union have contained detailed provisions about nonprice aspects of in-plant food services for several years. Although not conclusive, current industrial practice is highly relevant in construing the phrase "terms and conditions of employment.”
III
Ford nevertheless argues against classifying food prices and services as mandatory bargaining subjects because they do not “vitally affect” the terms and conditions of employment within the meaning of the standard assertedly established by Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U. S., at 176, and because they are trivial matters over which neither party should be required to bargain.
There is no merit to either of these aguments. First, Ford has misconstrued Pittsburgh Plate Glass. That case made it clear that while § 8 (d) normally reaches “only issues that settle an aspect of the relationship between the employer and employees[,] matters involving individuals outside the employment relationship... are not wholly excluded.” 404 U. S., at 178. In such instances, as in Teamsters v. Oliver, 358 U. S. 283 (1959), and Fibreboard Paper Products Corp. v. NLRB, 379 U. S. 203 (1964), the test is not whether the “third-party concern is antagonistic to or compatible with the interests of bargaining-unit employees, but whether it vitally affects the ‘terms and conditions’ of their employment.” 404 U. S., at 179. Here, however, the matter of in-plant food prices and services is an aspect of the relationship between Ford and its own employees. No third-party interest is directly implicated, and the standard of Pittsburgh Plate Glass has no application.
As for the argument that in-plant food prices and service are too trivial to qualify as mandatory subjects, the Board has a contrary view, and we have no basis for rejecting it. It is also clear that the bargaining-unit employees in this case considered the matter far from trivial since they pressed an unsuccessful boycott to secure a voice in setting food prices. They evidently felt, and common sense also tells us, that even minor increases in the cost of meals can amount to a substantial sum of money over time. In any event, we accept the Board’s view that in-plant food prices and service are conditions of employment and are subject to the duty to bargain.
Ford also argues that the Board’s position will result in unnecessary disruption because any small change in price or service will trigger the obligation to bargain. The problem, it is said, will be particularly acute in situations where several unions are involved, possibly requiring endless rounds of negotiations over issues as minor as the price of a cup of coffee or a soft drink.
These concerns have been thought exaggerated by the Board. Its position in this case, as in all past cases involving the same issue, is that it is sufficient compliance with the statutory mandate if management honors a specific union request for bargaining about changes that have been made or are to be made. Ford Motor Co. (Chicago Stamping Plant), 230 N. L. R. B., at 718; Westinghouse Electric Corp., 156 N. L. R. B. 1080, 1081, enf'd, 369 F. 2d 891 (CA4 1966), rev’d en banc, 387 F. 2d 542 (1967). The Board apparently assumes that, as a practical matter, requests to bargain will not be lightly made. Moreover, problems created by constantly shifting food prices can be anticipated and provided for in the collective-bargaining agreement. Furthermore, if it is true that disputes over food prices are likely to be frequent and intense, it follows that more, not less, collective bargaining is the remedy. This is the assumption of national labor policy, and it is soundly supported by both reason and experience.
Finally, Ford asserts that to require it to engage in bargaining over in-plant food service prices would be futile because those prices are set by a third-party supplier, ARA. It is true that ARA sets vending machine and cafeteria prices, but under Ford’s contract with ARA, Ford retains the right to review and control food services and prices. In any event, an employer can always affect prices by initiating or altering a subsidy to the third-party supplier such as that provided by Ford in this case, and will typically have the right to change suppliers at some point in the future. To this extent the employer holds future, if not present, leverage over in-plant food services and prices.
We affirm, therefore, the Court of Appeals’ judgment upholding the Board’s determination in this case that in-plant food services and prices are “terms and conditions of employment” subject to mandatory bargaining under §§ 8 (a) (5) and 8 (d) of the National Labor Relations Act.
So ordered.
The National Labor Relation Board’s order at issue here directed petitioner to bargain with respondent Union “with respect to food services and changes in food prices in [petitioner’s in-plant] vending machines and cafeteria....” Ford Motor Co. (Chicago Stamping Plant), 230 N. L. R. B. 716, 719 (1977), enf’d, 571 F. 2d 993 (CA7 1978). The duty to bargain over nonprice aspects of in-plant food services is thus also at issue here. The Board’s order also obligated petitioner to supply respondent Union with the information necessary for bargaining. 230 N. L. R. B., at 719. It seems agreed that if food prices and service are mandatory bargaining subjects, the order to furnish information should stand. See Detroit Edison Co. v. NLRB, 440 U. S. 301, 303 (1979).
The relevant provisions of the National Labor Relations Act are as follows:
“Sec. 8. (a) It shall be an unfair labor practice for an employer—
“(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9 (a).
“(d) For the purposes of this section, to- bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession....
“Sec. 9. (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment....” As amended, 61 Stat. 140,142,143.
As originally enacted, the Wagner Act did not define the subjects of §8 (a)(5)’s obligation to bargain, although §9 (a), which was contained in the Wagner Act, made reference to “rates of pay, wages, hours of employment, or other conditions of employment.” Section 8 (d) was added by the Taft-Hartley amendments to the Act in 1947, and expressly defined the scope of the duty to bargain as including “wages, hours, and other terms and conditions of employment.” The relevant details of this development are discussed infra, at 495-496.
It is difficult for employees to eat away from the plant during their shifts. The lunch period is 30 minutes, and the few restaurants in the vicinity are all over a mile away, in an area heavily saturated with industrial plants employing thousands of workers. As a result, very few of the 3,600 workers leave the plant during the lunch period. Two 22-minute rest breaks are also provided during the shifts, but employees are not permitted to leave the plant then.
Some workers bring food to work. No refrigerated storage facilities are provided, however, and spoilage and vermin are a problem, particularly in the summer.
If receipts exceed ARA's cost plus the 9% surcharge, Ford is entitled to the excess. If revenues do not meet the costs of the operation plus the surcharge, the company is obligated to pay ARA up to $52,000 a year. In recent years, deficits have occurred often. In meeting the deficits, Ford has thereby subsidized employee meals and indirectly influenced the price of the food sold.
The Union also began a boycott of food services in which more than half of the employees participated. The boycott ended slightly more than three months later without any reductions in prices.
Westinghouse Electric Corp., 156 N. L. R. B. 1080, 1081, enf d, 369 F. 2d 891 (CA4 1966), rev’d en banc, 387 F. 2d 542 (1967); McCall Corp., 172 N. L. R. B. 540 (1968), enf. denied, 432 F. 2d 187 (CA4 1970); Package Machinery Co., 191 N. L. R. B. 268 (1971),
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_casetyp1_7-3-3
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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 "economic activity and regulation - commercial disputes".
David E. CHADWICK, Plaintiff-Appellant, v. ESPERANZA TRADE & TRANSPORT, LTD., et al., Defendants-Appellees.
No. 75-2584.
United States Court of Appeals, Fifth Circuit.
March 17, 1977.
Rehearing Denied April 14, 1977.
Douglas A. Barnes, Donald W. Keck, Dallas, Tex., for plaintiff-appellant.
Joe T. Hood, Dallas, Tex., for defendantsappellees.
Before JONES, WISDOM and GOD-BOLD, Circuit Judges.
JONES, Circuit Judge:
The jurisdiction of this action stems from diversity of citizenship. The governing law is that of Texas. The appellant, David E. Chadwick, was plaintiff in the district court. He and four others owned all of the stock issued by Edward T. Robertson and Son, Inc. It sold assets to Belship Company, a Bermuda corporation, which by change of name is now Edward T. Robertson and Son, Ltd., one of the parties to this action. As a part of the transaction Belship entered into employment contracts with each of the five stockholders. Some of the contracts were for three years and others were for five years. The annual compensation as fixed by schedules annexed to the contracts ranged from eight to twenty thousand dollars. The contract with the appellant was for five years at an annual salary of twelve thousand dollars, which was subsequently increased to sixteen thousand dollars. It was provided in the contract that:
“The term of employment under this agreement shall commence as of Decernber 1, 1971 and shall continue for the period set forth in the schedule annexed hereto, subject to termination by either party upon ninety days written notice prior to the end of said term, or thereafter upon like notice.”
The agreement provided that “all disputes arising out of, or in connection with, this agreement, shall be submitted to arbitration in the City of New York by the American Arbitration Association in accordance with its rules then in effect.”
On September 18, 1974, Edward T. Robertson terminated the contract with the appellant, paying his salary to that date and for ninety days additional. The appellant brought an action claiming compensation under the contract for the remainder of the five year term. Named as defendants were Edward T. Robertson and Son, Ltd., the employer, and Esperanza Trade & Transport, Ltd., which had guaranteed performance of the contract by the employer. The defendants filed motions to dismiss on the ground, among others, that the complaint failed to state a claim upon which relief could be granted. The Robertson firm filed a motion to stay pending arbitration.
The district court entered an order reciting the contract provision herein quoted holding that the employer had a right to terminate the contract at any time on ninety days notice and dismissed the complaint. Chadwick has appealed.
The contract is before the Court for construction. Resort to the fine print or the footnotes is not required for our consideration of the issue. Black-letter law will suffice. In construing a contract the Court will determine and give effect to the intent of the parties. The entire contract will be considered. Effect will be given, if possible, to all of the language of the contract. In the absence of custom or usage to the contrary ordinary words are to be given their ordinary meaning. If the language of the contract is ambiguous, extrinsic evidence may be received to determine its meaning.
If, as the appellees contend and the district court found the contract could be terminated at any time upon ninety days notice, it can be urged most plausibly that the last twelve words of the proviso—
“subject to termination by either party upon ninety days written notice prior to the end of said term, or thereafter upon like notice.”
are surplusage and without any meaning whatever. It should not be so held.
It can be plausibly argued that the word “thereafter” can refer only to “the end of said” [five year] “term.” If so, then perhaps it would follow that the parties contemplated an indefinite employment relationship after the five years to terminate upon the contractual ninety days notice.
If, as the appellees contend, and as the district court found, the contract could be terminated on ninety days notice, why were some of the contracts for three and others for five years? If, as might be shown by extrinsic evidence, tenured employment was an inducement or a consideration for the sale of assets, would the construction have been different?
These questions seem apparent. There may be others. The answers to these questions are, initially, for the district court. It is not intended that anything here said shall be regarded as suggesting answers. The language of the termination provision is ambiguous. The implied holding to the contrary by the district court is erroneous. The judgment will be REVERSED and the cause will be REMANDED for further proceedings.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
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sc_caseorigin
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GEORGIA v. ASHCROFT, ATTORNEY GENERAL, et al.
No. 02-182.
Argued April 29, 2003
Decided June 26, 2003
O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., post, p. 491, and Thomas, J., post, p. 492, filed concurring opinions. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined, post, p. 492.
David F. Walbert argued the cause for appellant. With him on the briefs were Thurbert E. Baker, Attorney General of Georgia, Dennis R. Dunn, Deputy Attorney General, and Mark H. Cohen.
Malcolm L. Stewart argued the cause for the federal appellees. With him on the brief were Solicitor General Olson, Assistant Attorney General Boyd, Deputy Solicitor General Clement, and Mark L. Gross.
E. Marshall Braden argued the cause for appellee interve-nors. With him on the brief were Amy M. Henson, Frank B. Strickland, and Anne W. Lewis.
A brief of amicus curiae urging affirmance was filed for the Georgia Coalition for the Peoples’ Agenda by Laughlin McDonald, Neil Bradley, Barbara R. Amwine, Thomas J. Henderson, Anita Hodgkiss, Elaine R. Jones, Norman J. Chachkin, and Todd A Cox.
Justice O’Connor
delivered the opinion of the Court.
In this case, we decide whether Georgia’s State Senate redistricting plan should have been precleared under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as renumbered and amended, 42 U. S. C. § 1973c. Section 5 requires that before a covered jurisdiction’s new voting “standard, practice, or procedure” goes into effect, it must be precleared by either the Attorney General of the United States or a federal court to ensure that the change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” 42 U. S. C. § 1973c. Whether a voting procedure change should be precleared depends on whether the change “would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Beer v. United States, 425 U. S. 130, 141 (1976). We therefore must decide whether Georgia’s State Senate redistricting plan is retrogressive as compared to its previous, benchmark districting plan.
I
A
Over the past decade, the propriety of Georgia’s state and congressional districts has been the subject of repeated litigation. In 1991, the Georgia General Assembly began the process of redistricting after the 1990 census. Because Georgia is a covered jurisdiction under §5 of the Voting Rights Act, see Miller v. Johnson, 515 U. S. 900, 905 (1995), Georgia submitted its revised State Senate plan to the United States Department of Justice for preclearance. The plan as enacted into law increased the number of majority-minority districts from the previous Senate plan. The Department of Justice nevertheless refused preclearance because of Georgia’s failure to maximize the number of majority-minority districts. See Johnson v. Miller, 929 F. Supp. 1529, 1537, and n. 23 (SD Ga. 1996). After Georgia made changes to the Senate plan in an attempt to satisfy the United States’ objections, the State again submitted it to the Department of Justice for preclearance. Again, the Department of Justice refused preclearance because the plan did not contain a sufficient number of majority-minority districts. See id., at 1537, 1539. Finally, the United States precleared Georgia’s third redistricting plan, approving it in the spring of 1992. See id., at 1537.
Georgia’s 1992 Senate plan was not challenged in court. See id., at 1533-1534. Its congressional districting plan, however, was challenged as unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. See Shaw v. Reno, 509 U. S. 630 (1993). In 1995, we held in Miller v. Johnson that Georgia’s congressional districting plan was unconstitutional because it engaged in “the very racial stereotyping the Fourteenth Amendment forbids” by making race the “predominant, overriding factor explaining” Georgia’s congressional districting decisions. 515 U. S., at 928, 920. And even though it was “safe to say that the congressional plan enacted in the end was required in order to obtain preclearance,” this justification did not permit Georgia to engage in racial gerrymandering. See id., at 921. Georgia’s State Senate districts served as “building blocks” to create the congressional districting plan found unconstitutional in Miller v. Johnson. Johnson v. Miller, 929 F. Supp., at 1533, n. 8 (internal quotation marks omitted); see also id., at 1536.
Georgia recognized that after Miller v. Johnson, its legislative districts were unconstitutional under the Equal Protection Clause. See 929 F. Supp., at 1533, 1540. Accordingly, Georgia attempted to cure the perceived constitutional problems with the 1992 State Senate districting plan by passing another plan in 1995. The Department of Justice refused to preclear the 1995 plan, maintaining that it retrogressed from the 1992 plan and that Miller v. Johnson concerned only Georgia’s congressional districts, not Georgia’s State Senate districts. See 929 F. Supp., at 1540-1541.
Private litigants subsequently brought an action challenging the constitutionality of the 1995 Senate plan. See id., at 1533. The three-judge panel of the District Court reviewing the 1995 Senate plan found that “[i]t is clear that a black maximization policy had become an integral part of the section 5 preclearance process... when the Georgia redistricting plans were under review. The net effect of the DOJ’s preclearance objection^]... was to require the State of Georgia to increase the number of majority black districts in its redistricting plans, which were already ameliorative plans, beyond any reasonable concept of non-retrogression.” Id., at 1539-1540. The court noted that in Miller v. Johnson, we specifically disapproved of the Department of Justice’s policy that the maximization of black districts was a part of the § 5 retrogression analysis. See 929 F. Supp., at 1539. Indeed, in Miller, we found that the Department of Justice’s objections to Georgia’s redistrieting plans were “driven by its policy of maximizing majority-black districts.” 515 U. S., at 924. And “[i]n utilizing § 5 to require States to create majority-minority districts wherever possible, the Department of Justice expanded its authority under the statute beyond what Congress intended and we have upheld.” Id., at 925.
The District Court stated that the maximization of majority-minority districts in Georgia “artificially push[ed] the percentage of black voters within some majority black districts as high as possible.” 929 F. Supp., at 1536. The plan that eventually received the Department of Justice’s preclearance in 1992 “represented the General Assembly’s surrender to the black maximization policy of the DOJ.” Id., at 1540. The court then found that the 1995 plan was an unconstitutional racial gerrymander. See id., at 1543.
Under court direction, Georgia and the Department of Justice reached a mediated agreement on the constitutionality of the 1995 Senate plan. Georgia passed a new plan in 1997, and the Department of Justice quickly precleared it. The redrawn map resembled to a large degree the 1992 plan that eventually received preclearance from the Department of Justice, with some changes to accommodate the decision of this Court in Miller v. Johnson, and of the District Court in Johnson v. Miller.
All parties here concede that the 1997 plan is the benchmark plan for this litigation because it was in effect at the time of the 2001 redistricting effort. The 1997 plan drew 56 districts, 11 of them with a total black population of over 50%, and 10 of them with a black voting age population of over 50%. See Record, Doc. No. 148, Pl. Exh. 1C (hereinafter Pl. Exh.). The 2000 census revealed that these numbers had increased so that 13 districts had a black population of at least 50%, with the black voting age population exceeding 50% in 12 of those districts. See 195 F. Supp. 2d 25, 39 (DC 2002).
After the 2000 census, the Georgia General Assembly began the process of redistricting the Senate once again. No party contests that a substantial majority of black voters in Georgia vote Democratic, or that all elected black representatives in the General Assembly are Democrats. The goal of the Democratic leadership — black and white — was to maintain the number of majority-minority districts and also increase the number of Democratic Senate seats. See id., at 41-42. For example, the Director of Georgia’s Legislative Redistricting Office, Linda Meggers, testified that the Senate Black Caucus “ ‘wanted to maintain’ ” the existing majority-minority districts and at the same time “ ‘not waste’ ” votes. Id., at 41.
The Vice Chairman of the Senate Reapportionment Committee, Senator Robert Brown, also testified about the goals of the redistricting effort. Senator Brown, who is black, chaired the subcommittee that developed the Senate plan at issue here. See id., at 42. Senator Brown believed when he designed the Senate plan that as the black voting age population in a district increased beyond what was necessary, it would “pus[h] the whole thing more towards [the] Republican^].” Pl. Exh. 20, at 24. And “correspondingly,” Senator Brown stated, “the more you diminish the power of African-Americans overall.” Ibid. Senator Charles Walker was the majority leader of the Senate. Senator Walker testified that it was important to attempt to maintain a Democratic majority in the Senate because “we [African-Americans] have a better chance to participate in the political process under the Democratic majority than we would have under a Republican majority.” Pl. Exh. 24, at 19. At least 7 of the 11 black members of the Senate could chair committees. See 195 F. Supp. 2d, at 41.
The plan as designed by Senator Brown’s committee kept true to the dual goals of maintaining at least as many majority-minority districts while also attempting to increase Democratic strength in the Senate. Part of the Democrats’ strategy was not only to maintain the number of majority-minority districts, but to increase the number of so-called “influence” districts, where black voters would be able to exert a significant — if not decisive — force in the election process. As the majority leader testified, “in the past, you know, what we would end up doing was packing. You put all blacks in one district and all whites in one district, so what you end up with is [a] black Democratic district and [a] white Republican district. That’s not a good strategy. That does not bring the people together, it divides the population. But if you put people together on voting precincts it brings people together.” Pl. Exh. 24, at 19.
The plan as designed by the Senate “unpacked” the most heavily concentrated majority-minority districts in the benchmark plan, and created a number of new influence districts. The new plan drew 13 districts with a majority-black voting age population, 13 additional districts with a black voting age population of between 30% and 50%, and 4 other districts with a black voting age population of between 25% and 30%. See Pl. Exh. 2C. According to the 2000 census, as compared to the benchmark plan, the new plan reduced by five the number of districts with a black voting age population in excess of 60%. Compare Pl. Exh. ID with Pl. Exh. 2C. Yet it increased the number of majority-black voting age population districts by one, and it increased the number of districts with a black voting age population of between 25% and 50% by four. As compared to the benchmark plan enacted in 1997, the difference is even larger. Under the old census figures, Georgia had 10 Senate districts with a majority-black voting age population, and 8 Senate districts with a black voting age population of between 30% and 50%. See Pl. Exh. 1C. The new plan thus increased the number of districts with a majority black voting age population by three, and increased the number of districts with a black voting age population of between 30% and 50% by another five. Compare Pl. Exh. 1C with Pl. Exh. 2C.
The Senate adopted its new districting plan on August 10, 2001, by a vote of 29 to 26. Ten of the eleven black Senators voted for the plan. 195 F. Supp. 2d, at 55. The Georgia House of Representatives passed the Senate plan by a vote of 101 to 71. Thirty-three of the thirty-four black Representatives voted for the plan. Ibid. No Republican in either the House or the Senate voted for the plan, making the votes of the black legislators necessary for passage. See id., at 41. The Governor signed the Senate plan into law on August 24, 2001, and Georgia subsequently sought to obtain preclearance.
B
Pursuant to § 5 of the Voting Rights Act, a covered jurisdiction like Georgia has the option of either seeking administrative preclearance through the Attorney General of the United States or seeking judicial preclearance by instituting an action in the United States District Court for the District of Columbia for a declaratory judgment that the voting change comports with §5. 42 U. S. C. § 1973c; Georgia v. United States, 411 U. S. 526 (1973). Georgia chose the latter method, filing suit seeking a declaratory judgment that the State Senate plan does not violate § 5.
Georgia, which bears the burden of proof in this action, see Pleasant Grove v. United States, 479 U. S. 462 (1987), attempted to prove that its Senate plan was not retrogressive either in intent or in effect. It submitted detailed evidence documenting in each district the total population, the total black population, the black voting age population, the percentage of black registered voters, and the overall percentage of Democratic votes (i. e., the overall likelihood that voters in a particular district will vote Democratic), among other things. See 195 F. Supp. 2d, at 36; see also Pl. Exhs. 2C, 2D. The State also submitted evidence about how each of these statistics compared to the benchmark districts. See 195 F. Supp. 2d, at 36; see also Pl. Exhs. 1C, ID, IE (revised).
Georgia also submitted testimony from numerous people who had participated in enacting the Senate plan into law, and from United States Congressman John Lewis, who represents the Atlanta area. These witnesses testified that the new Senate plan was designed to increase black voting strength throughout the State as well as to help ensure a continued Democratic majority in the Senate. The State also submitted expert testimony that African-American and non-African-American voters have equal chances of electing their preferred candidate when the black voting age population of a district is at 44.3%. Finally, in response to objections raised by the United States, Georgia submitted more detailed statistical evidence with respect to three proposed Senate districts that the United States found objectionable— Districts 2, 12, and 26 — and two districts that the interve-nors challenged — Districts 15 and 22.
The United States, through the Attorney General, argued in District Court that Georgia’s 2001 Senate redistricting plan should not be precleared. It argued that the plan’s changes to the boundaries of Districts 2, 12, and 26 unlawfully reduced the ability of black voters to elect candidates of their choice. See Brief for Federal Appellees 8; 195 F. Supp. 2d, at 72. The United States noted that in District 2, the black voting age population dropped from 60.58% to 50.31%; in District 12, the black voting age population dropped from 55.43% to 50.66%; and in District 26, the black voting age population dropped from 62.45% to 50.80%. Moreover, in all three of these districts, the percentage of black registered voters dropped to just under 50%. The United States also submitted expert evidence that voting is racially polarized in Senate Districts 2,12, and 26. See id., at 69-71. The United States acknowledged that some limited percentage of whites would vote for a black candidate, but maintained that the percentage was not sufficient for black voters to elect their candidate of choice. See id., at 70-71. The United States also offered testimony from various witnesses, including lay witnesses living in the three districts, who asserted that the new contours of Districts 2,12, and 26 would reduce the opportunity for blacks to elect a candidate of their choice in those districts; Senator Regina Thomas of District 2, the only black Senator who voted against the plan; Senator Eric Johnson, the Republieán leader of the Senate; and some black legislators who voted for the plan but questioned how the plan would affect black voters. See Vols. 25-27 Record, Doc. No. 177, United States Exhs. 707-736 (Depositions). As the District Court stated, “the United States’ evidence was extremely limited in scope — focusing only on three contested districts in the State Senate plan. That evidence was not designed to permit the court to assess the overall impact of [the Senate plan].” 195 F. Supp. 2d, at 37.
Pursuant to Federal Rule of Civil Procedure 24, the District Court also permitted four African-American citizens of Georgia to intervene. The intervenors identified two other districts — Districts 15 and 22 — where they alleged retrogression had occurred. The intervenors “presented] little evidence other than proposed alternative plans and an expert report critiquing the State’s expert report.” 195 F. Supp. 2d, at 37.
A three-judge panel of the District Court held that Georgia’s State Senate apportionment violated § 5, and was therefore not entitled to preelearance. See id., at 97. Judge Sullivan, joined by Judge Edwards, concluded that Georgia had “not demonstrated by a preponderance of the evidence that the State Senate redistricting plan would not have a retrogressive effect on African American voters” effective exercise of the electoral franchise. Ibid. The court found that Senate Districts 2, 12, and 26 were retrogressive because in each district, a lesser opportunity existed for the black candidate of choice to win election under the new plan than under the benchmark plan. See id., at 93-94. The court found that the reductions in black voting age population in Districts 2, 12, and 26 would “diminish African American voting strength in these districts,” and that Georgia had “failed to present any... evidence” that the retrogression in those districts “will be offset by gains in other districts.” Id., at 88.
Judge Edwards, joined by Judge Sullivan, concurred. Judge Edwards emphasized that §§5 and 2 are “procedurally and substantively distinct provisions.” Id., at 97. He therefore rejected Georgia’s argument that a plan preserving an equal opportunity for minorities to elect candidates of their choice satisfies §5. Judge Edwards also rejected the testimony of the black Georgia politicians who supported the Senate plan. In his view, the testimony did not address whether racial polarization was occurring in Senate Districts 2, 12, and 26. See id., at 101-102.
Judge Oberdorfer dissented. He would have given “greater credence to the political expertise and motivation of Georgia’s African-American political leaders and reasonable inferences drawn from their testimony and the voting data and statistics.” Id., at 102. He noted that this Court has not answered “whether a redistricting plan that preserves or increases the number of districts statewide in which minorities have a fair or reasonable opportunity to elect candidates of choice is entitled to preclearance, or whether every district must remain at or improve on the benchmark probability of victory, even if doing so maintains a minority super-majority far in excess of the level needed for effective exercise of [the] electoral franchise.” Id., at 117.
After the District Court refused to preclear the plan, Georgia enacted another plan, largely similar to the one at issue here, except that it added black voters to Districts 2, 12, and 26. The District Court precleared this plan. See 204 F. Supp. 2d 4 (2002). No party has contested the propriety of the District Court’s preclearance of the Senate plan as amended. Georgia asserts that it will use the plan as originally enacted if it receives preclearance.
We noted probable jurisdiction to consider whether the District Court should have precleared the plan as originally enacted by Georgia in 2001, 637 U. S. 1151 (2003), and now vacate the judgment below.
II
Before addressing the merits of Georgias preclearance claim, we address the State’s argument that the District Court was incorrect in allowing the private litigants to intervene in this lawsuit. Georgia maintains that private parties should not be allowed to intervene in §5 actions because States should not be subjected to the political stratagems of intervenors. While the United States disagrees with Georgia on the propriety of intervention here, the United States argues that this question is moot because the participation of the intervenors did not affect the District Court’s ruling on the merits and the intervenors did not appeal the court’s ruling.
We do not think Georgia’s argument is moot. The inter-venors did not have to appeal because they were prevailing parties below. Moreover, the District Court addressed the evidence that the intervenors submitted, which is now in front of this Court. The issue whether intervenors are proper parties still has relevance in this Court because they argue here that the District Court correctly found that the Senate plan was retrogressive.
The District Court properly found that Federal Rule of Civil Procedure 24 governs intervention in this case. Section 5 permits a State to bring “an action in the United States District Court for the District of Columbia for a declaratory judgment.” 42 U. S. C. § 1973c. Section 5 does not limit in any way the application of the Federal Rules of Civil Procedure to this type of lawsuit, and the statute by its terms does not bar private parties from intervening. In NAACP v. New York, 413 U. S. 345, 365 (1973), we held that in an action under § 5, “intervention in a federal court suit is governed by Fed. Rule Civ. Proc. 24.”
To support its argument, Georgia relies on Morris v. Gressette, 432 U. S. 491 (1977). In Morris, we held that in an administrative preclearance action, the decision to object belongs only to the Attorney General and is not judicially reviewable. See id., at 504-505. But Morris concerned the administrative preclearance process, not the judicial pre-clearance process. Morris itself recognized the difference between administrative preclearance and judicial preclearance. See id., at 503-507.
Here, the District Court granted the motion to intervene because it found that the intervenors’ “analysis of the... Senate redistricting pla[n] identifies interests that are not adequately represented by the existing parties.” App. to Juris. Statement 218a. Private parties may intervene in §5 actions assuming they meet the requirements of Rule 24, and the District Court did not abuse its discretion in granting the motion to intervene in this case. See NAACP v. New York, supra, at 367.
III
A
Section 5 of the Voting Rights Act “has a limited substantive goal: “‘to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.’” Miller, 515 U. S., at 926 (quoting Beer v. United States, 425 U. S., [at 141]).” Bush v. Vera, 517 U. S. 952, 982-983 (1996). Thus, a plan that merely preserves “current minority voting strength” is entitled to § 5 preclearance. City of Lockhart v. United States, 460 U. S. 125, 134, n. 10 (1983); Bush v. Vera, supra, at 983. Indeed, a voting change with a discriminatory but nonretro-gressive purpose or
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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
212. United States Supreme Court
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.
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: 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:
|
songer_const1
|
3
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
BARNETT et al. v. UNITED STATES.
No. 7962.
Circuit Court of Appeals, Ninth Circuit.
March 23, 1936.
Paul R. Hutchinson, of Los Angeles, Cal., for appellant.
Peirson M. Hall, U. S. Atty., and Howell Purdue, Asst. U. S. Atty., both of Los Angeles, Cal.
Marion De Vries, of Washington, D. C. (Jesse P. Crawford and H. Kennedy McCook, both of Washington, D. C., of counsel), amici curiae.
Before WILBUR, GARRECHT, and MATHEWS, Circuit Judges.
WILBUR, Circuit Judge.
This is an appeal from a decree in equity in an action brought by the United States to recover from Anna Laura Barnett and the other defendants, who have not appealed, such portion of the sum of $550,000 as was given to her by the Secretary of the Interior from funds of an Indian derived from royalties from an oil lease on real estate allotted to the Indian in the state of Oklahoma.
The appellants filed eleven assignments of error. The first was that the court erred in denying the motion of defendant Anna Laura Barnett to dismiss the amended bill of complaint. The third was that the court erred in overruling the objection of the defendants Anna Laura Barnett and Maxine Sturges by their counsel to the introduction of any evidence in said case. The sixth, that the trial court had no jurisdiction over this action or its subject-matter and erred in assuming and maintaining the same.
The appellants have prepared an agreed statement on appeal purporting to be in accordance with Equity Rule 77 (28 U.S.C.A. following section 723), which permits a statement of the cause “showing how the questions arose and were decided in the district court and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such' questions by the appellate court.”
This agreed statement is in the form of a stipulation approved by the trial judge. Among other things it states:
“It is hereby stipulated that no statement of evidence or bill of exceptions need be filed herein, and that the appeal of said case be heard on the judgment roll and upon this Agreed Statement on Appeal.
“ * * * It is hereby stipulated that all orders and rulings herein mentioned and made to motions herein mentioned and the decision of the court thereon were and are duly excepted to by appellants; * * * that the motions of the defendants and appellants Anna Laura Barnett and Maxine Sturges to dismiss and to strike from plaintiff’s bill of complaint applied to the original petition, its amendment, and the amended bill of complaint.”
It is also stipulated that at the beginning of the trial the defendants and appellants objected to the introduction of any evidence on the ground that the plaintiff and appellee had no legal capacity to sue and that said objection was overruled by the court.
It was further stipulated that certain questions, fifteen in number, are presented to be passed upon in this appeal.
In so far as the stipulation purported to state certain propositions of law to be decided by this court upon appeal, it departs from rule 77 and must be disregarded. The parties have no right to determine by stipulation the questions to be decided on appeal. The purpose of rule 77 is to permit a succinct statement of the record so as to show how the questions to be submitted to the appellate court arose and were decided in the District Court.
Under the head of “Specification of Errors” in appellants’ brief we find the following statement:
“The assignment of errors lists 11 assigned errors. After it was filed, counsel for appellants and for respondent stipulated that the appeal be prosecuted on the judgment roll and certain questions specially presented by the stipulation. In briefing appellants’ cause it has been found helpful to combine some of those points. All of them are defects appearing on the face of the record. They were first presented by defendants’ motion to dismiss, at the trial by defendants’ objection to the introduction of any evidence, and at the close of plaintiff’s case by the motion to strike all evidence, and for judgment for defendants. Now they arise naturally in an appeal on the judgment roll, except where otherwise noted. Appellants contend that the court committed error in denying said motions and that the decree is fatally defective, in the following particulars:
“I. The United States is without guardianship power or legal right to sue as plaintiff to nullify the marriage of Jackson Barnett. * * *
“II. The attempt on the part of the United States to interfere with the marriage of the Barnetts is an unconstitutional interference with their rights as citizens. * * *
“III. Assuming that the United States had the guardianship power or legal right to maintain an action to nullify the marriage, the United States District Court had no jurisdiction over the action pertaining to the marriage or the power to ffecree the marriage a nullity. * * *
“IV. Assuming’ that the United States had the guardianship power and the legal right to maintain the action to nullify the marriage, and the District Court jurisdiction over such an action, they both fall short of the power to annul the marriage, and the marriage is therefore valid.
“V. Assuming that the United States had the guardianship power and legal right to sue to nullify the marriage and the United States District Court jurisdiction over, sitch an action, relief should be refused because of laches, and plaintiff should be es-topped to maintain the action to nullify the marriage. * * *
“VI. The amended bill of complaint contains a misjoinder and multiplicity of causes of action, and violates Equity Rule 26 [28 U.S.C.A. following section 723] * *
“VIII. The amended bill of complaint is fatally defective in that there is a nonjoinder of necessary parties defendant. * * *
“X. The plaintiff did not have the right to sue to recover property previously held as restricted for the benefit of Jackson Barnett, which was released from such restriction by the Secretary of the Interior in the exercise of his discretion.”
These specifications are scattered through 108 pages of appellants’ brief. Each specification of error in the brief should state the particular ruling claimed to be erroneous and the assignment or assignments of error upon which the specification is based. , The specifications in the appellants’ brief are defective, in that they do not refer at all to the assignments of error upon which they are predicated and lump together a number of rulings which are claimed to be erroneous without designating which particular ruling is complained of.
If the only difficulty in considering the appeál arose from defective specifications of error in appellants’ brief because of their failure to conform to the rules of this court, we would afford an opportunity to the appellants to file a new brief with the proper specifications. But, in view of the fact that under the statement on appeal we have nothing properly before us but the question as to whether or not the bill of complaint states a cause of action and as to whether or not the decree rendered was within the jurisdiction of the court, we will proceed to a determination of those matters without calling for a new brief on the* part of the appellants. In so doing we shall assume that it was the intention of the appellants by the above specifications to specify the alleged error of the trial court in denying their motion to dismiss upon the ground that the bill did not state a cause of action on behalf of the United States and to the alleged excess of jurisdiction in the remedy granted.
Aside from the description of the real estate contained in the complaint, which had been purchased by or on behalf of the appellant Anna Laura Barnett from said fund of $550,000, the facts alleged in the bill of complaint herein can be ascertained by reference to a number of decisions heretofore rendered which recite the circumstances under which $1,100,000, including the $550,000-herein involved, was procured from the Secretary of the Interior from the funds of Jackson Barnett by fraud. This renders it unnecessary to make an elaborate statement of the same facts in this opinion. Therefore, to avoid a more detailed statement of facts involved in the case at bar, we refer to such cases. Barnett v. Equitable Trust Co. of New York (D.C.) 21 F.(2d) 325, 333; Id. (C.C.A.) 34 F.(2d) 916; United States v. Equitable Trust Co. of New York, 283 U.S. 738, 739, 51 S.Ct. 639, 75 L.Ed. 1379; United States v. Mott (D.C.) 33 F.(2d) 340; Id. (C.C.A.) 37 F.(2d) 860; Mott v. United States, 283 U.S. 747, 51 S.Ct. 642, 75 L.Ed. 1385. These cases hold that the fund of $1,100,000 belonging to Jackson Barnett was obtained from the Secretary of the Interior, its lawful custodian, while Jackson Barnett was incompetent to draw upon the fund or to contract matrimony, by means of an order obtained by the appellant Anna Laura Barnett, who had kidnapped Barnett, taken him to Kansas, and then to Missouri, in each of which states a purported marriage ceremony was staged. A portion of this $1,100,000 is wrongfully in the custody of the appellant and in the other defendants.
According to allegations and findings in the case at bar, Jackson Barnett was wholly incapable of understanding the nature of a marriage contract or of the obligations thereby assumed. He did not have sufficient mental capacity to marry. After this purported marriage, Jackson Barnett was induced to make a thumbprint upon the order for the release of the $1,100,000 above referred to. This act was without comprehension on his part of the significance of it or any knowledge of the contents of the document to which he attached his thumbprint, and without any capacity to understand such an instrument. These facts were alleged and proved, and the record is conclusive against the appellants upon that subject.
Appellants contend this action cannot be maintained by the United States on behalf of the Indian, Jackson Barnett. The decisions to which we have already referred, dealing with this very transaction, establish the error of this contention, for it is held in these cases that the United States is the proper party to-act for recovery of the funds in question.
In so far, then, as the action at bar is an action by the United States on behalf of Jackson Barnett to recover a portion of the $1,100,000 fund secured from the Secretary of the Interior by fraud, the right to maintain the action is established beyond controversy by the hereinbefore mentioned decisions dealing with this same transaction.
The bill of complaint herein, in addition to the recovery of the land and property above mentioned, prayed for a decree of the court that the alleged marriage between Jackson Barnett and the appellant Anna Laura Barnett was wholly void, and the court so decreed.
The appellants claim that the lower court had no jurisdiction to declare the marriage void because jurisdiction of such matters is vested in state courts and not in federal courts. The appellee predicates jurisdiction upon the original cause of action to recover the trust fund, and claims that the adjudication declai-ing the marriage void is a corollary thereto because it is the duty of the United States to administer the funds already recovered, those to be recovered, and the other income derived from the oil property of Jackson Barnett and to distribute such property upon his death to his widow, if any, or, if not, to retain the property for the benefit of his Indian heirs. It is therefore essential that the United States shall have the marital status of the Indian determined in order to properly perform its duty as trustee of the fund and as guardian of the Indian heirs of Jackson Barnett, for there are no children of the alleged marriage and Jackson Barnett had no descendants. His nearest relatives. according to the allegation of the complaint and finding of the trial court, were nieces and nephews who were all full-blooded Indians. It has been held that a declaration of the invalidity of a marriage may be a proper subject for adjudication in an action brought by a guardian of the property of one of the alleged spouses as an incident to the management of the estate. The Supreme Court of Ohio in Waymire v. Jet-more and Spencer, 22 OhioSt. 271, where a guardian brought an action to have a marriage of his ward declared void because of mental incapacity, said:
“Social order and public decency demand that the parties to a meretricious relation, in which the forms of marriage, apparently legal, seem to bind them, should be judicially relieved therefrom. This alone is sufficient cause for the interference of whatever tribunal possesses the adequate powers. But the succession of property and the legitimacy of inheritance, which the law regards with peculiar jealousy, furnish a no less controlling motive for such interference. The want of consenting capacity, resixlting from causes other than infancy, which is generally declared and the period thereof fixed by statute, is determinable in every instance by the testimony of witnesses only. Therefore, while the parties are in esse, and the witnesses accessible, it is of the greatest importance that every cloud which might obscure the succession or involve the inheritance, should be removed, rather than remain to foster future and consuming litigation. To this end a court of equity, in the exercise of its ordinary powers, will entertain jurisdiction, at the suit of the imbecile’s guardian, to declare his marriage a nullity, as it does to order the surrender and cancellation of a forged or otherwise void instrument.”
In Counts v. Counts, 161 Va. 768, 172 S. E. 248, decided January, 1934, the Supreme Court of Appeals of Virginia had under consideration a suit in chancery to annul the marriage of Jessee Counts to Lillian Counts on the ground of the insanity of Jessee Counts at the time of the marriage. The suit was instituted by E. V. Counts, committee for Jessee Counts. The defendant contested the right of the committee of an insane person to bring such a suit. Section 5088, Code Virginia 1930, provides that “all marriages * * * solemnized when either of the parties was insane * * * shall, if solemnized within this State, be void from the time they shall be so dedared by a decree of divorce or nullity.” Section 5100 of that Code provides that, “when a marriage is supposed to be void for any of the causes mentioned either in section * * * five thousand and eighty-eight, * * * either party may, except as is provided in the next section, institute a suit for annulling the same; and, upon due proof of the nullity of the marriage, it shall be decreed to be void.” Under these statutes it was held that the committee had the right to institute á suit to annul the marriage. The court quoted and approved Bishop on Marriage, Divorce and Separation, vol. 2 (6th Ed.) §§ 527, 528, as follows :
Section 527: “If an insane person is entrapped into a form of ceremony of marriage, reason would indicate that his guardian or committee should be permitted during the continuance of the insanity to institute and carry on a proceeding to have it declared woid. And so the law is believed to be, not absolutely without qualifications, both with us and in England.”
Section 528: “The insane person, whether plaintiff or defendant, * * * must sue or defend by guardian ad litem, or committee. Precisely how this shall be will depend largely on the varying statutes of our states, and on the practice of the particular court.”
From the decisions it is clear that a declaration of the nullity of a marriage, void because of the incapacity of the ward, is appropriate in an action by the guardian of the ward’s estate, and in a proper case is ancillary to the administration of the estate. We think it clear that the remedy sought by the government herein was ancillary to the main purpose of this action.
Appellants contend, however, that the District Court had no jurisdiction over a suit to annul a marriage, citing Barber v. Barber, 21 How. (62 U.S.) 582, 16 L.Ed. 226; In re Burrus, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500; Simms v. Simms, 175 U.S. 162, 20 S.Ct. 58, 44 L.Ed. 115; Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1; De La Rama v. De La Rama, 201 U.S. 303, 26 S.Ct. 485, 50 L.Ed. 765. Appellants particularly rely upon Barber v. Barber, supra, wherein the Supreme Court disclaimed any federal jurisdiction upon the subject of divorce. This is not a suit to annul a marriage. Federal jurisdiction is predicated upon the Constitution of the United States (article 3, § 2), which provides that the judicial power of the United States shall extend “to controversies to which the United States shall be a Party.” It is difficult to escape the conclusion that this is a controversy to which the United States is a party, and, consequently, that the federal courts have jurisdiction thereof. U.S.Const., art. 3, § 2. The jurisdiction of a court of equity to entertain such a suit is affirmed in Sharon v. Hill (C.C.) 20 F. 1; Id. (C.C.) 22 F. 28; Id. (C.C.) 26 F. 337; Sharon v. Terry (C.C.) 36 F. 337, 1 L.R.A. 572, where the purpose of the action was to prevent the defendant from using a forged marriage contract as evidence of an alleged marriage. One of the purposes of the suit is to prevent the use of the fraudulent and void marriage certificate and ceremony as evidence in future dealings between the United States and the appellant Anna Laura Barnett. It follows that this suit is an action in equity within the meaning of the Judicial Code § 24 (28 U.S.C.A. § 41), giving jurisdiction to the District Court. It follows that the trial court had jurisdiction to enjoin the use of such evidence, as it did.
Here it may be appropriately added that, before the formal decree was filed, Jackson Barnett died, and the court entered a nunc pro tunc decree as of the date of the announcement of the decision, which was in writing and signed by the judge. This was proper. See annotations to In re Estate of Cook (Cal.) 1 L.R.A. 567; Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804; Majestic Elec. Dev. Co. v. Westinghouse Elec. & Mfg. Co. (C.C.A.) 276 F. 676.
Decree affirmed.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_numappel
|
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.
Your specific task is to determine the total number of appellants in the case. 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.
Leona HARRIS, Appellant, v. H. G. SMITHY CO., Inc., et al.
No. 22833.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 12, 1970.
Decided June 15, 1970.
Mr. Ernest C. Dickson, Washington, D. C., for appellant.
Mr. Jerome S. Berg, Washington, D. C., for appellees. Mr. Lawrence E. Carr, Jr., Washington, D. C., was on the brief for appellees.
Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge and JAMESON, Senior District Judge.
Sitting by designation pursuant to the provisions of Title 28, U.S. Code, Section 294(d).
BAZELON, Chief Judge.
This is an appeal from a judgment dismissing an action for personal injuries. Appellant is a tenant in an apartment building owned and managed by appellees. She was injured by slipping and falling on the terrazzo floor of the apartment house lobby on a rainy day. The trial court, sitting without a jury, concluded that the landlord had neither actual nor constructive notice of the wet and slippery condition of the floor, and hence had no duty to take corrective action. Because that conclusion rests on an erroneous interpretation of the controlling principle of law, we reverse and remand for a new trial.
A landlord who rents separate parts of his premises to a number of different tenants has a duty to use reasonable care to keep the common passageways free of dangerous conditions. Pessagno v. Euclid, 72 App.D.C. 141, 112 F.2d 577 (1940). A wet and slippery floor is clearly a dangerous condition. But reasonable care requires the landlord to correct the condition only after a reasonable opportunity for notice of the danger. C. W. Simpson v. Langley, 76 U.S.App.D.C. 365, 131 F.2d 869 (1942).
The ruling below was apparently based on the view that constructive notice of a wet and slippery lobby floor could arise only from evidence that the floor had actually been wet for a substantial period of time. The trial court found appellant’s case fatally defective for failure to show that for a substantial period of time before the fall there was water on the floor or traffic in the lobby.
In this case the evidence clearly shows that at the time of the accident, rain was falling and the lobby floor was wet. The trial court so found, concluding that there was no showing of the necessary notice because there was no evidence that numerous people had passed through the lobby before the accident, tracking in water. In our view, however, evidence of a substantial period of rain is sufficient to give a landlord constructive notice of the foreseeable hazards that may result from that rain, including the risk that water will be tracked into an apartment lobby and the floor will become slippery. See Doctors Hospital, Inc. v. Badgley, 81 U.S. App.D.C. 171,156 F.2d 569 (1946).
A landlord’s duty of care must be measured by a flexible standard, that reflects community expectations and meets the needs of contemporary urban life. Levine v. Katz, 132 U.S.App.D.C. 173, 175, 407 F.2d 303, 305 n.6 (concurring opinion). Modern apartment dwellers expect not merely a space in which to live, but a “well-known package of goods and services — a package which includes * * * proper maintenance.” Javins v. First National Realty Corp., 138 U.S.App.D.C. -, -, 428 F.2d 1071, 1074 (1970). Minimal standards of proper maintenance require the landlord to anticipate dangerous conditions that recur regularly, and to take some precautions.
If rain and the normal traffic of tenants regularly result in a slippery lobby floor, then a landlord cannot wait each time it rains for notice that the floor is wet. Apartment dwellers today are entitled to assume that management will take reasonable steps to ensure the safety and cleanliness of common areas in constant use, such as the front entrance lobby. Liability for negligence does not require notice of the particular puddle that caused the fall. It is sufficient to show notice of rain, combined with the probability that in rainy weather tenants will track in water and the lobby floor will become slippery. Harris v. Joffe, 28 Cal.2d 418, 170 P.2d 454 (1946); cf. Klein v. United States, 339 F.2d 512 (2d Cir. 1964); Rodenbur v. Kaufmann, 115 U.S.App.D.C. 360, 320 F.2d 679 (1963).
The instant case turns in part, therefore, on the question whether rain had been falling for a sufficient period of time before the accident to give the landlord constructive notice of the danger of a slippery lobby floor. The findings of the trial judge are ambiguous on this point, because in his view constructive notice required not only evidence of rain but also evidence of a wet floor for a substantial period of time before the accident. His treatment of the evidence, however, requires some comment.
The plaintiff testified that it was raining shortly before she fell, at about 1 p. m., but she did not testify that it had been raining earlier in the day. Weather bureau reports were introduced to show that it had been raining all day, but the trial judge noted that these reports were based on observations taken at the National Airport, ten miles from the site of the accident, and “it is a matter of common knowledge that it may rain in one part of the city and not in another.”
We think the trial judge’s approach to the weather reports was improper as a matter of law. Weather bureau reports are not conclusive, but they certainly constitute evidence of high quality, as the same judge earlier noted in Robinson v. Park Central Apartments, 248 F.Supp. 632, 636 (D.D.C. 1965). No evidence was introduced to rebut the evidence of morning rain, or to indicate that conditions at the apartment house that morning were different from those at the airport. The evidence was therefore sufficient to present to the trier of fact the issue whether there had been a substantial period of rain at the apartment house before the accident.
If the case had been tried to a jury, the court would have instructed the jury to decide (1) whether there was a sufficient period of rain to provide constructive notice of the danger of a slippery lobby floor, and (2) if so, whether appellees exercised reasonable care in responding to that danger. On a trial to a judge there are no instructions, of course, but the same questions of fact must be resolved.
There was evidence at trial that rubber mats are commonly used on floors of this type in rainy weather. Cf. Scott v. United States, 158 F.Supp. 810 (N.D.N. Y.1957); Pignatelli v. Gimbel Bros., 285 App.Div. 625, 140 N.Y.S.2d 23 (Sup. Ct.), aff’d, 309 N.Y. 901, 131 N.E.2d 578 (1955). Indeed, the building superintendent testified that he had asked the management to install rubber mats, but was told they would only be stolen. Therefore it was his practice simply to mop the lobby floor whenever he saw or was told it needed mopping.
It may well be that a practice of prompt and frequent mopping would suffice to guard against the danger of slippery wet floors. It is for the trier of fact to determine what constitutes reasonable care under the circumstances. Seganish v. District of Columbia Safeway Stores, Inc., 132 U.S.App.D.C. 117, 121, 406 F.2d 653, 657 (1968). But the court below never inquired into the adequacy of appellee’s practices with respect to mops and rubber mats, because of its conclusion that appellee had no notice of the slippery condition of the floor and hence no duty to correct it. Since that conclusion was based on an erroneous principle of law, the case must be reversed and remanded for a new trial.
So ordered.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_casetyp1_2-2
|
C
|
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 "civil rights".
LATINOS UNIDOS DE CHELSEA EN ACCION (LUCHA), et al., Plaintiffs, Appellants, v. SECRETARY OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants, Appellees.
No. 85-1573.
United States Court of Appeals, First Circuit.
Argued May 7, 1986.
Decided Aug. 12, 1986.
Alan Jay Rom, Lawyers Committee for Civil Rights Under Laws of the Boston Bar Ass’n, with whom Stuart T. Rossman, Sheara F. Friend and Gaston Snow & Ely Bartlett were on brief for plaintiffs, appellants.
Marshall D. Stein, Sp. Counsel to the City of Chelsea, with whom Cherwin & Glickman was on brief for City of Chelsea and Mayor of Chelsea, Mass.
Howard S. Scher, Civ. Div., Dept. of Justice, with whom William F. Weld, U.S. Atty., Richard K. Willard, Asst. Atty. Gen., Michael Jay Singer, Civ. Div., Dept. of Justice, Gershon M. Ratner, Associate Gen. Counsel for Litigation, Howard M. Schmeltzer, Sp. Asst. to the Associate Gen. Counsel for Litigation, and Anthony J. Ciccone, Jr., Trial Atty., HUD Office of Litigation, were on brief for federal defendants, appellees.
Before COFFIN and TORRUELLA, Circuit Judges, and MALETZ, Senior Judge.
Of the United States Court of International Trade, sitting by designation.
COFFIN, Circuit Judge.
Plaintiffs brought this civil rights action alleging that the city of Chelsea, Massachusetts, and three officials of the United States Department of Housing and Urban Development (HUD), deprived Chelsea’s minority population of equal opportunities in employment, housing and government contracts made available through several federally funded programs. The plaintiffs, Latinos Unidos De Chelsea En Acción (LU-CHA) and four individual members of LU-CHA, appeal three orders of the district court, which denied class certification, granted the federal defendants’ motion to dismiss, granted summary judgment for the city defendants on all but one claim and, after trial, held that the city did not discriminate in its Housing Improvement Program. We have carefully reviewed the record and the legal precedents and have found no reversible error.
In an effort to simplify the many issues in this case, we begin with a description of the relevant funding programs. We then present factual background about the city of Chelsea, the nature of the community development activities for which it used federal funds, and the annual reviews of the city’s projects. Finally, we discuss why we find no violations of antidiscrimination laws in the challenged areas of employment, housing and contracts.
I.
Chelsea received the federal grants at issue in this case between 1975 and 1980 under the Community Development Block Grant (CDBG) Entitlement Program, 42 U.S.C. §§ 5301-5317; the Small Cities Program (SCP), 42 U.S.C. § 5306(d), which is a subprogram of the CDBG; and the Urban Development Action Grant (UDAG) program, 42 U.S.C. § 5318. All three programs are part of Title I of the Housing and Community Development Act (HCDA) of 1974, whose primary objective “is the development of viable urban communities, by providing decent housing and a suitable living environment and expanding economic opportunities, principally for persons of low and moderate income.” 42 U.S.C. § 5301(c). See also 42 U.S.C. § 5304(b)(3) (current law) (maximum feasible priority should be given “to activities which will benefit low- and moderate-income families or aid in the prevention or elimination of slums or blight”).
Both the CDBG and UDAG programs have nondiscrimination requirements. Recipients in both programs, under a specific provision of the HCDA, are prohibited from discriminating on the basis of race, color, national origin or sex. 42 U.S.C. § 5309. CDBG grantees also are required to certify “that the program will be conducted and administered in conformity” with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3631. 42 U.S.C. § 5304(a)(5). Title VI prohibits recipients of federal funds from discriminating on the basis of race, color or national origin in the use of those funds; Title VIII prohibits discrimination in the sale or rental of housing. The Secretary is charged with making an annual review of the CDBG recipient’s programs to determine compliance with applicable laws, and may impose conditions on a present year’s grants as a result of the review of a prior year’s program. 24 C.F.R. § 570.910(b) (April 1979).
Under the UDAG program, nondiscrimination provisions are built into the eligibility requirements. Cities may receive UDAG grants only if they have “demonstrated results in providing housing for low- and moderate-income persons and in providing equal opportunity in housing and employment for low- and moderate-income persons and members of minority groups.” 42 U.S.C.A. § 5318(b)(1) (West 1986). And in selecting one UDAG application over another, HUD must consider the “impact of the proposed urban development action program on the special problems of low- and moderate-income persons and minorities.” 42 U.S.C. § 5318(e)(3).
Aside from these nondiscrimination limitations, CDBG and UDAG recipients have wide latitude in choosing specific programs that meet the statute’s objectives. See 42 U.S.C. § 5305. Acceptable community development programs include the acquisition and rehabilitation of blighted or deteriorated property; construction of neighborhood facilities such as senior centers, utilities, streets, parks and fire protection services; code enforcement in deteriorated areas; and provision of public services concerned with child care, health and drug abuse. 42 U.S.C. § 5305(a)(l)-(12).
II.
Chelsea is a densely populated city of 1.8 square miles. According to the 1960 census, Chelsea’s population was 33,749, including about 1% minorities. The 1970 census showed that the city’s population had dropped to 30,625, of which 1.6% were black and 3.5% were Hispanic. In the mid-1970s, Chelsea’s population changed dramatically. By the time the city conducted a survey in February 1978, the Hispanic population had risen to 19.5% of the total, with other minorities representing an additional 2.6%. The survey showed that about half of the Hispanics had arrived in the preceding three years, and that less than one-fourth had lived in Chelsea for five years or more. Despite the rapid growth in the number of Hispanics, the overall population in Chelsea continued to decline, falling to approximately 25,000 in 1979. In a 1978 letter to HUD, Chelsea’s mayor attributed the outmigration to “fires, general deterioration and abandonment, high taxes and few amenities and fewer services from a poor city to a dependent population”. [App. at 469.]
The 1978 survey also revealed the following characteristics of Chelsea:
—85.6% of Hispanic households in the city were designated by HUD standards as low- or moderate-income, while 78.5% of the nonminority households also qualified for HUD assistance;
—rental households comprised 73.3% of all households in Chelsea (only 1% of black residents and 5.1% of Hispanic residents were homeowners);
—Chelsea is a city of multi-unit housing structures; 725 buildings contained a single unit; 1529 contained two units; 948 contained three units; and 455 contained four or more units; [App. at 248.]
—overcrowding was a problem for 17.8% of households surveyed, and a problem particularly for Hispanics;
—a significantly higher percentage of blacks and Hispanics (compared with non-minorities) reported housing problems such as sewage backup, leaky roof, cracked/broke interior walls or ceilings, peeling paint; rodents and insects;
—the elderly population, which is 98.6% non-minority, comprised about 20% of the total population.
Thus, when Chelsea began applying for federal community development funds in 1975, it was largely a city of renters, losing residents overall but with a growing Hispanic population that apparently was experiencing the city’s housing problems more acutely than other residents. Many housing structures needed varying degrees of physical rehabilitation, although a large percentage of the population apparently was unable to make the personal investment in the needed improvements. In addition, a 1976 survey showed a 1% vacancy rate; thus, the city presumably needed additional housing, with the greatest need in all likelihood among low-income families.
III.
Over the course of the six years under consideration in this case, Chelsea received approximately $20 million in federal funds for community development projects. We discuss below the nature of some of these projects, and the reaction toward them from agencies reviewing the city’s compliance with nondiscrimination requirements.
A. Community Development Block Grant Programs, 1975-1980. Chelsea participated in the CDBG program for five years, conducting a variety of programs aimed at different aspects of community development, including fire prevention, housing code enforcement, playground development, street lighting, and road construction. Several of these programs were begun in the areas with the largest minority populations. In addition, in the early years of the CDBG program, funds also were allocated to a bilingual day care center, a housing legal services program for low income families, minorities and the elderly, and health services directed toward lower income minority persons.
1. The first two years (1975-1976; 1976-1977)
A major project begun in the first year was the Mayor’s Housing Improvement Program (HIP), which provided grants of 20 percent of the cost of repairs undertaken in owner-occupied homes. This program was expanded the second year to include repairs done by absentee landlords “because it was felt that many of the persons the program should be affecting live in units owned by absentee landlords.” Most of the people benefiting from this particular program were not minorities because very few minorities owned their own homes.
2. The third year (1977-1978)
In the third program year, 1977-1978, the city reported that, in addition to the continuing programs, Chelsea’s Office of Community Development would hire a Community Services and Planning Officer “[t]o insure that the needs of the growing Spanish population are met”. [App. at 125.] The city also reported that it was in the final stages of developing a comprehensive plan to respond to Hispanic needs, explaining that the city was focusing on this group “because of the intense level of in-migration of Spanish speaking persons in Chelsea.”
The Massachusetts Commission Against Discrimination (MCAD) and the North Suffolk Legal Assistance Association (NSLAA) reviewed Chelsea’s first three applications, and found them to be unsatisfactory because they failed to adequately assure Chelsea’s minority residents equal participation in the program’s benefits. The NSLAA, which reviewed the third-year application, claimed that the city’s Housing Assistance Plan failed to analyze the impact of the growing Hispanic community on future housing needs. It particularly objected to Chelsea’s emphasis on rehabilitating homes through the provision of assistance to homeowners, rather than on expanding housing opportunities for low- and moderate-income persons through building new units of low- and moderate-income housing. NSLAA concluded that Chelsea’s proposals violated Title I of HCDA because they did not meet “the primary objective of the Act by principally benefittipg low- and moderate-income persons.” See 24 C.F.R. § 570.304(a)(2) (April 1979) (requiring fund recipients to pinpoint special needs of minority community and to design programs to fulfill them). Moreover, NSLAA concluded, the failure to specially assist the minority community excluded minorities from meaningful participation in the benefits of Title I, thus violating Title VI of the Civil Rights Act of 1964 and the nondiscrimination provision of Title I, 42 U.S.C. § 5309.
NSLAA also pointed to the low percentage of minority persons employed in city agencies receiving federal funds and charged that “maintaining these discriminatory employment practices [violates] Title VI of the 1964 Civil Rights Act as well as the CDBG Act itself.” As a result of NSLAA’s concerns, HUD agreed to condition its third-year grant approval on the city’s promise to conduct a survey in cooperation with NSLAA to determine the size and needs of the Hispanic community.
3. The fourth and fifth years (1978-1979; 1979-1980)
The fourth and fifth years of CDBG funding transpired in similar fashion. Chelsea implemented some programs of apparently direct benefit to the Hispanic community, including initiation of a Hispanic Neighborhood Center Project that provided housing referrals, job information and other services to the Hispanic community. Nevertheless, both the MCAD and HUD’s Fair Housing & Equal Opportunity Division (FH & EO Division) concluded that Chelsea’s actions to prevent discrimination continued to be inadequate. The FH & EO Division found that minority employment remained low (2.1% of all full-time city employees in 1978-79), and that of 32 business contracts awarded thus far during the CDBG program, none had been awarded to a minority.
In the fourth year, HUD responded to the persistent concerns about Chelsea’s performance by requiring revisions in the city’s Housing Assistance Plan to provide for an increase in family housing goals. HUD also required that Chelsea submit a “special assurance” that its employment practices were in compliance with 24 C.F.R. § 570.601(b)(iv) (April 1979), which requires that recipients ensure that all residents have equal access to CDBG program benefits. [App. at 284.] The “special assurance” is a form of remedial action in which HUD requires grant recipients to specify performance goals and a specific timetable for achieving results within six months. See 24 C.F.R. § 570.910(b)(4) (April 1, 1979).
In October 1978, FH & EO Division staff conducted a monitoring visit to review Chelsea’s performance under the CDBG program. They concluded that Chelsea had not taken the necessary “affirmative actions” to provide minority employment and that the city’s “special assurance” was “woefully inadequate”; rather than setting goals and timetables for the hiring, training and promoting of minority employees, Chelsea’s mayor had simply sent a letter assuring HUD that the city would not discriminate. The FH & EO Division also found Chelsea’s actions to prevent housing discrimination to be unacceptable, and it recommended the following: (1) establishment of a goal of hiring at least 10 percent minority contractors; (2) establishment of a Mayor’s Office of Fair Housing; (3) design of a Fair Housing Plan that would provide for family rather than elderly housing; (4) hiring a full time compliance officer who is bilingual. [App. at 298.]
Apparently in light of Chelsea’s failure to improve, HUD attached “special conditions” to the fifth-year CDBG grant in the areas of employment, fair housing and minority entrepreneurship. These conditions restrict the use of funds in those areas and are a more serious sanction than the prior request for a “special assurance”. See 24 C.F.R. § 570.910(b)(9) (April 1979). Specifically, in noting that Hispanics had not ben-efitted from the city’s housing rehabilitation programs in proportion to their numbers in the community, HUD recommended changes in Chelsea’s programs such as the establishment of a preference for Hispanic homeowners and for homeowners with Hispanic tenants; expansion of the rehabilitation programs to multi-family structures occupied by Hispanics and other minorities; and homeownership counseling for Hispanics and other minority residents of Chelsea. HUD also required development of an affirmative action plan that would establish a goal for hiring minorities at the rate of at least 51 percent in city agencies receiving CDBG funds, establishment of a compliance unit, and development of goals for awarding business contracts to minorities. [App. at 363.]
B. Small Cities Program, 1978-1981. Starting in 1978, Chelsea received SCP funds, as well as CDBG funds, for the same type of community programs. In its review of Chelsea’s first SCP application in 1978, the FH & EO Division noted that Chelsea had failed to propose explicit activities to meet its obligations under Titles VI and VIII. Those obligations, according to the Division, arose from Title VI and HCDA regulations specifying that:
“Even in the absence of... prior discrimination, a recipient in administering a program should take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, national origin[, or sex].” 24 C.F.R. § 1.4(b)(6)(ii) (April 1985) (sex included as a status in HCDA regulation only). See
24 C.F.R. § 570.601(b)(4)(ii) (April 1979). HUD approved the SCP grant without conditions, however, noting in its approval letter that the FH & EO concerns would be communicated to the city in a separate letter with the expectation that the city would give the comments immediate attention.
In awarding the second-year SCP funds, HUD imposed the same “special conditions” that it had attached to the fifth-year CDBG grant. The following year, 1980-1981, the FH & EO Division review report concluded that Chelsea had “minimally met the conditions imposed” during the previous year. In order to assure greater efforts to improve, the Division recommended that the city provide a series of special assurances, including continuation of the 51 percent hiring rate for minorities, continuation of a 10 percent minimum goal for awarding contracts to minority businesses, and continuation of funding and staffing of a fair housing program “designed to assure equal access to housing and other City services”. HUD adopted the FH & EO Division recommendations.
In 1981, the third year of SCP participation (Program Year 6), the FH & EO Division again found Chelsea’s housing activities inadequate to meet the needs of minorities, and HUD awarded that year’s grant with the understanding that the special assurances in the areas of minority employment, fair housing and minority contracting would remain in effect at least during the next year.
C. Urban Development Action Grant. Chelsea applied in 1978 for $6,794,000 in UDAG funds for development of the Chelsea Naval Hospital. Its proposal called for creation of a new residential area, rehabilitation of existing housing, restoration of an historic area, development of a 26-acre public park, the opening of the waterfront to commercial and recreational uses and the set aside of about 14 to 20 acres of land for industrial development. The residential proposal included construction of 300 luxury apartments, 570 market rate apartments and 300 subsidized housing units for the elderly. Additional elderly housing would be constructed in other neighborhoods as part of the UDAG project. [App. at 1009.] In addition, 132 low-income family housing units would be rehabilitated in a nearby neighborhood.
The FH & EO Division rated Chelsea’s proposal as fair, commenting that it “minimally reduces the magnitude of the special problems of minority persons”. The Division noted that there was no provision for low-income jobs, and the only low-income family housing provided was the 132 rehabilitated units.
In recommending the project for approval, the Boston Area Office noted that the housing proposed was geared toward middle and upper income persons, but that revitalization of the surrounding neighborhoods would provide expanded housing opportunities for low and moderate-income persons. In addition, the Area Office memo noted that about 300 jobs would be created by the project, many of them for lower-income persons, and another 400 jobs would be saved. Finally, the memo noted that the added tax revenue generated by the project would significantly help the city to provide services to the low income and minority population. [App. at 759.]
IY.
This factual background confirms appellants’ contentions that Chelsea’s actions did not always reflect a top priority concern for its minority residents. The city consistently used a large portion of its federal funds for programs that were not specifically directed at minority housing needs. Despite repeated criticism from the local reviewing agencies and HUD’s FH & EO Division, Chelsea did not refocus its community development program so as to emphasize new construction of low-income family housing. Similarly, the city’s record on employment was largely the same at the end of the relevant grant years as it was when Chelsea began receiving federal funds in 1975. In 1975, in the six city departments receiving federal funds, Chelsea had 256 employees, only one of whom, a black, was a member of a minority group. In 1980, the city reported that ten of 389 permanent employees in all city departments were minorities. And in an affirmative action report submitted to HUD in April 1981, Chelsea stated that only six of its 375 fulltime employees were minorities. Reports to HUD, from the FH & EO Division and outside agencies, consistently complained of inadequacies in Chelsea’s activities, prompting HUD to demand special assurances and impose conditions on the grant awards.
These facts, however, do not completely illumine the nature of Chelsea’s assistance to its minority community. The hiring figures throughout the grant years, as opposed to the final employment figures in 1981, illustrate a more proportional relationship between the government’s activities and Chelsea’s minority population. Likewise, the amount of housing aid, other than through the Housing Improvement Program, reflects a similar proportionate relationship. We present two tables below, one showing city hiring between 1975 and 1981, and the other showing how Chelsea’s total housing assistance was distributed.
Hiring in City Departments Receiving CDBG Funds"
Program Year 4 (1978-1979) 18 2 11.1%
Housing Assistance
Program and Year Total Assisted Minority-assisted (HOUSEHOLDS) Minority Percentage
These two tables illustrate that Chelsea was not ignoring its minority community. Plaintiffs’ claims, therefore, must rest on the city’s failure to do enough to meet its civil rights obligations, and not on the city’s complete neglect of those obligations.
V.
The district court granted the city defendants’ motion for summary judgment except as to plaintiffs’ claim that the municipal defendants discriminated in the Housing Improvement Program. After trial, the court found that Chelsea and its officials had not violated any laws in operating that program. We are therefore governed on this appeal by two different standards. Considering the facts in the light most favorable to the plaintiffs, we must determine whether there exists a genuine issue as to any material fact relating to the alleged discrimination in employment, contracting and the general housing program, those claims dismissed on summary judgment. Mutual Fire, Marine & Inland Insurance Co. v. Costa, 789 F.2d 83, 85 (1st Cir.1986); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). And in reviewing the merits of the district court’s judgment on the HIP program, we must determine whether that court either erred as a matter of law or reached clearly erroneous factual conclusions leading to the wrong result. Fed.R.Civ.P. 52(a); Anderson v. Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); Sweeney v. Board of Trustees, 604 F.2d 106, 109 n. 2 (1st Cir.1979), cert. denied, 444 U.S. 1045, 100 S.Ct. 733, 62 L.Ed.2d 731 (1980). We also must consider whether HUD properly was dismissed from the case.
We shall address each statute and constitutional provision in turn, considering separately the issues of employment, housing and contracting discrimination. Because of the number of issues and sub-issues, we think it helpful to furnish the following roadmap to our substantive discussion:
A. Title VI Claims
1. Employment
—discriminatory intent
—discriminatory impact
2. Housing
—discriminatory intent
—discriminatory impact
3. Contracts
B. Title VIII Claims
—substantive issues against Chelsea
—private right of action against HUD
C. Title I of the Housing and Community Development Act
—private right of action
D. Constitutional Claims
A. Title VI
Plaintiffs allege that the actions of Chelsea and HUD violated both Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., and regulations promulgated under that statute, 24 C.F.R. § 1.4. They claim that Chelsea’s actions in failing to provide sufficient opportunities for minorities in employment, housing and business contracting constituted prohibited discrimination. Plaintiffs’ claim against HUD is that the agency continued unconditionally to provide federal funds to Chelsea despite the city’s alleged discriminatory practices.
We conclude that the district court correctly rejected plaintiffs’ claims against Chelsea under Title VI. As to HUD, it can not be found liable under Title VI for failing to take action against Chelsea if the city did not, in fact, discriminate against minorities in violation of the statute. Because we conclude that Chelsea did not violate Title VI, plaintiffs’ claim against HUD also must fail.
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, provides:
“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
To prevail with a direct claim under the statute, plaintiffs must show that defendants acted with discriminatory intent. Guardians Ass’n v. Civil Service Commission of the City of New York, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983). Plaintiffs have not presented sufficient proof of such intent in any of the three areas of employment, housing or contracting.
1. Employment. Plaintiffs do not significantly contest the hiring figures listed in the chart in Section IV. They apparently concede that, during the six grant years at issue in this case, Chelsea hired between 16 and 18 minority persons, ranging from 11 percent to possibly 75 percent of the city’s annual hires. Nevertheless, they contend that the city’s employment record permits a conclusion that it intentionally discriminated against minorities. They point out that, in 1981, the final grant year under consideration, Chelsea still had only six minority employees, concentrated in the community development department. Plaintiffs argue that many of those hired during the previous years were only temporary employees or were employees who left because of discriminatory practices on the part of the city. They claim that, under International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340 n. 20, 97 S.Ct. 1843, 1856-57 n. 20, 52 L.Ed.2d 396 (1977) (Teamsters), gross statistical disparities between the racial composition of the work force and that of the population at large can demonstrate a prima facie case of intentional racial discrimination.
We find two problems with plaintiffs’ argument. First, while statistical disparity may be sufficient to establish a prima facie case of employment discrimination, “statistics ‘come in infinite variety’ and their usefulness or weight ‘depend[s] on all of the surrounding facts and circumstances,’ Teamsters v. United States, 431 U.S. at 340, 97 S.Ct. at 1856, and on ‘ “the existence of proper supportive facts and the absence of variables which would undermine the reasonableness of the inference of discrimination which is drawn” ’ therefrom, White v. City of San Diego, 605 F.2d 455, 460 (9th Cir.1979)”, EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 645 (4th Cir.1983), rev’d on other grounds sub nom. Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). The context in which we view the statistics in this case is far different from that considered by the Supreme Court in Teamsters, where plaintiffs had claimed discrimination against minorities in the hiring of so-called “line drivers” for a freight company. Of 1,828 line drivers, only 8 (0.4%) were black and 5 (0.3%) were Spanish-surnamed. 431 U.S. at 337, 97 S.Ct. at 1855. This statistical evidence was bolstered with testimony of more than 40 specific instances of discrimination, which “brought the cold numbers convincingly to life”. Id. at 338-39, 97 S.Ct. at 1856.
In contrast, in this case, the evidence beyond the statistical disparity shows that the city was, in fact, hiring significant numbers of minorities in relation to the total number of hires, and in some years the percentage of minority hires exceeded the minority percentage in the workforce. It is true that, as an affirmative action policy, the city could have hired more minorities; for example, the city could have chosen to hire only minorities. And plaintiffs may be correct that the ultimate poor statistical showing as to the number of minority employees may reflect an inhospitable working environment for them. But Chelsea is not required to adopt an affirmative action policy in order to avoid a finding of intentional discrimination under Title VI. In fact, it may be prohibited from employing affirmative action practices in the absence of a prior finding of discrimination. See Wygant v. Jackson Board of Education, — U.S. -, 106 S.Ct. 1842, 1847, 90 L.Ed.2d 260 (1986) (Powell, J., plurality opinion) (“the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination”) (emphasis added). And poor working conditions for Chelsea’s minority employees is a matter of pure speculation on this record.
Had plaintiffs produced evidence of discrimination from minorities who had been hired during the grant years and claimed either that they were fired improperly or left under duress, this would be a much different case. But when framed against the hiring percentages, the employment statistics by themselves simply do not add up to a case in which impact alone provides sufficient evidence of invidious intent. Cf., e.g., Teamsters, 431 U.S. at 337, 97 S.Ct. at 1855; Gomillion v. Lightfoot, 364 U.S. 339, 341, 81 S.Ct. 125, 127, 5 L.Ed.2d 110 (1960) (Alabama legislature changed shape of City of Tuskegee from a square into irregular twenty-eight-sided figure with effect of removing all but four or five of city’s 400 black voters); Yick Wo v. Hopkins, 118 U.S. 356, 374, 6 S.Ct. 1064, 1073, 30 L.Ed.2d 220 (1886) (of 200 qualified Chinese applicants for running laundries, all rejected, while 80 non-Chinese permitted “to carry on the same business under similar conditions”).
A second factor cautions against assuming that the statistical disparity in this ease reflects discriminatory intent on the part of the city. Unlike cases where grossly disproportionate numbers logically reflect a longstanding policy of unequal treatment, see, e.g., Teamsters, 431 U.S. at 337, 97 S.Ct. at 1855, Chelsea’s minority community first became a significant factor in the city during the years in which plaintiffs allege the city practiced intentional discrimination. In a city that is losing residents, and presumably not hiring large numbers of new employees, the fact that a quickly growing minority community is underrepresented in government employment is hardly surprising. In such a case, where hiring statistics are adequate, statistical disparity alone simply is insufficient to establish a prima facie case of intentional discrimination.
Plaintiffs also argue that they presented sufficient evidence to show that Chelsea’s hiring practices had a discriminatory effect on minorities, a result that violates Title VI regulations. The primary regulation effectuating the nondiscrimination provision of Title VI states:
“A recipient, in determining the types of housing, accommodations, facilities, services, financial aid, or other benefits which will be provided under any such program or activity, or the class of persons to whom, or the situations in which, such housing, accommodations, facilities, services, financial aid, or other benefits will be provided under any such program or activity, or the class of persons to be afforded an opportunity to participate in any such program or activity, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting persons to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program or activity as respect to persons of a particular race, color, or national origin.” 24 C.F.R. § 1.4(b)(2)(i) (April 1985) (emphasis added).
Plaintiffs argue that, even if we find that the employment statistics are insufficient to establish a prima facie case of intentional discrimination, the numbers at least show a prima facie case of disparate impact in Chelsea’s hiring practices. They rely on Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), in which the Supreme Court held that Title VII, 42 U.S.C. § 2000e, bars “practices, procedures, or tests neutral on their face, and even neutral in terms of intent... if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.”
Plaintiffs’ argument reflects a misapplication of disparate impact law. Claims of disparate impact usually involve ‘‘employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Teamsters, 431 U.S. at 336 n. 15, 97 S.Ct. at 1854-55 n. 15 (emphasis added). Plaintiffs, however, do not challenge a specific employment practice or policy, such as a height requirement or passing score on a test, but argue generally that the statistical evidence as to Chelsea’s employment record establishes discriminatory impact because few minorities work for the city. In essence, their argument must be that subjective employment decisions led to the discriminatory result of disproportionately few minority city employees.
Whether disparate impact analysis is applicable when plaintiffs do not challenge specific, objective employment criteria is a subject of dispute both within and among the circuits. The Fourth, Fifth, Seventh, Eighth and Ninth Circuits have held that the disparate impact model should not be used to evaluate subjective decisionmaking procedures. EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 639 (4th Cir.1983), rev’d on other grounds sub nom. Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984); Cunningham v. Housing Authority of the City of Opelousas, 764 F.2d 1097, 1099 (5th Cir.), cert. denied, — U.S. -, 106 S.Ct. 530, 88 L.Ed.2d 461 (1985); Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 188 (5th Cir.1983); Coates v. Johnson & Johnson, 756 F.2d 524, 530-31 n. 4 (7th Cir.1985); Harris v. Ford Motor Co., 651 F.2d 609, 611 (8th Cir.1981); Atonio v. Wards Cove Packing Co., 768 F.2d 1120, 1133 (9th Cir.1985). The Fifth and Ninth Circuits also have had panels decide the other way. See Page v. U.S. Industries, Inc., 726 F.2d 1038, 1046 (5th Cir.1984); Atonio, 768 F.2d at 1132-33 (describing Ninth Circuit conflict). Finally, the Sixth, Tenth, Eleventh and District of Columbia Circuits have found impact analysis applicable to subjective employee selection practices. Lujan v. Franklin County Board of Education, 766 F.2d 917, 930 n. 19 (6th Cir.1985); Rowe v. Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88, 93 (6th Cir.1982) (per curiam); Hawkins v. Bounds, 752 F.2d 500, 503 (10th Cir.1985); Griffin v. Carlin, 755 F.2d 1516, 1525 (11th Cir.1985); Segar v. Smith, 738 F.2d 1249, 1288 n. 34 (D.C.Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985).
This court has not yet decided on the applicability of disparate impact analysis to claims focusing on subjective,
Question: What is the specific issue in the case within the general category of "civil rights"?
A. civil rights claims by prisoners and those accused of crimes
B. voting rights, race discrimination, sex discrimination
C. other civil rights
Answer:
|
songer_district
|
E
|
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".
William N. GROSCH, Appellant, v. Curtis W. TARR, The National Director of Selective Service, et al., Appellees.
No. 71-1862.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 7, 1972.
Decided Jan. 18, 1972.
Thomas F. Loflin, III, Durham, N. C. (Loflin, Anderson & Loflin, Durham, N. C., on brief), for appellant.
N. Carlton Tilley, Jr., Asst. U. S. Atty. (William L. Osteen, U. S. Atty., on brief), for appellees.
Before BRYAN and RUSSELL, Circuit Judges, and YOUNG, District Judge.
PER CURIAM:
The appellant sought declaratory and injunctive relief to require a reopening of his classification after notice of induction by his Selective Service Board. Relief was denied by the District Court on the basis of Section 10(b) of the Selective Service Act of 1967, which prohibits judicial review of the classification of a registrant after the issuance of an order of induction. We affirm. The Courts have, it is true, established certain minor exceptions to the prohibition on judicial review as prescribed by Section 10(b) but the registrant did not bring himself within such exceptions.
Affirmed.
. See, Oestereich v. Selective Service System Local Board No. 11 (1968) 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402; Breen v. Selective Service Local Board (1970) 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653, and Grosfeld v. Morris (4th Cir. 1971) 448 F.2d 1004.
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_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".
CLAUNCH v. UNITED STATES.
No. 11531.
Circuit Court of Appeals, Fifth Circuit
May 10, 1946.
William Z. Rozan, of Houston, Tex., for appellant.
Charles H. Sherman, Jr. and William R. Eckhardt, Asst. U. S. Atty., both of Houston, Tex., for the United States.
Before HOLMES, McCORD, and WALLER, Circuit Judges.
HOLMES, Circuit Judge.
Appellant was convicted on three counts of an indictment, the first charging him with conspiracy under 18 U.S.C.A. § 88; the second charging him with bribery of a person acting for and in behalf of the United States in an official function, in violation of 18 U.S.C.A. § 91; and the. third charging him with evading service in the armed forces of the United States, in violation of 50 U.S.C.A.Appendix, § 311.
The record shows that appellant was ordered by the local draft board at Houston, Texas, to report for pre-induction physical examination, and that before leaving the induction center he was advised that he had passed it successfully. His informant was Sergeant Feigle, whose duty it was to examine the papers of the men and tell them whether or not they had passed. It was also Feigle’s duty to check their records to see for what branch of the service they had qualified, and to send them to the assignment officer.
Feigle told appellant that, on account of his age, he did not see why he was accepted, to which appellant replied that he could not understand it either, as he had been rejected twice on account of a foot injury. Both appellant and Feigle testified that after some conversation in regard to his being accepted, Feigle asked him if he would pay $50 to keep out of the army. Appellant told him he would, and a few hours later he delivered the money to Feigle, who told him there was a man “up in front that could fix his papers” so he would not have to go to the army. Feigle introduced appellant to Sergeant Redwine, who was the statistical clerk at the induction center and who prepared for the draft boards the records on the disposition of the selectees who were sent in for pre-induction examinations. Feigle and Redwine divided the $50 equally. Redwine testified that where appellant’s worksheet stated “cardio vascular” normal, he changed it to read “valvular heart disease,” with the notation “disqualified,” and then changed the back of the medical worksheet from “accepted” to read “rejected.” When the reports were returned to the local draft board, appellant, on July 25, 1945, was reclassified in 4 — F.
Appellant contends that the verdict of the jury was the result of prejudice due to the voluntary statement of the witness Feigle that in an anonymous telephone call he had been informed that defendant had served in the penitentiary for murder, and had been warned to “take it pretty easy” when he got up in the court room. The trial court immediately excluded this statement, and instructed the jury to disregard it entirely. No motion to discharge the jury and enter a mistrial was made. It was not error for the court not to enter a mistrial of its own motion. A defendant cannot experiment by letting the jury render a verdict without obj ection, and then upon conviction take the position that the voluntary statement of a witness was so prejudicial as to entitle him to a new trial.
Appellant further contends that his testimony on cross-examination, over his objection, as to arrests made in 1932 and as to his conviction of robbery by assault in 1933, served only to prejudice the minds of the jury, and constituted reversible error. These points have nothing to do with the right of a defendant not to be compelled in any criminal case to be a witness against himself. The appellant voluntarily took the witness stand in his own behalf, thereby waiving his constitutional immunity and causing his credibility as a witness to become an issue in the case. The trial court committed no error in permitting him on cross-examination to be questioned with regard to statements made by him to special agents of the Federal Bureau of Investigation while under arrest It was the Government’s privilege to question him with regard to any statements he had made that were pertinent to the issues, and to point out any inconsistencies between such statements and his testimony at the trial. Replying to these questions, appellant in effect stated that he told the agents only that he would not discuss the case without first talking to his lawyer.
As to his conviction of robbery by assault in 1933, it is well settled that such evidence is admissible for purposes of impeachment. Whether the conviction was so remote as to have no probative value was a question addressed to the sound discretion of the trial court. That discretion was not abused by the admission of this evidence.
Appellant’s assignment that the trial court charged the jury improperly is not well taken. The court fully instructed the jury as to every element of the offenses charged in the indictment. It also, after a conference at the bench with counsel, gave the jury an additional charge to the effect that the defendant must have had the intention of violating the law. Furthermore, no objection was made to any part of the charge or to the court’s refusal to give requested instructions.
The jury were well warranted in returning a verdict of guilty. The appellant’s own testimony supported every fact charged in the indictment except the one of guilty intent, and on that question also the issue was properly submitted to the jury. There being ample evidence to support the verdict, and no reversible error appearing, the judgment appealed from is
Affirmed.
Etie v. U. S., 5 Cir., 55 F.2d 114.
Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Buckner, 2 Cir., 108 F.2d 921, certiorari denied 309 U.S. 669, 60 S.Ct. 613, 84 L.Ed. 1016; Banning v. United States, 6 Cir., 130 F.2d 330, certiorari denied, 317 U.S. 695, 63 S.Ct 434, 87 L.Ed. 556.
Fire Association of Philadelphia v. Weathered, 5 Cir., 62 F.2d 78; Goddard v. United States, 5 Cir., 131 F.2d 220; Burt v. United States, 5 Cir., 139 F.2d 73.
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_district
|
H
|
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 AMERICAN COLEMAN COMPANY, a Delaware corporation, Plaintiff-Appellant, v. INTRAWEST BANK OF SOUTHGLENN, N.A., a national banking association, and United Bank of Southglenn, N.A., a national banking association, Defendants-Appellees.
Nos. 88-1077 and 88-1220.
United States Court of Appeals, Tenth Circuit.
Oct. 20, 1989.
James L. Treece of Treece & Bahr, Little-ton, Colo., for plaintiff-appellant.
John R. Webb and Susan B. Prose, of Holme, Roberts & Owen, Denver, Colo., for defendants-appellees.
Before McKAY, BARRETT and EBEL, Circuit Judges.
BARRETT, Senior Circuit Judge.
After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
In this diversity case, the American Coleman Company (American Coleman), plaintiff below, appeals from the district court’s order granting summary judgment on behalf of the defendant below, Intrawest Bank of Southglenn, N.A., the predecessor to the United Bank of Southglenn, N.A. (Bank). The court dismissed, with prejudice, American Coleman’s action for damages for an alleged wrongful dishonor of a request for payment pursuant to a letter of credit.
In 1984, American Coleman sold some real property located in Littleton, Colorado, to James E. Gammon (Gammon) and the South Santa Fe Partnership (the Partnership) and took a note secured by a first deed of trust on the property. The note and deed of trust were dated November 16, 1984, but not recorded until November 21, 1984. The terms of the repayment of the note required Gammon and the Partnership to post a letter of credit, of which American Coleman would be the beneficiary. The Bank, on behalf of its customer, Gammon and Associates, established a “Clean, Irrevocable Letter of Credit” in amount of $250,000 in favor of American Coleman. It was dated February 15, 1985, and was to expire on November 15, 1986. In consideration, the Bank received from Gammon a letter of credit fee and a second deed of trust on the Littleton property under a reimbursement contract whereby Gammon was to repay Bank for all payments made by Bank to American Coleman pursuant to the letter of credit. The letter of credit arrangement, once established, is often referred to as a statutory obligation on the part of the issuer (Bank) to honor drafts drawn by the beneficiary (American Coleman) that comply with the terms of the letter of credit. The transaction is separate and independent from the underlying business transaction between the beneficiary (American Coleman) and the Bank’s customer (Gammon and Associates) which is contractual in nature. See Arbest Const. Co. v. First Nat. Bank & Trust Co., 777 F.2d 581, 583-84 (10th Cir.1985). A letter of credit is not an evidence of indebtedness; it is merely a promise by a bank to lend money under certain circumstances. Sprague v. United States, 627 F.2d 1044, 1049 (10th Cir.1980); Colorado Springs National Bank v. United States, 505 F.2d 1185, 1190 (10th Cir.1974).
The Bank was to make funds available to American Coleman pursuant to its sight drafts to be accompanied by the “[ojriginal Letter of Credit and your signed written statement that Jim Gammon and Associates is in default on the Note and Security Agreement dated November 21, 1984, between American Coleman and Jim Gammon and Associates.” (R., Vol. I, Tab 2, Exh. A). The above reference to a note and security agreement dated November 21, 1984, was an error, inasmuch as no such documents ever existed. The record does not resolve the dispute relative to the party responsible for the error. However, on November 16, 1984, Gammon and Associates executed and delivered to American Coleman a note in the principal sum of $1,037,500 secured by a first deed of trust on the Littleton property sold which were recorded on November 21, 1984.
Thereafter, on December 31, 1985, and on May 16, 1986, American Coleman requested payments of $75,000, respectively, under the letter of credit. Both of these requests included the original letter of credit and the specific default language previously referred to, i.e., “Jim Gammon and Associates is in default on the Note and Security Agreement dated November 21, 1984, between American Coleman and Jim Gammon and Associates.” (R., Vol. I, Tab 5, Exhibits A and B). Thus, a balance of $100,000 remained available to be drawn on under the letter of credit when on November 13, 1986, American Coleman tendered to Bank a sight draft in amount of $100,000 with the following statement appended thereto:
[T]he American Coleman Company informs you that Jim Gammon and Associates is in default on the Note and Security Agreement dated November 21, 1984, and the Promissory Note dated November 16,1984, between American Coleman and Jim Gammon and Associates.
(R., Vol. I, Tab 2, Exh. B).
Bank formally dishonored the draft on November 17, 1986, two days after the letter of credit expired because (1) the amount requested was in advance of any default, and (2) no default could occur until November 16,1986. Bank did not give as a reason for dishonor the fact that the wording of American Coleman’s request was not in strict compliance with the terms of the letter of credit.
In the district court, both parties moved for summary judgment, agreeing that there was no genuine dispute of material fact relative to Bank’s liability for its dishonor of American Coleman’s request of November 13, 1986, for the balance of funds under the letter of credit. Bank contended that the fact that the note was not then in default constituted a valid ground for dishonor and, further, that dishonor was proper because American Coleman’s request was not in strict compliance with the terms of the letter of credit. American Coleman argued that Bank should be estopped from raising the defense of strict compliance because Bank had not asserted this defense at the time of dishonor. Further, should Bank not be estopped, American Coleman contended that its request for funds was in strict compliance with the terms of the letter of credit. In considering the cross-motions for summary judgment, the district court relied upon the pleadings, the briefs, affidavits and other documentation.
The district court found/concluded that Bank was not estopped from raising the defense of strict compliance and that American Coleman's request of November 13, 1986, was not in strict compliance with the terms of the letter of credit. The court did not reach the issue whether the original reason given by the Bank, i.e., that the note was not yet in default, was a valid ground for dishonor.
On appeal, American Coleman contends that the district court’s decision was erroneous, contrary to law, and an abuse of discretion in the court’s holdings that: (1) the note was not yet in default, (2) the demand was not in strict compliance, technically or literally, with the terms of the letter of credit, (3) the Bank was not es-topped from raising lack of strict compliance as a reason for dishonor, and (4) the beneficiary (American Coleman) was not misled, and could not have cured the defect because Bank was allowed, pursuant to C.R.S. § 4-5-112(l)(a), to defer payment or dishonor for three banking days.
No contention is raised on appeal that substantial issues of material fact existed, precluding summary judgment under Rule 56(a) Fed.R.Civ.P. Even so, it is our duty to examine the record on appeal to determine whether any genuine issue of material fact pertinent to the ruling remains and, if not, whether the district court properly applied the substantive law. Florom v. Elliott Mfg., 867 F.2d 570, 574 (10th Cir.1989). And in making this evaluation, pleadings and documentary evidence must be construed liberally and in favor of the party opposing the motion. Id.; Harman v. Diversified Medical Investments Corp., 488 F.2d 111, 113 (10th Cir.1973), appeal after remand, 524 F.2d 361 (10th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1727, 48 L.Ed.2d 195 (1976). We are satisfied that no genuine issues of material fact remained when the district court granted summary judgment. Finally, in our de novo review, we have recognized different degrees of deference we must give to the interpretations and applications of state law by a resident federal judge sitting in a diversity action. Wilson v. Al McCord, Inc., 858 F.2d 1469, 1473 (10th Cir.1988) (some deference); Mullan v. Quickie Aircraft Corp., 797 F.2d 845, 850 (10th Cir.1986) (clearly erroneous standard); Rhody v. State Farm Mutual Insurance Company, 771 F.2d 1416, 1417 (10th Cir.1985) (great deference). We shall proceed under the “some deference” standard.
I.
American Coleman argues that the district court was clearly erroneous in finding/concluding that the Note of November 16, 1984, was not yet in default when the November 13, 1986, demand for payment was made by American Coleman upon Bank. The record shows, however, that the district court made no such finding.
It is true that after the draft of November 13, 1986, was submitted Bank did inform American Coleman that it would not fund the letter of credit because the Note was not in default and could not be in default until November 16, 1986. Because this was the only ground relied upon by Bank to dishonor the draft, American Coleman argued, unsuccessfully, that Bank should be estopped from raising the defense of strict compliance in the district court action because it failed to assert the issue of nonconformity at the time it dishonored the draft.
The district court plainly did not find/conclude that the Note of December 16, 1984, was in default. In the district court’s Memorandum Opinion and Order of December 17, 1987, the court stated:
Since I conclude that the bank is not estopped from raising the defense of strict compliance, and since I further find that American Coleman’s request for funds was not in strict compliance with the terms and conditions of the letter of credit, I need not reach the issue of whether the original reason given by the bank (that the note was not yet in default) was a valid ground for dishonor.
(R., Vol. I, Tab 6, p. 5).
II.
American Coleman contends that the district court erred in holding that the doctrine of strict compliance required American Coleman, as beneficiary of the letter of credit from Bank, as issuer, to literally and technically adhere to the requirements of the letter of credit. The district court found/concluded:
In the present case, it is clear that American Coleman’s request for payment presented November 13, 1986 was not in technical or literal compliance with the terms of the letter of credit. American Coleman’s reference to two different notes could easily have caused the bank’s documents examiner some confusion. Accordingly, because I conclude that the rule of strict compliance, as it is applied in Colorado, requires literal compliance with the terms and requirements set forth in the letter of credit, and there was no such literal compliance in this case_
(R., Vol. I, Tab 6, p. 13).
The district court recognized that many courts refuse to allow an issuing bank to dishonor a demand for payment when the nonconformity between the language contained in the draft or demand and the terms contained in the letter of credit is trivial or technical. Id. at 9. The court observed that the Colorado Supreme Court has not as yet ruled on the distinction between traditional strict compliance versus substantial compliance, and particularly so where the deviation is “[a]s minor and technical as in this case.” Id. at 13. Even so, based upon Colorado National Bank v. Board of County Commissioners, 634 P.2d 32, 40 (Colo.1981) (“To maintain the commercial vitality of the letter of credit device, strict compliance with the terms of the letter of credit is required”); Guil ford Pattern Works, Inc. v. United Bank of Boulder, 655 F.Supp. 378, 379-80 (D.Colo.1987) (“Colorado courts have held that in order to maintain the commercial validity of the vehicle of letters of credit, strict compliance with the terms and conditions is necessary.”), and other cases and authorities, the district court reasoned that the Colorado Supreme Court “[w]ould shun the non-standard of substantial compliance and would require literal and technical adherence to the requirements of the letter of credit.” (R., Vol. I, Tab 6, p. 13). We agree.
C.S.R. § 4-5-114(1) provides:
An issuer must honor a draft or demand for payment which complies with the terms of the relevant credit, regardless of whether the goods or documents conform to the underlying contract for sale or other contract between the customer and the beneficiary. The issuer is not excused from honor of such a draft or demand by reason of an additional general term that all documents must be satisfactory to the issuer, but an issuer may require that specified documents must be satisfactory to it.
In Raiffeisen-Zentralkasse Tirol v. First National Bank, 671 P.2d 1008 (Colo.App.1983), the court held that the obligation of the issuer of a letter of credit to honor the letter is wholly separate from the beneficiary’s compliance with the terms of the underlying contract and is dependent solely on the terms and conditions contained in the letter of credit. This separation is supportive of the rule laid down in Colorado National Bank v. Board of County Commissioners, supra, that strict compliance with the terms of a letter of credit is required to maintain the commercial vitality of the letter of credit device. Failure on the part of Bank to oversee careful compliance with the terms of the letter of credit would have prohibited Bank from collecting the funds paid to the beneficiary (American Coleman) from its customer, the Partnership (Jim Gammon and Associates). See Philadelphia Gear Corp. v. Central Bank, 717 F.2d 230 (5th Cir.), reh’g denied, 720 F.2d 1291 (5th Cir.1983). The duty of the issuing Bank is ministerial in nature, confined to checking the presented documents carefully against what the letter of credit requires. Marino Industries Corp. v. Chase Manhattan Bank, N.A., 686 F.2d 112 (2d Cir.1982).
The district court found that the language in American Coleman’s draft of November 13, 1986, referring to “[T]he Note and Security Agreement dated November 21, 1984, and the Promissory Note dated November 16, 1984, between American Coleman and Jim Gammon and Associates” was not in strict compliance because of the extra language that was included. (R., Vol. I, Tab 6, pp. 5-6). We agree.
It has been observed that most courts apply the “strict compliance” standard which leaves “no room for documents which are almost the same or which will do just as well.” A minority of the courts hold that a beneficiary’s “reasonable” or “substantial” performance of the letter of credit’s requirement will do. However, no matter how one reads the cases, strict compliance endures as the central test. White & Summers, Uniform Commercial Code, Third Edition (1988), Vol. 2, § 19-5, p. 31. The authors state that cases applying the “reasonable” or “substantial” compliance standard “[a]re so few and their notion so inherently fuzzy that they give little or no clue as to what might be ‘reasonable’ or ‘substantial’ compliance.” Id.
While it is apparent from the cases that minute discrepancies which could not possibly mislead a document examiner are usually disregarded, this does not constitute a retreat from the strict compliance standard applicable in this case inasmuch as the district court found that “[Ajmerican Coleman’s reference to two different notes could easily have caused the bank’s documents examiner some confusion.” (R., Vol. I, Tab 6, p. 13). We agree.
We hold that the district court did not err in applying the strict compliance standard. We reject American Coleman’s argument that reference in the November 13, 1986, draft to the second note was mere “sur-plusage.” The apparent existence of two promissory notes supports the district court’s finding that Bank could have been misled by American Coleman’s November 13, 1986, draft. American Coleman’s contention that Bank could not have been misled by the draft because Bank drafted the letter of credit is without support in this record. The deposition testimony of American Coleman representative Joseph E. McElroy demonstrates that American Coleman’s attorney assisted in drafting the letter of credit (R., Vol. I, Tab 4, Exh. F). There is no other evidence in the record on appeal relative thereto.
III.
American Coleman contends that the district court was clearly erroneous in holding that Bank was not estopped from raising the defense of lack of strict compliance as a reason for its dishonor of the November 13, 1986, draft.
The district court recognized that in Colorado the general rule is that “[w]hen an issuer of a letter of credit formally places its refusal to pay upon specified grounds, it is held to have waived all other grounds,” quoting from Colorado National Bank v. Board of County Commissioners, 634 P.2d 32, 41 (Colo.1981). However, the district court relied upon that same case for the proposition that the waiver-estoppel rule “[i]s limited to situations where the statements have misled the beneficiary who would have cured the defect but relied on the stated grounds to its injury.” Id. at 41.
The district court relied on Colorado National Bank v. Board of County Commissioners, supra, for its ruling that Bank was not estopped from raising a ground for dishonor in defense of suit brought by American Coleman even though it failed to state such ground at the time of dishonor.
In Colorado National Bank v. Board of County Commissioners, the letter of credit provided for a 15-day sight draft. However, the beneficiary submitted a demand draft on the day the letter of credit was to expire. Bank gave several reasons for dishonor, but did not rely upon the fact that the beneficiary had presented a demand draft in lieu of the required 15-day sight draft. Even so, the court held that the bank was not estopped from raising this ground in defense of the suit because the non-conforming demand draft was presented on the same day that the letter of credit expired. The court observed that under C.R.S. § 4-5-112(l)(a) a bank called upon to honor a draft or demand for payment under a letter of credit may defer payment or dishonor until the close of the third banking day following receipt of the documents. Thus, the court reasoned that the beneficiary could not have cured the defect since any subsequent presentment would have been untimely. Accordingly, the beneficiary could not have detrimentally relied on the bank’s failure to state the discrepancy as a ground for dishonor.
We agree with the district court’s conclusion that the facts of the instant case are quite similar to those in Colorado National and that American Coleman cannot be said to have detrimentally relied on Bank’s failure to state the strict compliance discrepancy as one ground for dishonor, and that Bank is not estopped from raising the doctrine of strict compliance in its defense. November 13, 1986, was a Thursday. Three banking days thereafter would extend to November 18, 1986, just one day after Bank gave formal notice of dishonor. American Coleman could not have submitted another draft before the note expired. C.R.S. § 4-5-112(1) provides, in pertinent part:
A bank to which a documentary draft or demand for payment is presented under a credit may without dishonor of the draft, demand or credit (a) defer honor until the close of the third banking day following receipt of the documents....
American Coleman insists that the letter of credit in this case is clearly denominated a “clean” letter of credit as distinguished from a “documentary” letter of credit and that, accordingly, the three-banking-day rule does not apply. We agree that this statute applies only to a documentary draft or demand for payment. We disagree with American Coleman’s contention that simply because the letter of credit here was denominated “Clean Irrevocable Letter of Credit” (R., Vol. I, Tab 2, Exh. A), it was treated by the parties as such.
C.R.S. § 4-5-103(l)(b) defines a “documentary draft” or a “documentary demand for payment” as one honor of which is conditioned upon the presentation of a document or documents. “Document” is defined therein as any paper, including invoice, certificate, notice of default, and the like. In the case at bar, American Coleman was required under the terms of the letter of credit to present the original letter of credit (a document) and a notice of default (a document) with each draft. American Coleman’s effort to restrict the definition of “documentary draft” to documents of title or shipping invoices must fail.
We AFFIRM.
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_state
|
41
|
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".
Grady ALLEN, Appellant, v. ZURICH INSURANCE COMPANY, Appellee.
No. 80-1665.
United States Court of Appeals, Fourth Circuit.
Argued April 6, 1981.
Decided Jan. 8, 1982.
Duke K. McCall, Jr., Greenville, S. C. (Leatherwood, Walker, Todd & Mann, Greenville, S. C., on brief), for appellant.
George E. Lewis, Columbia, S. C. (Turner, Padget, Graham & Laney, Columbia, S. C., on brief), for appellee.
Before BRYAN, Senior Circuit Judge, HALL and PHILLIPS, Circuit Judges.
JAMES DICKSON PHILLIPS, Circuit Judge:
In this diversity case Grady Allen sued Zurich Insurance Company to recover the amount of a personal injury judgment earlier obtained by Allen against Zurich’s insured under a liability policy. Following a jury verdict in Allen’s favor, the district court granted judgment n. o. v. for Zurich on the basis that the evidence established as a matter of law that Allen was an employee of Zurich’s insured so that Zurich was not liable under an exclusion in the liability policy. On Allen’s appeal, we affirm the district court’s judgment n. o. v., but on other grounds.
I
In August 1975, Allen was assisting Zurich’s insured, Carl Scruggs, in installing a mobile home when the home, which Scruggs had placed on blocks, shifted, fell, and crushed Allen’s hand. Allen later sued Scruggs in a South Carolina state court on a negligence theory to recover for his injuries “while in the employment of the Defendant, Carl H. Scruggs, .... ” Complaint, Allen v. Scruggs, No. 76-CP-23-92 (Greenville, S.C. County Ct. C.P.). Zurich defended Scruggs under a reservation of rights clause in a general automobile liability policy issued to him. The case proceeded to trial and as part of his charge to the jury, the trial judge instructed that “[t]he first material allegation which the plaintiff must establish is that he was an employee of the defendant, with the defendant owing a duty of care to him.” Tr. at 173, Allen v. Scruggs, No. 76-CP-23-92 (Greenville, S.C. County Ct. C.P.). The jury returned a verdict for Allen of $37,000, which Scruggs has not paid.
Allen then brought suit against Zurich to collect on Scruggs’ automobile liability policy and alleged in the complaint that he and Scruggs were joint venturers. In defense, Zurich claimed that it was not liable because Allen was Scruggs’ employee at the time of his injury and the policy expressly excluded coverage for bodily injury to any employee. At trial, Allen testified that he had thought he was Scruggs’ employee in 1975, but he now characterized their relationship as working together. Scruggs supplied the equipment, solicited many of their jobs, and directed the activity leading to the injury. Allen, however, was paid a percentage of each job rather than a salary, he never received a W-2 form, he had no regular working hours, and he picked up other service work for himself on the side. During cross-examination, Allen admitted that he had testified before the South Carolina Industrial Commission in December 1975, in a deposition in February 1976, and before the state court in January 1977, that he was Scruggs’ employee and was paid a weekly salary of $250 in cash at the time of his injury. Portions of that testimony were admitted into evidence in this action. Scruggs, however, testified that Allen was not his employee, but a contract laborer. An August 1975 letter from Scruggs to the Anderson County, S. C. Department of Social Services, which corroborated Scruggs’ testimony, was admitted into evidence.
The district court permitted the case to go to the jury which returned a verdict for Allen. Zurich then moved for judgment notwithstanding the verdict on two grounds: (1) Allen’s status as an employee of Scruggs was affirmatively adjudicated in the state court proceeding and Allen is now bound by that determination and (2) the only reasonable inference to be drawn from the evidence presented at trial is that Allen was Scruggs’ employee and acting within the scope of his employment when he was injured. The district court granted the motion on the second ground. This appeal followed.
II
Zurich defended solely on the basis that Allen was Scruggs’ employee, acting in the course and scope of his employment at the time of his injury and that liability for the injury was therefore expressly excluded from the coverage of its policy. This was an affirmative defense as to which Zurich had the burden of proof. The district court correctly treated it as such. When the jury returned a verdict for Allen, the district court’s subsequent grant of judgment n. o. v. was therefore entered in favor of the party having the burden of proof on the sole dispositive issue.
There is, of course, judicial power under Fed.R.Civ.P. 50 to direct a verdict or grant judgment n. o. v. for, as well as against, the party having the burden of proof on the dispositive issues on the basis of a legal assessment of the evidence. Davis Frozen Foods, Inc. v. Norfolk Southern Railway, 204 F.2d 839 (4th Cir. 1953) (directed verdict for plaintiff); United States v. Grannis, 172 F.2d 507 (4th Cir. 1949) (same); see also Federal Insurance Co. v. Summers, 403 F.2d 971, 975-76 (1st Cir. 1968) (directed verdict for defendant with burden considered but denied). But the power is controlled by a standard so stringent that its exercise is but rarely appropriate. The standard is in critical respects different from and more demanding than that applicable to the grant of directed verdict against the proponent. As well explained by Judge McLaughlin:
[Tjhough a motion for directed verdict in favor of the proponent of an issue is cast in the same form as when made by the defending party, it requires the judge to test the body of evidence not for its insufficiency to support a finding, but rather for its overwhelming effect. He must be able to say not only that there is sufficient evidence to support the finding, even though other evidence could support as well a contrary finding, but additionally that there is insufficient evidence for permitting any different finding. The ultimate conclusion that there is no genuine issue of fact depends not on a failure to prove at least enough so that the controverted fact can be inferred, but rather depends on making impossible any other equally strong inferences once the fact in issue is at least inferable.
Mihalchak v. American Dredging Co., 266 F.2d 875, 877 (3d Cir. 1959) (footnote omitted); see also United States v. Grannis, 172 F.2d at 513.
Applying that standard to the evidence in this case, we do not think it was appropriate to grant judgment n. o. v. for Zurich on this basis. The dispositive issue was whether at the critical time Allen was Scruggs’ employee acting in the course and scope of his employment. Under controlling South Carolina law the general test whether one person is the employee of another is
“control by the employer. It is not the actual control then exercised, but whether there exists the right and authority to control and direct the particular work or undertaking, as to the manner or means of its accomplishment.... ” Bates v. Legette, 239 S.C. 25, 34-35, 121 S.E.2d 289, 293 (1961).
This court, like most, has recognized four factors bearing on the crucial right of control. These are (1) direct evidence of the right to, or exercise of, control, (2) method of payment, (3) furnishing of equipment, and (4) right to fire.
Chavis v. Watkins, 256 S.C. 30, 180 S.E.2d 648, 649 (1971).
Under this test the evidence was in substantial conflict, particularly with respect to the essentially evaluative element of the right to control. Allen’s own testimony on this element was in major respects blatantly self-serving, shot through with legal characterizations, internally inconsistent, and in flat conflict with his own earlier self-serving testimony and statements made in contexts where his interests in the nature of the relationship were diametrically different. But contradictions, inconsistencies and self-interest present questions of credibility and of probative weight for the jury, which was perfectly entitled, for example, utterly to discount all of Allen’s legal characterizations of the critical relationship as having no probative value, leaving for consideration only the raw historical facts bearing upon whether Scruggs had the right to control. See Restatement (Second) of Agency § 220, Comment m (1957). Beyond this the evidence of the method of payment and the right to fire could, depending upon credibility determinations and assessments of probative weight, lead to conflicting inferences. Only on the evidence of the furnishing of equipment was there essentially no conflict and no need for assessments of credibility; that the equipment was furnished by Scruggs was not really in dispute. Resolution of the critical agency issue requires evaluation of all the factors, however; no one of them is determinative as a matter of law; and for this reason, its resolution is ordinarily one for the trier of fact. See id. Comment c.
We must bear in mind the critical point that here the burden of persuasion was not upon Allen to establish that he was not Scruggs’ employee, but upon Zurich to establish that he was. To hold that Zurich was entitled to judgment as a matter of law we must find that not only was there sufficient evidence, so manifestly credible that it must be believed, to support a finding that Allen was Scruggs’ employee, but also that there was insufficient evidence from which the jury could rationally have made any other finding. See Mihalchak v. American Dredging Co., 266 F.2d at 877. This we cannot do, and we therefore conclude that the district court erred in granting judgment n. o. v. on this basis. This does not, however, end the matter.
Ill
Zurich contends alternatively that judgment n. o. v. was proper because Allen is legally estopped by the state court judgment to contest the fact that he was Scruggs’ employee. As indicated, in that state court action Allen expressly alleged that he was at the time of injury “in the employment of ... Scruggs.” This allegation was submitted to the state court jury as one that the plaintiff “must establish” in order to recover. By the return of a verdict in favor of Allen, Zurich says that this issue was necessarily determined in Allen’s favor, that it was essential to the resulting judgment, and that under relevant principles of collateral estoppel Allen should be now precluded from contesting the fact so established. See Restatement (Second) of Judgments § 68 (1980); Johnston-Crews Co. v. Folk, 118 S.C. 470, 111 S.E. 15 (1922). We can of course properly affirm a district court’s judgment though it was entered upon an erroneous basis, Securities & Ex change Commission v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943); Eltra Corp. v. Ringer, 579 F.2d 294, 298 (4th Cir. 1978), and Zurich urges that we should do that here on the basis of collateral estoppel.
While this contention is not without force, we are sufficiently concerned about a number of problems in applying collateral estoppel under the particular circumstances of this case that we decline to do so. There is the question whether the issue was actually litigated in the state action. This does not conclusively appear from our record. From our record it might be concluded that, though submitted to the jury, the issue had not actually been contested on trial. See Restatement (Second) of Judgments § 68, Comment e (1980). The burden is on the party asserting collateral estoppel to establish its predicates, and this of course includes presenting an adequate record for the purpose.
There is also a question whether Zurich is entitled as a party to the federal action to the benefit of collateral estoppel. This would depend upon whether the doctrine of mutuality of estoppel still holds in South Carolina, whose law respecting the conclusiveness of its own judgments we must apply, 28 U.S.C. § 1738, or whether, alternatively, Zurich could properly be held to be in privity with Scruggs and thereby entitled to the benefit of the state court judgment. On the first point we have been directed to no authority; and on the second, Allen has raised at least the colorable possibility of a conflict of interest between Zurich and Scruggs that might draw in question the justice of according to their relationship the privity that ordinarily would exist between insurer and insured for this purpose. Allen also urges that the issue of his employment status was not essential to the judgment in the state action, so that this critical predicate for application of collateral estoppel is missing. See Restatement (Second) of Judgments § 68, Comment h (1980). For reasons we will later develop, we are not impressed by this last contention, but we are sufficiently concerned by the other problems that we think collateral estoppel is not appropriately applied here. But neither does this end the matter.
Closely related to collateral estoppel, but dissimilar in critical respects, is another principle that we conclude should preclude Allen on the dispositive issue. In certain circumstances a party may properly be precluded as a matter of law from adopting a legal position in conflict with one earlier taken in the same or related litigation. “Judicial estoppel” is invoked in these circumstances to prevent the party from “playing fast and loose” with the courts, and to protect the essential integrity of the judicial process. See United Virginia Bank/Seaboard National v. B. F. Saul Real Estate Investment Trust, 641 F.2d 185, 190 (4th Cir. 1981); Scarano v. Central R. Co., 203 F.2d 510, 512-13 (3d Cir. 1953); Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146, 1177 (D.S.C.1974).
The circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle, but they may be found where neither collateral estoppel nor equitable estoppel, see Scarano v. Central R. Co., 203 F.2d at 512-13, nor any requirements of election of remedies or theories, see Eads Hide & Wool Co. v. Merrill, 252 F.2d 80, 84 (10th Cir. 1958), would apply. Its essential function and justification is to prevent the use of “intentional self-contradiction ... as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.” Scarano v. Central R. Co., 203 F.2d at 513. This obviously contemplates something other than the permissible practice, now freely allowed, of simultaneously advancing in the same action inconsistent claims or defenses which can then, under appropriate judicial control, be evaluated as such by the same tribunal, thus allowing an internally consistent final decision to be reached. See Fed.R.Civ.P. 8(e)(2). That, obviously, is not what is involved here. Though perhaps not necessarily confined to situations where the party asserting the earlier contrary position there prevailed, it is obviously more appropriate in that situation. See United States v. Webber, 396 F.2d 381 (3d Cir. 1968); Parker v. Sager, 174 F.2d 657 (D.C.Cir.1949); Buder v. United States, 332 F.Supp. 345 (E.D.Mo.1971). That is the situation here.
On total balance we are persuaded that, though the principle is one to be applied with caution, it is properly applied here. Here is a party who, as the record conclusively shows, has earlier successfully asserted a legal position respecting his employment relationship with another that is completely at odds with the position now asserted. The position taken in the state court action was taken advisedly and inured to Allen’s benefit there. While the earlier assertion of a legally irrelevant, albeit inconsistent, position should seldom, if ever, lead to the application of judicial estoppel, see, e.g., Gleason v. United States, 458 F.2d 171 (3d Cir. 1972), we disagree with Allen’s contention that his earlier position in the state court action was there, in the end, legally irrelevant. The duty of care in negligence actions is not determined in a vacuum. It always arises from the particular relationship of victim and alleged tortfeasor. There is a very specific duty of care owed by employer to employee that is not necessarily the same duty that would subsist in the same general factual setting between joint venturers, independent contractors, or certainly complete strangers. Depending upon the situation, it may well be a higher duty than would arise out of any of those other relationships in the same factual context. See generally Restatement (Second) of Agency §§ 493, 497 (1957). This general principle of tort and agency law applies in South Carolina, see, e.g., Tucker v. Holly Hill Lumber Co., 200 S.C. 259, 20 S.E.2d 704 (1942), and was specifically applied in Allen’s state court action by the state judge who submitted Allen’s allegation to the jury as bearing upon his right to recover. Allen obviously thought it sufficiently important in his state court action to make a deliberate allegation that the relationship was that of employer and employee rather than any of a number of others from which different and lesser duties of care might have arisen.
We are satisfied that this is a case in which it is sufficiently important to the integrity of the federal courts that their judicial processes should not be lent to this plain example of “intentional self-contradiction ... as a means of obtaining unfair advantage... . ” Scarano v. Central R. Co., 203 F.2d at 513. For this reason we affirm the judgment of the district court granting judgment n. o. v. to the defendant Zurich.
AFFIRMED.
. With respect to the first ground, the district court held that there was no res judicata bar because the state action sounded in tort and the federal suit was an action ex contractu and there was no collateral estoppel because Allen’s status as an employee was not a material issue necessarily determined in the state action. See Part III, infra.
. In his reply brief on this appeal, Allen points out that in the state court action Zurich, defending Scruggs under its policy and on a reservation of rights, presumably took the position (against Allen’s allegation) that Allen was not Scruggs’ employee. This, says Allen, puts Zurich in a poor position to urge Allen’s equitable estoppel to change positions or relitigate the question in this action. If true, this would also obviously bear upon the privity question, assuming it still has relevance under South Carolina collateral estoppel doctrine. See Restatement (Second) of Judgments § 83, Comment d (1980). For two reasons we think the matter cannot properly be considered on this appeal. First off, assuming its relevance, the record on this appeal would not allow its fair consideration, since the specific circumstances of Zurich’s defense are not developed. Furthermore, we doubt Allen has standing to raise in this litigation any question of a conflict of interest between Zurich and Scruggs relating to the former’s defense of the state court action. That would seem a matter between insurer and insured.
. As a matter of fact, it appears uncontradicted that Allen had not only earlier taken a directly contrary position respecting the relationship in the state court action, but that he had taken the same contrary position in one state administrative proceeding where that also suited his purpose and, with Scruggs’ cooperation, a still different one when it suited both their purposes in connection with yet another state administrative matter. Whether or not these administrative proceedings would independently have provided the predicates for application of judicial estoppel, they further support the conviction that no further judicial aid should be given this particular enterprise of blowing hot and cold as the occasion demands,
. Although this is a diversity case, we consider that federal law controls the application of judic*a* estoppel, since it relates to protection of the integrity of the federal judicial process, We think that neither 28 U.S.C. § 1738, the full faith and credit statute, nor Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), requires inquiry into the possible existence of a conflicting state ru^e-
As to the former, the question is not the effect to be accorded the state judgment as res judicata or collateral estoppel, a matter to which 28 U.S.C. § 1738 clearly does speak, see, e.g., Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978), but the effect to be given in federal court to the attempt there to establish a legal/factual position directly conflicting with one earlier taken in another judicial tribunal, whether state or federal.
As to the latter, we think that in the final analysis, Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958), would dictate application of the federal rule here recognized rather than any conflicting, “outcome determinative” state rule that might be found.
. Although this ground was not specifically raised either in the trial court or on appeal, we are satisfied that under the circumstances of its close relationship to the directly contested issue of collateral estoppel we may properly rely upon it as an alternative basis for affirmance. See generally 10 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2716 (1973); cf. Yale v. National Indemnity Co., 602 F.2d 642, 650 n.18 (4th Cir. 1979) (inappropriate where issues not sufficiently developed).
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_typeiss
|
D
|
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.
Brent L. SELLICK, Appellant, v. SUN HARBOR MARINA, INC., a Nevada Corp., Appellee.
No. 20943.
United States Court of Appeals Ninth Circuit.
Oct. 27, 1967.
Rehearing Denied Dec. 7, 1967.
Brent Selliek, in pro. per.
Higgs, Jennings, Fletcher & Mack, Edward Wright, Wright & Toothacre, San Deigo, Cal., for appellee.
Before POPE, JERTBERG and BROWNING, Circuit Judges.
POPE, Circuit Judge.
On October 21, 1962, the appellant sold the vessel here in controversy under a conditional sales contract to some persons named Potter. The Potters berthed the vessel at the appellee’s wharf thereby incurring wharfage fees which were paid until April, 1963. Thereafter they were unable to pay the wharfage due. The appellee claimed a possessory lien upon the vessel for unpaid storage charges. After appropriate demands upon the Potters and upon the appellant for payment of these charges and after notice of sale in the manner prescribed by the California Civil Code, appellee sold the vessel at public auction to satisfy its lien and purchased the vessel at the sale.
Thereafter the appellee brought in a California Superior Court an action against the appellant and the Potters to quiet title to the vessel. The appellant appeared by answer in that action and filed a cross-complaint against the appellee alleging substantially the matters complained of in the appellant’s complaint filed in the court below in the cause now before us. Following trial of that action the Superior Court made findings of fact and conclusions of law in favor of the plaintiff in that suit, (the appellee here), and entered its decree quieting title to the vessel in the appellee against the appellant and the Potters. The appellant then proceeded to take an appeal from the Superior Court judgment to the District Court of Appeal which affirmed the Superior Court decree. Hearing was denied by the Supreme Court. The decision of the District Court of Appeal is reported at 58 Cal.Rptr. 459.
Claiming that the California state courts were without jurisdiction to entertain that action and that their judgments were void, the appellant filed his libel in personam in the court below seeking damages for alleged conversion of the ship. His libel was dismissed by the district court and he brings this appeal.
It is plain that if the State court had jurisdiction to enter its quiet title decree, that decree ended all the appellant’s rights or claims as to the vessel. Therefore, the fundamental question before us is whether the State court had jurisdiction.
Appellant made the same claim of want of jurisdiction in his appeal in Sun Harbor Marina Inc. v. Sellick, supra, in the District Court of Appeal. That court upheld the state court’s jurisdiction upon the ground that jurisdiction was granted under the saving to suitor’s clause in 28 U.S.C. § 1338(1). That section provides as follows: “The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”
In his argument here the appellant, noting that the saving to suitors clause does not confer upon state courts the right to entertain proceedings in rem against vessels, The Moses Taylor, 4 Wall. 411, 71 U.S. 411, 18 L.Ed. 397; The Hine v. Trevor, 4 Wall. 555, 71 U.S. 555, 18 L.Ed. 451, asserts that the “state court conducted an in rem action as the action of giving appellees quiet title is an in rem action.”
The fallacy in appellant’s argument is apparent from what was said by the Supreme Court in Madruga v. Superior Court, 346 U.S. 556, 74 S.Ct. 298, 98 L.Ed. 290. The Court there noted, at page 560, 74 S.Ct. at page 300, that: “Admiralty’s jurisdiction is ‘exclusive’ only as to those maritime causes of action begun and carried on as proceedings in rem, that is, where a vessel or thing is itself treated as the offender and made the defendant by name or description in order to enforce a lien.” That was a case in which action was brought in a California court for sale of a vessel and partition of the proceeds pursuant to a California statute. The Supreme Court, upholding the state court’s jurisdiction said (p. 561, 74 S.Ct. p. 301): “The proceedings in this California partition case were not in rem in the admiralty sense. The plaintiffs’ quarrel was with their co-owner, not with the ship. Manuel Madruga, not the ship, was made defendant. Thus the state court in this proceeding acts only upon the interests of the parties over whom it has jurisdiction in person-am, and it does not affect the interests of others in the world at large, as it would if this were a proceeding in rem to enforce a lien. The California court is ‘competent’ to give this partition remedy and it therefore has jurisdiction of the cause of action.”
In like manner it must be said here that the state court action to quiet title, an action in aid of the lien foreclosure sale, was not brought against the ship but solely against the individuals Sellick and the Potters. It was not a proceeding in rem in the admiralty sense. The only persons bound by that judgment were the named individual defendants Sellick and the Potters and hence the District Court of Appeal was correct in holding that the .saving to suitors clause was applicable and that the state courts had jurisdiction to enter the quiet title decree.
The judgment is affirmed.
. In this holding we should not be understood to be approving the suggestion made in the opinion of the District Court of Appeal that the changes made in the saving to suitors clause in the 1948 revision of the statute had a “broadening effect”. See the discussion of this matter in Gilmore & Black, The Law of Admiralty, p. 35.
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_applfrom
|
J
|
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).
NATIONAL BRICK & SUPPLY COMPANY, Inc., a corporation, et al., Appellants, v. William E. BAYLOR et al., Trustees of Mount Joy Baptist Church, Appellees. Abraham GRUNSTEIN, Abraham Fix, and Louis Nadelman, Partners, t/a Columbia Building Products Company, Appellants, v. William E. BAYLOR et al., Trastees of Mount Joy Baptist Church, Appellees.
Nos. 16338, 16339.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 23, 1961.
Decided Feb. 1, 1962.
Mr. Mark P. Friedlander, Washington, D. C., with whom Messrs. Mark P. Fried-lander, Jr., and Blaine P. Friedlander, Washington, D. C., were on the brief for appellant National Brick & Supply Co., Inc., in No. 16338, argued for all appellants in both cases.
Mr. George H. Windsor, Washington, D. C., with whom Mr. George E. C. Hayes, Washington, D. C., was on the brief, for appellees.
Mr. George Greenberg, Washington, D. C., was on the brief for appellants in No. 16339.
Mr. Dexter M. Kohn, Washington, D. C., was on the brief for appellant Hudson Supply & Equipment Co., in No. 16338.
Before Edgerton, Bazelon and Bastían, Circuit Judges.
EDGERTON, Circuit Judge.
Areawide Building Corporation contracted with appellees, the trustees of Mount Joy Baptist Church, to make alterations and additions to the church building, payment to be made in installments as the work progressed. Areawide abandoned the work after several payments had been made. Article 10 of the contract provided: “Should the Contractor neglect to prosecute the work properly, or fail to perform any provision of the contract, the Owner, after seven days’ written notice to the Contractor, may. without prejudice to any other remedy he may have, * * * terminate the contract and take possession of all materials, tools, and appliances and finish the work by such means as he sees fit, and if the unpaid balance of the contract price exceeds the expense of finishing the work, such excess shall be paid to the Contractor * * Not long after the church learned that Areawide had abandoned the work, the church exercised its right to terminate the contract.
Appellants are subcontractors suing to enforce mechanic’s liens. They filed these liens within three months after Areawide abandoned the work and are entitled to share in any sums the church may owe Areawide, the prime contractor. D.C.Code § 38-103 (1961). The District Court ruled that the church’s expense of finishing the work exceeded the balance due from the church to the prime contractor and therefore appellants could not enforce their liens.
After Areawide abandoned the work, but before the church learned that fact and terminated the contract, one Bortolussi, a subcontractor trading as Washington Heating & Plumbing Company, who had nearly completed his work and received most of his pay, filed a mechanic’s lien for the value of radiation equipment in place. He afterwards removed the equipment.
The removal was tortious. Bortolussi was chargeable with notice of the terms of the contract between Area-wide and the church. That contract cannot be thought to authorize either the contractor or a subcontractor to remove and not replace materials, particularly when, as in this case, the “trim-draw” progress payment had been made in reliance on the presence of the equipment. By filing a lien, Bortolussi recognized the church’s superior right to immediate possession. He testified that he removed the equipment with Areawide’s permission. But this is not here material, because Areawide could not bind the church.
The church was entitled to require Bortolussi to replace what he had wrongfully removed or pay damages. Instead of demanding that he do so, the church made a new contract with him by which it undertook to pay him and did pay him for replacing the equipment. There is no showing that he was insolvent or that, for any reason, the church could not have enforced its rights against him if it had tried to do so. In the absence of some such showing, the amount that the church paid Bortolussi for doing what he was already bound to do should not be regarded as a part, because it was not a reasonably necessary part, of “the expense of finishing the work”. The church is therefore not entitled, as against the appellant lien holders, to deduct the amount in question from the unpaid balance due from the church to Areawide. It results that there is a balance in which appellants are entitled to share. D.C.Code § 38-106 makes it the owner’s duty to retain for subcontractors who have filed liens, payments that become due to the contractor. Under the lien law, appellant subcontractors are entitled to the benefit of the contract between Areawide and the church. Cf. Riggs Fire Ins. Co. v. Shedd, 16 App.D.C. 150, 158 (1900).
The District Court rightly held that the lienors were not entitled to satisfy their liens out of sums which the church paid Areawide before the liens were filed and before the church learned that Areawide had abandoned the contract.
The judgment is vacated and the case remanded to the District Court for further proceedings consistent with this opinion.
Vacated and remanded.
. He later released this lien. He after-wards filed a second lien which the District Court found untimely. No appeal was taken from that decision.
. The equipment seems to have been subject to a conditional sales contract between Bortolussi and his supplier.
. D.C.Code § 38-107 (1961) entitles subcontractors to demand from the owner a statement of the terms of the prime contract. “The subcontractor should acquaint himself with the terms and conditions of the building contract. * * * In the absence of anything to the contrary, we must assume that the plaintiff possessed this information.” Winter v. Hazen-Latimer Co., 42 App.D.C. 469, 474 (1914).
. D.C.Code § 38-101 (1961).
. Cf. Carey v. Cyr, 150 Me. 405, 113 A.2d 614 (1955); Van Winkle v. Crowell, 146 U.S. 42, 50-51, 13 S.Ct. 18, 36 L.Ed. 880 (1892).
. The District Court said “This contract was not for work which had already been performed * * But this is contradicted by the court’s earlier finding that “Bartolussi removed certain materials, some of which had been installed, from the job site” and by the record. The new contract was to finish the job, which involved not only new work but also replacing the materials which had been installed and afterwards removed.
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:
|
songer_r_stid
|
01
|
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.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
UNITED STATES of America, Appellee, v. Ralph SCOPO and Dominic Montemarano, Defendants-Appellants.
Nos. 1020, 1041, Dockets 87-1469, 87-1470.
United States Court of Appeals, Second Circuit.
Argued May 2, 1988.
Decided Oct. 28, 1988.
Celia Goldwag Barenholtz, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for S.D. of New York, Peter M. Lieb, Aaron R. Marcu, Asst. U.S. Attys., New York City, on the brief), for appellee.
Judd Burstein, New York City, for defendant-appellant Scopo.
Harold J. Boreanaz, Buffalo, N.Y. (John F. Humann, Patrick J. Baker, Boreanaz, Baker & Humann, Buffalo, N.Y., on the brief), for defendant-appellant Montemara-no.
Before OAKES, KEARSE, and CARDAMONE, Circuit Judges.
KEARSE, Circuit Judge:
Defendants Ralph Scopo and Dominic Montemarano appeal from judgments entered in the United States District Court for the Southern District of New York following a jury trial before John F. Keenan, Judge, convicting both defendants on one count of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), in violation of 18 U.S.C. § 1962(d) (1982) (count 1); one count of participating in the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c) (1982) (count 2); one count of conspiring to extort money, in violation of the Hobbs Act, 18 U.S.C. § 1951 (1982) (count 3); and eight substantive Hobbs Act counts of extortion, in violation of 18 U.S.C. §§ 1951 and 2 (1982) (counts 4-11); and convicting Mon-temarano on one count of soliciting a bribe and aiding and abetting a labor official in receipt of a bribe, in violation of the Taft-Hartley Act, 29 U.S.C. § 186(b)(1) (1982), and 18 U.S.C. § 2 (count 12); and one count of bribing a public official, in violation of 18 U.S.C. § 201(b)(3) (1982) (count 13). Sco-po was sentenced to concurrent prison terms of 10 years each on counts 1 and 2; to a two-year prison term on count 3, to be served consecutively to the 10-year term on count 1; to consecutive one-year prison terms on counts 4, 5, and 6, to be served consecutively to the term on count 3; and to concurrent one-year prison terms on counts 7-11, to be served concurrently with the terms imposed on the other counts. Scopo’s sentence was to be served concurrently with a 100-year sentence imposed on him in another case, United States v. Salerno, No. SSS 85 Cr. 139 (S.D.N.Y. Jan. 13, 1987) (“Salerno I ” or “Commission Case”). Montemarano was sentenced to concurrent prison terms of 15 years each on counts 1 and 2; to a one-year prison term on count 3, to be served consecutively to the 15-year terms on counts 1 and 2; to consecutive one-year prison terms on counts 12 and 13, to be served consecutively to the term on count 3; and to concurrent one-year prison terms on counts 4-11, to be served concurrently with the terms imposed on the other counts.
On appeal, Scopo contends principally that his rights under the Sixth Amendment to the Constitution were infringed by the trial court’s refusal to allow him to be represented by counsel of his choice and its refusal to authorize the issuance of subpoenas to permit him to call certain witnesses. Montemarano principally challenges the trial court’s admission into evidence of certain tape recordings and other evidence. For the reasons below, we affirm the judgments of conviction.
I. BACKGROUND
In October 1984, Scopo and Montemara-no were indicted, with others, on various charges arising out of activities of the Colombo organized crime family of La Cosa Nostra (“Colombo family”). Prior to or during a trial of most of the defendants under a 51-count superseding indictment, see United States v. Persico, 832 F.2d 705 (2d Cir.1987) (affirming convictions of eight codefendants found guilty at that trial (“Persico trial”)), cert. denied, — U.S. -, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988), several of the defendants, including Scopo and Montemarano, were granted severances for health reasons. At the later trial of Scopo and Montemarano, which resulted in the convictions at issue on the present appeal, the government voluntarily dismissed several counts, and the indictment was redacted and renumbered into 13 counts. Our references are to the indictment as renumbered.
The trial centered principally on allegations that from at least 1981 through the date of the indictment, the Colombo family, by means of its control of various labor unions, had engaged in a scheme of extorting moneys from New York City area construction companies in connection with concrete-pouring contracts having a value of $2 million or less. The government’s evidence was presented principally through (a) tape recordings of conversations resulting from extensive court-ordered wiretapping, electronic surveillance, and undercover investigations, and (b) testimony of associates and victims of the Colombo family. Since there is no substantial challenge to the sufficiency of the evidence to support the convictions, we summarize but briefly the proof at trial, taken in the light most favorable to the government.
The Colombo family, headed by codefend-ant Carmine Pérsico, operated through entities known as “crews.” Each crew consisted of a “capo” or leader, “soldiers” who had been made members of the family, and a number of non-family-member “associates.” Montemarano was a capo in the Colombo organization. Scopo was a soldier in the family and was president of the District Council of Cement and Concrete Workers Unions, an alliance of labor unions that represented New York City’s concrete workers. At the instruction of Mon-temarano and other leaders in the Colombo family, Scopo used this position to influence and control the decisions of certain individual unions in the construction industry; he used his control of the unions to extort payments from construction companies in exchange for guaranteeing labor peace and allowing the companies to use workers not affiliated with his unions. A portion of the money extorted was kept by Scopo and the remainder was paid to other members of the Colombo family. A series of witnesses testified to acts of extortion by Scopo, and there was evidence that during the period in question, virtually all concrete-pouring contracts in Manhattan having a value of $2 million or less were controlled in this way.
As to Manhattan projects whose concrete contracts had a value of more than $2 million, which were a subject of Salerno I rather than the present case, there was evidence that the Colombo family coordinated with three other organized crime families in New York City to control bidding and awards. These families organized a “Club” of six contractors, rigged bids on these larger contracts, and prevented awards to any firm outside the Club. Club members paid Scopo two percent of the contract price, which was then divided among the four organized crime families.
The trial record also included evidence that in 1981, at a time when Pérsico was incarcerated, Montemarano sought to bribe a prison official to arrange the transfer of Pérsico to a different prison.
The jury found Scopo guilty on all 11 counts in which he was named, i.e., those charging RICO and Hobbs Act conspiracies, one substantive RICO violation, and eight substantive Hobbs Act acts of extortion. Montemarano was found guilty on these 11 counts and on one count of bribery of a union official and one count of bribery of a public official. Each defendant was sentenced as indicated above.
II. DISCUSSION
On appeal, Scopo contends principally that his Sixth Amendment rights were violated by the court’s refusal to permit him to be represented by counsel of his choice and by its refusal to permit him to subpoena a number of contractors to testify in his behalf at trial. In addition, both defendants contend (1) that the court should have excluded from evidence certain tape recordings on the ground that the tapes lacked the seal required by the federal wiretapping statute, and (2) that they were denied a fair trial because of (a) prejudicial publicity that came to the jury’s attention during trial, and (b) the court’s unrelated excusing and nonreplacement of one juror during the jury’s deliberations. Montemarano also challenges certain of the court’s evidentia-ry rulings. We have considered these and all other arguments made by defendants on appeal and find them to be without merit.
A. Scopo’s Right to Counsel
At trial, Scopo appeared pro se, assisted by counsel appointed for him by the court, because his preferred attorney was unavailable. Scopo contends that the court’s refusal to grant him a continuance of the trial date so that he could be represented by counsel of his choice deprived him of his rights under the Sixth Amendment. Given the sequence of events described below, we disagree.
The original Pérsico trial began in October 1985 and lasted some eight months. Seven weeks into that trial, Scopo was granted a severance for reasons related to his health. In 1986, Scopo went to trial in Salerno I; convicted in that case, he was sentenced on January 13, 1987, to a 100-year term in prison. On January 21, 1987, Judge Keenan held a scheduling conference in the present case and entered an order scheduling the trial of Scopo and Montem-arano to begin on May 4, 1987.
At the original trial, Scopo had been represented by Barry Slotnick, Esq. An associate of Slotnick attended the January 21 conference and unsuccessfully opposed the May 4 trial date, advising the court that, because of existing trial commitments, Slotnick would not be available in the present case until “June at the very earliest.” In light of this representation, the court scheduled another conference for February 6 to explore the matter of who would represent Scopo at trial.
At the February 6 conference, Slotnick revealed that he had other trial commitments that would keep him occupied past June and probably through August. He urged the court to postpone trial of Scopo until the conclusion of the appeals in Salerno I, reasoning that if Scopo’s 100-year sentence were affirmed, a plea agreement could be reached and a trial would be unnecessary. The court rejected this argument, noting the likelihood that the appeals in Salerno I would not be decided before sometime in 1988, the need to try Montem-arano in any event, and the nearly complete overlap between the charges against Mon-temarano and Scopo; in addition, a third severed defendant might also eventually be tried. Considerations of judicial efficiency thus suggested that Montemarano and Sco-po be tried together in order to minimize the number of times the court or the government would be required to conduct lengthy trials on the same charges. Accordingly, the court refused to alter the May 4 trial date. It stated that it would relieve Slotnick as counsel and instructed him to return for a conference on February 20 to report on Scopo’s progress in obtaining new counsel.
On February 20, Slotnick did not appear because he was ill. Slotnick’s associate reaffirmed that Slotnick’s trial schedule was as it had been represented at the February 6 conference. The court stated that the May 4 trial date was firm, reiterated that Scopo should obtain another attorney, and scheduled another conference for February 27.
At the February 27 conference, Slotnick informed the court that Scopo had attempted to retain for the May 4 trial the attorney who had represented him in Salerno I, but that that attorney was unavailable. Slot-nick again urged that trial be postponed until September, but he conceded that it was a realistic possibility that he would not be available for trial until November or December. The court denied the request and scheduled another conference, ordering that Scopo be brought to attend in person.
At a March 12 conference, Scopo appeared and stated that he had contacted two other attorneys but that they were otherwise occupied. He urged the court to delay the trial until Slotnick could represent him. The court denied the request. Noting that from January 21 on, it had repeatedly directed that if Slotnick could not be available in May Scopo was to obtain other counsel, the court again directed Sco-po to obtain another attorney and stated that if he did not, he would be required to go to trial without an attorney. The court scheduled another conference for March 20.
Further conferences were held on March 20, March 27, March 30, and April 3. Sco-po reported that he had not retained new counsel and that he wanted Slotnick to represent him. At each conference, the court advised Scopo that if he did not obtain new counsel, he would be required to proceed pro se. On March 30, Scopo filed a formal motion for a continuance of the May 4 trial date. The court denied the motion in a Memorandum Opinion and Order dated April 7,1987, summarizing the events since January 21, and noting that Slotnick had been unable to guarantee that he would be available for the present trial even as early as September, that the court had repeatedly ordered Scopo to retain new counsel, that Scopo’s efforts in that regard had been half-hearted, and that the time afforded Scopo to obtain new counsel had been more than reasonable. The court concluded that, in all the circumstances, the orderly administration of justice required that the trial proceed as scheduled.
Another conference was held on April 13. Scopo reported that he had not obtained a new attorney and that Slotnick was his attorney of choice. The court stated that it would appoint a stand-by attorney to assist Scopo at trial.
Over Scopo’s objection, the court appointed stand-by trial counsel for Scopo on April 22. That attorney, Austin Campriello, Esq., assisted Scopo throughout the trial. Scopo allowed him to make the opening statement and summation on Scopo’s behalf, to make motions, to object to evidence, and to cross-examine the government’s witnesses.
The Sixth Amendment gives a defendant in a criminal proceeding the right to “the Assistance of Counsel for his defence.” Recognition of this right requires that “a defendant... be afforded a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932).. Nonetheless, the “right to choose one’s own counsel is circumscribed in several important respects,” Wheat v. United States, — U.S.-, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988), and “must at times give way to the need for the fair and efficient administration of justice,” United States v. Cicale, 691 F.2d 95, 106 (2d Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1771, 76 L.Ed.2d 344 (1983).
The matter of whether or not to adjourn a trial date “is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964); see Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940). Thus, “ ‘where the inability of retained counsel to serve gives promise of unreasonable delay or inconvenience in completing the trial, the court may require the defendant to secure other counsel.’ ” United States v. Cicale, 691 F.2d at 106 (quoting United States v. Bentvena, 319 F.2d 916, 936 (2d Cir.), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963)). “[0]nly an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616-1617, 75 L.Ed.2d 610 (1983) (quoting Ungar v. Sarafite, 376 U.S. at 589, 84 S.Ct. at 849).
We see no abuse of discretion in the court’s insistence on the May 4, 1987 date. The date was set three and one-half months in advance; though repeated requests were made for an adjournment until September, there was no guarantee, as Slotnick conceded, that Slotnick would be available in September. The case had been pending more than two years, Montemarano was awaiting trial, and it made little sense to try him and Scopo separately in light of the overlapping charges. Scopo was forewarned in January 1987 that Slotnick could not represent him at trial in May, and from that time on, the court repeatedly made it clear that it would not adjourn the May 4 date and ordered Scopo to find new counsel. Plainly, Scopo was given ample opportunity to select another attorney to represent him at trial, and the denial of an adjournment did not violate his Sixth Amendment rights.
B. The Denial of Scopo’s Request for Subpoenas
During the trial, Scopo sought to call as witnesses 13 persons involved in the construction industry (the “industry witnesses”) to testify principally that there was no bidrigging in concrete-pouring contracts above the $2 million level and that Scopo had never extorted money from them. The court denied the subpoenas on the ground that the proposed testimony would be merely collateral to the issues in the case. The charges here focused solely on concrete-pouring contracts worth $2 million or less. A bill of particulars furnished by the government explicitly so stated, and all of the counts against Scopo alleged extortionate schemes or acts with respect to contracts at this level. Though the government believed the scheme alleged here was complementary to the scheme in which four organized crime families in New York City controlled the award of Manhattan concrete contracts worth more than $2 million, charges relating to the latter scheme were included in the Salerno I indictment and excluded from this case. Hence, the court concluded that the testimony to be elicited from Scopo’s proposed industry witnesses would not address any of the charges in the present indictment, and it refused to issue the subpoenas.
Scopo points out that the government’s proof at trial, both the live testimony and the tapes of conversations to which Scopo was a party, included statements by Scopo with respect to concrete-pouring contracts worth more than $2 million, and he contends that the court’s refusal to subpoena his industry witnesses infringed his Sixth Amendment right to rebut the government's proof. We disagree.
The Sixth Amendment, by its terms, gives the defendant in a criminal trial the right “to have compulsory process for obtaining witnesses in his favor.” This does not, however, guarantee him an unrestricted right to compel the presence of any and all witnesses he may choose. Rather, the defendant who complains that his right to call witnesses has been violated “must at least make some plausible showing of how their testimony would have been both material and favorable to his defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982); see id. n. 7; United States v. Ginsberg, 758 F.2d 823, 831 (2d Cir.1985); United States v. Taylor, 562 F.2d 1345, 1362 (2d Cir.), cert. denied, 434 U.S. 853, 98 S.Ct. 170, 54 L.Ed.2d 124 (1977).
In assessing the value of proposed witnesses’ testimony, we must bear in mind that the trial judge has wide discretion to exclude proffered evidence that is collateral, rather than material, to the issues in the case. E.g., United States v. Gleason, 616 F.2d 2, 21-23 (2d Cir.1979), cert. denied, 444 U.S. 1082, 100 S.Ct. 1037, 62 L.Ed.2d 767 & 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980); cf. Fed.R.Evid. 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed... by considerations of undue delay [or] waste of time_”). If the court could properly have excluded proffered testimony on the ground that the evidence was collateral, its refusal to subpoena witnesses who were to give that testimony cannot be deemed error.
The principal witness who referred to the contracts worth more than $2 million was Stanley Sternchos, who testified that his company, Technical Concrete Construction Corporation (“Technical”), had been forced to pay Scopo sums totaling between $800,000 and $900,000 from 1981 to 1984. Sternchos’s testimony with respect to conversations with Scopo included the following.
Scopo told a Technical partner in 1980 that Technical would have to pay Scopo one percent of each contract it was awarded if it wanted to do business in New York City. A portion of this money would be passed on to Scopo’s crime family. When Technical thereafter tried to bid on contracts worth more than $2 million, Scopo told Sternchos that was impermissible because such projects were allocated among six firms, which he named, each of which was controlled by one of four organized crime families. Scopo referred to these firms as the “Club.” He described for Sternchos an incident in which a Club member had failed to pay the required percentage to the four families and stated that only the fact that the company was going out of business prevented its principal from being killed. Although Scopo never directly threatened him, Sternchos testified that Scopo’s mention of this incident “certainly pointed out to [Sternchos] that Ralph Scopo felt that he and his people had the power to kill anybody whenever they felt like it,” and Sternchos feared for his own physical safety and that of his family if Technical did not pay Scopo.
The evidence of Scopo’s statements with respect to the prevalence of payoffs in the construction industry and with respect to control of the award of contracts worth more than $2 million was relevant to the present case in two respects. First, many of these statements were intertwined with Scopo’s extortion of moneys on contracts worth less than $2 million and were needed as background to clarify Scopo’s demands of companies such as Technical. Second, an element of the nine Hobbs Act counts (which in turn were charged as RICO predicate acts) was the extortion of money through the “wrongful use of actual or threatened force, violence, or fear.” 18 U.S.C. § 1951(b)(2). Scopo’s statements to Sternchos as to the sole reason the four crime families had decided not to kill a man who failed to make a required Club payment plainly provided a sound basis for Sternchos to fear violence should Technical discontinue paying Scopo.
Both of these uses of the over-$2 million evidence served to underscore the collateral nature of the rebuttal proposed by Scopo. His proposed industry witnesses included five officials of four of the firms that Sternchos said Scopo had identified as members of the Club. Scopo informed the court that he expected these five to testify that he had never extorted money from them or that as far as they knew there was no Club. Five other proposed witnesses were to testify that although their firms were not alleged to be members of the Club, they had obtained contracts worth more than $2 million. Two others were to testify that their company had 60% of the concrete business in the metropolitan area, that as far as they knew there was no Club, and that Scopo had never tried to shake them down. The last proposed witness, a subcontractor, was to testify that Technical had never asked it to inflate its bid, as Technical might have done in order to provide funds for a payoff to Scopo.
Thus, the thrust of the testimony of Sco-po’s proposed witnesses would have been that in fact there was no Club, no rigging of bids above the $2 million level, and no payoffs above that level. The government’s use, however, of Scopo's statements as to the existence of the Club and the extreme penalty for nonpayment to the crime families did not depend on the truth of those statements. Scopo used his statements to control the actions of the firms from which he extorted money and to instill fear of violence in his extortion victims. Thus, for the present case, the important fact regarding the Club was not whether or not it actually existed or how it worked but only whether Scopo made the statements. Even if Scopo’s proposed witnesses could have cast doubts on the veracity of Scopo’s statements, they could not have cast doubt that the statements were made.
In sum, the trial court’s view that the proposed testimony of Scopo’s industry witnesses was directed to a collateral matter was entirely sound. None of the proposed testimony would have contradicted the charges in the present indictment; it would not have dealt with contracts of $2 million or less; and it would not have addressed the crucial fact that Scopo made the statements. Accordingly, we reject Scopo’s challenge to the trial court’s refusal to issue subpoenas for his proposed industry witnesses.
C. Admissibility of Certain Tapes
Part of the government’s proof that Scopo and Montemarano were members of the Colombo crime family consisted of surveillance tapes of conversations intercepted at a Manhattan social club pursuant to court orders entered under Title III of the Omnibus Crime Control and Safe Streets Act (“Title III”), 18 U.S.C. §§ 2510-2521 (1982 & Supp. IV 1986). These tapes had been judicially sealed in accordance with 18 U.S.C. § 2518(8)(a). When they were offered at the trial of Scopo and Montemara-no, defendants objected on the ground that the tapes as then offered were not sealed. The district court, declining to reach the issue of whether defendants had waived their objection by failing to raise it prior to trial, see id. § 2518(10)(a), overruled the objection on the ground that the tapes had been unsealed pursuant to court orders for use in several cases including the present case, Salerno I, and a second Salerno case, United States v. Salerno, No. 86 Cr. 245 (S.D.N.Y. May 1, 1986) ("Salerno II"), and that there is no statutory requirement that judicially unsealed tapes be resealed.
Defendants renew their challenge here, arguing that the tapes should have been resealed in order to ensure their integrity. Though we would agree that at some point resealing should occur, that point was not reached here.
As we have noted, an important purpose of the statutory sealing requirement is the prevention of manipulation or alteration of the recordings of the intercepted conversations. United States v. Massino, 784 F.2d 153, 156 (2d Cir.1986); United States v. Gigante, 538 F.2d 502, 505-06 (2d Cir.1976). Thus, tapes made pursuant to Title III may not be admitted in evidence without "the seal provided for by [~ 2518(8)(a)], or a satisfactory explanation for the absence thereof." 18 U.S.C. § 2518(8)(a). The statute envisions "continuous judicial scrutiny of the entire process of obtaining and utilizing recorded conversations," United States v. Gigante, 538 F.2d at 506, and we are persuaded that once the trial level proceedings to which the unsealing order pertained have concluded, the tapes should be resealed in order to preserve their integrity should their admission be sought in another trial-either in another case or in a retrial of the same case after appeal.
Nonetheless, absent some condition imposed by the unsealing judge, we conclude that where tapes have been unsealed pursuant to court order for use in given proceedings, there is no requirement that they be resealed prior to the conclusion of those proceedings. For this reason, we reject defendants' challenge to the admission of the tapes in question on this appeal. The proceedings in Salerno II, for which an unsealing order had been entered, were still in progress at the time Scopo and Montemarano went to trial. Hence the absence of a seal was satisfactorily explained.
D. Other Contentions
Defendants' remaining contentions include challenges to the court's evidentiary rulings and to its supervision of the jury. None of them requires extended discussion.
1. Admissibility of the Funeral Photos
In support of the allegation that Montemarano was a member of the Colom,-bo family, the government offered, inter alia, surveillance photographs that showed him outside a church before and after a funeral, mingling with other members of organized crime. Montemarano objected to the introduction of this evidence on the ground that it infringed his First Amendment right to freely exercise his religion. In a Memorandum Opinion and Order dated July 6, 1987, the district court overruled the objection, noting that the photos did not depict the celebration of any religious practice but only the "mingling of persons in public view before or after services"; i~ concluded that the "remote, indirect effect" of the government's covert surveillance of the exterior of the church was clearly "outweighed by the compelling interest of society in the effective enforcement of its penal laws." We agree.
Recognizing that an individual aware of government surveillance at his place of worship could feel a chilling effect on his exercise of religion, we think it appropriate to analyze Montemarano's contention within the three-part framework set forth in Branzburg v. Hayes, 408 U.s. 665, 700, 92 S.Ct. 2646, 2666, 33 L.Ed.2d 626 (1972). Under that analysis, in order to justify intrusion into an individual's first amendment rights, the government must show that its actions (1) pursue a "compelling" state interest, id., (2) "`bear[] a reasonable relationship to the achievement of the governmental purpose,'" id. (quoting Bates v. City of Little Rock, 361 U.S. 516, 525, 80 S.Ct. 412, 417-18, 4 L.Ed.2d 480 (1960)), and (3) are not an "unduly broad means [that] unnecessarily] impact on protected rights,” Branzburg v. Hayes, 408 U.S. at 680-81, 92 S.Ct. at 2652. We conclude that the government has carried its burden.
Investigation of suspected criminals is a fundamental and compelling interest. with respect to certain types of suspected criminal activity, such as conspiracy or RICO violations, must focus on interactions between two or more persons. Such interactions are likely to be covert, and the opportunities to document them, especially between or among organized crime figures, are rare. Use of ordinary surveillance techniques in public places bears a reasonable relationship to the governmental goal. We see no error in the district court’s finding that the surveillance conducted here was no more intrusive than was necessary in order to record the interactions. The photos were not taken inside the church and did not record any religious ceremony; rather, they were taken before and after the ceremonies. In addition, they were taken covertly, thus avoiding any potentially menacing effect that might be felt from a perceptible government presence.
We conclude that the Branzburg test was met and that the district court did not err in rejecting Montemarano’s First Amendment argument.
2. Admissibility of the Agro Plea of Guilty
Count 13 of the redacted indictment charged that Montemarano had participated in the bribery of a federal prison official in an effort to have Pérsico transferred from the prison he was in to a preferred prison. In support of this charge, the government presented evidence that Montemarano had approached one Thomas Agro, a soldier in the Gambino organized crime family, seeking permission to have one of Agro’s underlings arrange the transfer, and that Agro had cooperated in these efforts. Agro was later indicted on a variety of charges in another case, and part of the government’s evidence on count 13 in the present case was Agro’s allocution in connection with his 1987 plea of guilty to two counts of racketeering in that case, United States v. Agro, No. 86 Cr. 452 (E.D.N.Y. Feb. 11, 1987). In that allocution, Agro admitted that from August 1981 to September 1982, he and others (unnamed) had attempted, by means of bribery, to move Carmine Pérsico “through the prison system.”
Over Montemarano’s hearsay objection, the trial court admitted the Agro allocution into evidence on the ground that it was a declaration against Agro’s penal interest and thus not exclud
Question: What is the state of the first listed state or local government agency that is a respondent?
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_r_bus
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2
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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 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.
CREATIVE ENVIRONMENTS, INC., et al., Plaintiffs, Appellants, v. Robert ESTABROOK, et al., Defendants, Appellees.
No. 81-1476.
United States Court of Appeals, First Circuit.
Argued Dec. 11, 1981.
Decided May 6, 1982.
Rehearing and Rehearing En Banc Denied June 15,1982.
Edward P. Leibensperger, Boston, Mass., with whom Patricia S. Nelson, and Nutter, McClennen & Fish, Boston, Mass., were on brief, for appellants.
J. Christopher Robinson, Boston, Mass., with whom Edward R. Lev, Boston, Mass., Thomas M. Zimmer, Concord, Mass., and Sullivan & Worcester, Boston, Mass., were on brief, for appellees Environmental Research and Technology, Inc. and Scott McCandless.
Joan A. Lukey, Boston, Mass., with whom J. Owen Todd, Jane D. Kaplan, and Hale & Dorr, Boston, Mass., were on brief, for ap-pellees Robert R. Estabrook, et al.
Before CAMPBELL and BOWNES, Circuit Judges, and WYZANSKI, Senior District Judge.
Of the District of Massachusetts, sitting by designation.
LEVIN H. CAMPBELL, Circuit Judge.
Creative Environments, Inc. (“CEI”) and its president, Wayne E. Barber, appeal from the granting of summary judgment in favor of defendants Town of Bolton, Massachusetts, certain town officials, Environmental Research & Technology, Inc. (“ERT”), and Scott McCandless, an employee of ERT and a Bolton resident. CEI had sued all defendants except the town on February 5, 1976, charging a conspiracy to deny CEI its constitutional rights in connection with the Bolton Planning Board’s rejection of a residential housing development promoted by Barber and CEI. As later amended, the complaint alleged violations of 42 U.S.C. §§ 1983, 1985(3), and 1986 and sought declaratory and injunctive relief as well as compensatory and punitive damages against all defendants. The Town of Bolton was added as a defendant in 1978.
After four years of discovery, the defendant officials, ERT, and McCandless moved for summary judgment. When considering the motion, the district court had before it affidavits, answers to interrogatories, and extensive depositions. It allowed the motion on June 17,1980. 491 F.Supp. 547. On June 18, the Town of Bolton similarly moved for summary judgment. This motion was allowed on November 20,1980 and final judgment was entered on June 2,1981. This appeal followed. We agree with the district court that there was no triable issue and that movants were entitled to judgment as a matter of law.
I.
We set forth the facts of record at considerable length, taking pains to include in our narration those which tend to favor plaintiffs’ claims.
CEI was incorporated by Wayne Barber in March 1971 for the purpose of constructing and developing residential housing. Prior to 1973 CEI had engaged in only limited development work, its primary project having been a 24-unit condominium in Walpole, Massachusetts. In February 1973, Barber became interested in a piece of property in the Town of Bolton known as Appleton Ridge. Bolton is a small town in central Massachusetts which, according to census data, had a 1980 population of some 2,530 persons. After making preliminary inquiries and acquainting himself with Bolton’s zoning bylaws and the town’s rules and regulations governing the subdivision of land, Barber purchased, in October 1973, some 183 acres for $177,000. Though CEI had never developed any subdivisions before, Barber’s plan was to build an 80-unit housing subdivision composed of three and four home “clusters.” Each cluster of houses was, according to Barber’s plan, to be surrounded by a large area of open space, and each cluster would share common services such as water and sewer. The land surrounding a cluster was to be left in its natural wooded state. The cluster configuration was an important part of Barber’s concept for the subdivision. To satisfy the Bolton zoning requirement that individual single family homes be built on separate lots of at least 1.5 acres, Barber drew the lot lines around each home within a cluster in an unconventional, irregular shape. These lots preserved Barber’s preference for having homes within a cluster close together and complied with at least the letter of the zoning rule, which had no express sideline specifications in addition to its requirement that each individual home have 1.5 acres surrounding it. Barber also hoped to provide common facilities such as a pool and community building for the use of the entire subdivision. He intended that each homeowner would own, in addition to his house, an interest in these facilities, and that owners would automatically become members of an association which would govern the use and maintenance of these common areas.
On December 4, 1973, in accordance with Massachusetts subdivision laws, Mass.G.L. c. 41, § 81S, CEI filed a preliminary plan for the Appleton Ridge subdivision with the Bolton Planning Board. On February 1, 1974, the Board disapproved this plan by unanimous vote. As reasons for disapproval, the Board noted that the plan provided for at least six dead-end streets which had not, as was required by the town bylaws, been previously approved by the Planning Board. The Board also stated that several lots lay across an approved town way “for which no legal abandonment has been approved nor has any relocation been approved.” Several roads were found to have grades in excess of the allowed maximum of six percent, with insufficient “leveling areas,” and the irregular lots were found to be “not in compliance with the intent of the town by-laws.” The Board attached a report from the Bolton Board of Health, which also disapproved the plan, and noted that insufficient data on such matters as water holes, recreation areas, open space, utilities and street designs had been provided. Finally, the Board noted that no. financial arrangements or conditions had been presented or discussed.
Barber took no exception to this disapproval but rather set about the task of preparing a “definitive plan” for the Appleton Ridge subdivision. Under Massachusetts law, the Board would be required to approve such a definitive plan so long as it complied with Bolton’s zoning laws and the Board’s own “reasonable” rules and regulations. Mass.G.L. c. 41, § 81M. One such Board regulation, which was in effect at the time Barber purchased Appleton Ridge, stated that, as a condition of approval, land developers were to file with the Planning Board “Environmental and Financial Impact Studies endorsed by a professional Planning Engineer which demonstrates that all available alternatives have been explored and evidence is provided that the plans submitted represent the best interest of the Town.” Board Regulation 3.3.1.28. No standards or criteria were provided in the regulation, or elsewhere, as to how this condition might be satisfied. Moreover, there was apparently some dispute among Board members and citizens regarding the rulers validity under state law. Scott McCandless, in particular, believed that the regulation was not valid.
Nevertheless, on March 11, 1974, in an attempt to comply with this requirement, CEI submitted to the Board a 33-page study prepared by Charles E. Downe Associates entitled, “Response to Section 3.3.1.28 of The Bolton Subdivision Regulations.” CEI heard nothing from the Board regarding this submission, however, and on July 30 CEI filed its full “definitive plan” with the Planning Board.
Unlike its preliminary plan, the definitive plan did not show lines breaking up each cluster into irregular lots. Rather, in an effort to defuse the 1.5 acre zoning issue, CEI designed the new plan to show only five large parcels divided by the proposed public ways. It was apparently understood by both Barber and the Board that, once the entire subdivision concept was approved, CEI would submit for Board approval individual plans for each house in accordance with a special provision of the subdivision laws. See Mass.G.L. c. 41, § 81P.
On August 27, 1974, the Planning Board met with CEI to discuss Appleton Ridge in detail. After CEI had finished its presentation and had departed, the Board drafted a letter, which it sent the following day, to all the major town boards and officials informing them of the CEI proposal. In this letter the Board informed these officials that a meeting was being scheduled at Town Hall for September 7 “for a review of the Creative Environments, Inc. definitive subdivision plan.” It further noted that a public hearing would be held on September 9 to formally discuss the plan and that all recommendations had to be in the Planning Board’s hands by the 14th. The letter closed by saying, “It is imperative that the Town Boards get together this September 7 to study, discuss and fully understand the impact that this definitive plan will have on the Town of Bolton.” No copy of this letter was sent to Barber or CEI, and no representative was present at the September 7 meeting. Indeed, when Barber asked a Board member on September 5 when the next Planning Board meeting would be held, he was told only that it would meet on the 9th for the public hearing. Both the September 7 meeting of town leaders and September 9 public hearing took place as scheduled.
A few days after the public hearing, on September 12; at least in part because the Board intended at that time to rely upon CEI’s environmental report in reaching its decision on the subdivision, the Planning Board commissioned ERT to evaluate the CEI study. Board member Murphy originally approached Scott McCandless to assist in this evaluation. McCandless was a town resident, an urban affairs specialist for ERT and a part-time reporter who covered the Planning Board for a local newsletter called the “Bolton Citizen’s News.” McCandless declined Murphy’s invitation, however, because he had been covering the subdivision story as a reporter and felt it might be improper for him to get directly involved. McCandless referred Murphy to ERT, his employer, however, even though he had long personally felt (and had so expressed himself to the Board) that the environmental study regulation was an ultra vires exercise of Board power under state law. Ultimately, despite his initial reluctance to get involved in the evaluation, McCandless briefed ERT on the subdivision plan once ERT agreed to perform the work. Indeed, at least one ERT employee who worked on the evaluation assumed that McCandless was heading up the project for ERT.
Toward the end of September, several relevant events took place in rapid succession. On September 21, ERT mailed to the Planning Board its essentially, negative review of CEI’s environmental study. Included in this review was ERT’s view that “[cjommon land ownership could foster a viable political group in a town such as Boltonf ]” and that the social and political effect of the subdivision would be “significant.” This review was apparently received by September 23 because Board member Murphy, at a meeting with CEI on that day, referred to an evaluation in his possession, though he said he had not read it and would not provide CEI with a copy. Also on September 23, Town Counsel Hill wrote to the Board, and in the context of a full critique of the CEI plan, suggested that the environmental study regulation was a valid ground upon which to approve or disapprove the plan. He altered this opinion the very next day in another letter, however, and specifically advised the Board on the 24th not to rely upon the CEI environmental study in its final decision.
On September 25, 1974, the Board met, voted separately on a number of distinct issues, and drafted a nine-page letter disapproving CEI’s definitive plan. In this letter the Board listed seven separate reasons for its disapproval. These included 1) that the plan’s proposed one-million gallon reservoir and dam were not detailed with sufficient specificity to insure public safety; 2) that the dam had not been approved by the Commissioner of Public Works; 3) that “the developer has not presented the Board with easement information as required under regulation 3.3.1.27”; 4) that Road G, a main access road for the subdivision, extended for nearly 1,000 feet into an area zoned for industrial use, in violation of regulation 2.3.11.1; 5) that the plan lacked detailed information on the control of groundwater; 6) that the plan lacked sufficient construction details in nine enumerated categories; and 7) that eight specific areas “are inadequately shown/described on the drawings and require further clarification.” After each of these reasons, which were voted on separately at the Board meeting when the plan was disapproved, the Board recited that “for these reasons the Board has voted to disapprove the plan and does so disapprove.” The issue of the CEI environmental study was raised at the beginning of the meeting but, according to the minutes of that meeting, “no action” was taken on a suggestion to disapprove the plan because of• the study’s inadequacy. At the end of the meeting, however, the Board voted to include a final paragraph in the letter which was not accompanied by the “disapproval” recital. This paragraph reads as follows:
The Environmental Plan AR-59 which uses data that is not current draws subjective conclusion [sic] with a method that is questionable, and was written for a previously submitted preliminary plan, not the filed definitive plan. The Board considers this document unacceptable.
Following this rejection, on October 16, CEI filed a timely state court action pursuant to Mass.G.L. c. 41, § 81BB to obtain a review of the Board’s decision. In its state court complaint, CEI apparently asserted that the Board had illegally relied upon the environmental study requirement in rejecting its plan. In reply, the Board denied that “it exceeded its authority and denies it was in error as a matter of law and fact for the reasons given, i.e., the environmental plan document is unacceptable and further answers by reference to its decision.... ” Soon after this suit was filed, the town held hearings and approved, on November 26, 1974, a new zoning bylaw which prohibited the types of irregular lots contained in CEI’s preliminary plan. ■ At Planning Board meetings on January 27 and 29,1975, it was suggested by Board member Murphy and Town Counsel Hill that this new regulation might be applied to CEI’s plan, but no such action was ever taken by the Board.
The state court proceeding, with the express agreement of CEI, ultimately bypassed the matter of the environmental study and focused upon a single issue relating to the preservation of open space in the development. This issue had been the subject of a series of separate, but simultaneous developments in the spring and summer of 1974.
As part of its effort to comply with Bolton’s subdivision rules, CEI engaged in discussions with the town Conservation Commission over the issue of open space in Appleton Ridge. Planning Board Regulation 4.4 required that “before approval of a plan,” the Commission had to approve an open space provision which “unless otherwise specifically approved by the Planning Board,” reserved at least ten percent of the subdivision for park and playground use. Such a requirement is authorized under Mass.G.L. c. 41, § 81U. The Commission had advised the Board in January 1974 to disapprove CEI’s preliminary plan for lack of compliance with Regulation 4.4. On July 23, 1974, Barber met with Robert Held, chairman of the Commission. Held expressed dissatisfaction with the limited scope of Regulation 4.4 and requested that Barber increase the amount of open space reserved for parks. He further asked that CEI grant this open space to the town in perpetuity and at no cost to Bolton. Although such a requirement, had it been unilaterally imposed by the Planning Board as a condition for approval, would apparently have violated state law, see Mass.G.L. c. 41, § 81Q, the subdivision laws do not expressly proscribe the type of voluntary negotiations which Held entered into on behalf of the Conservation Commission. Barber replied that he would “not object to the [additional] Conservation Commission requirements provided that the definitive plan was approved by the Planning Board substantially as submitted on July 30, 1974 with the waivers requested therein.” Held said that neither he nor the Commission could control the decision of the Board, but he suggested that CEI and the Commission enter a side agreement contingent upon favorable Board action. Barber agreed and Held drafted a letter of agreement. This arrangement was finally consummated in a letter of intent sent by Barber on September 13. This letter stated that “Whereas the Bolton Conservation Commission... desires an Open Space Plan with requirements other than those required under Regulation 4.4... and whereas Creative Environments, Inc.... agrees ■ in principle to comply with these additional requirements...,” CEI would grant some 38 acres of open space to the Commission in perpetuity for nominal consideration provided the definitive plan is “approved substantially in the form submitted.... ” The Commission approved CEI’s open space plan on September 17. While the Board was informed of the negotiations between CEI and the Commission, its disapproval of the definitive plan on September 26 made no mention of the open space issue. Nor did the plan itself designate any open space as being transferred to the Commission. In a revised plan submitted on December 5, 1974, however, CEI included a revised open space drawing which reflected the side agreement and labelled the designated areas as reserved to the Commission.
On January 30, 1975, the Board voted to accept the December 5 plan, including the open space proposal, subject to several conditions. It voted to reject, however, several very important waiver requests which were understood by Barber to have been in the plan from the outset. Because of the Board’s failure to enact the plan as submitted on December 5, specifically its failure to grant a waiver respecting road “G,” CEI decided to withdraw its offer to grant the open space in perpetuity — and instead reduced the terms of the grant to three years, the maximum term which the Board could unilaterally demand under state law. Mass.G.L. c. 41, § 81Q. CEI formalized this change in its proposal on February 17, 1975, in a letter to the Board. CEI submitted a revised open space drawing on March 10. At a March 10 Planning Board meeting, member Murphy again indicated his displeasure with CEI’s refusal to comply with the new lot line regulations, but on March 11 Town Counsel Hill wrote to the Board that the regulation could not be applied to CEI’s plan.
On March 20, 1975, after discussions among the Board, Conservation Commission chairman Held, and members of the “Law Committee,” the Board again approved the CEI plan but added the express condition that CEI include in its plan the full land grant “[a]s offered by the developer in his letter of intent.... ” The Board also expressed the desire, although this was expressly captioned as “not a condition for approval,” that CEI comply with the November 26, 1974 zoning ordinance forbidding irregular lots.
CEI immediately brought the March 20 approval conditions to the attention of the state court where its appeal was filed, and on April 10 and 11, 1975, CEI’s state court proceeding went to trial with the sole issue being whether the town’s March 20 insistence on the open space issue was legal under the state subdivision law. On April 22, the Massachusetts superior court issued findings and an order. As part of its ruling, the court stated,
I FIND that the plaintiff and defendants have both conducted extensive negotiations and meetings from the inception of the application in October of 1973. The plaintiff has modified and revised various portions of their original plan of July 1974 pursuant to the Board’s September disapproval. The modified plan submitted by the plaintiff in December increased the open area acreage from 19 acres to 38 acres. This modified plan was conditionally approved by the Board in January of 1975. However, the plaintiff’s attempt to satisfy the conditional-approval resulted in a substantial modification of the use and distribution of the open space which had been conditionally approved by the Board. Therefore, at this point, there is no way to determine what amount of land the plaintiff is willing to designate as open space without the submission of a new plan, not a revised original.
Accordingly, this matter is ordered remanded to the Planning Board for definitive action. The plaintiff should submit a plan designating what acreage is to be open space pursuant to G.L. Ch. 41, Sections 81K-81GG. Thereafter, the Planning Board should either approve or disapprove of this plan pursuant to the applicable sections of G.L. Ch. 41.
Soon after the case was remanded it became apparent that it was susceptible to two rather different interpretations. While CEI read the order as requiring only a new “open space” plan, it learned that the Board might interpret the opinion as requiring an entirely new subdivision plan, “not a revised original.” This, in turn, would arguably subject CEI to the new zoning bylaw outlawing irregular lots and defeat the “cluster” concept. CEI, therefore, filed, on April 29, a motion for a new trial in which it argued that “[t]he submission of a new subdivision plan by the Plaintiff will cause the Plaintiff irreparable harm, financial and otherwise, as a result of the attendant time delays and will require the Plaintiff to conform its new subdivision plan to zoning and Planning Board rule and regulation changes which have occurred in the interim.... ” This motion was argued on May 8 to the trial judge and denied on June 24, 1975, nunc pro tunc as of May 8, 1975.
Soon thereafter, CEI submitted to both the court and the Board on May 14, 1975, copies of previously submitted open space plans with revisions marked in red which were unaccompanied by “a new subdivision plan.” In response, the assistant clerk of the state court wrote CEI on May 16 that the case had been remanded to the Board and that the court “did not retain jurisdiction.” On June 17, after meeting in executive session several times, the Board sent a “resolution” to CEI indicating that it was requiring, as per court order, “a new subdivision plan (linen and eight prints) not a revised print or revised original....” CEI never complied with this request. Instead, on June 27, CEI filed a motion for contempt in state court alleging that this latest Board action was in defiance of the court’s decision. On July 22, plaintiffs filed a notice of appeal with the state court seeking review of both the April 22 decision and the June 24 denial of a new trial. In early August CEI’s counsel inquired about his contempt motion with a clerk of the court where the state trial judge was sitting. That clerk informed counsel that the trial judge had stated “he was finished with the CEI case.and that he would not hear any further motions with respect to the case.” On October 21, CEI moved to withdraw its state court appeal. This motion was granted. On February 3, 1976, CEI and Barber filed the present district court action alleging violations of 42 U.S.C. §§ 1983, 1985(3) and 1986.
II.
CEI and Barber contend in the present action that defendants denied them a fair hearing, measured the CEI plan against unconstitutionally vague and subjective standards, and generally “distorted” the Massachusetts subdivision laws in order to block the Appleton Ridge development. Plaintiffs say that under state law a developer whose plan comports with a town’s reasonable regulations and bylaws is entitled as of right to Planning Board approval. Mass.G.L. e. 41, § 81M. Here, they contend, their plan was disapproved for such improper reasons as that town officials feared its social effects upon the community and the political threat posed by the proposed homeowners’ association. The town officials’ asserted failure to deal “objectively” with the plan is said to have amounted to a deprivation under color of state law of rights secured by the Constitution, to wit, the right not to be denied property without due process, and thus to have violated 42 U.S.C. § 1983. Plaintiffs also contend that defendants conspired to discriminate against CEI in violation of 42 U.S.C. §§ 1985(3) and 1986, this conspiracy resulting from an invidious, class-based animus against those people who might someday belong to the homeowners’ association.
Section 1983
In considering whether CEI and Barber, who oppose summary judgment, have demonstrated a genuine issue of material fact, we look at the affidavits, depositions and other supporting papers in the light most favorable to them, Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Cual Morales v. Hernandez Vega, 579 F.2d 677 (1st Cir. 1978), making all legitimate inferences in their favor. Ferguson v. Omnime-dia, Inc., 469 F.2d 194, 198 (1st Cir. 1972). We shall-assume that CEI and Barber could have established at trial that the town engaged in adversarial and even arbitrary tactics with respect to the CEI plan. Especially with respect to the town’s insistence that CEI submit an entirely new subdivision plan after the state court required only “a plan designating what acreage is to be open space...,” an inference might be warranted that the Planning Board was seeking to frustrate CEI’s efforts to develop its subdivision. We further assume that plaintiffs could persuade a trier of fact that had CEI proposed a more modest plan with conventional lot lines, the path to Board approval would have been smoother. Nevertheless, we still do not believe that plaintiffs can demonstrate that the Board’s actions rose to the level of a violation of the Constitution of the United States.
First, with respect to procedural due process, the facts in the record, viewed most favorably to plaintiffs, do not show that CEI was denied, as plaintiffs insist, “its right to a fair and meaningful hearing process.” CEI was allowed a full public hearing on the plan. In addition, the Board met with CEI on at least 11 occasions prior to the September 26 disapproval and nine additional times after that date. Each official action by the Board was accompanied by a full statement of reasons. CEI had and exercised its right to state court review of one of the Board’s actions. Additional judicial review in the Massachusetts courts would seemingly have been available had CEI so elected. CEI points to the fact that it was not invited to seven meetings of town officials — including several Planning Board executive sessions — over the period from August 1974 to July 1975. The special meeting of town leaders on September 7 just prior to the September 9 public hearing is of particular concern to CEI. But the due process clause does not require that CEI be invited to attend such meetings. Administrative and governmental bodies are not constitutionally required to forego executive sessions. Nor are members of such organizations forbidden by due process from speaking periodically to one another and other leaders regarding the matters pending before them. Some 21 meetings, including a full public hearing and a state court appeal, were accorded the plaintiffs. CEI and Barber received at least the minimal process due them under the Constitution. Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). To hold that more or better hearings were required would be to place an unreasonable burden on the town.
Plaintiffs would also have us find a denial of due process in the disapproval of their plan for noncompliance with what are said to be vague and unclear standards. They contend that Board Regulation 3.3.1.-28, which required developers to submit an environmental plan showing that a proposed development was in the “best interests of the town,” placed “virtually unfettered discretion” in the hands of public officials. See White v. Roughton, 530 F.2d 750, 754 (7th Cir. 1976). Assuming without deciding, however, that an issue of constitutional dimension would be raised were such a regulation to be the sole, or at least a major, basis for denying an application such as this one, plaintiffs have not established any likelihood of showing that Regulation 3.3.1.28 played any such key role. Plaintiffs are entitled to all inferences which are fairly supported by the evidence, but are not permitted to build their case on mere “opprobrious epithets” of malice, see Snowden v. Hughes, 321 U.S. 1, 10, 64 S.Ct. 397, 402, 88 L.Ed. 497 (1943), or “the gossamer threads of whimsey, speculation and conjecture.” White v. The Hearst Corp., 669 F.2d 14, 19 (1st Cir. 1982), quoting Manganaro v. Delaval Separator Co., 309 F.2d 389, 393 (1st Cir. 1962). CEI has pointed to little beyond its speculations to show that the challenged regulation was critical to disapproval of CEI’s plan.
The Board letter rejecting the preliminary plan makes no mention of the challenged regulation. The September 26 disapproval of the definitive plan lists seven precise grounds of disapproval, each one of which is followed by the statement “for these reasons the Board has voted to disapprove and does so disapprove.” The last two sentences of the Board’s letter to CEI mentions the proffered environmental study and describes it as “unacceptable,” but these sentences were included only after the Board had expressly voted to take “no action” on a proposal to cite the CEI study as a reason for disapproving the plan. There is thus no suggestion, express or even implied, that this regulation was the reason the Board turned CEI’s plan down in September. Moreover, CEI does not dispute the fact that the Board asserted at least several perfectly valid grounds in its September letter for disapproving the plan in addition to its mention of the CEI study. On January 29, 1975, the Board voted 3-2 not to require a new environmental study from CEI as a condition for acceptance of the approved plan, and finally, in its March 20 communication with CEI and in its June requirement of a new plan, the Board mentioned neither the regulation nor any environmental study. In these circumstances, and lacking some tangible indication that Regulation 3.3.1.28 was in fact a dispositive ground for disapproval, we think the regulation raises no issue of constitutional moment in this case. We thus affirm the district court’s grant of summary judgment as to this issue.
CEI finally asserts that its right to due process was violated by the town’s overall “distortion of the existing statutory and regulatory scheme.” This argument rests not on any failure to have provided adequate procedures, but on the alleged arbitrary misapplication of state law resulting, plaintiffs assert, in denying them their “right” to conduct a legitimate business and make a profit. Plaintiffs again point to the Board’s vague environmental study regulation, discussed supra, as well as to the Board’s positions on the open space question, its interpretation of the state court order to require an entirely new subdivision plan (and thus to require conformance with the new squared lot bylaw), and the raising of the filing fee for subdivision plans.
It is not impossible to derive a theoretical basis for CEI’s argument from eases such as Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1960) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). But were such a-theory to be accepted, any hope of maintaining a meaningful separation between federal and state jurisdiction in this and many other areas of law would be jettisoned. Virtually every alleged legal or procedural error of a local planning authority or zoning board of appeal could be brought to a federal court on the theory that the erroneous application of state law amounted to a taking of property without due process. Neither Congress nor the courts have, to date, indicated that section 1983 should have such a reach.
As support for its position that a “distortion” of state law triggers constitutional rights, CEI relies on cases either involving-procedural due process or on cases where the official conduct at issue was significantly more egregious than that alleged here. In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), for example, cited by plaintiffs, the Supreme Court found that a nontenured state university professor whose contract was not renewed was not entitled to a hearing prior to termination because he had no property interest under state law. Even assuming CEI had a property right here, however, we have already found that no procedural default took place. Moreover, Moran v. Bench, 353 F.2d 193 (1st Cir. 1965), cert, denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359 (1966), and Progress Development Corp. v. Mitchell, 286 F.2d 222 (7th Cir. 1961), also relied upon by CEI, are readily distinguishable. In Moran, this court affirmed a section 1983 summary judgment against a plaintiff who claimed to have been “arbitrarily” treated by the Massachusetts Registry of Motor Vehicles. We reached this result even though the officials in that case might have been “
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:
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songer_usc2sect
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157
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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 second 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".
In the Matter of the Arbitration Between LOCAL ONE AMALGAMATED LITHOGRAPHERS OF AMERICA affiliated with International Typographical Union AFL-CIO, Petitioner-Appellee, v. STEARNS & BEALE, INC., Respondent-Appellant.
No. 1355, Docket 86-7072.
United States Court of Appeals, Second Circuit.
Argued May 21, 1986.
Decided Feb. 23, 1987.
Michael F. O’Toole, New York City (Robinson, Silverman, Pearce, Aronsohn & Berman) for petitioner-appellee.
William G. O’Donnell, New York City (O’Donnell, Fox, Gartner & Sobolewski, P.C.) for respondent-appellant.
Before OAKES, MESKILL and MAHONEY, Circuit Judges.
MAHONEY, Circuit Judge:
This appeal presents the question of what is required to bind a non-signatory company to a union contract signed by another company. In an arbitration proceeding between Stearns & Beale, Inc. (“S & B”) and Local One, Amalgamated Lithographers of America (“Local One”) the arbitrator decided that a non-signatory company which shared a common parent corporation with S & B, AAA International Printing Company (“AAA”), was bound by the S & B contract because the two companies were a “single employer.” The arbitrator accordingly directed (in effect) that neither S & B nor AAA assign any lithographic production work to nonunion AAA employees. Local One then brought this action against S & B in the Southern District of New York to confirm the arbitration award; upon motion of Local One, summary judgment was granted and the award confirmed, 632 F.Supp. 167 (1985). We reverse and remand.
BACKGROUND
Originally S & B and AAA were separate established companies. After a falling out between the two founders of AAA, Ronald Toler and John Racanelli, Toler bought out Racanelli’s interest in the firm. Toler then sought out another company with which to associate.
At the same time, S & B was suffering business reversals, and its president and sole stockholder, Milton Kahn, was therefore receptive to Toler’s overtures.
In 1981, S & B and AAA became wholly owned subsidiaries of a single parent holding company, Toler-Kahn, Inc. Toler and Kahn each received 50 percent of the Toler-Kahn stock; Toler-Kahn in turn owned S & B and AAA. At that time, AAA moved to the same location as S & B, at 150 Varick Street in New York, New York.
Between April 1981 and February 1982, AAA and S & B shared work space on the fifth floor at 150 Varick Street. In February 1982, S & B sublet work space from an adjacent tenant and installed a wall between its space and the new space, into which AAA moved. Several common managerial offices are located between S & B and AAA, however, with a common telephone number for the two companies, and one AAA employee operates equipment in the S & B area because the machine’s operation requires a water supply, which is located near the men’s bathroom within the S & B area.
S & B produces high quality color processed lithographic work such as glossy advertisements, catalogues and brochures. S & B has eight lithographic employees, who are employed in the job categories of pressmen, operators, and tenders. S & B’s preparatory work is done by outside companies. Preparatory work consists of photographically separating the original colors into the four primary colors, then plate-making. S & B then uses the plates for printing. In the printing process, the four primary colors are blended to reconstruct the colors of the original so that the finished product looks like a photograph. Making the press ready by blending the colors and producing the finished print is a long, involved process during which the customer generally checks the proofs and approves the final print. The S & B presses produce glossy prints of up to forty inches.
AAA is a “letter shop,” which is a high output, low quality printing operation. AAA’s lithographic employees include three pressmen, two multi-lith operators, and one lithographic preparation employee. While the AAA presses can produce four color work, this work is done on uncoated stock and the colors of the output are not blended to appear like a photograph, but rather appear as blocks of colors. AAA does reproduction work on flat sheet or roll-fed paper. Its presses can produce output of up to seventeen inches. The output of AAA takes significantly less time to make ready and produce than the S & B output.
The companies in operation have maintained their separate identities. For example, while S & B and AAA share some common customers, the work performed by AAA and S & B for these customers differs. Thus, one customer may have S & B produce a glossy fashion design handbook and AAA produce a mass mailing of a black and white letter.
Because of the differences in the operations of the companies, the skills and conditions of employment of the two groups’ employees varies substantially. A four year apprenticeship is required to learn to operate the S & B presses. S & B employs “tenders” who assist the pressmen and learn the operations from the pressmen. While the apprenticeship is four years, it takes many more years for the pressman to perfect his craft. S & B employees work only on the S & B presses and do not perform any other work, like collating or binding.
The S & B employees work 35 hours straight time per week. Their hours of work are from 8:30 a.m. to 3:30 p.m., punched on the S & B time clock. The wage for S & B pressmen ranges from $14 to over $17 per hour depending upon the size and type of press. Wages of tenders are between $8 and $9 per hour. The S & B employees are covered by the union’s benefit plan, which includes pension, welfare and unemployment funds.
The amount of time necessary to learn to use the production equipment in AAA varies by the piece of equipment, ranging from one week to several months (for the multi-lith equipment). The AAA employees occasionally shift around among the various positions within the AAA operation, which includes among other things collating and binding.
The AAA employees work 40 straight time hours per week. Their hours of work are from 8:30 a.m. to 5:00 p.m., punched on the AAA time clock. The AAA employees are covered by a profit-sharing retirement plan rather than a pension plan. The wage ranges of AAA employees appear to be substantially less than those of the S & B employees.
AAA employees have never performed work for S & B, and conversely S & B employees have never performed work for AAA. On one occasion when there was no work for the S & B employees, the eight employees worked on the maintenance of their presses and played cards rather than moving into the AAA side to perform work for AAA. No employees have been transferred from S & B to AAA nor has anyone transferred from AAA to S & B.
The foreman for S & B has never assigned work to, or in any other way supervised, AAA employees, nor has the AAA foreman assigned work to, or supervised, S & B employees. When an opening arose at 5 & B, the new employee was hired through Local One.
With the exception of the AAA employee who worked on the equipment located in S 6 B’s work space, AAA employees only entered S & B’s work area to use the men’s bathroom located in a corner of S & B or to pick up the output of the AAA employee. S & B employees generally did not enter the AAA work space.
When S & B’s output required binding or collating, it sometimes was contracted out to AAA and sometimes to outside companies. When it was given to AAA, S & B’s foreman would take the work to the office located between the two sides or would notify the office that it was ready to be bound or collated. An office employee would then notify AAA’s foreman who would have a laborer pick up the work for its completion.
In April 1983, Local One initiated arbitration to declare four lithographic production employees of AAA covered by the union contract between S & B and Local One. The grievance stated that S & B had four employees working on its premises to whom the collective bargaining agreement was not being applied. The arbitrator, a joint committee of employer and labor representatives, decided in favor of the union, holding that the four AAA employees should be included in the collective bargaining unit of S & B employees.
S & B then petitioned the N.L.R.B. for clarification of the collective bargaining unit. The N.L.R.B., through its regional director, ruled that the four AAA employees were not an accretion to the S & B bargaining unit. Specifically, the opinion stated that: “While AAA and S & B share common ownership and management sufficient to warrant a finding that AAA and S & B constitute a single employer, there are many other factors weighing in favor of a finding that the four AAA employees sought by the Union are not an accretion to the unit represented by the Union at S & B, and that AAA operates separately from S & B.”
Rather than appeal this decision or follow the N.L.R.B.’s advice to hold an election by the AAA workers, the union asked the joint arbitration committee to amend its award. The committee then ruled that S & B and AAA constituted a single employer, and although the committee could not “require the Employer to apply the collective bargaining unit” to the four AAA employees in view of the N.L.R.B. ruling, “the Employer” was prohibited from “assigning lithographic production work to employees who are not covered by the collective bargaining agreement.” The committee further stated that “the Employer” could conform to the order by reassigning the AAA employees to the collective bargaining unit, “which it was required to do under the contract.”
S & B petitioned the N.L.R.B. regional director, alleging that the union had violated the National Labor Relations. Act (“NLRA”) through the award. The director refused to issue a complaint.. The N.L.R.B. general counsel, on January 30, 1985, affirmed the director because the amended committee award did not directly conflict with the earlier N.L.R.B. ruling and the N.L.R.B. has a policy of non-interference in arbitration. The general counsel also stated that if the award later undermined the earlier N.L.R.B. ruling, charges at that time might be warranted.
In January 1985, prior to the general counsel’s action, Local One brought suit in the Southern District of New York to confirm the amended arbitration award of the joint committee. The district court confirmed the award on Local One’s motion for summary judgment.
On April 29, 1986, the regional director again refused to issue a complaint. He stated that the evidence established neither that the union violated sections 8(b)(1)(A), (2) and (3) by seeking to enforce the arbitration award, nor that the union was seeking to represent the AAA employees.
DISCUSSION
As an initial matter, appellee challenges this court’s jurisdiction. The only case cited for the proposition that we lack jurisdiction over an appeal from a district court’s order of enforcement is Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938). That case held that a district court may not enjoin an N.L.R.B. proceeding, id. at 47, 58 5. Ct. at 461-62, and does not support appellee’s position. If, on the other hand, appellee means to argue that this court lacks jurisdiction over this appeal because of the prior N.L.R.B. proceedings, it misconstrues the nature of the action it has brought in the federal court. This action is to enforce the award of the arbitrator by final order of the district court, from which appeal properly lies under 28 U.S.C. § 1291 (1982). See Goodall-Sanford, Inc. v. United Textile Workers of America, 353 U.S. 550, 551-52, 77 S.Ct. 920, 921, 1 L.Ed.2d 1031 (1957) (district court order under § 301(a) directing arbitration is a final order appeal-able under 28 U.S.C. § 1291). This action does not question the result or findings of the N.L.R.B. unit clarification proceeding, and, as discussed immediately infra, is not affected by the N.L.R.B. regional director’s subsequent refusals to enforce the N.L. R.B. decree.
Local One also argues that the regional director’s refusal to bring a charge eliminates the court’s jurisdiction over the issue. An N.L.R.B. regional director’s refusal to bring a charge of unfair labor practices does not rob the federal courts of jurisdiction over the contract in question, and has no collateral effects. See Peltzman v. Central Gulf Lines, Inc., 497 F.2d 332, 334-35 (2d Cir.1974), cert. denied, 423 U.S. 1074, 96 S.Ct. 857, 47 L.Ed.2d 83 (1976); International Union of Electrical, Radio and Machine Workers v. General Electric Co., 407 F.2d 253, 264 (2d Cir.1968), cert. denied, 395 U.S. 904, 89 S.Ct. 1742, 23 L.Ed.2d 217 (1969); McConnell v. Chauffeurs, Teamsters and Helpers Local 445, 606 F.Supp. 460, 462 (S.D.N.Y.1985); see also Edna H. Pagel, Inc. v. Teamsters Local Union 595, 667 F.2d 1275, 1279-80 & nn. 10-12 (9th Cir.1982).
S & B also makes several non-meritorious arguments which we now address, before turning to what we deem to be the deciding issue of law. S & B first argues that the joint committee exceeded its authority because the remedy went beyond the four corners of the collective bargaining agreement.
The district court is authorized to vacate an arbitration award if the arbitrator exceeded its powers. 9 U.S.C. § 10(d) (1982). The joint committee’s powers derive from section 40(a) of the contract, which provides: “In the event of any dispute with reference to the interpretation, application or breach of any terms contained in this contract,” the matter shall be arbitrated. Section 3(a) of the collective bargaining agreement, the section allegedly violated, provides:
The Employers recognize the Union as the exclusive collective bargaining agent for all of the lithographic... production employees in the plants or departments of the employers within the Union’s territorial jurisdiction.
Appellant argues that the arbitrator fashioned a work assignment remedy, but since the contract grants only representation rights and the award goes beyond representation, it is void and unenforceable.
Where the parties have provided for interpretation of their collective bargaining agreement by arbitration, the courts will defer to the arbitrator’s interpretation. See United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960). Courts will vacate an award only if it is not based on a construction of the contract. Mere disagreement with the construction of the contract is not enough to disturb the award. See id. at 599, 80 S.Ct. at 1362.
S & B is arguing with the interpretation of the contract, not the basis of the committee's decision or its power to make the decision. The committee clearly interpreted section 3(a) of the collective bargaining agreement, which it had the power to interpret under section 40(a) thereof. While S & B argues that the arbitrator’s interpretation of the contract was incorrect, the error cannot be remedied by the courts. The court is limited to deciding whether Local One
is making a claim which on its face is governed by the contract____ The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim.
United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960) (footnote omitted); see also United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960) (“[T]he judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made____ Doubts should be resolved in favor of coverage.”).
Appellant also argues that the amended award conflicts with the prior N.L.R.B. ruling on the appropriate collective bargaining unit. N.L.R.B. rulings take precedence over arbitrator’s rulings. Carey v. Westinghouse Electric Corp., 375 U.S. 261, 272, 84 S.Ct. 401, 409, 11 L.Ed.2d 320 (1964); see Vidtronics Company, 269 N.L.R.B. 133, 141 (1984).
The N.L.R.B. found that the AAA employees and the S & B employees were separate bargaining units. That finding “ ‘does not per se preclude the employer from adding to, or subtracting from, the employees’ work assignments.’ ” Carey, 375 U.S. at 269, 84 S.Ct. at 408 (quoting Plumbing Contractors Association, 93 N.L.R.B. 1081, 1087 (1951)). It does, however, indicate that the arbitrator’s amended award, while it might direct employer action legitimately falling within the category of work assignments, cannot grant relief that requires or presupposes the AAA and S & B employees to be within the same bargaining unit, a point that becomes important later.
Appellant finally contends that the award is contrary to sections 8(b)(1)(A), (2), and (3). While S & B does not seem to have squarely presented the issue of legality to the lower court, this court, in the interests of justice, can consider the claim. See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); LaBruna v. U.S. Marshall, 665 F.2d 439, 442 (2d Cir.1981); see also Davis v. Musler, 713 F.2d 907, 917 (2d Cir.1983) (Van Graafeiland, J., concurring) (collecting cases). We feel that the standard is met where, as here, the enforcement of the arbitration award could affect the rights of the nonunion employees, as well as AAA.
When an arbitrator’s award is against a public policy which is well defined and dominant, the award is unenforceable. See W.R. Grace & Co. v. Local Union 759, International Union of the United Rubber, Cork, Linoleum & Plastic Workers of America, 461 U.S. 757, 766, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983). The NLRA represents such a public policy. See, e.g., Perma-Line Corporation of America v. Sign Pictorial and Display Union, Local 230, 639 F.2d 890, 894-95 (2d Cir.1981) (clause of collective bargaining agreement in violation of NLRA and arbitrator’s award based thereon would be vacated); General Warehousemen and Helpers Local 767 v. Standard Brands, Inc., 579 F.2d 1282, 1293 (5th Cir.1978) (in banc) (violation of § 9(a) rights), cert. dismissed, 441 U.S. 957, 99 S.Ct. 2420, 60 L.Ed.2d 1075 and 443 U.S. 913, 99 S.Ct. 3103, 61 L.Ed.2d 877 (1979); Glendale Manufacturing Co. v. Local No. 520, Int’l Ladies’ Garment Workers’ Union, 283 F.2d 936 (4th Cir.1960) (arbitration award that would cause employer to violate employees’ § 7 rights was not enforceable), cert. denied, 366 U.S. 950, 81 S.Ct. 1902, 6 L.Ed.2d 1243 (1961); cf. Sperry Systems Management Division v. N.L.R.B., 492 F.2d 63, 70 (2d Cir.) (union’s attempt to enforce arbitrator’s award which violated § 7 rights of employees was itself a failure to bargain collectively), cert. denied, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974).
We start with the general proposition that “an employer commits the unfair labor practices of interfering with employees’ § 7 rights and supporting a union in violation of § 8(a)(1) and (a)(2) when it imposes on employees of one unit the contract and bargaining agent of another unit.” Sperry Systems Management Division, 492 F.2d at 69.
Courts and the N.L.R.B. have held that to bind a non-signatory company to a collective bargaining agreement, both single employer and single bargaining unit status must be found. See South Prairie Construction Co. v. Local No. 627, International Union of Operating Engineers, 425 U.S. 800, 805, 96 S.Ct. 1842, 1844, 48 L.Ed.2d 382 (1976) (per curiam); Carpenters’ Local Union No. 1478 v. Stevens, 743 F.2d 1271 (9th Cir.1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2018, 85 L.Ed.2d 300 (1985); Carpenters Local Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 505 (5th Cir.1982), cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983); Frank N. Smith Associates, Inc., 194 N.L. R.B. 212, 218 (1971); see Gerace Construction, Inc., 193 N.L.R.B. 645, 646 (1971); Central New Mexico Chapter, 152 N.L. R.B. 1604, 1608 (1965). The single bargaining unit requirement protects the section 7 rights of the nonunion employees, since binding the employer necessarily affects its employees’ rights. Pratt-Farnsworth, Inc., 690 F.2d at 507. The Board therefore conducts a separate bargaining unit inquiry, which is guided by the principle of protecting the employees’ section 7 rights, see 29 U.S.C. § 159(b) (1982); 18C T. Kheel, Business Organizations: Labor Law § 14.01[1], at 14-2 (1982); id. § 14.-01[2], at 14-9, to assure that the asserted contractual rights of the union are consistent with the employees’ statutory rights, cf. Sperry Systems Management Division, 492 F.2d at 69 (imposing contract and bargaining agent of one unit on a different unit violates §§ 8(a)(1) and (2)); Cal-Fin, 217 N.L.R.B. 871, 874 (1975) (when nonmajority union and employer enter into a collective bargaining agreement, employer violates §§ 8(a)(1) and (2) and union violates § 8(b)(1)(A)). If, therefore, the collective bargaining agreement in this case requires that the AAA employees be covered by the agreement, under these precedents it is illegal under section 7 of the NLRA.
The theory of Local One, on the other hand, is that a finding of single employer status suffices to force the non-union company, AAA, to recognize the contract. AAA having been bound to the contract, the case becomes merely a work assignment problem. However, work assignment cases are distinguishable because in those cases one company has in fact signed the contracts at issue, and the dispute involves only that company. See e.g., Carey v. Westinghouse Electric Corp., 375 U.S. 261, 262, 84 S.Ct. 401, 404, 11 L.Ed.2d 320 (1964); N.L.R.B. v. Radio and Television Broadcast Engineers Union, Local 1212, 364 U.S. 573, 574, 81 S.Ct. 330, 331-32, 5 L.Ed.2d 302 (1961); N.L.R.B. v. New York Lithographers and Photoengravers’ Union No. 1P, 600 F.2d 336, 338 (2d Cir.1979); In re Local 26, International Fur and Leather Workers Union of the United States and Canada, 90 N.L.R.B. 1379, 1380 (1950). Here a signature by a second company (AAA) is imputed. As the Fifth Circuit noted in Pratt-Famsworth, “[ojnly where the employees do constitute an appropriate unit will the non-signatory firm be bound to the collective bargaining agreement entered into between the signatory firm and the union.” 690 F.2d at 508.
In Pratt-Farnsworth, the plaintiffs, two unions, sued two construction companies it claimed were operated as a “double-breasted” operation. A double-breasted operation is one in which one subcontractor operates a union company that bids on union contracts and a nonunion company that bids on nonunion contracts. Id. at 497 & n. I. The unions sought, inter alia, to apply their collective bargaining agreement with the union company to the nonunion company. The Fifth Circuit explained that:
A finding of single employer status does not by itself mean that all the subentities comprising the single employer will be held bound by a contract signed only by one. Instead, having found that two employers constitute a single employer for purposes of the NLRA, the Board then goes on to make a further determination whether the employees of both constitute an appropriate bargaining unit____ [E]ven if two firms are a single employer, a union contract signed by one would not bind both unless the employees of both constituted a single bargaining unit.
Id. at 505. The court noted that this dual requirement protects the section 7 rights of the nonunion employees. Id. at 507.
The Fifth Circuit is not alone in its position. See, e.g., South Prairie Construction Co., 425 U.S. at 802-04, 96 S.Ct. at 1843-44 (affirming D.C. Circuit’s reversal of N.L.R.B. decision on single employer status, but vacating the circuit court’s findings on single bargaining unit as an invasion of the N.L.R.B.’s authority); N.L.R.B. v. Al Bryant, Inc., 711 F.2d 543, 550 (3d Cir.1983) (requiring both single employer and single bargaining unit to bind the nonunion company to the union contract), cert. denied, 464 U.S. 1039, 104 S.Ct. 699, 79 L.Ed.2d 165 (1984); Road Sprinkler Fitters Local Union No. 669 v. N.L.R.B., 676 F.2d 826, 830 (D.C.Cir.1982) (same); N.L. R.B. v. Don Burgess Construction Corp., 596 F.2d 378, 386 (9th Cir.) (same), cert. denied, 444 U.S. 940, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979). Similarly, we have previously enforced an order of the N.L.R.B. requiring four related companies to bargain with a single union because the companies were a single employer and their employees constituted a single bargaining unit. See N.L.R.B. v. A.K. Allen Co., 252 F.2d 37, 38 (2d Cir.1958).
The N.L.R.B. here has found separate bargaining units. In the face of that finding, Pratt-Farnsworth would call for a determination that the joint committee had no contractual authority to hold AAA to the terms of the union agreement. Without a finding of both single employer and single collective bargaining unit, the joint committee exceeded its authority in purporting to affect the rights of the nonunion employees with respect to the nonunion employer.
The Third Circuit has implied that the application of the single employer/single bargaining unit doctrine might be limited to the construction industry. See Al Bryant, Inc., 711 F.2d at 550. Other circuits however have applied the doctrine in nonconstruction cases, see, e.g., Brotherhood of Teamsters, Local No. 70 v. California Consolidators, Inc., 693 F.2d 81, 82-83 (9th Cir.1982) (per curiam) (trucking), cert. denied, 469 U.S. 887, 105 S.Ct. 263, 83 L.Ed.2d 199 (1984); N.L.R.B. v. Royal Oak Tool & Machine Co., 320 F.2d 77, 79 (6th Cir.1963) (manufacturing), as has the N.L. R. B., see, e.g., Western Union Corp., 224 N.L.R.B. 274, 274 (1976) (installation, maintenance and operation of equipment), affirmed sub nom. United Telegraph Workers, AFL-CIO v. N.L.R.B., 571 F.2d 665 (D.C.Cir.), cert. denied, 439 U.S. 827, 99 S. Ct. 101, 58 L.Ed.2d 121 (1978); General Envelope Co., 222 N.L.R.B. 10, 10 (1976) (commercial printing); Dixie Belle Mills, Inc., 139 N.L.R.B. 629, 630 (1962) (manufacturing). Moreover, the policies underlying this doctrine apply with greater force in this case than in the usual double-breasted construction company case.
In the construction industry, there exist two markets, union and nonunion. Companies therefore need both union and nonunion subsidiaries to bid on every available project, despite the fact that the work is otherwise identical. See Carpenters’ Local Union No. 1478 v. Stevens, 743 F.2d 1271, 1275 (9th Cir.1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2018, 85 L.Ed.2d 300 (1985). In this case, however, the work performed by AAA and S & B is substantially different. AAA performs low quality printing in mass quantities. S & B is a high quality printer. It may well be that low quality printing could not be done profitably on the terms of the Local One contract.
In any event, the single employer doctrine is the justification asserted by the joint committee for applying the Local One contract to AAA. As a matter of law, however, it is against public policy to bind a non-signatory company where the employees of both companies do not constitute a single collective bargaining unit. Accordingly, the committee award cannot stand on the basis of the single employer doctrine in the face of an unchallenged N.L.R.B. determination that the lithographic production employees of S & B and AAA do not constitute a single bargaining unit.
Prior cases in this circuit support our holding, and have consistently guarded against attempts by unions to gain representation of separate bargaining units through methods other than elections. In Sperry Systems Management Division v. N.L.R.B., 492 F.2d 63 (2d Cir.), cert. denied, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974), this court held that “covert attempts to subvert the Board’s orders regarding the proper bargaining unit” were illegal. Id. at 68-69. In that case, a union representing New York employees sought to extend its jurisdiction to include California nonunion employees. An arbitrator ruled that the contract applied to all company plants, but that its extension to the California employees would violate their section 7 rights. He ordered that the terms of employment provisions be applied to the California workers, but not the representation clauses. Id. at 65. At the same time, the union lost a representation election at the California plant. The union then sought to enforce the arbitration award. The court held that the attempt to enforce the arbitration award was “a sub rosa attempt to gain... de facto recognition as bargaining agent of the [California] employees,” id. at 68, because the parties had agreed that the California employees were a separate bargaining unit, and the union’s reason for insisting that the arbitration award be enforced, protecting the job security of its New York members, was not credible, id.
Similarly, in Welch Scientific Company v. N.L.R.B., 340 F.2d 199 (2d Cir.1965), a company sought to apply an existing union contract to a new plant where the employees were not an accretion to the existing bargaining group and the new unit had chosen a different union representative. We held that the company had committed an unfair labor practice because it interfered with the employees’ right to choose their own representative. Id. at 202-03.
Again, in N.L.R.B. v. Masters-Lake Success, Inc., 287 F.2d 35 (2d Cir. 1961) (per curiam), we enforced an N.L.R.B. order finding that an employer committed an unfair labor practice by applying an existing exclusive collective bargaining agreement to a new store’s employees because they were a separate bargaining unit that should be allowed to make its own free choice of representative. Id. at 36.
Finally, looking past the plain language of the joint committee’s decision, the argument could be made that the arbitration award and district court enforcement order could be affirmed on the basis of the alter ego doctrine. We would and do reject any such argument.
The alter ego doctrine is designed to defeat attempts to avoid a company’s union obligations through a sham transaction or technical change in operations. See Pratt-Farnsworth, Inc., 690 F.2d at 508. The key factors to be weighed in an alter ego analysis are “whether the two enterprises have substantially identical management, business purpose, operation, equipment, customers, supervision, and ownership.” Goodman Piping Products, Inc. v. N.L.R.B., 741 F.2d 10, 11 (2d Cir.1984) (per curiam); see Crawford Door Sales Co., 226 N.L.R.B. 1144, 1144 (1976).
A number of facts require a holding that the arbitrator’s award cannot stand as an alter ego finding. Primarily, such a basis would be in direct conflict with the findings of the N.L.R.B. on the unit clarification proceeding, see supra note 4, as well as its conclusion that the companies operate separately. Though the inquiries are separate, the N.L.R.B. findings are highly relevant to the alter ego question. See United Telegraph Workers, AFL-CIO v. N.L.R.B., 571 F.2d 665, 668 (D.C.Cir.), cert. denied, 439 U.S. 827, 99 S.Ct. 101, 58 L.Ed.2d 121 (1978). We also note that the two companies functioned as ongoing business entities prior to their acquisition by Toler-Kahn, and that both continue in business, performing substantially the same work as before the acquisition. While this may not necessarily preclude the use of the alter ego doctrine, in this case it weighs significantly against an alter ego finding. See Pratt-Farnsworth, Inc., 690 F.2d at 508 n. 8.
CONCLUSION
The grant of summary judgment to plaintiff-appellee confirming the arbitration award is reversed, and the case is remanded for further proceedings consistent with this opinion.
. S & B is a member of Metropolitan Lithographers Association (“MLA"), an employer’s collective bargaining association. Local One represents the employees of S & B- under a contract negotiated by the MLA and Local One.
. The background presented here is drawn from findings made in two arbitrators’ decisions and a related N.L.R.B. unit clarification proceeding, hereinafter described, and from uncontradicted affidavits.
. Originally the union sought to have all the AAA employees included in Local One, but later amended its complaint to include only the four AAA lithographic production employees.
. The N.L.R.B.’s reasons for
Question: What is the number of the section from the title of the second 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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sc_certreason
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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 identify the reason, if any, given by the court for granting the petition for certiorari.
MOORMAN MANUFACTURING CO. v. BAIR, DIRECTOR OF REVENUE OF IOWA
No. 77-454.
Argued March 21, 1978
Decided June 15, 1978
Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Marshall, and RehNQUist, JJ., joined. BreNNAN, J., post, p. 281, and BlackmuN, J., post, p. 282, filed dissenting opinions. Powell, J., filed a dissenting opinion, in which BlackmuN, J., joined, post, p. 283.
Donald K. Barnes argued the cause for appellant. With him on the briefs were Walter R. Brown, John V. Donnelly, Carl O. Schmiedeskamp, and Robert W. Cook.
Harry M. Griger, Assistant Attorney General of Iowa, argued the cause for appellee. With him on the brief was Richard C. Turner, Attorney General.
Ernest S. Christian, Jr., and Allan Abbot Tuttle filed a brief for the Committee on State Taxation of the Council of State Chambers of Commerce as amicus curiae urging reversal.
James L. Rogers, John R. Phillips, and Philip B. Kurland filed a brief for the Iowa Manufacturers Assn, et al. as amici curiae urging affirmance.
Wiliam D. Dexter, James A. Redden, Attorney General of Oregon, and Theodore W. deLooze, Assistant Attorney General, filed a brief for the Multistate Tax Comm’n et al. as amici curiae.
Mr. Justice Stevens
delivered the opinion of the Court.
The question in this case is whether the single-factor sales formula employed by Iowa to apportion the income of an interstate business for income tax purposes is prohibited by the Federal Constitution.
I
Appellant, Moorman Manufacturing Co., is an Illinois corporation engaged in the manufacture and sale of animal feeds. Although the products it sells to Iowa customers are manufactured in Illinois, appellant has over 500 salesmen in Iowa and it owns six warehouses in the State from which deliveries are made to Iowa customers. Iowa sales account for about 20% of appellant's total sales.
Corporations, both foreign and domestic, doing business in Iowa are subject to the State’s income tax. The taxable income for federal income tax purposes, with certain adjustments, is treated as the corporation’s “net income” under the Iowa statute. If a corporation’s business is not conducted entirely within Iowa, the statute imposes a tax only on the portion of its income “reasonably attributable” to the business within the State.
There are essentially two steps in computing the share of a corporation’s income “reasonably attributable” to Iowa. First, certain income, “the geographical source of which is easily identifiable,” is attributed entirely to a particular State. Second, if the remaining income is derived from the manufacture or sale of tangible personal property, “the part thereof attributable to business within the state shall be in that proportion which the gross sales made within the state bear to the total gross sales.” This is the single-factor formula that appellant challenges in this case.
If the taxpayer believes that application of this formula subjects it to taxation on a greater portion of its net income than is “reasonably attributable” to business within the State, it may file a statement of objections and submit an alternative method of apportionment. If the evidence submitted by the taxpayer persuades the Director of Revenue that the statute is “inapplicable and inequitable” as applied to it, he may recalculate the corporation’s taxable income.
During the fiscal years 1949 through 1960, the State Tax Commission allowed appellant to compute its Iowa income on the basis of a formula consisting of three, equally weighted factors — property, payroll, and sales — rather than the formula prescribed by statute. For the fiscal years 1961 through 1964, appellant complied with a directive of the State Tax Commission to compute its income in accordance with the statutory formula. Since 1965, however, appellant has resorted to the three-factor formula without the consent of the commission.
In 1974, the Iowa Director of Revenue revised appellant’s tax assessment for the fiscal years 1968 through 1972. This assessment was based on the statutory formula, which produced a higher percentage of taxable income than appellant, using the three-factor formula, had reported on its return in each of the disputed years. The higher percentages, of course, produced a correspondingly greater tax obligation for those years.
After the Tax Commission had rejected Moorman’s appeal from the revised assessment, appellant challenged the constitutionality of the single-factor formula in the Iowa District Court for Polk County. That court held the formula invalid under the Due Process Clause of the Fourteenth Amendment and the Commerce Clause. The Supreme Court of Iowa reversed, holding that an apportionment formula that is necessarily only a rough approximation of the income properly attributable to the taxing State is not subject to constitutional attack unless the taxpayer proves that the formula has produced an income attribution “out of all proportion to the business transacted” within the State. The court concluded that appellant had not made such a showing.
We noted probable jurisdiction of Moorman’s appeal, 434 U. S. 953, and now affirm.
II
Appellant contends that Iowa’s single-factor formula results in extraterritorial taxation in violation of the Due Process Clause. This argument rests on two premises: first, that appellant’s Illinois operations were responsible for some of the profits generated by sales in Iowa; and, second, that a formula that reaches any income not in fact earned within the borders of the taxing State violates due process. The first premise is speculative and the second is foreclosed by prior decisions of this Court.
Appellant does not suggest that it has shown that a significant portion of the income attributed to Iowa in fact was generated by its Illinois operations; the record does not contain any separate accounting analysis showing what portion of appellant’s profits was attributable to sales, to manufacturing, or to any other phase of the company’s operations. But appellant contends that we should proceed on the assumption that at least some portion of the income from Iowa sales was generated by Illinois activities.
Whatever merit such an assumption might have from the standpoint of economic theory or legislative policy, it cannot support a claim in this litigation that Iowa in fact taxed profits not attributable to activities within the State during the years 1968 through 1972. For all this record reveals, appellant’s manufacturing operations in Illinois were only marginally profitable during those years and the high-volume sales to Iowa customers from Iowa warehouses were responsible for the lion’s share of the income generated by those sales. Indeed, a separate accounting analysis might have revealed that losses in Illinois operations prevented appellant from earning more income from exploitation of a highly favorable Iowa market. Yet even were we to assume that the Illinois activities made some contribution to the profitability of the Iowa sales, appellant’s claim that the Constitution invalidates an apportionment formula whenever it may result in taxation of some income that did not have its source in the taxing State is incorrect.
The Due Process Clause places two restrictions on a State’s power to tax income generated by the activities of an interstate business. First, no tax may be imposed unless there is some minimal connection between those activities and the taxing State. National Bellas Hess, Inc. v. Department of Revenue, 386 U. S. 753, 756. This requirement was plainly satisfied here. Second, the income attributed to the State for tax purposes must be rationally related to “values connected with the taxing State.” Norfolk & Western R. Co. v. State Tax Comm’n, 390 U. S. 317, 325.
Since 1934 Iowa has used the formula method of computing taxable income. This method, unlike separate accounting, does not purport to identify the precise geographical source of a corporation’s profits; rather, it is employed as a rough approximation of a corporation’s income that is reasonably related to the activities conducted within the taxing State. The single-factor formula used by Iowa, therefore, generally will not produce a figure that represents the actual profits earned within the State. But the same is true of the Illinois three-factor formula. Both will occasionally over-reflect or under-reflect income attributable to the taxing State. Yet despite this imprecision, the Court has refused to impose strict constitutional restraints on a State’s selection of a particular formula.
Thus, we have repeatedly held that a single-factor formula is presumptively valid. In Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, for example, the taxpayer challenged Connecticut’s use of such a formula to apportion its net income. Underwood’s manufacturing operations were conducted entirely within Connecticut. Its main office, however, was in New York City and it had branch offices in many States where its typewriters were sold and repaired. Applying a single-factor property formula, Connecticut taxed 47% of the company’s net income. Claiming that 97% of its profits were generated by transactions in tangible personal property outside Connecticut, Underwood contended that the formula taxed “income arising from business conducted beyond the boundaries of the State” in violation of the Due Process Clause. Id., at 120.
Rejecting this claim, the Court noted that Connecticut “adopted a method of apportionment which, for all that appears in this record, reached, and was meant to reach, only the profits earned within the State,” id., at 121, and held that the taxpayer had failed to carry its burden of proving that “the method of apportionment adopted by the State was inherently arbitrary, or that its application to this corporation produced an unreasonable result.” Ibid, (footnote omitted)
In individual cases, it is true, the Court has found that the application of a single-factor formula to a particular taxpayer violated due process. See Hans Rees’ Sons, Inc. v. North Carolina ex rel. Maxwell, 283 U. S. 123; Norfolk & Western R. Co. v. State Tax Comm’n, supra. In Hans Rees’, for example, the Court concluded that proof that the formula produced a tax on 83% of the taxpayer’s income when only 17% of that income actually had its source in the State would suffice to invalidate the assessement under the Due Process Clause. But in neither Hans Rees’ nor Norfolk & Western did the Court depart from the basic principles that the States have wide latitude in the selection of apportionment formulas and that a formula-produced assessment will only be disturbed when the taxpayer has proved by “clear and cogent evidence” that the income attributed to the State is in fact “out of all appropriate proportions to the business transacted ... in that State,” 283 U. S., at 135, or has “led to a grossly distorted result,” 390 U. S., at 326.
General Motors Corp. v. District of Columbia, 380 U. S. 553, on which appellant relies, does not suggest a contrary result. In that case the Court held that a regulation prescribing a single-factor sales formula was not authorized by the District of Columbia Code. It concluded that the formula violated the statutory requirement that the net income of a corporation doing business both inside and outside the District must be deemed to arise from “sources” both inside and outside the District. But that statutory requirement has no counterpart in the Constitution, and the Court in General Motors made clear that it did “not mean to take any position on the constitutionality of a state income tax based on the sales factor alone.” Id., at 561.
The Iowa statute afforded appellant an opportunity to demonstrate that the single-factor formula produced an arbitrary result in its case. But this record contains no such showing and therefore the Director’s assessment is not subject to challenge under the Due Process Clause.
Ill
Appellant also contends that during the relevant years Iowa and Illinois imposed a tax on a portion of the income derived from the Iowa sales that was also taxed by the other State in violation of the Commerce Clause. Since most States use the three-factor formula that Illinois adopted in 1970, appellant argues that Iowa’s longstanding single-factor formula must be held responsible for the alleged duplication and declared unconstitutional. We cannot agree.
In the first place, this record does not establish the essential factual predicate for a claim of duplicative taxation. Appellant’s net income during the years in question was approximately $9 million. Since appellant did not prove the portion derived from sales to Iowa customers, rather than sales to customers in other States, we do not know whether Illinois and Iowa together imposed a tax on more than 100% of the relevant net income. The income figure that appellant contends was subject to duplicative taxation was computed by comparing gross sales in Iowa to total gross sales. As already noted, however, this figure does not represent actual profits earned from Iowa sales. Obviously, all sales are not equally profitable. Sales in Iowa, although only 20%> of gross sales, may have yielded a much higher percentage of appellant’s profits. Thus, profits from Iowa sales may well have exceeded the $2.5 million figure that appellant contends was taxed by the two States. If so, there was no duplicative taxation of the net income generated by Iowa sales. In any event, on this record its existence is speculative.
Even assuming some overlap, we could not accept appellant's argument that Iowa, rather than Illinois, was necessarily at fault in a constitutional sense. It is, of course, true that if Iowa had used Illinois’ three-factor formula, a risk of duplication in the figures computed by the two States might have been avoided. But the same would be true had Illinois used the Iowa formula. Since the record does not reveal the sources of appellant’s profits, its Commerce Clause claim cannot rest on the premise that profits earned in Illinois were included in its Iowa taxable income and therefore the Iowa formula was at fault for whatever overlap may have existed. Rather, the claim must be that even if the presumptively valid Iowa formula yielded no profits other than those properly attributable to appellant’s activities within Iowa, the importance of avoiding any risk of duplication in the taxable income of an interstate concern justifies invalidation of the Iowa statute.
Appellant contends that, to the extent this overlap is permitted, the corporation that does business in more than one State shoulders a tax burden not shared by those operating entirely within a State. To alleviate the burden, appellant invites us to hold that the Commerce Clause itself, without implementing legislation by Congress, requires Iowa to compute corporate net income under the Illinois equally weighted, three-factor formula. For the reasons that follow, we hold that the Constitution does not require such a result.
The only conceivable constitutional basis for invalidating the Iowa statute would be that the Commerce Clause prohibits any overlap in the computation of taxable income by the States. If the Constitution were read to mandate such precision in interstate taxation, the consequences would extend far beyond this particular case. For some risk of duplicative taxation exists whenever the States in which a corporation does business do not follow identical rules for the division of income. Accepting appellant’s view of the Constitution, therefore, would require extensive judicial lawmaking. Its logic is not limited to a prohibition on use of a single-factor apportionment formula. The asserted constitutional flaw in that formula is that it is different from that presently employed by a majority of States and that difference creates a risk of duplicative taxation. But a host of other division-of-income problems create precisely the same risk and would similarly rise to constitutional proportions.
Thus, it would be necessary for this Court to prescribe a uniform definition of each category in the three-factor formula. For if the States in which a corporation does business have different rules regarding where a “sale” takes place, and each includes the same sale in its three-factor computation of the corporation’s income, there will be duplicative taxation despite the apparent identity of the formulas employed. A similar risk of multiple taxation is created by the diversity among the States in the attribution of “nonbusiness” income, generally defined as that portion of a taxpayer’s income that does not arise from activities in the regular course of its business. Some States do not distinguish between business and non-business income for apportionment purposes. Other States, however, have adopted special rules that attribute nonbusiness income to specific locations. Moreover, even among the latter, there is diversity in the definition of nonbusiness income and in the designation of the locations to which it is deemed attributable. The potential for attribution of the same income to more than one State is plain.
The prevention of duplicative taxation, therefore, would require national uniform rules for the division of income. Although the adoption of a uniform code would undeniably advance the policies that underlie the Commerce Clause, it would require a policy decision based on political and economic considerations that vary from State to State. The Constitution, however, is neutral with respect to the content of any uniform rule. If division-of-income problems were to be constitutionalized, therefore, they would have to be resolved in the manner suggested by appellant for resolution of formula diversity — the prevalent practice would be endorsed as the constitutional rule. This rule would at best be an amalgam of independent state decisions, based on considerations unique to each State. Of most importance, it could not reflect the national interest, because the interests of those States whose policies are subordinated in the quest for uniformity would be excluded from the calculation.
While the freedom of the States to formulate independent policy in this area may have to yield to an overriding national interest in uniformity, the content of any uniform rules to which they must subscribe should be determined only after due consideration is given to the interests of all affected States. It is clear that the legislative power granted to Congress by the Commerce Clause of the Constitution would amply justify the enactment of legislation requiring all States to adhere to uniform rules for the division of income. It is to that body, and not this Court, that the Constitution has committed such policy decisions.
Finally, it would be an exercise in formalism to declare appellant’s income tax assessment unconstitutional based on speculative concerns with multiple taxation. For it is evident that appellant would have had no basis for complaint if, instead of an income tax, Iowa had imposed a more burdensome gross-receipts tax on the gross receipts from sales to Iowa customers. In Standard Pressed Steel Co. v. Washington Revenue Dept., 419 U. S. 560, the Court sustained a tax on the entire gross receipts from sales made by the taxpayer into Washington State. Because receipts from sales made to States other than Washington were not included in Standard Pressed Steel’s taxable gross receipts, the Court concluded that the tax was “ 'apportioned exactly to the activities taxed.’ ” Id., at 564.
In this case appellant’s actual income tax obligation was the rough equivalent of a 1 % tax on the entire gross receipts- from its Iowa sales. Thus, the actual burden on interstate commerce would have been the same had Iowa imposed a plainly valid gross-receipts tax instead of the challenged income tax. Of more significance, the gross-receipts tax sustained in Standard Pressed Steel and General Motors Corp. v. Washington, 377 U. S. 436, is inherently more burdensome than the Iowa income tax. It applies whether or not the interstate concern is profitable and its imposition may make the difference between profit and loss. In contrast, the income tax is only imposed on enterprises showing a profit and the tax obligation is not heavy unless the profits are high.
Accordingly, until Congress prescribes a different rule, Iowa is not constitutionally prohibited from requiring taxpayers to prove that application of the single-factor formula has produced arbitrary results in a particular case.
The judgment of the Iowa Supreme Court is affirmed.
So ordered.
The statute provides:
“Interest, dividends, rents, and royalties (less related expenses) received in connection with business in the state, shall be allocated to the state, and where received in connection with business outside the state, shall be allocated outside of the state.” Iowa Code §422.33 (1) (a) (1977).
In describing this section, the Iowa Supreme Court stated that “certain income, the geographical source of which is easily identifiable, is allocated to the appropriate state.” 254 N. W. 2d 737, 739. Thus, for example, rental income would be attributed to the State where the property was located. And in appellant’s case, this section operated to exclude its investment income from the tax base.
Iowa Code §422.33 (1) (6) (1977).
The operation of the two formulas may be briefly described. The single-factor sales formula yields a percentage representing a ratio of gross sales in Iowa to total gross sales. The three-factor formula yields a percentage representing an average of three ratios: property within the State to total property, payroll within the State to total payroll, and sales within the State to total sales.
These percentages are multiplied by the adjusted total net income to arrive at Iowa taxable net income. This net income figure is then multiplied by the tax rate to compute the actual tax obligation of the taxpayer.
For those years the two formulas resulted in the following percentages:
For a description of how these percentages are computed, see n. 3, supra.
Thus, in 1968, for example, Moorman’s three-factor computation resulted in a tax of $81,466, whereas the Director’s single-factor computation resulted in a tax of $121,363.
See, e. g., Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113; Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm’n, 266 U. S. 271; Ford Motor Co. v. Beauchamp, 308 U. S. 331.
See also Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm’n, supra; Norfolk & Western R. Co. v. North Carolina ex rel. Maxwell, 297 U. S. 682.
The Court, it is true, expressed doubts about the wisdom of the economic assumptions underlying the challenged formula and noted that its use in the context of the more prevalent three-factor formula would not advance the policies underlying the Commerce Clause. But these considerations were deemed relevant to the question of legislative intent, not constitutional interpretation.
In his concurring opinion, Justice McCormick of the Iowa Supreme Court made this point:
“In the present case, Moorman did not attempt to prove the amount of its actual net income from Iowa, activities in the years involved. Therefore no basis was presented for comparison of the corporation’s Iowa income and the income apportioned to Iowa under the formula. In this era of sophisticated accounting techniques, it should not be impossible for a unitary corporation to prove its actual income from activities in a particular state. However, Moorman showed only that its tax liability would be substantially less if Iowa employed a three-factor apportionment formula. We have no basis to assume that the three-factor formula produced a result equivalent to the corporation’s actual income from Iowa activities. Having failed to establish a basis for comparison of its actual income in Iowa with the income apportioned to Iowa under the single-factor formula, Moorman did not demonstrate that the single-factor formula produced a grossly unfair result. Thus it did not prove unconstitutionality of the formula as applied.” 254 N. W. 2d, at 757.
Since Illinois did not adopt its income tax until 1970, there was no possibility of any overlap until that year. The alleged overlap in the three years following Illinois’ enactment of an income tax was 34.38% in 1970, 34.51% in 1971, and 37.01% in 1972.
Since there is no evidence in the record regarding the percentages of its total net income taxed in the other States in which it did business during those years, any claim that appellant was taxed on more than 100% of its total net income would also be speculative.
Appellant also contends that the Iowa formula discriminates against interstate commerce in violation of the Commerce Clause and the Equal Protection Clause, because an Illinois corporation doing business in Iowa must pay tax on a greater portion of its income than a local Iowa company, and an Iowa company doing business in Illinois will pay tax on less of its income than an Illinois corporation doing business in Iowa. The simple answer, however, is that whatever disparity may have existed is not attributable to the Iowa statute. It treats both local and foreign concerns with an even hand; the alleged disparity can only be the consequence of the combined effect of the Iowa and Illinois statutes, and Iowa is not responsible for the latter.
Thus, appellant’s “discrimination” claim is simply a way of describing the potential consequences of the use of different formulas by the two States. These consequences, however, could be avoided by the adoption of any uniform rule; the “discrimination” does not inhere in either State’s formula.
Thus, while some States such as Iowa assign sales by destination, “sales can be assigned to the state ... of origin, the state in which, the sales office is located, the state where an employee of the business making the sale carries on his activities or where the order is first accepted, or the state in which an interstate shipment is made.” Note, State Taxation of Interstate Businesses and the Multistate Tax Compact: The Search for a Delicate Uniformity, 11 Colum. J. Law & Soc. Prob. 231, 237 n. 20 (1975) (citation omitted).
See, e. g., Uniform Division of Income for Tax Purposes Act § 1 (a).
Thus, one State in which a corporation does business may consider a particular type of income business income and simply include it in its apportionment formula; a second State may deem that same income nonbusiness income and attribute it to itself as the “commercial domicile” of the company; and a third State, though also considering it nonbusiness income, may attribute it to itself as the “legal domicile” of the company. See Note, supra n. 13, at 239.
This process is especially unsettling if a longstanding tax policy of one State, such as Iowa’s, becomes the object of constitutional attack simply because it is different from the recently adopted practice of its neighbor.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
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".
PARADISE v. VOGTLANDISCHE MASCHINEN-FABRIK et al., and three other cases.
No. 6699.
Circuit Court of Appeals, Third Circuit.
Aug. 30, 1938.
Alden D. Redfield, of New York City, for appellants.
Max D. Ordmann, of New York City, for appellees.
Before DAVIS and BIGGS,, Circuit Judges, and MARIS, District Judge.
Appointed Circuit Judge June 24, 1938.
MARIS, Circuit Judge.
Three suits in equity were brought in the District Court for New Jersey by Vogtlandische Maschinen-Fabrik, a German corporation, against Nathan Kosminsky, L. D. Beiser and David Paradise. Alfred Rietzsch, Administrator for Robert Zahn, a German decedent, joined in two of these suits and he alone brought a fourth suit against the three defendants jointly. The suits charged infringement of certain patents owned by one or another of the plaintiffs and sought injunctions and an accounting. The court below held one of the patents valid but not infringed and three other patents valid and infringed. Upon appeal to this court the decree was reversed insofar as it held the first patent not infringed. Reitzsch v. Paradis, 3 Cir., 83 F.2d 273. Thereafter the court below entered interlocutory decrees in each suit holding the patents valid and infringed and directing the defendants to account.
The defendants having failed to file their accounts with a special master as directed by the decree, an order was entered upon them to show cause why they should not be adjudged guilty of contempt. In defense of their failure to account the defendants urged that the District Court had no jurisdiction of the plaintiffs because the latter had never appeared or subjected themselves to its process and that the suits had abated because indispensable parties, the trustees in bankruptcy of the corporate plaintiff, had not been joined. The cases were thereupon referred to a special master, who, after a number of hearings, filed a report in which he found that the defendant’s contentions were without merit and that they had shown no just reason for their failure to account. The defendants filed exceptions to the special master’s report but it was confirmed by the court below which directed the defendants to file their accounts by a day certain and in case they should fail to do so directed that a writ of attachment should issue against them. A single order was entered by the court, captioned in all four cases. From that order the present appeal was taken by the defendants.
Upon this appeal the defendants urge that the court below erred in refusing to dismiss the bills for want of jurisdiction. They contend that the plaintiffs, a German corporation and an individual German resident, have never appeared in the suits or subjected themselves to the process of the court. This contention, a highly technical one, seems to be largely based upon the fact that the bills of complaint were verified by Robert Reiner who, the defendants contend, was not sufficiently authorized by the plaintiffs to do so. This, however, is a purely technical objection which could easily have been corrected before the trial. It should, therefore, have been made before the trial started if- the defendants wished to rely on it. Buckeye Incubator Co. v. Wolf, D.C., 291 F. 253. Since they did not make it then they cannot make it now, after they have gone to trial on the merits.
It appears that the suits were instituted by Max D. Ordmann, Esq., a member of the bar of the court below, as solicitor for the plaintiffs. It has long been settled that parties may appear in legal proceedings by counsel. It is equally well settled that an appearance by a practicing attorney creates a presumption that he has authority to act and the law casts the burden of proving the contrary upon the one 2ssel-ting it. Feldman Inv. Co. v. Connecticut General Life Ins. Co., 10 Cir., 78 F.2d 838. It may be admitted that an appearance by a third person who is without authority from the party is wholly ineffective. Gulf Smokeless Coal Co. v. Sutton, Steele & Steele, 4 Cir., 36 F.2d 224, certiorari deiiied 280 U.S. 609, 50 S.Ct. 158, 74 L.Ed. 652. Consequently if the defendants had established the fact that Mr. Ordmann had no authority to represent the plaintiffs their contention that the court was without jurisdiction of the suits instituted by him in the plaintiffs' names would not have been without merit.
However, the defendants wholly failed to rebut the presumption of authority which arose from Mr. Ordmann's entry of appearance. On the contrary the special master found that the evidence showed the fact to be otherwise. In his report he said: "Mr. Ordmann was examined and proved to the satisfaction of the master that he had represented the plaintiffs, both Vogtlandische Maschinen-Fabrik and Al-fred Rietzsch, administrator of the Estate of Robert Zahii, for many years in connection with their patent matters; that he had taken out a number of the patents upon which the present suits are based; that he had represented the plaintiffs in other patent matters; that he was in communication with them and the Trustees in Bankruptcy of the Vogtlandische Maschinen-Fabrik during the continuance of the above entitled suits and that he had been in cornrnunication with them recently. The Master finds and reports that Max D. Ordmann was properly authorized to institute the suits on behalf of the plaintiffs and has represented the plaintiffs during the whole course of the litigation and now represents them and the Trustees in Bankruptcy of Vogtlandische Maschinen-Fabrik."
The special master's finding that Mr. Ordmann was authorized to institute the suit was confirmed by the court below. It is supported by the evidence and we are not at liberty to disturb it in the absence of clear error, which has not been shown,
The defendants further urge that the suits have in fact abated because indispensable parties, the trustees in bankruptcy of Vogtlandische Maschinen-Fabrik, were not joined after that corporation became bankrupt during the pendency of the proceedings. We think that this contention also is without merit.
It is settled that a pending~ action will not abate merely because of the bankruptcy of the plaintiff. Thatcher v. Rockwell, 105 U.S. 467, 26 L.Ed. 949; Hahlo v. Cole, 112 App.Div. 636, 98 N.Y.S. 1049; Griffin v. Mutual Life Ins. Co., 119 Ga. 664, 46 S.E. 870. In such a case the trustees in bankruptcy may either assume prosecution of the action with the court's approval, consent to its continued prosecution by the bankrupt for their benefit, or decline to prosecute it because it is likely to involve them in fruitless expense. Roberts v. Fogg, 244 Mass. 310, 138 N.E. 333; Griffin v. Mutual Life Ins. Co., supra; In re Throckmorton, 6 Cir., 149 F. 145. If the trustees decline or fail to prosecute the action the bankrupt may continue its prosecution to judgment. Bluegrass Canning Co. v. Steward, 6 Cir., 175 F. 537; Griffin v. Mutual Life Ins. Co., supra; Hahlo v. Cole, supra; Bennett v. Associated Theaters Corp., 247 Mich. 493, 226 N.W. 239. Furthermore if the suit is thus continued by the bankrupt the trustees will be concluded by the judgment. Eyster v. Gaff, 91 U.S. 521, 23 L.Ed. 403.
In the cases before us it affirmatively appears that the trustees in bankruptcy of Voglandische Maschinen-Fabrik had knowledge of the suits. It is evident that they have elected to permit the prosecution of them to be continued by the bankrupt. This, as we have seen, is their right and under the circumstances the suits have not abated but may validly be prosecuted by the bankrupt and its co-plaintiff. Our conclusion renders immaterial the fact, pointed out by the plaintiffs, that in the case of the last suit the bankrupt corporation was not a party.
What we have said renders unnecessary a discussion of the defendants' other contentions which are equally captious and without merit. Indeed a reading of the record ’of these cases leaves us under a strong impression that the defendants have been seeking by the use of highly technical and captious objections to avoid the payment of a just liability. The court below rightly overruled these objections and directed them to account to the plaintiffs or face punishment for contempt.
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_usc2sect
|
1257
|
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 second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Nancy Jewell CROSS, Plaintiff-Appellant, v. John A. BRUNING, County Clerk of San Mateo County, California, et al., Defendants-Appellees.
Nos. 22331, 22331A.
United States Court of Appeals Ninth Circuit.
June 26, 1969.
Rehearing Denied July 15, 1969.
Rehearing En Banc Denied July 15, 1969.
Nancy Jewell Cross, in pro. per.
Burton Stanley, (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., Sacramento, Cal., Keith C. Soren-son, Dist. Atty., Redwood City, Cal., for appellees.
Before MADDEN, Judge of the United States Court of Claims, and BROWNING and DUNIWAY, Circuit Judges.
Senior Judge, The United States Court of Claims, sitting by designation.
MADDEN, Judge:
The plaintiff on October 4, 1967, brought this suit in the United States District Court requesting that Court to issue a decree enjoining the defendants from enforcing nineteen sections of the California Elections Code. She asserted in her complaint that those provisions of the California statutes were in conflict with certain provision of the Constitution of the United States and of Amendments to the Constitution.
The United States District Court on November 24, 1967, pursuant to a motion of the defendants that the complaint be dismissed “for Lack of Jurisdiction over Subject Matter and for Failure to State Claim upon which Relief Can Be Granted”, upon which motion a hearing was held, granted the defendants’ motion and dismissed the plaintiffs’ action. The instant appeal is from that action of the United States District Court.
There has been prior litigation between the same parties involving the same legal problems involved in this appeal. On March 18, 1964, the plaintiff Cross, and another person whose presence and participation in the earlier litigation hereinafter discussed will be disregarded, filed a petition in the Supreme Court of California, pursuant to California Elections Code § 6403. In that petition Cross asserted that numerous sections of the California statutes governing elections were unconstitutional and prayed that the Supreme Court of California declare them unconstitutional, as in violation of the Constitution of the United States. The Supreme Court of California, after a hearing, but without opinion, denied Cross’s petition on March 25, 1964, and denied a rehearing on April 25, 1964. Cross, on July 27, 1964, filed in the Supreme Court of California her notice of appeal to the Supreme Court of the United States, pursuant to Section 1257(2) of Title 28 U. S. Code. In her “Statement as to Jurisdiction” in her appeal to the Supreme Court, Cross cited seventeen sections of the California Elections Code as being the most significant of the statutes, the constitutionality of which she attacks. She then cited six additional sections of California statutes, as being relevant, as well as thirteen sections of the Constitution of California. The Supreme Court of the United States, in Cross v. Brun-ing, 379 U.S. 202, 85 S.Ct. 340, 13 L.Ed. 2d 339, on December 7, 1964, dismissed her appeal for want of jurisdiction.
In view of the plethora of California statutes cited by Cross in her 1964 petition to the Supreme Court of California, and in her “Statement as to Jurisdiction” in her appeal to the Supreme Court of the United States in that case, it would be necessary to tabulate, in parallel columns the numbers in those two documents, and check the numbers in each column against those in the other column to determine exactly the extent to which they coincided. From the language of the two documents, however, it is apparent that the complaints of unconstitutionality in the two documents relate to the same statutes. Since the Supreme Court of California dismissed the plaintiff’s petition, thereby deciding in favor of the validity of the California statutes which were attacked in the plaintiff’s petition, she was entitled, under Title 28 of the United States Code, Section 1257(2), to get to the Supreme Court of the United States by appeal, if her appeal presented a substantial federal question. See Wiener, “The Supreme Court’s New Rules,” 68 Harv.L.Rev. 20 (1954); Stern and Grossman, Supreme Court Practice, (3d ed. 1962). Since the Supreme Court had the case under its obligatory jurisdiction, i. e., by appeal, its dismissal of the case for want of jurisdiction was a dismissal on the merits, for failure to present, in the jurisdictional statement, a substantial federal question.
If the issue in our instant case is identical with the issue dealt with by the Supreme Court of the United States in the plaintiff’s 1964 case, and the instant case should reach the Supreme Court, that court, in order to find a substantial federal question in the case would be obliged to overrule, expressly or sub silentio, its 1964 decision. Counsel for the defendant Bruning, in his brief, says that the issue as to the constitutionality of the California statutes have been presented to the Supreme Court in two prior cases, one being the 1964 case reported in 379 U.S. 202, 85 S.Ct. 340,13 L.Ed.2d 339, discussed hereinabove, and the other being a 1966 case, Cross v. Bruning, 385 U.S. 14, 87 S.Ct. 116, 17 L.Ed.2d 13. But counsel does not recognize that the 1966 case was not, like the 1964 case, a decision by the Supreme Court on the merits, but only a denial of a writ of certiorari in a case not within the obligatory jurisdiction of the Supreme Court. However, Cross in her Reply Brief in our instant case recognizes that the issue in the 1964 case in the Supreme Court of the United States was the same as the issue in our instant case. She poses the following question:
Does United States Supreme Court dismissal of appeal(s) for want of jurisdiction * * * on refusal of a state supreme court * * * to acknowledge jurisdiction of a controversy in 1964 * * * (Cross v. Brun-ing (December 7, 1964) 379 U.S. 202 [85 S.Ct. 340, 13 L.Ed.2d 339] * * * prevent U. S. District Court jurisdiction of a controversy in 1967 because state laws involved in the controversy arising in 1967 were among those involved in the earlier case(s) ?
The plaintiff’s answer to her own question is “no”. We think the correct answer is “yes”, unless the law has been changed in the interval between the two cases.
There is no suggestion in this case that the facts have changed or that the statutes have been changed, in the interim. If, then, any federal court other than the Supreme Court of the United States were to take jurisdiction of a case which is identical in its facts with an earlier case which the Supreme Court held to be outside federal jurisdiction, that lower court would be essaying to overrule the Supreme Court’s decision, not only of the same question but of the same question when it was litigated between the same parties.
What Cross seems to have in mind is that there are recent Supreme Court cases indicating that the Supreme Court is more inclined than it was a few years ago to find infringement of federal rights such as the right that no State shall deny equal protection of the laws, in some election laws of some states. Williams v. Rhodes, Governor of Ohio, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (October 15, 1968) is perhaps a notable example of such a tendency. To whatever extent there is such an inclination on the part of the Supreme Court, Cross might hope that the Supreme Court would now find in the California election statutes infringements of constitutional rights. If it did so it would be overruling its previous decision in her previous case. That would be well within the Supreme Court’s power. But that is not within this Court’s power and such an attempt on the part of this Court would almost always be an impertinent and futile adventure. Cross will, of course, have in this case the opportunity which every litigant has of trying to persuade the Supreme Court to depart from its previous decision.
On September 14, 1965, less than a year after the Supreme Court’s action in the case reported in 379 U.S. 202, 85 S. Ct. 340, 13 L.Ed.2d 339, Cross filed in the United States District Court another suit making the same contentions and requesting the same relief as she had sought in the earlier case in the Supreme Court of California. The District Court dismissed that suit “for lack of subject matter jurisdiction”. Cross appealed to this court. On February 14, 1966, this court, in case No. 20,579, entered an “Order Affirming Judgment”, the text of which was as follows:
Before: KOELSCH, BROWNING and DUNIWAY, Circuit Judges
The appellee, Frank M. Jordan, individually and as Secretary of State of the State of California filed a motion to dismiss the appeal; the remaining appellees, John A. Bruning, Board of Supervisors of San Mateo County, and William M. Werder, filed a similar motion and a further motion to affirm the judgment. The common ground of all motions was lack of federal jurisdiction over the subject matter of said purported actions.
A hearing was duly held; all parties appeared in person or by counsel; arguments were presented both in support of and in opposition to said motion and the matter was then submitted to the court for decision.
The court, having considered the argument and having studied the entire record, including plaintiff’s complaint and additionally her brief on appeal, concludes that the motions are well taken, that they should be granted on the ground urged, that the motion of appellee Jordan should be treated as one to affirm, and that the judgment of the court below be thereupon affirmed.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that said judgment is affirmed. No costs are allowed.
/&/ M. Oliver Koelseh
/s/ James R. Browning
/s/ Ben C. Duniway
Circuit Judges
Cross “appealed” this court’s decision to the Supreme Court of the United States. That Court on October 10, 1966, in Cross v. Bruning, etc., et al., 385 U.S. 14, 87 S.Ct. 116, 17 L.Ed.2d 13, rehearing denied, November 21, 1966, 385 U.S. 964, 87 S.Ct. 399, 17 L.Ed.2d 310, said:
THIS CAUSE having been submitted on the statement of jurisdiction and transcript of record,
ON CONSIDERATION WHEREOF, it is ordered by this court that the appeal herein be, and the same is hereby, dismissed for want of jurisdiction.
Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.
(October 10, 1966)
In the plaintiff’s second case, discussed immediately above, she, as we have seen, filed her suit in the United States District Court; that Court dismissed her suit “for lack of subject matter jurisdiction”; she appealed to this court which, on February 14, 1966, entered the order, quoted above, affirming the District Court’s judgment dismissing the plaintiff’s suit and stating in its order that it affirmed the District Court’s dismissal on the ground of “lack of federal jurisdiction over the subject matter of said purported actions.” We have narrated above the plaintiff’s attempt to appeal, from this court’s af-firmance, to the Supreme Court of the United States, the Supreme Court’s dismissal of the appeal “for want of jurisdiction” and its denial of a writ of cer-tiorari. The proceedings in the Supreme Court are irrelevant to the point now under discussion. There was no basis for an appeal from this court to the Supreme Court; See 28 U.S. Code, Section 1254(2). The Supreme Court’s treatment of the papers on which the appeal was taken as a petition for writ of certiorari and its denial of the writ, decided nothing as to the merits of the issues which the plaintiff sought to raise in the Supreme Court. The Supreme Court’s action thus left undisturbed the judgment of the District Court, affirmed by this Court on February 14, 1966, dismissing her suit “for lack of federal jurisdiction” over the subject matter of said purported action.
On October 4, 1967, Cross filed, in the United States District Court, the case which is now before us on her appeal from the District Court’s dismissal. If this case is “on all fours” with the case in which this Court on February 14, 1966, in our case No. 20,579, affirmed the District Court’s judgment of dismissal, Cross is requesting this court to overrule its 1966 decision.
We advert again to the question posed by Cross in her reply brief. We delete from her question the references to the Supreme Court’s 1964 decision reported in 379 U.S. 202, 85 S.Ct. 340, 13 L.Ed.2d 339, because it has, in this connection, been discussed above in this opinion, and also her reference to the Supreme Court actions of October 10 and November 21, 1966, 385 U.S. 14 and 964, 87 S.Ct. 116 and 399, 17 L.Ed.2d 13 and 310, because, as we have explained above, the Supreme Court actions were denials of certiorari, and did not bear on the merits. As so modified Cross’s question is, in substance, whether the dismissal, in 1965, by the United States District Court, of her suit on the ground of lack of federal jurisdiction over the subject matter, which dismissal was affirmed by this Court on February 14, 1966, “* * * prevent District Court jurisdiction of a controversy in 1967 because state laws involved in the controversy arising in 1967 were among those involved in the earlier cases?” It is plain from this statement, and the rest of her papers in the case, that Cross does not claim that there is any significant difference between the facts involved in the earlier case and those in the present case. She urges that case law in the Supreme Court of the United States, and in other courts give some promise of a more favorable reception to constitutional contentions such as hers. Even if this were assumed to be probable, it would still leave Cross in the position of requesting this Court to overrule its 1966 decision, and, by doing so, to make a decision contrary to the 1964 decision of the Supreme Court. That, as we have said, would be a futile exercise and we decline to engage in it.
The judgment of the United States District Court is affirmed.
In the plaintiff’s complaint in the United States District Court, she requested that a three-judge District Court be convened for her case, pursuant to 28 U.S. Code, Section 2281. The District Court, by order, denied her request “for want of a substantial federal question. Ex parte Poresky, 290 U.S. 20 [30, 54 S.Ct. 3, 78 L.Ed. 152] (1933).” The plaintiff designates this denial as one of the specified errors on which her appeal is based. We think the District Court’s denial of the request for a three-judge court was right. Bailey v. Patterson, 369 U.S. 31, 33, 82 S. Ct. 549, 7 L.Ed2d 512 (1962).
Affirmed.
ORDER
The panel as constituted in the above case has voted to deny the petition for rehearing and to reject the suggestion for a rehearing in banc.
The full court has been advised of the suggestion for an in bane hearing, and no judge of the court has requested a vote on the suggestion for rehearing in banc. Fed.R.App.P. 35(b).
The petition for rehearing is denied and the suggestion for a rehearing in banc is rejected.
It is ordered that the issuance, under Rule 41(a), of the certified copy of the judgment of this court in the above cause be, and hereby is, stayed pending the filing, consideration and disposition by the Supreme Court of the United States of a petition for writ of certio-rari to be made by plaintiff-appellant herein, providing such petition is filed in the clerk’s office of the Supreme Court of the United States on or before August 15, 1969. In the event the petition for writ of certiorari is granted, then this stay is to continue pending the final disposition of the case by the Supreme Court of the United States.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number.
Answer:
|
songer_source
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
Thomas EAGLE, Petitioner, v. ARMCO, INCORPORATION; Director, Office of Workers’ Compensation Programs, United States Department of Labor, Respondents.
No. 90-1035.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 7, 1990.
Decided Sept. 3, 1991.
William C. Garrett, Gassaway, W. Va., for petitioner.
Anthony Joseph Cicconi, Shaffer & Shaffer, Madison, W. Va., argued (George D. Blizzard, II, on brief), for respondents.
Before WIDENER and SPROUSE, Circuit Judges, and MICHAEL, District Judge for the Western District of Virginia, sitting by designation.
OPINION
WIDENER, Circuit Judge:
Thomas Eagle petitions for review of a decision by the Benefits Review Board affirming the denial of his claim for benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. We vacate the order of the Board and remand for the award of benefits.
Eagle filed a claim for black lung benefits on January 30, 1981. His case was subsequently referred to an Administrative Law Judge (AU), who held a formal hearing on December 10, 1986. The AU found that Eagle had worked as a coal miner for over twenty-four years and was afflicted with pneumoconiosis. The AU recognized that because Eagle had been employed as a miner in excess of fifteen years and had applied for benefits prior to January 1, 1982, he was entitled to a presumption that his pneumoconiosis arose out of his coal mine employment and totally disabled him, provided that he could establish total disability in accordance with 20 C.F.R. § 718.-204. See 20 C.F.R. § 718.305. Concluding that Eagle had failed to establish total disability, the AU issued a decision and order denying his claim for benefits. This denial was affirmed by the Benefits Review Board on March 30, 1990.
The sole issue raised by Eagle in this petition for review is whether the Benefits Review Board erred in finding that there was substantial evidence to support the AU’s conclusion that Eagle had failed to establish total disability.
Eagle has sought to demonstrate his disability by the method set out in 20 C.F.R. § 718.204(c)(4), which provides:
... total disability may nevertheless be found if a physician exercising reasoned medical judgment, based on medically acceptable clinical and laboratory diagnostic techniques, concludes that a miner’s respiratory or pulmonary condition prevents or prevented the miner from engaging in employment as described in paragraph (b) in this section....
The employment described in paragraph (b) of this section is the claimant’s “usual coal mine work” and “gainful employment in the immediate area of his or her residence requiring the skills or abilities comparable to those of any employment in a mine or mines in which he or she previously engaged with some regularity over a substantial period of time.” 20 C.F.R. § 718.-204(b)(1) & (2).
Eagle presented the medical opinion of Dr. Donald L. Rasmussen, a specialist in the field of internal medicine and pulmonary diseases, who personally examined the miner on three occasions. Dr. Rasmussen, in deposition testimony, testified that Eagle had communicated to a member of Dr. Rasmussen’s staff the mine jobs he had performed when interviewed by the staff member. Based upon his understanding that Eagle’s usual mine work required him to perform heavy physical labor and the results of his testing of Eagle, Dr. Rasmussen concluded that Eagle was “totally disabled for resuming his former coal mine employment....”
The employer presented the medical opinion of Dr. John M. Daniel, a family practice physician who never examined Eagle. Dr. Daniel made his findings solely on the basis of reports arising out of an earlier examination conducted by one of his associates. He found that Eagle was afflicted with chronic obstructive lung disease and occupational pneumoconiosis, but concluded that there was “no evidence of pulmonary dysfunction.” Dr. Daniel further stated that Eagle “should be able to tolerate the usual physical activities required of a coal miner,” but admitted that he had “no idea” what type of work Eagle usually performed in the mines.
As indicated, the ALJ concluded that Eagle had failed to establish disability under 20 C.F.R. § 718.204. The ALJ based this conclusion on his decision to credit the opinion of Dr. Daniel and discredit that of Dr. Rasmussen. Dr. Daniel’s opinion, he stated, was “most compatible with the ventila-tory and blood gas studies contained in the record, ...” Dr. Rasmussen, on the other hand, was said to have been “equivocal” by virtue of his statement at one place in his deposition that Eagle was “probably” totally disabled. In addition, the ALJ discredited Dr. Rasmussen’s opinion because the doctor had used the word “minimal” in describing Eagle’s pulmonary impairment and had never been given a description of Eagle’s actual jobs in the mines.
Our review of the record indicates that the ALJ erred in two respects. The first of these errors concerns the AU’s determination of the nature of the coal mine work performed by Eagle. In this regard, the AU found that Eagle had last worked as a “trackman,” a job that the ALJ described as involving “jacking derailed coal cars back on to their tracks” as its “most arduous activity.” This description is contrary to the evidence in the record concerning the exact nature of Eagle’s work in the mines. The Director and the employer presented no evidence concerning Eagle’s usual coal mine work. Eagle, however, testified that he had worked as a trackman for six or seven years, and stated, in contrast to the AU’s finding, that the job consisted of laying and maintaining underground track. With the help of only one or two co-workers, Eagle explained, he had been required to lift and handle thirty to thirty-three foot long sections of steel rail, with the rails weighing at least sixty pounds for every three feet. In a day, as many as twenty-two such rails would be laid. Eagle further stated that as a trackman, he was required to handle manually oak cross-ties with a length of nine feet. In view of the evidence in the record, we conclude that the AU misstated both the nature and the exertional requirements of Eagle’s work as a trackman and we further find that there is no substantial evidence to support his decision.
Apparently recognizing that the AU’s findings as to Eagle’s work as a trackman were without foundation in the evidence, the Benefits Review Board conjectured that the AU had actually intended to use the term “boom operator” instead of “trackman.” Assuming, without deciding, this to be so, we still believe that the AU’s findings are not supported by the evidence. Eagle testified that within his final year of mine employment he had worked as a boom operator, a job he described as requiring him to drag and carry by hand a three- to four-inch steel cable for a distance of three hundred feet. The job also entailed, at least once a shift, returning derailed cars to the track. To accomplish this task, Eagle by himself manually operated a fifteen to twenty pound jack with a thirty-inch long jack stick in order to raise completely each car and put it back on the track. His testimony indicated that this procedure was performed on both unloaded and loaded cars, with a loaded car containing approximately five tons of coal plus the weight of the car itself. The AU’s description, as previously quoted, made no reference to the steel-cable carrying function of the boom operator’s work and the AU gave no explanation for this omission.
In view of these circumstances, we are of the opinion that the AU’s findings of fact concerning Eagle’s usual or last work in the mines were not supported by substantial evidence.
A second error committed by the AU involved his reliance on Dr. Daniel’s opinion that the claimant could continue to perform usual coal mining activities. In affirming such reliance on the part of the AU, the Benefits Review Board stated that Dr. Daniel’s report, which concluded that Eagle “should be able to tolerate the usual activities required of a coal miner,” demonstrated “the non-existence of any disability.” The Board, it appears, looked upon Dr. Daniel’s finding that Eagle was not prevented by his condition from performing any coal mine work as if such a finding necessarily subsumed Eagle’s particular job in the mines; accurate knowledge of Eagle’s actual mine work was therefore deemed unnecessary.
We cannot agree with the position of the Benefits Review Board. We have only recently held that because section 718.-204(b)(1) defines total disability in terms of a miner’s “usual coal mine work,” the relevant inquiry “does not relate to coal mine activities in the generic sense, but to the coal mine work that the involved black lung claimant was performing at the time of his disability.” Walker v. DOWCP, 927 F.2d 181, 183 (4th Cir.1991). Accordingly, a physician who asserts that a claimant is capable of performing assigned duties “should state his knowledge of the physical efforts required and relate them to the miner’s impairment.” Walker, 927 F.2d at 184; cf. Adkins v. U.S. Dep’t of Labor, Office of Workers’ Comp., 824 F.2d 287, 290 (4th Cir.1987); Sykes v. DOWCP, 812 F.2d 890, 893 (4th Cir.1987). Dr. Daniel, however, did not relate his findings to Eagle’s duties in the mines or the exertional requirements thereof. Indeed, by his own admission, Daniel had “no idea what [Eagle] did” in the mines. We therefore reject the Board’s conclusion that “the administrative law judge could properly rely on Dr. Daniel’s opinion to find that total disability had not been demonstrated_” Dr. Daniel’s opinion was critically flawed and does not amount to substantial evidence supporting the AU’s denial of benefits to Eagle.
In view of the AU’s erroneous findings concerning Eagle’s mine employment, which were either approved by the Board or found harmless, and his unwarranted reliance on the opinion of Dr. Daniel, which was approved by the Board, we conclude that the denial of benefits to the claimant was not based on substantial evidence.
We have examined the record in this case with some care and do not find any creditable contradiction of the deposition of Dr. Rasmussen, particularly the conclusion thereof, in which Dr. Rasmussen, in arriving at his conclusion, had correctly assumed that Eagle’s usual coal mining employment had been heavy work as opposed to moderate. Dr. Rasmussen was of opinion that Eagle would be incapable of performing heavy work loads. We think this was a reasoned medical judgment based on medically acceptable clinical and laboratory diagnostic techniques with relation to Eagle’s pulmonary condition.
That being the case, and Eagle having filed his claim for black lung benefits some ten years ago, we are of opinion that the processing of this claim has gone on long enough.
The order of the Benefits Review Board denying benefits is vacated, and the case is remanded to the Benefits Review Board, which will direct the award of appropriate benefits to Eagle.
VACATED AND REMANDED WITH INSTRUCTIONS.
. We note that our prior decisions have established that "the testimony of a non-examining, non-treating physician should be discounted and is not substantial evidence when totally contradicted by other evidence in the record.” Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir.1984); see also Pitzer v. Sullivan, 908 F.2d 502, 506 n. 4 (9th Cir.1990) ("[T]he conclusion of a non-examining physician is entitled to less weight than the conclusion of an examining physician.”). We have declined, however, "to say that the opinion of a doctor who has not examined or treated the claimant is never entitled to any weight.” Hayes v. Gardner, 376 F.2d 517, 521 n. 1 (4th Cir.1967).
. In deposition testimony, Dr. Daniel asserted his view that breathing coal mine dust does not cause chronic obstructive lung disease. He stated that
inhalation of coal dust "is not a cause per se of Chronic Obstructive Lung Disease, it can aggravate Chronic Obstructive Lung Disease," and insisted that "[n]on-smokers without evidence of asthma or infectious processes show no evidence of obstruction from coal mine employ-ment_” For the purposes of consideration in black lung cases, this opinion must be considered bizarre in view of a Congress’ explicit finding to the contrary. See 30 U.S.C. §§ 901(a), 902(b).
. The Board also advanced a second rationale to deal with the erroneous findings of the AU concerning Eagle’s mine work. The Board asserted that any such errors were "harmless." This conclusion was based on the view that by relying on the opinion of Dr. Daniel, the ALJ could have found Eagle able to perform his usual mine work without ever having accurate knowledge of the job Eagle actually performed in the mines. For the reasons discussed infra in our discussion of Dr. Daniel’s opinion, we reject this reasoning.
. The AU directly examined Eagle on this point during the hearing:
Q: Let me ask you, during your last year as a miner, what was the hardest thing you had to do, what was the most difficult job?
A: The last year, the most difficult job I had, sir, was jacking the cars on the track and pulling the rope to move the cars with.
(Emphasis added.)
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
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songer_dissent
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
GARGILL v. AMERICAN GUARANTY CORP.
No. 4640.
United States Court of Appeals, ■First Circuit.
Jan. 2, 1953.
Benjamin Goldman, Boston, Mass. (Louis J. Shrair and Gargill & Shrair, Boston, Mass., on the brief), for appellant.
Bernard Kaplan, Boston, Mass. (Hubert C. Thompson and Libman, Kaplan & Packer, Boston, Mass., on the brief), for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
PER CURIAM.
This is an appeal from a judgment entered after a trial without a jury dismissing an action brought by the trustee in bankruptcy of a Massachusetts corporation to recover payments made over a period of several months by the bankrupt to the defendant. Federal jurisdiction rests upon diversity of citizenship and amount in controversy. Title 28 U.S.C. § 1332(a)(1).
The payments involved were made on a promissory note payable in instalments, and the plaintiff’s action is bottomed on the proposition that it was beyond the bankrupt corporation’s powers (ultra vires) for it to make the payments. Two reasons are advanced for this. First it is said that the corporation was merely an accommodation endorser of the note upon which it made the payments, and that it had no power under Massachusetts law to endorse for accommodation only. Second it is said that to the defendant’s knowledge the money borrowed on the note was not for the use and benefit of the corporation, but instead was intended for, and in fact was used by, one DiTulio to finance his purchase of all the stock in the corporation.
The case was tried on oral testimony and exhibits, and while that evidence provides some factual basis for the plaintiff’s position, the District Court thought otherwise. It found that DiTulio signed the note in question, which was payable to the bankrupt, and that the bankrupt endorsed the note over to the defendant. It also found that as part of the transaction the bankrupt gave the defendant a mortgage of all its corporate assets, and DiTulio gave the defendant an assignment covering all the corporation’s stock which he had just purchased. And it found that thereafter the bankrupt made payments on the note in accordance with its terms. But the court said that it could not “subscribe to the Trustee’s theory that the loan was really being made to DiTulio personally so that he could purchase the stock.” It found that there were pre-existing corporate debts to two banks which DiTulio wanted discharged, that the defendant advanced money on the note “to the corporation in order that it might discharge its own corporate debts, substituting the defendant for the two banks,” and that there was “nothing irregular about this transaction between the corporation and the defendant.”
The entire transaction in which the note under consideration played a part was a complicated one involving the sale of all the corporation’s stock to DiTulio and discharge of all the corporation’s debts as a prerequisite thereto. No useful purpose would be served by describing it in detail. It will suffice for us to say that we find evidence in the record to sustain the District Court’s findings of fact, and that those findings support that court’s ultimate conclusion.
The judgment of the District Court is affirmed.
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
JOHNSON v. MATSON.
No. 6210.
Circuit Court of Appeals, Ninth Circuit.
Dec. 6, 1930.
Ernest J. Torregano, Oliver Dibble, Robert L. McWilliams, all of San Francisco, Cal., and William Ritchie, Jr., of Omaha, Neb. (August B. Rothschild, of San Francisco, Cal., of counsel), for appellant.
I. I. Brown, Jerome H. Bayer, Maxwell McNutt, and Marvin C. Hix, all of San Francisco, Cal., for appellee.
Before RUDKIN and WILBUR, Circuit Judges, and NORCROSS, District Judge.
WILBUR, Circuit Judge.
The appellant filed a petition in involuntary insolvency against Walter J. Matson, who subsequently died, and whose executrix, Frances E. Matson, has been substituted. The appellee filed an answer denying, among other things, that Hale Company, a corporation, a bankrupt, was a creditor of Walter J. Matson. The case was tried upon this issue, among others, and the referee, acting as special master, found that Hale Company was not a creditor of the alleged bankrupt. This finding was approved by the district court, and the petition was denied and the bankruptcy proceeding dismissed.
A review of the evidence thus passed on by the special master and by the District Court is sought on the ground that the evidence is undisputed, and the conclusion dedueible from the undisputed evidence is one of law which has been erroneously determined in the lower court.
The evidence before the referee and before the District Court consisted largely of a transcript from the books of Hale Company, showing a balance due from Walter J. Mat-son, alleged bankrupt, of over $20,000 and a statement referred to as a confession made by the bankrupt in the presence of the officers and representatives of the Honolulu Plantation Company and the Mason ByProducts Company wherein the alleged bankrupt gave detailed information of the method by which he had swindled these two eompa^ nies, of each of which he had been the trusted secretary for many years, out of about $500,-000. This result has been brought about largely by reason of an agreement entered into by the alleged bankrupt with Hale Company -whereby he was to receive one-half the profit resulting from the sale by Hale Company of sugar turned over by him to Hale Company in violation of the authority vested in him as sales manager of the Honolulu Plantation Company which required him to sell sugar for cash on no more than seven days’ credit. In consideration of this unauthorized delivery of sugar to Hale Company, tho bankrupt was to receive one-half of the profits resulting from the sale of the sugar by Hale Company. It was understood by Hale Company and by Matson, the alleged bankrupt, that the agreement entered into between them involved a breach of trust on the part of Matson. To prevent tho officers of the Honolulu Plantation Company from discovering the fraud which had been perpetrated. upon tho company Matson made false entries in the books of the Honolulu Plantation Company, crediting payments for sugar so transferred by Halo Company when no such payments had been in fact made. Later, in connection with these transactions, and to prevent a discovery thereof, the alleged bankrupt, in his capacity as secretary of the Mason By-Products Company, issued trade acceptances in favor of Hale Company aggregating $114,000. In July or August, .1925, he caused 7,500 bags of sugar worth $42,647.-50 to be transferred to Hale Company in order to take care of an indebtedness of that company. At the time this was done, Hale Company was in financial distress, and the sugar was transferred to prevent a discovery of previous illegal transactions between Hale Company and the alleged bankrupt. From time to time during the period covered by these transactions the alleged bankrupt approached George Braun, who was managing tho Hale Company, and asked for loans of money. The various amounts claimed by the appellant as a debt owing from the alleged bankrupt to Hale Company consisted of these advances. Although it appears that Halo Company was in financial straits during almost the whole peiiod covered by these advancements, it never demanded repayment of the money from the alleged bankrupt, nor did it ever say when it would expect repayment or indicate in any way that it would expect repayment of them. The alleged bankrupt believed that those moneys would be advanced to him when he asked for them, as they were, and that repayment would not bo expected of him because of the dealings between them with relation to the sugar and denatured alcohol accounts of the Mason By-Products Company.
It would seem clear that money paid by Hale Company to the secretary of the Honolulu Plantation Company on account of the sugar o-f that company, whicli he liad transferred to Hale Company under the guise of h, salo, would belong to' the company whose property had been used in this manner to obtain such payment. If the alleged bankrupt, while acting in a fiduciary capacity for tho company he had defrauded, received money because of his transfer of the property of these companies to Hale Company, it is entirely immaterial whether Hale Company was constrained to pay it to prevent the defrauded principal from ascertaining the larger indebtedness owed by them, or whether it was a bribe paid to the secretary to induce him to keep tho fraud from the knowledge of tho principal, or whether it was claimed or considered to be a loan brought about by the same consideration. In any event, the obligation of the employee would be to pay it to his employers and not to return it to líale Company. Furthermore, there was no express agreement to repay it to Hale Company, and, under the circumstances, the law would imply none.
The referee in the court below decided the ease upon the theory that one joint feasor could not recover from another. This was no doubt correct, and would answer the contention that the appellant has a provable claim against the alleged bankrupt. We think, however, regardless of this contention, the evidence discloses that payments made by Halo Company to Matson belong to the companies ho represented, and that he had no right to apply them to his own purposes.
It is contended that some of the advances made by Halo Company were made before the illegal agreement was entered into between that company and the alleged bankrupt, and that, this being true, they were creditors to that extent, regardless of the subsequent illegal agreement. The amount claimed to have been thus advanced is $3,-819.06, which is shown on the books of Halo Company as the balance due on January 1, 1923. In the confession above referred to, tho alleged bankrupt stated that originally he was an owner of a half interest in the stock of -a corporation known as the Hale Company; that at that time he gave his stock to Ira N. Moore as a gi ft to avoid tho stockholdor’s liability upon the stock of that company, knowing that the Hale Company was going to take a big loss by reason of some export sugar they had sold to some eastern jobbers; that the 'Halo Company was reorganized and became known as Hale Company organized under the laws of Nevada; that ever since he disposed of his half interest in the Hale Company about four years previously (January 31, 1922) he had an arrangement with Braun (manager of Halo Company) under which he has been, and would now be, entitled to one-half of the profits made from dealing in sugar obtained from the Honolulu Plantation Company. It thus appears that the illegal arrangement was contemporaneous with the organization of the new- company. As to any advances made before that time by Hale Company, there is nothing to indicate that it was the intention of the alleged bankrupt to pay the same to either the old or new company, other than entries in the books of Hale Company showing debits and credits in the personal account of W. J. Matson for the years 1921 to 1926, inclusive.
These books, are objected to by the appellee upon the ground that they were incompetent to prove an indebtedness in favor of Hale Company against W. J. Matson. This objection should have been sustained. They were self-serving declarations not in the ordinary course of business of the company and purporting to show an indebtedness due from Matson to the company without any statement showing the reason for the obligation. With the exception of certain items for long-distance telephone calls, there is no indication in the books as to the nature of the indebtedness or the reason for the charge. Under the circumstances, these entries come under the head of self-serving declarations, and do not come within the exception of the rule with relation to books of account kept by merchants. It was stipulated that the bookkeeper of Hale Company would testify if he were present that ■ the entries were made in the regular course of business of the Hale Company, but the stipulation went no further, and was insufficient to justify the introduction of these accounts. In addition thereto, certain cheeks were introduced. These cheeks were drawn in favor of the alleged bankrupt by Hale Company, and were indorsed • by the alleged bankrupt,, and evidently he received the money called for by these cheeks. No testimony is offered explaining these cheeks, and the appellee relies upon the presumption that money thus paid is presumed to have been paid upon an obligation due from the payer to the payee. In view of the admissions of the alleged bankrupt, however, that he had received large sums of money from the Hale Company, our conclusion must be drawn'from the facts thus explained by him in his alleged confession, and, so explained, there was no obligation on his part to repay these amounts.
Returning to a consideration of the advances claimed to have been made by Hale Company to the alleged bankrupt before transferring his stock in the Hale Company and the agreement made with the new Hale Company and the concurrent agreement with relation to the illegal transfer of property owned by the companies represented by the alleged bankrupt, it is a reasonable inference from the evidence that this was one transaction by which the alleged bankrupt surrendered his stock and the new company was organized and the agreement was made that thereafter the alleged bankrupt should receive one-half the profits derived from the sugar transferred by him to the new company, rather than as theretofore that he should receive half interest in the entire profits of the corporation in which he held one-half the stock. It is hardly consistent with the agreement entered into between the alleged bankrupt and George Braun, the co-owner of the old corporation, “The Hale Company,” that it was contemplated that, notwithstanding the reorganization and the surrender by the bankrupt of his entire interest in the corporation, he was still under obligation to repay amounts theretofore advanced him by the old company. There is no evidence that the old company transferred any indebtedness owed it by the alleged bankrupt. The evidence abundantly supports the finding of the trial court and the referee.
The appellant also calls attention to the fact that the answer to the petition in involuntary insolvency filed by the appellee was verified of her own knowledge, and was filed before the referee under stipulation that it might be considered as' having been filed with the clerk, and that the propriety of leave to amend the petition should be considered by the court in connection with the referee’s report. When the matter came before the District Court, appellant sought to be relieved .from the stipulation on the ground that the evidence disclosed that the executrix knew nothing of the facts of her own knowledge, and therefore her verification of her answer was not in proper form. There was no abuse of discretion on the part of the trial court in declining to relieve the appellant from his stipulation with relation to the filing of the answer or in refusing to strike out the answer.
Order affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_applfrom
|
J
|
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).
GENERAL RADIO COMPANY, Plaintiff, Appellant, v. SUPERIOR ELECTRIC COMPANY, Defendant, Appellee.
No. 5805.
United States Court of Appeals First Circuit.
Heard May 2, 1961.
Decided Aug. 25, 1961.
Robert H. Riñes, Boston, Mass., with whom David Riñes and Riñes & Riñes, Boston, Mass., were on brief, for appellant.
William W. Rymer, Jr., Boston, Mass., with whom Stephen H. Philbin, New York City, and Ernest M. Junkins, Bridgeport, Conn., were on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
WOODBURY, Chief Judge.
The appellant, General Radio Company, is a Massachusetts corporation and the owner of United States Patent No. 2,949,592 for “Adjustable Transformer With Stabilized Contact Track.” The appellee The Superior Electric Company, is a Connecticut corporation charged by General with infringing its patent.
Litigation between the parties began on October 4, 1960, with the filing by Superior of a complaint against General in the United States District Court for the District of New Jersey praying for a judgment declaring General’s patent invalid and void, but if valid, not infringed. Three days later, on October 7, 1960, General initiated the case at bar by filing a complaint against Superior for infringing its patent and for unfair competition in the United States District Court for the District of Massachusetts. On October 25, General filed its answer in the New Jersey litigation and with its answer a counterclaim for unfair competition. On October 28 Superior filed a motion to dismiss the suit pending against it in Massachusetts “on the grounds of lack of jurisdiction of the subject matter and improper venue; or alternatively, to stay proceedings,” and filed affidavits in support of its motion. General filed an affidavit in opposition and the motion came on for hearing orally and on briefs in the court below on November 30, 1960. After the hearing the court filed the following memorandum :
“Those parts of the complaint claiming patent infringement are dismissed on the ground of improper venue. Those parts of the complaint claiming unfair competition are dismissed for failure to ally [sic.] (allege) the jurisdictional amount. Motion to dismiss the complaint • granted.”
A motion by counsel for the plaintiff to amend General’s complaint to allege the jurisdictional amount of $10,000 and for rehearing was filed on November 30, but, without acting on the motion, the court entered judgment on December 19 dismissing the “action” on defendant’s motion in accordance with its memorandum of November 30 quoted above. Motions by the plaintiff to alter or amend the judgment, for relief from the judgment and to vacate it were denied and the plaintiff thereupon took the present appeal.
The affidavits submitted in support and the affidavit submitted in opposition to the defendant’s motion to dismiss for lack of venue disclose the following facts.
Superior’s main office and manufacturing plant are located in Bristol, Connecticut. In Massachusetts it maintains an office staffed with a salesman who describes himself as a “sales engineer” and gives as his title “District Sales Manager,” and a secretary. The salesman solicits orders for Superior’s products in “the part of Massachusetts, New Hampshire, Vermont, Rhode Island and Maine not covered by a sales representative from Bristol,” and in connection with his sales activities he consults with prospective purchasers as to their requirements and possible changes in design to meet their needs, quotes prices and investigates complaints. He does not service the alleged infringing transformers manufactured by Superior. All service complaints after investigation are referred to Superior in Bristol for action.
When the salesman obtains an order he directs the customer to address it to Superior at Bristol, which is the only place where the order can be acknowledged and accepted. If an order comes in directed to the Massachusetts office the salesman forwards the order to Bristol since he has no authority to acknowledge or accept it and notifies the customer tb change the address to Bristol. Invoices are sent from Superior’s office in Bristol and payment is made to that office. Superior has no bank account in Massachusetts, does no warehousing in Massachusetts, and does not stock any products in Massachusetts. In its Massachusetts office it maintains only a supply of literature relating to its products, including the alleged infringing transformer.
Superior displays its name on the door of its Massachusetts sales office, on the directory in the main hallway of the building in which its office is located and on the outside of the building itself. Its name and address are listed in the local telephone directory and also the Yellow Pages carrying advertising.
On these facts we t-hink the court below correctly dismissed the plaintiff’s complaint for lack of venue insofar as it claims patent infringement.
In Fourco Glass Co. v. Transmirra Products Corp., 1957, 353 U.S. 222, 229, 77 S.Ct. 787, 792, 1 L.Ed.2d 786, the court, reaffirming its decision in Stonite Products Co. v. Melvin Lloyd Co., 1942, 315 U.S. 561, 62 S.Ct. 780, 86 L.Ed. 1026, held categorically that § 1400(b) of Title 28 U.S.C. quoted in the margin “is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. § 1391(c).”
Certainly Superior does not “reside” in Massachusetts. Its corporate residence is clearly Connecticut. The question therefore is whether the facts recited in the affidavits establish the alternative basis for venue, that is, whether the facts establish that Superior “has committed acts of infringement and has a regular and established place of business” in Massachusetts.
These latter requirements for venue are conjunctive. Both must be met to confer venue; if either is lacking venue fails. Since we think controlling authority establishes that on the facts disclosed in the affidavits Superior did not have a regular and established place of business in Massachusetts within the meaning of the patent venue statute, there is no need for us to consider whether it “has committed acts of infringement” in that district.
The wording of the present venue statute differs substantially from the wording of its predecessor, § 48 of the Judicial Code, 28 U.S.C. (1940 Ed.) § 109. But the Court in the Fourco Glass Co. case at page 228 of 353 U.S., at page 791 of 77 S.Ct. held that the change in wording wrought no change in substance. And § 109, supra, except for the substitution of “district courts” for “circuit courts,” is identical in wording with the Act of March 3, 1897, 29 Stat. 695. Therefore, decisions under the 1897 Act are authority today and we consider ourselves bound by W. S. Tyler Co. v. Ludlow-Saylor Wire Co., 1915, 236 U.S. 723, 35 S.Ct. 458, 59 L.Ed. 808, in which the Court, on facts essentially similar to those in the case at bar, held that a defendant did not have a regular and established place of business in the district of suit within the intendment of the 1897 Act.
The facts as stated by the Court in the Tyler Co. case are more meager than those appearing in the case at bar in that from the opinion in that case it does not appear that the defendant’s name was displayed on the door of its New York sales office or on or in the building where it was located or that its name was listed in the New York telephone directory, or that it kept sales literature in its New York office or that its- salesman investigated complaints. But all these activities are only incidents of solicitation. In that case as in this, the local salesman consummated no sales himself; his only duty with respect to sales was “ ‘to solicit orders [and] forward them when received to the home office for execution.’ ” It is evident from the opinion in the Tyler Co. case that this is the fact the Court considered determinative. Indeed, there can be little doubt that this is so, for actually the full facts in the Tyler Co. case are strikingly similar to the facts before us in the case at bar. See Elevator Supplies Co., Inc., v. Wagner Mfg. Co., D.C.S.D.N.Y.1931, 54 F.2d 937. It is true that in the Tyler case the patent defendant’s salesman also represented another corporation which is not the fact in the case at bar. But this is a distinction, not a difference, since it is what the salesman does that is determinative, not whether he may do the same thing for someone else.
We have no choice but to follow the Tyler Co. case. If a more liberal meaning ought to be given to the phrase “a regular and established place of business” in the patent venue statute it is for the Supreme Court to do so, not for us. See also Endrezze v. Dorr Co., 9 Cir., 1938, 97 F.2d 46, 47.
We turn now to the court’s judgment insofar as it dismissed the plaintiff’s claim for unfair competition.
The ground stated by the court for its action on this aspect of the plaintiff’s complaint, i. e., failure to allege an adequate amount in controversy, is open to question. Counsel for the plaintiff at the hearing on the motion to dismiss hinted at the possibility of amending his complaint to allege an adequate amount in controversy, counsel for defendant said he would not object and the court indicated that it would certainly allow amendment “if that is the only obstacle”. Apparently, therefore, the reason the court took no action on the subsequent written motion to amend was that in its view allowance of the motion would not make any difference in its decision to dismiss the complaint for unfair competition. We think the court’s decision was correct regardless of the reason given in its memorandum opinion.
Ordinarily an amendment to cure a defective jurisdictional allegation would be permitted. And if plaintiff’s offered amendment were allowed the court would appear to have jurisdiction over its claim for unfair competition on the ground of the diversity of citizenship of the parties and the amount in controversy between them. But it does not follow as a matter of course that the court would have to exercise its jurisdiction, for as the Court in Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 504, 67 S.Ct. 839, 841, 91 L.Ed. 1055 said: “This court, in one form of words or another, has repeatedly recognized the existence of the power to decline jurisdiction in exceptional circumstances.” This case presents such circumstances.
The causes of action for patent infringement and for unfair competition, although separate, are so allied because of the similarity of the facts involved in each that when joined jurisdiction over the latter is conferred by jurisdiction over the former under the doctrine of Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, now embodied in Title 28 U.S.C. § 1338(b) quoted in the margin. Obviously there is a twofold reason for this. One is the convenience of the parties and the other the efficient and economical functioning of the courts. Two trials where one would do would serve no useful purpose but would only result in duplication of judicial time, effort and expense and cause needless inconvenience and expense to the parties, to witnesses and to counsel. There is thus every reason why General’s cause of action for unfair competition asserted by counterclaim in Superior’s suit against it for a declaratory judgment in New Jersey should be tried in New Jersey and no reason why it should remain as a separate ease in Massachusetts.
Judgment will be entered affirming the judgment and order of the District Court.
. “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.”
. “The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright patent or trade-mark laws.”
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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sc_lcdisagreement
|
A
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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.
LIBRARY OF CONGRESS et al. v. SHAW
No. 85-54.
Argued February 24, 1986
Decided July 1, 1986
Blackmun, J., delivered the opinion of the Court, in which BURGER, C. J., and White, Powell, Rehnquist, and O’ConnoR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, post, p. 323.
Charles A. Rothfeld argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, and Deputy Solicitor General Geller.
Charles Stephen Ralston argued the cause for respondent. With him on the brief was Julius LeVonne Chambers.
Justice Blackmun
delivered the opinion of the Court.
The no-interest rule is to the effect that interest cannot be recovered in a suit against the Government in the absence of an express waiver of sovereign immunity from an award of interest. In this case, attorney’s fees as well as interest on those fees were awarded to a plaintiff who prevailed against petitioner Library of Congress in a suit brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. We therefore must decide whether Congress, in enacting Title VII, expressly waived the Government’s immunity from interest.
H
Respondent Tommy Shaw is an employee of the Library of Congress. He is black. During 1976 and 1977, he filed three complaints with the Library’s Equal Employment Office alleging job-related racial discrimination. Following an investigation, Library officials rejected his complaints. Thereafter, respondent’s counsel pursued administrative relief and settlement negotiations, and eventually reached a settlement with the Library. The latter agreed to promote Shaw retroactively with backpay provided that the Comptroller General first determined that the Library had authority to do so in the absence of a specific finding of racial discrimination. The Comptroller General ruled that the Library, under the Back Pay Act, 5 U. S. C. §§5595, 5596, lacked that power; he did not address whether such relief was authorized under Title VII.
Respondent then filed suit in the United States District Court for the District of Columbia, contending that Title VII authorized the Library to accord the relief specified in the settlement agreement. On cross-motions for summary judgment, the court agreed with respondent that the Library had the power under Title VII to settle his claim by awarding him a retroactive promotion with backpay without a formal finding of discrimination. 479 F. Supp. 945 (1979). The Library therefore was authorized to promote Shaw with backpay, and to pay a reasonable attorney’s fee and costs pursuant to §706(k) of the Civil Rights Act, 42 U. S. C. §2000e-5(k). 479 F. Supp., at 949-950.
In a separate opinion calculating the attorney’s fee, the District Court began with a lodestar of $8,435, based on 99 hours of work at $85 per hour. App. to Pet. for Cert. 57a, 62a-66a. The court then reduced the lodestar by 20 percent to reflect the quality of counsel’s representation. Id., at 66a-67a. Finally, and significantly for present purposes, the court increased the adjusted lodestar by 30 percent to compensate counsel for the delay in receiving payment for the legal services rendered. Id., at 68a. The District Court, relying on Copeland v. Marshall, 206 U. S. App. D. C. 390, 403, 641 F. 2d 880, 893 (1980) (en banc), indicated that increasing an attorney’s fee award for delay is appropriate because the hourly rates used for the lodestar represent the prevailing rate for clients who typically pay their legal bills promptly, whereas court-awarded fees are normally received long after the legal services are rendered. An increase for delay is designed to compensate the attorney for the money he could have earned had he been paid earlier and invested the funds. The District Court concluded that the period of delay ran from the time the case should have ended, which it viewed as the latter part of 1978, until just after judgment.
The Court of Appeals for the District of Columbia Circuit affirmed. 241 U. S. App. D. C. 355, 747 F. 2d 1469 (1984). The court determined that, even though the adjustment was termed compensation for delay rather than interest, the no-interest rule applied because the two adjustments were functionally equivalent. The court went on to examine whether the Government expressly had waived its immunity from interest in Title VII. Section 706(k) of Title VII, 42 U. S. C. § 2000e-5(k), provides in relevant part:
“In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the [EEOC] or the United States, a reasonable attorney’s fee as part of the costs, and the [EEOC] and the United States shall be liable for costs the same as a private person.” (Emphasis added.)
The Court of Appeals noted that in a Title VII suit against a private employer, interest on attorney’s fees may be recovered. 241 U. S. App. D. C., at 361, 747 F. 2d, at 1475. See, e. g., Chrapliwy v. Uniroyal, Inc., 670 F. 2d 760 (CA7 1982), cert. denied, 461 U. S. 956 (1983). Therefore, the Court of Appeals reasoned, in making the United States liable “the same as a private person,” Congress waived the United States’ immunity from interest. In the alternative, the Court of Appeals held that even if the “same as a private person” provision was not an express waiver, the District Court’s adjustment was proper; when a statute measures the liability of the United States by that of a private person, the “traditional rigor of the sovereign-immunity doctrine” is relaxed. 241 U. S. App. D. C., at 365, 747 F. 2d, at 1479.
Judge Ginsburg dissented. Id., at 371, 747 F. 2d, at 1485. She found no express waiver of immunity from interest, and declined to join what she considered to be a judicial termination of the no-interest rule. She viewed the increase for delay in this case as an award of interest, based on the manner and timing of its computation. She indicated, however, that use of current rather than historical hourly rates in order to compensate for delay, or use of historical rates that were based on expected delay, see Murray v. Weinberger, 239 U. S. App. D. C. 264, 741 F. 2d 1423 (1984), would not run afoul of the no-interest rule.
We granted certiorari to address the question whether the Court of Appeals’ decision conflicts with this Court’s repeated holdings that interest may not be awarded against the Government in the absence of express statutory or contractual consent. 474 U. S. 815 (1985).
rH hH
In the absence of express congressional consent to the award of interest separate from a general waiver of immunity to suit, the United States is immune from an interest award. This requirement of a separate waiver reflects the historical view that interest is an element of damages separate from damages on the substantive claim. C. McCormick, Law of Damages § 50, p. 205 (1935). Because interest was generally presumed not to be within the contemplation of the parties, common-law courts in England allowed interest by way of damages only when founded upon agreement of the parties. See De Havilland v. Bowerbank, 1 Camp. 50, 51, 170 Eng. Rep. 872, 873 (N. P. 1807); Calton v. Bragg, 15 East. 223, 226-227, 104 Eng. Rep. 828, 830 (K. B. 1812); H. McGregor, Mayne and McGregor On Damages 281 (1961). In turn, the agreement-basis of interest was adopted by American courts. See Reid v. Rensselaer Glass Factory, 3 Cow. 393 (N. Y. 1824) (reviewing treatment of interest in state courts); C. McCormick, Law of Damages § 51, p. 208 (1935). Gradually, in suits between private parties, the necessity of an agreement faded. See id., at 210.
The agreement requirement assumed special force when applied to claims for interest against the United States. As sovereign, the United States, in the absence of its consent, is immune from suit. See United States v. Sherwood, 312 U. S. 584 (1941). This basic rule of sovereign immunity, in conjunction with the requirement of an agreement to pay interest, gave rise to the rule that interest cannot be recovered unless the award of interest was affirmatively and separately contemplated by Congress. See, e. g., United States ex rel. Angarica v. Bayard, 127 U. S. 251, 260 (1888) (“The case, therefore, falls within the well-settled principle, that the United States are not liable to pay interest on claims against them, in the absence of express statutory provision to that effect”)- The purpose of the rule is to permit the Government to “occupy an apparently favored position,” United States v. Verdier, 164 U. S. 213, 219 (1896), by protecting it from claims for interest that would prevail against private parties. See 4 Op. Atty. Gen. 136, 137 (1842).
For well over a century, this Court, executive agencies, and Congress itself consistently have recognized that federal statutes cannot be read to permit interest to run on a recovery against the United States unless Congress affirmatively mandates that result. The no-interest rule is expressly described as early as 1819, in an opinion letter from Attorney General William Wirt to the Secretary of the Treasury. Congress had enacted a private Act to reimburse a citizen for unspecified injuries. When the citizen sought interest, in addition to the damages authorized by Congress, Attorney General Wirt stated that there is “no reason ... to depart from the usual practice of the Treasury Department” of denying interest, and directed the citizen to seek relief from Congress. 1 Op. Atty. Gen. 268.
In creating the Court of Claims, Congress retained the Government’s immunity from awards of interest, permitting it only where expressly agreed to under contract or statute. Court of Claims Act, § 7, 12 Stat. 766 (current version at 28 U. S. C. § 2516(a)). Although the Act, by its terms, addresses only those cases brought in the Court of Claims, this Court repeatedly has made clear that the Act merely codifies the traditional legal rule regarding the immunity of the United States from interest. See, e. g., Tillson v. United States, 100 U. S. 43, 47 (1879); United States v. N. Y. Rayon Importing Co., 329 U. S. 654, 658 (1947); United States v. Tillamooks, 341 U. S. 48, 49 (1951). In cases not in the Court of Claims, this Court has reaffirmed the notion: “Apart from constitutional requirements, in the absence of specific provision by contract or statute, or ‘express consent ... by Congress,’ interest does not run on a claim against the United States.” United States v. Louisiana, 446 U. S. 253, 264-265 (1980), quoting Smyth v. United States, 302 U. S. 329, 353 (1937). See United States v. Sioux Nation of Indians, 448 U. S. 371, 387, n. 17 (1980).
I — I HH }-H
Respondent acknowledges the longstanding no-interest rule, but argues that Congress, by § 706(k), waived the Government’s immunity from interest in making the United States liable “the same as a private person” for “costs,” including “a reasonable attorney’s fee.”
In analyzing whether Congress has waived the immunity of the United States, we must construe waivers strictly in favor of the sovereign, see McMahon v. United States, 342 U. S. 25, 27 (1951), and not enlarge the waiver “‘beyond what the language requires,”’ Ruckelshaus v. Sierra Club, 463 U. S. 680, 685-686 (1983), quoting Eastern Transportation Co. v. United States, 272 U. S. 675, 686 (1927). The no-interest rule provides an added gloss of strictness upon these usual rules.
“[T]here can be no consent by implication or by use of ambiguous language. Nor can an intent on the part of the framers of a statute or contract to permit the recovery of interest suffice where the intent is not translated into affirmative statutory or contractual terms. The consent necessary to waive the traditional immunity must be express, and it must be strictly construed.” United States v. N. Y. Rayon Importing Co., 329 U. S., at 659.
A
When Congress has intended to waive the United States’ immunity with respect to interest, it has done so expressly; thus, waivers of sovereign immunity to suit must be read against the backdrop of the no-interest rule. Yet respondent contends that by equating the United States’ liability to that of a private party, Congress waived the Government’s immunity from interest. We do not agree. See Boston Sand & Gravel Co. v. United States, 278 U. S. 41 (1928).
Title VII’s provision making the United States liable “the same as a private person” waives the Government’s immunity from attorney’s fees, but not interest. The statute, as well as its legislative history, contains no reference to interest. This congressional silence does not permit us to read the provision as the requisite waiver of the Government’s immunity with respect to interest.
When Congress enacted Title VII in 1964, and provided in §706(k), 42 U. S. C. §2000e-5(k), that the Government should be liable for attorney’s fees “the same as a private person,” it rendered the United States subject to liability only as a plaintiff for the fees of certain prevailing defendants. See Christiansburg Garment Co. v. EEOC, 434 U. S. 412 (1978). At its inception, thus, the provision was at most a very limited waiver of sovereign immunity, establishing that the United States is liable for the fees of prevailing defendants in the same circumstances as are private plaintiffs. It was not until 1972 that Congress waived the Government’s immunity under Title VII as a defendant, affording federal employees a right of action against the Government for its discriminatory acts as an employer. See §717, 42 U. S. C. § 2000e-16(d). That § 706(k) already contained language equating the liability of the United States for attorney’s fees to that of a private person does not represent the requisite affirmative congressional choice to waive the no-interest rule; see also n. 5, supra.
Other statutes placing the United States in the same position as a private party also have been read narrowly to preserve certain immunities that the United States has enjoyed historically. In Laird v. Nelms, 406 U. S. 797 (1972), for example, the Court held that, although the Federal Tort Claims Act made the United States liable for the “negligent or wrongful act or omission of any employee of the Government ... , if a private person, would be liable to the claimant,” 28 U. S. C. § 1346(b), the United States nonetheless was not liable for the entire range of conduct classified as tortious under state law. Cf. Lehman v. Nakshian, 453 U. S. 156 (1981) (jury trials are available to private, but not to Government, employees under the Age Discrimination in Employment Act).
B
Nor do we find the requisite waiver of immunity from interest in the statutory requirement of awarding “reasonable” attorney’s fees. There is no basis for reading the term “reasonable” as the embodiment of a specific congressional choice to include interest as a component of attorney’s fees, particularly where the legislative history is silent. The Court consistently has refused to impute an intent to waive immunity from interest into the ambiguous use of a particular word or phrase in a statute. For example, interest has been ruled unavailable under statutes or.contracts directing the United States to pay the “amount equitably due.” See Tillson v. United States, 100 U. S., at 46. And the United States is not liable for interest under statutes and contracts requiring the payment of “just compensation,” United States v. Tillamooks, 341 U. S., at 49; United States v. Goltra, 312 U. S. 203 (1941), even though it long has been understood that the United States is required to pay interest where the Constitution mandates payment under the Just Compensation Clause. See Seaboard Air Line R. Co. v. United States, 261 U. S. 299 (1923).
Respondent argues, however, that the policy reasons that motivated Congress to permit recovery of a reasonable attorney’s fee require reading the statute as a waiver of immunity from interest. But policy, no matter how compelling, is insufficient, standing alone, to waive this immunity:
“[T]he immunity of the United States from liability for interest is not to be waived by policy arguments of this nature. Courts lack the power to award interest against the United States on the basis of what they think is or is not sound policy.” United States v. N. Y. Rayon Importing Co., 329 U. S., at 663.
C
Finally, we note that the provision makes the United States liable for “costs,” and includes as an element of “costs” a reasonable attorney’s fee. Prejudgment interest, however, is considered as damages, not a component of “costs.” See 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2664, pp. 159-160 (2d ed. 1983); 2 A. Sedgwick & G. Van Nest, Sedgwick on Damages 157-158 (7th ed. 1880). Indeed, the term “costs” has never been understood to include any interest component. See 28 U. S. C. §1920; see also Wright, Miller, & Kane, supra, §§2666 and 2670. A statute allowing costs, and within that category, attorney’s fees, does not provide the clear affirmative intent of Congress to waive the sovereign’s immunity.
>
In the alternative, respondent argues that the no-mterest rule does not prohibit the award of compensation for delay. But the force of the no-interest rule cannot be avoided simply by devising a new name for an old institution:
“[T]he character or nature of ‘interest’ cannot be changed by calling it ‘damages,’ ‘loss,’ ‘earned increment,’ ‘just compensation,’ ‘discount,’ ‘offset,’ or ‘penalty,’ or any other term, because it is still interest and the no-interest rule applies to it.” United States v. Mescalero Apache Tribe, 207 Ct. Cl. 369, 389, 518 F. 2d 1309, 1322 (1975), cert. denied, 425 U. S. 911 (1976).
Respondent claims, however, that interest and delay represent more than mere semantic variations. Interest and a delay factor, according to respondent, have distinct purposes: the former compensates for loss in the use of money, while the latter compensates for loss in the value of money. See Tr. of Oral Arg. 30.
We are not persuaded. Interest and a delay factor share an identical function. They are designed to compensate for the belated receipt of money. The no-interest rule has been applied to prevent parties from holding the United States liable on claims grounded on the belated receipt of funds, even when characterized as compensation for delay. See United States v. Sherman, 98 U. S. 565, 568 (1879). Thus, whether the loss to be compensated by an increase in a fee award stems from an opportunity cost or from the effects of inflation, the increase is prohibited by the no-interest rule. See Saunders v. Clayton, 629 F. 2d 596, 598 (CA9 1980) (“In essence, the inflation factor adjustment is a disguised interest award”), cert. denied, 450 U. S. 980 (1981); Blake v. Califano, 200 U. S. App. D. C. 27, 31, and n. 9, 626 F. 2d 891, 895, and n. 9 (1980) (as a matter of economic theory, there may be a distinction between interest and a delay factor, but both are nonetheless prohibited by the no-interest rule); D. Dobbs, Remedies §3.5, p. 174 (1973) (prejudgment interest represents delay damages).
That interest and compensation for delay are functionally equivalent also is supported by Title VII decisions concerning private employers. Private-sector decisions, when they adjust for the time of payment, grant interest or a delay factor, but not both. See, e. g., Brown v. Gillette Co., 536 F. Supp. 113 (Mass. 1982); Black Gold, Ltd. v. Rockwool Industries, Inc., 529 F. Supp. 272 (Colo. 1981); Kennelly v. Lemoi, 529 F. Supp. 140 (RI 1981).
V
In making the Government liable as a defendant under Title VII, Congress effected a waiver of the Government’s immunity from suit, and from costs including reasonable attorney’s fees. Congress did not waive the Government’s traditional immunity from interest. Accordingly, 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.
The lodestar component of an attorney’s fee is the product of “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U. S. 424, 433 (1983).
The institution of interest originated under Roman law as a penalty due from a debtor who delayed or defaulted in repayment of a loan. See Leadam, Interest and Usury, in 2 Palgrave’s Dictionary of Political Economy 432 (H. Higgs ed. 1925). The measure of the penalty due for the default or delay was id quod interest — that which is between — the difference between the creditor’s current position and what it would have been if the loan had been timely and fully repaid. See also W. Ashley, An Introduction to English Economic History and Theory 196 (1966); C. McCormick, Law of Damages § 51, pp. 207-208 (1935). Because interest was conceived of as a penalty, it was generally presumed not to be within the contemplation of the parties.
Prior to the creation of the Court of Claims, a citizen’s only means of obtaining recompense from the Government was by requesting individually tailored waivers of sovereign immunity, through private Acts of Congress. The administrative responsibility of hearing many of the claims was assigned to the Treasury Department. See W. Cowen, P. Nichols, & M. Bennett, The United States Court of Claims, Part II, p. 4 (1978). Accordingly, the earliest statements of the no-interest rule appear in opinion letters of Attorneys General in response to questions posed by the Comptroller of the Treasury concerning payment of interest where a private Act of Congress authorized the Treasury Department to pay damages, with no mention of interest on the damages. See generally Wiecek, The Origin of the United States Court of Claims, 20 Admin. L. Rev. 387 (1967).
Subsequent Attorneys General consistently reiterated the no-interest rule. See, e. g., 2 Op. Atty. Gen. 390, 392 (1830) (“[C]laims against the government. . . are not payable until demanded — and then without interest”); 3 Op. Atty. Gen. 635, 639 (1841) (“It is confidently believed, that in all the numerous acts of Congress for the liquidation and settlement of claims against the government, there is no instance in which interest has ever been allowed, except only where those acts have expressly directed or authorized its allowance”); 4 Op. Atty. Gen. 14, 15-16 (1842) (“I have no objection to admit, that as between individuals, the claim for interest in such a case would be an equitable and reasonable one. . . . But nothing is better established as a general rule than that the government is not to pay damages [in the form of interest] in such cases: a stern but necessary rule, adopted everywhere in the practice of government”); 4 Op. Atty. Gen. 286, 294 (1843) (“[U]nder the established usage of the Treasury Department, over and over again sanctioned by the opinions of the law officers of the government, the Secretary has no authority to allow [interest]”).
The “constitutional requirement” arises in a taking under the Fifth Amendment. To satisfy the constitutional mandate, “just compensation” includes a payment for interest. See, e. g., Smyth v. United States, 302 U. S., at 353-354; Albrecht v. United States, 329 U. S. 599, 605 (1947). The no-interest rule is similarly inapplicable where the Government has cast off the cloak of sovereignty and assumed the status of a private commercial enterprise. See, e. g., Standard Oil Co. v. United States, 267 U. S. 76, 79 (1925).
See, e. g., 28 U. S. C. §2411 (expressly authorizing prejudgment and postjudgment interest payable by the United States in tax-refund cases); 31 U. S. C. § 1304 (appropriating funds for interest on certain district court judgments); 26 U. S. C. § 7426(g) (providing for interest in cases of wrongful levy by Internal Revenue Service). In other statutes, Congress has reiterated the general rule that interest cannot be allowed against the United States absent express waiver. See, e. g., 28 U. S. C. § 2516(a) (interest available in the Claims Court only under contract or by statute expressly providing for payment thereof). Title 28 U. S. C. § 2674 provides that the United States is not liable for prejudgment interest on claims under the Federal Tort Claims Act. This unusual statutory exclusion was necessitated by the Federal Tort Claims Act’s specific reference to state law for the rules of decision, in order to make clear that the United States’ immunity from interest does not turn on state law.
When interest is awarded, as it was in this case, it is computed by multiplying a particular rate of interest by the amount of the award. An interest rate reflects not only the real opportunity cost of capital, but also the inflation rate. See R. Posner, Economic Analysis of Law 180 (3d ed. 1986). Thus, loss of value due to delay is an element of an interest adjustment.
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:
|
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.
JACKSON, Albert S., Jr., Appellant, v. The NATIONAL MARITIME UNION OF AMERICA, AFL-CIO.
No. 86-1544.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Feb. 19, 1987.
Decided June 30, 1987.
William D. Bubb, Sheldon N. Sandler, Young, Conaway, Stargatt & Taylor, Wilmington, Del., for appellant.
Ned R. Phillips, Phillips & Cappiello, P.C., New York City, for appellee.
Before HIGGINBOTHAM and SLOVITER, Circuit Judges, and ROTH, District Judge.
Honorable Jane R. Roth, United States District Court Judge for the District of Delaware, sitting by designation.
OPINION OF THE COURT
PER CURIAM:
In West v. Conrail, — U.S. -, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987), the United States Supreme Court explained the significance of its decision in DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In West, the Court noted that DelCostello had filled a gap in federal law by determining that the six-month limitation period prescribed in § 10(b) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 160(b) (1982), should be applied to hybrid claims under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1982). The Court went on, however, explicitly to hold that it did not intend, by so filling a gap in the federal law, “to replace any part of the Federal Rules of Civil Procedure with any part of § 10(b) of the National Labor Relations Act.” West v. Conrail, — U.S. —, 107 S.Ct. at 1541. Rather, the Court found that “Rule 3 of the Federal Rules of Civil Procedure provides that a civil action is commenced by filing a complaint with the court, and Rule 4 governs the procedure for effecting service and the period within which service must be made.” Id. Rule 4(j) of the Federal Rules requires that service normally be made within 120 days of filing. Id.
Here, the parties concede that appellant’s cause of action under § 301 accrued on January 7, 1985 at the earliest. The parties also concede that appellant filed his claim on July 3, 1985, in accordance with Rule 3, and within six months of the accrual of his claim. It is also agreed that appellee was served with the complaint no later than July 16, 1985, within 120 days from July 3, 1985, in accordance with Rule 4(j) of the Federal Rules, and in accordance with all other provisions of Rule 4. Since West establishes that valid Rule 4 service is valid service for purposes of § 301, and since appellant properly filed under Rule 3 within the DelCostello period, appellant’s claim was not time-barred. See West v. Conrail, 820 F.2d 90 (3d Cir.1987) (per curiam) (service valid under Rule 3 and Rule 4 is valid service for hybrid claims).
Accordingly, the district court’s order, 646 F.Supp. 699, granting summary judgment for appellee because the action was untimely will be reversed in light of West and this case remanded to the district court for further proceedings consistent with that opinion.
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_casetyp1_1-3-1
|
J
|
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".
Robert L. RAMSOUR, Appellant v. UNITED STATES of America, Appellee.
No. 15335.
United States Court of Appeals District of Columbia Circuit.
Submitted May 6, 1960.
Decided June 9, 1960.
Appellant filed a brief, pro se, and his case was treated as submitted thereon.
Mr. Frank Q. Nebeker, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, submitted on the brief for appellee.
Before Phillips, Senior United States Circuit Judge for the Tenth Circuit, and Fahy and Washington, Circuit Judges.
Sitting by designation pursuant to Section 294(d), Title 28, U.S.Code.
PER CURIAM.
Appellant was convicted on eleven counts of an indictment under the narcotics laws. 21 U.S.C. § 174 (1958); 26 U.S.C. §§ 4704(a), 4705(a) (1958). He filed a timely application for leave to appeal in forma pauperis, which the District Court denied. Later, he moved to vacate his sentence, under 28 U.S.C. § 2255 (1958). The motion was denied, and this appeal followed.
Whether this case be considered as a belated direct appeal from the judgment of conviction, cf. Blunt v. United States, 1957, 100 U.S.App.D.C. 266, 244 F.2d 355, or simply as an appeal from the order denying the motion under Section 2255, we must conclude that appellant is not entitled to relief. We have reviewed the entire record, and perceive no prejudicial error as to any of the counts of which appellant was found guilty, or in the denial of the motion under Section 2255.
Affirmed.
. We express no opinion as to whether on the facts here appellant is entitled to have his ease so considered.
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_usc1
|
11
|
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.
In the Matter of James Russell FERWERDA, Bankrupt. James Russell FERWERDA, Appellant, v. William Urban ZIEVERS, Trustee, Appellee.
No. 18038.
United States Court of Appeals, Seventh Circuit.
April 3, 1970.
Francis X. Krembs, Milwaukee, Wis., for appellant.
William Urban Zievers, Kenosha, Wis., for appellee.
Before HASTINGS,' Senior Circuit Judge, CUMMINGS, Circuit Judge, and DILLIN, District Judge.
. Judge Dillin is sitting by designation from the Southern District of Indiana.
HASTINGS, Senior Circuit Judge.
The district court affirmed an order of the referee in bankruptcy which in effect disallowed the bankrupt’s claim that certain deposits made by him under a retirement plan were exempt from the operation of the federal Bankruptcy Act. The bankrupt appeals. We affirm.
The bankrupt, James Russell Ferwer-da, is a physician and surgeon engaged in the practice of ophthalmology in Kenosha, Wisconsin. His voluntary petition and schedules were filed in the United States District Court for the Eastern District of Wisconsin. The proceeding was referred to the Honorable James E. McCarty, Referee. William Urban Zievers qualified as trustee.
In Schedule B-5, the bankrupt claimed deposits of $6,346.01 made by him under the American Medical Association Members’ Retirement Plan (the Plan) were exempt by the laws of the United States and the laws of the State of Wisconsin. The parties now concede and agree that there is no applicable federal law under which the subject deposits could be allowed as exempt, and that the question must be determined under Wisconsin law.
The bankrupt contends that his deposits under the Plan are exempt by virtue of Section 272.18(31) of the Wisconsin Statutes (1967). This statute exempts from execution, and prohibits voluntary transfers of, any person’s interest in an “employes’ trust” defined as “any trust created by an employer as part of a retirement or pension plan * * for the exclusive benefit of some or all of his employes * * * provided that it is impossible * * * for any part of the corpus or income to be * * * diverted to purposes other than for the exclusive benefit of such employes * * *»
The bankrupt here is a self-employed physician and not an “employee” in the usual sense of being employed by another. Funk & Wagnalls New Standard Dictionary of the English Language (1942); Webster’s Third New International Dictionary (1957); The Random House Dictionary of the English Language (1967); and The American Heritage Dictionary of the English Language (1969). He nevertheless claims that his interest in the Plan is within the exemption provided by the Wisconsin statute for the reason that the Plan defines “employee” to include self-employed “owner-employees.”
The Plan was drawn by the AMA to meet the requirements of the “Self-Employed Individuals Tax Retirement Act of 1962,” commonly known as the “Keogh Act,” P.L. 87-792, 76 Stat. 809, 26 U.S. C.A. § 401 et seq. Under the Act, self-employed individuals are treated as “employees” under qualified retirement plans and are eligible for certain tax benefits. The bankrupt, however, makes no claim of exemption under this federal act, and its provisions cannot affect the meaning of the term “employe” in the Wisconsin statute under consideration, which was first enacted in 1947.
The bankrupt may well qualify as an “employee” under the broader definition used in the Plan to meet Keogh Act requirements. However, the Plan is essentially a private contract between the bankrupt and the AMA which can have no controlling effect on the meaning of a term as used in the statutes of Wisconsin. It is our opinion that when the Wisconsin legislature enacted Section 272.18(31) it had in mind the normal meaning of the term “employe” which does not include the “self-employed.” The bankrupt has not shown any legislative intent to use the term with other than its ordinary and accepted meaning. Thus we conclude that the bankrupt’s interest under the Plan is not exempted from the operation of the federal Bankruptcy Act by Wisconsin law. The Wisconsin legislature could have enacted such an exemption but has not done so.
The bankrupt raises a second issue for the first time on this, appeal. He contends that, regardless of their exempt status, these deposits are not property to which the trustee acquired title by virtue of Section 70a of the Bankruptcy Act, 11 U.S.C.A. § 110(a), supra. The basis for this contention is the assertion that the bankrupt had no right to transfer or withdraw his interest in the Plan before he filed his petition in bankruptcy. Since this issue was not raised before the referee or the district court, we deem it inappropriate to reach and determine it on this appeal. It appears that it would be appropriate to raise such question in any subsequent turnover proceeding concerning the bankrupt’s interest in the Plan.
Simply stated, we agree with the referee and the district court that the bankrupt’s claimed exemption does not fall within the purview of the appropriate Wisconsin statute.
Accordingly, we find no error in the district court’s approval of the order under review and its denial of the petition for review is affirmed.
Affirmed.
. The applicable provisions of the Bankruptcy Act are Section 6, 11 U.S.C.A. § 24 and Section 70, 11 U.S.C.A. § 110. The relevant parts are as follows:
Ҥ 24. Exemptions of bankrupts
This title shall not affect the allowance to bankrupts of the exemptions which are prescribed by the laws of the United States or by the State Laws in force at the time of the filing of the petition in the State wherein they have had their domicile for the six months immediately preceding the filing of the petition, or for a longer portion of such six months than in any other State; * *
Ҥ 110. Title to property
(a) The trustee of the estate of a bankrupt and his successor or successors, if any, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initating a proceeding under this title, except insofar as it is to property which is held to be exempt, to all of the following kinds of property wherever located * *
. Section 272.18(31) provides in relevant part:
“Section 272.18 Property exempt from execution
* He * He *
(31) Employe retirement benefits (a) The term ‘employes’ trust’ He He He shall mean any trust created by an employer as part of a retirement or pension plan * He He for the exclusive benefit of some or all of his employees * * * to which contributions are made by such employer, or employes, or both, for the purpose of distributing in accordance with such plan to such employes He He ne the earnings or the principal, or both earnings and principal, of the trust fund, provided that it is impossible under the trust instrument at any time prior to the satisfaction of all liabilities with respect to employes and their dependents and beneficiaries under the trust, for any part of the corpus or income to be at any time used for or diverted to purposes other than for the exclusive benefit of such employees, or their dependents or beneficiaries. * * *.
* * * * *
(c) The interest of any person in any employes’ trust * * * shall not be subject to any garnishment, attachment, execution, sequestration, levy or any other legal or equitable process and no assignment of any such interest, pension or other benefit shall be valid or recognized.
. Included in Section 70a as property to which the trustee acquired title by operation of law is “(5) property, * * * which prior to the filing of the petition he [the bankrupt] could by any means have transferred or which might have been levied upon and sold under judicial proc-cess against him, or otherwise seized, impounded, or sequestered: * *
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_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.
George F. DELNO, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Appellee.
No. 19348.
United States Court of Appeals Ninth Circuit.
June 7, 1965.
J. A. Pardini, Elda Granelli, Julian Pardini, San Francisco, Cal., for appellant.
Cecil F. Poole, U. S. Atty., Robert S. Marder, Charles E. Collett, Asst. U. S. Attys., San Francisco, Cal., for appellee.
Before HAMLIN, JERTBERG, and BROWNING, Circuit Judges.
BROWNING, Circuit Judge.
This is an appeal from a summary judgment sustaining a decision of the Appeals Council of the Social Security Administration which denied appellant' Delno’s application for old-age insurance benefits under section 202(a) of the Social Security Act, 42 U.S.C.A. § 402(a).
Appellant and his wife purchased an undivided one-half interest in a thirty-unit apartment house in 1956, and entered into a contract for the operation of the property with the couple owning the other one-half interest. It was agreed that income and operating expenditures would be divided equally between the two couples. Appellant was to “act as manager of said property and apartment house, collecting the rents and accounting for all income and expenditures.” In addition to his share of profits, he was to be paid $300 per month, later increased to $400, “as an operating expense * * * when the operation shows a net profit to the parties thereto.”
The general purpose of the old-age, survivor and disability insurance provisions of Title II of the Social Security Act is to protect workers and their dependents from the risk of loss of income due to the insured’s old age, death, or disability. Accordingly, entitlement to benefits is based upon the receipt of income from labor, which old age, death, or disability would interrupt; and not upon the receipt of income from the investment of capital, which these events would presumably not affect. The ultimate problem in this case is to determine whether the statutory provisions and interpretive regulations which have been drawn with this general distinction in mind require that the payments which appellant received be treated as investment income rather than income from labor.
Under the scheme of the Act, qualifying income may be received either as “wages” (42 U.S.C.A. § 409) or “net earnings from self-employment” (42 U.S. C.A. § 411(a)). Appellant contends that the income in question falls in either one or the other of the statutory categories.
I
Appellant’s first line of argument is that his income as “manager” constituted “wages” paid to him as an “employee” of a “partnership” created by the agreement of February 1, 1956, and that further inquiry into the nature of the payments is barred by the interposition of the partnership entity, just as it would be if the employer were a corporation, under our decisions in Stark v. Flemming, 283 F.2d 410 (9th Cir. 1960) and Flemming v. Lindgren, 275 F.2d 596 (9th Cir. 1960).
The Appeals Council concluded that appellant was not an “employee” within the meaning of the Act. Section 210 (j) (2) of the Act, 42 U.S.C.A. § 410(j) (2), defines the term as including those who would occupy an employee status “under the usual common law rules.” The Appeals Council pointed out that “such common law rules, as explained in section 404.1004 of the Social Security Administration Regulations No. 4 (20 C.F.R. 404.1004), stress the right of the ‘employer’ to exercise control over the individual alleged to be an employee with respect to the manner in which the services are performed.” And the Council held that “the record in the instant case does not establish that the claimant was subject to such control, or even to a ‘right’ of control which could make him an employee of the other partners either singly or in combination.”
While we do not agree with the overriding emphasis which the Council, and the regulation, appear to place upon the factor of control, considering the record as a whole we think the Council’s conclusion that appellant was not an “employee” was a permissible one under generally accepted criteria for determining the existence of the employee-employer relationship.
II
The government impliedly concedes that if appellant is excluded from the category of “employees” earning “wages”, he should be included in the alternative class of persons receiving “net earnings from self-employment” derived from “trade or business carried on” by such persons or by partnerships of which they are members. 42 U.S.C.A. § 411(a). We think this concession is proper. The premise of the system established by Part II of the Act is that all gainfully employed persons are to be covered, except as specifically excluded. The language of the Act is therefore to be interpreted in favor of coverage. Since appellant was a member of a partnership which operated a sizable apartment house, the income which he received was clearly “self-employment” income derived from a “trade or business” within the meaning of the Act.
The government argues, however, that appellant’s income fell within an express statutory exclusion.
In furtherance of the general purpose of the Act, section 211(a) “does withdraw from consideration as ‘net earnings from self-employment’ the sort of income arising from passive property ownership. It excludes by name real estate rentals, dividends, interest and certain capital gains and losses. ’ Bernstein v. Ribicoff, 299 F.2d 248; 253 (3d Cir. 1962). The Appeals Council thought that appellant’s income fell within the statutory exclusion of “rentals from real estate” found in section 211(a) (l).
The Committee reports accompanying the bill which included section 211(a) (1) of the Act make it clear that not all payments which might be considered “rent” in ordinary parlance are to be excluded from self-employment net income. Thus, “payments for the use or occupancy of entire private residences or living units in duplex or multiple-housing units are generally rentals from real estate,” but “payments for the use or occupancy of rooms or other space where services are also rendered to the occupant, such as for the use or occupancy of rooms or other quarters in hotels, boarding houses, or apartment houses furnishing hotel services * * * do not constitute rentals from real estate,” within the meaning of section 211 (a) (1)
The apparent intent of Congress was that section 211(a) (1) should be applied to exclude only payments for use of space, and, by implication, such services as are required to maintain the space in condition for occupancy. If the owner performs additional services of such substantial nature that compensation for them can be said to constitute a material part of the payment made by the tenant, the “rent” received then consists in part of income attributable to> the performance of labor which is not incidental to the realization of return from passive investment. In such circumstances, the entire payment is to be included in computing the recipient’s “net earnings from self-employment.”
The agency has adopted regulations purporting to implement Congress’s intention. .
After the initial administrative rejection of appellant’s claim on the ground that the income which he received was rental income, appellant requested a hearing, stating that he had furnished tenants a variety of services other than those required for the protection and maintenance of the property, including supplying linens and towels, cleaning apartments, emptying wastebaskets, providing laundry service, and cleaning and servicing the swimming pool. At the hear-mg, appellant supplemented this written submission by testimony that nineteen of the thirty available units were rented as furnished apartments, that he entered all apartments using his own key in accordanee with a provision in the leases, that waste was collected from baskets in two thirds of the apartments, that windows of all apartments were washed monthly, and that kitchens were washed down and stoves cleaned in all apartments at two-month intervals. He testified that he also devoted substantial time to the maintenance and operation of the swimming pool and its associated filtering and chlorinating equipment. The hearing examiner found “that the extensive services rendered by claimant” came within the “services to occupant” exception to the exclusion of rental income.
The Appeals Council purported to accept the hearing examiner’s findings of fact, but nonetheless concluded that the payments which appellant received fell within the rental income exclusion. We think the Council’s conclusion may have been induced by the application of erroneous standards.
The record indicates that the Appeals Council applied the “services to occupant” exception narrowly, and included borderline items in the rental exclusion. The general statutory preference for coverage would seem to require the opposite approach. Moreover, there is specific evidence that Congress intended the rental exclusion to be narrowly restricted to payments for occupancy only. These considerations, as well as the general purposes of the Act, dictate that any service not clearly required to maintain the property in condition for occupancy be considered work performed for the tenant, and not for the conservation of invested capital.
The administrative agency must determine anew in light of the proper standard whether substantial services not necessary to the maintenance of the property were performed. We therefore do not attempt to evaluate all of the many and varied services which appellant offered. We do suggest, however, that the considerable daily labor required to keep the swimming pool in operating condition was not necessary to the maintenance of the rented space in condition for occupancy; and that the same may well be true of the time expended in servicing the washers, dryers, and other facilities in the laundry. To comport with the statutory purpose, the language of the regulation requiring that services be “other than those usually or customarily rendered in connection with the rental of rooms or other space for occupancy only” must be read with emphasis upon the closing phrase, “for occupancy only.” Otherwise, the continuing expansion of the services which are commonly offered by operators of modern apartment developments would result in a concurrent expansion of the rental exception and reduction in labor income qualifying for coverage.
It may also be well to point out that services are not automatically within the exclusion simply because they may be classifiable in the general category of “maintenance and repair.” The essential question remains whether the maintenance and repair is of the kind necessary to protect the property investment and maintain the space in condition for occupancy. Similarly, it is not determinative that the services were performed for the tenants as a group rather than for each tenant individually.
We think the Council erred in another respect. Having determined that appellant had expended substantial effort upon activities which the Council regarded as involving maintenance of the property in condition for occupancy, the Council accorded little independent consideration to evidence indicating that appellant had also devoted substantial time to furnishing other types of service. Evidence that appellant devoted a great deal of time to the former did not establish, as the Council assumed, that he devoted little time to the latter. There was affirmative evidence that he did in fact devote much time to other services, as we have pointed out. Appellant may have exaggerated the time which he devoted to all of his work, but there was nothing to indicate that his tendency to puff applied more to one category of service than to the other. If appellant did perform substantial additional services, it would be irrelevant that an even greater amount of time was devoted to services designed to protect the property.
The Council also erred in holding that non-excluded services were gratuitously performed because the leases did not obligate the owners to perform them. Appellant had no intention of conferring a gratuity. The services were rendered as a part of appellant’s total effort to satisfy his tenants and thus assure the profitable operation of the business. They were a portion of the total package of rights and services which was extended to the tenants and for which the tenants were willing to pay, and the record indicates that their availability played a part in maintaining full occupancy of the apartments. It was no doubt irrelevant to the tenants that they may have had no legal right to compel the performance of these services, and we think it equally irrelevant to the application of section 211(a) (1).
Finally, the Appeals Council gave no separate consideration to the payments received from the tenants of the nineteen furnished apartments, although the record indicated that more nonexcluded services were offered to these tenants than to the others. The regulations provide, properly we think, that if the payments received from any of the tenants qualified for exception from the exclusion of rental income, these payments were to be included in determining net earnings from self-employment, even if payments from other tenants might not qualify.
The judgment of the district court is vacated, with directions to remand to the Secretary for such further proceedings as he may consider appropriate in the light of this opinion.
. Social Security Bd. v. Nierotko, 327 U.S. 358, 364, 66 S.Ct. 637, 90 L.Ed. 718 (1946); S.Rep. No. 1669, 81st Cong., 2d Sess. (1950) (1950 U.S.Code Cong. Serv., p. 3288); David, 14 Ind. & Lab. Rel. Rev. 10, 11-12 (1960).
. Hearings on an Analysis of the Social Security System Before a Sub-Committee of the House Committee on Ways and Means, 83d Cong., 1st Sess. 459, 504-05 (1953). See also Celebrezze v. Miller, 333 F.2d 29, 30 (5th Cir. 1964); Celebrezze v. Maxwell, 315 F.2d 727, 728 (5th Cir. 1963); Bernstein v. Ribicoff, 299 F.2d 248, 253-254 (3d Cir. 1962).
. See also Brannon v. Ribicoff, 200 F. Supp. 697, 703 (D.C. Mont. 1961).
. See Broden, Law of Social Security and Unemployment Insurance 30-31, 90-96 (1962).
. Since the nature of the relationship could not be determined by interpretation of the contract alone, due to its ambiguity, a question of fact was presented to be determined by the Appeals Council from all of the evidence, including the agreement (Miller v. Flemming, 275 F.2d 763, 765 (9th Cir. 1960)), and the Council’s determination of the issue is conclusive if supported by substantial evidence. 42 U.S.C.A. § 405(g); McMullen v. Celebrezze, 335 F.2d 811, 814 (9th Cir. 1964).
. Schottland, 46 Calif. L. Rev. 315, 319 (1958) ; David, 14 Ind. & Lab. Rel. Rev. 10,13-14 (1960).
. St. Luke’s Hosp. Ass’n v. United States, 333 F.2d 157,164 (6th Cir. 1964); Brown & Bartlett v. United States, 330 F.2d 692, 693-694 (6th Cir. 1964) ; Celebrezze v. Kilborn, 322 F.2d 166, 168 (5th Cir. 1963); Ewing v. McLean, 189 F.2d 887, 892 19th Cir. 1951).
. Sec. 211(a) of the Act, 42 U.S.C.A. § 411(a) (1964) provides in part:
“The term ‘net earnings from self-employment’ means the gross income, as computed under [the Internal Revenue Code of 1954], derived by an individual from any trade or business carried on by such individual, less the deductions allowed under [the Internal Revenue Code of 1954] which are attributable to such trade or business, plus his distributive share (whether or not distributed) of the ordinary net income or loss, as computed under [the Internal Revenue Code of 1954], from any trade or business carried on by a partnership of which he is a member; except that in computing such gross income and deductions and such distributive share of partnership ordinary net income or loss — (1) There shall be excluded rentals from real estate and from personal property leased with the real estate * * *, together with the deductions attributable thereto, unless such rentals are received in the course of a trade or business as a real estate dealer * * * »>
. S.Rep. No. 1669, 81st Cong., 2d Sess. (1950) (1950 U.S.Code Cong.Serv. p. 3454). The comment in full reads:
“Payments for the use or occupancy of entire private residences or living units in duplex or multiple-housing units are generally rentals from real estate. Except in the case of real-estate dealers, such payments are excluded under paragraph (1), even though in part attributable to personal property furnished under the lease. On the other hand, payments for the use or occupancy of rooms or other space where services are also rendered to the occupant, such as for the use or occupancy of rooms or other quarters; in hotels, boarding houses, or apartment houses furnishing hotel services,, or in tourist camps or tourist homes,, or for the use or occupancy of space itt parking lots, warehouses, or storage' garages do not constitute rentals from real estate.”
. Congress realized that the income of self-employed persons is in most instances a combination of income from both labor and invested capital, and deliberately chose not to attempt the difficult, if not impossible, task of separating one from the other. Congress recognized that no substantial distortion would result, since in any event § 211(b) (1) of the Act (42 U.S.C.A. § 411(b) (1)) imposed a ceiling of from $3,600 to $4,800 on the total annual net earnings from self-employment which may be included in determining eligibility for benefits. Hearings on H.R. 2893 (Social Security) Before the House Committee on Ways and Means, 81st Cong., 1st Sess. 1362-65 (1949). See also Hearings Before the Subcommittee on the Analysis of the Social Security System of the House Committee on Ways and Means, 83d Cong., 1st Sess., at 459, 504-07 (1953).
. Sec. 404.1052(a) (2), (3), and (4) of the Social Security Administration Regulations, 20 C.F.R. § 404.1052(a) (2), (3), and (4) provide:
“(2) Payments for the use or occupancy of entire private residences or living quarters in duplex or multiple-housing units are generally rentals from real estate. Except in the case of real estate dealers, such payments are excluded in determining net earnings from self-employment even though such payments are in part attributable to personal property furnished under the lease.
(3) Payments for the use or occupancy of rooms or other space where services are also rendered to the occupant, such as for the use or occupancy of rooms or other quarters in hotels, boarding houses, or apartment houses furnishing hotel service, or in tourist camps or tourist homes, or for the use or occupancy of space in parking lots, warehouses, or storage garages, do not constitute rentals from real estate; consequently, such payments are included in determining net earnings from self-employment. Generally, services are considered rendered to the occupant if they are primarily for his conveniences and are other than those usually or customarily rendered in connection with the rental of rooms or other space for occupancy only. The supplying of maid service, for example, constitutes such service, whereas, the furnishing of heat and light, the cleaning of public entrances, exits, stairways and lobbies, the collection of trash, and so forth, are not considered as services rendered to the occupant.
(4) Except in the case of a real estate dealer, where an individual or a partnership is engaged in a trade or business the income of which is classifiable in part as rentals from real estate, only that portion of such income which is not classifiable as rentals from real estate, and the expenses attributable to such portion, will be included in determining net earnings from self-employment.
Example. A, an individual, owns a building containing four apartments. During the taxable year, he receives $1,400 from apartments numbered 1 and 2, which are rented without services rendered to the occupants, and $3,600 from apartments numbered 3 and 4, which are rented with services rendered to the occupants. His fixed expenses for the four apartments aggregate $1,200 during the taxable year. In addition, he has $500 of expenses attributable to the services rendered to the occupants of apartments 3 and 4. In determining his net earnings from self-employment, A includes the $3,-600 received from apartments 3 and 4, and the expenses of $1,100 attributable thereto. The rentals and expense attributable to apartments 1 and 2 are excluded. Therefore, A has $2,500 of net earnings from self-employment for the taxable year.”
. “* * * I furnished personal services to tenants on request: furnishing linen .& towels, mopping & sweeping floors, dusting & cleaning the apartments, cleaning out tenants’ sewers once a week, cleaning bathroom fixtures, emptying wastebaskets, and providing laundry service. I also myself every day scrubbed the sides of the swimming pool, cleaned its filters, & added chlorine & water $ $ * 19
. For example, during hearings before a Subcommittee of the House Ways and Means Committee, 83d Cong., 1st Sess. (1953), concerned with an Analysis of the Social Security System (supra note 10), § 211(a) (1) was described as an exclusion of “pure rental income” (supra note 10 at 504) and Robert M. Ball, Acting Director, Bureau of Old Age and Survivors Insurance, testified that “the attempt was to rule out a few types of income which by and large were investment income entirely.” Supra note 10 at 505.
. It is important to note that the exclusion of payments for labor performed in the maintenance of investment property does not reflect an affirmative, competing legislative purpose to be weighed equally with the purposes for which the Act was in fact enacted. If the owner does not hire another to perform such labor, he must do it himself; if he does it himself, the portion of his income which is attributable to it will be interrupted by old age, disability, or death. This is the very risk against which the Act was designed to afford protection. Supra note 1 and related text. However, because Congress “did not think that it would be advisable to consider all income from all rentals,” a line had to be drawn, and exclusion of compensation for some personal labor was simply the unavoidable practical consequence of the line that was drawn. Analysis of the Social Security System, supra note 10 at 505.
. It also appears that the Appeals Council may have misread the entry of time spent “disposing of refuse into cans” as referring to collection of trash from hallways, etc. The transcript indicates that the reference is to the emptying of wastebaskets removed from individual apartments.
. Sec. 404.1052(a) (3), supra note 11.
. Supra note 11. But see Conklin v. Celebrezze (319 F.24 569, 571 (7th Cir. 1963).
. Stark v. Flemming, 283 F.2d 410, 411 (9th Cir. 1960); Flemming v. Lindgren, 275 F.2d 596, 598 (9th Cir. 1960).
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:
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songer_treat
|
B
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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.
NEW YORK STATE ELECTRIC & GAS CORPORATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Village of Penn Yan, New York, Municipal Electric Utilities Association of New York State, Intervenors.
No. 714, Docket 79-4185.
United States Court of Appeals, Second Circuit.
Argued March 31, 1980.
Decided Sept. 30, 1980.
Frederic H. Lawrence, New York City (Kenneth M. Jasinski, Huber, Magill, Lawrence & Farrell, New York City, on the brief), for petitioner.
Jane C. Murphy, Washington, D. C. (Robert R. Nordhaus, Gen. Counsel, Jerome Nelson, Sol., Federal Energy Regulatory Commission, Washington, D. C., on the brief), for respondent.
J. Cathy Lichtenberg, Washington, D. C. (Frederick D. Palmer, Duncan, Weinberg, Palmer & Miller, P. C., Washington, D. C., on the brief), for intervenors.
Before VAN GRAAFEILAND and KEARSE, Circuit Judges, and GOETTEL, District Judge.
Honorable Gerard L. Goette], Judge of the United States District Court for the Southern District of New York, sitting by designation.
KEARSE, Circuit Judge:
This is a petition by New York State Electric & Gas Corporation (“NYSEG”) for review of orders of the Federal Energy Regulatory Commission (the “Commission”), invalidating certain provisions in contracts entered into by NYSEG with, respectively, the Power Authority of the State of New York (“PASNY”) and the Village of Penn Yan, New York (“Penn Yan” or the “Village”) on the grounds that the provisions violated federal antitrust policy. NYSEG contends that the orders should be vacated because the Commission lacked jurisdiction over the contracts in question, because principles of state immunity make federal antitrust policy inapplicable, and because the Commission failed to comply with pertinent provisions of the Federal Power Act (“FPA”).
We conclude that the Commission has jurisdiction to require the filing and modification of the challenged contracts, but that a hearing should have been held in order for the Commission to assess the public interest in those contracts and that the Commission’s orders, without complying with statutory requirements, require the provision of transmission services, known as “wheeling,” within the meaning of § 211 of the FPA. Accordingly, we vacate the orders and remand to the Commission for proceedings consistent with §§ 206, 211 and 212 of the FPA.
I. FACTUAL BACKGROUND
A. The Parties and the Contracts
NYSEG is a New York corporation engaged in the generation, purchase, transmission and wholesale and retail distribution of electric power and energy. It is a public utility subject to the provisions of the FPA; it provides transmission services to PASNY and sells or has sold power to Penn Yan and other communities.
Village of Penn Yan is a municipal corporation located in Yates County, New York. It owns an electric utility, Penn Yan Municipal Board, which is a wholesale purchaser and retail distributor of electric energy. References to “Penn Yan” include its electric utility.
PASNY is “a political subdivision” of New York State which is responsible for helping to maximize “beneficial use” of the Niagara and St. Lawrence Rivers, including the development of hydroelectric power. N.Y.Pub.Auth.Law §§ 1002, 1001 (McKinney 1970 & Supp.1979-1980). Under the New York Power Authority Act, PASNY is directed and authorized, inter alia, to “make provision so that municipalities and other political subdivisions of the state... may secure a reasonable share of the power generated” by the Niagara and St. Lawrence hydroelectric projects, and to construct or acquire, by contract, the use of transmission lines to conduct electricity to purchasers. N.Y.Pub.Auth.Law §§ 1005.5, 1005.7 (McKinney Supp.1979-1980). PASNY generates energy at the Niagara Power Project and sells that power on a wholesale basis to NYSEG and to other customers by means of transmission lines furnished by NYSEG.
The Commission, successor to the Federal Power Commission, has jurisdiction over all facilities for “the transmission of electric energy in interstate commerce and... the sale of electric energy at wholesale in interstate commerce.” FPA § 201, 16 U.S.C. § 824(b) (1976). It has the power to identify and remedy certain unjust or unreasonable rates, charges or contracts of public utilities. FPA § 206, 16 U.S.C. § 824e (1976).
The present proceeding involves a 1961 contract between NYSEG and PASNY, referred to as NS-11, and a 1962 agreement between NYSEG and Penn Yan. The controversy arises out of the desire of Penn Yan for a modification of those contracts.
The 1961 contract between NYSEG and PASNY, NS-11, recited PASNY’s intention “to enter into agreements... for the sale, transmission and distribution of power and energy from the [Niagara hydroelectric power development] Project with municipalities and rural electric cooperatives operating electric systems serving rural and domestic consumers within [PASNY’s] Niagara market area,” and provided that NYSEG would maintain “transmission facilities capable of transmitting Project power within the limits herein provided to such prospective purchasers from [PASNY].” The contract further provided that NYSEG would accept delivery of Project power “into its electric transmission system... and... deliver an equivalent amount of electric power and energy... to [PASNY] for its own use or for municipalities and rural electric cooperatives.” Article X, Paragraph 3 of NS-11, limited NYSEG’s obligation to deliver power for PASNY as follows:
The electric power and energy to be delivered by [NYSEG] to [PASNY] for customers from the system of [NYSEG] will be limited to such electric power and energy as is necessary for the use, distribution and resale within the area limits. served as of the date hereof by the Villages of Bath, Castile, Endicott, Greene, Groton, Marathon, Penn Yan, Silver Springs and Watkins Glen, ChautauquaCattaraugus Electric Cooperative, Inc. and Steuben Rural Electric Cooperative, Inc., and for such other loads and customers of [PASNY] as may be mutually agreed upon from time to time.
(Emphasis added.) Thus, the NYSEG agreement with PASNY did not obligate NYSEG to transmit Project power for the use of any area annexed to Penn Yan after 1961.
In 1962, NYSEG and Penn Yan entered into a contract which terminated a 1956 agreement pursuant to which Penn Yan had been a wholesale purchaser of power from NYSEG. In the 1956 contract, Penn Yan had agreed to purchase from NYSEG all of the electrical energy required within the existing territorial limits of the Village and its franchise area for a 10-year period. In 1962, however, Penn Yan decided to purchase its power from PASNY instead of NYSEG, and so notified NYSEG. NYSEG took the position that this would constitute a breach of the 1956 agreement and would result in damages to NYSEG in the amount of $95,910.48. Penn Yan decided to pay NYSEG this amount to buy out of the 1956 agreement. Reciting (a) that Penn Yan “believe[s] that it is to its financial advantage to obtain its electrical energy requirements” from PASNY, (b) that the required energy to be supplied to PASNY could be delivered through NYSEG’s transmission facilities “under an appropriate contract” between NYSEG and PASNY, and (c) that NYSEG “has entered into an agreement with [PASNY] for the delivery by [NYSEG] of such power and energy as is necessary for the use, distribution and resale within the area limits served as of February 10, 1961” by Penn Yan, the 1962 agreement terminated the 1956 agreement, required Penn Yan to pay NYSEG $95,910.48 in settlement of its claims, freed Penn Yan to contract with PASNY for supply of Penn Yan’s energy needs, and required NYSEG to continue to supply Penn Yan with energy until such time as PASNY commenced to do so. Paragraph 3 of this agreement, however, included the following limitation:
[Penn Yan] will take from [PASNY] under such contract only such electric energy required by the Village within the territorial limits, as of February 10,1961, of the Village and its franchise area outside the Village as approved by the Public Service Commission of the State of New York, (a) for its own use, and (b) for distribution and resale to its existing and future customers.
This territorial limit was identical (with the exception, of course, of the date) to the limit provided in the 1956 agreement, and corresponded to the limit on NYSEG’s obligation to transmit PASNY energy as set out in Article X, Paragraph 3 of NS-11.
In 1967, Penn Yan annexed an area known as Excell Estates, which had been part of the Town of Milo, a customer of NYSEG. Three years later, Penn Yan sought a modification of the 1962 agreement to permit the Village to serve as distributor to residential customers in Ex-cell Estates. NYSEG denied the request, noting that “Paragraph 3 of [the 1962] Agreement was specifically designed to preserve the territorial integrity of [NYSEG’s] franchise area as of February 10, 1961.” In March 1978, Penn Yan again requested a modification to enable it to supply power to Excell Estates. Again NYSEG refused.
B. Proceedings Before the Commission
On May 25,1978, Penn Yan filed with the Commission a petition for a declaratory order invalidating Article X, Paragraph 3 of NS-11 insofar as it limited the territories of Penn Yan and other communities to which NYSEG was required to transmit power for PASNY. The petition claimed, inter alia, that the contract provision violated the Niagara Redevelopment Act of 1957 (“NRA”) and the FPA, as well as state and federal public policy. Penn Yan subsequently moved to compel the filing by NYSEG of the 1962 agreement, and sought a declaration that Paragraph 3 of that agreement also was unenforceable.
On July 20,1978, NYSEG sought to intervene in the proceeding on Penn Yan’s petition and opposed the petition on various grounds. In addition to challenging the jurisdiction of the Commission under the FPA and the NRA, NYSEG contended that neither its 1961 contract with PASNY nor its 1962 contract with Penn Yan attempted to restrict the area that Penn Yan could serve or the amount of power that Penn Yan could obtain from PASNY. The petition stated that
NYSEG has declined to further modify its transmission obligation under NS-11 Paragraph 3... because, in the exercise of sound business judgment, NYSEG has determined that it would not be in the public or its corporate interest... when the result would be an unwarranted duplication of electric service in Excell Estates.
In addition, the petition contended that “[t]he relief requested by Penn Yan, if granted, would only result in the Commission compelling NYSEG to ‘wheel’ power involuntarily for a direct competitor,” and NYSEG argued that neither the FPA nor the NRA requires NYSEG to provide unlimited transmission services.
After receiving the above petitions, as well as comments from PASNY and several supplementary filings by Penn Yan and NYSEG, but without holding a hearing, the Commission, on March 28, 1979, rejected all of NYSEG’s arguments and declared Article X, Paragraph 3 of NS-11, along with Paragraph 3 of the NYSEG-Penn Yan agreement and any similar NYSEG agreements with other customers, unenforceable. As to its jurisdiction, the Commission stated:
Under Section 201(b) of the Federal Power Act, a jurisdictional utility is one which sells or transmits electric energy at wholesale in interstate commerce. Therefore the 1962 Agreement and the provision of the NS-11 contract which provide for NYSEG transmission of PAS-NY power at wholesale to Penn Yan are contracts subject to our jurisdiction. While PASNY is exempt from our jurisdiction as a public authority under Section 201(f), NYSEG is a jurisdictional utility and must file these contracts under Section 205(c).
Declaratory Order Modifying Jurisdictional Contracts [“Order”], Docket No. EL78-29 (March 28, 1979) at 4. As to the reasonableness of the challenged contract provisions, the Commission found those provisions to be a direct resale prohibition which served to “protect NYSEG from competition for retail customers and to restrict Penn Yan’s ability to extend its municipal system, thereby impairing and diminishing competition to serve retail customers in the extended territories.” Characterizing NY-SEG’s petition as admitting an anticompetitive purpose, the Commission ruled that the provisions violated federal antitrust policy. Finally, as to NYSEG’s argument that the requested modification of the contracts would result in an order compelling wheeling, the Commission pointed out that NS-11 itself obligates NYSEG to wheel, and that the challenged provision of NS-11 places restrictions on the purchasers’ use of wheeled power. Thus, the Commission characterized its order as one that removes a contractual restriction on the use of wheeled power rather than as one that actually compels wheeling.
On April 24, 1979, NYSEG sought a rehearing, again urging, inter alia, that the removal of the territorial limitations resulted in an order compelling wheeling, and arguing that, although such an order was within the Commission’s authority under newly enacted statutory provisions, there had been no compliance with the substantive or procedural requirements of those provisions, FPA §§ 211, 212, 16 U.S.C.A. §§ 824j, 824k (Supp.1980). In addition, NY-SEG argued that the Commission lacked authority to issue the orders in question because PASNY has sole authority to determine the reasonableness of its contracts and because the challenged provisions were protected from antitrust scrutiny by state action immunity.
After an initial order granting rehearing for the limited purpose of reconsideration, the Commission denied the application for rehearing, again rejecting all of NYSEG’s contentions. The Commission reiterated its view that the order did not compel wheeling and concluded, therefore, that §§ 211 and 212 were inapplicable. In addition, it ruled that no evidentiary hearing was needed since “the pleadings and the contracts themselves provide a sufficient factual basis for the Commission’s finding that the disputed provision is anticompetitive in effect and serves no countervailing public interest objective.” Order Denying Rehearing, EL78-29 (September 17, 1979) at 5. This petition for review followed.
II. DISCUSSION
NYSEG asserts here essentially the same arguments it pressed before the Commission. It challenges the Commission’s jurisdiction to modify its agreement with PAS-NY, it asserts that federal antitrust policy is inapplicable in light of PASNY’s status as a political subdivision of New York State, and it contends that the Commission’s order impermissibly requires NYSEG to wheel power to Penn Yan and other municipal utilities. For the reasons set forth below, we reject NYSEG’s jurisdictional and antitrust immunity contentions, but conclude that the Commission’s orders should not have been issued without hearings for the consideration of pertinent factors as set forth in FPA §§ 206, 211 and 212.
A. Jurisdiction of the Commission
In support of its attack on the Commission’s jurisdiction to review NS-11, NYSEG contends (1) that contracts to which PAS-NY is a party are exempted from Commission review under FPA § 201(f), and (2) that PASNY has exclusive jurisdiction under the NRA to determine the reasonableness of its own contracts. Neither contention is sound.
1. The Federal Power Act
The FPA was enacted as Part II, of Title II of the Public Utility Act of 1935, 49 Stat. 847. The two primary purposes of the Act were “to curb abusive practices of public utility companies by bringing them under effective control, and to provide effective federal regulation of the expanding business of transmitting and selling electric power in interstate commerce. 49 Stat. 803-804, 847-848; S.Rep.No. 621, 74th Cong., 1st Sess., 3, 7-8; Jersey Central Co. v. FPC, 319 U.S. 61, 67-68, 63 S.Ct. 953, 956, 87 L.Ed. 1258 (1943); see North American Co. v. SEC, 327 U.S. 686, 66 S.Ct. 785, 90 L.Ed. 945 (1946).” Gulf States Utilities Co. v. FPC, 411 U.S. 747, 758, 93 S.Ct. 1870, 1877, 36 L.Ed.2d 635 (1973). The FPA declares
that the business of transmitting and selling electric energy for ultimate distribution to the public is affected with a public interest, and that Federal regulation of matters relating to generation... and of that part of such business which consists of the transmission of electric energy in interstate commerce and the sale of such energy at wholesale in interstate commerce is necessary in the public interest.
§ 201,16 U.S.C. § 824(a) (1976). In accordance with this statement of policy, the provisions of the FPA are made applicable “to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce”; the Commission is given “jurisdiction over all facilities for such transmission or sale of electric energy.” § 201(b), 16 U.S.C. § 824(b).
In order to facilitate administrative regulation of interstate sales and transmissions, the FPA requires all public utilities to file with the Commission “schedules showing all rates and charges for any transmission or sale subject to the jurisdiction of the Commission, and the classifications, practices, and regulations affecting such rates and charges, together with all contracts which in any manner affect or relate to such rates, charges, classifications, and services.” § 205(c), 16 U.S.C. § 824d(c) (1976). Any changes in rates, charges, etc., similarly must be filed with the Commission. § 205(d), 16 U.S.C. § 824d(d) (1976).
Section 205 of the Act mandates that public utility rates and charges be “just and reasonable,” 16 U.S.C. § 824d(a) (1976), and the Commission is empowered under § 206 to examine the reasonableness of rates, charges and related contracts and to order remedial modifications:
Whenever the Commission, after a hearing had upon its own motion or upon complaint, shall find that any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order.
16 U.S.C. § 824e(a) (1976). A finding that the existing provision is “ ‘unjust, unreasonable, unduly discriminatory or preferential’ ” is a condition precedent to the Commission’s exercise of its power to fix a just and reasonable provision. FPC v. Sierra Pacific Power Co., 350 U.S. 348, 353, 76 S.Ct. 368, 371, 100 L.Ed. 388 (1956).
Section 201(f) of the FPA exempts states and their political subdivisions from the provisions of the FPA, as follows:
No provision in this subchapter shall apply to, or be deemed to include, the United States, a State or any political subdivision of a State, or any agency, authority, or instrumentality of any one or more of the foregoing, or any corporation which is wholly owned, directly or indirectly, by any one or more of the foregoing, or any officer, agent, or employee of any of the foregoing acting as such in the course of his official duty, unless such provision makes specific reference thereto.
16 U.S.C. § 824(f) (1976). NYSEG argues that this provision, notwithstanding the Commission’s broad powers detailed above, deprives the Commission of jurisdiction to modify any contract involving PASNY.
While there is some surface appeal to NYSEG’s argument that modification of an agreement between itself and PASNY is not possible without affecting PASNY, the substance of the Commission’s action negatives the conclusion that the Commission seeks to apply provisions of the FPA to PASNY. The orders challenged do not require PASNY to take or to refrain from taking action; they do not place any limitations on PASNY’s powers or prerogatives. Rather, the Commission’s order is directed strictly to NYSEG, requiring NYSEG to file its contracts with the Commission, and precluding NYSEG from enforcing certain provisions of those contracts. The thrust of the order is that, if PASNY contracts to sell power to Penn Yan for Excell Estates, NY-SEG must provide transmission services for that power under its contract with PASNY if PASNY so requests. PASNY has no greater obligations as a result of the Commission’s order.
The present case is thus plainly distinguishable from Northern California Power Agency v. FPC, 514 F.2d 184 (D.C.Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975), the sole case relied upon by NYSEG to support its claim that § 201(f) deprives the Commission of jurisdiction. In that case, the Northern California Power Agency (“NCPA”) filed a complaint with the Commission alleging that contracts between a jurisdictional utility, Pacific Gas & Electric (“PG&E”), and an exempt public agency, Sacramento Municipal Utility District (“SMUD”), were anticompetitive. NCPA sought an order declaring that these contracts were unlawful and could be made lawful only by being amended to provide for an increase in SMUD’s thermal units, with the excess capacity made available to NCPA. The Commission denied NCPA’s request for a hearing on the antitrust implications of the PG&E-SMUD contracts, in part on the ground that it lacked jurisdiction to order the remedy sought. The court of appeals affirmed, noting that “[t]he Commission simply does not possess the authority to order... capacity increases in SMUD’s nuclear plants” and that the clear import of the requested relief would be to require the Commission to do indirectly what it cannot do directly. 514 F.2d at 189. Accordingly, the court concluded that “the Commission’s jurisdictional reasons for not further investigating NCPA’s charges appear well-founded” and that the Commission’s summary disposition of NCPA’s charges was not an abuse of discretion. Id.
Here, by contrast, the requested relief does not, either directly or indirectly, affect the amount of power PASNY is required to provide to any purchaser or the amount of transmission service PASNY is required to purchase from NYSEG. The entire burden of the Commission’s order is placed on NY-SEG, over which jurisdiction is clear.
Nor do the other cases cited by NYSEG have any bearing on the Commission’s jurisdiction. Both Airco Alloys Division, Airco, Inc. v. Niagara Mohawk Power Corp., 65 A.D.2d 378, 411 N.Y.S.2d 460 (4th Dep’t 1978), and Power Authority of the State of New York v. Federal Energy Regulatory Commission, et al., Civ. No. 79-310 (W.D.N.Y. Feb. 22, 1980), involved a contract between PASNY and Niagara Mohawk Power Corp. entered into in 1961 pursuant to the Niagara Redevelopment Act, 16 U.S.C. § 836(b)(3) (1976). Subsection (b)(3) of that Act requires, as a condition of PAS-NY’s license, that PASNY contract to sell to Niagara Mohawk 445,000 kilowatts of project power “for resale generally to the industries which purchase power produced by [Niagara Mohawk] prior to” June 7, 1956. The subsection was incorporated, as Article 22, in the PASNY-Niagara Mohawk contract. Subsequently, approximately one-fourth of the allocated power was no longer utilized by industries to which it had been allocated prior to 1956, and Niagara Mohawk took the position that this reduced Niagara Mohawk’s obligations pro tanto. PASNY commenced a proceeding before the Commission for a declaration that Niagara Mohawk was contractually required to sell the entire 445,000 kilowatts of power to industries in Western New York. The Commission dismissed the petition for lack of jurisdiction; no appeal was taken.
The issues dealt with in the two court cases involved the jurisdiction of the respective courts, not that of the Commission. Thus, in Aireo Alloys v. Niagara Mohawk, supra, the state court rejected an argument that it lacked jurisdiction because 16 U.S.C. § 825p (1976) grants exclusive jurisdiction over violations of the FPA to federal district courts. The court noted that the plaintiff was not claiming a violation of the FPA or the NRA, but rather noncompliance with the PASNY-Niagara Mohawk contract, and that § 825p did not prevent a state court from deciding whether plaintiff’s contractual rights had been violated. Likewise, in PASNY v. Federal Energy Regulatory Commission, supra, there was no allegation of a violation of federal statute, and the federal court held that it lacked jurisdiction simply because the suit was “in essence a declaratory judgment action to clarify the terms of [PASNY’s] contract with Niagara Mohawk.” The question of the Commission’s jurisdiction was not before the district court, since review of the Commission’s dismissal must be sought in a court of appeals rather than in a district court. 16 U.S.C. § 8257(b) (1976).
In sum, we have been pointed to no authority, and we know of none, that would deprive the Commission of jurisdiction of the present request by Penn Yan for modification of NYSEG’s contracts based on their alleged conflict with federal law.
2. The Niagara Redevelopment Act
NYSEG’s contention that the NRA gives PASNY sole authority to determine what terms and conditions for the wheeling of Niagara Project power are reasonable has no greater force. The NRA, enacted in 1957, “expressly authorized and directed [the Commission] to issue a license to the Power Authority of the State of New York for the construction and operation of a power project with capacity to utilize all of the United States share of the water of the Niagara River permitted to be used by international agreement.” 16 U.S.C. § 836(a) (1976). In addition to “those [conditions] deemed necessary and required under the terms of the Federal Power Act,” the Commission was instructed to include in PASNY’s license several provisions, including the following:
The licensee shall, if available on reasonable terms and conditions, acquire by purchase or other agreement, the ownership or use of, or if unable to do so, construct such transmission lines as may be necessary to make the power and energy generated at the project available in wholesale quantities for sale on fair and reasonable terms and conditions to privately owned companies, to the preference customers enumerated in paragraph (1) of this subsection, and to the neighboring States in accordance with paragraph (2) of this subsection.
16 U.S.C. § 836(b)(4) (1976) (emphasis added). NYSEG asks us to construe this provision as giving PASNY exclusive authority to determine whether or not its contracts are fair and reasonable, and contends that support for this view may be found in a negative inference to be drawn from NRA § 836(b)(2). Subsection (b)(2) requires that the Commission condition PASNY’s license on PASNY’s making a reasonable portion of Niagara Project power available to neighboring states, and provides that “[i]n the event of disagreement between [PAS-NY] and the power-marketing agencies of any such States, the [Commission] may, after public hearings, determine and fix the applicable portion of power to be made available and the terms applicable thereto.” NYSEG argues that since subsection (b)(2) provides for resolution of disputes thereunder by the Commission, the absence of similar provision under subsection (b)(4) means the Commission has no jurisdiction with regard to a dispute under subsection (b)(4).
We find nothing in these or any other sections of the NRA to suggest that PAS-NY has exclusive authority over its contracts involving transmission of Niagara Project power. Section 836(b)(4) does not strip the Commission of the authority or responsibility for assessing the reasonableness of such contracts; its effect is to require PASNY, as a condition of its license, to insure transmission lines for delivery of its power by agreement for use or purchase of such lines or, if such agreements are not available on reasonable terms, to construct the necessary lines. The implication of the mandate to the Commission to impose conditions is that it will be able to enforce those conditions. We do not view the absence from subsection (b)(4) of provision for public hearings such as are required under (b)(2) for power apportionments between states, as implying that the Commission has no jurisdiction to assure that its licensee complies with other conditions of its license.
NYSEG’s reliance on Airco Alloys v. Niagara Mohawk, supra, is similarly misplaced. As discussed supra, the New York court there merely upheld its own jurisdiction to decide whether PASNY’s contractual rights were violated. That decision thus has no bearing on the Commission’s jurisdiction to determine the reasonableness, within the meaning of that word under the NRA, of a term included in a PASNY contract.
In any event, even assuming that PAS-NY had exclusive authority to decide whether given energy transmission terms available to it are reasonable, the Commission order at issue here would in no way conflict with such authority, since, as discussed in Part 1 above, the Commission’s order does not require PASNY to take, or refrain from taking, any action whatsoever. The only impact of the order upon PASNY is to give PASNY the option of transmitting additional power to Penn Yan over the lines of NYSEG.
B. Applicability of Antitrust Policy
Having determined that the Commission had jurisdiction to entertain Penn Yan’s petition, we turn to the question whether the Commission’s consideration of the possible anticompetitive nature of provisions of NYSEG’s contract with PASNY was barred because of PASNY’s status as a subdivision of New York State. We conclude that the Commission was free to consider federal antitrust policy as an aspect of the public interest.
The purpose of the Commission’s power to identify and remedy unreasonable provisions in utility contracts is “the protection of the public interest, as distinguished from the private interests of the utilities, [as] is evidenced by the recital in § 201 of the Act.... ” FPC v. Sierra Pacific Power Co., supra, 350 U.S. at 355, 76 S.Ct. at 372. The policies underlying federal antitrust law are one aspect of the public interest. Thus, the Commission’s responsibility for protecting the public interest and its corresponding power to adjust unreasonable rates, etc., “carries with it the responsibility to consider, in appropriate circumstances, the anticompetitive effects of regulated aspects of interstate utility operations.” Gulf States Utilities Co. v. FPC, supra, 411 U.S. at 758-59, 93 S.Ct. at 1877-78.
Nevertheless, it is evident that in certain circumstances a state will be immune from liability for its imposition of anticompetitive restraints. In Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), the Supreme Court held that federal antitrust laws do not prohibit a state, as sovereign, from imposing anticompetitive restraints “as an act of government.” Id. at 352, 63 S.Ct. at 314. Recent Supreme Court cases identify two criteria for application of Parker immunity: (1) “the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy’ ” and (2) “the policy must be ‘actively supervised’ by the State itself.” California Retail Liquor Dealers Ass’n v. Midcal Aluminum Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980), quoting City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978) (opinion of Brennan, J.). See also New Motor Vehicle Board of California v. Orrin W. Fox Co., 439 U.S. 96, 109, 99 S.Ct. 403, 412, 58 L.Ed.2d 361 (1978). Even assuming that appropriate circumstances might justify extension of this immunity to conduct by a private party, cf. Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976); Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), both of the prerequisites are lacking here.
To begin with, there is no articulation whatever of a state policy underlying the challenged provision of NS-11. The fact that a political subdivision of the state is a party to the contract does not transform the provisions of the contract into state policy. Moreover, even if the contract as a whole had been entered into by PASNY as agent of the sovereign in accordance with “clearly articulated and affirmatively expressed” state policy, there is no suggestion that the challenged restraint itself was mandated by, or even related to, state policy. The petition makes clear that the restrictive provision was desired by NYSEG, and there is no hint that it resulted from state policy. Even if the restrictive provision had been suggested by PASNY rather than NYSEG, the Commission would not be precluded from considering antitrust policy since “[i]t is not enough that... anticompetitive conduct is ‘prompted’ by the state action; rather, anticompetitive activities must be compelled by direction of the State acting as a sovereign.” Goldfarb v. Virginia State Bar, supra, 421 U.S. at 791, 95 S.Ct. at 2015 (emphasis added). Thus we conclude that PASNY’s status did not preclude the Commission from considering antitrust policy as one aspect of the public interest.
This conclusion, however, does not mean that summary disposition was appropriate. The Commission’s determination as to the public interest under § 206 is normally required to be made “after a hearing.” While no hearing is required when there are no material facts in issue, Public Service Co. v. FERC, 600 F.2d 944, 955 (D.C.Cir.), cert. denied, 444 U.S. 990, 100 S.Ct. 520, 62 L.Ed.2d 419 (1979); Municipal Light Bds. v. FPC, 450 F.2d 1341, 1345 (D.C.Cir.1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 445 (1972); Citizens for Allegan County Inc. v. FPC, 414 F.2d 1125, 1128 (D.C.Cir.1969), the limited record here reveals questions relating to the public interest which could best have been resolved after a hearing. It is true, as emphasized by the Commission, that NYSEG’s petition admitted that it preferred not to provide transmission facilities to a competitor for transmission of power to one of NYSEG’s present customers. But NYSEG’s petition also alleged that the challenged contractual restraints were in the public interest as well, and there was no reason for the Commission to assume, as it did, that NYSEG’s self-interest is inherently inconsistent with the public interest. For example, in Lafayette v. Louisiana Power & Light Co., supra, the opinion of the Court discussed the impact on a public utility of loss of customers:
The elimination of customers in an established service area would likely reduce revenues, and possibly require abandonment or loss of existing equipment the effect of which would be to reduce its rate base and possibly affect its capital structure. The surviving customers and the investor-owners would bear the brunt of these consequences. The decision to displace existing service, rather than being made on the basis of efficiency in the distribution of services, may be made by the municipality in the interest of realizing maximum benefits to itself without regard to extraterritorial impact and regional efficiency.
435 U.S. at 404, 98 S.Ct. at 1132 (footnote omitted). Thus, questions as to the probable impact of the proposed modification on NYSEG, the possible inefficiency in duplicating service, the extent, if any, to which NYSEG might be entitled to a “
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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songer_usc2
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11
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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 11. 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.
Lewis J. RUSKIN, Collateral Trustee, v. Charles H. GRIFFITHS, Trustee in Reorganization.
No. 219, Docket 25317.
United States Court of Appeals Second Circuit.
Argued March 11, 1959.
Decided Aug. 26, 1959.
Washington, Circuit Judge, dissented in part.
Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Ruskin & Rosen-baum, Chicago, 111. (Simon H. Rifkind, New York City, Harry H. Ruskin, Chicago, 111., John E. Massengale, New York City, Irving Younger, Forest Hills, N. Y., of counsel), for appellant, Lewis J. Ruskin.
Frederick P. Close, White Plains, N. Y. (Martin Drazen, White Plains, N. Y., of counsel), for Trustee in Reorganization, appellee.
Louis J. Weinshenker, New York City (Edward A. Gorenstein, Walter Goodman, Chicago, 111., of counsel), for Richard Goodman, stockholder.
Richard Goodman, pro se.
Thomas G. Meeker, General Counsel, David Ferber, Asst. General Counsel, Pace Reich, Washington, D. C., Melvin Katz, Attorneys, SEC, Chicago, III., Richard V. Bandler, Special Counsel; Kiva Berke, New York City, Attorney, for Securities and Exchange Commission.
Before WASHINGTON, WATERMAN, and MOORE, Circuit Judges.
WATERMAN, Circuit Judge.
On May 19, 1954 Lewis J. Ruskin, his wife, and the Rexall Drug Company sold all the stock of a retail drug store chain known as Ford Hopkins Company to General Stores Corporation. The purchase price was $2,800,000, of which $735,000 was to be paid in cash and the balance by notes to Ruskin and Rexall payable in installments until 1964. As security for these notes all the stock of Ford Hopkins and all the stock of Stineway Drug Company, another drug store chain owned by General Stores, was transferred to Ruskin as trustee for himself and for Rexall under a “Collateral Agreement” entered into simultaneously with the execution of the notes. Ruskin, as trustee under this agreement, had the right to elect a majority, or, after default, all the members of the Boards of Directors of these corporations. The notes were to accrue interest on principal at the rate of 4% per annum, but the collateral agreement provided that in case of an “event of default” as defined in that agreement the then total unpaid amount could be declared due and payable forthwith, and interest would then accrue upon overdue payments at the rate of 6% rather than at 4%. One “event of default” provided for in the agreement was as follows:
“[I]f any proceedings before Control Date involving General or any subsidiary (other than Ford of Stineway) thereof or any successors thereto, and after Control Date involving General, Ford or Stineway or any subsidiary thereof or successors thereto, are commenced by or against such company under any bankruptcy, reorganization, arrangement, insolvency or readjustment of debt, dissolution or liquidation law or statute of the Federal Government or any state government, * * * ; then, in any such event, the holder or holders of any of the Notes then outstanding or the Trustee may, at their or his option, declare such Notes to be, and thereupon such Notes shall become, forthwith, due and payable * * * ”.
The agreement also provided that the trustee was to be entitled to “reasonable compensation” for all the services he might render in the execution of the trusts and, in connection therewith, for his attorneys and counsel. This compensation was to constitute a prior lien on the trust estate and on all funds in the hands of the trustee.
In October 1954 the debtor, General Stores, filed a petition for arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C.A. § 701 et seq. However, instead of accelerating the debt because' of this petition, Ruskin entered into a standby agreement with debtor, dated November 1, 1954, wherein he agreed that unless certain specified conditions occurred he would not foreclose prior to July 18, 1955. On March 7, 1955, the United States District Court for the Southern District of New York granted similar motions by a shareholder of debt- or and by the Securities and Exchange' Commission to dismiss debtor’s petition unless it was amended so as to comply with the requirements of Chapter X of the Bankruptcy Act. In re General Stores Corporation, D.C.S.D.N.Y.1955, 129 F.Supp. 801. One month later we affirmed that decision, General Stores-Corporation v. Shlensky, 2 Cir., 1955, 222 F.2d 234. On August 17,1955, Lewis J. Ruskin as trustee under the collateral agreement, Lewis J. Ruskin individually, and Rexall Drug Company notified the debtor that they elected to declare the notes “forthwith due and payable because of an event of default occurring and existing under said collateral agreement by reason of the proceedings involving General Stores Corporation under Chapter XI of the Bankruptcy Act * * * commenced by General Stores Corporation and pending to this date in the United States District Court for the Southern District of New York.” The Supreme Court of the United States affirmed our decision in General Stores Corporation v. Shlensky on March 26, 1956, 350 U.S. 462, 76 S.Ct. 516, 100 L.Ed. 726, and about one month later the debtor filed an amended petition asking for reorganization under Chapter X of the Bankruptcy Act. The district court approved the amended petition on May 1, 1956 and appointed a reorganization trustee.
This appeal stems from a petition filed by Ruskin, as trustee under the collateral agreement, seeking a determination of the amount of his claim on the unpaid notes, principal and interest, and of the amount of his lien for his own and his attorneys’ compensation. Ruskin claimed unpaid accrued interest at 4% to August 17, 1955, the date of the acceleration, and 6% thereafter. As compensation for his services as trustee Ruskin sought, at the rate of $35,000 per annum, $112,715.-13 for the period October 18, 1954 to January 7, 1958. He also sought $180,-000 as compensation for his attorneys. The court below decided that the post-default interest rate should remain at 4% rather than be increased to 6%; awarded Ruskin $24,215 as total compensation for his own services as collateral trustee, and granted attorneys’ fees in the amount of $60,000. In re General Stores Corporation, D.C.S.D.N.Y.1958, 164 F.Supp. 130. The parties seem to agree that the debtor is solvent.
From these several determinations Ruskin appeals. The reorganization trustee, a stockholder of the debtor, and the Securities and Exchange Commission .are all in opposition.
The Claim for Increased Interest
Although the contract between the parties explicitly provided that interest was to be at 6% rather than 4% .after acceleration, the district court refused to allow the additional 2% interest. Relying upon Vanston Bondholders Protective Committee v. Green, 1946, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162, rehearing denied 1947, 329 U.S. 833, 67 S.Ct. 497, 498, 91 L.Ed. 706, it held that Ruskin was not entitled to the benefit of his variable interest contract. We disagree with that holding.
In Vanston the Supreme Court disallowed an indenture trustee’s claim against an insolvent debtor for interest on interest payments provided for in the trust indenture. The interest on interest accrued because the district court, pursuant to its administration of an equity receivership, had ordered both the debtor and the receiver not to pay simple interest coupons that fell due under the indenture after the court assumed jurisdiction. Even if we agreed with the court below that a Supreme Court precedent dealing with an obligation for interest on interest falling due because of an equity court’s stay order is equally applicable to a claim based upon a contractual provision for additional simple interest arising because the debtor sought the intervention of the bankruptcy laws, a question we need not now decide, we would still have to distinguish Vanston on what we find was a basic ground of that decision. In Van-ston the debtor was insolvent, and in our case it appears the debtor is solvent. In Empire Trust Co. v. Equitable Office Bldg. Corp., 2 Cir., 1948, 167 F.2d 346, we avoided a resolution of the effect of Vanston upon parties to a reorganization proceeding involving a solvent corporation, but the issue is squarely before us now, and we hold that the Supreme Court did not intend that the principle enunciated by it in Vanston, in a contest between creditors, should be applied to a contest between a debtor’s creditor and its stockholders.
The Supreme Court held in Vanston that since the district court had taken over the debtor’s assets for the purpose of preserving and protecting them “pending a ratable distribution among all the creditors according to their interests as of the date the receivership began,” [329 U.S. 156, 67 S.Ct. 242] it would have been contrary to that purpose and inequitable to the junior creditors to have junior creditors suffer and the mortgage bondholders enriched because of a stay order required to further the receivership aim. This result naturally followed from an examination of the usual rules that deal with simple interest claims in bankruptcy and in reorganization proceedings, In re Wisconsin Cent. Ry. Co., D.C.D.Minn.1950, 93 F.Supp. 579, 582, affirmed United States Trust Co. of New York v. Zelle, 8 Cir., 1951, 191 F.2d 822, certiorari denied 1952, 342 U.S. 944, 72 S.Ct. 558, 96 L.Ed. 703. Thus, with respect to simple interest the Supreme Court said:
“The general rule in bankruptcy and in equity receivership has been that interest on the debtors’ obligations ceases to accrue at the beginning of proceedings. Exaction of interest, where the power of a debtor to pay even his contractual obligations is suspended by law, has been prohibited because it was considered in the nature of a penalty imposed because of delay in prompt payment —a delay necessitated by law if the courts are properly to preserve and protect the estate for the benefit of all interests involved * * * Courts have felt that it would be inequitable for anyone to gain an advantage or suffer a loss because of such delay.” 329 U.S. at pages 163, 164, 67 S.Ct. at page 240.
However, the Court carefully noted that this rule with respect to simple interest did not apply where the contest was between a creditor and stockholder of the debtor:
“But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than to the debtor.” 329 U.S. at page 164, 67 S.Ct. at page 241.
Since the result the Court reached stemmed from the equitable principles developed with respect to creditors’ claims for simple interest in bankruptcy and equity receivership proceedings, and since it explicitly noted that these principles favored the debtor’s creditors over its stockholders, the Court could hardly have meant that the rule it was declaring was to be applied in the case of a solvent debtor.
The district court decided that a result opposite to the one we reach here is dictated by that language in the Vanston opinion which states:
“It is manifest that the touchstone of each decision on allowance of interest in bankruptcy, receivership and reorganization has been a balance of equities between creditor and creditor or between creditors and the debtor.” 329 U.S. at page 165, 67 S.Ct. at page 241.
It seems to us, however, that when this language is read in context it does not support the decision of the district court. It follows after a discussion of two differing situations,
“To allow a secured creditor interest where his security was worth less than the value of his debt was thought to be inequitable to unsecured creditors * * * But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than to the debtor” 329 U.S. at page 164, 67 S.Ct. at page 240.
and refers only to that discussion. See In re Realty Associates Securities Corporation, 2 Cir., 1947, 163 F.2d 387, 392 (dissenting opinion of Clark, J.), certiorari denied 1947, 332 U.S. 836, 68 S.Ct. 218, 219, 92 L.Ed. 409.
Of the many cases cited to us only two seem worthy of attention. In re Schafer’s Bakeries, D.C.E.D.Mich.1957, 155 F.Supp. 902, relied upon by the district court, might be persuasive authority for the decision below if it were clear that that case involved a solvent debtor. However, there is nothing in the opinion to indicate that it did, and, since the plaintiff’s claim for interest on interest was successfully contested by an “Unsecured Creditors’ Committee,” it would seem that the debtor was actually an insolvent one. Certainly the court never pointed out whether the debtor there was solvent or insolvent, or discussed this distinction. On the other hand, in In re International Hydro-Electric System, D.C.D.Mass.1951, 101 F. Supp. 222, 224, the Massachusetts district court carefully considered this very problem when it held:
“[I]t is important that IHES is not at the present time insolvent. It has assets more than sufficient to meet all claims of its creditors. No benefit will be given to the debenture holders at the expense of any other class of creditors. The burden of this payment will fall entirely on the interest of the stockholders. They cannot complain that they are treated inequitably when their interest is cut down by the payment of a sum to which the debenture holders are clearly entitled by the express provisions of the trust indenture. The situation here differs from that in Vanston Bondholders Protective Committee v. Green * * * where the payment of interest on deferred interest payments was not allowed even though called for by the trust indenture, because the payment would have reduced the share of subordinate creditors in the reorganization of an insolvent corporation.”
A variable interest provision in event of a stated default such as we have here is not a penalty, nor should it be considered unconscionable. Compare Union Estates Co. v. Adlon Const. Co., 1917, 221 N.Y. 183, 116 N.E. 984, 12 A.L.R. 363, with Newburger-Morris Co. v. Talcott, 1916, 219 N.Y. 505, 510, 114 N.E. 846, 3 A.L.R. 287. It can be beneficial to a debtor in that it may enable him to obtain money at a lower rate of interest than he could otherwise obtain it, for if a creditor had to anticipate a possible loss in the value of the loan due to his debtor’s bankruptcy or reorganization, he would need to exact a higher uniform interest rate for the full life of the loan. The debtor has the benefit of the lower rate until the crucial event occurs; he need not pay a higher rate throughout the life of the loan.
Undoubtedly the debtor filed its petition under Chapter XI because it believed it beneficial to itself to do so, and in a case such as this, where there is no showing that the creditor entitled to the increased interest caused any unjust delay in the proceedings, it seems to us the opposite of equity to allow the debtor to escape the expressly-bargained-for result of its act.
RusJcin’s Claim for Compensation Under the Collateral Agreement
Article VIII, Section 1(2) of the collateral agreement provided as follows:
“Section 1. The Trustee accepts the Trust of this Collateral Agreement upon the following terms and conditions to which General and the holder and holders of the Notes secured hereby agree:
****«•«•
“(2) The Trustee shall be entitled to reasonable compensation for all services rendered in the execution of the trusts hereby created, to be paid, for services prior to the existence of one or more of the events of default mentioned in Section 1 of Article VI hereof by the holders of the Notes ratably, and for services after the existence of one or more of the events of default mentioned in Section 1 of Article VI hereof, by General; and for such payment, the Trustee shall have a lien on the Trust Estate and all funds in the hands of the Trustee, in priority to the rights and claims of the holder or holders of said Notes.”
Pursuant to this section Ruskin claims $112,715.13 from debtor for his services from October 18, 1954 computed to January 7, 1958, at $35,000 per annum. These services allegedly consisted of directing the policy of closing small volume or marginal stores and opening large volume self-service stores; directing the acquisition of the Wright and Lawrence chain of drug stores; directing the development of “system stores” and the placing of higher profit margin items in the rack jobbing operations in the grocery chains when the profits of the so-called “Huron division” servicing these grocery chains began to diminish because of direct drug purchases by these chains; directing the weekly meetings of “operating committees” wherein Ruskin counseled and guided the company executives; making personal visits to the offices of the subsidiaries in Chicago ten or eleven times a year for four days at a time; while at home in Arizona, keeping in constant contact with the executives and studying reports sent to him; and generally keeping in touch with industry trends and directing the companies’ policies. Looking at the question of compensation in terms of what it found were the requirements of Article VIII, Section 1(2) of the collateral agreement — i. e., that the services be rendered in the “execution of the trusts” and the compensation be “reasonable” — the district court allowed Ruskin a total of $24,215. In an order entered July 1, 1958, upon what was in effect a petition for a rehearing, the district court reaffirmed this allowance.
The fixing of allowances is not only the most thankless task in all of the problems of judicial reorganization, it is also the most delicate. Scribner & Miller v. Conway, 2 Cir., 1956, 238 F.2d 905; Finn v. Childs Co., 2 Cir., 1950, 181 F.2d 431. Consequently an appellate court would be less than wise if it did not rely heavily for guidance in such matters upon the SEC which functions as a responsible and disinterested public agency, Scribner & Miller v. Conway, supra; Finn v. Childs Co., supra, and the district court whose intimate knowledge of the whole reorganization gives it a peculiar advantage, Johnson v. Carolina Scenic Stages, 4 Cir., 1957, 242 F.2d 263; Finn v. Childs Co., supra; Milbank, Tweed & Hope v. McCue, 4 Cir., 1940, 111 F.2d 100. And see Surface Transit Inc. v. Saxe, Bacon & O’Shea, 2 Cir., 266 F.2d 862. In this case the rate of compensation recommended by the SEC would have entitled Ruskin to a sum somewhat less than $20,000. Since this is approximately $5,000 less than the district court awarded him it would require a strong showing by Ruskin in order for us to award him an additional sum, or to remand this case to the district court for reconsideration. While the district court pointed out that [164 F.Supp. 142] “the services of the collateral trustee to some extent contributed to the stabilization in management of the two subsidiaries concerned,” and that “in part the success of these corporations during the period in question came from attention which the collateral trustee’s control effected,” it found that there was no convincing evidence to show that all or even a large portion of Ruskin’s activities were necessary to properly execute the purpose of his trust — i. e., the purpose of seeing that the note holders were properly secured. Also the court found that there was no substantial evidence to indicate that an executive capable of conducting the necessary supervision of the two subsidiaries was not in their employ, or could not have been hired by them, and therefore services rendered by Ruskin for which he sought compensation as a trustee were unnecessary. After an examination of the record we are not convinced that the district court’s findings and award are clearly erroneous.
Claim for Compensation for Attorneys' Fees
Ruskin’s last contention on this appeal is that the district court did not allow him sufficient compensation for attorneys’ fees. His claim for $180,000 for the period between October 15, 1954 and December 13, 1957 was predicated under Section 1(3) of Article VIII of the collateral agreement. That section provides :
“The Trustee may employ agents, attorneys and counsel in the execution of said trusts, who may also be the attorneys and counsel of the holder or holders of said Notes, and of Ford and Stineway, or their successors, or any one or more of them, and the reasonable compensation of the Trustee’s attorneys and counsel and of any other person as the Trustee may employ in the administration and management of the trusts hereunder, and all other reasonable expenses necessarily incurred or actually disbursed hereunder, General agrees to pay to the Trustee on demand; and for such payment, the Trustee shall have a lien on the Trust Estate, and on all funds in the hands of the Trustee, in priority to the rights and claims of the holder or holders of said Notes.”
$80,000 of the claim was for the Chicago law firm of Ruskin & Rosenbaum and $100,000 was for the New York firm of Paul, Weiss, Rifkind, Wharton & Garrison. After careful consideration of the items of Ruskin’s claim and upon the advice of the SEC, the district court allowed Ruskin & Rosenbaum the sum of $5,000 for the period between October 15, 1954 and April 30, 1956, and made a joint award of $55,000 for the combined services of Ruskin & Rosenbaum and Paul, Weiss, Rifkind, Wharton & Garrison for the period from on or about April 30, 1956 to December 15, 1957.
Ruskin contends that the district court committed error in making these awards because it applied a wrong standard in evaluating counsel’s services. He argues that the court rewarded these two firms only for services that brought forth actual benefits accruing to the debt- or’s estate rather than for the services which, pursuant to contract, they rendered to him as collateral trustee. We find nothing in the district court’s opinion which would indicate that it applied the standard which Ruskin contends it did apply. Rather, all the indications we find are to the contrary. Thus:
“There is inadequate proof to indicate that the extensive time involved in preparing lengthy briefs was necessary for the protection of the collateral trustee and his trust * * * ” 164 F.Supp. at page 145.
“Here, we are concerned with a trust in which the fundamental premise on which the allowance is made must be based upon what is fair and reasonable under the circumstances of the particular case. The necessity of the services depends in the first instance upon whether or not the proceedings initiated were reasonably essential to the protection of the trust. The amount allowed should bear a reasonable relationship to the demands of the situation.” 164 F.Supp. at page 146.
The district court fully realized that it was making an award under a contract between the debtor and Ruskin. It was also aware, and rightly so, that the award would be paid from a reorganization debtor’s assets. Newman & Bisco v. Realty Associates Securities Corp., 2 Cir., 1949, 173 F.2d 609; Butzel v. Webster Apartments Co., 6 Cir., 1940, 112 F.2d 362. Consequently, in order to avoid that “vicarious generosity” which the courts have so often deplored, Finn v. Childs Co., 2 Cir., 1950, 181 F.2d 431, it considered in detail the services rendered by the two firms. In making the allowances it found and properly took into account that there was some duplication of services rendered by the New York and Chicago firms, Finn v. Childs Co., supra; Newman & Bisco v. Realty Associates Securities Corp., supra; that certain of the services rendered related to matters that did not need legal action or require advice of counsel; that the issues dealt with by counsel were not complex, Newman & Bisco v. Realty Associates Securities Corp., supra; In re McGrath Mfg. Co., D.C.D.Neb.1951, 95 F.Supp. 825; that approximately half of the recorded time spent by the New York firm was contributed by a junior associate, Finn v. Childs Co., supra; that during the period for which compensation was being sought for them by the collateral trustee, the Chicago firm was receiving an annual retainer of $15,000 from Ford Hopkins.
Ruskin does not demonstrate that these findings of the district court were clearly erroneous. Nor does he show that the court’s award made on the basis of those findings, an award in accord with the recommendation of the SEC, was an improper one. With respect to SEC recommendations in such matters, we said in Finn v. Childs Co., supra, 181 F.2d at page 438:
“[T]he figures presented by the S.E.C. are not ‘mere casual conjectures,’ but are ‘recommendations based on closer study than a district judge could ordinarily give to such matters.’ Frank, supra, 18 N.Y.U.L. Q.Rev. 317, 1941. We agree with District Judge Kirkpatrick’s apt statement ‘that the Commission is about the only wholly disinterested party in the proceeding and that, while it may not be entirely familiar with “the problems of making both ends meet in a law office” referred to by counsel, its experience has made it thoroughly familiar with the general attitude of the Courts and the amounts of allowances made in scores of comparable proceedings.’ In re Philadelphia & Reading Coal & Iron Co., D.C.E.D.Pa., 61 F.Supp. 120, 124.”
We cannot say that here the broad discretion with which the district judge, in the first instance, must of necessity be empowered in this type of case, see Johnson v. Carolina Scenic Stages, 4 Cir., 1957, 242 F.2d 263, has been abused.
Accordingly, we affirm that portion of the district court’s order disposing of the claims of the collateral trustee for compensation for himself and for allowance with which to compensate his attorneys; we reverse the portion of that order that denies interest on the unpaid installment notes at a rate in excess of 4% per an-num from August 17, 1955 forward; and the cause is remanded for further proceedings not inconsistent with this opinion.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 11. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_caseorigin
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027
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
IMMIGRATION AND NATURALIZATION SERVICE v. RIOS-PINEDA et al.
No. 83-2032.
Argued March 20, 1985
Decided May 13, 1985
White, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the case.
Alan I. Horowitz argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, and James A. Hunolt.
Lawrence H. Rudnick argued the cause for respondents. With him on the brief was Roman de la Campa.
Justice White
delivered the opinion of the Court.
Section 244(a)(1) of the Immigration and Nationality Act (Act), 66 Stat. 214, as amended, 8 U. S. C. § 1254(a)(1), allows the Attorney General to suspend the deportation of an alien. To warrant such action, the alien must have been physically present in the United States for a continuous period of at least seven years, be of good moral character, and demonstrate that deportation would result in extreme hardship to the alien, or the alien’s “spouse, parent, or child, who is a citizen of the United States or an alien lawfully-admitted for permanent residence.” Ibid. Even if these prerequisites are satisfied, it remains in the discretion of the Attorney General to suspend, or refuse to suspend, deportation. INS v. Jong Ha Wang, 450 U. S. 139, 144, n. 5 (1981); Jay v. Boyd, 351 U. S. 345, 353 (1956). Although Congress did not provide a statutory mechanism for reopening suspension proceedings once suspension has been denied, the Attorney General has promulgated regulations under the Act allowing for such a procedure. 8 CFR § 3.2 (1985). Under the regulations, a motion to reopen will be denied unless reopening is sought on the basis of circumstances which have arisen subsequent to the original hearing. Ibid. The Attorney General, authorized by Congress to do so, 8 U. S. C. § 1103, has delegated his authority and discretion to suspend deportation to special inquiry officers of the Immigration and Naturalization Service (INS), whose decisions are subject to review by the Board of Immigration Appeals (BIA). 8 CFR §§242.8, 242.21 (1985).
Respondents, a married couple, are natives and citizens of Mexico. Respondent husband illegally entered the United States in 1972. Apprehended, he returned to Mexico in early 1974 under threat of deportation. Two months later, he and respondent wife paid a professional smuggler $450 to transport them into this country, entering the United States without inspection through the smuggler’s efforts. Respondent husband was again apprehended by INS agents in 1978. At his request, he was granted permission to return voluntarily to Mexico in lieu of deportation. He was also granted two subsequent extensions of time to depart, but he ultimately declined to leave as promised. INS then instituted deportation proceedings against both respondents. By that time, respondent wife had given birth to a child, who, born in the United States, was a citizen of this country. A deportation hearing was held in December 1978. Respondents conceded illegal entry, conceded deportability, but requested suspension of deportation. The Immigration Judge, ruling that respondents were ineligible for suspension because they had not satisfied the requirement of seven years’ continuous physical presence, ordered their deportation. Respondents appealed the order to the BIA, asserting a variety of arguments to establish that the deportation violated their rights or the rights of their child. The BIA rejected these arguments and dismissed the appeal.
In July 1980, respondents filed a petition for review in the Court of Appeals, which automatically stayed their deportation pursuant to 8 U. S. C. § 1105a(a)(3). Asking that the court order their deportation suspended, respondents asserted substantially the same claims rejected by the BIA: that the Immigration Judge should have given them Miranda warnings, that their deportation was an unlawful de facto deportation of their citizen child, and that respondent husband should have been considered present in the United States for seven years. In March 1982, 15 months after the briefs were filed, the Court of Appeals reversed the decision of the BIA and remanded the case for further proceedings. Rios-Pineda v. United States Department of Justice, 673 F. 2d 225 (CA8). The Court of Appeals was of the view that during the pendency of the appeals, respondents had accrued the requisite seven years’ continuous physical presence in the United States. Id., at 227. Because of this development, the court directed the BIA to allow respondents 60 days to file a motion to reopen their deportation proceeding and cautioned the BIA “to give careful and thorough consideration to the . . . motion to reopen if, indeed, one is filed.” Id., at 228, n. 5. During the pendency of the appeals, respondent wife gave birth to a second citizen child.
Respondents then moved the BIA to reopen and requested suspension of deportation. They alleged that deportation would result in extreme hardship in that their two citizen children would be deprived of their right to an education in United States schools and to social assistance. Respondents also alleged general harm to themselves from their “low skills and educations” and the lower standard of living in Mexico.
The BIA denied the motion to reopen. First, the motion was not timely filed, as respondents had not served it on the proper official within the specified 60 days. Second, discretionary relief was unwarranted, since the additional facts — seven years’ continuous physical presence and an additional child — were available only because respondents had delayed departure by frivolous appeals. Third, respondent husband’s conduct in returning to the country only two months after his 1974 departure, respondents’ payment to a professional smuggler to enter this country illegally, and respondent husband’s refusal to depart voluntarily after promising to do so, all evinced a blatant disregard for the immigration laws, disentitling respondents to the favorable exercise of discretion.
The Court of Appeals reversed and directed the BIA to reopen the proceeding. Rios-Pineda v. United States Department of Justice, 720 F. 2d 529 (CA8 1983). The motion to reopen, the panel concluded, was timely filed, respondents had made out a prima facie case of hardship, and the factors relied on by the BIA did not justify its refusal to reopen. Although the court did not find merit in any of the legal arguments respondents had pressed during their prior appeals, their appeals were not frivolous. Neither could the BIA deny a motion to reopen because of respondents’ disregard of the immigration laws, since such disregard is present in some measure in all deportation cases. Id., at 534.
We granted certiorari, 469 U. S. 1071 (1984), because this case involves important issues bearing on the scope of the Attorney General’s discretion in acting on motions to reopen civil requests for suspension of deportation.
We have recently indicated that granting a motion to reopen is a discretionary matter with BIA. INS v. Phinpathya, 464 U. S. 183, 188, n. 6 (1984). Thus, even assuming that respondents’ motion to reopen made out a prima facie case of eligibility for suspension of deportation, the Attorney General had discretion to deny the motion to reopen. INS v. Jong Ha Wang, 450 U. S. 139, 144, n. 5 (1981). We have also held that if the Attorney General decides that relief should be denied as a matter of discretion, he need not consider whether the threshold statutory eligibility requirements are met. INS v. Bagamasbad, 429 U. S. 24 (1976); see also Jong Ha Wang, 450 U. S., at 143-144, n. 5.
Given the Attorney General’s broad discretion in this context, we cannot agree with the Court of Appeals’ holding that denial of the motion to reopen was an impermissible exercise of that discretion. If, as was required by the regulations, respondents’ motion to reopen was based on intervening circumstances demonstrating 7-year residence and extreme hardship, the Attorney General, acting through the BIA, nevertheless had the authority to deny the motion for two separate and quite adequate reasons.
First, although by the time the BIA denied the motion, respondents had been in this country for seven years, that was not the case when suspension of deportation was first denied; the seven years accrued during the pendency of respondents’ appeals. The BIA noted that respondents’ issues on appeals were without merit and held that the 7-year requirement satisfied in this manner should not be recognized. In our view, it did not exceed its discretion in doing so.
The Court of Appeals thought the appeal had not been frivolous because it had resulted in further proceedings. But this was true only because seven years of residence had accrued during the pendency of the appeal. No substance was found in any of the points raised on appeal, in and of themselves, and we agree with the BIA that they were without merit. The purpose of an appeal is to correct legal errors which occurred at the initial determination of deportability; it is not to permit an indefinite stalling of physical departure in the hope of eventually satisfying legal prerequisites. One illegally present in the United States who wishes to remain already has a substantial incentive to prolong litigation in order to delay physical deportation for as long as possible. See, e. g., Sung Ja Oum v. INS, 613 F. 2d 51, 52-54 (CA4 1980); Hibbert v. INS, 554 F. 2d 17, 19-21 (CA2 1977). The Attorney General can, in exercising his discretion, legitimately avoid creating a further incentive for stalling by refusing to reopen suspension proceedings for those who became eligible for such suspension only because of the passage of time while their meritless appeals dragged on. See Leblanc v. INS, 715 F. 2d 685, 693 (CA1 1983); Agustin v. INS, 700 F. 2d 564, 566 (CA9 1983); Balani v. INS, 669 F. 2d 1157, 1160-1162 (CA6 1982); Der-Rong Chour v. INS, 578 F. 2d 464, 467-468 (CA2 1978), cert. denied, 440 U. S. 980 (1979); Schieber v. INS, 171 U. S. App. D. C. 312, 320-321, 520 F. 2d 44, 52-53 (1975).
The impact of any other rule is pointed out by this case. Respondents were apprehended in 1978, and they conceded deportability. Nonetheless, over six years later they remain in the United States by virtue of their baseless appeals. In administering this country’s immigration laws, the Attorney General and the INS confront an onerous task even without the addition of judicially augmented incentives to take merit-less appeals, engage in repeated violations, and undertake other conduct solely to drag out the deportation process. Administering the 7-year requirement in this manner is within the authority of the Attorney General. The Act commits the definition of the standards in the Act to the Attorney General and his delegate in the first instance, “and their construction and application of th[ese] standard[s] should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute.” INS v. Jong Ha Wang, supra, at 144.
Second, we are sure that the Attorney General did not abuse his discretion in denying reopening based on respondents’ flagrant violation of the federal law in entering the United States, as well as respondent husband’s willful failure to depart voluntarily after his request to do so was honored by the INS. The Court of Appeals’ rejection of these considerations as “irrelevant” is unpersuasive. While all aliens illegally present in the United States have, in some way, violated the immigration laws, it is untenable to suggest that the Attorney General has no discretion to consider their individual conduct and distinguish among them on the basis of the flagrancy and nature of their violations. There is a difference in degree between one who enters the country legally, staying beyond the terms of a visa, and one who enters the country without inspection. Nor does everyone who illegally enters the country do so repeatedly and with the assistance of a professional smuggler. Furthermore, the Attorney General can certainly distinguish between those who, once apprehended, comply with the laws, and those who refuse to honor previous agreements to report for voluntary departure. Accordingly, we are convinced that the BIA did not abuse its discretion in denying reopening because of respondents’ prior conduct.
This case, therefore, does not involve the unreasoned or arbitrary exercise of discretion. Here the BIA’s explanation of its decision was grounded in legitimate concerns about the administration of the immigration laws and was determined on the basis of the particular conduct of respondents. In this government of separated powers, it is not for the judiciary to usurp Congress’ grant of authority to the Attorney General by applying what approximates de novo appellate review. See Jong Ha Wang, 450 U. S., at 144-145; Phinpathya, 464 U. S., at 195-196. Because we conclude that here the refusal to reopen the suspension proceeding was within the discretion of the Attorney General, we reverse the decision of the Court of Appeals.
So ordered.
Justice Powell took no part in the consideration or decision of this case.
The issue of whether the motion to reopen was timely filed is not before this Court, and we assume, without deciding, that timely filing was established by service of the motion on the wrong official within the period required by the Court of Appeals’ first decision. See 720 F. 2d, at 532.
Even prior to our decision in INS v. Phinpathya, 464 U. S. 183 (1984), while the administrative practice treated some minor absences as not breaking the continuous presence period, neither the courts nor the Attorney General had ever considered a departure under threat of deportation, coupled with a subsequent illegal entry after two months’ absence, anything less than a meaningful interruption of the period. Not only had the Immigration Judge explained, both at the deportation hearing and in his written decision, App. to Pet. for Cert. 27a, that such an absence was an interruption of the period of continuous presence, the law itself was clear. See Heitland v. INS, 551 F. 2d 495, 503-504 (CA2), cert. denied, 434 U. S. 819 (1977); Segura-Viachi v. INS, 538 F. 2d 91, 92 (CA5 1976); Barragan-Sanchez v. Rosenberg, 471 F. 2d 758, 760 (CA9 1972); see generally Phinpathya, supra, at 193-194.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
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035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
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041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
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141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
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143. New York U.S. District Court
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154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
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
212. United States Supreme Court
Answer:
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