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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
PENNSYLVANIA et al. v. DELAWARE VALLEY CITIZENS’ COUNCIL FOR CLEAN AIR et al.
No. 85-5.
Argued March 3, 1986
Reargued October 15, 1986
Decided June 26, 1987
White, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-A, in which Rehnquist, C. J., and Powell, O’Connor, and Scalia, JJ., joined, and an opinion with respect to Parts III-B, IV, and V, in which Rehnquist, C. J., and Powell and Scalia, JJ., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, -post, p. 731. Blackmun, J., filed a dissenting opinion, in which Brennan, Marshall, and Stevens, JJ., joined, post, p. 735.
Jay C. Waldman reargued the cause for petitioners. With him on the briefs on reargument were Henry G. Barr, John P. Krill, and John M. Hrubovcak. With him on the briefs on the original argument were Spencer A. Manthorpe and Messrs. Barr, Hrubovcak, and Krill.
Donald B. Ayer reargued the cause for the United States as respondent under this Court’s Rule 19.6 in support of petitioners. Kathryn A. Oberly argued the cause for the United States on the original argument. With her on the brief were Solicitor General Fried, F. Henry Habicht II, and Deputy Solicitor General Getter.
James D. Crawford reargued the cause for respondents. With him on the brief was Joyce S. Meyers.
Briefs of amici curiae urging affirmance were filed for the American Bar Association by Eugene C. Thomas, John R. Hupper, Thomas D. Barr, and John H. Pickering; and for Joseph A. Bonjorno' et al. by Henry T. Reath and Michael M. Baylson.
Briefs of amici curiae were filed for the State of Arizona et al. by Francis X. Bellotti, Attorney General of Massachusetts, and Suzanne E. Durrell, Assistant Attorney General, Robert K. Corbin, Attorney General of Arizona, Joseph I. Lieberman, Attorney General of Connecticut, Michael J. Bowers, Attorney General of Georgia, Richard G. Opper, Attorney General of Guam, Corinne K. A. Watanabe, Attorney General of Hawaii, Jim Jones, Attorney General of Idaho, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, David L. Armstrong, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, James E. Tierney, Attorney General of Maine, Stephen H. Sachs, Attorney General of Maryland, Frank J. Kelley, Attorney General of Michigan, and Louis J. Caruso, Solicitor General, Edward Lloyd Pittman, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Stephen E. Merrill, Attorney General of New Hampshire, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Michael C. Turpén, Attorney General of Oklahoma, T. Travis Medlock, Attorney General of South Carolina, Jeffrey L. Amestoy, Attorney General of Vermont, William Broaddus, Attorney General of Virginia, Kenneth O. Eikenberry, Attorney General of Washington, Charles G. Brown, Attorney General of West Virginia, and A. G. McClintock, Attorney General of Wyoming; and for Twelve Small Private Civil Rights Law Firms by John Leubsdorf.
Justice White
announced the judgment of the Court and delivered an opinion, Parts I, II, and III-A of which represent the views of the Court, and Parts III-B, IV, and V of which are joined by The Chief Justice, Justice Powell, and Justice Scalia.
This case involves the award of an attorney’s fee to the prevailing party pursuant to § 304(d) of the Clean Air Act, 42 U. S. C. § 7604(d).
h-H
We set forth a detailed statement of the facts underlying this litigation in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U. S. 546 (1986), and recite only an abbreviated version of those facts here. In 1977, the Delaware Valley Citizens’ Council for Clean Air (hereinafter respondent) and the United States each filed suit to compel the Commonwealth of Pennsylvania to comply with certain provisions of the Clean Air Act. The parties entered into a consent decree, approved by the District Court in 1978, which obligated the Commonwealth to establish a program for the inspection and maintenance of vehicle emissions systems in 10 counties in the Philadelphia and Pittsburgh areas by August 1, 1980. The Commonwealth failed to implement the program by this date, and protracted litigation ensued. Ultimately, in May 1983, the parties agreed to set June 1, 1984, as the date on which the Commonwealth would commence the inspection and maintenance program. Shortly after this agreement, respondent petitioned the District Court for attorney’s fees and costs for the work performed after the issuance of the consent decree. In determining the amount of fees to be awarded, the District Court divided the work performed by respondent’s counsel into nine phases. See 478 U. S., at 549-553. After computing the lodestar for each phase, the District Court adjusted this figure upward in phases four, five, and seven by doubling the lodestar to reflect the risk presumably faced by respondent that it would not prevail on these phases of the litigation. The District Court observed:
“The contingent nature of plaintiff’s success has been apparent throughout this litigation. Plaintiffs entered the litigation against the U. S. Government and the Commonwealth of Pennsylvania. The case involved new and novel issues, the resolution of which had little or no precedent.... [Plaintiffs have had to defend their rights under the consent decree due to numerous attempts by defendants and others to overturn or circumvent this Court’s Orders.” 581 F. Supp. 1412, 1431 (1984).
The Court of Appeals for the Third Circuit affirmed the District Court’s enhancement of the fee award for contingency of success, 762 F. 2d 272, 282 (1985), a judgment that we now reverse.
II
We first focus on the nature of the issue before us. Under the typical fee-shifting statute, attorney’s fees are awarded to a prevailing party and only to the extent that party prevails. See, e. g., Maher v. Gagne, 448 U. S. 122, 129-130 (1980); Hensley v. Eckerkart, 461 U. S. 424, 435 (1983). Hence, if the case is lost, the loser is awarded no fee; and unless its attorney has an agreement with the client that the attorney will be paid, win or lose, the attorney will not be paid at all. In such cases, the attorney assumes a risk of nonpayment when he takes the case. The issue before us is whether, when a plaintiff prevails, its attorney should or may be awarded separate compensation for assuming the risk of not being paid. That risk is measured by the risk of losing rather than winning and depends on how unsettled the applicable law is with respect to the issues posed by the case and by how likely it is that the facts could be decided against the complainant. Looked at in this way, there are various factors that have little or no bearing on the question before us.
First is the matter of delay. When plaintiffs’ entitlement to attorney’s fees depends on success, their lawyers are not paid until a favorable decision finally eventuates, which may be years later, as in this case. Meanwhile, their expenses of doing business continue and must be met. In setting fees for prevailing counsel, the courts have regularly recognized the delay factor, either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value. See, e. g., Sierra Club v. EPA, 248 U. S. App. D. C. 107, 120-121, 769 F. 2d 796, 809-810 (1985); Louisville Black Police Officers Organization, Inc. v. Louisville, 700 F. 2d 268, 276, 281 (CA6 1983). Although delay and the risk of nonpayment are often mentioned in the same breath, adjusting for the former is a distinct issue that is not involved in this case. We do not suggest, however, that adjustments for delay are inconsistent with the typical fee-shifting statute.
Second, that a case involves an issue of public importance, that the plaintiff’s position is unpopular in the community, or that defendant is difficult or obstreperous does not enter into assessing the risk of loss or determining whether that risk should be compensated. Neither does the chance that the court will find unnecessary and not compensate some of the time and effort spent on prosecuting the case.
Third, when the plaintiff has agreed to pay its attorney, win or lose, the attorney has not assumed the risk of nonpayment and there is no occasion to adjust the lodestar fee because the case was a risky one. See, e. g., Jones v. Central Soya Co., 748 F. 2d 586, 593 (CA11 1984), where the court said that “[a] lawyer may not preserve a right of recourse against his client for fees and still expect to be compensated as if he had sacrificed completely his right to payment in the event of an unsuccessful outcome.”
r-H h — I ► — I
A
Although the issue of compensating for assuming the risk of nonpayment was left open in Blum v. Stenson, 465 U. S. 886 (1984), Justice Brennan wrote that “the risk of not prevailing, and therefore the risk of not recovering any attorney’s fees is a proper basis on which a district court may award an upward adjustment to an otherwise compensatory fee.” Id., at 902 (concurring). Most Courts of Appeals are of a similar view and have allowed upward adjustment of fee awards because of the risk of loss factor. The First Circuit, in Wildman v. Lerner Stores Corp., 771 F. 2d 605 (1985), for example, takes this approach and allows an upward adjustment to the lodestar to account for the contingency factor. In that case, the District Court entered judgment on a jury verdict finding an employer liable for violating the Age Discrimination in Employment Act, 29 U. S. C. § 621 et seq., and two Puerto Rican statutes. The court awarded the prevailing party a lodestar fee amount of $56,500 and then increased that figure by 50% to account for the fact that because of the difficulties of the action and the novelty of the issue, “the plaintiffs’ attorneys... faced a contingency of losing all their time and effort.” 771 F. 2d, at 610. In sustaining the enhancement of fee awards based on contingency, the Court of Appeals relied on the legislative history of 42 U. S. C. § 1988, detailed several additional reasons as to why it is necessary to increase the lodestar figure for contingent-fee cases, and concluded that rather than compensating lawyers for unsuccessful claims, an adjustment of the lodestar figure may be necessary in particular cases to provide for the reasonable attorney’s fee envisioned by Congress.
This construction of the fee-shifting statutes has not been universal. The District of Columbia Circuit is particularly skeptical of the purpose served by enhancing the lodestar amount to account for the risk of not prevailing. In Laffey v. Northwest Airlines, Inc., 241 U. S. App. D. C. 11, 746 F. 2d 4 (1984), cert. denied, 472 U. S. 1021 (1985), the court reversed the trial court’s decision to double the lodestar based on the risk factor, citing a wide variety of problems with such an approach. The court found that, in theory, there should be no limit on the size of the fee if risk enhancement is permitted, for the less likely the chances of success in a particular case, the more “entitled” the prevailing party should be to have the fee award reflect acceptance of this risk. In a similar vein, the contingency factor penalizes the losing parties with the strongest and most reasonable defenses, thus “creating a perverse penalty for those least culpable.” 241 U. S. App. D. C., at 33, 746 F. 2d, at 26. Moreover, even if the risk of loss should be taken into account, “the chances of winning could not be set with anything approaching mathematical precision, and so vast increases in attorneys [fees] would derive from a spurious mathematical base.” Id., at 33-34, 746 F. 2d, at 26-27 (footnote omitted).
On a more fundamental level, the court found that using the risk of loss to increase the lodestar figure compensates attorneys not only for their successful efforts in one case, but for their unsuccessful claims asserted in related cases. This not only “encourag[es] marginal litigation,” but raises “the reasonable question of ‘why the subsidy [for unsuccessful litigation] should come from the defendant in another case.’” Id., at 34, n. 138, 746 F. 2d, at 27, n. 138 (citations omitted).
Such a scheme was deemed to be manifestly inconsistent with Congress’ intent to award attorney’s fees only to prevailing parties. Relying on this Court’s holding in Hensley that attorney’s fees could not be awarded for claims unrelated to those on which the party ultimately prevailed, the court reasoned:
“The same logic which restricts compensation to those portions of a lawsuit directly related to the relief procured also forbids multiplying attorneys fees so as effectively to compensate counsel for other, losing claims which may be brought. The prevailing party may expect full compensation for prevailing claims; there is no provision for compensating losing, unrelated claims in the same case, or other losing cases which might or might not involve the same parties. Any crude multiplier derived simply from the plaintiff’s chance of success must be rejected as contrary to the congressional scheme.” Id., at 34-35, 746 F. 2d, at 27-28.
Finally, the court held that even if a contingency enhancement, as opposed to a contingency multiplier, could be used to reflect the party’s initial chance of success, Blum made clear that such enhancements were proper only in the most exceptional of cases, and because “this case did not present an exceptional level of risk, no risk enhancement should be awarded.” Id., at 36, 746 F. 2d, at 29.
The bar and legal commentators have been much interested in the issue. Some writers unqualifiedly have endorsed the concept of increasing the fee award to insure that lawyers will be adequately compensated for taking the risk of not prevailing. “The experience of the marketplace indicates that lawyers generally will not provide legal representation on a contingent basis unless they receive a premium for taking that risk.” Berger, Court Awarded Attorneys’ Fees: What is “Reasonable”?, 126 U. Pa. L. Rev. 281, 324-325 (1977). See also, Developments in the Law—Class Actions, 89 Harv. L. Rev. 1318, 1615 (1976); Comment, 122 U. Pa. L. Rev. 636, 708-711 (1974).
Others have been considerably more reserved in their endorsement of a contingency bonus, focusing on four major problems with the use of this factor. First, evaluation of the risk of loss creates a potential conflict of interest between an attorney and his client, for in order to increase a fee award, a plaintiff’s lawyer must expose all of the weaknesses and inconsistencies in his client’s case, and a defendant’s attorney must either concede the strength of the plaintiff’s case in order to keep down the fee award, or “allo[w] the fee to be boosted by the contingency bonus [by] insisting that the plaintiff’s victory was freakish.” Leubsdorf, The Contingency Factor in Attorney Fee Awards, 90 Yale L. J. 473, 483 (1981) (Leubsdorf). Second, in order to determine the proper size of the contingency bonus, a court must retroactively estimate the prevailing party’s chances for success from the perspective of the attorney when he first considered filing the suit. Not only is this mathematically difficult to compute, but “once the result is known, it is hard for judges and lawyers to regain a perspective of ignorance and to treat the result as only one of several that were initially possible.” Id., at 486.
The third problem with increasing the fee award to account for the risk of not prevailing is the same one identified by the courts which have questioned this practice: it penalizes the defendant with the strongest defense, and forces him to subsidize the plaintiff’s attorney for bringing other unsuccessful actions against other defendants. Id., at 488-491. See Note, 80 Colum. L. Rev. 346, 375 (1980). Finally, because the contingency bonus cannot be determined with either certainty or accuracy, it “cannot be justified on the ground that it provides an appropriate incentive for litigation.” Leubsdorf 496. Cf. Note, 96 Harv. L. Rev. 677, 686, n. 51 (1983); Comment, 53 U. Chi. L. Rev. 1074 (1986).
There are other considerations. Fee-shifting removes the interest a paying client would have in ensuring that the lawyer is serving the client economically; the task of monitoring the attorney is shifted to the judge in separate litigation over fees if the plaintiff wins. Fee litigation occurs on a case-to-case basis and is often protracted, complicated, and exhausting. There is little doubt that it should be simplified to the maximum extent possible. If the decided cases are any measure, assessing the initial risk of loss when the case is over is a particularly uncertain matter, especially for a judge who is confident that he has correctly decided for the plaintiff, but then must inquire how weak the plaintiff’s case was and how likely it was that he, the judge, would have been mistaken. It may be absurd to ask the judge to “determine the probability that he would have decided the case incorrectly.” Id., at 1094.
B
The disagreement among the Circuits and commentators indicates that Congress has not clearly directed or authorized multipliers or enhancements for assuming the risk of loss. Neither the Clean Air Act nor § 1988 expressly provides for using the risk of loss as an independent basis for increasing an otherwise reasonable fee, and it is doubtful that the legislative history supports.the use of this factor. In concluding that risk-enhancement is authorized, Justice Brennan in Blum, 465 U. S., at 902, relied on the fact that one of the items to be relied on in setting a fee and enumerated in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (CA5 1974), is whether the fee is fixed or contingent, and that Congress endorsed consideration of this factor. See S. Rep. No. 94-1011, p. 6 (1976) (S. Rep). But a careful reading of Johnson shows that the contingency factor was meant to focus judicial scrutiny solely on the existence of any contract for attorney’s fees which may have been executed between the party and his attorney. “The fee quoted to the client or the percentage of the recovery agreed to is helpful in demonstrating the attorney’s fee expectations when he accepted the case.” 488 F. 2d, at 718. See Leubsdorf 479, n. 38. At most, therefore, Johnson suggests that the nature of the fee contract between the client and his attorney should be taken into account when determining the reasonableness of a fee award, but there is nothing in Johnson to show that this factor was meant to reflect the contingent nature of prevailing in the lawsuit as a whole.
Justice Brennan also noted that Congress cited Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974) (subsequently aff’d, 550 F. 2d 464 (CA9 1977), rev’d on other grounds, 436 U. S. 547 (1978)), as one of several cases which “correctly applied” the Johnson factors. Blum, supra, at 903. The court there increased the lodestar based, in part, on contingency-of-success considerations. But Congress also cited two other cases which it found also “correctly applied” the Johnson criteria. In Davis v. County of Los Angeles, 8 EPD ¶ 9444, p. 5047 (CD Cal. 1974), the District Court added a “Result Charge” to the basic fee award. This award was not intended to compensate the lawyers for assuming the risk of not prevailing on the merits; instead, as the label suggests, the court increased the - award because “counsel [had] achieved excellent results,” and “[t]he nature of the case made it difficult to litigate....” Id., at 5048. The court in Swann v. Charlotte-Mecklenburg Bd. of Ed., 66 F. R. D. 483 (WDNC 1975), the third illustrative case cited.with approval by Congress, did not increase the basic fee award at all. Instead, after reviewing nine factors similar to those listed in Johnson, the court reduced the prevailing party’s fee request by nearly 15%, choosing to “err on the conservative side in dealing with any fee question” rather than “contribute unnecessarily to the overpricing of litigation in this or any other court.” 66 F. R. D., at 486. Given the divergence in both analysis and result between these three cases, the legislative history is, at best, inconclusive in determining whether Congress endorsed the concept of increasing the lodestar amount to reflect the risk of not prevailing on the merits.
We must nevertheless come to a decision and have concluded that the judgment must be reversed.
IV
We are impressed with the view of the Court of Appeals for the District of Columbia Circuit that enhancing fees for risk of loss forces losing defendants to compensate plaintiff’s lawyers for not prevailing against defendants in other cases.' This result is not consistent with Congress’ decision to adopt the rule that only prevailing parties are entitled to fees. If risk multipliers or enhancement are viewed as no more than compensating attorneys for their willingness to take the risk of loss and of nonpayment, we are nevertheless not at all sure that Congress intended that fees be denied when a plaintiff loses, but authorized payment for assuming the risk of an uncompensated loss. Such enhancement also penalizes the defendants who have the strongest case; and in theory, at least, would authorize the highest fees in cases least likely to be won and hence encourage the bringing of more risky cases, especially by lawyers whose time is not fully occupied with other work. Because it is difficult ever to be completely sure that a case will be won, enhancing fees for the assumption of the risk of nonpayment would justify some degree of enhancement in almost every case.
Weighing all of these considerations, we are unconvinced that Congress intended the risk of losing a lawsuit to be an independent basis for increasing the amount of any otherwise reasonable fee for the time and effort expended in prevailing. As the Senate Report observed: “In computing the fee, counsel for prevailing parties should be paid, as is traditional with attorneys compensated by a fee-paying client, ‘for all time reasonably expended on a matter.’ Davis, supra; Stanford Daily, supra, at 684.” S. Rep. 6.
The contrary argument is that without the promise of multipliers or enhancement for risk-taking, attorneys will not take cases for clients who cannot pay, and the fee-shifting statutes will therefore not serve their purpose. We agree that a fundamental aim of such statutes is to make it possible for those who cannot pay a lawyer for his time and effort to obtain competent counsel, this by providing lawyers with reasonable fees to be paid by the the losing defendants. But it does not follow that fee enhancement for risk is necessary or allowable. Surely that is not the case where plaintiffs can afford to pay and have agreed to pay, win or lose. The same is true where any plaintiff, impecunious or otherwise, has a damages case that competent lawyers would take in the absence of fee-shifting statutes. Nor is it true in those cases where plaintiffs secure help from organizations whose very purpose is to provide legal help through salaried counsel to those who themselves cannot afford to pay a lawyer. It is also unlikely to be true in any market where there are competent lawyers whose time is not fully occupied by other matters.
The issue thus involves damages cases that lawyers would not take, not because they are too risky (the fee-shifting statutes should not encourage such suits to be brought), but because the damages likely to-be recovered are not sufficient to provide adequate compensation to counsel, as well as those frequent cases in which the goal is to secure injunctive relief to the exclusion of any claim for damages. In both situations, the fee-shifting statutes guarantee reasonable payment for the time and effort expended if the case is won. Respondent’s position is that without the prospect of being awarded fees exceeding such reasonable payment, plaintiffs with such cases will be unable to secure the help that the statutes aimed to provide.
We are not persuaded that this will be the case. Indeed, it may well be that using a contingency enhancement is superfluous and unnecessary under the lodestar approach to setting a fee. The reasons a particular lawsuit are considered to be “risky” for an attorney are because of the novelty and difficulty of the issues presented, and because of the potential for protracted litigation. Moreover, when an attorney ultimately prevails in such a lawsuit, this success will be primarily attributable to his legal skills and experience, and to the hours of hard work he devoted to the case. These factors, however, are considered by the court in determining the reasonable number of hours expended and the reasonable hourly rate for the lodestar, and any further increase in this sum based on the risk of not prevailing would result not in a “reasonable” attorney’s fee, but in a windfall for an attorney who prevailed in a difficult case.
It may be that without the promise of risk enhancement some lawyers will decline to take cases; but we doubt that the bar in general will so often be unable to respond that the goal of the fee-shifting statutes will not be achieved. In any event, risk enhancement involves difficulties in administration and possible inequities to those who must pay attorney’s fees; and in the absence of further legislative guidance, we conclude that multipliers or other enhancement of a reasonable lodestar fee to compensate for assuming the risk of loss is impermissible under the usual fee-shifting statutes.
Even if § 304(d) and other typical fee-shifting statutes are construed to permit supplementing the lodestar in appropriate cases by paying counsel for assuming the risk of nonpayment, for the reasons set out below, it was error to do so in this case.
V
Section 304(d), like § 1988, does not indicate that adjustment for risk should be the rule rather than the exception; neither does it require such an adjustment in any case. At most, it leaves the matter of risk enhancement to the informed discretion of the courts. There are, however, severe difficulties and possible inequities involved in making upward adjustments for assuming the risk of nonpayment, and we deem it appropriate, in order to guide the exercise of the trial courts’ discretion in awarding fees, to adopt here the approach followed in Blum in dealing with other multipliers. As in that case, payment for the time and effort involved— the lodestar — is presumed to be the reasonable fee authorized by the statute, and enhancement for the risk of nonpayment should be reserved for exceptional cases where the need and justification for such enhancement are readily apparent and are supported by evidence in the record and specific findings by the courts. Blum, 465 U. S., at 898-901. For several reasons, the circumstances of this case do not justify the risk multiplier employed by the District Court.
First, the District Court doubled the lodestar in three phases of the case in recognition of the risk of loss, saying that the “contingent nature of plaintiffs’ success has been apparent” from the outset, that plaintiffs entered the litigation against the United States and the Commonwealth of Pennsylvania, and that the case involved new and novel issues, the resolution of which had little or no precedent. Furthermore, they had to “defend their rights under the consent decree due to numerous attempts by defendants and others to overturn or circumvent this court’s orders.” 581 F. Supp., at 1431. This case, however, concerns only the reasonable fee for work done after the consent decree was entered, and fees have already been awarded for work done before that time. The risk of nonpayment should be determined at the beginning of the litigation. Lewis v. Coughlin, 801 F. 2d 570, 576 (CA2 1986); Ramos v. Lamm, 713 F. 2d 546, 558 (CA10 1983). Whatever counsel thought the risk of losing was at the outset, it is doubtful that counsel anticipated a similar risk in enforcing a decree if plaintiff was successful in having one entered. In any event, the District Court did not specifically identify any new and novel issues, and we fail to discern any, that emerged in the long process of enforcing the court decree in accordance with its terms. And whether the Commonwealth of Pennsylvania was a substantial opponent or whether it tried to circumvent the decree has little or nothing to do with whether the there was a real risk of not persuading the District Court to enforce its own decree. The matter may have been difficult, wearing, and time consuming, but that kind of effort has been recognized in the lodestar award.
Second, if it be assumed that this is one of the exceptional cases in which enhancement for assuming the risk of nonpayment is justified, we conclude that doubling the lodestar for certain phases of the work was excessive. We have alluded to the uncertainties involved in determining the risk of not prevailing and the burdensome nature of fee litigation. We deem it desirable and an appropriate application of the statute to hold that if the trial court specifically finds that there was a real risk-of-not-prevailing issue in the case, an upward adjustment of the lodestar may be made, but, as a general rule, in an amount no more than one-third of the lodestar. Any additional adjustment would require the most exacting justification. This limitation will at once protect against windfalls for attorneys and act as some deterrence against bringing suits in which the the attorney believes there is less than a 50-50 chance of prevailing. Riskier suits may be brought, and if won, a reasonable lodestar may be awarded, but risk enhancement will be limited to one-third of the lodestar, if awarded at all. Here, even assuming an adjustment for risk was justified, the multiplier employed was excessive.
Third, whatever the risk of winning or losing in a specific case might be, a fee award should be informed by the statutory purpose of making it possible for poor clients with good claims to secure competent help. Before adjusting for risk assumption, there should be evidence in the record, and the trial court should so find, that without risk enhancement plaintiff would have faced substantial difficulties in finding counsel in the local or other relevant market. Here, there were no such findings.
Accordingly, the judgment of the Court of Appeals is
Reversed.
Section 304(d) provides, in relevant part:
“The Court, in issuing any final order in any action brought pursuant to subsection (a) of this section may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the Court determines such award is appropriate.”
Last Term in Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U. S. 546 (1986), we agreed with the Court of Appeals that in awarding attorney’s fees under § 304(d) the courts should follow the principles and ease law governing the award of such fees under 42 U. S. C. § 1988, which provides that in the actions specified in that section “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
At this time, respondent was awarded an attorney’s fee for work done by its counsel, the Public Interest Law Center of Philadelphia (PILCOP), prior to the date of the consent decree.
We granted certiorari last Term, 474 U. S. 815 (1984), heard argument, and issued an opinion holding that respondent was entitled to attorney’s fees under § 304(d) for its counsel’s work done in certain administrative proceedings because the work “was crucial to the vindication of Delaware Valley’s rights under the consent decree....” 478 U. S., at 561. We also concluded that the District Court erred by enhancing the fee award based on the “superior quality” of counsel’s performance, reasoning that respondent did not show “why the lodestar did not provide a reasonable fee award reflecting the quality of representation....” Id., at 567. We did not, however, address the merits of the question now before of us, an issue that was left open in Blum v. Stenson, 465 U. S. 886 (1984). We thought that reargument on this issue would be beneficial. We therefore restored this aspect of the case to the docket for decision this Term. 478 U. S., at 568.
Numerous Courts of Appeals, acting under fee-shifting statutes, have approved an upward adjustment of the lodestar to compensate for the risk of not prevailing. See, e. g., Crumbaker v. Merit Systems Protection Board, 781 F. 2d 191, 196-197 (CA Fed. 1986); Vaughns v. Board of Ed. of Prince Georges County, 770 F. 2d 1244 (CA4 1986), aff’g 698 F. Supp. 1262, 1285-1286 (Md. 1984); Riddell v. National Democratic Party, 712 F. 2d 165, 169-170 (CA5 1983); Kelley v. Metropolitan County Bd. of Ed., 773 F. 2d 677, 683, 686 (CA6 1985) (en banc), cert. denied, 474 U. S. 1083 (1986); Craik v. Minnesota State University Bd., 738 F. 2d 348, 350-351 (CA8 1984); White v. Richmond, 713 F. 2d 458, 462 (CA9 1983); Ramos v. Lamm, 713 F. 2d 546, 557-558 (CA10 1983); Jones v. Central Soya Co., 748 F. 2d 586, 591 (CA11 1984).
In addition to the Courts of Appeals for the District of Columbia Circuit and the Seventh Circuit, other courts have refused risk enhancement for a variety of reasons. See, e. g., Lewis v. Coughlin, 801 F. 2d 570, 576 (CA2 1986) (upward adjustment vacated for failure to evaluate risk of loss); Lanasa v. New Orleans, 619 F. Supp. 39, 50-51 (ED La. 1985) (settlement for low money damages figure could have been agreed to much earlier in litigation); Littlejohn v. Null Mfg. Co., 619 F. Supp. 149, 152 (WDNC 1985) (attorney received fully compensatory fee without adjustment); Bennett v. Central Telephone Co. of Illinois, 619 F. Supp. 640, 653 (ND Ill. 1985) (lack of supporting evidence and high hourly rates); EEOC v. Burlington Northern Inc., 618 F. Supp. 1046, 1061-1062 (ND Ill. 1985) (high hourly rates and risk of nonsuccess not unusually high); Litton Systems, Inc. v. American Telephone & Telegraph Co., 613 F. Supp. 824, 835 (SDNY 1985) (no great incentive needed to encourage appellee to defend its $276 million antitrust judgment on appeal); Cook v. Block, 609 F. Supp. 1036, 1043-1044 (DC 1985) (counsel guaranteed payment by client even if suit was unsuccessful); Cherry v. Rockdale County, 601 F. Supp.
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
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sc_issue_8
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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.
SECRETARY OF AGRICULTURE v. UNITED STATES et al.
NO. 480.
Argued April 27-28, 1954.
Decided June 7, 1954.
Neil Brooks argued the cause and filed a brief for appellant in No. 480.
Maxwell W. Wells argued the cause for appellants in No. 481. On the brief were Mr. Wells for the Florida Citrus Commission et al., John F. Donelan and Preston B. Kavanagh for the California Citrus League et al., Sidney Goldstein, Francis A. Mulhern, Wilbur LaRoe, Jr., Arthur L. Winn, Jr. and Samuel H. Moerman for the Port of New York Authority, James J. Thornton and G. Gary Sousa for the City of' New York, Earl J. Gratz and David B. Fitzgerald for the Philadelphia Terminals Marketing Association et al., and Wilmer A. Hill for the United Fresh Fruit & Vegetable Association et ah, appellants in No. 481.
Edward M. Reidy argued the cause for the Interstate Commerce Commission, appellee. With him on the brief was Leo H. Pou.
Hugh B. Cox argued the cause for the Baltimore & Ohio Railroad Co. et al., appellees. With him on the brief were Francis L. Brown, A. P. Donadío, Joseph F. Eshelman and Charles A. Horsky.
Mr. Justice Frankfurter
delivered the opinion of the Court.
Five railroads which transport fruits and vegetables into New York and Philadelphia filed with the Interstate Commerce Commission schedules of charges for unloading services performed by them at these points. Various shippers and shipper organizations, State Commissions, and other interested parties, protested the proposed charges. The Secretary of Agriculture, acting on behalf of the affected agricultural interests, intervened. The Commission in due course approved the charges, 272 I. C. C. 648. On further consideration, the approved charges were cut roughly in half, 286 I. C. C. 119. Complaints against even these reduced charges were then filed with the Commission, but these were dismissed by it on the basis of its prior decision, and this litigation to enjoin and set aside the Commission’s order followed. 28 U. S. C. §§ 1336, 2325. Numerous parties again intervened — the shipper and consumer interests on the side of the protestants, and the carriers involved on the side of the Commission. The three-judge district court, with Judge De Vane dissenting, upheld the Commission, 114 F. Supp. 420. Direct appeals under 28 U. S. C. § 1253 brought the cases here. 347 U. S. 902.
The general rule is that it is the responsibility of the carrier, as part of the transportation service covered by the line-haul rate, to “deliver” the goods by placing them in such a position as to make them accessible to the consignee. Normally unloading is not a part of the delivery and is performed by the consignee. In accordance with these principles, the railroad spots the car on the team track in its yards in .the destination city, and the consignee is given appropriate free time in which to unload. In the case of private sidings, the railroad’s job ends when it has placed the car on the consignee’s siding.
These are not inflexible rules. The law recognizes and reflects the practicalities of transportation by rail and the diversities to which they give rise. Prior to 1925, the railroads, in order to meet the demands of competitive transportation industries, performed the unloading without additional charge at specified points. In the case of Loading and Unloading Carload Freight, 101 I. C. C. 394, the Commission approved tariffs by the railroads abolishing free unloading at most of these points, and authorized the carriers to make an additional charge thereafter for performing the unloading at the consignee’s request. By the time the present proceeding was instituted, Philadelphia and New York were the only points where the carriers were still performing unloading without any charge in addition to the line-haul rate.
The exception of these two cities was no aberration. It is the result of special conditions which exist in New York and Philadelphia. The significance of these special conditions is at the heart of this controversy.
No railroad carrying fruits or vegetables into New York, except the New York Central, has a direct line into Manhattan. The roads transporting the bulk of the produce into New York, the Pennsylvania and Erie Railroads, terminate their lines on the Jersey side of the Hudson River. There, the cars are put on barges and floated across the river, either to be switched onto the carriers’ Manhattan team tracks or to be unloaded directly at the Duane Street piers. These pier terminals are leased by the City of New York to the various carriers and are strategically located adjacent to Washington Market, New York’s largest fruit and vegetable market. At the team tracks, according to the usual practice, the consignees do their own unloading. However, because of the inadequacy of these facilities and because of the more advantageous location of the pier terminals, approximately 75% of the fruits and vegetables coming into New York are directed to the pier stations.
The procedure at the pier stations is as follows. When the floats are docked at the appropriate pier — this usually happens at night — work crews of the railroad begin to unload the cars and place the contents on the pier floor. The consignees are notified in advance of the arrival of their goods, and at specified times their trucks can come onto the pier floor to pick up their merchandise. Sales and auction facilities are also provided by the railroads, and some of the produce is immediately disposed of in this manner. In no event are the consignees allowed to unload the cars themselves; indeed the Commission has found that this would be “impracticable.”
At Philadelphia, the situation is somewhat different. Here there is no problem of water transportation, and the team track facilities where consignees can do their own unloading are not shown to be inadequate. However, in 1927, the Pennsylvania and the Baltimore & Ohio built competitive produce terminals, and, because of the special facilities available there, 95% of the fruits and vegetables consigned to Philadelphia are now received at these stations. Each of these terminals has two platforms, one for produce intended for private sale, one for produce intended for auction sale. The unloading operations here are considerably simpler and cheaper than at the New York piers; but, as in New York, all the unloading here is performed by the carriers.
It was in the light of this background that the carriers, faced by the sharply rising costs of the unloading operation, sought the Commission’s approval for special unloading charges at these two cities. Such charges, the carriers urged, would serve to bring New York and Philadelphia into line with the generally prevailing practice— that consignees must either do their own unloading or, if they want the carrier to do it for them, they must be prepared to pay for it.
The protestants, appellants here, do not challenge these general principles. It is their contention rather that at these particular points the unloading is an essential part of delivery in that without it the goods are not accessible to the consignees; that therefore the line-haul rate encompasses the unloading; and, finally, that a service covered by the line-haul rate cannot be separately compensated unless the carriers show that the line-haul rate is inadequate to cover it.
These are claims that must be met, and the real question before us is whether the Commission has met them with an adequacy that satisfies the requirements of judicial review, limited though its scope may be. With respect to New York, the Commission’s findings clearly show that since the consignees were not permitted to do their own unloading, the goods were not accessible to them until unloaded by the carriers. Cf. United States v. United States Smelting Co., 339 U. S. 186. Moreover, prior cases of the Commission dealing with the New York terminal have indicated that the unloading cost there is an integral part of the through rate. See Fruits and Vegetables to Duane St., N. Y., 66 I. C. C. 135, 139; Erie R. Co. v. Alabama & V. R. Co., 98 I. C. C. 268, 272, 280-281. Yet the court below attributed to the Commission findings that “the line haul service terminated when the cars reached the pier station,” and that “unloading is an additional service, wholly distinct from delivery.” 114 F. Supp., at 424. But the findings of the Commission, taken as a whole, do not support these statements.
Prior cases where the Commission had sustained the imposition of unloading charges do not serve as useful precedents here. E. g., Loading and Unloading Carload Freight, supra. In those cases, there was an absence of circumstances to justify deviation from the normal rule that unloading is not part of delivery, and therefore the Commission was warranted in concluding that the carrier might impose a separate charge for the unloading where the consignee requested it. Here, however, because of the peculiar conditions prevailing at the New York piers, the unloading is an essential part of the delivery and hence is necessarily encompassed in the line haul. Instead of treating this situation on its own merits, the Commission appears to have relied too much on prior decisions dealing with the problem of unloading charges in different contexts.
While the normal course for the Commission in dealing with a situation like the present would have been to re-examine the sufficiency of the line-haul rate, or to initiate a new division of the existing line-haul rate, the Commission was not precluded from following a procedure fairly adapted to the unique circumstances of this case. The Commission may not unnaturally have felt that it would be undesirable to revise the line-haul rate with its inevitable effect on the entire tariff structure, in order to deal appropriately with the special, localized situation presented at the New York piers. Or the Commission might well have thought that a redivision of the line-haul rate would not be appropriate for the substantial additional cost here involved.
It is not necessary now to consider the Commission’s power, under appropriate findings, to approve such unloading charges without pursuing one of these courses. In dealing with technical and complex matters like these, the Commission must necessarily have wide discretion in formulating appropriate solutions. But we do say that while the Commission has adumbrated the reasons that commended these charges to its approval, the Commission has not adequately explained its departure from prior norms and has not sufficiently spelled out the legal basis of its decision. We do not know whether the Commission has disregarded its own findings that the unloading here is a prerequisite to delivery of the goods; or whether, in order to meet an unusual situation, the Commission has modified the normal doctrine that delivery is the responsibility of the carrier, see New Eng land Coal & Coke Co. v. Norfolk & W. R. Co., 33 I. C. C. 276; or whether the Commission, for a reason not made explicit, has here deemed irrelevant the prevailing rule of its prior cases that a service necessarily encompassed by the line-haul rate cannot be separately restated without examining the sufficiency of the line-haul rate to cover it. See, e. g., Terminal Charges at Pacific Coast Ports, 255 I. C. C. 673; Unloading Lumber to New York Harbor, 256 I. C. C. 463. In short, the Commission has not explained its decision “with the simplicity and clearness through which a halting impression ripens into reasonable certitude. In the end we are left to spell out, to argue, to choose between conflicting inferences. Something more precise is requisite in the quasi-jurisdictional findings of an administrative agency. Beaumont, S. L. & W. R. Co. v. United States, 282 U. S. 74, 86; Florida v. United States, 282 U. S. 194, 215. We must know what a decision means before the duty becomes ours to say whether it is right or wrong.” United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499, 510-511.
Appellants also contend that to permit separate charges to be imposed for the unloading of fruits and vegetables, while not imposing similar charges on other commodities unloaded at these points, violates §§ 2 and 3 of the Interstate Commerce Act. Since we have already concluded that the case should be remanded to the Commission, the Commission on remand should also make more explicit findings as to the differences and similarities in the treatment accorded other commodities unloaded at these same points. If such commodities are unloaded “under substantially similar circumstances,” the Act requires that the charges imposed be the same. If, on the other hand, there are important differences in treatment justifying the imposition of different unloading charges or of no unloading charges at all, the Commission ought to find no difficulty in defining the differences.
Similarly, we deem it desirable that upon reconsideration of this controversy, the Commission should also be more explicit in stating the reasons that led it to assimilate, so far as these unloading charges are concerned, the situation at Philadelphia to that at New York.
The judgment is vacated, and the cases are ordered to be remanded to the Commission for further proceedings not inconsistent with this opinion.
It is so ordered.
The Chief Justice, Mr. Justice Black, and Mr. Justice Douglas would hold the Commission’s order invalid and enjoin its enforcement on the ground that the Commission failed to determine the reasonableness of the railroads’ line-haul rates on the basis of increased unloading rates allowed by the Commission.
Mr. Justice Jackson took no part in the consideration or decision of these cases.
Under 7 U. S. C. § 1291, the Secretary of Agriculture is authorized to make complaint to the Commission as well as to intervene before the Commission and resort to original and appellate judicial remedies in cases affecting the transportation of farm products.
The New York Central and the Baltimore & Ohio Railroads also perform such floatage.
The unloading practices vary somewhat from carrier to carrier. For example, the Erie has a special contractor do its unloading; the Pennsylvania uses automatic equipment instead of manual labor.
272 I. C. C., at 655. In its later report, the Commission also made the somewhat inconsistent finding that “at the original hearing the railroads offered to permit consignees to unload their freight from the car float.” 286 I. C. C., at 125. But when the California Fruit Growers Exchange, after the Commission’s initial decision, requested the railroads to “permit the consignees, as a whole, to perform the unloading at the piers” the railroads refused.
The B. & 0. terminal is used jointly by it and the Reading Railroad.
At Philadelphia, too, the consignees requested the carriers to be permitted to do their own unloading, or to let the auction company which was selling the fruit on their account do the unloading. The Pennsylvania refused, on the ground that the “terminal was a public facility and that the granting of such permission might give rise to a dual method of unloading, one to be conducted by the fruit and vegetable trade, and the other by the railroad for the general public.” 286 I.. C. C., at 137. In this connection, it should be noted that the Commission made no findings that it would be “impracticable” for the consignees to do the unloading at the Philadelphia produce terminals.
272 I. C. C. 648, 654-655: “Delivery to the consignee is not effected until after the cars are unloaded and the lading placed at a convenient location on the pier floor.” 286 I. C. C. 119, 125: “The pier floor is the first place where, after the freight has been unloaded, delivery can be taken.” 286 I. C. C. 119, 127: “After the vegetables are placed on the pier platform they are accessible to the consignee . . . .” 286 I. C. C. 119, 129: The proposed charge, in addition to the line-haul rate, is “for making delivery at New York piers.”
The relation between the unloading charges and the line haul was also adverted to in the Commission’s earlier report, 272 I. C. C., at 662, but not with sufficient clarity.
Under 49 U. S. C. § 15 (6), the Commission may authorize a new division of the rate among the participating carriers if it finds the present division “unjust, unreasonable, [or] inequitable.” In such a proceeding special terminal costs can be taken into account prior to allocating the rate among the line-haul carriers. See Erie B. Co. v. Alabama & V. R. Co., 98 I. C. C. 268, 280; Atlantic Coast Line R. Co. v. Arcade & A. R. Corp., 194 I. C. C. 729, 745-747; Official-Southern Divisions, 287 I. C. C. 497, 538-543; Official-Southwestern Divisions, 287 I. C. C. 553, 584-593.
As the Commission stated:
“An unusual situation, arising primarily from the topography of the area, exists on lower Manhattan as a result of which the present method of handling shipments through the pier stations is of benefit to both shippers (including consignees) and carriers. It is also helpful in the avoidance of traffic congestion. The acquisition of land in that area for additional track facilities would be impracticable if not impossible. . . . Physical conditions in and around New York which limit available space for the establishment and operation of railroad terminal facilities is a general community problem and obviously there should be some sharing between the carriers and their patrons of the burden of overcoming the existing difficulties if this congested area is to be served by railroad transportation.” 286 I. C. C., at 139-140.
The Commission also made reference to figures introduced by the carriers showing the considerable disparity between the cost per car of making team track delivery and cost per car of making terminal delivery, including unloading (286 I. C. C., at 131):
New York
Manhattan Pier
Team Tracks Terminals
Erie. $45.44 $83.87
Pennsylvania . 73.57 122.73
B. & 0 . 70.46 119.86
Philadelphia
Produce
Team Tracks Terminals
Pennsylvania . $39.64 $109.36
B. & 0 . 27.66 75.94
49 U. S. C. § 2 prohibits a carrier from charging or receiving “a greater or less compensation for any service rendered . . . than it charges . . . any other person . . . [for] a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances . . . .”
Section 3 (1) makes it unlawful for any carrier to subject “any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever . . . .”
In its latest report, the Commission stated that “as regards the movement of freight, other than fruits and vegetables . . . the operation is identical with the manner in which fruits and vegetables are car-floated and unloaded.” 286 I. C. C., at 123. Without more, the Commission then concluded that “the record does not warrant a finding of undue preference and prejudice or unjust discrimination in violation of sections 2 or 3 of the act.” 286 I. C. C., at 142.
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
Answer:
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songer_numresp
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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.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Laurence M. ANDERSON, Appellant. UNITED STATES of America, Appellee, v. Adrian VOLK, Appellant. UNITED STATES of America, Appellee, v. Robert Lee JOHNSON, Appellant.
Nos. 80-1848, 80-1869 and 80-1870.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 13, 1981.
Decided Aug. 3, 1981.
Rehearing and Rehearing En Banc Denied Sept. 16, 1981.
Irvin B. Nodland (argued), Lundberg, Conmy, Nodland, Lucas & Schulz, P. C., Bismarck, N. D., for appellant Anderson.
Robert Vogel, Grand Forks, N. D., for appellant Volk.
Brian W. Nelson, Fargo, N. D., for defendant Johnson.
Gary Annear, Asst. U. S. Atty., Fargo, N. D., for appellee.
Before ROSS, HENLEY and McMILLIAN, Circuit Judges.
McMILLIAN, Circuit Judge.
Laurence M. Anderson, Adrian Volk and Robert Lee Johnson were three of seven persons charged in a three-count indictment with distributing a Schedule I controlled substance in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and conspiracy to possess and distribute a Schedule I controlled substance in violation of 21 U.S.C. § 846. Each appeals his respective conviction and sentence. For the reasons set out individually below, we affirm.
Briefly, count I of the indictment charged a sale of 1,044 units of lysergic acid diethylamide (LSD) on March 8, 1979. Count II charged a sale of 5,020 units of LSD on April 30, 1979. Count III detailed a conspiracy to distribute LSD from November 1, 1978, through May 31, 1979.
Five witnesses appeared at the trial on behalf of the government. One was a Chicago chemist who testified only as to the chemical properties of exhibits 1 and 2, the LSD described in counts I and II respectively. Two witnesses were admitted coconspirators or accomplices. Gregory Mannie testified about his relationship to the defendants as far. back as February of 1978 and detailed their activities involving marijuana, cocaine and amphetamines as well as LSD. John Otheim’s testimony was basically the same as Mannie’s but concerned only the events of March 1 through March 20, 1979. The other two witnesses were undercover agents. Drug Enforcement Administration (DEA) agents Lee and Nicks testified about their meetings with Johnson, about observing Volk’s car at the site of an alleged meeting between Volk and Mannie, and about mailing exhibits 1 and 2 to the regional laboratory in Chicago.
At the conclusion of this trial, Anderson was convicted of counts I and III, and sentenced to five years for the substantive offense and two consecutive years for conspiracy. Volk was convicted of counts I and III, and sentenced to five years for the substantive offense and two consecutive years for conspiracy. Johnson was convicted of all three counts, and sentenced to five years for each substantive count to run concurrently and two consecutive years for conspiracy.
I. Anderson
A. Chain of Custody
Anderson contends that the district court erred in admitting exhibits 1 and 2 which had been purchased by the undercover agents. These exhibits were objected to on the ground that there had been no showing what happened to them between chemical analysis and the trial.
The principles governing chain of custody challenges were outlined in United States v. Lane, 591 F.2d 961 (D.C.Cir.1979), as follows:
Tangible evidence of crime is admissible when shown to be “in substantially the same condition as when the crime was committed.” And it is to be presumed that the integrity of evidence routinely handled by governmental officials was suitably preserved “[unless the accused makes] a minimal showing of ill will, bad faith, evil motivation, or some evidence of tampering.” If, however, that condition is met, the Government must establish that acceptable precautions were taken to maintain the evidence in its original state.
The undertaking on that score need not rale out every conceivable chance that somehow the identity or character of the evidence underwent change. “[T]he possibility of misidentification and adulteration must be eliminated,” we have said, “not absolutely, but as a matter of reasonable probability.” So long as the court is persuaded that as a matter of normal likelihood the evidence has been adequately safeguarded, the jury should be permitted to consider and assess it in the light of surrounding circumstances.
Id. at 962 (footnotes omitted). See also United States v. Brown, 482 F.2d 1226, 1228 (8th Cir. 1973); Brewer v. United States, 353 F.2d 260, 262-63 (8th Cir. 1965).
In the ease at bar, agent Lee testified that, after purchasing the perforated paper which constituted exhibit 1, he took it to his office, heat sealed it in a plastic bag, and marked it for identification. Agent Nicks witnessed these actions and also initialed the seal. Then agent Lee placed the exhibit in the narcotics evidence vault overnight. The next day he mailed it via registered mail to the regional laboratory in Chicago, where evidence technician Charles Stubbs signed for it.
Likewise, agent Nicks testified that, after purchasing the blue blotter paper which constituted exhibit 2, he took it to his office and field tested it. Then he heat sealed it, marked it for identification, and mailed it to the regional laboratory in Chicago, where it was signed for by Charles Stubbs.
Thomas Janovsky, a forensic chemist with the Drug Enforcement Agency in Chicago, testified that he received each exhibit at the vault in the laboratory from Stubbs. Janovsky signed out each exhibit and then placed it in his personal locked box. To begin his analysis, he removed the bottom seal, initialed it, dated it and replaced it inside the evidence. He testified as to the method of analysis. In court, he stated that the resealed exhibits were in essentially the same form as when he had received them.
This is a case where the evidence was handled according to established procedures and suitably preserved. The governmental officials are entitled to the presumption of integrity. Anderson has not made even a minimal showing of improper motivation or tampering. Therefore, this contention fails.
B. Sufficiency of Evidence
Anderson contends that the evidence was insufficient to convict him because it consisted of the uncorroborated testimony of an accomplice and a coconspirator.
Witness Greg Mannie was not named in the indictment; he had cooperated in the investigation. Witness John Otheim was named in the indictment but pled guilty to one count, testified against the others and received a thirty-day sentence. The DEA agents referred to “Laurrie,” Anderson’s nickname, in their testimonies but only when repeating statements by Mannie and Otheim. Neither agent had ever met Anderson.
Instruction No. 29, the conspiracy instruction, listed the seven persons named in the indictment as coconspirators Mannie, who was not indicted, is not in the list. Instruction No. 35, the cautionary instruction on accomplice testimony stated:
An accomplice is one who unites with another person in the commission of a crime, voluntarily and with common intent. An accomplice does not become incompetent as a witness because of participation in the crime charged. On the contrary, the testimony of one who asserts by his testimony that he is an accomplice, may be received in evidence and considered by the jury, even though not corroborated by other evidence, and given such weight as the jury feels it should have. The jury, however, should keep in mind that such testimony is always to be received with caution and considered with great care.
As the instruction states, accomplice testimony does not require corroboration and may by itself sustain a conviction. United States v. Fitts, 635 F.2d 664, 667 (8th Cir. 1980); United States v. Knight, 547 F.2d 75, 76 (8th Cir. 1976); Williams v. United States, 328 F.2d 256, 259 (8th Cir.), cert. denied, 377 U.S. 969, 84 S.Ct. 1651, 12 L.Ed.2d 739 (1964). Basically, then, Anderson’s contention is that the jury was not told by Instruction No. 29 that Mannie, the star witness, was an accomplice whose testimony Instruction No. 35 required them to accept with great caution.
None of the four defense counsels objected to those instructions. Failure to object to a jury charge in a timely and specific manner results in a waiver of such objection on appeal. United States v. Sorenson, 611 F.2d 701 (8th Cir. 1979). Where no objection to the instructions is made, they may be reviewed only for plain error. United States v. Gambina, 564 F.2d 22, 24 (8th Cir. 1977). “Plain error” means that the trial court’s action affected the defendant's substantial rights resulting in a miscarriage of justice. West v. United States, 359 F.2d 50, 53 (8th Cir.), cert. denied, 385 U.S. 867, 87 S.Ct. 131, 17 L.Ed.2d 94 (1966).
When a portion of the jury instructions is assigned as error, the reviewing court must look to the instructions as a whole. United States v. Williams, 604 F.2d 1102, 1120 (8th Cir. 1979); United States v. Matthews, 603 F.2d 48, 50 (8th Cir. 1979), cert. denied, 444 U.S. 1019, 100 S.Ct. 674, 62 L.Ed.2d 650 (1980).
Having reviewed these instructions as a whole, we find that they are not plainly erroneous. Although Mannie was not listed as a “coconspirator” in Instruction No. 29, it was clear from his own testimony that he was an “accomplice” in the transactions about which he testified. Instruction No. 35 was sufficient to put the jurors on notice that his testimony was to be received with caution. Any error in this regard was harmless.
C. Double Punishment
Anderson contends that consecutive punishment for counts I and III constitutes double punishment because the sale alleged in count I is necessarily included in the conspiracy alleged in count III. Anderson cites Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), for the proposition that, if offenses were committed at the same time and were part of a continuous criminal act and inspired by the same criminal intent, they are susceptible of only one punishment. Bell is, however, inapposite. Bell involved simultaneous transportation of two women in violation of the Mann Act. The Supreme Court held only that, where the penal statute is ambiguous, doubts should be resolved against imposition of a harsher sentence. Id. at 83, 75 S.Ct. at 622.
In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), which dealt with the crime of stealing an automobile and the lesser included offense of operating the same vehicle without the owner’s consent, the Supreme Court stated:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied -to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.. ..
Id. at 166, 97 S.Ct. at 2225, citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). The Supreme Court held that the Double Jeopardy Clause forbids cumulative punishment because the latter offense required no proof beyond that required for the former.
Count I charged a sale of 1,044 units of LSD on March 8, 1979, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count III charged that, from November 1, 1978, through May 31, 1979, the defendants conspired with one another, in violation of 21 U.S.C. § 846, to distribute LSD. The fourteen overt acts in furtherance of the conspiracy detailed, not sales of LSD, but transfers of LSD among the coconspirators, which demonstrated their interaction and cooperation. It is clear that each offense required proof of at least one fact which the other did not. See United States v. Taylor, 603 F.2d 732, 734 (8th Cir.), cert. denied, 444 U.S. 982, 100 S.Ct. 487, 62 L.Ed.2d 487 (1979). Counts I and III charged two separate crimes, and the penalty provisions of each allow separate and distinct sentences.
II. Volk
Volk raises only one issue which is cognizable on appeal. He contends that there were two errors in the admission of evidence. The first, chain of custody of the controlled substance exhibits, was identical to Anderson’s contention discussed above. Second, he contends that there was no adequate foundation for identification of the car seen at the site of a meeting a3 his.
Mannie had informed agents Lee and Nicks that Volk was at a meeting at the Econ-o-tel Motel. Lee and Nicks went there to set up surveillance. Lee saw Volk’s Volkswagen at the motel and asked Nicks to make a radio check on the license plate, which he did. The check showed that the car was registered to Volk.
At trial both Mannie and Otheim testified to the meeting with Volk at the Econ-o-tel Motel. Lee and Nicks testified about the radio check on the license plate. No objection was made by Volk’s defense attorney to any of this testimony.
Failure to object to admission of evidence waives that objection on appeal, in the absence of plain error. United States v. Price, 464 F.2d 1217 (8th Cir. 1972). There could be no plain error in this regard because the agents’ testimonies were merely corroborative of the accomplices’ testimonies, which were sufficient in themselves and required no corroboration. United States v. Taylor, 599 F.2d 832, 838 (8th Cir. 1979).
III. Johnson
A. Insufficient Evidence
Johnson contends that the evidence adduced at trial was insufficient as a matter of law to sustain his conviction on any of the three counts.
As to count I, he says that the only evidence connecting him with the first sale was Mannie’s testimony that Volk told him by phone that Johnson had brought the LSD from Oregon to Bismarck, North Dakota. Mannie further testified, however, that he had been present when Volk and Anderson discussed the sale of LSD with Johnson. After Volk’s call, Mannie and Otheim traveled to Volk’s apartment in Bismarck where they met with Volk, Anderson and some others to discuss the 40,000 units of LSD. Subsequently, Mannie picked up 5,000 units of LSD from Anderson at Anderson’s apartment. Anderson said that he wanted the 5,000 units sold within a week. Mannie and Otheim then returned to Grand Forks where they sold 1,000 units of LSD to agent Lee.
As to count II, Johnson makes a similar argument; he says that the only evidence connecting him with the second sale was a conversation after the sale. Agent Lee testified that Johnson said that he understood Lee and Nicks were not satisfied with the last purchase of LSD. Johnson said that the quality of the LSD was good but that he would pass on the complaint to his source. In addition, however, Mannie testified that he had been dealing with Johnson’s brother concerning the sale of drugs to agent Lee and that the brother had been in touch with Johnson about that sale.
A conviction can properly rest on the uncorroborated testimony of an accomplice. United States v. Knight, supra, 547 F.2d at 76. Statements of a coconspirator identifying a fellow coconspirator as his source of controlled substances is in furtherance of the conspiracy and therefore admissible. United States v. Fitts, supra, 635 F.2d at 666, citing United States v. Carlson, 547 F.2d 1346, 1362 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977). Where there is sufficient evidence to implicate a defendant as a participant in each transaction, that defendant need not be present on the occasions when controlled substances are actually purchased by an undercover agent, in order to be convicted on charges of distribution. United States v. Martinez, 573 F.2d 529, 532 (8th Cir. 1978).
Johnson was identified by Mannie as the source of LSD for both sales. Such evidence of participation in each sale, without evidence of physical presence at either transaction, was legally sufficient to sustain his convictions. Moreover, Johnson’s own statements to agents Lee and Nicks revealed that he was an active, knowledgeable participant in the second sale.
As to count III, apparently, Johnson is arguing that out-of-court statements by coconspirators were not admissible to prove the conspiracy because the court did not rule on the admissibility of hearsay evidence at the close of the defendant’s case, but rather waited until after all evidence had been presented. Without such hearsay in the record, he asserts, the court should have directed a verdict of acquittal.
United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978), held prospectively that the court must make an on-the-record determination of the admissibility of coconspirator’s statements under Fed.R.Evid. 801(d)(2)(E). Its guidelines state that such a statement will be admitted conditionally and “that at the conclusion of all evidence the court will make an explicit determination for the record regarding the admissibility of the statement.” Id. at 1045 (emphasis added). There was no error in this regard.
B. Alibi Instruction
Johnson contends that the district court erred in refusing to give his requested alibi instruction because he proved that he was not present at the times or places of the two sales. This contention fails for much the same reason as the previous contention.
It is correct that a defendant is entitled to have the jury consider any theory of the case which is supported by law and has some foundation in the evidence, even though the evidence is weak. United States v. Shewfelt, 455 F.2d 836, 838 (9th Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2042, 32 L.Ed.2d 331 (1972). Johnson relies on United States v. Megna, 450 F.2d 511 (5th Cir. 1971), which held that it was reversible error for the district court to refuse to give a requested alibi instruction. Although that indictment was for burglary, it was unclear whether the jury convicted on a theory of personal participation or merely aiding and abetting. Therefore, the defendant was entitled to have the jury instructed on his theory of defense to the substantive defense. Id. at 513.
United States v. Megna is not on point here, however, because it did not involve a conspiracy. Once the existence of a conspiracy is shown, a defendant’s personal participation in overt acts by his coconspirators is not necessary to sustain his conviction on the conspiracy charge. United States v. Lee, 483 F.2d 968 (5th Cir. 1973). Furthermore, as previously stated, the acts of his coconspirators are attributable to him and he becomes equally liable for them. United States v. Overshon, 494 F.2d 894, 896 (8th Cir.), cert. denied, 419 U.S. 853, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974). He need not be present at the drug sales to be convicted on the substantive charges. United States v. Martinez, supra, 573 F.2d at 532. Because it was unnecessary for the government to prove Johnson’s presence at the sales, the alibi defense was not supported by the law, and no instruction concerning it was required.
C. Cruel and Unusual Punishment
Johnson also requests this court to reduce his sentence as being harsh and severe. He points out that he had no past criminal record.
Suffice it to say, “. . . a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.” United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). The sentence Johnson received on each count was within statutory limits and, therefore, was not unfairly harsh and did not constitute cruel and unusual punishment.
IV. Other Claims
Numerous other claims, including claims of ineffective assistance of counsel, have been raised by the appellants. We have considered the record and find that they are without merit.
Accordingly, the judgment of the district court is affirmed in full.
. One coconspirator pled guilty to one count, testified against the others and received a thirty-day sentence. Of the four arraigned together, one was sentenced under the Youth Corrections Act, 18 U.S.C. § 5010(b), and did not join in this appeal.
. The Honorable Paul Benson, Chief Judge, United States District Court for the District of North Dakota.
. The first two trials ended in mistrials. The first mistrial was declared because it was discovered during the trial that one of the jurors was closely acquainted with a witness. The second mistrial was due to the prosecuting attorney’s improper closing comment about a defendant’s failure to take the witness stand.
. Notwithstanding the government’s citations, United States v. Lee is inapposite to the issue of an alibi instruction on the substantive offenses. That court declined to reach the issue on the basis of the concurrent sentence doctrine. Here, the sentences are consecutive.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
CARGILL, INC., et al. v. MONFORT OF COLORADO, INC.
No. 85-473.
Argued October 6, 1986
Decided December 9, 1986
BRENNAN, J., delivered the opinion of the Court, in which Rehnquist, C. J., and MARSHALL, Powell, O’Connor, and Scalia, JJ., joined. Stevens, J., filed a dissenting opinion, in which White, J., joined, post, p. 122. Blackmun, J., took no part in the consideration or decision of the case.
Ronald G. Carr argued the cause for petitioners. With him on the briefs were Robert F. Hanley, Alan K. Palmer, and Phillip Areeda.
Deputy Solicitor General Cohen argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Ginsburg, Deputy Assistant Attorney General Cannon, Jerrold J. Ganzfried, Catherine G. O’Sullivan, Andrea Limmer, and Marcy J. K. Tiffany.
William C. McClearn argued the cause for respondent. With him on the brief were James E. Hartley, Elizabeth A. Phelan, and Marcy G. Glenn
Thomas B. Leary filed a brief for the Business Roundtable as amicus curiae urging reversal.
David L. Foster and Kim Sperduto filed a brief for Royal Crown Cola Co. as amicus curiae.
Justice Brennan
delivered the opinion of the Court.
Under § 16 of the Clayton Act, 38 Stat. 737, as amended, 15 U. S. C. § 26, private parties “threatened [with] loss or damage by a violation of the antitrust laws” may seek injunctive relief. This case presents two questions: whether a plaintiff seeking relief under § 16 must prove a threat of antitrust injury, and, if so, whether loss or damage due to increased competition constitutes such injury.
f — I
Respondent Monfort of Colorado, Inc. (Monfort), the plaintiff below, owns and operates three integrated beef-packing plants, that is, plants for both the slaughter of cattle and the fabrication of beef. Monfort operates in both the market for fed cattle (the input market) and the market for fabricated beef (the output market). These markets are highly competitive, and the profit margins of the major beef packers are low. The current markets are a product of two decades of intense competition, during which time packers with modern integrated plants have gradually displaced packers with separate slaughter and fabrication plants.
Monfort is the country’s fifth-largest beef packer. Petitioner Excel Corporation (Excel), one of the two defendants below, is the second-largest packer. Excel operates five integrated plants and one fabrication plant. It is a wholly owned subsidiary of Cargill, Inc., the other defendant below, a large privately owned corporation with more than 150 subsidiaries in at least 35 countries.
On June 17, 1983, Excel signed an agreement to acquire the third-largest packer in the market, Spencer Beef, a division of the Land O’Lakes agricultural cooperative. Spencer Beef owned two integrated plants and one slaughtering plant. After the acquisition, Excel would still be the second-largest packer, but would command a market share almost equal to that of the largest packer, IBP, Inc. (IBP).
Monfort brought an action under § 16 of the Clayton Act, 15 U. S. C. §26, to enjoin the prospective merger. Its complaint alleged that the acquisition would “violat[e] Section 7 of the Clayton Act because the effect of the proposed acquisition may be substantially to lessen competition or tend to create a monopoly in several different ways....” 1 App. 19. Monfort described the injury that it allegedly would suffer in this way:
“(f) Impairment of plaintiff’s ability to compete. The proposed acquisition will result in a concentration of economic power in the relevant markets which threatens Monfort’s supply of fed cattle and its ability to compete in the boxed beef market.” Id., at 20.
Upon agreement of the parties, the District Court consolidated the motion for a preliminary injunction with a full trial on the merits. On the second day of trial, Excel moved for involuntary dismissal on the ground, inter alia, that Monfort had failed to allege or show that it would suffer antitrust injury as defined in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477 (1977). The District Court denied the motion. After the trial, the court entered a memorandum opinion and order enjoining the proposed merger. The court held that Monfort’s allegation of “price-cost ‘squeeze’ ” that would “severely narro[w]” Monfort’s profit margins constituted an allegation of antitrust injury. 591 F. Supp. 683, 691-692 (Colo. 1983). It also held that Monfort had shown that the proposed merger would cause this profit squeeze to occur, and that the merger violated § 7 of the Clayton Act. Id., at 709-710.
On appeal, Excel argued that an allegation of lost profits due to a “price-cost squeeze” was nothing more than an allegation of losses due to vigorous competition, and that losses from competition do not constitute antitrust injury. It also argued that the District Court erred in analyzing the facts relevant to the § 7 inquiry. The Court of Appeals affirmed the judgment in all respects. It held that Morifort’s allegation of a “price-cost squeeze” was not simply an allegation of injury from competition; in its view, the alleged “price-cost squeeze” was a claim that Monfort would be injured by what the Court of Appeals “consider[ed] to be a form of predatory pricing in which Excel will drive other companies out of the market by paying more to its cattle suppliers and charging less for boxed beef that it sells to institutional buyers and consumers.” 761 F. 2d 570, 575 (CA10 1985). On the §7 issue, the Court of Appeals held that the District Court’s decision was not clearly erroneous. We granted certiorari, 474 U. S. 1049 (1985).
hH
This case requires us to decide, at the outset, a question we have not previously addressed: whether a private plaintiff seeking an injunction under §16 of the Clayton Act must show a threat of antitrust injury. To decide the question, we must look first to the source of the antitrust injury requirement, which lies in a related provision of the Clayton Act, §4, 15 U. S. C. §15.
Like § 16, § 4 provides a vehicle for private enforcement of the antitrust laws. Under § 4, “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..., and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” 15 U. S. C. § 15. In Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra, we held that plaintiffs seeking treble damages under § 4 must show more than simply an “injury causally linked” to a particular merger; instead, “plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes the defendants’ acts unlawful.” Id., at 489 (emphasis in original). The plaintiffs in Brunswick did not prove such injury. The plaintiffs were 3 of the 10 bowling centers owned by a relatively small bowling chain. The defendant, one of the two largest bowling chains in the country, acquired several bowling centers located in the plaintiffs’ market that would have gone out of business but for the acquisition. The plaintiffs sought treble damages under § 4, alleging as injury “the loss of income that would have accrued had the acquired centers gone bankrupt” and had competition in their markets consequently been reduced. Id., at 487. We held that this injury, although causally related to a merger alleged to violate §7, was not an antitrust injury, since “[i]t is inimical to [the antitrust] laws to award damages” for losses stemming from continued competition. Id., at 488. This reasoning in Brunswick was consistent with the principle that “the antitrust laws... were enacted for ‘the protection of competition, not competitors.’” Ibid., quoting Brown Shoe Co. v. United States, 370 U. S. 294, 320 (1962) (emphasis in original).
Subsequent decisions confirmed the importance of showing antitrust injury under § 4. In Blue Shield of Virginia v. McCready, 457 U. S. 465 (1982), we found that a health-plan subscriber suffered antitrust injury as a result of the plan’s “purposefully anticompetitive scheme” to reduce competition for psychotherapeutic services by reimbursing subscribers for services provided by psychiatrists but not for services provided by psychologists. Id., at 483. We noted that antitrust injury, “as analyzed in Brunswick, is one factor to be considered in determining the redressability of a particular form of injury under §4,” id., at 483, n. 19, and found it “plain that McCready’s injury was of a type that Congress sought to redress in providing a private remedy for violations of the antitrust laws.” Id., at 483. Similarly, in Associated General Contractors of California, Inc. v. Carpenters, 459 U. S. 519 (1983), we applied “the Brunswick test,” and found that the petitioner had failed to allege antitrust injury. Id., at 539-540.
Section 16 of the Clayton Act provides in part that “[a]ny person, firm, corporation, or association shall be entitled to sue for and have injunctive relief... against threatened loss or damage by a violation of the antitrust laws....” 15 U. S. C. § 26. It is plain that § 16 and § 4 do differ in various ways. For example, § 4 requires a plaintiff to show actual injury, but § 16 requires a showing only of “threatened” loss or damage; similarly, §4 requires a showing of injury to “business or property,” cf. Hawaii v. Standard Oil Co., 405 U. S. 251 (1972), while § 16 contains no such limitation. Although these differences do affect the nature of the injury cognizable under each section, the lower courts, including the courts below, have found that under both § 16 and § 4 the plaintiff must still allege an injury of the type the antitrust laws were designed to prevent. We agree.
The wording concerning the relationship of the injury to the violation of the antitrust laws in each section is comparable. Section 4 requires proof of injury “by reason of anything forbidden in the antitrust laws”; § 16 requires proof of “threatened loss or damage by a violation of the antitrust laws.” It would be anomalous, we think, to read the Clayton Act to authorize a private plaintiff to secure an injunction against a threatened injury for which he would not be entitled to compensation if the injury actually occurred.
There is no indication that Congress intended such a result. Indeed, the legislative history of § 16 is consistent with the view that § 16 affords private plaintiffs injunctive relief only for those injuries cognizable under §4. According to the House Report:
“Under section 7 of the act of July 2, 1890 [revised and incorporated into Clayton Act as § 4], a person injured in his business and property by corporations or combinations acting in violation of the Sherman antitrust law, may recover loss and damage for such wrongful act. There is, however, no provision in the existing law authorizing a person, firm, corporation, or association to enjoin threatened loss or damage to his business or property by the commission of such unlawful acts, and the purpose of this section is to remedy such defect in the law.” H. R. Rep. No. 627, 63d Cong., 2d Sess., pt. 1, p. 21 (1914) (emphasis added).
Sections 4 and 16 are thus best understood as providing complementary remedies for a single set of injuries. Accordingly, we conclude that in order to seek injunctive relief under § 16, a private plaintiff must allege threatened loss or damage “of the type the antitrust laws were designed to prevent and that flows from that which makes defendants’ acts unlawful.” Brunswick, 429 U. S., at 489. We therefore turn to the question whether the proposed merger in this case threatened respondent with antitrust injury.
Ill
Initially, we confront the problem of determining what Monfort alleged the source of its injury to be. Monfort’s complaint is of little assistance in this regard, since the injury alleged therein — “an impairment of plaintiff’s ability to compete” — is alleged to result from “a concentration of economic power.” 1 App. 19. The pretrial order largely restates these general allegations. Record 37. At trial, however, Monfort did present testimony and other evidence that helped define the threatened loss. Monfort alleged that after the merger, Excel would attempt to increase its market share at the expense of smaller rivals, such as Monfort. To that end, Monfort claimed, Excel would bid up the price it would pay for cattle, and reduce the price at which it sold boxed beef. Although such a strategy, which Monfort labeled a “price-cost squeeze,” would reduce Excel’s profits, Excel’s parent corporation had the financial reserves to enable Excel to pursue such a strategy. Eventually, according to Monfort, smaller competitors lacking significant reserves and unable to match Excel’s prices would be driven from the market; at this point Excel would raise the price of its boxed beef to supracompetitive levels, and would more than recoup the profits it lost during the initial phase. 591 F. Supp., at 691-692.
From this scenario two theories of injury to Monfort emerge: (1) a threat of a loss of profits stemming from the possibility that Excel, after the merger, would lower its prices to a level at or only slightly above its costs; (2) a threat of being driven out of business by the possibility that Excel, after the merger, would lower its prices to a level below its costs. We discuss each theory in turn.
A
Monfort’s first claim is that after the merger, Excel would lower its prices to some level at or slightly above its costs in order to compete with other packers for market share. Excel would be in a position to do this because of the multi-plant efficiencies its acquisition of Spencer would provide, 1 App. 74-75, 369-370. To remain competitive, Monfort would have to lower its prices; as a result, Monfort would suffer a loss in profitability, but would not be driven out of business. The question is whether Monfort’s loss of profits in such circumstances constitutes antitrust injury.
To resolve the question, we look again to Brunswick v. Pueblo Bowl-O-Mat, supra. In Brunswick, we evaluated the antitrust significance of several competitors’ loss of profits resulting from the entry of a large firm into its market. We concluded:
“[T]he antitrust laws are not merely indifferent to the injury claimed here. At base, respondents complain that by acquiring the failing centers petitioner preserved competition, thereby depriving respondents of the benefits of increased concentration. The damages respondents obtained are designed to provide them with the profits they would have realized had competition been reduced. The antitrust laws, however, were enacted for ‘the protection of competition, not competitors,’ Brown Shoe Co. v. United States, 370 U. S., at 320. It is inimical to the purposes of these laws to award damages for the type of injury claimed here A Id., at 488.
The loss of profits to the competitors in Brunswick was not of concern under the antitrust laws, since it resulted only from continued competition. Respondent argues that the losses in Brunswick can be distinguished from the losses alleged here, since the latter will result from an increase, rather than from a mere continuation, of competition. The range of actions unlawful under § 7 of the Clayton Act is broad enough, respondent claims, to support a finding of antitrust injury whenever a competitor is faced with a threat of losses from increased competition. We find respondent’s proposed construction of § 7 too broad, for reasons that Brunswick illustrates. Brunswick holds that the antitrust laws do not require the courts to protect small businesses from the loss of profits due to continued competition, but only against the loss of profits from practices forbidden by the antitrust laws. The kind of competition that Monfort alleges here, competition for increased market share, is not activity forbidden by the antitrust laws. It is simply, as petitioners claim, vigorous competition. To hold that the antitrust laws protect competitors from the loss of profits due to such price competition would, in effect, render illegal any decision by a firm to cut prices in order to increase market share. The antitrust laws require no such perverse result, for "[i]t is in the interest of competition to permit dominant firms to engage in vigorous competition, including price competition.” Arthur S. Langenderfer, Inc. v. S. E. Johnson Co., 729 F. 2d 1050, 1057 (CA6), cert. denied, 469 U. S. 1036 (1984). The logic of Brunswick compels the conclusion that the threat of loss of profits due to possible price competition following a merger does not constitute a threat of antitrust injury.
B
The second theory of injury argued here is that after the merger Excel would attempt to drive Monfort out of business by engaging in sustained predatory pricing. Predatory pricing may be defined as pricing below an appropriate measure of cost for the purpose of eliminating competitors in the short ran and reducing competition in the long ran. It is a practice that harms both competitors and competition. In contrast to price cutting aimed simply at increasing market share, predatory pricing has as its aim the elimination of competition. Predatory pricing is thus a practice “inimical to the purposes of [the antitrust] laws,” Brunswick, 429 U. S., at 488, and one capable of inflicting antitrust injury.
The Court of Appeals held that Monfort had alleged “what we consider to be a form of predatory pricing....” 761 F. 2d, at 575. The court also found that Monfort “could only be harmed by sustained predatory pricing,” and that “it is impossible to tell in advance of the aquisition” whether Excel would in fact engage in such a course of conduct; because it could not rule out the possibility that Excel would engage in predatory pricing, it found that Monfort was threatened with antitrust injury. Id., at 576.
Although the Court of Appeals did not explicitly define what it meant by predatory pricing, two interpretations are plausible. First, the court can be understood to mean that Monfort’s allegation of losses from the above-cost “price-cost squeeze” was equivalent to an allegation of injury from predatory conduct. If this is the proper interpretation, then the court’s judgment is clearly erroneous because (a) Monfort made no allegation that Excel would act with predatory intent after the merger, and (b) price competition is not predatory activity, for the reasons discussed in Part III-A, supra.
Second, the Court of Appeals can be understood to mean that Monfort had shown a credible threat of injury from below-cost pricing. To the extent the judgment rests on this ground, however, it must also be reversed, because Monfort did not allege injury from below-cost pricing before the District Court. The District Court twice noted that Monfort had made no assertion that Excel would engage in predatory pricing. See 591 F. Supp., at 691 (“Plaintiff does not contend that predatory practices would be engaged in by Excel or IBP”); id., at 710 (“Monfort does not allege that IBP and Excel will in fact engage in predatory activities as part of the cost-price squeeze”). Monfort argues that there is evidence in the record to support its view that it did raise a claim of predatory pricing below. This evidence, however, consists only of four passing references, three in deposition testimony, to the possibility that Excel’s prices might dip below costs. See 1 App. 276; 2 App. 626, 666, 669. Such references fall far short of establishing an allegation of injury from predatory pricing. We conclude that Monfort neither raised nor proved any claim of predatory pricing before the District Court.
IV
In its amicus brief, the United States argues that the “danger of allowing a competitor to challenge an acquisition on the basis of necessarily speculative claims of post-acquisition predatory pricing far outweighs the danger that any anticompetitive merger will go unchallenged.” Brief for United States as Amicus Curiae 25. On this basis, the United States invites the Court to adopt in effect a per se rule “denying competitors standing to challenge acquisitions on the basis of predatory pricing theories.” Id., at 10.
We decline the invitation. As the foregoing discussion makes plain, supra, at 117-118, predatory pricing is an anti-competitive practice forbidden by the antitrust laws. While firms may engage in the practice only infrequently, there is ample evidence suggesting that the practice does occur. It would be novel indeed for a court to deny standing to a party seeking an injunction against threatened injury merely because such injuries rarely occur. In any case, nothing in the language or legislative history of the Clayton Act suggests that Congress intended this Court to ignore injuries caused by such anticompetitive practices as predatory pricing.
y
We hold that a plaintiff seeking injunctive relief under § 16 of the Clayton Act must show a threat of antitrust injury, and that a showing of loss or damage due merely to increased competition does not constitute such injury. The record below does not support a finding of antitrust injury, but only of threatened loss from increased competition. Because respondent has therefore failed to make the showing § 16 requires, we need not reach the question whether the proposed merger violates § 7. 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.
Justice Blackmun took no part in the consideration or decision of this case.
As the District Court explained, “ ‘[f]abrication’ is the process whereby the carcass is broken down into either whole cuts (referred to as ‘primáis’, ‘subprimals’ and ‘portions’) or ground beef.” 591 F. Supp. 683, 690 (Colo. 1983). Whole cuts that are then vacuum packed before shipment are called “boxed beef”; the District Court found that “80% of all beef received at the retail supermarket level and at the hotel, restaurant, and institutional (‘HRI’) level” is boxed beef. Ibid.
The District Court relied on the testimony of one of Monfort’s witnesses in determining market share. Id., at 706-707. According to this testimony, Monfort’s share of the cattle slaughter market was 5.5%, Excel’s share was 13.3%, and IBP’s was 24.4%. 1 App. 69. Monfort’s share of the production market was 5.7%, Excel’s share was 14.1%, and IBP’s share was 27.3%. Id., at 64. After the merger, Excel’s share of each market would increase to 20.4%. Id., at 64, 69; 761 F. 2d 570, 577 (CA10 1985).
Section 16 states:
“Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, including sections 13,14,18, and 19 of this title, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue: Provided, That nothing herein contained shall be construed to entitle any person, firm, corporation, or association, except the United States, to bring suit in equity for injunctive relief against any common carrier subject to the provisions of subtitle IV of title 49, in respect of any matter subject to the regulation, supervision, or other jurisdiction of the Interstate Commerce Commission. In any action under this section in which the plaintiff substantially prevails, the court shall award the cost of suit, including a reasonable attorney’s fee, to such plaintiff.” 15 U. S. C. §26.
Section 7 prohibits mergers when the “the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly,” 15 U. S. C. § 18.
A showing of antitrust injury is necessary, but not always sufficient, to establish standing under § 4, because a party may have suffered antitrust injury but may not be a proper plaintiff under § 4 for other reasons. See generally Page, The Scope of Liability for Antitrust Violations, 37 Stan. L. Rev. 1445, 1483-1485 (1985) (distinguishing concepts of antitrust injury and antitrust standing). Thus, in Associated General Contractors we considered other factors in addition to antitrust injury to determine whether the petitioner was a proper plaintiff under § 4. 459 U. S., at 540. As we explain, n. 6, infra, however, many of these other factors are not relevant to the standing inquiry under § 16.
Standing analysis under § 16 will not always be identical to standing analysis under § 4. For example, the difference in the remedy each section provides means that certain considerations relevant to a determination of standing under § 4 are not relevant under § 16. The treble-damages remedy, if afforded to “every person tangentially affected by an antitrust violation,” Blue Shield of Virginia v. McCready, 457 U. S. 465, 476-477 (1982), or for “all injuries that might conceivably be traced to an antitrust violation,” Hawaii v. Standard Oil Co., 405 U. S., at 263, n. 14, would “open the door to duplicative recoveries,” id., at 264, and to multiple lawsuits. In order to protect against multiple lawsuits and duplicative recoveries, courts should examine other factors in addition to antitrust injury, such as the potential for duplicative recovery, the complexity of apportioning damages, and the existence of other parties that have been more directly harmed, to determine whether a party is a proper plaintiff under § 4. See Associated General Contractors, 459 U. S., at 544-545; Illinois Brick Co. v. Illinois, 431 U. S. 720 (1977). Conversely, under § 16, the only remedy available is equitable in nature, and, as we recognized in Hawaii v. Standard Oil Co., “the fact is that one injunction is as effective as 100, and, concomitantly, that 100 injunctions are no more effective than one.” 405 U. S., at 261. Thus, because standing under § 16 raises no threat of multiple lawsuits or duplicative recoveries, some of the factors other than antitrust injury that are appropriate to a determination of standing under § 4 are not relevant under § 16.
See Ball Memorial Hospital, Inc. v. Mutual Hospital Insurance, Inc., 784 F. 2d 1325, 1334 (CA7 1986); Midwest Communications, Inc. v. Minnesota Twins, Inc., 779 F. 2d 444, 452-453 (CA8 1985), cert. denied, 476 U. S. 1163 (1986); Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F. 2d 1354, 1358 (CA6), cert. dism’d, 469 U. S. 1200 (1985); Schoenkopf v. Brown & Williamson Tobacco Corp., 637 F. 2d 205, 210-211 (CA3 1980).
See also S. Rep. No. 698, 63d Cong., 2d Sess., pt. 2, pp. 17-18, 50 (1914). Although the references to § 16 in the debates on the passage of the Clayton Act are scarce, those that were made are consistent with the House and Senate Reports. For example, in this excerpt from a provision-by-provision description of the bill, Representative McGillicuddy (a member of the House Judiciary Committee) stated:
“Under the present law any person injured in his business or property by acts in violation of the Sherman antitrust law may recover his damage. In fact, under the provisions of the law he is entitled to recover threefold damage whenever he is able to prove his case. There is no provision under the present law, however, to prevent threatened loss or damage even though it be irreparable. The practical effect of this is that a man would have to sit by and see his business ruined before he could take advantage of his remedy. In what condition is such a man to take up a long and costly lawsuit to defend his rights?
“The proposed bill solves this problem for the person, firm, or corporation threatened with loss or damage to property by providing injunctive relief against the threatened act that ivill cause such loss or damage. Under this most excellent provision a man does not have to wait until he is ruined in his business before he has his remedy. Thus the bill not only protects the individual from loss or damage, but it relieves- him of the tremendous burden of long and expensive litigation, often intolerable.” 51 Cong. Rec, 9261 (1914) (emphasis added).
Representative Floyd described the nature of the § 16 remedy in these terms:
“In section 16... is a provision that gives the litigant injured in his business an entirely new remedy.
“... [Sjection 16 gives any individual, company, or corporation... or combination the right to go into court and enjoin the doing of these unlawful acts, instead of having to wait until the act is done and the business destroyed and then sue for damages.... [Sjo that if a man is injured by a discriminatory contract, by a tying contract, by the unlawful acquisition of stock of competing corporations, or by reason of someone acting unlawfully as a director in two banks or other corporations, he can go into court and enjoin and restrain the party from committing such unlawful acts.” Id., at 16319.
In its brief, Monfort also argues that it would be injured by “the trend toward oligopoly pricing” that could conceivably follow the merger. Brief for Respondent 18-20. There is no indication in the record that this claim was raised below, however, and so we do not address it here.
In this case, Monfort has conceded that its viability would not be threatened by Excel’s decision to lower prices: “Because Monfort’s operations were as efficient as those of Excel, only below-cost pricing could remove Monfort as an obstacle.” Id,., at 11-12; see also id., at 5, and n. 6 (“Monfort proved it was just as efficient as Excel”); id., at 18; 761 F. 2d, at 576 (“Monfort would only be harmed by sustained predatory pricing”).
Respondent finds support in the legislative history of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 for the view that Congress intends the courts to apply § 7 so as to protect the viability of small competitors. The Senate Report, for example, cites with approval this Court’s statement in United States v. Von’s Grocery Co., 384 U. S. 270, 275 (1966), that “the basic purpose of the 1950 Celler-Kefauver Act [amending § 7 of the Clayton Act] was to prevent economic concentration in the American economy by keeping a large number of small competitors in business.” S. Rep. No. 94-803, p. 63 (1976). Even if respondent is correct that Congress intended the courts to apply § 7 so as to keep small competitors in business at the expense of efficiency, a proposition about which there is considerable disagreement, such congressional intent is of no use to Monfort, which has conceded that it will suffer only a loss of profits, and not be driven from the market, should Excel engage in a cost-price squeeze. See n. 10, supra.
Most commentators reserve the term predatory pricing for pricing below some measure of cost, although they differ on the appropriate measure. See, e. g., Areeda & Turner, Predatory Pricing and Related Practices under Section 2 of the Sherman Act, 88 Harv. L. Rev. 697 (1975); McGee, Predatory Pricing Revisited, 23 J. Law & Econ. 289 (1980) (reviewing various proposed definitions). No consensus has yet been reached on the proper definition of predatory pricing in the antitrust context, however. For purposes of decision in Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574 (1986), for example, we defined predatory pricing as either “(i) pricing below the level necessary to sell their products, or (ii) pricing below some appropriate measure of cost.” Id., at 585, n. 8. Definitions of predatory pricing also vary among the Circuits. Compare Arthur S. Langenderfer, Inc. v. S. E. Johnson Co., 729 F. 2d 1050, 1056-1057 (CA6) (pricing below marginal or average variable cost presumptively illegal, pricing above such cost presumptively legal), cert. denied, 469 U. S. 1036 (1984), with Transamerica Computer Co. v. International Business Machines Corp., 698 F. 2d 1377 (CA9) (pricing above average total costs may be deemed predatory upon showing of predatory intent), cert. denied, 464 U. S. 955 (1983).
Although neither the District Court nor the Court of Appeals explicitly defined the term predatory pricing, their use of the term is consistent with a definition of pricing below cost. Such a definition is sufficient for purposes of this decision, because only below-cost pricing would threaten to drive Monfort from the market, see n. 9, supra, and because Monfort made no allegation that Excel would act with predatory intent. Thus, in this case, as in Matsushita Electric Industrial Co. v. Zenith Radio Corp., supra, we find it unnecessary to “consider whether recovery should ever be available... when the pricing in question is above some measure of mere-mental cost,” 475 U. S., at 585
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
sc_petitioner
|
027
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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.
UNITED STATES v. DISTRICT COURT IN AND FOR THE COUNTY OF EAGLE et al.
No. 87.
Argued March 2, 1971
—Decided March 24, 1971
Mr. Justice Douglas delivered the opinion for a unanimous Court. MR. Justice HarlaN, though joining in the opinion, filed a concurring statement, post, p. 530.
Deputy Assistant Attorney General Kiechel argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Kashiwa, Francis X. Beytagh, Jr., Edmund B. Clark, and Charles N. Woodruff.
Kenneth Balcomb argued the cause for respondents. With him on the brief were Robert L. McCarty, George L. Zoellner, Don H. Sherwood, and Raphael J. Moses.
Briefs of amici curiae were filed by Gary K. Nelson, Attorney General, and Irving A. Jennings for the State of Arizona et al.; by Thomas C. Lynch, Attorney General, Walter S. Rountree, Assistant Attorney General, and David B. Stanton, Deputy Attorney General, for the State of California; by Duke W. Dunbar, Attorney General of Colorado, Lee Johnson, Attorney General of Oregon, Harvey Dickerson, Attorney General of Nevada, Robert M. Robson, Attorney General of Idaho, Robert L. Woodahl, Attorney General of Montana, and G. Kent Edwards, Attorney General of Alaska, for the States of Colorado et al.; by G. T. Blankenship, Attorney General, and W. Howard O’Bryan, Jr., Assistant Attorney General, for the State of Oklahoma; by Vernon B. Romney, Attorney General, Robert B. Hansen, Deputy Attorney General, and D allin W. Jensen, Assistant Attorney General, for the State of Utah; by Slade Gorton, Attorney General, and Charles B. Roe, Jr., and Henry W. Ipsen, Assistant Attorneys General, for the State of Washington; and by James E. Barrett, Attorney General, Sterling A. Case, Deputy Attorney General, and Jack R. Gage, Special Assistant Attorney General, for the State of Wyoming.
Mr. Justice Douglas
delivered the opinion of the Court.
Eagle River is a tributary of the Colorado River; and Water District 37 is a Colorado entity encompassing all Colorado lands irrigated by water of the Eagle and its tributaries. The present case started in the Colorado courts and is called a supplemental water adjudication under Colo. Rev. Stat. Ann. § 148-9-7 (1963). The Colorado court issued a notice which, inter alia, asked all owners and claimants of water rights in those streams “to file a statement of claim and to appear ... in regard to all water rights owned or claimed by them.” The United States was served with this notice pursuant to 43 U. S. C. § 666. The United States moved to be dismissed as a party, asserting that 43 U. S. C. § 666 does not constitute consent to have adjudicated in a state court the reserved water rights of the United States.
The objections of the United States were overruled by the state District Court and on a motion for a writ of prohibition the Colorado Supreme Court took the same view. 169 Colo. 665, 458 P. 2d 760. The case is here on a petition for certiorari, which we granted. 397 U. S. 1005.
We affirm the Colorado decree.
It is clear from our cases that the United States often has reserved water rights based on withdrawals from the public domain. As we said in Arizona v. California, 373 U. S. 546, the Federal Government had the authority both before and after a State is admitted into the Union “to reserve waters for the use and benefit of federally reserved lands.” Id., at 597. The federally reserved lands include any federal enclave. In Arizona v. California we were primarily concerned with Indian reservations. Id., at 598-601. The reservation of waters may be only implied and the amount will reflect the nature of the federal enclave. Id., at 600-601. Here the United States is primarily concerned with reserved waters for the White River National Forest, withdrawn in 1905, Colorado having been admitted into the Union in 1876.
The United States points out that Colorado water rights are based on the appropriation system which requires the permanent fixing of rights to the use of water at the time of the adjudication, with no provision for the future needs, as is often required in case of reserved water rights. Ibid. Since those rights may potentially be at war with appropriative rights, it is earnestly urged that 43 U. S. C. § 666 gave consent to join the United States only for the adjudication of water rights which the United States acquired pursuant to state law.
The consent to join the United States “in any suit (1) for the adjudication of rights to the use of water of a river system or other source” would seem to be all-inclusive. We deem almost frivolous the suggestion that the Eagle and its tributaries are not a “river system” within the meaning of the Act. No suit by any State could possibly encompass all of the water rights in the entire Colorado River which runs through or touches many States. The “river system” must be read as embracing one within the particular State’s jurisdiction. With that to one side, the first clause of §666 (a)(1), read literally, would seem to cover this case for “rights to the use of water of a river system” is broad enough to embrace “reserved” waters.
The main reliance of the United States appears to be on Clause 2 of § 666 (a) which reads:
. . for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise.”
This provision does not qualify § 666 (a)(1), for (1) and (2) are separated by an “or.” Yet even if “or” be read as “and,” we see no difficulty with Colorado’s position. Section 666 (a) (2) obviously includes water rights previously acquired by the United States through appropriation or presently in the process of being so acquired. But we do not read § 666 (a) (2) as being restricted to appropriative rights acquired under state law. In the first place “the administration of such rights” in § 666 (a)(2) must refer to the rights described in (1) for they are the only ones which in this context “such” could mean; and as we have seen they are all-inclusive, in terms at least. Moreover, (2) covers rights acquired by appropriation under state law and rights acquired “by purchase” or “by exchange,” which we assume would normally be appropriative rights. But it also includes water rights which the United States has “otherwise” acquired. The doctrine of ejusdem generis is invoked to maintain that “or otherwise” does not encompass the adjudication of reserved water rights, which are in no way dependent for their creation or existence on state law. We reject that conclusion for we deal with an all-inclusive statute concerning “the adjudication of rights to the use of water of a river system” which in § 666 (a)(1) has no exceptions and which, as we read it, includes appropriative rights, riparian rights, and reserved rights.
It is said that this adjudication is not a “general” one as required by Dugan v. Rank, 372 U. S. 609, 618. This proceeding, unlike the one in Dugan, is not a private one to determine whether named claimants have priority over the United States. The whole community of claims is involved and as Senator McCarran, Chairman of the Committee reporting on the bill, said in reply to Senator Magnuson: “S. 18 is not intended ... to be used for any other purpose than to allow the United States to be joined in a suit wherein it is necessary to adjudicate all of the rights of various owners on a given stream. This is so because unless all of the parties owning or in the process of acquiring water rights on a particular stream can be joined as parties defendant, any subsequent decree would be of little value.”
It is said, however, that since this is a supplemental adjudication only those who claim water rights acquired since the last adjudication of that water district are before the court. It is also said that the earliest priority date decreed in such an adjudication must be later than the last priority date decreed in the preceding adjudication. The last water adjudication in this water district was entered on February 21, 1966, and the United States was not a party to that or to any prior proceeding in this water district. The United States accordingly says that since the United States cannot be barred by the previous decrees and since the owners of previously decreed rights are not before the court, the consent envisaged by 43 U. S. C. § 666 is not present.
We think that argument is extremely technical; and we decline to confine 43 U. S. C. § 666 so narrowly. The absence of owners of previously decreed rights may present problems going to the merits, in case there develops a collision between them and any reserved rights of the United States. All such questions, including the volume and scope of particular reserved rights, are federal questions which, if preserved, can be reviewed here after final judgment by the Colorado court.
Affirmed
[For concurring statement of Mr. Justice Harlan, see post, p. 530.]
66 Stat. 560, 43 U. S. C. §666 (a), provides:
“Consent is given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit.”
See Coffin v. Left Hand Ditch Co., 6 Colo. 443, 446; Mason v. Hills Land & Cattle Co., 119 Colo. 404, 204 P. 2d 153.
See Comment, 48 Calif. L. Rev. 94, 111 (1960).
S. Rep. No. 755, 82d Cong., 1st Sess., 9. And see Pacific Live Stock Co. v. Oregon Water Bd., 241 U. S. 440, 448.
Colo. Rev. Stat. Ann. § 148-9-7.
Id., §148-9-13.
The Colorado court stated:
“We are not determining whether the United States has reserved water rights in connection with lands withdrawn subsequent to August 1, 1876, the date of Colorado’s admission to the Union; nor, if so, whether these rights have priority over previously adjudicated rights. These questions properly should be decided after the United States presents its specific claims for adjudication and the issues of fact and law are clearly drawn.” 169 Colo., at 577, 458 P. 2d, at 770.
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_7-2
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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.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Gary McDOUGALD, Plaintiff-Appellee, Cross-Appellant, v. Vivian L. JENSON, Defendant-Appellant, Cross-Appellee, Clarence Ehli, Defendant, Cross-Appellee.
No. 84-3808.
United States Court of Appeals, Eleventh Circuit.
April 21, 1986.
Douglas C. Kearney, Brice Mankoff & Barron, Dallas, Tex., for Jenson.
Edward S. Stafman, Tallahassee, Fla., for McDougald.
Douglas C. Kearney, Tallahassee, Fla., for Ehli.
Before HILL and CLARK, Circuit Judges, and HOBBS, Chief District Judge.
Honorable Truman M. Hobbs Chief U.S. District Judge for the Middle District of Alabama, sitting by designation.
HILL, Circuit Judge:
This case arises out of the entry of conflicting child custody decrees by the Florida and Washington state courts. In 1980 Congress enacted the Parental Kidnapping Prevention Act (hereinafter “the PKPA”), P.L. 96-611, 94 Stat. 3566, codified at 28 U.S.C. § 178A (1982), in an attempt to provide at least a limited federal response to the serious social and legal problems engendered by the availability and entry of conflicting child custody orders by the courts of different states. See 28 U.S.C. § 1738A note (1982). By setting forth uniform jurisdictional standards applicable to all states in child custody matters, the PKPA seeks both to reduce the likelihood that a jurisdictional conflict between states will lead to the entry of inconsistent decrees and to resolve those conflicts that do arise. Under the PKPA, only one state at a time may assert jurisdiction to issue or modify a child custody decree, and a custody order issued in accordance with the jurisdictional requirements of the PKPA is enforceable anywhere in the United States. In the PKPA however, Congress did not expressly provide a federal forum for the resolution of the interstate jurisdictional disputes to which it was addressed. In this case we must determine whether, despite the absence of express authorization in the PKPA, a private party may prosecute an action in federal district court to resolve an interstate conflict implicating the jurisdictional requirements set forth in that legislation. The district court in this case held that a parent could successfully maintain an action in federal district court to obtain a declaratory judgment that would determine which of two conflicting state court custody orders was issued in accordance with the jurisdictional prerequisites of the PKPA. We agree.
FACTS
On June 1, 1979, the Circuit Court of Calhoun County, Florida entered a divorce decree dissolving the marriage of appellant Vivian Jenson (then Vivian McDougald) (hereinafter referred to as “the mother”) and appellee Gary McDougald (hereinafter referred to as “the father”). The divorce decree provided that the couple’s son, Jeri-my, who was then three years old, would live with each parent for alternating six month periods for the next three and one-half years. Once Jerimy reached school age, his mother was to have custody of him during the school year, with the father receiving summer visitation rights. In accordance with the custody provisions of the decree, Jerimy lived with his father from June 23, 1979 through December 23, 1979, and then from June 23, 1980 through late December of that year. Jerimy and his father lived in Blountstown, Calhoun County, Florida through all of the first six month period and most of the second one. Some time in November of 1980, the father and Jerimy then moved to Dothan, Alabama, a town located approximately 70 miles from Blountstown and about 20 miles from the Florida state line. Jerimy returned to his mother in Washington at the end of his second six month stay with his father.
On or about February 26, 1981, the father filed a petition for modification of the original custody decree in the Calhoun County Circuit Court. The Florida court set a hearing for May 15, 1981, and the modification petition and a notice of hearing were served on the mother in Washington. Soon after she was served with the Florida petition and notice, the mother filed a petition for modification in the Superior Court of Pierce County, Washington. The Washington court immediately entered a temporary restraining order and initiated communications with the Florida court, resulting in a stay of the Washington proceedings and a continuance of the Florida hearing. A hearing was eventually held in Blountstown, Florida on August 14, 1981, before the same judge who had entered the 1979 divorce and custody decree.
Both parents appeared personally before the court in Florida and testified. At the conclusion of the hearing, the Florida judge ruled from the bench that primary custody should be awarded to the mother, with the father enjoying summer and holiday visitation rights. Before the court’s order was reduced to writing and entered, however, the father filed a motion for rehearing, and the matter was set for further hearing on October 9, 1981. At that hearing, the mother’s Florida attorney was permitted to withdraw, and the mother was directed to secure new counsel before the next hearing. The next hearing was held on December 11,1981, but the mother did not attend, nor was she represented by counsel. On January 5, 1982, the Florida court issued a written Order of Modification, in which it reversed its earlier ruling from the bench and awarded primary custody of Jerimy to the father, with the mother receiving summer and holiday visitation rights.
After the Florida court’s October hearing the mother renewed her efforts to secure a modification of the original Florida custody decree in Washington. On November 21, 1981, the mother filed a memorandum regarding jurisdiction in the Washington court. After the December hearing in Florida, but before the Florida court had issued its written order, the Washington court contacted the Florida court, contending that Washington had the better claim to jurisdiction over the case and noting that a hearing was set for January 20, 1982 on that and other issues. The Florida court responded with a copy of its written order of January 5 and a letter setting forth its view of the case. The father filed an objection to the Washington court’s assertion of jurisdiction and was represented by Washington counsel in the Washington proceedings.
The Washington court held a hearing and, on May 20, 1982, ruled that it had jurisdiction over the matter. The court set a custody hearing and ordered that Jerimy remain in the custody of his mother during the pendency of the Washington proceedings. The Washington court subsequently awarded primary custody of Jerimy to his mother, with four week summer visitation rights to the father. Pursuant to that arrangement, the Washington court permitted the father to take Jerimy to Florida in July of 1982.
Apparently relying on the Florida custody order, the father did not return Jerimy to his mother at the end of the summer. Relying on the contrary Washington court orders, the mother and her father (appellant Clarence Ehli) retrieved Jerimy from Florida on April 14,1983 and took him back to Washington. Arrest warrants were issued for the mother and grandfather, who were charged with abducting Jerimy with the intent to remove him from the jurisdiction of the Florida courts.
In July of 1983 the Washington court granted the father an' order to show cause why the Washington court should not restore the custody and visitation provisions of the original 1979 Florida divorce decree. On October 28, 1983 the Washington court entered an order essentially restoring the parties to the position they were in before the father sought the modification he was eventually granted in Florida. The mother was awarded primary custody of Jerimy, with the father enjoying summer visitation rights. On January 6, 1984, the father moved to vacate the Washington orders on the basis of the supremacy and full faith and credit clauses of the United States Constitution, as well as on jurisdictional grounds. That motion was denied on February 10, 1984.
On February 23, 1984, the father filed this action in federal district court. The father’s amended complaint stated four separate claims. Named as defendants were the mother, the grandfather, and a Washington state court judge who was involved in the proceedings in that state. In Count I, the father named as defendants the mother and the Washington judge and sought damages and other relief pursuant to 42 U.S.C. § 1983 (1982). Naming the mother as defendant, Count II sought enforcement of the Florida state court order of modification on the basis of constitutional principles of full faith and credit, alleging diversity as the basis for jurisdiction. Count III sought damages in tort from the mother and the grandfather for the alleged kidnapping of the child. Naming the Washington judge and the mother as defendants, Count IV sought damages as well as declaratory and injunctive relief pursuant to the provisions of the PKPA that are codified at 28 U.S.C. § 1738A (1982), alleging both federal question and diversity jurisdiction.
On the father’s motion for summary judgment, the district court granted the Washington state court judge's motion to dismiss the father’s claims against him in their entirety for lack of personal jurisdiction. McDougald v. Jenson, 596 F.Supp. at 684. The court dismissed Count I of the amended complaint, the father’s section 1983 claim against the mother, for failure to state a claim on which relief could be granted. Id. The court dismissed Count II, seeking enforcement of the Florida decree, for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim on which relief could be granted. Id. at 685. Dismissing Count III, the court found that the father’s allegations of “child-snatching” did not constitute an actionable tort under Florida law, and that the court lacked diversity jurisdiction over such a claim if one existed under state law. Id. On Count IV, however, the court granted declaratory relief, finding that the Florida order of modification was entered consistently with the provisions of section 1738A and was therefore entitled to enforcement according to its terms. Id. at 685-89. The father had also moved for a preliminary injunction, which was denied. Id. at 689. The court’s declaratory judgment was ordered on September 26, 1984 and filed the next day. On October 29, 1984 the district court issued a supplemental order clarifying its previous order and denying the mother’s motion to stay the execution of any proceedings to enforce the court's judgment.
The mother failed to deliver Jerimy immediately to the father. On Thursday, November 15, the father filed an emergency motion for an injunction in the district court, seeking immediate custody of Jeri-my. Late that afternoon the court entered a temporary restraining order (hereinafter “the TRO”) requiring the mother to deliver Jerimy to the father by noon the next day. The mother was enjoined from taking any further action in the Washington courts that was inconsistent with, or contrary to, the district court’s earlier order. The mother was also ordered to appear personally before the court the following Monday to show cause why she should not be held in contempt of court.
The mother delivered Jerimy to the father as ordered and filed a timely notice of appeal from the declaratory judgment and the TRO. After the notice of appeal had been filed, the mother and the father entered into a stipulation requesting the district court to dissolve its show cause order and enter a permanent injunction awarding custody to the father. The stipulation expressly reserved all appellate rights either party might enjoy with respect to any such orders. The district court approved the stipulation, dissolved the TRO, and entered a permanent injunction directing the mother to comply with the Florida court’s 1982 modification order, as modified by that court or any other court with jurisdiction to modify such a decree pursuant to 28 U.S.C. § 1738A (1982). The mother filed no notice of appeal from the order entering the permanent injunction.
The father filed a timely notice of cross-appeal, challenging the district court’s dismissal of Counts I, II, and III. By agreement of the parties, the appeal against the Washington state court judge has been dismissed. The father has filed a motion to dismiss the mother’s appeal. That motion has been carried with the case and decided on this appeal.
DISCUSSION
We consider the father’s motion to dismiss the mother’s appeal in Part I below.
In Part II, we address the remaining issues presented by the mother’s appeal. In Part III, we resolve the claims raised on the father's cross-appeal.
I. THE FATHER’S MOTION TO DISMISS THE MOTHER’S APPEAL
In support of his motion to dismiss the mother’s appeal in its entirety, the father makes the following three arguments. First, the father argues, a TRO is not appealable, and even if the instant TRO is characterized as an injunction, the appeal therefrom is moot, since the order expired by its terms on November 21, 1984. Further, the father argues, any such preliminary order must be considered to have merged with the final permanent injunction order, so that appeal is proper only from the order of permanent injunction. Second, the father argues, this court lacks jurisdiction over the mother’s claims as they relate to the permanent injunction because she agreed to the terms of the injunction in a signed stipulation, and because she never filed or intended to file a notice of appeal from the permanent injunction. Third, the father argues, the mother’s appeal from the declaratory judgment is moot because even if this court were to reverse that judgment, the permanent injunction, from which no appeal has been or can be taken, would remain in effect granting custody of Jerimy to the father. As a result, the father concludes, any ruling this court made on the declaratory judgment action would be purely advisory.
In response to the father’s first argument above, the mother claims the order labeled a TRO was instead an injunction commanding her to perform an affirmative act and, as such, is appealable. If the order is characterized as a TRO, the mother urges us to exercise our inherent power to review an otherwise unreviewable order under the All Writs Act, 28 U.S.C. § 1651(a) (1982). She also argues that an appeal from the TRO should be allowed regardless of the expiration of the order by its terms because the order resulted in irreparable harm that is capable of repetition.
Regarding the permanent injunction, the mother argues that the stipulation she entered into agreeing to the terms of the injunction should not be held to constitute consent to the entry of such an order. Rather, the mother claims she never consented to the entry of the injunction and that she only agreed to the terms of the order to provide a stable environment for Jerimy for the duration of this legal battle. In support of this construction of the stipulation, the mother notes that the stipulation by its terms provided as follows:
The parties hereto agree that this document is entered into without prejudice to the appellate rights of either side and does not constitute a waiver of objection to the propriety of the Court’s Orders herein in any fashion.
The mother argues on this appeal that the permanent injunction must be reversed because it was “fundamental error” for the district court to enter the injunction eight days after the mother’s notice of appeal from the preliminary injunction and declaratory judgment had been filed, which the mother argues had the effect of divesting the district court of further jurisdiction to enter such an order in the case. The mother also argues that where, as here, a prenotice of appeal preliminary injunction has been appealed, the appeal should ■ be deemed taken also from any post-notice permanent injunction that should not have been entered.
In response to the father’s third argument above, the mother argues that her appeal from.the declaratory judgment is not moot even if the permanent injunction is not properly before this court because if we reverse the declaratory judgment, she can subsequently move to set aside the permanent injunction pursuant to Rule 60(b)(5) of the Federal Rules of Civil Procedure. That rule provides, inter alia, that “the court may relieve a party... from a final judgment, order or proceeding... [because] a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.”
We conclude that the mother’s appeal from the TRO entered in this case, whether denominated a TRO or a preliminary injunction, is not properly before the court. It is well settled in this circuit that a TRO is not ordinarily appealable. Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir.1982); Nelson v. Rosenthal, 539 F.2d 1034 (5th Cir.1976); Chandler v. Garrison, 394 F.2d 828 (5th Cir.1967). The mother argues that, because the TRO was in reality a short-lived mandatory injunction commanding her to perform an affirmative act, it is appealable pursuant to 28 U.S.C. § 1292(a)(1). We agree that the label placed on an order such as the one entered in this case is not dispositive of its nature and appealability under section 1292(a)(1). “A district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over the parties in an injunctive proceeding.” Sampson v. Murray, 415 U.S. 61, 86-87, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974). When determining whether to consider an order a TRO or a preliminary injunction, however, courts typically look to such factors as the duration of the order, whether it was issued after notice and a hearing, and the showing made to obtain the order. See C. Wright, Law of Federal Courts 708 (4th ed. 1983). The lengthier the duration of the order, and the more stringent the procedural safeguards employed in the district court, the more likely a TRO will be considered a preliminary injunction. See e.g., Dilworth v. Riner, 343 F.2d 226, 229 (5th Cir.1965). An examination of those considerations in this case strongly suggests that the order entered and labeled a TRO should not be considered a permanent injunction for purposes of this appeal.
Militating in favor of the appealability of the TRO entered in this case, however, is “a slowly emerging doctrine that temporary restraining order rulings may be appealable as interlocutory injunction orders if the appellant can disprove the general presumption that there is no irreparable harm.” 16 C. Wright, A. Miller, E. Cooper and E. Gressman, Federal Practice and Procedure § 3922, at 37 (1977). Thus it has been suggested that “if the TRO goes beyond simply preserving the opportunity to grant affirmative relief and actually grants affirmative relief, an appeal may be taken.” Id. See Adams v. Vance, 570 F.2d 950, 953 (D.C.Cir.1978); Belknap v. Leary, 427 F.2d 496, 498 (2d Cir.1970); Stricklin v. Regents of University of Wisconsin, 420 F.2d 1257, 1259 (7th Cir.1970).
In the context of this case, the consequences of the district court’s order were such that an immediate appeal of the TRO may well have been appropriate. The mother had not yet filed a notice of appeal from the court’s declaratory judgment when the TRO was issued, but an appeal was still available and was taken with her appeal from the TRO. Thus the possibility remained that the district court would be found by this court to lack the legal authority to issue an injunction ordering delivery of Jerimy from his mother in Washington to his father in Florida. Alternatively, the court may have been found to lack subject matter jurisdiction over the case at all. In either event, the district court may have been unable to remedy the obviously severe harm to the mother’s interest occasioned by the physical transfer of Jerimy from Washington, where she retained custody of the child pursuant to a state court judgment apparently enforceable in state court there, to Florida, where the father could enforce a state court decree granting custody to him. In light of the uncertain state of the law concerning the district court’s ability to remedy the effects of its order if it turned out to be in error, an immediate appeal prior to the carrying out of its terms may have been necessary to protect the rights of the mother and therefore appropriate under the circumstances.
Any such appeal from the TRO, however, has since been rendered moot. The mother delivered Jerimy to the father, the TRO expired by its terms, and a permanent injunction was subsequently entered ordering compliance with the Florida decree, as modified consistently with the provisions of section 1738A. Thus any finding that the district court issued the TRO without the legal authority to do so, without subject matter jurisdiction over the case, or otherwise erroneously could have no practical or legal effect. We have held that once a permanent injunction is entered, any similar prior preliminary injunction merges into the permanent order, and appeal is proper only from the order of permanent injunction. Securities Exchange Commission v. First Financial Group of Texas, 645 F.2d 429 (5th Cir.1981). See also Payne v. Fite, 184 F.2d 977, 978 (5th Cir. 1950). To the extent that a TRO might have been appealable but has been replaced by a permanent injunction, that principle is applicable to determine the appealability of the TRO as well. Here no appeal was taken from the order of permanent injunction and, as we indicate below, that order is therefore not properly before us at this time. Further, in light of our resolution of the issues raised by the mother’s appeal from the declaratory judgment entered by the district court, we do not find compelling the mother’s argument that the TRO should be reviewed in spite of its mootness because some future irreparable harm might otherwise result. We thus dismiss the mother’s appeal from the TRO as moot.
We also cannot exercise our appellate jurisdiction over the permanent injunction entered by the district court in this case. We are aware of the general rule that litigants may not appeal injunctions to which they have agreed. See Haitian Refugee Center v. Civiletti, 614 F.2d 92, 93 (5th Cir.1980). Under the circumstances of this case, however, we choose not to rest our refusal to hear the mother’s claims concerning the propriety of the permanent injunction on this principle. Rather, we find her failure to file a timely notice of appeal from the permanent injunction to leave us without jurisdiction over that order on this appeal. The permanent injunction had not been entered when the mother filed her only notice of appeal in this case; the notice of appeal thus made no reference to the permanent injunction at all. Rule 3(c) of the Federal Rules of Appellate Procedure requires that a notice of appeal “designate the judgment, order or part thereof appealed from.” Ordinarily, failure to abide this requirement will preclude the appellate court from reviewing any judgment or order not so specified. Pitney Bowes v. Mestre, 701 F.2d 1365, 1375 (11th Cir.), cert. denied, 464 U.S. 893, 104 S.Ct. 239, 78 L.Ed.2d 230 (1983).
We have previously noted that “it is well settled that an appeal is not lost if a mistake is made in designating the judgment appealed from where it is clear that the overriding intent was effectively to appeal.” Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 739 n. 1 (5th Cir.1980). This has resulted in the liberal allowance of appeals from orders not expressly designated in the notice of appeal, at least where the order that was not designated was entered prior to or contemporaneously with the order(s) properly designated in the notice of appeal. See e.g., Comfort Trane Air Conditioning v. Trane Co., 592 F.2d 1373, 1390 n. 15 (5th Cir.1979). In this case, however, we cannot find the mother to have intended her notice of appeal to constitute an appeal from the order of permanent injunction, as that order had not yet been entered when her notice of appeal was filed. Because the intent to appeal is not apparent, review of the permanent injunction on the merits at this time would likely result in prejudice to the father, who has not briefed any non-jurisdictional issues relating solely to the permanent injunction on this appeal. We therefore decline to review the propriety of the permanent injunction entered by the district court on this appeal. See C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir.), cert. denied, 454 U.S. 1125, 102 S.Ct. 974, 71 L.Ed.2d 112 (1981).
Finally, we conclude that the mother’s timely appeal from the declaratory judgment entered by the district court is properly before us and that it is not rendered moot by her failure to appeal from the order entering a permanent injunction to replace the TRO. The appeal cannot be considered moot simply because further action will be required on remand before our decision can have any practical effect. It is clear that no impediment to obtaining further relief consistent with our decision will exist on remand, regardless of our decision. See Fed.R.Civ.P. 60(b)(5). Thus our decision is no more advisory than the decision of any other declaratory judgment action, and we reject the father’s argument to the contrary.
II. THE MOTHER’S APPEAL
The mother raises a number of claims, several of which are unrelated to the PKPA, in her challenge to the district court’s order on summary judgment granting declaratory judgment in favor of the father on Count IV of his amended complaint. We will consider the issues the mother raises that involve the PKPA, as codified in section 1738A, in parts II.A arid II.B below. In part II.C we will address the claims she raises that do not concern the federal statute.
A. The Availability of Federal Relief
Raising an issue of first impression in this circuit, the mother argues strenuously on this appeal that the district court lacked subject matter jurisdiction over the father’s claims under section 1738A. Alternatively, the mother contends, the father’s claims concerning section 1738A fail to state a claim upon which relief can be granted. The Third Circuit and the Fifth Circuit have held that the federal district courts possess subject matter jurisdiction over complaints seeking to enforce compliance with the dictates of section 1738A. See Heartfield v. Heartfield, 749 F.2d 1138 (5th Cir.1985); Flood v. Braaten, 727 F.2d 303 (3d Cir. 1984). According to those courts, section 1738A vests in a parent a federal right, enforceable in federal district court, to have a custody determination made in one state in accordance with the terms of section 1738A enforced in other states as the statute provides. Although our analysis differs somewhat, we also hold that an action seeking an authoritative federal construction of section 1738A to resolve a conflict concerning the validity of conflicting state court custody orders may be maintained in federal district court.
The operative provisions of the PKPA, as codified, impose upon the appropriate state authorities the following obligations:
(a) The appropriate authorities of every State shall enforce according to its terms... any child custody determination made consistently with the provisions of this section by a court of another State.
(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.
28 U.S.C. § 1738A (1982). The statute also provides detailed federal standards, carefully tailored to the national problem to which the statute responds, for use in determining state court jurisdiction to enter or modify a custody decree, and thus for determining which of two conflicting state court custody orders is the valid one under federal law. See 28 U.S.C. § 1738A(b)-(f) (1982).
There can be little doubt that Congress contemplated that one parent would be permitted to enforce compliance with the dictates of the PKPA, as codified in section 1738A, in a private action against the other parent. Parties have traditionally determined the validity and enforceability of child custody orders in just such a manner, and we cannot conclude that Congress intended or expected that the validity and enforceability of a custody order under section 1738A would be determined any other way. Rather, the questions raised by the mother on this appeal are (1) the availability of a federal forum — that is, federal jurisdiction — and (2) the availability of the federal remedy obtained in this case — that is, a judgment declaring the rights of the parties under federal law.
1. Subject matter jurisdiction over the complaint.
The father sued for and was granted a declaratory judgment in this case. Under the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. (1982), a party may obtain from a federal district court a judicial declaration of his or her rights under federal law. It has long been recognized, however, that “the operation of the Declaratory Judgment Act is procedural only.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 463, 81 L.Ed. 617 (1937). The Supreme Court explained the jurisdictional implications of that observation in its opinion in the leading case of Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950), as follows:
[By enacting the Declaratory Judgment Act,] Congress enlarged the range of remedies available in the federal courts but did not extend their jurisdiction. When concerned as we are with the power of the inferior federal courts to entertain litigation within the restricted area to which the Constitution and Acts of Congress confine them, “jurisdiction” means the kinds of issues which give right of entrance to federal courts. Jurisdiction in this sense was not altered by the Declaratory Judgment Act____ The Declaratory Judgment Act allow[s] relief to be given.by way of recognizing the plaintiff’s right even though no immediate enforcement of it [is] asked. But the requirements of jurisdiction — the limited subject matters which alone Congress has authorized the District Courts to adjudicate — were not impliedly repealed or modified.”
Id. at 671-72, 70 S.Ct. at 878-79. Thus, “if the federal issue [presented in a declaratory judgment action] would inhere in the claim on the face of the complaint that would have been presented in a traditional damage or coercive action, then federal jurisdiction exists over the declaratory judgment action.” 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2767, at 745 (2d ed. 1983); see Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). If, however, the federal issue would necessarily arise only as an ingredient of the defense of such an action, federal jurisdiction will be denied. See Shelly Oil, 339 U.S. at 672, 70 S.Ct. at 879. See also Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 2851-53, 77 L.Ed.2d 420 (1983). As a result, the district court cannot be held to possess subject matter jurisdiction over the father’s claim for a declaratory judgment determining his rights under section 1738A unless the court would also have jurisdiction to entertain his claim for injunctive relief.
In Flood v. Braaten, 727 F.2d 303, the Third Circuit held that a federal district court could exercise its federal subject matter jurisdiction to entertain such suits. In Flood, a New Jersey state court had awarded custody to the mother, while a North Dakota court had awarded custody to the father. Each court refused to enforce the custody order entered by the other. The mother brought an action in federal district court in New Jersey to enforce the New Jersey custody decree. The circuit court found the district court to have erred when it summarily dismissed the mother’s complaint for failure to state a basis for federal jurisdiction.
The Flood, court first discussed the “domestic relations exception” to diversity jurisdiction, see Barber v. Barber, 62 U.S. (21 How.) 582, 584, 16 L.Ed. 226 (1859), finding it inapplicable to a case in which a well-pleaded complaint has otherwise made out a substantial ease for federal question jurisdiction. Flood, 727 F.2d at 307. See generally 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3609 (2d ed. 1984). Further, the court found the principles underlying the reluctance of federal courts to enforce custody decrees under the full faith and credit statute to be inapposite, since adjudicating a dispute under section 1738A would not require the court to become enmeshed in the underlying custody suit in the manner in which a straightforward enforcement action would. The court would not have to inquire into whether, as a matter of state law, some modification of the decree was appropriate, but would instead only have to inquire into the jurisdictional facts that would determine which of two states rendering conflicting custody decrees had asserted jurisdiction over the controversy in conformity with federal law. Id. at 309-310. Finally, the circuit court examined the legislative history of section 1738A in an effort to determine whether Congress intended federal courts to possess jurisdiction to enforce compliance with its provisions. See id. at 310-12. After extended analysis the court concluded that Congress must have intended the jurisdiction of the federal district courts to extend to such actions, as any other result would “render § 1738A virtually nugatory by so restricting the availability of a federal forum that state compliance with the legislation would become optional.” Id. at 312.
In Heartfield v. Heartfield, 749 F.2d 1138, the Fifth Circuit also found that “where courts of two different states assert jurisdiction over a custody determination, federal district court intervention is proper and in fact necessary to enforce compliance with § 1738A.” Id. at 1141. In that case the father filed suit in federal district court in Texas seeking an injunction to restrain the mother from obtaining a modification of the custody and visitation provisions of a Texas divorce decree in Louisiana. The father brought his action under section 1738A, alleging federal question jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332 (1982). The father was successful in obtaining the injunction, and the mother appealed. Agreeing with the Third Circuit’s reasoning in Flood, the Fifth Circuit panel found federal question jurisdiction to exist over an action under section 1738A. Id. at 1140-41. The Heartfield court further agreed with the district court that, under section 1738A, Texas could exercise continuing exclusive jurisdiction to issue visitation and child support orders in the underlying custody and visitation dispute. Id. at 1141-43. The court held, however, that the injunction issued by the district court should not have been entered, as no confrontation between the Texas and Louisiana courts had yet occurred. Injunctive relief under section 1738A was therefore considered by the court to have been premature. Id. at 1143.
In this case, the father has alleged the federal question jurisdiction conferred in 28 U.S.C. § 1331 as a jurisdictional basis for the federal court’s exercise of its authority. Because we are not being asked to imply a grant of federal jurisdiction in section 1738A, we need not conduct an exhaustive inquiry into the intent of Congress in passing the PKPA. Where federal question jurisdiction does not already exist pursuant to 28 U.S.C. § 1331, and federal jurisdiction has not been expressly conferred over the cause of action by some other statute, a careful analysis of the intent of Congress when it enacted the substantive federal legislation at issue may be necessary to determine whether, by enacting that legislation, Congress can be said to have intended to confer federal jurisdiction not previously conferred by statute. But if the plaintiff’s cause of action meets the requirements that, if met, allow one to invoke the federal question jurisdiction of 28 U.S.C. § 1331, such an inquiry into legislative intent is unnecessary.
Article III, Section 2, of the Constitution extends the judicial power of the federal government to all cases “arising under... the Laws of the United States.” Such cases are commonly referred to as “federal question” cases. In 1875 Congress conferred upon the federal courts original jurisdiction over federal question cases in language virtually identical to that found in the Constitutional provisions. See 28 U.S.C. § 1331 (1982). Nonetheless, the Supreme Court has recently reaffirmed the long-recognized fact that in the federal question statute Congress did
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_appel1_7_5
|
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 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).
Don Mitchell TEDFORD, Appellant, v. David A. HEPTING, Esquire, Assistant District Attorney, David L. Cook, Esquire, District Attorney, Susan Lynn West, Official Court Reporter, Lynda D. Harrison, Official Court Reporter, Edward J. Bayuszik, Official Court Reporter, Dennis Rickard, Sheriff, Edward Gamble, Deputy Sheriff, John A. Doe, Butler County Prison Official, John B. Doe, Butler County Court Official, Appellees.
No. 91-3304.
United States Court of Appeals, Third Circuit.
Argued March 2, 1992.
Decided March 31, 1993.
Deena J. Schneider (Argued), Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for appellant.
James W. Harvey (Argued), Israel and Wood, P.C., Pittsburgh, PA, for appellees.
Before: STAPLETON and MANSMANN, Circuit Judges, FULLAM, Senior District Judge.
The Honorable John P. Fullam, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
FULLAM, District Judge.
In February 1987, plaintiff was tried for first-degree murder and rape; he was convicted and sentenced to death. The Pennsylvania Supreme Court upheld the conviction and sentence. Commonwealth v. Tedford, 523 Pa. 305, 567 A.2d 610 (1989).
On February 27, 1989, while the direct appeal of the conviction and sentence was pending, plaintiff brought this civil rights action in the United States District Court for the Western District of Pennsylvania, alleging that the district attorney and various court reporters and other officials of Butler County had conspired to violate his constitutional rights by fraudulently altering the stenographic record of the criminal trial and related proceedings. Plaintiff alleged that evidence favorable to plaintiff had been deleted from the transcript, that the testimony actually given by prosecution witnesses was weaker than the version reflected in the transcripts, and that exhibits had been altered or falsified. The defendants filed a motion for summary judgment on the grounds of absolute and qualified immunity, and also filed a motion to stay all further proceedings until after the criminal appeal was decided. On August 14, 1989, all proceedings were stayed pending the outcome of the criminal appeal.
On October 11, 1989, plaintiff filed an amended complaint, adding as defendants the Butler County sheriff, two deputy sheriffs, and two “John Doe” defendants. The Supreme Court of Pennsylvania affirmed the conviction and sentence on December 13, 1989. On March 29, 1990, the United States Magistrate Judge lifted the stay order, and permitted certain discovery to proceed.
In the course of further proceedings which need not be detailed here, the district court at various times adopted recommendations of the magistrate judge and entered orders to the following effect: (1) refused to dismiss the complaint on grounds of absolute or qualified immunity; (2) refused to dismiss the complaint on grounds of issue-preclusion; (3) permitted various amendments to plaintiffs pleadings; and (4) granted, on abstention grounds, defendants’ “request for a stay ... requiring plaintiff to pursue his remedies in Pennsylvania’s courts.” The abstention order was entered on May 7, 1991, and plaintiff filed his appeal to this court on May 15, 1991.
I. THE DISTRICT COURT’S DECISION
All parties agree that it was proper for the district court to stay all proceedings in this case until plaintiff’s criminal appeal was concluded. After the conviction was affirmed, however, plaintiff contended that the district court should proceed to decide the merits of this § 1983 action, while the defendants argued, inter alia, that the state court judgment affirming the criminal conviction collaterally estopped plaintiff from further challenging the accuracy of the transcripts of the criminal proceedings, and that the court should abstain from deciding the case. The district court rejected defendants’ issue-preelusion argument because it found that plaintiff had not been afforded a full and fair opportunity to litigate the factual issues as to the accuracy of the transcripts. On the abstention issue, however, while recognizing that neither Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), nor Colorado River Water Conservation District v. U.S., 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), directly governed this case since there is here no pending state court proceeding, the court nevertheless determined that abstention for reasons of “comity” would be appropriate. The district court pointed out that plaintiffs obvious purpose in pursuing this § 1983 action was to establish a basis for affecting the outcome of later proceedings collaterally attacking his conviction; that, although there is no currently pending state court proceeding upon which to base a Younger abstention decision, further proceedings in the state courts were both inevitable and imminent; and that a federal determination on the merits of the § 1983 claim would amount to a significant invasion of state-court prerogatives.
The district court also noted that it was at least a “close question” whether this case so resembled a collateral attack on the validity of plaintiffs conviction that it should be treated as an application for a writ of habeas corpus, with the attendant requirement of exhaustion of state remedies.
II. ANALYSIS OF PLAINTIFF’S CLAIMS
Throughout the proceedings in the district court, plaintiff was acting pro se, but his pleadings clearly disclose the nature of his claims, and the relief he seeks. He asserts that each of the defendants played some role in altering or falsifying the state court transcript, including some of the exhibits. His second amended complaint (the operative pleading) requests the following relief: (1) “A declaratory judgment that the defendants violated the United States Constitution and state and federal laws”; (2) an injunction “ordering corrections of court records”; (3) compensatory damages “in excess of $10,000 against each of the defendants”; (4) punitive damages against each of the defendants; and (5) general relief.
Analysis properly begins with the observation that plaintiff does not have a constitutional right to a totally accurate transcript of his criminal trial. His constitutional rights would be violated only if inaccuracies in the transcript adversely affected the outcome of the criminal proceeding. And, since the jury which convicted plaintiff and sentenced him to death acted on the basis of the evidence they saw and heard, rather than on the basis of the written transcript of the trial — which was, of course, non-existent until after the trial was completed — this means that a constitutional violation would occur only if the inaccuracies in the transcript adversely affected appellate review in the state courts. The threshold question, therefore, is one which was not directly addressed in the district court, namely, whether plaintiff has alleged deficiencies in the trial transcript substantial enough to call into question the validity of the appellate process in the state courts.
A second area of concern is, as mentioned above, whether this action is in reality a collateral attack upon the criminal conviction, maintainable only under 28 U.S.C. § 2254, after exhausting available state remedies; and, if not, whether the district court’s decision to abstain was appropriate.
III. SUFFICIENCY OF PLAINTIFF’S AMENDED COMPLAINT UNDER § 1983
At various stages of the proceedings in the district court, the defendants sought summary judgment or dismissal on the basis of immunity, issue-preclusion, and failure to exhaust state remedies. But they have not, so far as the record before this court discloses, sought a ruling that the complaint fails to state a claim upon which relief can be granted. This is puzzling, for although plaintiff’s pleadings contain many conclusory allegations about conspiracy and about alterations to and inaccuracy of the transcript of proceedings in the trial court, nowhere does plaintiff allege that appellate review was actually impeded or impaired by reason of any such deficiencies. Moreover, the present record includes, in addition to plaintiffs pleadings, a copy of plaintiffs application to the Pennsylvania Supreme Court for extraordinary relief, in which he details a lengthy list of alleged inaccuracies in the transcript — none of which can reasonably be viewed as having much potential for adverse impact upon the fairness of the appellate process. More significantly, the published opinion of the Pennsylvania Supreme Court upholding the conviction and sentence makes it seem highly unlikely that plaintiffs appellate rights could have been significantly affected by the alleged transcript errors. The opinion contains a lengthy and detailed review of the facts of the crime, covering some seven printed pages in the official reports, 523 Pa. at 310-23, 567 A.2d at 612-18; neither in his pleadings nor in any other fashion in this case has plaintiff challenged as inaccurate any of the facts there detailed. And the Pennsylvania Supreme Court specifically noted that the appeal did not involve any challenge to the sufficiency of the evidence (the court nevertheless reviewed the evidence for sufficiency, as required by statute; and found the evidence of plaintiffs guilt “compelling”). It would seem that inaccuracies in the transcription of testimony, alterations of exhibits, and other errors of the sort complained of here could not possibly affect the fairness of appellate review where the sufficiency of the evidence is unchallenged on appeal.
But because this issue was apparently not presented to the district court, and because it is perhaps conceivable that plaintiff could amend his complaint further to state a cognizable constitutional claim, and because of our conclusions on the exhaustion issue as discussed below, we prefer to base our decision on the latter ground.
IV. SECTION 2254 or SECTION 1983
Plaintiff is seeking a declaration that his constitutional rights to due process and/or equal protection with respect to his criminal appeal have been violated; an injunction mandating correction of the state trial transcripts; and compensatory and punitive damages. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and its progeny make clear that if a prisoner challenges “the fact or length of confinement,” then his sole federal remedy is a writ of habeas corpus, 28 U.S.C. §§ 2254, 2255, but if the prisoner is challenging only “the conditions of his confinement,” the claim may be pursued under 42 U.S.C. § 1983. In Wright v. Cuyler, 624 F.2d 455 (3d Cir.1980), this court ruled that a § 1983 civil rights action was the appropriate vehicle for challenging non-admission to a home-furlough program; and in Georgevich v. Strauss, 772 F.2d 1078 (3d Cir.1985); cert. denied, 475 U.S. 1028, 106 S.Ct. 1229, 89 L.Ed.2d 339 (1986), the court reached the same result with respect to challenges to parole procedures. In both cases, it was recognized that success in the § 1983 action might well have some eventual effect on the duration of the prisoners’ confinement, but the Court ruled that this indirect consequence was not a sufficient reason to characterize the claims as exclusively maintainable via habeas corpus.
It is also well-established that some kinds of procedural challenges in criminal cases can be asserted in a § 1983 action where release from custody is not the relief sought. Thus, in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Court approved extensive declaratory and injunctive relief in a § 1983 class action challenging the constitutionality of state statutes and procedural rules which permitted pre-trial detention of arrestees without any probable-cause determination by a neutral and detached magistrate.
Plaintiff insists that this case falls within the Gerstein v. Pugh and Wright v. Cuyler holdings, because plaintiff is not asking the court to release him from custody. We disagree. Wright v. Cuyler is inapposite because that plaintiffs challenge did not impugn the validity of the underlying criminal conviction or the legality of confinement; plaintiff sought merely a change in the conditions of his confinement. And in Gerstein v. Pugh, the constitutional validity of a method of pretrial procedure, rather than its application to any particular case, was the focus of the challenge. The court noted, not only that the plaintiffs did not seek release from pretrial custody, but also that the pretrial custody of the named plaintiffs had long since terminated, and that, in any event, the validity of the criminal convictions (of those members of the class who were thereafter convicted), would not be affected by the unconstitutionality of the pretrial procedure in question.
In the present case, by way of contrast, the validity of plaintiff’s criminal conviction is necessarily at issue. Plaintiff seeks a declaration that his constitutional rights on appeal were violated; that is a direct challenge to the validity of the conviction and the legality of plaintiffs confinement.
Plaintiff also seeks (or sought originally; he has expressed willingness to withdraw this claim if necessary to preserve this lawsuit) an injunction requiring the state court to correct the transcript of his criminal trial. Assuming, without deciding, that this kind of intervention by a federal court into the administration of a state court could ever be justified, such justification can only be provided by the United States Constitution. If the state criminal proceeding were still pending, a federal court would be barred by Younger from granting the requested relief. Since, in appellant’s case, the criminal proceeding is no longer pending, that barrier is overcome; but the relief requested could be justified only on the basis of a finding that the conviction was unconstitutionally obtained — again, a collateral attack upon the validity of the conviction and sentence, hence upon the legality of appellant’s confinement. Stated otherwise, a federal court has no jurisdiction to inquire into the accuracy vel non of a state trial transcript in the abstract, but only if an assertion of a constitutional violation triggers the inquiry.
Finally, plaintiff is seeking compensatory and punitive damages. But, as observed at the outset, plaintiff cannot have been damaged by the inaccuracies in the transcript or by any of the alleged actions of the defendants, unless and until his conviction and sentence are vacated on constitutional grounds. If the actions complained of did not deprive plaintiff of a fair and adequate appellate review of his conviction, he cannot prevail on his damage claims. This § 1983 action is not the appropriate vehicle for setting aside the conviction and sentence.
In Harper v. Jeffries, 808 F.2d 281 (3d Cir.1986), and Melvin v. Nickolopolous, 864 F.2d 301 (3d Cir.1988), this court held that a district court, faced with an action seeking both release from confinement and damages for that confinement should stay the damage action until the habeas claim has been exhausted. Plaintiff seeks to avoid this holding by noting that, in Harper, the single federal action sought both release from confinement and damages, and in Melvin, there was a state habeas corpus proceeding pending at the time the § 1983 federal court action was ruled upon. Plaintiff argues that, since he is not requesting release from confinement in this action, these cases are inapposite. Notwithstanding that distinction, however, we conclude that the Harper decision stands as a clear holding that a claim for damages for wrongful confinement is premature so long as that confinement has not been successfully challenged.
In Williams v. Hepting, 844 F.2d 138 (3d Cir.), cert. denied, 488 U.S. 851, 109 S.Ct. 135, 102 L.Ed.2d 107 (1988), this court decided that although, under Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), there is no requirement of exhaustion in § 1983 actions as a general rule, it is nevertheless appropriate to impose a “limited exhaustion requirement” where the § 1983 action seeks “in essence” to attack the validity of a state court conviction.
We conclude, therefore, that plaintiff cannot obtain relief under 42 U.S.C. § 1983, on the grounds asserted in this case, absent a successful challenge to the underlying conviction. Although the conviction has been upheld on direct appeal, we cannot rule out the possibility that appellant may yet prevail in further collateral proceedings in state or federal court. It follows, under our holding in Williams v. Hepting, supra, that the district court correctly decided to abstain.
V. CONCLUSION
For the reasons discussed above, the order appealed from will be affirmed.
. The opinions of the magistrate judge were approved, in each instance, by the district court, and constitute the operative explanation of the actions forming the subject of this appeal.
. This court appointed counsel to prosecute the appeal.
. In view of this conclusion, we do not address the issue-preclusion question.
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_genstand
|
B
|
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 civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. 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".
TRANSCONTINENTAL BUS SYSTEM, INC., et al., Trailways of New England, Inc., Capitol Bus Company, Inc., et al., Virginia Stage Lines, Inc., et al., Continental Tennessee Lines, et al., Deluxe Trailways, Inc., et al., American Buslines, Inc., et al., Continental Pacific Lines, et al., D. C. S. P. Motor Way, Inc., et al., Adirondack Transit Lines, Inc., et al.; National Trailways Bus System, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent. TRANSCONTINENTAL BUS SYSTEM, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent (two cases).
Nos. 22791, 23020-23027, 23054, 23099, 23512, 23513, 23410, and 23411.
United States Court of Appeals Fifth Circuit.
July 24, 1967.
Theodore Hardeen, Jr., Charlottesville, Va., Howard S. Boros, Washington, D. C., Warren A. Goff, Dallas, Tex., for petitioners.
O. D. Ozment, Assoc. Gen. Counsel, Joseph B. Goldman, Gen. Counsel, Warren L. Scharfman, Assoc. Gen. Counsel, Robert L. Toomey, Acting Assoc. Gen. Counsel, John H. Wanner, Gen. Counsel, Civil Aeronautics Bd., Washington, D. C., Howard E. Shapiro, Atty., Dept, of Justice, Washington, D. C., for respondent.
Before GEWIN, THORNBERRY and DYER, Circuit Judges.
GEWIN, Circuit Judge:
These are consolidated petitions for review of several orders of the Civil Aeronautics Board (Board) dismissing without a hearing the petitioners’ consolidated complaints which sought the suspension and investigation of tariffs filed by numerous air carriers providing for reduced rates for military standby, youth standby, and young adult passengers. The petitioners, forty-six independent motor carriers licensed by the Interstate Commerce Commission and a national trade association of motor bus operators, claimed that the tariffs were unreasonable, uneconomic, and unjustly discriminatory in violation of sections 403(b) and 404(b) of the Federal Aviation Act of 1958, 49 U.S.C. §§ 1373(b) and 1374(b) (1964). The Board found that the complaints failed to set forth sufficient facts to warrant suspension or investigation of the tariffs and, in accordance with § 1002 of the Act, 49 U.S.C. § 1482 (1964), dismissed the complaints without a hearing.
The petitioners sought review of the orders approving the military standby tariffs in the eleven Courts of Appeals. The petitions were transferred to this Court and consolidated with the petition filed in this Court, Case No. 22,791. Subsequently, the petitioners sought review of the orders approving the youth and young adult fares in this Court, and those petitions, Nos. 23,410 and 23,411, were also consolidated with Case No. 22,791 in this proceeding. We affirm the action of the Board with respect to the military standby tariff, but set aside the orders relating to the youth and young adult tariffs and remand for further proceedings.
The military standby tariff provides that military personnel traveling in uniform on leave, pass, or furlough or within seven days of discharge may fly on a standby basis for approximately one-half of the regular jet coach fare. The standby status permits the traveler to be accommodated only if seats are available after all regular fare passengers have been boarded and subjects him to being deplaned enroute or “bumped” to accommodate a regular fare passenger.
The youth standby tariff similarly allows a rate reduction of fifty percent of the regular jet coach rate and provides carriage only after all regular fare and military standby passengers have been accommodated. Persons traveling under this tariff may also be “bumped” en-route. The reduced rates are available only to youths over the age of 12 and under the age of 22 who purchase an identification card issued annually by the airlines for the sum of $3.00. The reduced fares are unavailable during certain peak holiday periods, namely Easter, Thanksgiving, Christmas and New Years.
The young adult fare tariff, proposed only by Allegheny Airlines, Inc. is also applicable only to persons between the ages of 12 and 22 who hold identification cards issued annually by the airline for the sum of $10.00. Cards procured after June 30, however, may be purchased for $5.00. This tariff provides for the making of reservations and the rates are two-thirds of the regular first class fare.
To more fully understand the nature of these proceedings a short history of reduced fares for military personnel and youths is required. The Board first sanctioned reduced fares for military personnel traveling at their own expense in 1956. Those tariffs provided for reduced fares on flights between the continental United States and the then territories of Alaska and Hawaii. These rates were authorized under Board regulations issued pursuant to the provision of § 403(b) which excises overseas and foreign tariffs from the strictures of that section and relegates control of such traffic to the Board. When the territories became states, however, travel between them and the continental United States was no longer overseas transportation and the rates were abandoned. The present military standby tariffs here under consideration were first submitted in essentially their present form and were authorized by the Board on a temporary basis in 1963. See American Airlines Military Fares, 38 C.A.B. 1038 (1963). Those tariffs provided for a fifty percent reduction in jet coach rates and applied to military personnel traveling in uniform on furlough, leave, or pass. Carriage under the tariff was on a standby basis, and passengers were to be accommodated only in empty coach seats. The expiration dates for those tariffs were set in early 1965. Subsequent extensions expanded the service to its present state. The complaints of the petitioners in the instant proceeding were directed at tariffs filed by twenty air carriers proposing an indefinite extension of the military standby tariff.
Reduced rates for youths under twelve have traditionally been a part of the rate scheme in the transportation industry. In 1961 the Board first approved reduced fares for youths between the ages of 12 and 22 as a promotional experiment. Those tariffs provided for a fifty percent reduction in fare and permitted the making of reservations within three hours of flight time. Shortly after the tariffs went into effect they were abandoned by the trunkline air carriers because of operating difficulties caused by the tariffs. Several local service carriers, however, continued the reduced rates, and they are still in effect today. In December 1965, American Airlines, Inc. filed the youth standby tariff here in question. On the same day, Allegheny Airlines filed its young adult tariff. Neither tariff contained an expiration date. Complaints were filed against the youth tariff of American by five competing airlines, the American Society of Travel Agents, and the petitioners. Only the petitioners filed a complaint against Allegheny’s young adult tariff. The complaints in both cases sought suspension and investigation of the tariffs. The Board in dismissing the complaints limited its approval to an experimental one year period. It also required the carriers to file quarterly reports containing statistical data and evaluations of the effectiveness of the tariffs.
The petitioners alleged before the Board and assert here on review that the tariffs are unreasonable and unjustly discriminatory in violation of the Federal Aviation Act of 1958 (FAA). They contend that the tariffs are unreasonable and uneconomic because they are not reasonably related to the fully allocated cost of transportation. They also contend that Allegheny’s young adult tariff is unreasonable because there is no cost savings to the air carrier which would justify the reduced fare. They further allege that the young adult tariff is incapable of generating enough additional traffic to overcome the diversion from normal regular fare traffic and that the tariff is therefore not justified under the profit-impact test advanced by the Board.
The petitioners also assert that the fares are unjustly discriminatory because they are based solely on the identity of the traffic, which is “like” all other passenger traffic, and that the factors upon which the Board granted relief in approving the tariff were beyond the scope of its competence because such factors did not relate to carriage. It is alleged that the standby features of the military and youth tariffs do not differentiate the service from regular service in view of the low average load factors on most domestic flights; it is also pointed out that the reservation feature of the young adult tariff eliminates even that minor difference. In addition, the petitioners contend that the identification card requirement of the youth and young adult tariffs do not distinguish the service or serve as a valid distinction as compared with other promotional fares. Thus, the petitioners conclude, the tariffs offer like service to like traffic under the same or similar circumstances at a reduced rate and are therefore unjustly discriminatory in violation of § 404(b) of the FAA.
In dismissing the complaints, the Board ruled that the standby provisions of the military and youth tariffs sufficiently distinguished the service from that offered regular fare passengers, that the fare was not based solely on the identity of the traffic but was justified, in the case of the military standby tariff, by the national defense considerations advanced by the Secretary of the Army, and, in the case of the youth fares, by the traditional discounts offered youths by the transportation industry and the promotional effects of the tariff. The Board further found that the tariffs fostered the financial position of the industry by increasing revenue, improving the utilization of equipment and ground facilities, and filling seats which otherwise would be vacant. With respect to the young adult fares, the Board again noted the industry tradition of granting discounts to youths, the promotional aspects of the tariff, the potential for greater utilization of air transportation by a significant segment of the population not now using air transportation, and the impecunious state of those eligible under the tariff. It also observed that authorizing the tariffs on a one year experimental basis conformed generally with the policy of allowing airline management to exercise its discretion more freely to improve air transportation and increase air carrier traffic.
I.
At the outset we are presented with an argument which basically questions the standing of the petitioners to challenge the tariffs in issue, although the government contends that we do not actually have to reach the question of whether the petitioners have standing in order to dispose of the case. Essentially, the Board asserts that the petitioners have not shown that the action of the Board in approving the tariffs here in question subjects those persons whose interest the relevant portions of the FAA were designed to protect to any substantial harm, and therefore, they can not object to the action of the Board. It argues that §§ 403(b) and 404(b) were intended to protect airline passengers, shippers, and communities served by air carriers from unjust discrimination, and undue and unreasonable preference or prejudice. The mere adverse economic impact of the approved tariffs on the petitioners, competitors of the air carriers, is an insufficient harm to warrant an investigation of suspension of rates. Indeed, the Board asserts that it need not even specifically consider the effect of a proposed rate on surface transportation in determining whether a proposed tariff satisfies the requirements of the sections in question. Since the petitioners have not shown that the orders sought to be reviewed have harmed those protected by the Act, they can not complain of the action of the Board in approving the tariffs. In summary, the Board concludes that it is somewhat anomalous to allow the petitioners to object to tariffs which have widespread support in the áir transportation industry and which have not been objected to by those not eligible to travel at the reduced rates offered under the tariffs.
In Flying Tiger Line, Inc. v. CAB, 121 U.S.App.D.C. 332, 350 F.2d 462 (1965) the Court was presented with substantially the same issue as the one before us, albeit in a different factual background. There, Pan American World Airways, Inc. had filed a tariff which provided for the overseas carriage of military stores and impedimenta traveling under United States Government bills of lading for the Defense Department. Flying Tiger, a competing air carrier, filed a complaint charging that the rates were unjustly discriminatory as a matter of law in violation of § 404(b) in that they were dependent on the status of the shipper, i. e. the tariffs provided for preferential treatment of one shipper, the Federal Government. The Board dismissed the complaint without a hearing. In affirming the Board, the Court concluded that no abuse of discretion Ijad been shown as the complaint did not make out a plausible ease that the order would subject shippers, or other carriers to any substantial harm. 350 F.2d at 465 The Court held that the assertion by Flying Tiger that it was a “sometime shipper of freight over the routes covered by the tariff” did not satisfy the requirement that harm to shippers be demonstrated. It observed that the record did not disclose what, aside from its own equipment, Flying Tiger shipped. The government urges us to reach a similar conclusion and thusly avoid reaching the issue of whether the petitioners have standing.
Sections 403(b) and 404(b) provided in general terms, that airline traffic, both passenger and cargo traffic, is to be treated equally by the air carriers. The sections are designed to insure that rates and services are offered on an equal basis to all who seek to use the air carriers. They were intended to protect the traveling public and were designed to effectuate the “rule of equality” in the air transportation industry.
The granting of preferential and discriminatory rates in an indiscriminate manner was one of the abuses, among others, which gave rise to the passage of the Interstate Commerce Commission Act, New York, N. H. & H. R. Co. v. Interstate Commerce Commission, 200 U.S. 361, 391-392, 26 S.Ct. 272, 50 L.Ed. 515, 521 (1906); Lichten v. Eastern Airlines, Inc., 189 F.2d 939, 941, 25 A.L.R.2d 1337 (2 Cir. 1951), and both that Act and the Civil Aeronautics Act of 1938, as re-enacted in the Federal Aviation Act of 1958, were enacted to halt those abuses. The Civil Aeronautics Board is charged under §§ 102 and 1002 of the Act with, inter alia, enforcing the provisions of §§ 403(b) and 404(b) to protect the public interest. Failure on the part of the Board to implement and enforce these provisions, of the Act, insofar as they relate to the transportation of passenger traffic, necessarily results in the preference of one class or group of passengers to the prejudice of another. As such, a harm to the traveling public results. The petitioners in seeking review of the action of the Board in approving the tariffs here in question, are acting in the interest of the public, and for the protection of a public right.
Although it was early held that a litigant could assert only his own rights, and was barred from asserting the rights of others, see ICC v. Chicago, R. I. & P. Ry., 218 U.S. 88, 109, 30 S.Ct. 651, 54 L.Ed. 946, 957 (1910), and cases cited therein; see also Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938), subsequent decisions of the Supreme Court have substantially modified that rule insofar as review of administrative agency decisions is concerned. Thus, in FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940) the Court held that a competitor who was subject to adverse economic consequences as a result of an agency decision had standing under § 402(b) of the Federal Communications Act to contest the validity of an FCC order granting a new license to a competing station.
The scope and the nature of the action brought by a competitor to obtain judicial review of agency action was further defined in Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942) and FCC v. NBC (KOA), 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374 (1943). Those decisions made it clear that a competitor was empowered to challenge agency action as contrary to law, and that the competitor was vindicating the public interest and right rather than his own. His status as a competitor and the harm to which the agency action subjected him gave him the standing to seek judicial review, but in so doing he was acting for the public benefit. The rationale supporting the competitors right to bring such actions was fully explored and analyzed by Judge Frank in Associated Indus. v. Ickes, 134 F.2d 694 (2 Cir. 1943). It is unnecessary to belabor the question here. It suffices to observe that it is now a well established doctrine of broad application in the law of standing. See National Coal Ass’n v. FPC, 89 U.S.App. D. C. 135, 191 F.2d 462 (1951); see generally, 3 Davis, Administrative Law Treatise § 22.05 (1958).
Section 1006(a) of the Federal Aviation Act of 1958, 49 U.S.C. § 1486 (1964) provides that “Any order, affirmative or negative, issued by the Board * * * under this Act * * * shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia upon petition * * * by any person disclosing a substantial interest in such order.” Although the wording of this section varies from that of § 402(b) (2) of the Federal Communications Act under which Sanders Bros, was decided, we think it is broad enough to confer standing on the petitioners under the teachings of Sanders Bros. Cf. Alton R.R. v. United States, 315 U.S. 15, 62 S.Ct. 432, 86 L.Ed. 586, (1942); The Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667 (1924); National Coal Ass’n. v. FPC, supra, Seatrain Lines, Inc. v. United States, 152 F.Supp. 619 (Del.1957).
Further, we believe that in the context of § 403(b) and 404(b) the petitioners have demonstrated, under the facts and in the circumstances of this case, a sufficient harm to the traveling public to warrant review. Thus, we find Flying Tiger factually distinguishable. The petitioners assert that the tariffs approved by the Board are uneconomic and unjustly discriminatory. To the extent that these allegations are established, a harm to the traveling public is established. Rates which are unjustly discriminatory violate the provisions of § 404(b) and result in the very harm it was designed to prevent. An unjustly discriminatory rate affords favored service to those eligible under the tariff, and deprives those not eligible of equal treatment. In addition, rates that are uneconomic and unreasonable injure the traveling public either by jeopardizing the financial stability of the air carriers, or by forcing those persons not eligible to travel at the reduced rate to bear a greater and undue portion of the costs of operation. This shifting of operating costs results in placing an oppressive burden on the portion of the public not afforded the reduced rates. Therefore, it seems abundantly clear that the petitioners have alleged sufficient harm to the public to justify judicial review of the action of the Board.
II.
The regulatory scheme created by the Civil Aeronautics Act of 1938, 52 Stat. 973, 977, and subsequently re-enacted in the Federal Aviation Act of 1958, 72 Stat. 731, applicable in this proceeding, is incorporated in sections 403 and 404. As previously indicated, these sections infuse the “rule of equality” into the regulatory policy controlling rates in the air transportation industry. Section 403(a) provides that all rates and fares charged by an air carrier for air transportation to any point served by it shall be filed with the Board. The first sentence of § 403(b) precludes an air carrier from charging any rate, fare, or from offering any rebate, dispensation, or free transportation, except as provided by a tariff filed with the Board pursuant to § 403(a). The second sentence of the section permits the air carriers, subject to terms and conditions established by the Board, to give free or reduced-rate transportation to certain enumerated classes of persons, generally those closely connected with the air carrier. Section 404(a) requires the air carriers to serve all those who reasonably request air transportation at reasonable rates and in a reasonably safe and adequate manner. Unjust discrimination, unreasonable preference or prejudice against passengers, shippers, terminals, or points served are precluded by § 404(b).
The Board is empowered and charged under § 1002 with the responsibility of enforcing the foregoing requirements as well as other provisions of the Act. Section 1002 gives the Board the power, either upon the filing of a complaint or on its own motion, to suspend and investigate tariffs when there is a reasonable ground to believe that a violation of the Act has been established. Under the language of the section, the Board has broad discretionary powers with respect to whether to investigate or suspend a tariff, Nebraska Dept, of Aeronautics v. CAB, 298 F.2d 286 (8 Cir. 1962), and it may dismiss, without a hearing, a complaint which is valid on its face when “it is of the opinion that it does not state facts which warrant investigation.” Flight Eng’rs. International Ass’n. v. CAB, 118 U.S.App. D. C. 112, 332 F.2d 312 (1964). On petition for review, the scope of a reviewing court’s power is limited to a determination of whether the Board has abused its discretion. Pan American-Grace Airways, Inc. v. CAB, 85 U.S.App.D.C. 297, 178 F.2d 34 (1949). Thus, we are simply to determine whether the Board, in dismissing the complaints without a hearing, abused its discretion in concluding that the complaints failed to set forth sufficient facts to demonstrate that the tariffs in question violated the provisions of the FAA and did not require an investigation and possible suspension to protect the public interest.
In dismissing the complaints the Board issued an order in each of the eases consolidated in this proceeding. The orders set forth the Board’s reasons for denying the petitioners the relief they sought. Since the complaints could be dismissed without a hearing, the order need only comply with the requirements of § 6(d) of the Administrative Procedure Act, 5 U.S.C. § 1005(d), and not with the more stringent requirements of § 8(b), 5 U.S.C. § 1007(b). We find that these orders more than meet the procedural requirements of § 6(d), and further or more elaborate findings were not required. It should be noted, however, that in determining whether the Board abused its discretion in dismissing the complaints, we are limited to the orders actually issued, and the rationale advanced therein. It is on the basis of these findings and rationale that we are to test the exercise of discretion by the Board.
The petitioners contend first that reduced-rate transportation may be offered only to persons in those classes listed in § 403(b), and that reduced rates to any other class of persons is illegal per se. They assert that in enumerating the classes of persons to whom reduced rates may be granted, Congress intended to prohibit the granting of reduced rates to any other class of persons or any other traffic when the reduced-rate is offered on the basis of the identity or status of the traffic. Petitioners further urge since neither military personnel nor youths between ages of 12' and 22 are included in the classes of persons listed in § 403(b), the rates here in question are unlawful. The Board argues that § 403(b) permits air carriers to grant reduced rate transportation to those classes of persons listed in the section relatively free of Board control. In granting such transportation, it continues, an air carrier need not satisfy the requirements of § 404(b) and rates offered such persons may not be found violative of the strictures of § 404 (b). However, the Board contends that § 403(b) is not exclusive and that it does not preclude the offering of reduced-rate transportation to other persons, provided such transportation complies with the requirements of § 404(b). Thus, the list of persons to whom reduced-rate transportation may be given is illustrative and not exclusive.
The petitioners base their contention mainly on the 1956 amendment to § 403 (b) which permitted reduced-rate transportation on a standby basis to members of the clergy, and the refusal of Congress in 1959 to amend § 403(b) to permit reduced-rate transportation to military personnel. They assert that in both instances it was the understanding of Congress that reduced-rate transportation must be construed to be exclusive in groups without an amendment of the statute. Thus, they conclude, the section must be construed to be exclusive in order to effectuate this clear manifestation of Congressional interpretation of the statute.
As indicated earlier, reduced-rates for military personnel were permitted under Board regulation issued pursuant to § 403(b) for travel to Alaska and Hawaii. However, when these territories became states, travel between them and the continental United States was no longer “overseas” transportation, but became interstate transportation. As a result the Board could no longer authorize reduced-rates since the provision of § 403 (b) granting the Board authority to regulate overseas transportation was no longer applicable. To enable the air carriers to continue giving the reduced rates, the Board sought Congressional action in the form of an amendment to § 403(b). Congress refused to alter the section. From this refusal to act, and the earlier amendment with respect to members of the clergy, the petitioners infer that reduced rates may only be offered to those persons listed in § 403(b). We do not think such a conclusion need be drawn from either the amendment or from the refusal of Congress to amend the section.
When § 403(b) was amended to permit reduced-rate service for members of the clergy and at the time the Board sought the amendment to allow the giving of reduced-rates to military personnel, a substantial question was raised, as it is now, whether air carriers could, consistent with § 404(b), offer such transportation. Prior to 1959 the Board had taken an extremely stringent line in enforcing the unjust discrimination provisions of § 404(b). See Capital Group Student Fares, 25 C.A.B. 280 (1957); Free and Reduced Rate Transp. Case, 14 C.A.B. 481 (1951); Tour Basing Fares, 14 C.A.B. 257, 259 (1951); Summer-Excursion Fare Case, 11 C.A.B. 218 (1950); ATC Fare Discounts, 29 C.A.B. 1344 (1959). On the basis of this decisional law, and the approach of the Board to the problems of unjust discrimination, the Board might well have concluded that such reduced fares were likely to be unjustly discriminatory. Therefore, in order for the air carriers to offer such rates an amendment to § 403(b) would have been required. Viewed in this context, the refusal of Congress to amend the section does not require us to construe the section as an exclusive limitation on the granting of reduced-rates. Rather, it merely indicates that where a reduced rate is violative of § 404(b), the class of persons to ■whom the rate is offered must be among the enumerated classes in § 403(b). This analysis comports with the interpretation of the section by the Board as it indicates that reduced rates may be offered to the classes listed in § 403(b) with impunity and irrespective of any possible violation of § 404(b). Thus, we conclude that the legislative history of the Board’s unsuccessful attempt to amend § 403(b) does not vitiate, but rather strengthens, the construction of § 403(b) and 404(b) by the Board. See American Trucking Ass’n v. Atchison, T. & S. F. Ry., 387 U.S. 397, 87 S.Ct. 1608, 18 L.Ed.2d 847 (May 29, 1967).
Further, the Board has consistently reviewed under § 404(b) tariffs which proposed reduced-rates for groups or classes or persons not included in the § 403(b) listing, e. g., Nonpriority Mail Rate Case, 34 C.A.B. 143 (1961); Certified Air Carrier Military-Tender Investigation, 28 C.A.B. 902 (1959); Capital Group Student Fares, 26 C.A.B. 451 (1958), and early held that § 403(b) was not an exclusive list of persons to whom reduced-rate transportation may be afforded. Airline Pass Agreement, 1 C.A.B. 677 (1940) (Dictum); ATC (1956) (concurring opinion); American Resolutions re Travel Agents & Tour Conductors, 31 C.A.B. 990, 992 (1959). While the construction of an enabling statute by an administrative agency is not binding on the courts, it is entitled to great weight. Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124, 125 (1944); United States v. American Trucking Ass’n., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). It is the interpretation of the intent of Congress by those charged with effectuating that intent. In addition, the administrative agency is continually involved and vitally concerned with the operation of the statute; the expertise developed through its intimate contact with the problems of the area and the operation of the statute should not lightly be ignored. See American Airlines, Inc. v. C.A.B., 97 U.S.App.D.C. 324, 231 F.2d 483, 488 (1956) (concurring opinion); American Airlines, Inc. v. CAB, 178 F.2d 903 (7 Cir. 1949). In the instant case the Board’s construction of the statute is not only a reasonable one but it is generally consistent with the construction given the analogous section 22 of the Interstate Commerce Commission Act, 49 U.S.C. § 22 (1964); see Nashville C. & St. L. Ry. v. State of Tennessee, 262 U.S. 318, 43 S.Ct. 582, 67 L.Ed. 999 (1923); ICC v. Baltimore & O.R.R., 145 U.S. 263, 12 S.Ct. 844, 36 L.Ed. 699 (1892); Tennessee Prod. & Chem. Corp. v. Louisville & N.R.R., 319 I.C.C. 497 (1963). Since the Civil Aeronautics Act of 1938 was modeled after the I.C.C. Act, the latter provides an appropriate guide in construing the section before us. Cf. American Airlines, Inc. v. North American Airlines, Inc., 351 U.S. 79, 82, 76 S.Ct. 600, 100 L.Ed. 953, 960 (1956) ; ICC v. Delaware, L. & W. R.R., 220 U.S. 235, 31 S.Ct. 392, 55 L.Ed. 448 (1911). In discussing the interpretation to be given to section 22 in relation to sections 2 and 3 of the Act, the portions of the Act analogous to § 404, the Supreme Court said:
“The unlawfulness defined by sections 2 and 3 consists either in an ‘unjust discrimination’ or in an ‘undue or unreasonable preference or advantage,’ and the object of section 22 was to settle beyond all doubt that the discrimination in favor of certain persons therein named should not be deemed unjust. It does not follow, however, that there may not be other classes of persons in whose favor a discrimination may be made without such discrimination being unjust.” ICC v. Baltimore & O.R.R., supra, 145 U.S. at 278, 12 S.Ct. at 848, 36 L.Ed. at 704.
It is therefore clear that the construction of the analogous section 22 is consistent with the Board’s construction of section 403(b).
Although section 22 of the I.C.C. Act specifically provides for reduced rate transportation for military personnel, we do not think that fact undermines the correctness of the construction of section 403(b) advanced by the Board. Military personnel were included in section 22 by way of amendment after the railroads had offered reduced rate transportation to servicemen. The section was amended to insure the continuance of such transportation by precluding any determination that the reduced rates vio lated section 2 or 3 of the Act. See S Rep. No. 1141, 78th Cong., 2d Sess. 2 (1945); 90Cong.Rec. 7385 (1944). That Congress believed it necessary to include the provision in the section does not indicate that § 403 is exclusive.
Nor do we believe that either Slick Airways, Inc. v. United States, 292 F.2d 515, 154 Ct.Cl. 417 (1961), or United States v. Associated Air Transp., Inc., 275 F.2d 827 (5 Cir. 1960) challenge the construction advanced by the Board. In both Slick and Associated the issue was whether the government was bound, under its contract with the air carriers for the carriage of military goods and personnel, by the tariff filed by the air carriers pursuant to § 403(a). The Court in both instances held that the tariff was controlling and the government was bound under its contract to pay the tariff rates. The cases are factually and legally distinguishable; they do not aid in the resolution of the issue before us.
We agree with the conclusion of the Board that § 403(b) merely permits the granting of reduced-rate transportation to the classes of persons enumerated in the section without regard to whether such rates meet the requirements of § 404(b), and does not preclude the giving of discriminatory rates in a proper case to other classes of persons. The limitation on such discriminatory rates is contained in § 404(b). This construction of the sections accords with common sense and produces a reasonable and rational result. The legislative history of the amendments to § 403(b) do not require a different construction. Accordingly, we conclude that the tariffs here in question are not unlawful because the persons to whom the reduced-rate transportation is offered are not listed in § 403(b). Flying Tiger Line, Inc. v. CAB, 121 U.S.App.D.C. 332, 350 F.2d 462 (1965); American Airlines, Inc. v. CAB, 178 F.2d 903 (7 Cir. 1949).
III.
We turn now to the major issue raised by these petitions for review: whether the Board, in dismissing the petitioners’ complaints without a hearing, abused its discretion in concluding that the complaints failed to set forth sufficient facts to warrant investigation of whether the tariffs here in question were unjustly discriminatory. The Federal Aviation Act of 1958 does not define the term unjust discrimination, but it is acknowledged that the term refers to section 2 of the Interstate Commerce Commission Act which precludes different treatment of like traffic for like and contemporaneous service under substantially similar circumstances and conditions. Wight v. United States, 167 U.S. 512, 42 L.Ed. 258, (1897); ICC v. Delaware, L. & W.R.R., 220 U.S. 235, 31 S.Ct. 392, 55 L.Ed. 448 (1911); Summer Excursion Fares, 11 C.A.B. 218 (1950). Such discrimination may result from the charging of different rates to different shippers or passengers afforded the same service, Wight v. United States, supra; International Air Freight Forwarders Investigation, 27 C.A.B. 658 (1958), or from the offering of special services to only a select patron or group of patrons. Baltimore & O. R. R. v. United States, 305 U.S.
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_casesource
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025
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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.
BRENTWOOD ACADEMY v. TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION et al.
No. 99-901.
Argued October 11, 2000
Decided February 20, 2001
Souter, J., delivered the opinion of the Court, in which Stevens, O’Connor, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Kennedy, JJ., joined, post, p. 305.
James F. Blumstein argued the cause for petitioner. With him on the briefs were H. Lee Barfield II and G. Thomas Nebel.
Deputy Solicitor General Underwood argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Waxman, Acting Assistant Attorney General Lee, Irving L. Gornstein, Dennis J. Dimsey, and Gregory B. Friel.
Richard L. Colbert argued the cause and filed a brief for respondents.
Briefs of amici curiae urging reversal were filed for the National Women’s Law Center et al. by Marcia D. Greenberger, Barbara A. Burr, and Neena K. Chaudhry; for the Southeast Law Institute by A. Eric Johnston; and for the Tennessee Lawyers’ Association for Women by Linda Carver Whitlow Knight.
Briefs of amici curias urging affirmance were filed for the Florida High School Activities Association, Inc., by Leonard E. Ireland, Jr.; for the Interscholastic Associations by Wayne F. Plaza, Daniel M. Noland, Mallory V. Mayse, and Edmund J. Sikorski, Jr.; and for the Kentucky High School Athletic Association by Danny C. Reeves and David A. French.
David A. Wilson, John C. Bonifaz, and Brenda Wright filed a brief for the National Voting Rights Institute as amicus curiae.
Justice Souter
delivered the opinion of the Court.
The issue is whether a statewide association incorporated to regulate interscholastic athletic competition among public and private secondary schools may be regarded as engaging in state action when it enforces a rule against a member school. The association in question here includes most public schools located within the State, acts through their representatives, draws its officers from them, is largely funded by their dues and income received in their stead, and has historically been seen to regulate in lieu of the State Board of Education’s exercise of its own authority. We hold that the association’s regulatory activity may and should be treated as state action owing to the pervasive entwinement of state school officials in the structure of the association, there being no offsetting reason to see the association’s acts in any other way.
I
Respondent Tennessee Secondary School Athletic Association (Association) is a not-for-profit membership corporation organized to regulate interscholastic sport among the public and private high schools in Tennessee that belong to it. No school is forced to join, but without any other authority actually regulating interscholastic athletics, it enjoys the memberships of almost all the State’s public high schools (some 290 of them or 84% of the Association’s voting membership), far outnumbering the 55 private schools that belong. A member school’s team may play or scrimmage only against the team of another member, absent a dispensation.
The Association’s rulemaking arm is its legislative council, while its board of control tends to administration. The voting membership of each of these nine-person committees is limited under the Association’s bylaws to high school principals, assistant principals, and superintendents elected by the member schools, and the public school administrators who so serve typically attend meetings during regular school hours. Although the Association’s staff members are not paid by the State, they are eligible to join the State’s public retirement system for its employees. Member schools pay dues to the Association, though the bulk of its revenue is gate receipts at member teams’ football and basketball tournaments, many of them held in public arenas rented by the Association.
The constitution, bylaws, and rules of the Association set standards of school membership and the eligibility of students to play in interscholastic games. Each school, for example, is regulated in awarding financial aid, most coaches must have a Tennessee state teaching license, and players must meet minimum academic standards and hew to limits on student employment. Under the bylaws, “in all matters pertaining to the athletic relations of his school,” App. 138, the principal is responsible to the Association, which has the power “to suspend, to fine, or otherwise penalize any member school for the violation of any of the rules of the Association or for other just cause,” id., at 100.
Ever since the Association was incorporated in 1925, Tennessee’s State Board of Education (State Board) has (to use its own words) acknowledged the corporation’s functions “in providing standards, rules and regulations for interscholastic competition in the public schools of Tennessee,” id., at 211. More recently, the State Board cited its statutory authority, Tenn. Code Ann. §49-1-302 (1996) (App. 220), when it adopted language expressing the relationship between the Association and the State Board. Specifically, in 1972, it went so far as to adopt a rule expressly “designat[ing]” the Association as “the organization to supervise and regulate the athletic activities in which the public junior and senior high schools in Tennessee participate on an interscholastic basis.” Tennessee State Board of Education, Administrative Rules and Regulations, Rule 0520-1-2-.26 (1972) (later moved to Rule 0520-1-2-.Q8). The Rule provided that “the authority granted herein shall remain in effect until revoked” and instructed the State Board’s chairman to “designate a person or persons to serve in an ex-officio capacity on the [Association’s governing bodies].” App. 211. That same year, the State Board specifically approved the Association’s rules and regulations, while reserving the right to review future changes. Thus, on several occasions over the next 20 years, the State Board reviewed, approved, or reaffirmed its approval of the recruiting Rule at issue in this case. In 1996, however, the State Board dropped the original Rule 0520-1-2-.08 expressly designating the Association as regulator; it substituted a statement “recognizing] the value of participation in interscholastic athletics and the role of [the Association] in coordinating interscholastic athletic competition,” while “authorizing] the public schools of the state to voluntarily maintain membership in [the Association].” Id., at 220.
The action before us responds to a 1997 regulatory enforcement proceeding brought against petitioner, Brentwood Academy, a private parochial high school member of the Association. The Association’s board of control found that Brentwood violated a rule prohibiting “undue influence” in recruiting athletes, when it wrote to incoming students and their parents about spring football practice. The Association accordingly placed Brentwood’s athletic program on probation for four years, declared its football and boys’ basketball teams ineligible to compete in playoffs for two years, and imposed a $3,000 fine. When these penalties were imposed, all the voting members of the board of control and legislative council were public school administrators.
Brentwood sued the Association and its executive director in federal court under Rev. Stat. § 1979, 42 U. S. C. § 1988, claiming that enforcement of the Rule was state action and a violation of the First and Fourteenth Amendments. The District Court entered summary judgment for Brentwood and enjoined the Association from enforcing the Rule. 13 F. Supp. 2d 670 (MD Tenn. 1998). In holding the Association to be a state actor under § 1983 and the Fourteenth Amendment, the District Court found that the State had delegated authority over high school athletics to the Association, characterized the relationship between the Association and its public school members as symbiotic, and emphasized the predominantly public character of the Association’s membership and leadership. The court relied on language in National Collegiate Athletic Assn. v. Tarkanian, 488 U. S. 179, 193, n. 13 (1988), suggesting that statewide interscholastic athletic associations are state actors, and on other federal eases in which such organizations had uniformly been held to be acting under color of state law.
The United States Court of Appeals for the Sixth Circuit reversed. 180 F.3d 758 (1999). It recognized that there is no single test to identify state actions and state actors but applied three criteria derived from Blum v. Yaretsky, 457 U. S. 991 (1982), Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982), and Rendell-Baker v. Kohn, 457 U. S. 830 (1982), and found no state action under any of them. It said the District Court was mistaken in seeing a symbiotic relationship between the State and the Association, it emphasized that the Association was neither engaging in a traditional and exclusive public function nor responding to state compulsion, and it gave short shrift to the language from Tarkanian on which the District Court relied. Rehearing en banc was later denied over the dissent of two judges, who criticized the panel decision for creating a conflict among state and federal courts, for being inconsistent with Tarkanian, and for lacking support in the “functional” analysis of private activity required by West v. Atkins, 487 U. S. 42 (1988), for assessing the significance of cooperation between public officials and a private actor. 190 F. 3d 705 (CA6 1999) (Merritt, J., dissenting from denial of rehearing en banc).
We granted certiorari, 528 U. S. 1153 (2000), to resolve the conflict and now reverse.
II
A
Our cases try to plot a line between state action subject (however exceptionable) that is not. Tarkanian, supra, at 191; Jackson v. Metropolitan Edison Co., 419 U. S. 345, 349 (1974). The judicial obligation is not only to “ ‘presence] an area of individual freedom by limiting the reach of federal law’ and avoi[d] the imposition of responsibility on a State for conduct it could not control,” Tarkanian, supra, at 191 (quoting Lugar, supra, at 936-937), but also to assure that constitutional standards are invoked “when it can be said that the State is responsible for the specific conduct of which the plaintiff complains,” Blum, supra, at 1004 (emphasis in original). If the Fourteenth Amendment is not to be displaced, therefore, its ambit cannot be a simple line between States and people operating outside formally governmental organizations, and the deed of an ostensibly private organization or individual is to be treated sometimes as if a State had caused it to be performed. Thus, we say that state action may be found if, though only if, there is such a “close nexus between the State and the challenged action” that seemingly private behavior “may be fairly treated as that of the State itself.” Jackson, supra, at 351.
What is fairly attributable is a matter of normative judgment, and the criteria lack rigid simplicity. From the range of circumstances that could point toward the State behind an individual face, no one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason against attributing activity to the government. See Tarkanian, 488 U. S., at 198, 196; Polk County v. Dodson, 454 U. S. 312 (1981).
Our cases have identified a host of facts that can bear on the fairness of such an attribution. We have, for example, held that a challenged activity may be state action when it results from the State’s exercise of “coercive power,” Blum, 457 U. S., at 1004, when the State provides “significant encouragement, either overt or covert,” ibid., or when a private actor operates as a “willful participant in joint activity with the State or its agents,” Lugar, supra, at 941 (internal quotation marks omitted). We have treated a nominally private entity as a state actor when it is controlled by an “agency of the State,” Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U. S. 230, 231 (1957) (per curiam), when it has been delegated a public function by the State, cf., e. g., West v. Atkins, supra, at 56; Edmonson v. Leesville Concrete Co., 500 U. S. 614, 627-628 (1991), when it is “entwined with governmental policies,” or when government is “entwined in [its] management or control,” Evans v. Newton, 382 U. S. 296, 299, 301 (1966).
Amidst such variety, examples may be the best teachers, and examples from our cases are unequivocal in showing that the character of a legal entity is determined neither by its expressly private characterization in statutory law, nor by the failure of the law to acknowledge the entity’s inseparability from recognized government officials.or agencies. Lebron v. National Railroad Passenger Corporation, 513 U. S. 374 (1995), held that Amtrak was the Government for constitutional purposes, regardless of its congressional designation as private; it was organized under federal law to attain governmental objectives and was directed and controlled by federal appointees. Pennsylvania v. Board of Directors of City Trusts of Philadelphia, supra, held the privately endowed Girard College to be a state actor and enforcement of its private founder’s limitation of admission to whites attributable to the State, because, consistent with the terms of the settlor’s gift, the college’s board of directors was a state agency established by state law. Ostensibly the converse situation occurred in Evans v. Newton, supra, which held that private trustees to whom a city had transferred a park were nonetheless state actors barred from enforcing racial segregation, since the park served the public purpose of providing community recreation, and “the municipality remained] entwined in [its] management [and] control,” id., at 301.
These examples of public entwinement in the management and control of ostensibly separate trusts or corporations foreshadow this case, as this Court itself anticipated in Tarkanian. Tarkanian arose when an undoubtedly state actor, the University of Nevada, suspended its basketball coach, Tarkanian, in order to comply with rules and recommendations of the National Collegiate Athletic Association (NCAA). The coach charged the NCAA with state action, arguing that the state university had delegated its own functions to the NCAA, clothing the latter with authority to make and apply the university’s rules, the result being joint action making the NCAA a state actor.
To be sure, it is not the strict holding in Tarkanian that points to our view of this case, for we found no state action on the part of the NCAA. We could see, on the one hand, that the university had some part in setting the NCAA’s rules, and the Supreme Court of Nevada had gone so far as to hold that the NCAA had been delegated the university’s traditionally exclusive public authority over personnel. 488 U. S., at 190. But on the other side, the NCAA’s policies were shaped not by the University of Nevada alone, but by several hundred member institutions, most of them having no connection with Nevada, and exhibiting no color of Nevada law. Id., at 193. Since it was difficult to see the NCAA, not as a collective membership, but as surrogate for the one State, we held the organization’s connection with Nevada too insubstantial to ground a state-action claim. Id., at 193, 196.
But dictum in Tarkanian pointed to a contrary result on facts like ours, with an organization whose member public schools are all within a single State. “The situation would, of course, be different if the [Association’s] membership consisted entirely of institutions located within the same State, many of them public institutions created by the same sovereign.” Id., at 193, n. 13. To support our surmise, we approvingly cited two cases: Clark v. Arizona Interscholastic Assn., 695 F. 2d 1126 (CA9.1982), cert. denied, 464 U. S. 818 (1983), a challenge to a state high school athletic association that kept boys from playing on girls’ interscholastic volleyball teams in Arizona; and Louisiana High School Athletic Assn. v. St. Augustine High School, 396 F. 2d 224 (CA5 1968), a parochial school’s attack on the racially segregated system of interscholastic high school athletics maintained by the athletic association. In each instance, the Court of Appeals treated the athletic association as a state actor.
B
Just as we foresaw in Tarkanian, the “necessarily fact-bound inquiry,” Lugar, 457 U. S., at 939, leads to the conclusion of state action here. The nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings, and there is no substantial reason to claim unfairness in applying constitutional standards to it.
The Association is not an organization of natural persons acting on their own, but of schools, and of public schools to the extent of 84% of the total. Under the Association’s bylaws, each member school is represented by its principal or a faculty member, who has a vote in selecting members of the governing legislative council and board of control from eligible principals, assistant principals, and superintendents.
Although the findings and prior opinions in this case include no express conclusion of law that public school officials act within the scope of their duties when they represent their institutions, no other view would be rational, the official nature of their involvement being shown in any number of ways. Interscholastic athletics obviously play an integral part in the public education of Tennessee, where nearly every public high school spends money on competitions among schools. Since a pickup system of interscholastic games would not do, these public teams need some mechanism to produce rules and regulate competition. The mechanism is an organization overwhelmingly composed of public school officials who select representatives (all of them public officials at the time in question here), who in turn adopt and enforce the rules that make the system work. Thus, by giving these jobs to the Association, the 290 public schools of Tennessee belonging to it can sensibly be seen as exercising their own authority to meet their own responsibilities. Unsurprisingly, then, the record indicates that half the council or board meetings documented here were held during official school hours, and that public schools have largely provided for the Association’s financial support. A small portion of the Association’s revenue comes from membership dues paid by the schools, and the principal part from gate receipts at tournaments among the member schools. Unlike mere public buyers of contract services, whose payments for services rendered do not convert the service providers into public actors, see Rendell-Baker, 457 U. S., at 839-843, the schools here obtain membership in the service organization and give up sources of their own income to their collective association. The Association thus exercises the authority of the predominantly public schools to charge for admission to their games; the Association does not receive this money from the schools, but enjoys the schools’ moneymaking capacity as its own.
In sum, to the extent of 84% of its membership, the Association is an organization of public schools represented by their officials acting in their official capacity to provide an integral element of secondary public schooling. There would be no recognizable Association, legal or tangible, without the public school officials, who do not merely control but overwhelmingly perform all but the purely ministerial acts by which the Association exists and functions in practical terms. Only the 16% minority of private school memberships prevents this entwinement of the Association and the public school system from being total and their identities totally indistinguishable.
To complement the entwinement of public school officials with the Association from the bottom up, the State of Tennessee has provided for entwinement from top down. State Board members are assigned ex officio to serve as members of the board of control and legislative council, and the Association’s ministerial employees are treated as state employees to the extent of being eligible for membership in the state retirement system.
It is, of course, true that the time is long past when the close relationship between the surrogate association and its public members and public officials acting as such was attested frankly. As mentioned, the terms of the State Board’s Rule expressly designating the Association as regulator of interscholastic athletics in public schools were de-; leted in 1996, the year after a Federal District Court held that the Association was a state actor because its rules were “caused, directed and controlled by the Tennessee Board of Education,” Graham v. TSSAA, No. 1:96-CV-044,1995 WL 115890, *5 (ED Tenn., Feb. 20, 1995).
But the removal of the designation language from Rule 0520-1-2-.08 affected nothing but words. Today the State Board’s member-designees continue to sit on the Association’s committees as nonvoting members, and the State continues to welcome Association employees in its retirement scheme. The close relationship is confirmed by the Association’s enforcement of the same preamendment rules and regulations reviewed and approved by the State Board (including the recruiting Rule challenged by Brentwood), and by the State Board’s continued willingness to allow students to satisfy its physical education requirement by taking part in interscholastic athletics sponsored by the Association. The most one can say on the evidence is that the State Board once freely acknowledged the Association’s official character but now does it by winks and nods. The amendment to the Rule in 1996 affected candor but not the “momentum” of the Association’s prior involvement with the State Board. Evans v. Newton, 382 U. S., at 301. The District Court spoke to this point in finding that because of “custom and practice,” “the conduct of the parties has not materially changed” since 1996, “the connections between TSSAA and the State [being] still pervasive and entwined.” 13 F. Supp. 2d, at 681.
The entwinement down from the State Board is therefore unmistakable, just as the entwinement up from the member public schools is overwhelming. Entwinement will support a conclusion that an ostensibly private organization ought to be charged with a public character and judged by constitutional standards; entwinement to the degree shown here requires it.
C
Entwinement is also the answer to the Association’s several arguments offered to persuade us that the facts would not support a finding of state action under various criteria applied in other cases. These arguments are beside the point, simply because the facts justify a conclusion of state action under the criterion of entwinement, a conclusion in no sense unsettled merely because other criteria of state action may not be satisfied by the same facts.
The Association places great stress, for example, on the application of a public function test, as exemplified in Rendell-Baker v. Kohn, 457 U. S. 830 (1982). There, an apparently private school provided education for students whose special needs made it difficult for them to finish high school. The record, however, failed to show any tradition of providing public special education to students unable to cope with a regular school, who had historically been cared for (or ignored) according to private choice. It was true that various public school districts had adopted the practice of referring students to the school and paying their tuition, and no one disputed that providing the instruction aimed at a proper public objective and conferred a public benefit. But we held that the performance of such a public function did not permit a finding of state action on the part of the school unless the function performed was exclusively and traditionally public, as it was not in that case. The Association argues that application of the public function criterion would produce the same result here, and we will assume, arguendo, that it would. But this case does not turn on a public function test, any more than Rendell-Baker had anything to do with entwinement of public officials in the special school.
For the same reason, it avails the Association nothing to stress that the State neither coerced nor encouraged the actions complained of. “Coercion” and “encouragement” are like “entwinement” in referring to kinds of facts that can justify characterizing an ostensibly private action as public instead. Facts that address any of these criteria are significant, but no one criterion must necessarily be applied. When, therefore, the relevant facts show pervasive entwinement to the point of largely overlapping identity, the implication of state action is not affected by pointing out that the facts might not loom large under a different test.
D
This is not to say that all of the Association’s arguments are rendered beside the point by the public officials’ involvement in the Association, for after application of the entwinement criterion, or any other, there is a further potential issue, and the Association raises it. Even facts that suffice to show public action (or, standing alone, would require such a finding) may be outweighed in the name of some value at odds with finding public accountability in the circumstances. In Polk County, 454 U. S., at 322, a defense lawyer’s actions were deemed private even though she was employed by the county and was acting within the scope of her duty as a public defender. Full-time public employment would be conclusive of state action for some purposes, see West v. Atkins, 487 U. S., at 50, accord, Lugar, 457 U. S., at 935, n. 18, but not when the employee is doing a defense lawyer’s primary job; then, the public defender does “not ac[t] on behalf of the State; he is the State’s adversary.” Polk County, supra, at 323, n. 13. The state-action doctrine does not convert opponents into virtual agents.
The assertion of such a countervailing value is the nub of each of the Association’s two remaining arguments, neither of which, however, persuades us. The Association suggests, first, that reversing the judgment here will somehow trigger an epidemic of unprecedented federal litigation. Brief for Respondents 35. Even if that might be counted as a good reason for a Polk County decision to call the Association’s action private, the record raises no reason for alarm here. Save for the Sixth Circuit, every Court of Appeals
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Answer:
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songer_respond1_1_2
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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.
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".
In re REORGANIZATION OF PITTSBURGH RYS. CO. et al.
Nos. 7271, 7283.
Circuit Court of Appeals, Third Circuit.
April 30, 1940.
Wm. Alvah Stewart, Jr., City Sol., Richard B. Tucker, Jr., and Leon Wald, all of Pittsburgh, Pa., for City of Pittsburgh, appellant.
A. E. Kountz and Lewis M. Alpern, both of Pittsburgh, Pa., for Tort Creditors’ Committee, Appellant.
J. Henry O’Neill, J. Garfield Houston, and Blaxter, O’Neill & Houston, all of Pittsburgh, Pa., for W. D. George, Thomas M. Benner, and Thomas Fitzgerald, trustees.
Philip A. Fleger and W. A. Seifert, both of Pittsburgh, Pa., for Philadelphia Co. and certain underliers.
Lee C. Beatty and Richard W. Ahlers, both of Pittsburgh, Pa., for Citizens Traction Co., Penn Street Ry. Co., and Suburban Rapid Transit St. Ry. Co.
Hill Burgwin, of Pittsburgh, Pa., for Allegheny Traction Co. and Millvale Etna & Sharpsburg St. Ry. Co.
John M. Reed, of Pittsburgh, Pa., for Samuel H. Putnam.
Before MARIS, CLARK, and JONES, Circuit Judges.
MARIS, Circuit Judge.
These are appeals from an order of the District Court for the Western District of Pennsylvania directing the trustees of Pittsburgh Railways Company, a debtor in reorganization under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq., and of Pittsburgh Motor Coach Company, a subsidiary, to pay as an administration expense taxes assessed against fifty-five underlying companies whose properties under leases and operating agreements form part of the Pittsburgh Railways System. A schedule of the taxes involved in this appeal is set out below.
None of the taxes listed in the schedule was assessed against the debtor or its subsidiary and none bears any relation to the properties leased by the underliers to the debtor. Each is a tax upon the income of the underliers or upon their capital stock or securities. In other words, although they are taxes due and owing by the underliers to the state and federal governments, they are not taxes due and owing by the debtor. The sole obligation of the debtor with respect to these taxes arose under the leases and operating agreements with the underliers which provided that the debtor should pay all taxes assessed against the underliers. The obligation of the debtor to pay the taxes was an additional consideration for its use of the underliers’ property, and, therefore, as to it a rental obligation rather than a tax liability.
The appellees argue that since the properties of the underlying companies are in the possession of the trustees of the debtor and are being used and operated by them with properties of the debtor as a unified system the taxes of the underlying companies are, in effect, taxes of the unified system and are, therefore, operating and administrative expenses of the trustees. The district court adopted this view.
We are asked to ignore the legal relationships existing between the Philadelphia Company, the debtor and the un.derliers and their separate corporate identities and treat them all as one unified transportation system. For all practical purposes, the appellees argue, the separate identity of the underlying corporations has been lost. Wé are not impressed with the equity of this plea. Under other circumstances the appellee, the Philadelphia Company, has not sought to ignore its corporate identity but has taken refuge behind it to escape liability upon an underlier’s bond, as has also the debtor and an underlier. The appellees, the Philadelphia Company and the underliers, appear not too sincere in their contention that the corporate form is merely fiction when it is observed that the underliers have refrained from themselves filing petitions for reorganization, with the result that the only corporations in the system which are in process of reorganization are the debtor and its subsidiary. The Trustees are not trustees for the Philadelphia Company nor for any of the underliers. Neither the past history of the system nor the present state of the reorganization proceedings would, we think, justify our ignoring the existence of the separate legal entities which compose that system.
A number of the taxes here involved became due prior to the filing of the petition for reorganization on May 10, 1938. These are the federal income taxes for 1937 and federal income taxes for 1937 withheld at source, due March IS, 1938 and the Pennsylvania net income taxes for 1937, due April IS, 1938. Even though the taxpayer was given the option to pay these taxes in installments the taxes were actually due on the dates mentioned, which were the dates fixed by law for filing the tax returns. The failure of the debtor to pay these taxes was a breach of the leases and operating agreements and the. amounts then due became simple contract claims against the debtor, due when the debtor’s petition was filed. As to these claims the underliers must take their position with all other general creditors.
A different question is presented by the taxes for 1938 since they became due while the trustees were actually administering the debtor’s estate and making use of the properties of the underliers in such administration.
The trustees have no obligation to pay the rentals due under the leases, as such, unless and until they affirm the leases and operating contracts. They have a reasonable time within which to affirm or dis-affirm. During the interim their sole obligation is to pay the lessors a reasonable amount for the use and occupation of the properties actually in use. This rule, which was originally laid down in railroad receiverships in equity, applies to the reorganization of a street railway under Section 77B of the Bankruptcy Act, 11 U.S. C.A. § 207. If an interim payment is made it is ordinarily held that it should not be in an amount in excess of the net earnings derived from the operation of the lessor’s properties.
It may be, as argued by the appellees, that in this case it is impossible fairly to allocate the net earnings of the system to the various leased lines. In that case it may be necessary for the court to fix an allowance for use and occupation upon the basis of the fair value of the property actually used by the trustees. This we need not now determine for the court must first determine the property which is being used, the extent of its use and the net earnings being derived from it or its value. Until that is done any order made by the court would have no factual basis and would, therefore, be arbitrary and possibly con-fiscatory.
It is urged that unless the taxes are paid immediately irreparable harm may result, since the taxing authorities may dis-train. If and when this situation arises and the district court deems such a distraint undesirable and likely to hinder the reorganization, it may utilize the powers conferred upon it and enjoin all the proceedings to enforce the lien of any distraint made upon any property in which the debtor has an interest. However, the record before us does not justify a conclusion that the taxing authorities intend to distrain without leave of court. The court may properly withhold such leave pending determination of such'vital questions to the reorganization as whether the trustees plan to affirm or disaffirm the leases, which of the underliers are to become part of the new transportation unit and whether the debtor’s counterclaims against the underliers to which reference is made in the master’s report are enforceable.
An impressive array of authorities is cited by the appellees to the effect that taxes are to be given preference in a proceeding such as this. We, however, are dealing with a contractual liability of the debtor, whereas in each of the cited cases the obligation was a genuine tax liability of the corporation itself and not as in the present case an obligation to pay the taxes of some other corporation.
The appellees give much weight to the fact that the trustees have in their possession funds derived, as they allege, almost wholly from the operation of the under-liers’ property, sufficient to pay all the taxes. They contend that it is wasteful of the trust estate to permit interest and penalties to accumulate by reason of non-payment of these taxes. If, however, by reason of the ultimate disaffirmance of the leases the taxes should never become payable, as such, out of the debtor’s estate and if the amount claimed as taxes should bp found to exceed the sum justly due for use and occupation the trustees would be in error in so applying the funds in their possession. Furthermore the debtor may succeed in substantiating its claims against some of the underliers.
Enough has been said to demonstrate that the order of the district court cannot be sustained upon the record before us. It is accordingly reversed.
Unpaid balances of Federal Income Taxes of the underliers for the year 1937.....!............$ 97,412.14
Federal Income taxes for the year 1937 withheld at source in re-Bpect to interest upon the obligations of underliers............. 6,850.01
Pennsylvania Corporate Net Income taxes of the underliers for the year 1937..................... 27,639.59
Federal Income taxes of the un-derliers for the year 1938........ 50,501.26
Federal Income taxes for the year 1938 withheld at source with respect to interest upon the obligations of underliers............ 2,668.08
Pennsylvania Corporate Net Income taxes of the underliers for the year 1938..................... 18,335.72
Pennsylvania Capital Stock taxes of the underliers for the year 1938 ............................... 64,294.57
Pennsylvania Corporate Loans taxes for the year 1938 in respect to interest upon the obligations of the underliers....... 17,502.56
Total ........................... $285,203.93
Hardeman v. Hendrix, 5 Cir., 29 F.2d 738.
The trustees state: “We do not contend these taxes are payable because the debtor contracted to pay them. While such contracts exist, thus far the Trustees have not affirmed them and may never do so. Whatever might be the effect of affirmance of the operating agreements and leases on the obligation of the Trustees to the underliers, we submit that the obligation of the Trustees to the taxing authorities is not governed by those contracts or by any action that might be taken by the Trustees with respect to them. Nor do we contend these taxes are payable as compensation for use and occupancy of the underliers’ properties by the Trustees.”
The Philadelphia Company is the holding company which owns all the stock of the debtor.
The debtor has an investment of approximately $32,000,000 in the stock of the underliers.
Allen v. Philadelphia Co., D.C., 265 F. 807, affirmed, 3 Cir., 265 F. 817. Cf. Ambridge Borough v. Philadelphia Co., 283 Pa. 5, 129 A. 67, 39 A.L.R. 1064.
Second Ave. T. Co. v. United Traction Co. of Pittsburgh, 328 Pa. 257, 195 A. 25.
Lyon v. Pittsburgh A. & M. Tr. Co., 312 Pa. 584, 169 A. 229.
Revenue Act of 1936, c. 690, § 53(a) (1), 26 U.S.C.A. Int.Rev.Code § 53(a) 1; Act of May 10, 1934, c. 277, § 143(e), 26 U.S.C.A. Int.Rev.Code § 143(c).
Pennsylvania Act of May 16, 1935 P.L. 208, § 4, as amended, 72 P.S.Pa. § 3420d.
Philadelphia & Reading Coal & Iron Co. v. Van Deusen, 3 Cir., 103 F.2d 869.
United States Trust Co. v. Wabash Railway, 150 U.S. 287, 14 S.Ct. 86, 37 L.Ed. 1085; Pennsylvania Steel Co. v. New York City Ry. Co., 2 Cir., 198 F. 721; American Brake Shoe & Foundry Co. v. New York Rys. Co., 2 Cir., 282 F. 523; Westinghouse Electric & Mfg. Co. v. Brooklyn Rapid T. Co., 2 Cir., 6 F.2d 547.
In re Connecticut Co., 2 Cir., 95 F.2d 311, certiorari denied sub nomine, Connecticut Railway & Lighting Co. v. Connecticut Co., 304 U.S. 571, 58 S.Ct. 1041, 82 L.Ed. 1535.
See oases cited in note 12, supra,
Public Service Commission v. Philadelphia Rapid T. Co., 3 Cir., 82 F.2d 481.
11 U.S.C.A. § 516(4).
Michigan v. Michigan Trust Co., 286 U.S. 334, 52 S.Ct. 512, 76 L.Ed. 1136; Coy v. Title Guarantee & Trust Co., 9 Cir., 220 F. 90, L.R.A.1915E, 211; Bear River Paper & Bag Co. v. City of Petoskey, 6 Cir., 241 F. 53; MacGregor v. Johnson-Cowdin-Emmerich, Inc., 2 Cir., 39 F.2d 574; Hardee v. American Security & Trust Company, 64 App.D.C. 259, 77 F.2d 382.
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_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.
Nevelle R. STUD, Plaintiff-Appellant, v. TRANS INTERNATIONAL AIRLINES, a corporation, Transamerica Airlines, a corporation, Defendants-Appellees.
No. 83-1543.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 12, 1984.
Decided March 8, 1984.
Terence S. Cox, Derby, Cook, Quinby & Tweedt, San Francisco, Cal., for plaintiff-appellant.
Drew Pomerance, William Y. O’Connor, Kern, Wooley & Maloney, Los Angeles, Cal., for defendants-appellees.
Before GOODWIN, PREGERSON and NELSON, Circuit Judges.
GOODWIN, Circuit Judge.
Nevelle Stud, the owner and shipper of a horse named Super Clint, sued for damages sustained when the horse died ten days after shipment on a Transamerica flight. Stud appeals from a summary judgment for Transamerica.
In April 1980, Transamerica transported Super Clint on a flight from Canada to New Zealand. Super Clint, for whom Stud had paid $300,000 the month before, seemed to be in good health upon arrival in New Zea-land on April 4. Shortly afterward the horse became visibly ill; he died on April 14,1980. A veterinarian who performed an autopsy on April 15 concluded that the cause of death was “pleuro pneumonia probably brought on by the stress of travel.” A final autopsy report dated June 21, 1980, concluded that temperature fluctuations in the cabin of the airplane probably caused the illness that claimed Super Clint. On June 25, Stud’s insurance agent submitted a written notice of claim to Trans-america’s New Zealand ground handling agent.
After negotiations with Transamerica proved fruitless, Stud filed this action for damages, alleging breach of the carriage contract, negligence, and willful misconduct. The district court held that the Warsaw Convention barred Stud’s claim because Stud had failed to give Transamerica timely written notice of his loss.
The Warsaw Convention, 49 Stat. 3000, T.S. 876, 137 L.N.T.S. 11, governs the international carriage of goods by air, and thus applies to the shipment of Super Clint. Canada, New Zealand, and the United States are all parties to the Warsaw Convention in its original 1929 version. See Av.L.Rep. (CCH) ¶ 27,054. A protocol concluded at The Hague in 1955 amended portions of the Convention relevant to this case. 478 U.N.T.S. 371. Canada and New Zealand are parties to the Hague Protocol but the earlier version of the Convention remains in force in this country because Congress has not ratified the Protocol.
Because our jurisdiction is based not simply on the existence of a federal question under the version of the Warsaw Convention in force in the United States, see Enayati v. Lufthansa German Airlines, 714 F.2d 75, 76 (9th Cir.1983), but on diversity of citizenship as well, we are not compelled to apply the United States version of the Convention. Instead, we use the choice of law rules of California, the state in which this action was filed, to determine the applicable law. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). California applies the law of the place where a contract is to be performed, or, if a contract does not specify a place of performance, the law of the place where it was made. Cal. Civ.Code § 1646. The contract of carriage was performed by shipping Super Clint between two Hague Protocol countries and the Air Waybill covering his shipment indicates that the contract of carriage was made in Canada, a Hague Protocol country. We therefore apply the Warsaw Convention as amended by the Hague Protocol.
Under the Convention, a carrier is prima facie liable for damage to goods shipped by air if the damage was caused during the transportation by air, Article 18, but can avoid this liability by proving that it and its agents took “all necessary measures” to avoid the damage. Article 20. To hold a carrier liable, the person entitled to delivery of the goods must comply with the notice of complaint requirement of Article 26(2). It states that “[i]n case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within ... fourteen days from the date of the receipt in the case of goods.” If notice of complaint is not given within the prescribed time period, “no action shall lie against the carrier.” Article 26(4). Because Stud did not complain to Transamerica within fourteen days after Super Clint’s arrival in New Zealand, his action is barred.
Article 26(2) makes notice of complaint a prerequisite to recovery only “[i]n case of damage.” The Fifth Circuit has recently held that Article 26(2) does not require a
notice of complaint to recover for lost or destroyed goods. Dalton v. Delta Airlines, 570 F.2d 1244 (5th Cir.1978). This position has merit in appropriate cases. Article 18 of the Convention, which creates liability, distinguishes among destruction, loss, and damage. Because the Convention’s drafters made such a distinction in one Article, it is logical to construe Article 26(2), which speaks only of damage, as maintaining that distinction and not requiring notice of complaint when the goods have been lost or destroyed. Commentators from several foreign countries agree. M. Litvine, Droit Aérien 250 (1970) (Belgium); W. Guldi-mann, Internationales Lufttransportrecht 155 (1965) (Switzerland); H. Abraham, Das Recht der Luftfahrt 372 (1960) (West Germany).
Whether Article 26(2) requires notice of complaint thus depends on whether the shipped goods were destroyed or merely damaged. Applying this rule to the shipment of Super Clint is difficult because Super Clint presents a case of both damage and destruction. Following the analysis in Dalton v. Delta Airlines, Super Clint arguably was “destroyed” within the meaning of the Convention when he died. In Dalton, greyhounds that had been alive when handed over to the carrier died in transit. Because the dogs were dead on arrival, the court held that they had been destroyed, not merely damaged, observing that dead dogs were “not at all the thing shipped,” 570 F.2d at 1247, and had lost all economic value beyond scrap value. But unlike the dogs in Dalton, Super Clint arrived alive and in apparent good health. When he left Transamerica’s hands, Super Clint had been neither lost nor destroyed. At most, according to the allegations of the complaint, the horse had been damaged.
The policy underlying Article 26(2) persuades us that the condition of the goods at the time they leave the carrier’s hands should determine whether notice of complaint is a prerequisite to recovery. It is reasonable to interpret Article 26(2) not to require notice of complaint for destroyed goods because the very fact of destruction gives the carrier actual notice that a claim may be forthcoming. When the carrier opens the cargo bay at the end of a flight and discovers that an animal shipped live is now dead, the carrier knows that an injury has occurred for which it may be held liable. Dalton, 570 F.2d at 1247; W. Guldimann, supra, at 155. But the fact of destruction can be counted on to give the carrier actual notice only if the goods are still in its possession when the destruction occurs. Once the goods have left the carrier’s possession, destruction can easily occur without the carrier’s knowledge.
Post-delivery destruction resembles the situation presented by goods that are merely damaged. Mere damage to goods will often be hidden from view and fail to give the carrier actual notice of the loss. Rather than inquire in each case whether damage short of destruction was sufficiently obvious to give the carrier actual notice, Article 26(2) adopts a blanket rule making notice of complaint a prerequisite to recovery for any damage to goods. The same rule should apply to post-delivery destruction because the cause may also be hidden from the carrier. Article 26(2) Required Stud to give notice of complaint within fourteen days of receipt of Super Clint as a precondition to recovery.
Stud gave Transamerica notice of complaint on June 25, 1980, four days after he received a final autopsy report on Super Clint, but more than two months after the horse’s death. Stud claims that the complaint was timely because until he received the autopsy report, he did not know that he could hold Transamerica liable.
Stud’s notice of complaint was not timely. Even if we assume for the sake of argument that the fourteen-day period may be enlarged when damage to or destruction of goods could not, in the exercise of due diligence, be discovered within that period, it should not be enlarged here. Within fourteen days of receipt, a diligent shipper would have known — and Stud in fact knew — of both the damage to and the destruction of Super Clint. The Convention did not require Stud to prove to a certainty at the time of giving notice that Trans-america had caused Super Clint’s death. There was no need to wait for a final autopsy report before giving notice of complaint.
Transamerica had actual knowledge of Super Clint’s death shortly after it occurred. The horse was something of a celebrity and its death was reported in the local news media. Stud argues that this actual knowledge satisfies the notice requirement of Article 26(2). It does not. Article 26(3) requires that the notice of complaint be in writing. If written notice of a consignee’s complaint is necessary to preserve the right of recovery, a carrier’s actual knowledge of the loss, gleaned from a source other than a written notice of complaint, is necessarily insufficient. Shah Safari, Inc. v. Western Airlines, 17 Av.Cas. (CCH) 17,101 (W. D.Wash.1982); Amazon Coffee Co. v. Trans World Airlines, 18 Av.Cas. (CCH) 17,264 (N.Y.Sup.Ct.1983). One reason for the written notice requirement is to avoid endless speculation about who knew what and when they allegedly knew it.
Stud also claims that Transamerica waived its right to a notice of complaint by engaging in settlement negotiations for nearly two years before it raised in defense the lack of notice of complaint. Because Stud did not come forward with facts showing that Transamerica had intentionally relinquished a known right to notice of complaint, CBS, Inc. v. Merrick, 716 F.2d 1292, 1295 (9th Cir.1983), there was no waiver and the district court properly entered summary judgment against Stud on this point.
Affirmed.
. Transamerica is the successor to Trans International Airlines, the first named defendant in this action.
. 1964 Can.T.S. No. 29; 1967 N.Z.T.S. No. 11.
. It is undisputed that the action is between a foreign citizen and a domestic corporation.
. This is the Hague Protocol version of Article 26(2). See 478 U.N.T.S. at 385. The original version of Article 26(2), still in effect in the United States, requires notice of complaint within seven days of receipt of the goods. 49 Stat. at 3020.
. Article 18(1), in English translation states:
The carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air.
49 Stat. at 3019.
The final clause of the subsection uses the word “damage” to refer to the destruction, loss and damage mentioned in the preceding clause. This does not mean, however, that the term “damage” used in Article 26(2) also encompasses destruction or loss. The confusion arises from the translation of the French text, which is the sole authentic text. See Article 36.
The French text reads:
Le transporteur est responsable du dom-mage survenu en cas de destruction, perte ou avarie de bagages enregistrés ou de marchan-dises lorsque l’événement qui a causé le dom-mage s’est produit pendant le transport aér-ien.
49 Stat. at 3005.
The English version uses one term — “damage” — to translate two different French terms —“dommage” and “avarie.” The “damage” referred to in the final clause of Article 18(1) is “dommage,” while the “damage” referred to in the preceding clause of Article 18(1) and in Article 26(2) is “avarie.” Since Article 18(1) distinguishes among “destruction, perte ou avarie,” — “destruction, loss, or damage” — Article 26(2), which mentions only “avarie,” may exclude destruction and loss. Cf. P. Robert, Dictionnaire Alphabétique et Analogique de la Langue Française, s.v. “avarie.” (1970).
. One case has recognized the connection between destruction and actual knowledge by holding that Article 26(2) requires complaint even for destroyed goods if the destruction is not obvious enough to give notice to the carrier. American Breeders Service v. KLM Royal Dutch Airlines, 17 Av.Cas. (CCH) 17,103 (N.Y.Sup.Ct.1982).
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_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.
Homer OVERLY (Citizen of Florida), Appellant, v. Elmer OVERLY, and Elmer Overly, Trustee (Citizen of Pennsylvania), Overly Manufacturing Company, a Corporation of Pennsylvania (a Citizen of Pennsylvania), Alice R. WEHE and Herbert W. Wehe, Individuals (citizens of Pennsylvania).
No. 9198.
Circuit Court of Appeals, Third Circuit.
Argued Dec. 20, 1946.
Decided Dec. 27, 1946.
Robert VanderVoort, of Pittsburgh, Pa., for appellant.
Elder W. Marshall, of Pittsburgh, Pa., for appellees.
Before GOODRICH and McLAUGH-LIN, Circuit Judges, and MURPHY, District Judge.
PER CURIAM.
This is an action to establish an alleged oral trust in personal property. The District Court, 65 F.Supp. 174, found against the plaintiff and this finding is the subject of appeal. The questions involved are wholly those of fact; the parties have no substantial dispute on the legal points. We have examined the record upon the matters concerning which the appellant claims that the conclusions of the trial court were clearly erroneous. The facts do not, in our opinion, bear out the claim. The judgment is therefore 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_direct1
|
B
|
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.
McREYNOLDS v. NATIONAL WOODWORKING CO., Inc.
Court of Appeals of District of Columbia.
Submitted March 8, 1928.
Decided May 7, 1928.
No. 4582.
1. Contracts @=205 — Guaranty to lay linoleum on concrete floor in satisfactory workmanlike manner, after recommending such covering, constituted guaranty to lay it under existing conditions.
Where person making estimate for remodeling automobile showroom recommended laying of linoleum on concrete floor, he was, in absence of fraud or concealment, charged with notice of conditions present, and guaranty to lay linoleum in a satisfactory workmanlike manner constituted guaranty to lay it under conditions then existing.
2. Contracts @=83 — Failure to complete contract In accordance with guaranty constitutes failure of consideration for note conditioned on guaranty.
A failure to complete contract to lay linoleum in a satisfactory workmanlike manner under existing conditions constitutes a failure of consideration for note executed on condition of continuance of such original guaranty.
3. Evidence @=508 — Expert testimony to establish fact that linoleum could not be laid successfully under circumstances in accordance with guaranty held erroneously excluded.
In action to recover on note executed in consideration of completion of contract to lay linoleum in satisfactory workmanlike manner, refusal to admit expert testimony to establish fact that linoleum could not be successfully laid on concrete floor resting on ground and without ventilation held erroneous, since, if it appeared as a fact that such a condition was present and plaintiff could have discovered it, plaintiff would be charged with notice of its existence.
4. Bills and notes @=451(1) — Promissory note at suit of original payee is subject to defenses available against enforcement of written contracts (Code, § 1332).
No particular sanctity attaches to a promis- ' sory note, and it is subject at suit of original payee to any of defenses available against enforcement of written contracts in accordance with provisions of Code, § 1332.
Appeal from the Supreme Court of the District of Columbia.
Suit by the National Woodworking Company, Incorporated, against William E. Mc-Reynolds. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.
W. J. Lambert, R. H. Yeatman, A. M. Schwartz, and W. N. Tobriner, all of Washington, D. C., for appellant.
D. T. Wright and Philip Ershler, both of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
VAN ORSDEL, Associate Justice.
Appellee, National Woodworking Company, •brought suit against appellant in the Supreme Court of the District of Columbia to recover on a note for the sum of $1,500, with interest, alleging that the note was overdue and unpaid.
Defendant filed three pleas, substantially as follows:
(1) That he was not indebted in manner and form alleged.
(2) That plaintiff contracted with defendant to remodel his automobile showroom vfor a consideration of $4,200, which included the laying of linoleum on the concrete floor; that plaintiff had recommended to defend•ant the use of linoleum, and agreed to lay it in a first-class workmanlike manner; that defendant paid plaintiff various sums on account of the contract until it was reduced to $1,500, represented by the note sued upon; that plaintiff failed to perform his contract in respect of laying the linoleum as agreed, in that the linoleum, after being laid, broke away from the concrete; that plaintiff then agreed that defendant should withhold the sum of $1,500, the cost of laying the linoleum, and defendant should deliver to plaintiff his promissory not? in that amount, payable one month after date, in consideration of which defendant agreed to immediately proceed to lay said linoleum as agreed upon, to the full satisfaction of the defendant; that the note was given by defendant on the assurance of plaintiff that the linoleum would be laid “in a first-class workmanlike manner, and in such a way as to fully satisfy” defendant; and that defendant failed to carry out his agreement in this respect.
(3) A set-off in the sum of $2,000 as damages for failure to lay the floor in the manner called for by the original contract.
To the plea of set-off plaintiff pleaded a general denial.
It appears from the reeord that plaintiff company, entered into a contract with defendant to remodel defendant’s automobile showroom for the sum of $4,200, which, among other things, included the laying of linoleum over a concrete floor; that when the work was completed the linoleum would not adhere to the floor, but crumpled up, overlapped, and was unsightly, and of no use to the defendant; that plaintiff company made repeated efforts to put the floor in condition, meeting with failure in each instance; that it was during these proceedings, and while plaintiff was attempting to complete the work, that a settlement was had, resulting in the giving of the $1,500 note, upon the alleged condition that it should only be paid in the event that the work was completed in a satisfactory workmanlike manner.
It appears from the testimony of the defendant that, when the plans for the improvements were completed, plaintiff company requested that it be given an opportunity to submit a bid upon the work. This was granted. When Mr. Beetham, president of the company, was inspecting the premises, preliminary to submitting an estimate for the work, he suggested that the concrete floor in the building could be covered with linoleum, assuring defendant “that they could lay linoleum over the witness’ floor; that they have laid it in different places and that it has always been satisfactory; that witness said that he was a little leery of linoleum, and Mr. Beetham replied that he need not be leery of it, because the plaintiff would stand behind it, and that is why the witness accepted the estimate.” This testimony of the defendant was not denied by Mr. Beetham, though he appeared as a witness in the case. We think the case centers around this recommendation and guaranty, made by Mr. Beetham as president of plaintiff company.
It is now contended on the part of the plaintiff that the reason for. the failure to satisfactorily lay the linoleum was due to the collection under it of moisture from the concrete, disintegrating and loosening the cement used to hold the linoleum in place; that the collection of the moisture was due to the fact that the cement was laid upon the ground, with no ventilation under it, and to the collection of moisture through seepage from the alley adjacent to the building; and that the guaranty of the plaintiff company did not contemplate or take into consideration these unforeseen conditions.
Objection was interposed, and sustained, to defendant’s offer to prove by an expert witness that dampness would collect on a concrete floor covered with linoleum, when the floor is laid upon the ground with no air sid ace under it. The court, sustaining the objection to this evidence, said: “In my view of the case, I do not believe that these contractors were obliged to know anything about the configuration of the ground over there in that neighborhood. It is not a part of their job. ‘There is a floor. Lay linoleum on it.’ That is all they are concerned with, unless, as I say, something sticks right out and hits them in the face, that they ought to pay attention to.”
It is urged by counsel for plaintiff, and was so held by the court below, that the defense of failure of consideration of the note is not available under defendant’s second plea. The court submitted the case to the jury upon the sole ground of whether or not the linoleum was laid in a first-class workmanlike manner, instructing the jury that,1 if they so found, then they could not allow any set-off, “and must return a verdict for the full $1,500, the amount of the note, with interest at 6 per cent, from April 8, 1925. The plaintiff was not responsible for the floor on which the linoleum was laid; and if you And that the linoleum was laid in a first-class workmanlike manner, and became unsatisfactory because moisture came through the floor, then you cannot allow a set-off.” The court summarized its charge in the following language: “The plaintiffs are entitled to recover on this note. So, when you come to consider the matter, you have got to start out with the proposition that, so far as the note itself is concerned, the plaintiff is entitled to $1,500, with interest. Then you come to the question of whether or not this linoleum was laid in a first-class workmanlike manner, and whether the only reason why it buckled, and did these other things, was due to this water. If it was due to the water, then that is something the plaintiffs are not responsible for.”
We are of opinion that the whole theory upon which the case was submitted to the jury is erroneous, both on the law and the evidence. When Beetham, the president of the company, as a basis of plaintiff’s estimate on the work, recommended to defendant the laying of the linoleum on the concrete floor, and defendant expressed, a doubt as to whether this could be successfully done, plaintiff, in the absence of fraud or concealment by defendant, was charged with notice of the conditions present — whether the floor was laid on the ground or was ventilated under, and whether the topographical conditions outside were such as to probably produce moisture when the linoleum was laid. These were conditions of which plaintiff company was charged with' notice on taking the contract; and its conceded, guaranty to lay the linoleum in a satisfactory workmanlike manner was a guaranty to so lay it under the conditions there existing; and the failure to complete the contract as so made, if the original guaranty be found to have been continued as a condition of giving the note, constitutes a failure of consideration for the note.
In this view of the ease, it was error to refuse to admit expert testimony to establish the fact that linoleum cannot be laid successfully upon a concrete floor that rests on the ground, and without ventilation under it. If it should appear as a fact that such a condition was present in this ease, and plaintiff’s agent by proper, inspection could have discovered it, plaintiff would be charged with notice of its existence. It was upon the recommendation of Mr. Beetham, president of plaintiff company, that defendant was induced to use linoleum. He had the right to assume that plaintiff’s president and contracting agent possessed full knowledge of the business in which plaintiff was engaged, and which held itself out to the public as a concern capable of performing work of the character defendant desired done in a satisfactory, skillful, and workmanlike manner.
No particular sanctity attaches to a promissory note. It is subject, at the suit of the original payee, to any of the defenses available against the enforcement of written contracts. Section 1332 of the District Code provides: “Absence or failure of consideration is matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise.”
Tyler v. Mutual District Messenger Co., 17 App. D. C. 85, was an action on quantum meruit for work performed, in which the defendant interposed the plea of not indebted as alleged, and also pleaded a special contract and the failure of plaintiff to perform the contract as agreed, resulting in damage to defendant. The court, considering the evidence admissible under this plea, said: “As will be observed, the terms of the contract are not set forth, nor is it made apparent by the plea whether the alleged, breach of the contract is set up by way of set-off, or by way of recoupment or deduction. The plaintiff, however, joined issue upon all three of the pleas; and under the issue thus formed upon the third plea, or even under the general issue plea of not indebted as alleged, it was competent to the defendant to show by proof that the work and labor and services declared for by the plaintiff were done and supplied under a special contract, and that such work and services were so negligently and unskillfully done and performed as to be of little or no value to the defendant, or that the contract had been violated by the plaintiff to the injury of the defendant, and therefore the latter was entitled to a deduction of the damages thus occasioned by the breach by the plaintiff. This is now the settled principle, both in the English and American courts.”
In Durant v. Murdock, 3 App. D. C. 114, defendant pleaded both failure of consideration and set-off to a declaration on a promissory note, and, while the plea of set-off was held barred by the statute of limitations, the court in its opinion said: “The failure of consideration, and the set-off pleaded by the appellant in defense of the suit, are entitled to more consideration from us. Failure of consideration is, of course, a good defense as against the payee in a promissory note; and a proper set-off is always, under existing law, properly pleadable in bar of a plaintiff’s demand.”
In Withers v. Greene, 9 How. 220, 230, 13 L. Ed. 109, the court, reviewing a judgment on demurrer to a plea of failure of consideration said: “Where there has been a failure of consideration, total or partial, or a breach of warranty, fraudulent or otherwise, all or any of these facts may be relied pn in defense by a party, when sued upon such contracts, and that he shall not be driven to assert them, either for protection, or as a ground for compensation in a cross-action. * * * In the ease of Sill v. Rood, 15 Johns. [N. Y.], 230, which was an action on a promissory note given for the price of a chattel, the defendant was allowed, under the general issue, to show deceit in the sale. And it was holden, further, that a promissory note given for the price of a chattel represented to be valuable, when in truth it was of no value, is without consideration and void.”
No objection was made by counsel for plaintiff by way of demurrer to the second plea, nor to the introduction of proof by defendant in support of the failure of consideration for the note. We think the plea is sufficient to raise this issue, and the case should have been submitted to the jury upon that theory. Nor are we concerned with the suggestion that the contract, upon which the alleged consideration for the note is based, is not binding on the company. It was made by an officer of the company, and we consider it immaterial whether it was made with or without direct authority from the company itself. The company was engaged in the contracting business. It held itself out as prepared to do this sort of business. It transacted its business through its officers, and defendant had the right to assume that the officer, the secretary of the company, with whom he dealt when the note was given, was authorized to act in the premises. Sueh authority will be presumed.
The whole issue here is one of faet for the jury, under proper submission by the court, as to whether or not on the issue raised by defendant’s second plea, or indeed by the. plea of not indebted, there was a lack of .consideration for the note, and, if so, ■whether or not there was a total or partial lack of consideration. If, on retrial, the second plea should be regarded as insufficient to sustain the proof interposed in support of defendant’s case, it may be amended.
The judgment is reversed, with costs, and the ease is remanded for a new trial.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the 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".
UNITED STATES of America, Appellee, v. Michael Patrick QUIGLEY, Appellant.
No. 88-5528.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 13, 1989.
Decided Nov. 28, 1989.
Douglas Altman, Minneapolis, Minn., for appellant.
John M. Lee, Minneapolis, Minn., for ap-pellee.
Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and BEAM, Circuit Judge.
BEAM, Circuit Judge.
Micheál Quigley appeals his conviction of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (1982). We affirm.
l. Background
Quigley was stopped for speeding by Trooper William Ulvi of the Minnesota State Patrol at 7:55 a.m. on April 29, 1988. Quigley was travelling north on Interstate 35 in a rented Cadillac Seville. He was clocked at a speed of 71 m.p.h. in a 55 m.p.h. zone; and, Quigley was not wearing corrective lenses as his license required. While Ulvi was writing a ticket for these offenses, he was informed by dispatch of an outstanding warrant for Quigley’s arrest. Ulvi arrested Quigley, placed him in the squad car, and returned to the Cadillac to inventory its contents in preparation for a custody tow. He first noted a black nylon bag on the floor of the front seat, but his attention was quickly drawn to a black plastic case on the back seat. Ulvi recognized it as a case containing a ten gram, portable scale, often used to measure cocaine. Ulvi then seized the top of a shoe box from the floor of the back seat. In the shoe box top was a glass pipe commonly used for smoking marijuana and a bulging manila envelope which contained one kilogram of cocaine. In addition, the inventory yielded two airline tickets with boarding passes. One ticket, in the name of Quigley, was for passage from Minneapolis to Los Angeles, departing Minneapolis at 9:40 p.m. on April 28. The other, in the name of Mihalow, provided for departure from Los Angeles at 1:30 a.m., returning to Minneapolis before 7:00 a.m. on April 29. Finally, Ulvi found a rental agreement for the Cadillac, signed by Kathy Mihalow, Quigley’s girlfriend. Quigley had on his person $1740, a date book with various entries for airlines, car-rental agencies and hotels, a frequent flier card, a telephone credit card in the name of Miha-low, and a business card with various, handwritten figures on the backside, allegedly recording drug transactions.
At trial, the government introduced much of this evidence through Officer Ulvi, its first witness. The government called, as its second witness, Steven Moss, a police officer of the Metropolitan Airport Commission. Moss had no personal connection to the case, other than being called in his capacity as an investigator in the Airport Narcotics Detail. Officer Moss testified that his work at the airport entailed watching for and investigating persons suspected of being drug couriers. In addition, Moss testified to the specific characteristics used by airport security officers to spot possible couriers. These identifying characteristics included purchasing a ticket shortly before departure, paying for it with cash, checking no luggage, travelling under an assumed name, and generally acting in a nervous manner at the airport. At the direction of the prosecutor, Moss then examined Quig-ley’s airline tickets, noting the arrival and departure times. He also noted that they were purchased with cash shortly before departure, and that the time between the two flights in Los Angeles was less than three hours. In a similar manner, the prosecutor led Moss through many characteristics of the drug courier profile, making specific references en route to the evidence against Quigley.
Following Moss, the prosecution called an employee of Northwest Airlines to put into evidence a report of Quigley’s frequent flier card usage, which indicated that, although Quigley was unemployed, he had made eight trips between Los Angeles and Minneapolis since January 29, 1988. The prosecution also called an officer of the Minneapolis Police Department to testify that the notations on the business card were likely a record of drug transactions made on credit, in terms of quantity and purchase price.
Quigley did not testify, but the defense did call an employee of the Bureau of Criminal Apprehension who worked in the forensics laboratory. He testified that Quigley’s fingerprints were not found on either the scale or the envelope containing the cocaine. This, essentially, was Quigley’s defense: that the cocaine belonged to someone else, that not even the car was his, and that he had no knowledge that the cocaine was in the car. The jury returned a verdict of guilty.
On appeal, Quigley argues, mainly, that the testimony of Officer Steven Moss about the drug courier profile was inherently prejudicial and denied him a fair trial.
II. Discussion
We have characterized the drug courier profile as an “informal compilation of characteristics often displayed by those trafficking in drugs,” United States v. Campbell, 843 F.2d 1089, 1091 n. 3 (8th Cir.1988), and as an “ ‘abstract of characteristics found to be typical of persons transporting illegal drugs.’ ” United States v. Oyekan, 786 F.2d 832, 834 n. 2 (8th Cir.1986) (citing Florida v. Royer, 460 U.S. 491, 493 n. 2, 103 S.Ct. 1319, 1322 n. 2, 75 L.Ed.2d 229 (1983)). Similarly, Chief Justice Rehnquist has described the profile as essentially an investigative tool involving characteristics recognizable to trained officers. “A ‘profile’ is, in effect, the collective or distilled experience of narcotics officers concerning characteristics repeatedly seen in drug smugglers.” Florida v. Royer, 460 U.S. 491, 525 n. 6, 103 S.Ct. 1319, 1339 n. 6, 75 L.Ed.2d 229 (1983) (Rehnquist, J., dissenting). Proper emphasis, then, is placed not on the profile per se, but on characteristics common to couriers.
This emphasis suggests the usual context in which the courts have considered the evidence. It is most often discussed in fourth amendment search and seizure cases. In this context, use of profile characteristics by field officers to make investigative stops has been upheld by the courts as proper; that is, profile characteristics can provide reasonable cause to make a stop. While the Supreme Court was initially hesitant to approve a stop on the basis of profile characteristics, see Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (characteristics included arrival from source city, arrival in the early morning, efforts by defendant to disassociate himself from his travelling companion, and no luggage other than a shoulder bag), the Court has more recently upheld careful, appropriate use of the profile as the basis for investigative detention. United States v. Sokolow, — U.S. -, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Significantly, the Court noted that it is the characteristics themselves which are important, not their compilation into, and labelling as, a profile. “[T]hat these factors may be set forth in a ‘profile’ does not somehow detract from their evidentiary significance.” Id. 109 S.Ct. at 1587.
This circuit has also approved the use of profile characteristics as the basis for reasonable suspicion. Most recently, in United States v. Nunley, 873 F.2d 182 (8th Cir.1989), we upheld an investigative stop as based on reasonable suspicion derived from seeing numerous characteristics which were consistent with the profile. The significant characteristics justifying the stop were purchasing, shortly before departure, a one way ticket with cash, checking no luggage, and acting nervously at the airport. Nunley, 873 F.2d at 183— 84. Specifically, we noted that it is the particular factual observations of the officers in any given case which create reasonable suspicion. It is the characteristics, and not their mechanical application as a drug courier profile, which are legally significant. Id. at 185. Thus, we have upheld stops based on profile characteristics in many fourth amendment cases. See, e.g., United States v. Hernandez, 854 F.2d 295 (8th Cir.1988); Campbell, 843 F.2d 1089; United States v. Reiner-Ramos, 818 F.2d 1392 (8th Cir.1987); United States v. Poitier, 818 F.2d 679 (8th Cir.1987) cert. denied, 484 U.S. 1006, 108 S.Ct. 700, 98 L.Ed.2d 651 (1988); Oyekan, 786 F.2d 832; 786 F.2d 832; United States v. Jones, 759 F.2d 633 (8th Cir.), cert. denied, Jones v. United States, 474 U.S. 837, 106 S.Ct. 113, 88 L.Ed.2d 92 (1985); United States v. Hendrix, 726 F.2d 433 (8th Cir.1984); United States v. Wallraff, 705 F.2d 980 (8th Cir.1983); United States v. Swayne, 700 F.2d 467 (8th Cir.1983).
This case, however, does not involve an investigative stop and the issue of reasonable suspicion based on profile characteristics. Rather, the drug courier profile was presented at trial through the testimony of Officer Moss, in the guise of an expert, as a technique for identifying a drug offender. This use of the profile is, of course, dramatically different than its use at an airport to make an investigative stop. As a result, we cannot merely approve the use of the profile based on our prior cases, because here, as indicated, the profile was used as substantive evidence of guilt.
Two other circuits have considered use of the profile as substantive evidence, and both have disapproved. In United States v. Hernandez-Cuartas, 717 F.2d 552 (11th Cir.1983), defendant was stopped at United States Customs in Miami after arriving from Columbia. Defendant’s passport indicated three prior trips in three months, and prompted a careful inspection of her bag of coffee cans, many of which were found to contain cocaine. Id. at 553-54. At trial, the government introduced testimony from a customs inspector about the use and meaning of the profile. Id. at 554. Defendant argued on appeal that the testimony was prejudicial and denied her a fair trial. Id.
In considering the prejudicial effect of the testimony, the Eleventh Circuit noted that even the use of the profile to establish reasonable suspicion should be viewed critically, since the profile is nothing more than an investigative technique of law enforcement officers. Id. at 555. That concern, while not prohibiting the use of the profile, led the court to warn against its use as substantive evidence. “Although this information is valuable in helping drug agents to identify potential drug couriers, we denounce the use of this type of evidence as substantive evidence of a defendant’s innocence or guilt.” Id. The Eleventh Circuit affirmed the conviction, however, because the testimony admitted “was used purely for background material on how and why Ms. Hernandez-Cuartas was stopped and searched by the custom officers.” Id.
In United States v. Beltran-Rios, 878 F.2d 1208 (9th Cir.1989), the Ninth Circuit relied on Hernandez-Cuartas, noting that “[t]he use of criminal profiles as evidence of guilt in criminal trials has been severely criticized.” Beltran-Rios, 878 F.2d at 1210. Defendant had objected to the testimony of a drug enforcement agent that a typical drug courier exhibited certain characteristics, and that defendant was within the description. The court noted, however, that the testimony came in response to cross-examination, by defense counsel, which attempted to establish that defendant was not a typical drug courier because he “lack[ed] the accoutrements of wealth associated with such a profitable activity.” Id. at 1212. The Ninth Circuit thus approved the testimony as rebuttal testimony, but emphasized “that the holding in this case is a relatively narrow one. The Government may introduce profile testimony of this sort only to rebut specific attempts by the defense to suggest innocence based on the particular characteristics described in the profile.” Id. at 1213 n. 2.
This case does not involve use of the testimony within the limits of either Hernandez-Cuartas or Beltran-Rios. Rather, the prosecution here presented the profile as evidence of guilt, in exactly the manner which the Ninth and Eleventh Circuits criticize. The testimony of Officer Moss was not presented as background evidence on why Quigley was stopped. Indeed, he was not stopped at the airport, and the involvement of Moss in the case was limited to his testimony at Quigley’s trial. Nor was the testimony used to rebut any attempts by Quigley to suggest that he did not have the characteristics of a drug courier. Rather, the prosecution intended the testimony to establish evidence of Quigley’s intent to distribute cocaine, beyond the evidence of mere possession.
While Moss initially testified to the general and acceptable use of profile characteristics, his testimony soon became specific to Quigley and the evidence against him. Moss started by describing his work as looking for people who fit a “narcotic trafficker profile,” Trial Transcript, vol. 2, at 95. He delineated these factors: purchasing tickets shortly before departure, paying for them with cash, checking no baggage, providing no local address, and exhibiting nervousness at the airport. Id. at 97. But the prosecutor then led Moss through the evidence against Quigley, piece by piece. Moss referred to Quigley’s airline tickets, which were in evidence, identified the flight times and destinations, noted that both tickets were nonstop, that they were purchased with cash, that the return flight arrived in the early morning, and that Quigley would have been in Los Angeles for less than three hours between flights. Id. at 103-05. Moss then considered the boarding pass in Quigley’s name, and noted that the seat, 27F, was in the back of the plane, Id. at 107, a factor Moss had already described as characteristic of drug couriers. Id. at 106. Moss noted that the flight arrived in Minneapolis in the early morning, and when asked the significance of that factor, noted that “[w]e have found, and by interviewing people that we have arrested, that they use this flight as an attempt to defeat our surveillance programs.” Id. at 107. The prosecutor then handed Quigley’s address book to Moss and asked him whether he found anything significant in it. Id. at 108. He noted the phone numbers for airlines, hotels, rental car agencies, and Western Union. Id. at 108-09. The numbers for the airlines were important because “that is how they bring drugs to Minnesota.” Id. at 109. The numbers for rental car agencies were important because “people that we have arrested have been in rental cars rented at the airport.” Id. And the number for Western Union was important because “people a lot of times do not carry the money with them when they go to a source city.” Id. at 110.
This point by point examination of profile characteristics with specific reference to Quigley constitutes use of the profile not as background to explain or justify an investigative stop, but as substantive evidence that Quigley fits the profile and, therefore, must have intended to distribute the cocaine m his possession. While Moss did not directly say that he thought Quig-ley was guilty of the offense charged because he fit the profile, that was the clear implication of his testimony. This use of drug courier profile evidence was error.
As in many of these matters, however, the outcome of this appeal does not turn upon the receipt of some improper evidence. Indeed, Quigley’s conviction is supported by such substantial evidence that it is somewhat difficult to understand why the profile evidence was proffered. Quigley had in his possession, in plain view, within an arm’s reach in the car, one kilogram (2.2 lbs.) of high-quality cocaine. This, together with the notes on his person indicating earlier drug transactions, the frequent trips to Los Angeles with tickets paid for in cash even though he was unemployed and the large amount of money in his possession when arrested provided ample evidence for Quigley’s conviction and also provides a substantial basis for us to affirm the conviction. See United States v. Johnson, 879 F.2d 331, 334-35 (8th Cir.1989).
III. Conclusion
While we disapprove of the use of the profile evidence in this particular case, we cannot say, given the facts adduced at trial, that its effect was so prejudicial that it deprived Quigley of a fair trial. Thus, the error, in the context of all the evidence, was harmless. Therefore, the judgment of the district court is affirmed.
. The Eleventh Circuit in Hernandez-Cuartas itself confirms that this testimony is nothing like that which the Eleventh Circuit approved as background. Indeed, this sort of questioning was apparently attempted at trial, but, after objection, was not continued.
After a series of questions had been put to Customs Agent Weitjdemuller touching upon his training and experience and his answers had included reference to his training in what he described as drug courier and hijacker profiles, government counsel put a question seeking a response as to whether or not appellant jit any particular profile. At that point, appellant objected. While the trial judge indicated that the prosecutor might pursue the line of inquiry, the form of the question was criticized. Thereafter, a different question was put, properly inquiring as to those things which influenced the agent to assign appellant for a secondary inspection, and neither questions nor answers along this line touched upon the existence vel non of a "profile."
Hernandez-Cuartas, 717 F.2d at 554 n. 1 (emphasis added).
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_appel2_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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").
Polychronis GRAMMENOS and Theodore Orfanides, Appellants, v. C. M. LEMOS and Nile Shipping Co., S. A., a Panamanian foreign corporation or association, as owners and/or operators of the LIBERIAN S/T CHARIOT, Appellees.
No. 27, Docket 71-1057.
United States Court of Appeals, Second Circuit.
Argued Nov. 1, 1971.
Decided Feb. 23, 1972.
As Modified on Denial of Rehearing March 30, 1972.
John P. Cassapoglou, New York City, (Burt M. Morewitz, Newport News, Va., of counsel), for appellants.
Thomas A. Dillon, Jr., New York City (Burke & Parsons, Raymond J. Burke, New York City, of counsel), for appel-lees.
Before WATERMAN, SMITH and TIMBERS, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
This case arises out of the claims of two foreign seamen for damages under the Jones Act, 46 U.S.C. § 688, and the general maritime law of the United States for injuries sustained when a flash fire broke out on their ship, the S/T Chariot, in Marseilles, France. They name as defendants the Nile Shipping Co., the Panamanian corporation which owns the Chariot, a Liberian flag ship, and C. M. Lemos, a Greek citizen allegedly an American resident and the beneficial owner of Nile. Appellants claim that under the expansive interpretation of Jones Act jurisdiction enunciated in Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), the cause of action is cognizable in American courts because the ship is ultimately owned, operated or controlled by American residents. The district court for the Southern District of New York, Sylvester J. Ryan, Judge, dismissed the complaint on the grounds of lack of personal jurisdiction and forum non conveniens. We find that the quashing of service was proper, but that the complaint ought not have been dismissed, as the plaintiffs may attempt to obtain service through methods other than the one already tried. We find forum non conveniens an inappropriate ground for dismissal.
Nile Shipping Company was organized in New York City by two Americans, and the original officers were American citizens and residents of New York. The company, a Panamanian corporation, is now owned by Greek citizens. The Chariot is one of many Nile ships; the current certificate of registry, issued in 1969, is from the Republic of Liberia. The Chariot and other Nile ships are managed by Nereus Shipping Co., a Greek corporation with offices in Piraeus, Greece. Nereus’ American agent is Triton Shipping Co., which has offices in New York. Triton collects freights payable in New York and receives accounts from subagents in ports in the dollar area of the world. All payments go to a general operating account for Nereus ships, rather than into a separate account for each ship, and Triton pays disbursements for the expenses of running the ships from this account, on approval from Nereus. Triton also solicits some business for Nereus ships in the dollar area.
Mr. Lemos was an American citizen until 1962, when he renounced his citizenship and became a Greek citizen. He maintains a residence in London, and appellants allege that he also owns a home in Rye, New York. They cite an article in Time magazine and a listing of his name with an address and telephone number in the Rye telephone directory to support this contention. Mr. Lemos is intimately involved in the Nile and Nereus companies. In a deposition in another action involving Ner-eus, Triton’s vice-president characterized Mr. Lemos as the mouthpiece or representative of the owners of the Ner-eus ships, the individual with whom Triton deals in arrangements about the vessels.
Grammenos and Orfanides signed articles for the Chariot in Greece, and the • agreement stated that Greek law was to govern disputes between the parties. During the years they served on the Chariot, a tramp tanker, it did not put in at any American ports. When appellants were injured, they were treated by French and Greek doctors. In addition to this action, they filed a companion suit in the district court for the Eastern District of Virginia. After partial pretrial discovery, the case was dismissed on the ground of forum non conveniens. The seamen appealed, and the lower court was reversed by the Court of Appeals for the Fourth Circuit. Gramme-nos v. Liberian S/T CHARIOT, No. 15,017 May 5, 1971. In that case, Ner-eus as well as Triton was served and named as a defendant and thus the problem of adequacy of service was not presented as it is here. The case was remanded for further discovery and reconsideration in light of Lekkas v. Liberian M/V Caledonia, 443 F.2d 10 (4 Cir.1971), an opinion issued the same day as Grammenos. In Lekkas, the court held that although American courts could decline jurisdiction over claims of foreign seamen against foreign ship owners, before doing so a court ought to satisfy itself that it had before it full information on the factors that bear on its decision, such as the ownership and control of the ship and the allegiance of the shipowner. And it held that when shipowners requested the court to decline jurisdiction, they submitted to an obligation to provide information pertinent to the court’s decision. In Lekkas, too, the case was remanded for further discovery.
Summons and complaint were served on Nile under Rule 4(d) (3) of the Federal Rules of Civil Procedure by service on Triton through one of its officers. Service on Mr. Lemos was attempted by delivery of the papers to Miss Olive Helmsley, a woman working at Mr. Le-mos’ sister’s apartment in New York City. Appellants claim that both of these attempts at service were successful, and that even if they were not, that appellees waived defects in jurisdiction by making a general appearance in the case.
Appellants’ waiver point is not well taken. The need to file a special appearance in order to object to jurisdiction or venue has vanished. A party can file a general appearance and object to personal jurisdiction or venue at any time before the answer is filed or in the answer. Kerr v. Compagnie De Ultramar, 250 F.2d 860, 864 (2d Cir.1958) ; Bjorgo v. Weerden, 342 F.2d 558 (7 Cir.1965); Noto v. Cia Secula di Armanento, 310 F.Supp. 639 (S.D.N.Y.1970); Pacific Lanes, Inc. v. Bowling Proprietors Ass’n, 248 F.Supp. 347 (D.Or.1965). If a party enters a case, makes no objection to jurisdiction, and asks the court to act on its behalf in some substantive way, it will be held to have waived further objection. Savas v. Maria Trading Corp., 285 F.2d 336, 340-341 (4 Cir. 1960); Backo v. Local 281, United Brotherhood of Carpenters and Joiners, 308 F.Supp. 172 (N.D.N.Y.1969), aff’d 438 F.2d 176 (2d Cir.1970), cert. denied, 404 U.S. 858, 92 S.Ct. 110, 30 L.Ed.2d 99 (1971). A request for extension of time, such as appellees made, does not constitute waiver of jurisdictional objections. Pacific Lanes Inc. v. Bowling Proprietors Ass’n, supra.
The question, then, is whether there was any defect in the service of process. The standards set in Rule 4(d) for service on individuals and corporations are to be liberally construed, to further the purpose of finding personal jurisdiction in cases in which the party has received actual notice. Nowell v. Nowell, 384 F.2d 951 (5 Cir.1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1053, 19 L.Ed.2d 1150 (1968); Rovinski v. Rowe, 131 F.2d 687 (6 Cir.1942). But there must be compliance with the terms of the rule, and absent waiver, incomplete or improper service will lead the court to dismiss the action unless it appears that proper service may still be obtained. Moore, Federal Practice, § 4.02 [4] (2d Ed.1970); Aquascutum of London, Inc. v. S. S. American Champion, 426 F.2d 205 (2d Cir.1970); Di Leo v. Shin Shu, 30 F.R.D. 56 (S.D.N.Y.1961).
Personal service on an individual, neither an infant nor an incompetent, can be obtained either by serving the man or woman in person or by leaving the summons with a person of suitable age and discretion at the party’s usual place of abode. Under Rule 4(d) (7), service can also be performed in conformity with the rules of the state in which it is made as to service in its own courts of general jurisdiction. In New York, personal service can be accomplished through the use of the methods in the federal rule; the state also permits other forms of service, called “substituted” and “expedient” service. N.Y.C.P.L.R. § 308(4) and (5). Substituted service may be resorted to when the two methods of obtaining personal service common to the state and federal rules have proven fruitless. Substituted service entails affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by mailing the summons to the last known residence of that person. Should it be attempted and fail, the New York law allows expedient service, that is, service “in such manner as the court, upon motion without notice, directs.” N.Y.C.P.L.R. § 308(5).
Appellants attempted to obtain jurisdiction over Lemos by leaving the summons with a person of suitable age and discretion at his usual place of abode. Many cases have interpreted the phrase “usual place of abode” for purposes of service of process. It has been held acceptable to leave the summons with the landlord or supervisor of the apartment building in which the party resides. See Nowell v. Nowell, supra. But when process was served on defendant’s married daughter, living in the same apartment building as her father, but in a different apartment, it was held insufficient. Di Leo v. Shin Shu, supra. In this case, appellants left the documents with an adult woman working for Lemos’ sister at her apartment in New York City. Lemos himself did not reside in this apartment or in the city. Therefore, it was not under any construction of the phrase, his usual place of abode. Service was properly quashed.
This is not to say, though, that substituted service would not prove effective; appellants did not attempt to utilize that method in this case. We cannot predict, of course, whether such an attempt would meet with success. But the fact of invalidity of the one attempt at service does not automatically require dismissal of the complaint. The mere lapse of time between the date of filing of the complaint and the date of effective service does not cause the complaint to abate. Messenger v. United States, 231 F.2d 328 (2d Cir.1956). And the court has power, under Fed.R.Civ.P. 4(a), if the service is invalid or improper, to cause additional or new summons to be issued and good service attempted. 2 Moore, Federal Practice, § 4.06 [1] (2d Ed.1970); Aquascutum of London, Inc. v. S. S. American Champion, supra, 426 F.2d at 210; Stanga v. McCormick Shipping Corp., 268 F.2d 544 (5 Cir.1959); Thompson v. Trent Maritime Co., 149 F.Supp. 468 (E.D.Pa.1957). As the court said in Stanga:
But while the Court’s conclusion does affirm the District Court’s action in setting aside the service of process made herein on Holmes, it does not necessarily follow that the final order of dismissal was proper at this stage.
. . . There may be other ways to effect valid service of process, e. g., attachment ... or perhaps, under some circumstances, on the Secretary of State. Of course, what those means are, or their availability in this case is not before us. Nor was it before the District Court.
There may well come a time in which the Trial Court, in the administration of the affairs of the Court, sees that there is simply no reasonably conceivable means of acquiring jurisdiction over the person of a defendant. When that time comes it may be proper to dismiss the cause. But, on this record, relating to one single attempted service of process, that point has not yet been reached. [268 F.2d at 554]
Appellants in this case ought to be given an opportunity to perfect service on Le-mos.
The question of service on Nile through Triton is more difficult. Rule 4(d) (3) permits personal service on a domestic or foreign corporation through Service on one of its officers, a managing or general agent, or any agent authorized by appointment or by law to receive service of process. In order for the corporation to be amenable to service in a state, it must have minimal contacts with the state, sufficient to warrant subjecting it to suit there without offending due process standards. See McGee v. International Life Insurance, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). This must be more than an incidental contact with the state, although the party does not have to be authorized to do business in the state or have offices there. If the action of an agent of the party in the state is substantial, that will justify service on the defendant in that jurisdiction. See Arpad Szabo v. Smedvig Tankrederi A. S., 95 F.Supp. 519, 522 (S.D.N.Y.1951). If a defendant is found to have sufficient contacts to justify jurisdiction, complete and adequate personal service in compliance with the rules stated above must also be accomplished. It has been held that normally, the person in charge of the activities in the state which are the basis for the conclusion that the defendant is present is the managing agent for purposes of service. See Bomze v. Nardis Sportswear, 165 F.2d 33 (2d Cir. 1948).
On the basis of the skimpy record in this case, it is difficult to ascertain whether Nile has sufficient contacts to justify personal jurisdiction in New York. An affidavit of the president of Nile stated that the officers and directors are Greek citizens residing in Athens. The shares of the corporation are held by a Greek citizen residing in London, England. The corporation does not have any office or place of business in New York. It is engaged solely in international shipping. Appellants have produced no evidence of any business carried on in New York by Nile other than that of Triton.
The business affairs of Triton in New York, then, must be the basis for the power of the court to exercise jurisdiction over Nile, assuming it were properly served. Triton does solicit some business for Nile, but it is not clear whether this takes place in New York. Nothing indicates that Nile is associated or named in any way in connection with Triton’s office or that Triton does business only for Nile. Triton does have bank accounts in New York and an office there. It collects and disburses money for Nereus accounts, but apparently does not exercise discretion in these tasks and does not enter into contracts for Nile. The lower court held, without elaboration, that Nile was not present in New York. Finding, as we do, that service was inadequate under Rule 4(d) (3), we do not have to explore the intricacies of the current “minimum contacts” rule. See Aquascutum of London, Inc. v. S. S. American Champion, 426 F.2d 205 (2d Cir. 1970).
The crucial question in relation to service of process is whether Triton is a “general or managing agent” for Nile. Several eases have treated the issue of agency for foreign corporations and shipping companies. In De Claire Mink Ranches v. Federal Foods, Inc., 192 F.Supp. 148 (N.D.Ia.1961), the court discussed the definition of agent and concluded that it is a person or entity authorized to transact all business of the principal at a particular place or of a particular kind, generally. A general or managing agent must be invested with powers of discretion and must exercise judgment in his duties, rather than being under direct superior control as to the extent of his duty and the manner in which he executes it. See 2 Moore, Federal Practice § 4.22 [2] (2d Ed.1970).
In Arpad Szabo v. Smedvig Tankrederi A. S., supra, the court found that the activities of a shipping company’s agent which collected money and paid out funds for expenses incurred in operating the vessels and did occasional hiring for the shipowner, constituted “doing business” on the part of the principal and justified service on the agent. This case was followed in Green v. Compania De Navigacion Isabella, Ltd., 26 F.R.D. 616 (S.D.N.Y.1960), in which the court distinguished Kelly v. Three Bays Corp., 173 F.Supp. 835 (S.D.N.Y.1959), aff’d 276 F.2d 958 (2d Cir. 1960), a case in which the activities of the agent were held not to constitute presence of the principal. In Kelly, the agent solicited business for the principal and for many other firms and did occasional other tasks for the principal, but was not a husbanding agent and was not empowered to enter into contracts for the principal. And other cases have held that even a husbanding agent is not a general agent of the shipowner for purposes of service when it conducts all its activities in one locality and contracts with the owner on a ship-to-ship basis. Thyssen Steel Corp. v. Federal Commerce and Navigation Co., 274 F.Supp. 18, 20 (S. D.N.Y.1967); Amicale Industries, Inc. v. S. S. Rantum, 259 F.Supp. 534 (D.S. C.1966); Novitski v. Lykes Steamship Co., 90 F.Supp. 971 (E.D.Pa.1950).
The situation in the Amicale case included a factor present in this case; the corporation which did the husbanding in Charleston was an agent of a Louisiana corporation which was the shipper’s general agent in the United States. The decision may be construed to hold that sub-agents of the owner ought never be considered general agents under Rule 4(d) (3), in which case it would be directly on point, or can be seen as relying on the fact that the Charleston corporation handled only one city and did business on a ship-to-ship basis. In the present case, Triton is the sub-agent for the whole United States, and it does operate a running account for Nereus ships. Its activities are therefore somewhat closer to those of a general agent than were those of the corporation in Amieale. But Triton is in essence a collection agency, and monies are passed on to the principals as soon as possible. Triton does not exercise discretionary power; it is a sub-agent of Nile in one area for certain specific tasks, but is not the entity with overall authority for Nile’s activities in the United States. Nereus fills that role. These facts compel the conclusion that Triton does not fall within those who under Rule 4(d) (3) can be served to obtain jurisdiction over a corporation, and the service on Nile was properly quashed. We find no completed service on either defendant but reverse the dismissal of the action.
One further word is necessary. Should appellants obtain valid service over Lemos in one of the aforementioned ways, they will have to face his objection that he is not their “employer” under the Jones Act and is therefore not a proper party. He would also be expected to renew his objection to the assumption by a United States court of subject matter jurisdiction over these claims of foreign seamen, asserting that contacts with this country sufficient to warrant handling the case are absent. The court below noted in its opinion that had service been valid, it would have granted summary judgment on this ground. Such a conclusion is not warranted at this juncture. Discovery is being conducted on the remand from the companion case in Virginia, and the principles of the Lekkas case, controlling there, are applicable here. The court ought to give appellants an opportunity to substantiate their thesis that Lemos is an American resident who controls and is the beneficial owner of the Chariot; this inquiry will also determine his status as employer for purposes of Jones Act coverage.
There is no need at this time to delve further into the factors treated in Hellenic Lines Ltd. v. Rhoditis, supra, which influence the court’s decision on assumption of subject matter jurisdiction. While it is true that on the record as it now stands, the factors which normally incline the courts in this country to accept jurisdiction of the claims of foreign seamen are lacking, discovery may well tip the balance in the other direction. Clarification of the confused circumstances surrounding the ownership of Nile might reveal that Mr. Le-mos is indeed the beneficial owner of the company and is an American resident who ought not, through formalities of incorporation, escape the duties toward seamen which Congress has imposed on shipowners.
These issues will be relevant only if appellants obtain valid service over one of the parties. We reverse the dismissal of the complaint and remand for reinstatement so that appellants may attempt to remedy the defects in service.
. The New York courts have construed the terms “dwelling house” and “usual place of abode” for purposes of determining the validity of substituted service. See Karlin v. Avis, 326 F.Supp. 1325, 1330 (E.D. N.Y.1971) ; Rich Products Corp. v. Diamond, 51 Misc.2d 675, 273 N.Y.S.2d 687 (Sup.Ct.1966) ; Cottakis v. Pezas, 12 Mich.2d 214, 215, 176 N.Y.S.2d 495 (Sup. Ct.1958). If Mr. Lemos resides even temporarily in Rye and has his name and address in the telephone book, that may be sufficient to qualify his home as his “dwelling place” or “place of abode.”
. Appellants point out that in Hellenic Lines Ltd. v. Rhoditis, supra, the first affidavits of the president of the shipping company also denied contacts with the United States, but that later discovery revealed ownership by American interests. However, in that case, the plaintiffs had produced enough evidence to support in personam jurisdiction in this country; the issue was whether the court ought to exercise its discretion to decline subject matter jurisdiction. In any case, we can draw no inference from the activities of the parties there, different from those in the present case, to support the conclusion that Nile and Lemos are concealing the truth.
. In Fraley v. Chesapeake and Ohio Ry. Co., 397 F.2d 1 (3 Cir. 1968), the court ordered the defendant to answer interrogatories about the nature and extent of its business within the state in order for the trial court to make a decision on whether it was “doing business” in the state. Service had been adequate in that case. In this action, the court below refused to order Nile and Lemos to answer interrogatories submitted by the plaintiffs; these were aimed at showing American control of the corporation and Jones Act coverage, not business contacts with the State of New York. Should appellants obtain valid service, discovery on these issues may be appropriate. See p. 1802, infra.
. Appellants did not, as did the plaintiffs in Aquascutum, supra, make a motion, after service on an agent in this country was declared void, for permission to effect service on the defendants in a foreign country. On remand, they might explore the possibility of serving Nile or Nereus under Rule 4(d) (3) or under New York’s long-arm statute. We note, though, that on the current state of the record, the applicability of the latter provision is doubtful. See Delagi v. Volkswagenwerk AG, 29 N.Y.2d 426, 328 N.Y.S.2d 653, 278 N.E.2d 895 (N.Y.Ct.App. January 13, 1972).
. Forum non conveniens is not an appropriate ground for dismissal at this point. The doctrine, which “involves the dismissal of a case because the forum chosen by the plaintiff is so completely inappropriate and inconvenient that it is better to stop the litigation in the place where brought and let it start all over again somewhere else ... is quite naturally subject to careful limitation for it not only denies the plaintiff the generally accorded privilege of bringing action where lie chooses, but makes it possible for him to lose out completely, through the running of the statute of limitations in the forum finally deemed appropriate.” All States Freight, Inc. v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952) ; 1 Moore, Federal Practice 0.145 [2], 0.145 [5], A decision to dismiss “presupposes at least two forums in which the defendant is amenable to process . . . [and] furnishes criteria for choice between them.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). The factors to be taken into consideration include those relevant to the decision on refusal to exercise subject matter jurisdiction, particularly the issue of availability of another forum, as well as other practical questions such as access to sources of proof, and convenience and cost of obtaining or compelling attendance of witnesses. See Gkiafis v. Steamship Yiosonas, 387 F.2d 460 (4th Cir. 1967) ; Odita v. Elder Dempster Lines, Ltd., 286 F.Supp. 547 (S.D.N.Y.1968) ; Voyiatzis v. National Shipping and Trading Corp., 199 F.Supp. 920 (S.D.N.Y.1961). On the issue of availability of an alternative forum, the parties may wish to introduce proof of foreign law (cf. Rule 44.1, Fed. R.Civ.P.; 5 Moore, Federal Practice, 44.-1.01 [1]) ; normally when the plaintiff is remanded to a foreign forum, the defendant agrees on the record to submit to jurisdiction elsewhere and to post security for any judgment awarded there. See, e. g., Garis v. Companía Maritima San Basilio, 386 F.2d 155 (2d Cir. 1967) ; Berendson v. Rederiaktiebolaget Volo, 257 F.2d 136 (2d Cir.), cert. denied, 358 U.S. 895, 79 S.Ct. 156, 3 L.Ed.2d 121 (1958) ; Lambiris v. Neptune Maritime Co., App.Div., 326 N.Y.S.2d 862 (1st Dept.1971).
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
In re WESTERN STATES BUILDING-LOAN ASS’N.
Nos. 6510, 6511.
Circuit Court of Appeals, Ninth Circuit
July 13, 1931.
Bieksler, Smith, Parke & Catlin, of Los Angeles, Cal., for petitioner Memory, Moldenhauer & Co.
Dryer, Castle & Richards, of Los An-geles, Cal., for petitioner Western States Building-Loan Ass’n.
Gold, Quittner & Kearsley, of Los Angeles, Cal., for respondents.
Before WILBUR and SAWTELLE, Circuit Judges.
PER CURIAM.
The alleged bankrupt petitions for the allowance of an appeal of an order denying its motion to dismiss the involuntary petition in bankruptcy. The statute gives the right of appeal from an order of adjudication of bankruptcy (Bankr. Act, § 25, as amended by Act May 27, 1926, c. 406, § 10, 44 Stat. 665 [11 USCA § 48]). Such adjudication has not yet been made in the case at bar, and an appeal therefrom when made will afford petitioner an opportunity to present the question involved in its present application.
Petition denied.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_direct1
|
B
|
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.
Carl James WEDDING, Petitioner-Appellant, v. John W. WINGO, Respondent-Appellee.
No. 72-2160.
United States Court of Appeals, Sixth Circuit.
Argued June 11, 1973.
Decided Aug. 31, 1973.
Joseph G. Glass, court-appointed, Louisville, Ky., on brief, for petitioner-appellant.
Ed W. Hancock, Atty. Gen., James M. Ringo, Asst. Atty. Gen., Commonwealth of Kentucky, Frankfort, Ky., on brief, for respondent-appellee.
Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and CECIL, Senior Circuit Judge.
WEICK, Circuit Judge.
Wedding appeals from the denial by the District Court of his petition for a writ of habeas corpus after an eviden-tiary hearing conducted by a United States Magistrate. Wedding is presently serving a life sentence imposed in 1949 by the Webster Circuit Court of Kentucky after a plea of guilty to a charge of murder. He had filed his petition for the writ in the District Court in 1971, alleging among other things that his counsel was not appointed until the day of the trial; that he was not advised of his right of trial by jury; and that his guilty plea was coerced by threat of a possible death sentence.
Wedding’s petition was denied without a hearing. He appealed to this Court and we reversed and remanded with instructions to conduct an evidentiary hearing on the petitioner’s claims of constitutional violation. 456 F.2d 245 (6th Cir. 1972).
Upon remand, a United States Magistrate, acting pursuant to a rule adopted by the District Court, issued an order assigning the evidentiary hearing to himself. Prior to this hearing, however, the petitioner moved to disqualify the Magistrate from holding such hearing on the ground that a Magistrate was not authorized and empowered under authority of the Federal Magistrates Act of 1968 (28 U.S.C. §§ 631 to 639 (1973 supp.)) to hold evidentiary hearings. That motion was overruled by the District Court.
The evidentiary hearing was then conducted by the Magistrate on June 26, 1972, at which time an electronic recording was made of the testimony of the witnesses. Thereafter the Magistrate adopted findings of fact and conclusions of law, in writing, ruling that no constitutional right of petitioner had been violated, and recommending that the petition be dismissed. The Magistrate submitted to the Court his findings and conclusions, together with a recording (a plastic phonograph record) of the proceedings.
The petitioner moved to have the Court give the matter de novo consideration. The Court listened to the recording and adopted the findings of fact and conclusions of law of the Magistrate as his own, and dismissed the petition as without merit.
The petitioner has again appealed to this Court, contending that the proceedings of the District Court were invalid because the United States Magistrate had no authority under the Act to conduct an evidentiary hearing on his habeas corpus petition. We agree.
The Federal Magistrates Act of 1968, 28 U.S.C. §§ 631 to 639 (1973 Supp.) provides in relevant part:
“
-(b) Any district court of the Unit-' ed States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any' part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to—
(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts;
(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and
(3) preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.” (28 U.S.C. § 636 (1973 Supp.))
Pursuant to this statute, the Judges of the United States District Court for the Western District of Kentucky signed an Order which amended Rule 16, Rules of that District, by adding to paragraph (c)(3) the following:
“In addition to submitting such other reports and recommendations as may be required concerning petitions for writs of habeas corpus from state prisoners, the full-time Magistrate is directed to schedule and hear eviden-tiary matters deemed by the Magistrate to be necessary and proper in the determination of each such petition, and to report thereon with an appropriate recommendation for the disposition thereof to the District Judge having jurisdiction of the case. The Magistrate shall cause the testimony of such hearing to be recorded on suitable electronic sound recording equipment. He shall submit his proposed findings of fact and conclusions of law to the proper Judge for his consideration, copies of which shall be provided at that time to the petitioner and respondent, and the Magistrate shall expeditiously transmit the proceedings, including the recording of the testimony, to the proper District Judge. Upon written request of either party, filed within ten days from the date such is so transmitted to the District Judge having jurisdiction thereof, the District Judge shall proceed to hear the recording of the testimony given at the evidentiary hearing and give it de novo consideration.”
The interpretation by the rule which the Western District of Kentucky has placed upon the congressional grant of power to United States Magistrates is, in our opinion, incorrect. The Act granted authority to the Magistrate to conduct only a preliminary review of applications for post-trial relief in order to facilitate the decision of the District Court as to whether there should be a hearing. This Court, in its mandate, had already directed that an evidentiary hearing be conducted. This rule of the District Court, quoted above, attempts to expand the jurisdiction of the Magistrate and, as will be pointed out, conflicts with the Act, and is therefore invalid.
Our analysis begins with Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941), wherein the Court assessed the respondent’s claim that a United States Commissioner (the predecessor of the United States Magistrate) could conduct evidentiary hearings for habeas corpus by virtue of Rule 53(a) and (b) of the Rules of Civil Procedure. The Court stated:
“It is plain, as the respondent concedes, that a commissioner is not a judge and that the command of the court’s writ that the petitioner appear before that officer was not a literal compliance with the statute. The respondent argues, however, that the writ in effect referred the cause to the commissioner as a master whose function was to take the testimony and submit it, together with his findings and conclusions, for such action as the court might take upon such submission. The argument runs that this practice is in substance equivalent to a hearing before the judge in his proper person, has long been followed in the district courts in California, has not incurred the criticism of this Court in cases brought here where it was followed, is a convenient procedure, tends to expedite the disposition of such cases, is in accordance with long standing equity practice and is countenanced by Rule 53(a) (b) of the Rules of Civil Procedure.
“We cannot sanction a departure from the plain mandate of the statute on any of the grounds advanced. We have recently emphasized the broad and liberal policy adopted by Congress respecting the office and use of the writ of habeas corpus in the interest of the protection of individual freedom to the end that the very truth and substance of the cause of a person’s detention may be disclosed and justice be done. The Congress has seen fit to lodge in the judge the duty of investigation. One of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony. Plainly it was intended that the prisoner might invoke the exercise of this appraisal by the judge himself. We cannot say that an appraisal of the truth of the prisoner’s oral testimony by a master or commissioner is, in the light of the purpose and object of the proceeding, the equivalent of the judge’s own exercise of the function of the trier of the facts.” (313 U.S. at 351-352, 61 S.Ct. at 1018).
By virtue of Holiday, the conduct of habeas corpus hearings by United States Commissioners became a dead issue.
Subsequently, however, Congress modified the habeas corpus statute so to provide that “[t]he court shall summarily hear and determine the facts, and dispose of the matter as law and justice require”, rather than “[t]he court, or justice or judge, shall proceed in a summary way to determine the facts of the case . . . ” as was formerly provided. 28 U.S.C. § 2243 (1971). (Emphasis added.) The same judicial district involved in this case, the Western District of Kentucky, interpreted this modification of the habeas corpus statute as a new authorization by Congress to have officers other than United States Judges, hold habeas corpus evidentiary hearings.
In Payne v. Wingo, 442 F.2d 1192 (6th Cir. 1971), we squarely rejected this interpretation. We stated therein:
“When Congress retained the reference to the ‘court’ in the new statute, it must have meant to retain the meaning that the Supreme Court gave that word in the preceding statute. Assuming, without deciding that Congress could have constitutionally changed the result of Holiday by a specific provision in Section 2243, it is evident that Congress chose not to do so. We are not at liberty to disturb that decision.
* -X- -X- * -X- *
“We realize that our decision in this case does not help alleviate the tremendous and increasing burden which the expanding number of habeas corpus petitions places on United States District Judges. Nevertheless, we must be ever mindful of the fundamental role that habeas corpus plays in our judicial system. Without a clear mandate from Congress, we cannot presume, that that body would entrust a vital and often conclusive part of habeas corpus to an official, like a Special Master, who lacks the independence and authority of the federal judiciary.” (Footnotes omitted) (442 F.2d at 1194-1195).
It is within this context that the interpretation placed upon 28 U.S.C. § 636(b) (1973 Supp.) by the Western Disti’ict of Kentucky must be analyzed.
The respondent implicitly concedes that authorization for Magistrates to hold evidentiary hearings on habeas corpus petitions is not found in subpart (3) of 28 U.S.C. § 636(b) (1973 Supp.) That section clearly limits the duties of a Magistrate to a review of habeas corpus applications “to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.” (Emphasis added.) 28 U.S.C. § 636(b)(3) (1973 Supp.) Respondent’s construction actually conflicts with the plain language of this subsection.
However, respondent relies upon language immediately preceding subpart (3) of Section 636(b) for authorization of evidentiary hearings by Magistrates. In introducing the explicitly granted powers of United States Magistrates, Congress stated:
“The additional duties authorized by rule [of a judicial district] include, but are not limited to— . . . . ” (Emphasis added) 28 U.S.C. § 636(b) (1973 Supp.).
From this language respondent deduces that Congress invested in extra-judicial officials trial powers which it had for so many years withheld. The inaccuracy of this deduction is manifest.
If Congress intended such a sweeping and far-reaching result certainly it would have indicated this clearly and positively within the body of the Magistrates Act of 1968. Cf., Buckeye Power, Inc. v. Environmental Protection Agency, 481 F.2d 162 at 168 (6th Cir. 1973).
More important, such an interpretation runs directly counter to the well-established doctrine of statutory construction denominated ejusdem generis. This doctrine directs that a general provision of a statute will be controlled and limited by subsequent statutory language more specific in scope. The Supreme Court in Foureo Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228-229, 77 S.Ct. 787, 791-792, 1 L.Ed.2d 786 (1957), articulated the rule as follows:
“[T]he law is settled that ‘However inclusive may be the general language of a statute, it “will not be held to apply to a matter specifically dealt with in another part of the same enactment. * * * Specific terms prevail over the general in the same or another statute which otherwise might be controlling.” Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, [52 S.Ct. 322, 323, 76 L.Ed. 704].’ MacEvoy Co. v. United States, 322 U.S. 102, 107 [64 S.Ct. 890, 894, 88 L.Ed. 1163].”
Therefore, although the Magistrates Act of 1968 provides that Magistrates are “not restricted to” the three powers explicitly outlined in the Act, by virtue of ejusdem generis those three powers are exclusive on the topics which they cover. Accordingly, insofar as habeas corpus is concerned, Magistrates have only the power to assist the District Judge in determining “whether there should be a hearing.” 28 U.S.C. § 636(b)(3) (1973 Supp.).
The legislative history of Section 636(b) of 28 U.S.C. supports this proposition. The original draft of the subsection in the Senate Bill provided that the Magistrate could give:
U
(3) preliminary consideration of applications for post-trial relief made by individuals convicted of criminal offenses.”
The Judicial Conference of the United States in September, 1966, sent to the Senate a report of its Committee on Criminal Law, which report it had adopted, and which stated as to Section 636(b):’
“The Committee is of the opinion that the enumeration of duties in Section 636(b) as now worded presents a delegation which is so broad in scope and so general as to make this subsection vulnerable to possible constitutional attack . . . .” (Hearings on S.3475 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary. 89th Cong., 2d Sess. (1966) at 241 n.)
In order to foreclose a broad interpretation of Section 636(b)(3) which would make it vulnerable to constitutional attack, the original Bill was amended and the phrase, “preliminary consideration of applications for post-trial relief” in the Bill was narrowed to “preliminary review” of the applications and the power and authority of the Magistrate was restricted to “submission of a report and recommendations to facilitate the decision of the district judge” only as to “whether there should be a hearing.” It was in this amended and narrowed form that the Act was passed by Congress.
Contemplating the possibility that this Court might reject its argument that a Magistrate has the power to conduct evi-dentiary hearings for habeas corpus, the respondent advances a second, alternative argument in support of the proceedings below. In its brief, respondent states:
“In the instant case, the testimony of the evidentiary hearing was electronically sound recorded. This enabled the Federal Judge to hear the testimony and give it de novo consideration as the petitioner, in this case, requested.
“The Federal Judge in this ease made an independent determination and accepted the proposed findings of fact and conclusions of law of the • magistrate as his own. The critical factor is this, the ultimate decision was made by the District Judge, not by the magistrate.”
To the extent that the respondent argues that the petitioner was given an evidentiary hearing “before a district judge” because he (the Judge) thereafter listened to a sound recording of the hearing before the Magistrate, we are not persuaded. With equal propriety it could be argued that any civil case could be heard by a Magistrate and the Judge could later decide the case by listening to the sound recording. The Magistrate would indeed become an Assistant Judge.
Rule 52(a) of the Federal Rules of Civil Procedure provides that a District Judge, sitting without a jury, is to make findings of fact and that these findings are not to be set aside by an appellate court unless they are clearly erroneous. The principle which underlies this rule was expressed by the Supreme Court in United States v. Yellow Cab Co., 338 U.S. 338, 341, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949), as follows:
“Findings as to the design, motive and intent with which men act depend peculiarly upon the credit given to witnesses by those who see and hear them.” (Emphasis added).
Deference is given to the factual findings of a trial judge because he has seen and observed the demeanor of the witnesses and their “[ojutward manner or comportment.” Webster’s New International Dictionary (2d ed. 1956). Listening to a sound recording of the testimony of a witness does not permit a Judge to see and observe the demeanor of witnesses and make credibility determinations therefrom.
Furthermore, it must be noted that an essential ingredient of a hearing before a Judge without a jury is the opportunity afforded to the Judge for questioning of witnesses. By his questioning of witnesses the Judge can clarify matters of evidence which are unclear; he can rule on objections made by the parties; and in the interest of justice he can make sure that both parties have had a fair hearing. By seeing and hearing the witnesses he will be in a much better position to make credibility determinations. Needless to say, the District Judge in this case could not ask questions of the sound recording. In our opinion, Wedding had the right to have his case heard by an Article III Judge.
In sum, petitioner did not have a hearing before a District Judge, either in form or in substance, as we ordered in our mandate.
In regard to the entire posture of this case, a recent admonition of this Court should be borne in mind. In Ingram v. Richardson, 471 F.2d 1268 (6th Cir. 1972), we stated:
“Crowded court calendars may be a problem in the United States District Court for the Eastern District of Kentucky. Reference of cases to Magistrates, however, is not the proper solution of the problem. . . . [T]he problem of a crowded docket must not be allowed to close the door to a litigant who has a statutory right of review by a court.” (Emphasis added). (471 F.2d at 1271).
We vacate the judgment of dismissal and remand the case with instructions that the Court itself hold an evidentiary hearing on petitioner’s constitutional claims.
In so doing, we are impelled to note that the phonographic record of the evidentiary hearing was made a part of the record to this Court, apparently in lieu of a transcript. Such procedure was unauthorized. It renders impossible a review by this Court of the record without listening to the sound recording, and it contravenes Rule 10 of the Federal Rules of Appellate Procedure and Rule 10 of this Court.
Vacated and remanded.
. Because the Magistrates Act of 1968 cannot be interpreted to permit the adopted by the Western District of Kentucky, we need not decide whether it would be permissible constitutionally for Congress to invest power to hold habeas corpus hearings — 4n an official who is outside the pale of Article III of the Constitution. See, however, TPO, Inc. v. McMillen, 460 F.2d 348, 352-354 (7th Cir. 1972).
. It would appear to us that it would take about the same amount of time for the District Judge to listen to the recording as it would require for him to preside at the evi-dentiary hearing.
. In the Fifth, Second and First Circuits, habeas corpus cases have been referred to Magistrates for an evidentiary hearing, or the practice suggested in a remand of a Selective Service case. Gonzalez v. Zelker, 477 F.2d 797 (2d Cir. 1973) ; Johnson v. Wainwright, 456 F.2d 1200 (5th Cir. 1972) ; Parnell v. Wainwright, 464 F.2d 735 (5th Cir. 1972) ; United States v. King, 455 F.2d 345 (1st Cir. 1972). It appears from a reading of the opinions in these cases that no question as to the legality of reference was raised or passed upon by the Courts.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Alan Eugene REED, Appellant, v. UNITED STATES of America, Appellee.
No. 9107.
United States Court of Appeals Tenth Circuit.
May 23, 1967.
Martin C. Crawn, Kansas City, Kan., for appellant.
Newell A. George, Kansas City, Kan. (Benjamin E. Franklin, Kansas City, Kan., with him on brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and HICKEY, Circuit Judges.
MURRAH, Chief Judge.
Appellant, Alan Eugene Reed, and his co-defendant, ■ Ivan Daniel Neighbors, who has not appealed, were convicted by a jury on an information charging them with wilful and malicious murder upon United States lands in violation of 18 U.S.C. §§ 1111-1112. Appellant’s motion for new trial was denied, and he was sentenced to sixty years imprisonment.
On this appeal Reed has asserted three grounds of error: (1) insufficiency of the evidence to support a conviction;
(2) admittance into evidence of a knife purported to be the murder weapon; and
(3) failure to show a motive for committing the crime.
The Government’s case is concededly based upon circumstantial evidence — -there was no eye witness to the murder. But, even so, the Government’s case may very well be based upon circumstantial evidence. We view such evidence only to determine whether, believing the Government’s proof and disbelieving the defendant’s countervailing proof, the jury was justified in finding beyond a reasonable doubt that the defendant was guilty of the offense charged. See Jordan v. United States, 10 Cir., 370 F.2d 126; Williams v. United States, 10 Cir., 368 F.2d 972, 975; Real v. United States, 10 Cir., 326 F.2d 441, and cases cited.
The evidence tending to support the Government’s case reflects that Reed and Neighbors, both inmates at the Federal Penitentiary in Leavenworth, Kansas, had been friends for many years and were “fall partners”, i.e. they had been convicted of the same crime and were serving identical sentences; that since their confinement at Leavenworth, they had been constant companions even though Neighbors lived in cellhouse B while Reed lived in cellhouse C. On October 29, 1965, Grady Armstrong, a prisoner in B cellhouse, died of cut and stab wounds inflicted upon him in his cell. Sixteen witnesses testified to the circumstances relating to the crime, but we need narrate only that testimony which seems critical to the Government’s case.
An inmate of cellhouse B testified for the Government to the effect that on or about October 26, 1965, Armstrong was lying in his cell on the fourth gallery when there was “some loud noise” on the first floor; that he came out of his cell, leaned out and yelled down to Neighbors on the first floor “something about keep quiet, and they had a little exchange of words” in which “Somebody referred to somebody as a punk; I don’t remember which one.” He also testified that two or three days later on October 29 at about 5:00 p.m. he was going up the stairway from the third gallery to the fourth when he heard a scream; that when he reached the fourth gallery, he stepped back into the “cutoff”, i.e. the opening between the two ends of the cell block”, and saw two men running, one - of whom was Neighbors and the other he could not identify; that the men ran down the steps and out the side doorway toward the yard; and that an officer pursued them down the stairs to the door where he stopped before running out into the yard.
Officer Stauffer testified as the Government’s chief witness to the effect that on the day of the murder he was patrolling the third, fourth and fifth galleries in cellhouse B during the evening mealtime ; that at approximately 5:00 p.m. he had made his round of the fourth gallery and had noticed Armstrong lying in his cell “supposedly asleep” with a towel over his forehead; that he continued his patrol on the fifth gallery, came back down the stairs and was at the corner of the fourth gallery when he heard a man scream; that as he turned the corner he saw two inmates, whom he later identified as Reed and Neighbors, emerging from a cell with a third immediately behind them “clutching his chest with blood coming out from the wounds he had received prior * * * to me coming to the fourth gallery”; that the other two inmates looked his way, hesitated for a moment and “left”; that he pursued them (past the deceased who had fallen to the floor) down the stairs, through the center part of the cellhouse and saw them run through the door to the yard; that he could see one of the inmates still running, and as he approached the open door “I saw an inmate waiting there for me with a knife”; that “I looked at his face and realized the situation and I looked at the knife and it still had blood on it. I immediately backed up and this man then started to run down a walkway”; that when he disappeared from sight he was running in the direction of the auditorium of the Protestant Chapel. Another officer testified that about the same time he also saw “someone running” in the direction of the auditorium. (On trial Stauffer identified the inmate with the knife as appellant Reed.) Stauffer testified further that by this time the other inmate had slowed to a walk; that he hailed another officer and they pursued the man and took him. into custody. (On trial he identified this inmate as Neighbors.) He testified that Neighbors was left in the custody of the other officer while he returned to the cell-house, placed Armstrong on a stretcher and turned him over to some other officers who took him to the hospital. About an hour and a half later, Reed was taken into custody and Stauffer identified him as one of the men he had pursued.
A patient on the second floor of the prison hospital, directly across from the auditorium, testified that he was “sitting by the window on the bed, looking out the window, I heard a scream coming from the direction of B cellhouse. * * * I saw a man run over here [indicating on a scale model of the prison] where there are some bushes, D cellhouse, stop and cast a glittering object upon the auditorium of the Protestant chapel and the man stepped around the corner and went into D cellhouse.” Another prison officer testified that on the day after the murder he “picked up a knife on the roof of the auditorium building”, wrapped it in a handkerchief and “turned it in to the captain’s office”; that two days later he returned to the captain’s office, identified the weapon he had found, put his initials on it with an electric needle for identification purposes and placed it in a large brown envelope. When shown the knife as a Government exhibit, he testified that it was the same knife he had found and that it was in substantially the same condition as when he found it. When Stauffer was shown the knife as a Government exhibit, he stated that “This knife resembles very closely the knife that was pulled on me at the north door [to cellhouse B].” Another Government witness (an F.B.I. agent) testified that the knife exhibit had been subjected to laboratory tests and was found to have human blood on it.
The crux of appellant’s argument is that the evidence is critically inconsistent and insufficient and, therefore, does not justify a verdict of guilty. He points out that only one of the Government’s sixteen witnesses could identify Reed and relies upon the countervailing evidence tending to show an alibi. He also suggests the total lack of evidence of motive, but at the same time concedes that it is not essential to the Government’s case. And see Pointer v. United States, 151 U.S. 396, 414, 14 S.Ct. 410, 38 L.Ed. 208. We think the circumstantial evidence entirely sufficient to justify the verdict of the jury.
Reed attacks the ruling of the court admitting the knife into evidence contending that no proper foundation was laid. The law applicable to admissibility of physical exhibits is clearly stated in Brewer v. United States, 8 Cir., 353 F.2d 260, to the effect that if, upon consideration of the nature of the article, the circumstances surrounding the preservation and custody of it and the likelihood of intermeddlers tampering with it, the trial judge deems the article to be in substantially the same condition as when the crime was committed, he may admit it into evidence, and his determination “that the showing as to identification and nature * * * is sufficient to warrant reception of an article in evidence may not be overturned except for a clear abuse of discretion.” Id., 262, quoting and citing Gallego v. United States, 9 Cir., 276 F.2d 914, 917; see also West v. United States, 8 Cir., 359 F.2d 50, 55. We find no such abuse here.
There was testimony by the officer who found the knife, by the prison custodian and by the F.B.I. agent who had run laboratory tests on the knife tending to establish its proper care and preservation in the interim between its discovery and the trial. These witnesses further testified that when it was offered in evidence it was in the same condition as when it was found and examined.
With typical care and solicitude Judge Stanley heard argument out of the presence of the jury on the objections to the knife’s admissibility. In ruling on the evidence he noted there were some minor inconsistencies in the testimony, but then stated that “ * * * all of this, I think, goes to the weight of the evidence rather than to its admissibility.” We think the knife was properly received in evidence.
The judgment is affirmed.
. Cellhouse B is composed of five galleries or floors consisting of individual or double cells running the length of the cellhouse. The stairway is in the center of the building with a cutout or walkway from either side of the stairs to each gallery.
. During mealtimes, the North door from the cellhouse to the yard is open. The inmates are allowed to go down by galleries to eat their meals, to stay in the yard for awhile and to come back through the North door.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the 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".
Emil STEIN et al., Appellants, v. Preston DELANO, Comptroller of the Currency, et al.
No. 8013.
Circuit Court of Appeals, Third Circuit.
Argued July 8, 1942.
Decided July 17, 1942.
Saul J. Zucker, Newark, N. J. (Kristeller & Zucker, of Newark, N. J., on the brief), for appellants.
Robert F. Darby, Newark, N. J. (J. H. Harrison, of Newark, N. J., on the brief), for appellees.
Before BIGGS, MARIS, and GOODRICH, Circuit Judges.
PER CURIAM.
Upon the authority of the principle of law laid down in the cases of Hobbs v. McLean, 117 U.S. 567, 6 S.Ct. 870, 29 L.Ed. 940, and First National Bank of Atlanta v. Southern Cotton Oil Co., 5 Cir., 86 F.2d 33, the order of the district court, 46 F.Supp. 873, is 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_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".
ANDERSON-TULLY CO. et al. v. CHICAGO MILL & LUMBER CO.
No. 13877.
United States Court of Appeals Eighth Circuit.
June 17, 1949.
Lamar Williamson, Monticello, Ark. (Williamson & Williamson, Monticello, Ark., were with him on the brief), for appellants. ,
C. E. Daggett, Marianna, Ark. (Daggett & Daggett, Marianna, Ark., were with him on the brief), for appellee.
Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.
WOODROUGH, Circuit Judge.
This appeal is taken to reverse a judgment entered in an action to quiet title to certain wild, unenclosed, unimproved land suitable only for growing timber, in Lee County, Arkansas. The judgment dismissed the plaintiff’s action and quieted the title in the defendant as against all claims of the plaintiff.
The case was tried to the court without a jury under- a stipulation of facts in which the parties agreed that it should “constitute all the evidence upon which the court will adjudicate the issues presented by the pleadings’’ and it appears that the controversy involves conflicting claims of ownership to an identified “area in controversy”, based on purchases of tax titles and payments of taxes and that the rights of the parties are governed by the law of Arkansas. The matter for determination on the appeal is whether or not the trial court reached and declared a permissible conclusion as to the applicable law of Arkansas.
The stipulation of facts is lengthy and the findings of the court thereon are appended, but it suffices for the purpose of this opinion to state that appellee owns the NE^ of Section 19, Township 1 North, Range 6 East, in Lee County, Arkansas, a part of which was riparian to the Mississippi river in about 1891 and the “area in controversy” in the action (fully identified by metes and bounds in the judgment) is land which has, since about 1891, been added to appellee’s riparian land by accretion. The appellee paid taxes on its said riparian NE% of Section 19 for nine consecutive years prior to the commencement of this action, and its predecessors in title ■paid taxes on it for more than 15 consecutive years. None of the payments or receipts therefor mentioned the accretions to the land and the receipts referred to the quarter section description for which taxes were paid as containing 160 acres. But under Arkansas law accretions belong to the owner of the riparian land to which they are added and they pass by conveyance describing said land without being further described or mentioned. Also generally the payment of taxes there upon descriptions of riparian land constitutes payment upon the accretions thereto and recitals in conveyances or tax receipts as to the amount of the acreage do not affect the results. Bush, Receiver v. Alexander, 134 Ark. 307, 203 S.W. 1028; Wallace v. Driver, 61 Ark. 429, 33 S.W. 641, 31 L.R.A. 317; Doebbeling v. Hall, 310 Mo. 204, 274 S.W. 1049, 41 A.L.R. 382, 389, Annotation; Towell v. Etter, 69 Ark. 34, 59 S.W. 1096, 63 S.W. 53; Crill v. Hudson, 71 Ark. 390, 74 S.W. 299; Mobbs v. Burrow, 112 Ark. 134, 165 S.W. 269; Plant v. Sanders, 209 Ark. 108, 189 S.W.2d 720; Sanders v. Plant, 211 Ark. 913, 204 S.W.2d 323. There is no slightest doubt that the sovereign state had full power to tax the accretions as soon as they appeared and as they expanded, but its policy to preserve the right of the riparian owner is manifest in its acceptance of his tax payments on his original holding as and for payment on such holding with accretions. So that under Arkansas law the ap-pellee was the owner of the NE]4= of Section 19 with all accretion thereto (which is the area in controversy in the action) unless there was proof to establish that appellants own it.
The appellants have a tax title to, and for the 24 years preceding the filing of this action have themselves or through predecessors in interest paid taxes on a description “Frl Section 17, Township 1 North, Range 6 East, in Lee County, Arkansas” and it is shown that that description appeared in the government survey of 1824 and there identified land in place then situated in the same geographical position now occupied by the accretions to appellee’s land referred to as the area in controversy in this action. Appellants rely upon that tax title and tax payments.
But prior to' about 1891 the Frl Section 17 marked on the old survey was washed away by the river and was covered by the deep channel. The description ceased to identify any land in place which was subject to individual ownership or use. As the new land was thereafter formed by the accretions and was added to the riparian ownership, that is, to appellee’s ownership, the description of the riparian land included the accretion and as the Arkansas court put it, “All original lines [implied in the old original description] ceased to exist.” Wallace v. Driver, 61 Ark. 429, loc.cit. 423, 33 S.W. 641, 642, 31 L.R.A. 317. In that situation this court held, in Chicago Mill & Lumber v. Tully, 8 Cir., 130 F.2d 268, that in paying taxes on an obsolete description analogous to “Frl Section 17” of the old survey which had ceased to define land in place subject to private ownership and use did not operate to deprive the.riparian owner of the accretions to his riparian land.
The ancient survey was not obsolete in the sense that it failed to identify a geographical situs. It marked the geographical location so that anyone could identify it as such. But it did not serve to connect the situs with ownership and that is the purpose of a land survey. As was pointed out by the Arkansas Supreme Court in Bracken v. Henson, 211 Ark. 572, 201 S.W.2d 580, 582, in discussing the survey necessary to identify an accretion severed from the mainland to which it has been added, “a survey is invalid which ignores the boundaries as defined in the title papers of the property owners. * * * The surveyor has no right or authority to ignore the existing boundary lines. On the contrary, it is his duty to make a survey conforming to the boundary lines and to make and have recorded a plat showing the survey thereof.” The gradual changes in the river change the boundary lines of riparian owners and a proper survey must take those changes into account.
The questions we were required to consider and determine in the Chicago Mill & Lumber case may not be distinguished from those controlling here, and we there had the benefit of the learning and research of the same peculiarly qualified counsel who appear and have filed some 200 pages of briefs on this appeal. There the plaintiff had acquired tax title and had paid taxes upon descriptions of land that had been washed away 'by the Mississippi river. The area in controversy in the lawsuit had been thereafter formed by accretion to riparian land belonging to defendants. The defendants had long paid the taxes upon the riparian lands and owned the accretions unless divested by the plaintiffs’ action. The master appointed by the trial court and the trial court concluded that under Arkansas law the defendants had not been deprived of their accretions. We affirmed the judgment.
The appellants here contend that the Arkansas law was not rightly declared in that case and argue (1) that the later decision of this court in Anderson-Tully Co. v. Mur-phree, 8 Cir., 153 F.2d 874, overrules it; (2) that our decision in Chicago Mill & Lumber overlooked certain Arkansas cases which are controlling and compel contrary decision, and (3) that the Arkansas Supreme Court has since handed down decisions contrary to our decision in the Chicago Mill & Lumber case.
(1) It is true that Anderson-Tully v. Murphree compelled our consideration of many of the same Arkansas cases that had been studied in Chicago Mill & Lumber Co. v. Tally, and the review shows that the vagaries of the Mississippi river have made it difficult for Arkansas to carry out her two clearly manifested purposes of preserving accretions in private ownership to riparian owners and of assessing and collecting from taxpayers and tax buyers all the land taxes she is entitled to. The legislative and judicial actions equally reflect the difficulties of the problem. In Chicago Mill & Lumber v. Tully, the riparian owner was awarded the accretions and the claims of the lumber company based on its tax payments and purchase of tax title were denied. In the Murphree case, the area in controversy was found not to be accretion but was island information that reappeared within the boundaries of the former owner. It was preserved to such owners by their tax payments upon their original holding under the special statutory provisions which we found to be applicable. The provisions preserved and restored the ancient descriptions and there were no riparian rights to accretions involved. We do not find our decisions in the two cases to be in conflict or that Murphree decision overruled Chicago Mill & Lumber Co.
(2) Our decision in Chicago Mill & Lumber Co. does not discuss Buckner v. Sugg, 79 Ark. 442, 96 S.W. 184, Maney v. Den-nison, 110 Ark. 571, 163 S.W. 783, or Wells v. Rock Island Improvement Co., 110 Ark. 534, 162 S.W. 572, now asserted by appellants to be controlling as to the Arkansas law and in conflict with our declaration of it. But we did consider the first two of those cases in the Murphree case, discerning in them no reason to overrule our decision in Chicago Mill & Lumber, and counsel for appellee herein has now supplied us with even more complete analysis of them which tends to support his position here.
It appears as to the Buckner case that the area there in controversy had not had the status of originally surveyed land in private ownership under legal description like Frl Section 17 of the original governmental survey here involved. It had not been lost to its original owner by being washed away and having the channel of the river located over it and then having new land form on the geographical situs by accretion to riparian ownership. It had emerged from a lake bed where it had not been subject to private ownership. After it emerged it was surveyed and became popularly known by appropriate designation given to it by the surveyor extending the existing survey and was so taxed. The court answering the contention that a decree of tax foreclosure through which Buckner claimed was void because the description employed was defective in that a section 12 of the extended survey therein used had never been govern-mentally surveyed and therefore did not legally exist, said [79 Ark. 442, 96 S.W. 186] : “The controlling question in this case, therefore, is whether a description otherwise than by reference to plats of the original public survey or to other recorded plats properly identifying the tracts or lots of land, can be aided by extrinsic evidence of facts which serve to connect the description with the particular tract or lot sought to be charged. * * * We think that the description was, when aided by evidence, that the land has been surveyed, and is popularly known and designated thereby, sufficient to form the basis of a valid assessment and sale for levee taxes.” Buckner v. Sugg does not require overruling the Chicago Mill and Lumber decision.
In Maney v. Dennison, Dennison sued to eject Maney from land which Dennison claimed to own under tax title and as accretion to adjoining land owned by him. Maney had no paper title but claimed title by adverse possession. The court found the land in controversy to be accretion added to land conveyed to Dennison and that his tax title describing the land as it was popularly known was also prima facie evidence of Dennison’s ownership. It found that Maney had not adduced sufficient evidence of adverse possession for the statutory period to justify submission of his claim to the jury. The question whether a riparian owner had been divested of his accretions through tax sale under description of land entirely washed away was not involved. Wells v. Rock Island Improvement Co. does not throw light on this case.
(3) The decisions handed down by the Supreme Court of Arkansas since Chicago Mill & Lumber Company which appellants assert to'be in conflict with our decision are Sanders v. Plant, 211 Ark. 913, 204 S.W.2d 323, decided June 23, 1947; and Burbridge v. Bradley Lumber Company, 215 S.W.2d 710, decided November 22, 1948.
As to the Plant case (which is one of two decisions of the Arkansas court settling many controversies between Sanders and Plant), it appears that the court found a description [211 Ark. 913, 204 S.W.2d 325] “accretions in section 20, 60 acres” under which land was sold at tax' sale to be void for uncertainty because it appeared that the area in controversy included accretions formed upon two different quarter sections and there had been a severance of the respective accretions from each of the riparian quarter sections. The court reiterated the law of Arkansas as it had been recognized by this court, that “a conveyance carries all of the riparian rights of the land conveyed * * * and a separate conveyance of riparian rights is unnecessary * * *” (1 syl.) and the decision implies, as we held, that the same principle controls as to tax payments and tax sales and titles. But in the cited Plant case the Supreme Court had before it an instance where the riparian owner of land and accretion to it had caused a severance to be made between her riparian land and the accretion as authorized by Arkansas statute and had secured a proper description of the accretion as a separate unit of land so that it could be identified for tax assessments and other purposes by reference to a plat of the survey she had caused to be made and which became a public record. Referring to that situation, there was added to the declaration of law we have quoted above, the following: “unless there has been a severance of the riparian rights from the land conveyed”. (1 syl.) The cited Plant case does not conflict with the Chicago Mill & Lumber Co. decision and we are unable to discern any conflict upon study of the’ learned and comprehensive majority and minority opinions in Burbridge v. Bradley Lumber Co.
The last mentioned opinions do bring forcibly home to us that Arkansas tax title law evolved from a vast amount of the hard work of learned and able men reflected in a large number of Arkansas decisions. But in the Chicago Mill & Lumber case and in this case the judgments appealed from were entered by judges also learned in Arkansas law. Judge Lemley correctly stated in his conclusions in the instant case that the facts bring it within the controlling facts in Chicago Mill & Lumber Co. v. Tully, and that the Supreme Court of Arkansas had not passed upon the questions involved here since decision in that case was rendered. In the performance of our limited function on this appeal, we conclude that the trial court reached and applied permissible conclusions as to the law of Arkansas not in conflict with controlling Arkansas statutes or decisions. Its judgment is therefore affirmed.
“I. Defendant, Chicago Mill and Lumber Company is the owner of the record title to the area originally surveyed in 1824 described as the Northeast Quarter (NE%) of Section 19, Township 1 North, Range 6 East, in Lee County, Arkansas. Said record title is deraigned by mesne conveyances recited in subdivision 5 of the stipulation, and. is based on early forfeitures for the non-payment of taxes and a Clerk’s tax deed, the validity of which is not questioned.
“II. (a) At the time of the original Government land survey in 1824, the Northeast Quarter (NE14) of Section 19 was original land. As then surveyed and platted, it contained 169 acres, and no part of it was riparian to the Mississippi River.
“(b) Subsequently, and prior to 1891, the Mississippi River eroded Southwest-wardly into said Northeast Quarter (NE 14) of Section 19 and had thereby destroyed a triangular portion of it, making it riparian to the River, as shown on “Exhibit C.”
“(c) About 1891, the River reversed its lateral movement and by gradual erosion moved Northeastwardly, as a result of which that portion of the Northeast Quarter (NE14) of said Section 19 which had been destroyed by -erosion was reformed by accretion and so.restored to its original acreage; as the River continued its Northeastward lateral move'ment, the entire ‘area in controversy’ was formed as accretions to said Northeast Quarter (NE%) of Section 19, as is recited in subdivisions 3 and 4 of the stipulation.
“III. It is not shown exactly when the Northeast Quarter (NE14) of Section 19 was restored to its original acreage by accretion, but:
“(a) By its decree in 1895, the Chancery Court of Lee County, Arkansas, in confirming the title of the St. Francis Levee District, as authorized by Act C of the General Assembly of the State of Arkansas, March 29, 1893, recited that the Northeast Quarter (NEJ4) of said Section 19 contained 160 acres.
“(b) When the St. Francis Levee District conveyed this description in 1899, its deed recited that the Northeast Quarter (NE14) of Section 19 then contained 160 acres.
“(c) By 1904 the accretions to said Northeast Quarter (NE%) of Section 19 had moved far beyond the original boundaries of Section 19 and had reformed a large portion of the area originally surveyed by the United States, in 1824, as Section 17, Township 1 North, Range 6 East.
“It is, therefore, safe to assume that nine years after the River began its Northeastward lateral movement from the line of ‘Maximum Recession’; and then the taxes were assessed against the Northeast Quarter (NE^) of Section 19 for the year 1900, and when the Clerk’s tax deed conveyed that description in 1903 (the validity of which con-veyanee is not questioned), the entire 160 acres was land in place.
“IV. Defendant, Chicago Mill and Lumber Oompany, and its predecessors in title, paid taxes in the form and manner set forth in Paragraphs 6(a), (b), (c), (d), (e), (f), (g) and (h) of the stipulation.
“V. As stipulated in Paragraph 7(a), ‘the Northeast Quarter (NE%) of Section 19, and all of the ‘area in controversy’ which formed by way of accretions on the area originally surveyed as Section 17, 18 and 20, as shown on ‘Exhibit B’, is now and always has been wild, uninclosed, unimproved land, suitable only for growing timber’.
VI. (a) Plaintiffs, B. C. Tully and Anderson-Tully Oompany, are the owners of the record title to the entire area originally surveyed in 1824 as 457.33 acres, described as ‘All of Fractional Section 17, Township 1 North, Range 6 East, in Lee County, Arkansas,’
“(b) Its record title is deraigned by the mesne conveyances recited in subdivision 8 of the stipulation.
“VII. (a) At the lime of the original Government land survey in 1824, Fractional Section 17 was riparian to the Mississippi River and was surveyed as then containing 457.33 acres.
“(b) But, prior to 1891, the Mississippi River had eroded Southeastwardly into the Northeast Quarter (NE%) of Section 19, thereby completely destroying all of Fractional Section 17, as originally surveyed in 1824.
“(c) About 1891 the River reversed its lateral movement, moved Northeast-wardly, and as the result thereof, the entire ‘area in controversy’ was formed as accretions and new-made land, as recited in subdivisions 3 and 4 of the stipulation.
“VIII. (a) Plaintiffs have continuously and consecutively paid all taxes assessed against ‘All of fractional Section 17’ for the years 1922 to 1945, inclusive, as shown by stipulation 9(a) and 9(b).
“IX. All of the area which comprised Fractional Section 17, as originally surveyed, and all of the ‘area in controversy,’ is now, and always has been, wild unin-closed, unimproved land.
“X. The ‘area in controversy’’ is properly shown in green color on ‘Exhibit B’ and is easily described correctly by metes and bounds.
“XI. If the area shown on M. R. O. Chart 25, 1913-15, (“Exhibit D”), which has been formed as accretions to the riparian shore line of 1891 (as it ran through Sections 18, 19 and 20 in said year) during the interim between the years 1891 and 1913, had then been apportioned according to Arkansas law, that portion of it apportionable to the Northeast Quarter (NE%) of Section 19 would have, in 1913, been bounded by North and South lines, as shown on ‘Exhibit B’ and as described in stipulation, Paragraph 3(1), extended to the bank of the Mississippi River as it ran in 1913. (See Exhibit “D”).
“XII. The approximate top Bank and Timber Line of the Mississippi River in October, 1904, is correctly shown by the broken blue lines as designated on Exhibit ‘O’; and is also the Bar Line of that date by the solid blue line on Exhibit ‘C’. (See stipulation, paragraphs 11(e) and 11(b).)”
Said Frl Section 17 does not coincide geographically with the “area in controversy" but includes it.
The other being Plant v. Sanders, 209 Ark. 108, 189 S.W.2d 720.
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:
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songer_casetyp1_7-3-4
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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 - bankruptcy, antitrust, securities".
ELBRO KNITTING MILLS v. SCHWARTZ.
Circuit Court of Appeals, Sixth Circuit.
January 18, 1929.
No. 5123.
Arthur E. Fixel, of Detroit, Mich. (Fixel & Fixel, of Detroit, Mich., on the brief), for appellant.
Irwin I. Cohn, of Detroit, Mich., for appellee.
Before DENISON, MOORMAN, and HICKS, Circuit Judges.
HICKS, Circuit Judge.
Max Gross-berg was adjudged bankrupt June 1, 1927. His estate passed into the hands of Schwartz, trustee in bankruptcy. On April 26 ,and April 28, 1927; Elbro Knitting Mills sold Grosberg certain bathing suits, valued at the cost of $211.50. Before Grosberg’s estate passed into the hands of his trustee, Schwartz, there was a receiver’s sale, and these bathing suits were sold thereat, but with the understanding that the proceeds thereof were to be held in place of the merchandise. On December 1, 1927, Elbro Knitting Mills, hereinafter called petitioner, filed its amended petition, seeking to recover from thé trustee the value of the property. The trustee resisted, and the petition was denied. The order denying the petition simply recites that, the petition “not having been sustained, the same is hereby denied.” Petitioner sought review, and the order of the referee was confirmed. In his certificate to the judge (General Order XXVTI), the referee undertakes to set out in detail the grounds upon which his general order of dismissal was based. Assuming that the referee could thus supplement the dismissal order and that we have here a eoneurrrent finding of the referee'and judge, we do not regard ourselves strongly bound thereby, because the finding substantially embodies a deduction from facts some of which are in the record by stipulation and none of which are seriously disputed rather than conclusions upon conflicting evidence (Ohio Valley Bank v. Mack [C. C. A. 6] 163 F. 155, 158, 24 L. R. A. (N. S.) 184; Johnson v. Ellmers et al. [C. C. A. 6] 295 F. 685), and we are constrained to believe that an analysis of the evidence makes it clear to a moral certainty at least that the bankrupt, without intention or expectation of paying therefor, induced petitioner to part with his goods by concealing both his insolvency and his intention.
As to insolvency, on April 26 and 28, 1927, the date upon which he gave orders for petitioner’s merchandise: The official audit, admittedly true, shows that bankrupt’s inventory on January 1, 1927, was $12,107.58. Up to May 1st he purchased additional merchandise to the amount of $24,491.69. If he had sold no goods, he would have had on hand May 1st $36,599.27 worth of goods at cost. He had sold goods to the value of $14,417.82, leaving on hand $22,181.45, if he had sold at cost. But his indebtedness at that time for merchandise alone was $23,-313.59, leaving a balance against him of $1,-132.14, but his sales did not represent cost. If he sold these goods at all, and did not otherwise dispose of them, the sales were at a loss of sometimes as great as 50 per cent. In addition, he owed $1,760 in bank. Thirty days later he went into bankruptcy, with a total indebtedness of $28,514.19 and total assets of $15,589.65. He had failed for $12,-924.54 as per his books, but the formulas of bookkeeping are not alone to be relied upon to determine insolvency. There are other practical considerations.
The audit reveals the market value of Grosbcrg’s assets at $11,674.48, leaving a deficiency of $15,079.71 within about 30 days after the sale by petitioner. The financial condition at the time of bankruptcy is relevant evidence upon the question of solvency at any recent time prior thereto. Bailey v. Hornthal, 154 N. Y. 648, 49 N. E. 56, 61 Am. St. Rep. 645; Oppenhym & Sons v. Blake (C. C. A. 8) 157 F. 536. The failure for this large amount so soon after receipt of petitioner’s goods creates an inference of insolvency at that time. That Grosherg knew he was in failing circumstances from January 1, 1927, and that he was by March or April at least clearly insolvent, is demonstrated by the stipulation as Lo his testimony found in the record. We quote briefly therefrom:
“On the first day of each month my bookkeeper gave me a list of the people I owed money to.
“Up to January, 1927, I always discounted my bills. After that I no longer discounted the bulk of my bills.
“Creditors pressed me for their past due bills all through January, February, March and April, 1927. I gave many of them postdated cheeks. When the cheeks came due, I was not always able to meet them and when I needed money to pay these post-dated checks, I had to sell merchandise at less than cost. I would sell goods for whatever I could get and I would not let a customer go out. This was going on all through the months of February, March and April, 1927.
“Merchandise was being sold at a loss throughout this period, sometimes goods were sold at as great a loss as 50% oil! cost in order to realize money for the payment of bills and post-dated checks.
“The shrinkage in my business from January 1, 1927, to the date of bankruptcy, June 1, 1927, was due to the sale of merchandise for less than cost.”
Before the filing of the bankruptcy petition Grosberg told Mr. Morse “that I was busted.”
That Grosberg was concealing his condition from January 1,1927, is apparent. The last financial statement made by Grosberg to Dun & Co. was on February 28, 1926. Ho then listed his assets at $15,304.93, his liabilities at $5,959.53 and his net worth at $9,346.40. On February 24, 1927, Singleton, the agent of Dun & Co., called upon Grosberg for a financial statement. IIo did not make it; neither did he reveal that he had made an inventory as of January 1, 1927. He stated that an inventory would be taken ■about the end of March, 1927, and that a financial statement would be forthcoming about 30 days after that date, and that, in the absence of later papers, the former figures (those contained in the statement of February 28, 1926) were generally applicable. As a matter of fact, the figures contained in the statement of February 28, 1926, were not applicable on February 24, 1927. The official audit, which is admittedly correct, shows that on January 1, 1927, Grosberg’s assets were $14,206.12, bis liabilities were $9,590.62, and his surplus or net worth was $4,615.50, and beyond question his financial condition grew rapidly worse from then until bankruptcy.
Upon receipt of the order for the goods in question, petitioner applied to Dun & Co. for a report upon Grosberg’s rating, and received the report on April 28, 1927. This report contained, in substance, the financial statement made by Grosberg to Dun & Co. on February 28, 1926. This report based upon Grosberg’s statement to Singleton also stated, “when call was made at the former address on February 24,1927, subject (Grosberg) stated that inventory would be taken about the end of March, 1927, and that financial statement would be forthcoming about thirty days after that date. * * * The figures” (those contained in the statement on February 28, 1926) “were accepted as a fair showing of conditions at that time and in the absence of later are considered reflective to date.” Petitioner relied upon this statement which entitled Grosberg to a rating styled “G-3”; that is, from $5,000 to $10,-000 surplus, and shipped the goods. In addition, Grosberg promised Singleton that he would make financial statements both in April and May. He never did.
As to the matter of intention:
This was a Michigan contract, to bo governed by Michigan law. In Illinois Leather Co. v. Flynn, 108 Mich. 92, 65 N. W. 519, it is said:
“It is true, there is a class of cases in which it has been held that, where the natural effect of the acts of the party is to work a fraud against another, the absence of an intent to defraud is not a defense; but it is not a fraud per se for a purchaser of goods to fail to make payment, nor is it a fraud per se for a dealer to purchase goods, though insolvent, in the absence of any misrepresentation, and with the intention of paying for them; nor does the fact of a subsequent failure make the purchase fraudulent by relation. What constitutes fraud in such a ease is the purpose of the buyer not to pay for the goods. This is not determined by what purpose some other, less hopeful of success in his ventures, might, under like circumstances, have entertained; hut, to constitute the purchase fraudulent on this ground, there must have been an actual intent on the part of the purchaser to obtain the goods without paying for them.”
In Skinner v. Michigan Hoop Co., 119 Mich. 467, 78 N. W. 547, 75 Am. St. Rep. 413, the court’s charge as follows was approved :
“Where a buyer is insolvent at the time of making the contract of sale, or is in failing circumstances, and conceived the intention of not paying for the goods, or had no reasonable expectation that be could do so, and fraudulently concealed or misrepresented the facts, the sale may he rescinded by the seller, and the property recovered” — citing Belding Bros. & Co. v. Frankland, 8 Lea (76 Tenn.) 67, 41 Am. Rep. 630; Davis v. Stewart (C. C.) 8 F. 803, and Le Grande v. Bank, 81 Ala. 123,1 So. 460, 60 Am. Rep. 140. See, also, Weidman v. Phillips, 159 Mich. 380, 386,124 N. W. 40. Actual intent to defraud is seldom proven by positive testimony. It is more usually to he shown by circumstances or “badges” of fraud.
As indicating Grosb erg’s mental attitude, he incurred substantially all of his $26,754.-19 indebtedness after January 1,1927. During that period he increased the number of his creditors from 38 to 92. He made this large “overbuy” of merchandise when business “was very slow and bad,” and when he was unable to discount his bills and was issuing post-dated cheeks and when, rather than let a customer go, he would sell merchandise at any price offered either at or below cost. He not only failed to disclose the result of the January 1, 1927, inventory, hut he failed to issue new financial statements when the same were requested, and he made an affirmative false statement of his condition to the representative of Dun & Co. when he knew that his true condition was being sought as a basis for credit. As indicating his general intention, he made another states ment of his condition to Shetzer, a wholesale merchant, on April 20, 1927, as of January 1, 1927, in which he reported his liabilities at $6,900 for merchandise not due. He did not disclose that at the end of March he owed for merchandise alone $17,954.66, and that his debts were still accumulating.
As a circumstance touching petitioner’s claim, he procured an advanced dating for payment, and directed that the goods, which were for the most part bathing suits, be shipped by express, when there was no immediate demand for such goods at'that period. Grosb erg knew his financial condition, or at least must be held to have known it, for his books were properly kept beginning with March, 1927, and we conclude that he had no basis for expecting at the time he bought petitioner’s goods that he would he able to pay the $23,313.59 due for merchandise alone, to say nothing of his other obligations, and avoid bankruptcy, and that he did not in fact so expect or intend. That he made some payments in May on merchandise account is of little weight, in view of the record disclosures showing that he paid only $1,067.76 thereon out of receipts for that month of $4,366.64 and the further failure of the record to show just under what circumstances the payments were made.
Upon the whole We conclude that the petition is clearly sustained by the proof and the findings of the referee and judge are reversed, and the ease remanded for further proceedings in accordance herewith.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"?
A. bankruptcy - private individual (e.g., chapter 7)
B. bankruptcy - business reorganization (e.g., chapter 11)
C. other bankruptcy
D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman)
E. antitrust - brought by government
F. regulation of, or opposition to mergers on other than anti-trust grounds
G. securities - conflicts between private parties (including corporations)
H. government regulation of securities
Answer:
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sc_issue_8
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01
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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.
PARTMAR CORPORATION et al. v. PARAMOUNT PICTURES THEATRES CORP. et al.
No. 17.
Argued October 13, 1953.
Decided February 8, 1954.
Russell Hardy argued the cause for petitioners. With him on the brief were Henry Schaefer, Jr. and James Wallace Kemp.
Jackson W. Chance argued the cause for respondents. With him on the brief was Rodney K. Potter.
Mr. Justice Reed
delivered the opinion of the Court.
This case presents a matter of federal practice involving inconsistent positions by litigants in court proceedings. We have often held that under the doctrine of res judicata a judgment entered in an action conclusively settles that action as to all matters that were or might have been litigated or adjudged therein. But a prior judgment between the parties has been held to operate as an estoppel in a suit on a cause of action different from that forming the basis for the original suit “only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.” This latter aspect of res judicata is the doctrine of collateral estoppel by judgment, established as a procedure for carrying out the public policy of avoiding repetitious litigation.
Petitioners entered counterclaims in a suit against them by respondent. These counterclaims were dismissed by the trial court upon determination of the original suit for petitioners and against respondents. The cause of action stated in petitioners’ counterclaims is based upon a controverted personal right that had not been adjudged and therefore res judicata is no bar to the claimed right of recovery. Respondent, however, in its original suit had raised an issue, determinative of its cause of action, which had been therein successfully controverted by petitioners to final judgment on the merits. Collateral estop-pel stands as a bar to further litigation by the parties of this issue, and this issue was held by the trial court to be determinative of petitioners’ counterclaims. Petitioners’ argument that the dismissal denied a hearing of issues that might have been but were not determined by the judgment on the merits of the original action moved us to grant certiorari, limited to the issue of the counterclaims. 345 U. S. 963.
Although federal jurisdiction was sought only on the ground of diversity, the complaint relied upon a breach of the Sherman Act, and the counterclaims were similarly bottomed on that federal law. Therefore our conclusion is reached on a consideration of federal law and procedure. It will depend upon whether or not any issue of fact or law remained for decision after the primary action was decided. The issue reaches us under the following circumstances.
Paramount Pictures Theatres Corp., a subsidiary of Paramount Productions, Inc., and successor to Paramount Pictures, Inc., is a New York corporation engaged in the business of operating motion picture theatres throughout the United States. These three corporations will hereinafter be referred to jointly as “Paramount.” On August 31, 1939, Paramount leased the Paramount Downtown Theatre in Los Angeles, California, for ten years to Partmar Corp., a California corporation, petitioner here, wholly owned by Fanchon & Marco, Inc. This lease was subsequently amended in 1942 and extended to March 18, 1952. A “film franchise agreement” was executed in conjunction with, and for the same period as, the lease. It licensed Partmar to exhibit Paramount pictures at the theatre as first “runs” of the films, required Partmar to exhibit such pictures not less than forty-six weeks each year, and set a scale of license fees. The lease expressly provided that it was terminable at the option of Paramount if the franchise agreement “be can-celled or terminated for any reason whatsoever.” Other provisions of the lease and agreement are not germane to the issue before this Court.
On December 31, 1946, a decree was entered in the District Court for the Southern District of New York in an equity action brought by the United States against Paramount and other major companies of the motion picture industry alleging a conspiracy to violate the Sherman Act, 26 Stat. 209, 15 U. S. C. §§ 1-2. United States v. Paramount Pictures, Inc., 70 P. Supp. 53. One provision of that decree defined a “franchise” to be a licensing agreement “in effect for more than one motion picture season and covering the exhibition of pictures released by one distributor during the entire period of agreement” and enjoined each of the defendants in that action “from further performing any existing franchise to which it is a party and from making any franchises in the future.” Id., at 73, Decree, § II, 5.
On March 26, 1947, Paramount notified Partmar that it was cancelling and terminating the franchise agreement because of the injunction, and on April 2, 1947, notified Partmar that it was terminating the lease by reason of the termination of the franchise agreement. Partmar refused to vacate the theatre upon demand, and Paramount instituted this action on May 1, 1947, in the District Court for the Southern District of California, alleging diversity and unlawful detainer of the theatre. The complaint sought, so far as is material here, restitution of possession based on illegality of the franchise under the Sherman Act as construed in the decree in the Southern District of New York, supra, and a declaratory judgment that the lease had been properly terminated.
Partmar and Panchón & Marco, Inc., answered setting up various defenses and filed three counterclaims seeking treble damages under 38 Stat. 731, 15 U. S. C. § 15, resulting from a conspiracy between Paramount and other motion picture companies in violation of the Sherman Act. The conspiracy was alleged to have resulted in the imposition of excessive terms and conditions on Partmar by the lease and franchise agreement.
By order dated April 26, 1948, the District Court, upon Paramount’s motion, ordered Paramount’s causes of action for unlawful detainer and declaratory judgment tried separately from Partmar’s counterclaims. Prior to trial on May 3, 1948, we handed down our decision on Paramount’s and the other defendants’ appeals from the decree of the Southern District of New York. United States v. Paramount Pictures, Inc., 334 U. S. 131. We held inter alia that “we cannot say on this record that franchises are illegal per se when extended to any theatre or circuit no matter how small” and set aside the District Court’s findings relative to such franchises. Id., at 156. Relying on that decision Partmar and Fanchon & Marco, Inc., moved in the Southern District of California for dismissal of Paramount’s action against them. Their motion was denied and the case went to trial without amendment of the pleadings in November 1950, on two issues: whether Paramount was justified in terminating the franchise agreement because of the decree in the New York Paramount case, supra; whether the lease and contract were illegal contracts under the federal antitrust statutes justifying repossession of the theatre by Paramount under California law. See, e. g., Glos v. McBride, 47 Cal. App. 688, 191 P. 67. Thus issue was joined as to the legality of the actions of Paramount and its alleged co-conspirators relative to the lease and franchise agreement, wholly apart from the New York injunction, and Paramount was in the anomalous position of attempting to prove that its agreements with Partmar violated the antitrust laws. Paramount did not limit its contention of illegality of the agreement to nonconspiratorial aspects of the antitrust laws, but argued that if the agreements were illegal in any way it had the right to possession. That Partmar recognized this position is clearly shown by its statement in its brief to the trial court that “after the reversal of that judgment [in the New York case], the plaintiff [Paramount] took the position that the question presented was whether the franchise was violative of the Sherman Act, wholly apart from any judgment or the decisions of the District and Supreme Courts.” Partmar vigorously contended in brief and in argument that the lease of the theatre and the franchise for “first-run” exhibitions did not in any way violate the Sherman Act. It clearly recognized that one way the franchise might be illegal would be if it were the result of a conspiracy, for it argued in its brief that:
“There was no allegation or proof of conspiracy. There being no showing of interstate commerce, it is immaterial whether there was conspiracy, unreasonable clearance, fixed admission prices, block booking, or unreasonable restraint. In the absence of interstate commerce, all else was entirely beyond the purview of the Sherman Act. But, assuming that there had been no failure to prove interstate commerce, the absence of conspiracy is equally fatal. Probably the only evidence relative to conspiracy was the statement of Y. Frank Freeman, a witness for Paramount, that there were no conspiratorial arrangements between Paramount and Fox West Coast. . . . Even in a setting of conspiracy, it is doubtful that the franchise would be unlawful. . . . On the evidence in this case the Partmar franchise is neither one of a system, or made by one holding a dominant position, or pursuant to a conspiracy . . . .”
It thus insisted that the remunerative lease and franchise agreements were still valid and subsisting, and that Paramount had no right to possession.
After eighteen days of trial the District Judge on May 2, 1951, filed a memorandum opinion, 97 F. Supp. 552, in which he concluded that the termination “for any reason” clause in the lease meant for any “legal or substantial reason,” and that the 1946 decree of the Southern District of New York “was not a legal cause or reason for terminating the franchise agreement.” He continued, “there is no evidence to indicate that any third party conspired with either Paramount or Partmar to bring into existence the franchise agreement,” that “a single contract between one film company and one exhibitor is not violative of the Sherman Act,” and that, since the franchise agreement was “not in itself an illegal agreement,” Paramount “had no right to cancel or terminate it because of illegality.” The court went on to hold that “as we find no substantial evidence of a conspiracy in this case on the part of Part-mar or Paramount, we are of the opinion that the counter-claimant cannot recover” on the counts seeking treble damages on the basis of an alleged conspiracy. The opinion directed Partmar to submit proposed findings of fact; both parties submitted such findings and proposed conclusions; and a hearing, upon notice, was held on June 18, 1951. Paramount thereupon submitted Finding No. 20 and conclusion No. 11, infra, thus formalizing its contention that the judgment denying plaintiff’s petition es-topped defendant from recovering on its counterclaims for violation of the Sherman Act. At this hearing Part-mar appeared and expressly objected to the adoption of the proposed finding and conclusion which required the dismissal of its treble-damage counterclaims. Argument was heard on Partmar’s objection, but the court adhered to its position and adopted among its findings No. 20 which provides:
“Paramount, not in conjunction with any other major studio, entered into the franchise agreement which gave to Partmar the right to exhibit the first-run feature pictures of Paramount in the City of Los Angeles. Neither said franchise agreement, nor said lease, nor any amendment to either of them constituted any part of, nor were they or any of them entered into as a result of any agreement, combination or conspiracy of any kind whatsoever between Paramount and any other person or persons, nor between Partmar and any other person or persons.”
And conclusion No. 11 which provides:
“Inasmuch as the said lease and said franchise agreement and all amendments to each of them were in all respects lawful and were not entered into nor performed as a result of any combination or conspiracy of any kind whatsoever on the part of either plaintiffs, defendants, third party plaintiff or third party defendants, with any person or persons; inasmuch as said lease, said agreement and amendments thereto have neither the purpose or effect of restraining or monopolizing trade or commerce among the several states in the production, distribution, transportation, sale or exhibition of motion pictures; and inasmuch as each was an agreement solely between plaintiff and defendants, or defendants and third party plaintiffs and third party defendants dealing solely with the Paramount Theatre Los Angeles alone and the exhibition of pictures thereat; third party plaintiffs, and each of them, cannot recover upon the first, second and fourth counterclaim, or any of them.”
The court simultaneously entered an order giving judgment for Partmar on Paramount’s two counts of unlawful detainer, declaring the rights and duties of the parties under the franchise and the lease, and dismissing with prejudice Partmar’s three treble-damage counterclaims.
Partmar, apparently not wishing to jeopardize its valuable lease and franchise, took no appeal from parts of the District Court’s judgment declaring the lease and franchise to be valid and subsisting and the theatre not to be unlawfully detained. Therefore those parts of the judgment must be accepted as valid and binding on the parties. Partmar did, however, serve timely notice of appeal to the Court of Appeals for the Ninth Circuit from so much of the District Court judgment as dismissed with prejudice the treble-damage counterclaims. The Court of Appeals for the Ninth Circuit, in a per curiam, opinion on December 16, 1952, 200 F. 2d 561, noted agreement with the opinion of the District Court and affirmed the District Court judgment. As heretofore indicated, our consideration is “limited to the issue of the counterclaims.”
Partmar contends that the District Court erred in dismissing its counterclaims with prejudice without a separate trial as to their merits, which the trial court had previously ordered, and that such dismissal deprived it of due process of law. In particular, it argues that it was denied the valuable property right of having admitted in evidence during a trial the judgment in the case of United States v. Paramount Pictures, Inc., 334 U. S. 131, which, it argues, would provide, under § 5 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 16, prima facie evidence of the conspiracy on which the counterclaims were based. We think these contentions are without merit. The power remained in the trial court until the entry of his final judgment to set aside, for appropriate reasons, the former order for separate trial of the counterclaims.
Each of Partmar’s counterclaims for treble damages was predicated upon allegations that Paramount and its alleged co-conspirators engaged in a conspiracy in restraint of trade and commerce, and that the allegedly “excessive terms, conditions and charges for the photo-plays made and released by them” and the exaction of fifty percent of the net receipts, imposed by the lease and franchise agreement, were part of such conspiracy. The District Court found in the principal action, which decision was not appealed and is not before us, that neither the lease nor the franchise was the result “of any agreement, combination or conspiracy of any kind whatsoever.” Of course, if this finding were not material to the principal action, the doctrine of collateral estoppel would not apply. But this finding was obviously necessary to the court’s judgment that the agreements were not illegal. Partmar had ample opportunity upon trial to present evidence and to contest the conspiracy finding, and argument was heard prior to adoption of the findings. This finding, binding all of the parties, determined the key ingredient of Partmar’s counterclaims contrary to its allegations and thus precluded recovery upon such claims. A separate trial on the counterclaims would have been improper procedure, as the judgment entered on the complaint was a final disposition of the determinative issue on the counterclaims — whether or not the terms of the lease were a product of an illegal conspiracy.
The allegations of the counterclaims charge that as a result of “the same conspiracy stated in the complaint” in United States v. Paramount Pictures, Inc., 334 U. S. 131, Partmar was damaged in the terms of its lease from Paramount. Yet this very lease was sustained by the judgment in. this case on the ground that it was not viola-tive of the Sherman Act. Partmar moved to dismiss the complaint in this case after this Court’s decision in the Paramount Pictures case on the ground that it “had become moot by the demonstrated nonexistence of the basic fact,” i. e., the illegality of the lease. In its brief in the trial court, petitioner stated its position clearly:
“The effect of the opinion seems to be that franchises are not unlawful per se, that is, apart from conspiracy, and that on the record in that case they were not shown to have been parts of the conspiracy.
“The Supreme Court seems at least to have clearly indicated that a franchise with one exhibitor for one theatre, like that with Partmar, was not involved in the case. It said in effect that only franchises with defendants and franchises for theatres in a circuit were involved.”
Nor would unlimited admission in evidence of the final decree in United States v. Paramount Pictures, Inc., supra, have aided Partmar. We had reversed the only finding in that case pertaining to the illegality under the Sherman Act of franchise agreements between exhibitors and producers, and the final consent decree as to Paramount entered on March 4, 1949, contains no findings on such subject. Cf. United States v. Paramount Pictures, Inc., 85 F. Supp. 881, 897. Since final judgments or decrees in Government antitrust actions are admissible under § 5 of the Clayton Act as prima facie evidence only of issues actually determined in the prior adjudication, the Government judgments provide no proof of the indispensable element to Partmar’s counterclaims, that the lease and franchise were part of or the result of a conspiracy. From the decree there would have been prima facie evidence of a conspiracy but no evidence that the Partmar lease was a result of that conspiracy so as to overturn the trial court’s finding in this very proceeding that no illegality tainted the lease. Partmar, therefore, was not prejudiced by the fact that the District Court did not consider either the judgment or the decree as evidence of the conspiracy alleged in the counterclaims. As we have pointed out, the conclusion of the trial court went beyond the lawfulness of the “franchise,” as distinguished from the lease of which it was a part, and held that the lease was not secured by conspiracy. See p. 96, supra. This was res judicata of that fact, if it be considered a fact, and nonetheless res judicata if it is a decision on the law, binding in another cause of action arising from the same controversy or claim.
Affirmed.
Mr. Justice Jackson and Mr. Justice Clark took no part in the consideration or decision of this case.
[For dissenting opinion of Mr. Chief Justice Warren, joined by Mr. Justice Black, see p. 104.]
Cromwell v. County of Sac, 94 U. S. 351, 352; Fayerweather v. Ritch, 195 U. S. 276, 300, 308; Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 290; Stoll v. Gottlieb, 305 U. S. 165.
Cromwell v. County of Sac, supra, at 353; United States v. Moser, 266 U. S. 236, 241; Treinies v. Sunshine Mining Co., 308 U. S. 66, 74; Commissioner v. Sunnen, 333 U. S. 591, 597-601. Cf. Federal Trade Commission v. Cement Institute, 333 U. S. 683, 706, where the rule is recognized but its application denied because the issues differed.
See Scott, Collateral Estoppel by Judgment, 56 Harv. L. Rev. 1 ; Note, Collateral Estoppel by Judgment, 52 Col. L. Rev. 647.
Petitioner’s first counterclaim alleged:
“27. Paramount Pictures Theatres Corporation, Paramount Pictures, Inc., Paramount Film Distributing Corporation, . . . and the defendants in United States of America v. Paramount Pictures, Inc., et al., Equity No. 87-273, in the United States District Court for the Southern District of New York, and other persons to the defendants unknown, were, at the time of the acts and transactions stated in the complaint herein, and they now are, engaged in a conspiracy in restraint of trade and commerce among the States, in the distribution and exhibition of motion pictures, in violation of the Act of July 2, 1890, that is to say, the same conspiracy stated in the complaint in that case.
“32. This action has been brought by the plaintiff in pursuance of the aforesaid conspiracy, arrangements and agreements, and to evade and defeat the purpose to end the aforesaid conspiracy and restraint of trade for which United States of America v. Paramount Pictures, Inc., et al., Equity No. 87-273, was instituted.
“33. As part of the aforesaid conspiracy, the plaintiff and the third-party defendants arranged and agreed among themselves, to require Partmar Corporation to license for exhibition at the Paramount Theatre for 46 weeks of each year, only photoplays made and released by Paramount Pictures, Inc., and, for any failure upon the part of Partmar Corporation to obey that requirement, to evict it from Paramount Theatre. The plaintiff, and the third-party defendants have been able to impose, and they have in fact imposed, upon Partmar Corporation, excessive terms, conditions and charges for the photo-plays made and released by them and exhibited at the Paramount Theatre, from March 2, 1933, to the present time.”
In the second counterclaim, the third-party plaintiffs (petitioners) reiterated their allegations of conspiracy and based their claim for damages on an addition to the lease that required Partmar “to pay an additional sum; that is to say, fifty per cent of the net receipts of Partmar Corporation at the Paramount Theatre.”
The other counterclaim is not in the record but the briefs indicate that it contained substantially the same allegation as numbers one and two.
Partmar had brought in other parties as third-party defendants under Fed. Rules Civ. Proc. 14. Their presence is not important in this phase of the controversy.
While Partmar did not appeal, it might have. The finding and conclusion of law just quoted were essential to the determination of Paramount’s claim for possession of the theatre. Paramount’s position after this Court’s reversal'of the franchise portion of the New York decree, was that the agreements were invalid under the federal antitrust statutes as the product of an illegal conspiracy. It is only when a finding of law or fact is not necessary for a decree that the prevailing party may not appeal and the finding does not form the basis for collateral estoppel. This is shown by the case cited to support the statement as to appeal in Lindheimer v. Illinois Bell Telephone Co., 292 U. S. 151, 176. See New York Telephone Co. v. Maltbie, 291 U. S. 645, and cases cited. Electrical Fittings Corp. v. Thomas & Betts Co., 307 U. S. 241, stated the practice negatively. “A party may not appeal . . . findings . . . not necessary to support the decree.” Professor Scott, note 3, supra, at 12, concurs in this view. Restatement, Judgments, §68 reads: “(1) Where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action, except as stated in §§ 69, 71 and 72.” Section 69 (2) [“Where a party to a judgment cannot obtain the decision of an appellate court because the matter determined against him is immaterial or moot, the judgment is not conclusive against him in a subsequent action on a different cause of action.”] is immaterial because the conspiracy determination was essential for Partmar’s defense to Paramount’s claim. See Galloway v. General Motors Acceptance Corp., 106 F. 2d 466. The paucity of cases in this field is explainable by the infrequent happening of a need of a prevailing party to set aside a determination necessary to a judgment in his favor.
Southern Pacific R. Co. v. United States, 168 U. S. 1, 48-49:
“The general principle announced in numerous cases is that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.”
Emich Motors Corp. v. General Motors Corp., 340 U. S. 558, 568-569:
“We think that Congress intended to confer, subject only to a defendant’s enjoyment of its day in court against a new party, as large an advantage as the estoppel doctrine would afford had the Government brought suit.
“The evidentiary use which may be made under § 5 of the prior conviction of respondents is thus to be determined by reference to the general doctrine of estoppel. . . . Accordingly, we think plaintiffs are entitled to introduce the prior judgment to establish prima facie all matters of fact and law necessarily decided by the conviction and the verdict on which it was based."
See Theatre Enterprises v. Paramount Corp., 346 U. S. 537; Monticello Tobacco Co., Inc. v. American Tobacco Co., 197 F. 2d 629.
United States v. Moser, 266 U. S. 236, 242:
“The contention of the Government seems to be that the doctrine of res judicata does not apply to questions of law; and, in a sense, that is true. It does not apply to unmixed questions of law. Where, for example, a court in deciding a case has enunciated a rule of law, the parties in a subsequent action upon a different demand are not estopped from insisting that the law is otherwise, merely because the parties are the same in both cases. But a fact, question or right distinctly adjudged in the original action cannot be disputed in a subsequent action, even though the determination was reached upon an erroneous view or by an erroneous application of the law.”
Emich Motors Corp. v. General Motors Corp., 340 U. S. 558, 569; Cf. United States v. Stone & Downer Co., 274 U. S. 225, 230.
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
Answer:
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sc_authoritydecision
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D
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
UNITED STATES v. MISSISSIPPI CHEMICAL CORP. et al.
No. 70-52.
Argued January 10, 1972
Decided March 6, 1972
Marshall, J., delivered the opinion of the Court, in which all Members joined except Blackmun, J., who took no part in the consideration or decision of the case.
Matthew J. Zinn argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Walters, Thomas L. Stapleton, and Leonard J. Henzke, Jr.
John C. Satterfield argued the cause for respondents. With him on the brief was /. Dudley Buford.
Mac Asbitt, Jr., Harold S. Cook, D. Jeff Lance, and William W. Beckett filed a brief for Agway, Inc., et al. as amici curiae urging affirmance.
Mr. Justice Marshauu
delivered the opinion of the Court.
Mississippi Chemical Corp. and Coastal Chemical Corp. (hereinafter taxpayers) instituted this action for a tax refund in the United States District Court for the Southern District of Mississippi. Both taxpayers are "cooperative associations” within the meaning of § 15 of the Agricultural Marketing Act, 46 Stat. 18, as amended, 12 U. S. C. § 1141 j, and thus qualify for membership in one of the 12 “Banks for Cooperatives” (hereinafter Bank(s)) established by the Farm Credit Act of 1933, 48 Stat. 257, as amended, 12 U. S. C. § 1134 et seq. Since their principal places of business are located in Mississippi, their regional Bank is the one located in New Orleans.
The Farm Credit Act of 1933 provides that members may borrow money from their Banks and, soon after securing membership in the New Orleans Bank, the taxpayers elected to borrow. Thereafter, they were required by the Farm Credit Act of 1955, 69 Stat. 656, 12 U. S. C. § 1134d (a) (3), which partially amended the 1933 Act, to make quarterly purchases of $100 par value Class C stock of the Bank equal to not less than 10% nor more than 25% of the amount of the quarterly interest that they paid to the Bank on their loans. During the period relevant to this lawsuit, the rate set by the Bank was 15%.
On their tax returns for the years in question, the taxpayers claimed a $99 interest expense deduction for every $100 stock purchase required by the statute. The Commissioner of Internal Revenue disallowed the deductions, the taxpayers paid the assessed deficiencies, and this action arose.
The United States has consistently contended that the stock that the taxpayers were required to purchase under the 1955 Act is a capital asset as defined by § 1221 of the Internal Revenue Code, 26 U. S. C. § 1221, and that its cost is nondeductible. See 26 U. S. C. § 263. The taxpayers have persistently urged that the money expended for this stock is part of “the amount [they] . . . contracted to pay for the use of borrowed money,” Old Colony R. Co. v. Commissioner, 284 U. S. 552, 560 (1932), and is deductible as interest. 26 U. S. C. § 163 (a).
The District Court found for the taxpayers and the United States Court of Appeals for the Fifth Circuit affirmed over the dissent of Judge Godbold. 431 F, 2d 1320 (1970). We granted certiorari on February 22, 1971, to review the decision of the Court of Appeals. 401 U. S. 908. We reverse for the reasons stated below.
h-i
Early in. this century, Congress recognized that farmers had a tremendous need for long-term capital at low interest rates. This led to the enactment of the Federal Farm Loan Act of 1916, 39 Stat. 360, as amended, 12 U. S. C. § 641 et seq. The immediate purpose of the bill was “to afford those who [were] engaged in farming or who desire [d] to engage in that occupation a vastly greater volume of land credit on more favorable terms and at materially lower and more nearly uniform interest rates than [were] presently] available.” H. R. Rep. No. 630, 64th Cong., 1st Sess., 2. The long-range purpose was to stimulate and foster a cooperative spirit among farmers who, it was hoped, would work together to seek agricultural improvements which they would finance themselves. Id., at 2-3; S. Rep. No. 144, 64th Cong., 1st Sess., 5.
The 1916 Act divided the United States into 12 regional districts under the general supervision of a Federal Farm Loan Board. Each district contained a federal land bank designed to loan money to farmers at low interest rates. Persons desiring to borrow were required to organize into groups of 10 or more which were called “national farm loan associations.” Sec. 7, 39 Stat. 365.
In order to borrow from the district bank, an association had to establish that each of its members was an owner or a prospective owner of a farm, that the loan desired by each member- was not less than $100 nor more than $10,000, and that the aggregate of the loans was not less than $20,000. Each association also had to subscribe for capital stock of the bank in the amount of 5%' of the total loan sought by its members. The association, in turn, was required to compel each of its members to purchase stock in the association equal to 5% of the amount of the loan sought by that member. Hence, there were two separate levels of cooperative association.
The legislative history and the language of the Act itself indicate that Congress faced somewhat of a dilemma in structuring the land bank system. On the one hand, there was a strong congressional desire to stimulate a privately controlled, privately owned, and privately financed program based upon the cooperative efforts of dedicated farmers. This desire was effectuated in large measure in the stock-purchase requirements discussed above. On the other hand, Congress realized that without federal help, the existing plight of the farmers would probably render them unable to support the system themselves, and it would thus be doomed to failure:
“The greatest difficulty in the establishment of a rural-credit system, based upon the cooperative principle, is met in connection with the inauguration of the system. Ample capital is absolutely necessary at the start and whatever sums the first borrowers might be able to contribute would in no wise suffice to get the system into successful operation. The system must be endowed, temporarily at least, with capital from sources other than the subscriptions to capital stock among the borrowers.” H. R. Rep. No. 630, 64th Cong., 1st Sess., 9.
Accord, S. Rep. No. 144, 64th Cong., 1st Sess., 4.
To resolve the dilemma, Congress provided for temporary public financing without charge to supplement the stock-purchase requirements of the statute. Congress also provided that each land bank must periodically increase its capital shares in order to achieve the goal of private ownership of the system, and to repay the temporary federal financing.
The land bank system remained virtually untouched until the economic depression of the 1930’s when Congress determined that more action was needed to aid farmers in establishing privately owned institutions designed to provide ready sources of long-term credit. The Farm Credit Act of 1933 was passed to supplement the 1916 legislation. It established, inter alia, regional Banks for Cooperatives in each of the 12 land bank districts and a Central Bank for Cooperatives in Washington, D. C.
These Banks were authorized to make loans to “cooperative associations,” defined as “association[s] in which farmers act together in processing, preparing for market, handling, and/or marketing the farm products of persons so engaged, and also . . . association [s] in which farmers act together in purchasing, testing, grading, processing, distributing, and/or furnishing farm supplies and/or farm business services.” Agricultural Marketing Act § 16, 46 Stat. 18, as amended, 12 U. S. C. § 1141j.
The new Banks paralleled in many ways those already established under the 1916 legislation. The same regional districts were used, many of the same persons were eligible for loans from both institutions, and borrowers from both banks were required to be stockholders. The 1933 Act required cooperative associations to own, at the time a loan was made, an amount of stock in the Bank for Cooperatives equal in fair book value (not to exceed par value) to $100 per $2,000 of the amount of the loan, or 5%-, the same amount of stock required of borrowers from land banks under the 1916 Act.
One notable difference between the 1916 and the 1933 Acts was that the latter did not regulate the membership of the cooperative association to any great degree. For example, members of cooperative associations did not have to own stock in the associations, only in the Banks; they did not have to borrow a minimum amount; and they did not have to be farm owners or prospective farm owners, but could be processors, handlers, testers, or marketers. This is in sharp contrast to the stringent requirements of the 1916 legislation. Another notable difference is that Congress invested substantially more money in the 1933 program ($110,000,000) than it had invested in the land banks ($9,000,000). See S. Rep. No. 1201, 84th Cong., 1st Sess., 5, 7.
As time passed, Congress watched the land bank system develop as planned. The temporary Government capitalization that had solidified the program in its inception was gradually replaced by private capital, and by the end of 1947, the Government’s capital had been completely returned. S. Doc. No. 7, 84th Cong., 1st Sess., 4; S. Rep. No. 1201, 84th Cong., 1st Sess., 7. The land banks became totally private concerns — owned, operated, and financed by farmers without Government assistance.
Congress also watched the development of the Banks for Cooperatives and became concerned about their lack of success in attracting and keeping private investment. By the 1950’s, the Government still retained over 88% of the stock in the Banks. In § 2 of the Farm Credit Act of 1953, 67 Stat. 390, 12 U. S. C. § 636a, Congress stated that “[i]t is declared to be the policy of the Congress to encourage and facilitate increased borrower participation in the management, control, and ultimate ownership of the permanent system of agricultural credit made available through institutions operating under the supervision of the Farm Credit Administration . . . .” A Federal Farm Credit Board was created for the purpose, inter alia, of making recommendations concerning the best way to convert the Banks for Cooperatives from predominantly Government-owned to predominantly privately owned institutions.
The result of the Board’s report and recommendations was the Farm Credit Act of 1955, 69 Stat. 655. It sought to effectuate Congress’ policy by providing for the orderly withdrawal of Government capital from the Banks and the continual influx and retention of substitute private financing. See S. Doc. No. 7, 84th Cong., 1st Sess., 6; S. Rep. No. 1201, 84th Cong., 1st Sess., 1; Hearings on Farm Credit Act of 1955 before the House Committee on Agriculture, 84th Cong., 1st Sess., 30-31.
II
Under the Farm Credit Act of 1933, there was only one class of capital stock in the Banks for Cooperatives. The Farm Credit Act of 1955 provided for three distinct classes of stock — A, B, and C.
Class A stock may only be held by the Governor of the Farm Credit Association on behalf of the United States. Whatever stock the Government held in the Banks prior to the 1955 Act was converted to Class A stock. This stock is nonvoting and receives no dividends. Class A stock must be retired each year in an amount equal to the amount of Class C stock issued during the year. 12 U. S. C. § 1134d (a)(1). Once the United States’ stock is completely redeemed, the Government will invest no more in the Banks, except that it may purchase additional shares of the Class A stock if an emergency makes it necessary in order for the bank to meet the credit needs of eligible borrowers. See 12 U. S. C. §§ 1134d (a)(1), 1134b, 1134L
Class B stock represents a new approach to capitalizing the Banks. It is an investment stock available to the public. It pays noncumulative dividends upon certain conditions. Class B stock may be retired only after all Class A stock. 12 U. S. C. § 1134d (a)(2).
Class C stock may be issued only to farmers’ cooperative associations, except that each regional bank is required to purchase such shares from the Central Bank. This stock may be obtained under four circumstances. One share is required to initially qualify any association as a borrower of a regional Bank. Each borrower must then make the quarterly stock purchases which gave rise to this lawsuit. In addition, 12 U. S. C. § 1134Í (b) provides that after certain expenditures are made each year, patronage refunds may be allocated to borrowers in the form of Class C stock. “All patronage refunds shall be paid in the proportion that the amount of interest earned on the loans of each borrower bears to the total interest earned on the loans of all borrowers during the fiscal year.” Ibid. Borrowers also receive at the end of each fiscal year an “allocated surplus” credit which is payable out of the Bank’s net savings. Like patronage refunds, allocated surplus is credited to each member in accordance with the proportion that the interest on its loans bears to the interest on all loans. When the surplus account reaches 25%- of the total outstanding capital stock of the Bank, the excess may be distributed to members in the form of Class C stock.
Only the tax treatment of the quarterly purchases is disputed here. The taxpayers correctly note that the Class C stock has attributes which would make a normal commercial stock undesirable. For example, the C stock pays no dividends; it is transferable only between cooperatives and only under rare circumstances; additional shares do not provide additional voting power; and the stock cannot be redeemed until all A, all B issued earlier or in the same year, and all earlier issued C shares have been called for redemption. These characteristics render the market for C shares virtually nonexistent.
It must be remembered, however, that the stock was intentionally given these characteristics by a Congress with definite goals in mind. The legislative history of the Farm Credit Act of 1955 indicates that Congress placed much of the blame for the Bank’s inability to repay the capital extended by the Government and to retain private capital on the provision in the 1933 legislation which permitted borrowers to redeem their stock for cash upon paying off their loans. The restrictions on redemption and transferability and the dividend prohibition were designed to obviate this difficulty and to provide both a stable membership and permanent capital, two necessities for the success of any cooperative venture.
Ill
The taxpayers do not seek to deduct the cost of their initial shares in the Bank as interest. They accept the fact that these shares represent one cost of membership and that this cost is a capital expense because membership is a valuable asset in more than one taxable year. But, they argue that once they purchased their initial shares, they obtained full membership rights, and, a fortiori, that Congress must have intended the quarterly expenditures for stock to be a charge for borrowing money since the stock has no value. The fact is, however, that the stock purchased quarterly is indeed valuable. The amounts paid for C shares become part of the permanent capital structure of the Bank, thereby increasing the stability of the Bank and insuring its continued ability to extend credit. Each share also provides an opportunity for more patronage and surplus dividends, an ultimate right of redemption, and an asset that may be used as a set-off in case of a default on the loan. In sum, every share of stock purchased quarterly by the taxpayers is nearly as valuable as the shares purchased initially. It is therefore difficult to understand why these different purchases should receive radically different tax treatment. If Congress had required 1,000 or 100,000 shares of Class C stock to be purchased before an association could borrow from the Banks, under the taxpayers’ theory of the case the cost of those shares would be a nondeductible capital expense. Simply because Congress eased the burden on farmers by spreading the requirement of capital investment over a period of time rather than requiring it as a prerequisite to borrowing, the taxpayers are entitled to no more favorable tax treatment.
It is important not to lose sight of the congressional purposes in enacting the farm credit legislation. The immediate goal was to provide loans to farmers at low interest rates. It would, therefore, be odd for Congress to provide a “hidden” interest charge in the legislation. The long-range goal was to make the Banks “fully cooperative and to place full ownership and responsibility for their operations and success in the hands of those eligible to borrow from them.” Hearings on Farm Credit Act of 1955 before a Subcommittee of the Senate Committee on Agriculture and Forestry, 84th Cong., 1st Sess., 60. Congress felt, in light of its experience under the Farm Credit Act of 1933, that the long-range goal could only be achieved if Bank members made long-term investments in the Banks. Hence, Congress created Class C stock, a security with a special value in cooperative ventures. While this security is sui generis, the congressional scheme makes it clear that it has value over the long run.
Since the security is of value in more than one taxable year, it is a capital asset within the meaning of § 1221 of the Internal Revenue Code, and its cost is nondeductible. Cf. Commissioner v. Lincoln Savings & Loan Assn., 403 U. S. 345 (1971); Old Colony R. Co. v. United States, 284 U. S. 552 (1932); 26 CFR § 1.461-1.
We reject the contention that while the Class C stock may be a capital asset, it is worth only $1, and that the additional $99 paid for each share must represent interest. Were we dealing with the traditional corporate structure in this case, the taxpayers' argument would have strength. But, as we have pointed out previously, the essential nature of cooperatives and corporations differs. The value of the Class C stock derives primarily from attributes other than marketability. The stock has value because it is the foundation of the cooperative scheme; it insures stability and continuity. The stock also has value because it enables the farmers to work together toward common goals. It enables them to share in a venture of common concerns and to reap the rewards of knowing that they can finance themselves without the assistance of the Federal Government. It is perhaps debatable whether these attributes should properly be valued at $100 per share, but we are not called upon merely to resolve a question of valuation. Rather, we must decide whether it is artificial to characterize these unique expenditures as payments for a capital asset. We find that it is not.
The taxpayers and the Government each allege that the other is looking at form rather than substance. At some point, however, the form in which a transaction is cast must have considerable impact. Guterman, Substance v. Form in the Taxation of Personal and Business Transactions, N. Y. U. 20th Inst, on Fed. Tax. 951 (1962). Congress chose to make the taxpayers buy stock; Congress determined that the stock was worth $100 a share; and this stock was endowed with a long-term value. While Congress might have been able to achieve the same ends through additional interest payments, it chose the form of stock purchases. This form assures long-term commitment and has bearing on the tax consequences of the purchases.
Accordingly, the decision of the Court of Appeals is reversed and the case is remanded with direction that judgment be entered for the United States.
It is so ordered.
Mr. Justice Blackmun took no part in the consideration or decision of this case.
Mississippi Chemical Corp. acquired the share of stock qualifying it as a borrower in 1956; Coastal Chemical Corp. acquired its qualifying share in 1957.
Mississippi Chemical Corp. challenges the Government’s tax treatment of $55,113.19 spent from 1961 to 1963; Coastal Chemical Corp. challenges the treatment of $211,799.68 expended from 1958 to 1963.
One dollar was treated as the cost of acquiring a capital asset.
This decision is unreported but is found in App. 342-346. Other lower courts have split on the issue presented. Compare, e. g., M. F. A. Central Cooperative v. Bookwalter, 427 F. 2d 1341 (CA8 1970), rev’g 286 F. Supp. 956 (ED Mo. 1968), pet. for cert. pending (No. 70-22), with Penn Yan Agway Cooperative, Inc. v. United States, 189 Ct. Cl. 434, 417 F. 2d 1372 (1969).
The statute also provided that “joint stock land banks” could be formed. These were corporations, composed of 10 or more persons, who desired to form banks to loan money to farmers without the aid of congressional financing. They were subject to the same restrictions and conditions imposed on the district land banks.
While Congress did not disturb the land bank system, it added to it at various times. For example, Title II of the Agricultural Credits Act of 1923, 42 Stat. 1461, 12 U. S. C. § 1151 et seq. (1958 ed.), was designed to aid farmers in obtaining short-term credit.
The Act also established a production credit system to improve short-term financing for farmers. That system has no bearing on this case.
There is evidence in the record that the Government capital is being revolved out of the Banks just as Congress anticipated. See Farm Credit Administration, Banks for Cooperatives — A Quarter of a Century of Progress, excerpted in App. 157, 175. See also 431 F. 2d 1320, 1332, and n. 17 (Godbold, J., dissenting); Brief for the United States 7.
The Class B shares are of only nominal importance. In 1963, they amounted to only some 5% of the total outstanding stock of the New Orleans Bank.
The patronage refunds and the allocated surplus, discussed infra, are not a return on the amount of capital that the borrower contributes to the Bank; they are distributions of earnings, not presently convertible to cash, but are eventually convertible just as the quarterly Class C purchases may eventually be redeemed.
The Government contended in the District Court that the taxpayers should have reported the patronage dividends as income. The District Court disagreed and the Government did not appeal this point. It is not, therefore, reviewable here, and the Government does not urge that we consider it.
While no formal dividends are paid on the C stock, it is apparent that the patronage dividend is in many ways equivalent to the traditional corporate dividend. As noted above, the patronage dividend is not immediately convertible to cash, but it is far from worthless. Like the usual corporate dividends, the patronage dividends are paid in proportion to stock ownership. Stock ownership is apportioned according to the amount a Bank member borrows. Thus, those who borrow the most own the most stock and receive the most patronage dividends (and surplus as well). As the Class A stock and the earlier issued Class B and Class C stock are redeemed, the C stock issued as dividends will become convertible to cash and its value will be realized at that time.
In the event of a default by a borrower, the Class C stock is set off against the amount of the loan. Hence, the more patronage dividends the member receives, the more security he has in case of default.
Cooperative associations are entitled to vote in polls designating nominees for appointment to the Federal Farm Credit Board, established by the Farm Credit Act of 1953, 67 Stat. 390, as amended, 12 U. S. C. § 636c, to help effectuate congressional policy; to vote in the nomination polls and elections of members of district farm credit boards established by the Farm Credit Act of 1937, 50 Stat. 703, 12 U. S. C. § 640a; and to vote in the nomination and elections of directors of the Central Bank for Cooperatives. It is normal for every member of a cooperative to have only one vote, irrespective of a disparity between the shares held. See Frost v. Corporation Comm’n, 278 U. S. 515, 536-537 (1929) (Brandeis, J., dissenting); I. Packel, The Law of Cooperatives §§23-24 (a), pp. 136-140 (3d ed. 1956). It is interesting that the Capper-Volstead Act, 42 Stat. 388, 7 U. S. C. §§ 291-292, permits a cooperative marketing association immunity from the Sherman Act under some circumstances, but only if no member is entitled to more than one vote.
Cooperatives and corporations operate on different principles. Whereas the corporate structure separates control and management, the essence of a cooperative requires that these functions be integrated. And, whereas the value of corporate stock depends on ease of transferability (or marketability), the value of cooperative stock lies in the durable, long-term nature of the investment. See Nieman, Revolving Capital in Stock Cooperative Corporations, 13 Law & Contemp. Prob. 393 (1948).
It is by no means clear that the Class C stock is worth only $1 even under a traditional market value analysis. The lower courts failed to include the value of the patronage and surplus dividends in computing the value of the quarterly purchases. The Class C stock may, therefore, be worth considerably more than $1, although the Government concedes that it is not worth $100. Because of the result we reach in this case, we have no occasion to make a final determination as to what value the stock would have under a market-value analysis.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_appfiduc
|
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 "fiduciaries". 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.
BLOOD v. HUNTER, Warden.
No. 3124.
Circuit Court of Appeals, Tenth Circuit.
June 25, 1945.
James R. Blood, pro se.
Eugene W. Davis, Asst. U. S. Atty., of Topeka, Kan. (Randolph Carpenter, U. S. Atty., of Topeka, Kan., on the brief), for appellee.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
MURRAH, Circuit Judge.
This is an appeal from an order denying discharge in a habeas corpus proceedings.
In October, 1934, two indictments were returned in the United States District Court for the Northern District of Oklahoma, against petitioner and a codefendant. The first indictment contained four counts, charging petitioner with forging and counterfeiting the signature of the postmaster at Catoosa, Oklahoma, on two postal money orders, and with having passed, uttered and published the respective money orders, all in violation of 18 U.S.C.A. § 347. The second indictment charged petitioner with burglary of the post office at Catoosa, in violation of 18 U.S.C.A. § 315. Petitioner entered pleas of guilty to all counts in both indictments and was sentenced to five years on each count in the first indictment, to run consecutively, and to a term of five years on the only count in the second indictment, to begin at the expiration of the sentence imposed under the first, making a total sentence of twenty-five years.
Previously, in October, 1939, petitioner sought his release by habeas corpus proceedings in the same trial court, alleging that he was deprived of his constitutional right to the assistance of counsel. The trial court found that petitioner intelligently and competently waived his right to counsel and this court affirmed. Blood v. Hudspeth, 10 Cir., 113 F.2d 470.
Apparently encouraged by the pronouncements of the Supreme Court in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, the petitioner commenced this proceedings on August 14, 1944, and in order to bring himself within the rationale of that case alleged that after his arrest on July 13, 1934, he was held in jail until the following October 11, without being taken before any judicial officer for arraignment, and that while being so detained a confession was taken and used against him in the trial of his case. He does not allege that the confession was obtained by threats or coercion, but rests his case solely upon the contention that the failure of the arresting officers to immediately take him before a committing officer for arraignment, as provided by 18 U.S.C.A. § 595, and the use of the confession obtained before arraignment, constituted grounds for release under the doctrine of the McNabb case.
On these issues the trial court conducted an appropriate inquiry, at which the petitioner testified in substance that after being arrested in Oklahoma City on July 13, 1934, by the City Police he was taken to the city jail and turned over to the Postal Inspector, and at that time gave a written confession of his guilt. That on the following day he entered a .plea of guilty to an indictment theretofore returned against him in the United States District Court for the Western District of Oklahoma, charging violation of the Federal mail fraud statute (18 U.S.C.A. § 338) and was thereupon sentenced to a term of five years. That after the sentence was imposed the trial court advised him that if he would go to Tulsa to answer the charges against him in the Northern Judicial District he would modify the five year sentence, and on September 15, he was transferred to the Northern District. He further testified that after arriving in Tulsa he was not arraigned, but was confined in jail until October 11, when he entered pleas of guilty to the indictments on which he was sentenced to a total of twenty-five years.
On competent evidence the trial court found that petitioner had freely and intelligently entered a plea of guilty to all counts in both indictments; that the confession was not used in the proceedings against him and he therefore was not entitled to invoke the doctrine of the Mc-Nabb case to effect his release on habeas corpus.
The proper application of the McNabb doctrine was demonstrated m United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 897, 88 L.Ed. 1140, in which it was emphasized that the vice at which the McNabb case was directed was “inexcusable detention for the purpose of illegally extracting evidence from an accused, and the successful extraction of such inculpatory statements by continuous questioning for many hours under psychological pressure,” and that a conviction thus obtained could not stand. But the mere fact that the accused was illegally detained in violation of 18 U.S.C.A. § 595, does not .of itself void a conviction based upon competent evidence. It was pointed out in the McNabb case [318 U.S. 332, 63 S.Ct. 615], that “the mere fact that a confession was made while in the custody of the police does not render it inadmissible,” and while it is the duty of arresting officers to obey the mandate of the law which requires them to bring the accused before a committing authority with reasonable promptness and failure to observe the spirit of such admonition may constitute “inexcusable detention for the purpose of illegally extracting evidence,” yet the mere failure to observe the statutory mandate does not standing alone deprive the sentencing court of jurisdictional authority to accept a voluntary plea of guilty and to impose a lawful sentence on such plea.
We are not concerned with a conviction based upon evidence obtained through a confession. The petitioner freely and voluntarily entered a plea of guilty to both indictments and the confession which he gave played no part in the sentence which he now seeks to have us set aside on jurisdictional grounds. There is nothing in this record which indicates that the failure of the officers to bring the petitioner before a committing magistrate until he appeared in court to enter his pleas resulted in a denial of his constitutional right to a fair and impartial trial.
The judgment is therefore affirmed.
18 U.S.C.A. § 595, provides in part as follows: “It shall be the duty of the marshal, his deputy, or other officer, who may arrest a person charged with any crime or offense, to take the defendant before the nearest * * * judicial officer having jurisdiction under existing laws for a hearing, commitment, or taking bail for trial * m *»_
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
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.
COLLIDOTRONICS, INC., Keystate Insurance Agency, Inc., Harry Ostroff, Edward I. Krensel and Louis H. Levitt, Appellants, v. The STUYVESANT INSURANCE COMPANY, Staff Adjusters Corporation and General Acceptance Corporation.
No. 17635.
United States Court of Appeals Third Circuit.
Argued July 15, 1969.
Filed Aug. 14, 1969.
Carl Mazzocone, Sheer & Mazzocone, Philadelphia, Pa. (Lynwood F. Blount, Louis H. Levitt, Philadelphia, Pa., on the brief), for appellants.
Robert M. Landis, Dechert, Price & Rhoads, Philadelphia, Pa. (B. Paul Cotter, Jr., Philadelphia, Pa., Dechert, Price & Rhoads, Philadelphia, Pa,, on the brief), for appellees.
Before HASTIE, Chief Judge, and KALODNER and GANEY, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
The District Court dismissed,Count 1 of the plaintiffs’ Complaint as well as its counterclaim and granted the defendants’ motions for summary judgment as to the three other counts of the Complaint.
On this appeal the plaintiffs challenge only the summary judgments entered. They urge that the District Court applied erroneous legal standards in making its disposition, and further, that existence of genuine issues as to material facts precluded entry of summary judgments on the three concerned counts of the Complaint.
On review of the record we cannot subscribe to the plaintiffs’ contentions which are exhaustively considered and decided in the District Court’s Opinion, reported at 290 F.Supp. 978 (E.D.Pa. 1968).
The Order of the District Court, dated and filed October 14, 1968, will be affirmed.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
sc_petitioner
|
269
|
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.
NATIONAL LABOR RELATIONS BOARD v. WARREN COMPANY, INC.
No. 27.
Argued October 20, 1955.
Decided December 12, 1955.
David P. Findling argued the cause for petitioner. With him on the brief were Solicitor General Sobeloff, Theophil C. Kammholz and Dominick L. Manoli.
John Wesley Weekes argued the cause and filed a brief for respondent.
Mr. Chief Justice
Warren delivered the opinion of the Court.
On August 7, 1952, the United States Court of Appeals for the Fifth Circuit entered its decree enforcing in full an order of the National Labor Relations Board issued on June 30, 1950, against respondent herein directing it (1) to cease and desist from refusing to bargain collectively with District Lodge No. 46, International Association of Machinists, a labor union, as the exclusive bargaining agent of all its tool and die makers, machinists, etc., and from discouraging membership in the union; (2) to take affirmative action upon request to bargain collectively with the union as the exclusive representative of respondent’s said employees and, if an understanding should be reached, to embody such understanding in a signed agreement; and (3) to post at its plant a notice to be furnished by the Regional Director of the National Labor Relations Board and signed by the officers of respondent agreeing to desist from certain unfair labor practices, and to bargain collectively with the union upon request as required in the order. 197 F. 2d 814.
Respondent had posted the notice and restored certain employees to their jobs as required by the order, but declined to bargain collectively with the union, although requested by the latter to do so on numerous occasions over a period of seven months, basing its refusal to do so on the ground that the union had lost its alleged majority status by reason of a turnover in personnel. It demanded proof from the union that it represented a majority of the employees then employed in the bargaining unit. The union replied that its majority status had been determined by the Board and by the Court of Appeals in its decree of enforcement. Respondent never bargained collectively with the union, either before or after the decree, contending at all times that the latter did not have majority status, although in 1948 the employees had designated the union as their bargaining agent and the Board had found that respondent had avoided collective bargaining through its lack of good faith and because of its own unfair labor practices. This finding was not challenged by respondent and was adopted by the Court of Appeals in its enforcement decree of August 7, 1952. Respondent then filed a petition with the Board on January 27, 1953, requesting an election in the bargaining unit. Because of respondent’s failure to remedy its unfair labor practice by good-faith bargaining with the union for a reasonable period, the Board sustained its Regional Director’s dismissal of the petition.
On September 22, 1953, the Board filed its petition in the Court of Appeals, specifically setting forth the conduct of respondent showing its failure and refusal to comply with the court’s decree enforcing the Board’s order, and asking that respondent be required to show cause why it should not be adjudged in civil contempt. The Board also asked the court to institute a prosecution for criminal contempt against respondent. Respondent answered, claiming compliance with the decree except that since the decree of the court it had refused to bargain collectively with the union as the bargaining agent of its employees because for a long time the union had not represented its employees as such bargaining agent.
The Court of Appeals concluded that no case for a civil contempt order had been made out and dismissed the proceeding. The court held that, notwithstanding the prior entry of a decree directing respondent to bargain collectively with the union, respondent’s compliance with other provisions of the decree entitled it to refuse to bargain collectively since it had ascertained that even before the decree, because of a turnover in personnel, the union had lost majority status. The court stated that to hold respondent liable in contempt under these circumstances would do violence to its decree and to the Act rather than to vindicate them.
Because of the importance of the question in the administration of the National Labor Relations Act, we granted certiorari, 348 U. S. 958. Petitioner does not press here its prayer in the court below for an adjudication of criminal contempt.
In arriving at its decision purging respondent of contempt, the Court of Appeals stated that respondent had “complied fully with all the provisions” of its enforcement order; that it had “made an offer to bargain with the union;” that the union’s alleged loss of majority status was “without fault” on the respondent’s part; and that the Board took the position that respondent was required “to bargain indefinitely” notwithstanding the union’s loss of majority status.
If we had so understood the record, certiorari would not have been granted, but we do not so understand it. We believe the facts are to the contrary in each instance.
The original order of the Board found not only that respondent for a period of four years after notification by the union of its majority status had refused to bargain with it, but had also used deliberate and flagrant unfair labor practices to deprive the union of its majority status. In its opinion enforcing this cease and desist order, the Court of Appeals stated:
“With commendable candor respondent’s counsel has stated its position as follows:
“ ‘We have controverted the findings of fact of the Board in our Response, but in all fairness to this Court we are constrained to admit that there is sufficient evidence, even though disputed, upon which to base the Board’s order.’ ” 197 F. 2d 814.
The findings of both the Board and the Court of Appeals are, therefore, clear that there had been no willingness on respondent’s part up to that date, August 7, 1952, to bargain with the union.
In its “Answer of the Respondent to the petition of the Board for adjudication in Civil Contempt and other Civil Relief,” filed November 12, 1953, respondent alleged:
“As shown hereinbefore and hereinafter Respondent has refused to bargain collectively with the Union because it did not represent a majority of the employees.”
There is nothing in the record to indicate that this situation has ever changed in the slightest respect, and this in face of the fact that the union has at all times been willing to bargain.
Neither does the record indicate that the Board insisted upon respondent’s bargaining with the union indefinitely; on the contrary, it demonstrates that the Board has urged here and in the court below that respondent should bargain in good faith only for a reasonable length of time after designation of the union as the bargaining agency.
It cannot be said that respondent is “without fault,” because the record is clear that at no time has respondent bargained in good faith with the union. It has met with the union but twice since 1948 and on neither of those occasions did it bargain. It has avoided other meetings by evasion and refusal or failure to respond to a request therefor.
The sole question necessary for determination here is whether an employer who has been found guilty by the Board of unfair labor practices in refusing to bargain with a union designated as the exclusive representative of its employees and who has been directed to so bargain, is, after a decree enforcing the order and without remedying its unfair labor practices, legally justified in refusing to bargain with the union because it contends the union does not in fact have majority status in its plant, or must such employer bargain fairly for a reasonable length of time in accordance with the order to avoid an adjudication in civil contempt.
We believe that an employer in such circumstances cannot lawfully refuse to bargain; that he must do so for a reasonable time; and that for a failure to so bargain it is the statutory duty of the Court of Appeals on petition of the Board to adjudge him in contempt of its enforcement decree. To conclude otherwise would greatly weaken the administration of the National Labor Relations Act.
That Act contemplates cooperation between the Board and the Courts of Appeals both at the enforcement and the contempt stages in order to effectuate its purposes. It consigns certain statutory functions to each, and where the Board has acted properly within its designated sphere, the court is required to grant enforcement of the Board’s order. The decree, like the order it enforces, is aimed at the prevention of unfair labor practices, an objective of the Act, and so long as compliance is not forthcoming that objective is frustrated. It is for this reason that Congress gave the judicial remedy of contempt as the ultimate sanction to secure compliance with Board orders. The granting or withholding of such remedial action is not wholly discretionary with the court. This is true not only under the National Labor Relations Act but also under general principles of equity jurisprudence.
It seems clear to us that in the light of these principles and the facts of this case, the court below exceeded the allowable limits of its discretion in denying relief to the Board and that its judgment must be reversed and remanded for proceedings in conformity with this opinion.
Reversed and remanded.
There was only one meeting after entry of the enforcement decree. At this meeting, on January 19, 1953, respondent stated that it was in doubt as to the majority status of the union and for that reason "hesitated” to bargain with the union on the matter of a contract. This position was confirmed in a letter dated January 20, 1953, in which respondent advised the union of its intention to petition the Board for a decertification election.
United States v. Morgan, 307 U. S. 183.
Labor Board v. Bradford Dyeing Assn., 310 U. S. 318.
Labor Board v. Mexia Textile Mills, 339 U. S. 563.
McComb v. Jacksonville Paper Co., 336 U. S. 187.
International Salt Co. v. United States, 332 U. S. 392; Union Tool Co. v. Wilson, 259 U. S. 107; Penfield Co. v. Securities and Exchange Commission, 330 U. S. 585.
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_respond1_3_2
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
FOSTER v. UNITED STATES.
No. 5568.
Circuit Court of Appeals, Fourth Circuit.
March 12, 1947.
J. Allen Lambright and Venable Vermont, both of Spartanburg, S. C. (Robert J. Gantt, of Spartanburg, S. C., on the brief), for appellant.
Edward P. Riley, Asst. U. S. Atty., of Greenville, S. C. (Oscar H. Doyle, U. S. Atty., and Walter H. Hood, Asst. U. S. Atty., both of Greenville, S. C., on the brief), for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
PER CURIAM.
This is an appeal in an illicit distilling case. The evidence unquestionably shows the operation of the distillery and the various violations of the internal revenue statutes charged in the indictment. The only question before ms is whether the connection of appellant with the illegal enterprise is sufficiently shown. We think that it is. When the evidence is considered in the light most favorable to the prosecution, as it must be in passing upon the motion of an accused for a directed verdict, it is unquestionably sufficient to support the conclusion that appellant was actively aiding and abetting in the operation of the distillery. The appeal presents no substantial question for the decision of this court, and bail might well have been refused pending appeal if the point had been raised in the District Court. Mandate will accordingly issue forthwith.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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sc_lcdisposition
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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 determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
LOCKHEED AIRCRAFT CORP. v. UNITED STATES et al.
No. 81-1181.
Argued November 30, 1982
Decided February 23, 1983
Powell, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Stevens, and O’Connor, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 199.
'Warner W. Gardner argued the cause for petitioner. With him on the briefs were Richard M. Sharp, Michael S. Giannotto, Jeffrey C. Martin, Carroll E. Dubuc, and Nicholas H. Cobbs.
Carolyn F. Corwin argued the cause for the United States. With her on the brief were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Geller, William Ranter, and Katherine S. Gruenheck
Dewey R. Villareal, Jr., filed a brief for the Britannia Steam Ship Insurance Association Limited et al. as amici curiae.
Justice Powell
delivered the opinion of the Court.
Under the Federal Employees’ Compensation Act, a federal employee may not bring a tort suit against the Government on the basis of a work-related injury, but may seek recovery from a third party. The issue here is whether such a third party may seek indemnity from the Government for its tort liability to the employee.
On April 4, 1975, a C-5A aircraft operated by the United States Air Force and manufactured by petitioner Lockheed Aircraft Corp. crashed near Saigon, South Vietnam. Almost 150 people died in the crash, including Ann Nash Bottorff, a civilian employee of the United States Navy. The United States paid death benefits to Bottorff’s survivors under the Federal Employees’ Compensation Act (FECA), 5 U. S. C. §8101 et seq.
Thereafter Bottorff’s administrator filed suit against Lockheed, as the manufacturer of a “defective product,” in the United States District Court for the District of Columbia. He sought damages for Bottorff’s wrongful death and for the injuries she suffered prior to her death. Lockheed, asserting a right to indemnification under the Federal Tort Claims Act, 28 U. S. C. §§ 1346(b), 2671-2680, impleaded the United States as a third-party defendant.
Lockheed settled the administrator’s claim and moved for summary judgment in the third-party action. The Government did not dispute that it was primarily responsible for the fatal crash, nor did it challenge the terms of the settlement. Rather the Government moved to dismiss the third-party claim on the ground that it was barred by 5 U. S. C. § 8116(c), FECA’s exclusive-liability provision:
“The liability of the United States . . . under [FECA] with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States ... to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States . . . because of the injury or death . . . .”
The District Court, concluding that § 8116(c) did not bar the indemnity claim, granted summary judgment for Lockheed.
On appeal, the United States Court of Appeals for the District of Columbia Circuit reversed. Thomas v. Lockheed Aircraft Corp., 215 U. S. App. D. C. 27, 665 F. 2d 1330 (1981). It concluded that § 8116(c) barred Lockheed’s third-party claim against the United States. In reaching this conclusion, the Court of Appeals relied primarily on several decisions by other Courts of Appeals. See, e. g., Kudelka v. American Hoist & Derrick Co., 541 F. 2d 651, 658-660 (CA7 1976); Galimi v. Jetco, Inc., 514 F. 2d 949 (CA2 1975). The court recognized, however, that its holding was contrary to that reached in Wallenius Bremen G. m. b. H. v. United States, 409 F. 2d 994 (CA4 1969), cert. denied, 398 U. S. 958 (1970).
We granted certiorari to resolve the conflict. 456 U. S. 913 (1982). We now reverse.
M I — l
Section 8116(c) is specific and detailed. It prohibits actions against the United States by an “employee, his legal representative, spouse, dependents, next of kin, [or] any other person otherwise entitled to recover damages from the United States . . . because of the [employee’s] injury or death.” Lockheed is not within any of the specified categories. If § 8116(c) applies, therefore, it can only be because Lockheed is an “other person otherwise entitled to recover damages from the United States.” The Government argues that the language is broad enough to include Lockheed. We must decide if Congress intended that result.
A
FECA’s exclusive-liability provision was enacted in substantially its present form in 1949. FECA Amendments of 1949, §201, 63 Stat. 861 (enacting FECA § 7(b)) (currently codified at 5 U. S. C. § 8116(c)). It was designed to protect the Government from suits under statutes, such as the Federal Tort Claims Act, that had been enacted to waive the Government’s sovereign immunity. In enacting this provision, Congress adopted the principal compromise — the “quid pro quo” — commonly found in workers’ compensation legislation: employees are guaranteed the right to receive immediate, fixed benefits, regardless of fault and without need for litigation, but in return they lose the right to sue the Government. See H. R. Rep. No. 729, 81st Cong., 1st Sess., 14-15 (1949); S. Rep. No. 836, 81st Cong., 1st Sess., 23 (1949). This compromise is essentially the same as that found, for example, in the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA). See 33 U. S. C. § 905(a).
In Weyerhaeuser S.S. Co. v. United States, 372 U. S. 597 (1963), the Court considered FECA’s exclusive-liability provision and carefully reviewed its legislative history. That case arose out of the collision between an Army dredge and a vessel owned by Weyerhaeuser. A federal employee injured in the collision recovered FECA compensation from the Government and tort damages from Weyerhaeuser. Weyer-haeuser brought suit against the United States under the Public Vessels Act, 43 Stat. 1112, 46 U. S. C. §781 et seq., seeking the damages that it could have recovered from another private shipowner. Included in its claim, under the admiralty divided damages rule, was the Government’s share of the employee’s tort recovery.
The Government challenged the inclusion of any part of the tort damages paid to the employee on the ground that FECA’s exclusive-liability provision protected the United States from such claims. In particular, the Government argued — much as it does in this case — that third parties plainly were included within the general phrase “anyone otherwise entitled to recover damages.” Brief for United States in Weyerhaeuser S.S. Co. v. United States, O. T. 1962, No. 65, pp. 5, 8-11. See 372 U. S., at 600. The Court, however, rejected this argument. It first pointed out that the statute was ambiguous. “[T]he general language upon which the Government relies follows explicit enumeration of specific categories: employees, their representatives, and their dependents. Under the traditional rule of statutory construction which counsels against giving to general words a meaning totally unrelated to the more specific terms of a statute, we think the meaning of the statutory language is far from ‘plain.’ ” Id., at 600-601. The Court then reviewed the legislative history of the exclusive-liability provision, and concluded that it had been intended to govern only the relationship “between the Government on the one hand and its employees and their representatives or dependents on the other.” Id., at 601. The Court summarized its review of the legislative history as follows: “There is no evidence whatever that Congress was concerned with the rights of unrelated third parties, much less of any purpose to disturb settled doctrines of admiralty law affecting the mutual rights and liabilities of private shipowners in collision cases.” Ibid. (footnote omitted).
The Weyerhaeuser Court reinforced its conclusion with a discussion of the “nearly identical” LHWCA provision. Id., at 602. The Court observed that under Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U. S. 124 (1956), a shipowner was entitled to obtain indemnification from an injured longshoreman’s employer for damages that were recovered against the shipowner but were based on the employer’s negligence. Although Ryan relied on the existence of a contractual relationship between the shipowner and the employer, the same result was reached in a series of later cases where “the contractual relationship was considerably more attenuated.” 372 U. S., at 603. In Weyerhaeuser there was no contractual relationship, but there was a well-established admiralty rule that had “governed with at least equal clarity the correlative rights and duties” at issue in the case. Ibid.
B
The Court’s reasoning in Weyerhaeuser applies with equal force in the present case. The Government advances the same arguments before us now that it unsuccessfully advanced in Weyerhaeuser. To paraphrase the Weyerhaeuser Court’s conclusion, “[t]here is no evidence whatever that Congress was concerned with the rights of unrelated third parties, much less of any purpose to disturb settled doctrines of [tort] law affecting the mutual rights and liabilities of private [parties] in [indemnity] cases.” Id., at 601. Section 8116(c) was intended to govern only the rights of employees, their relatives, and people claiming through or on behalf of them. These are the only categories of parties who benefit from the “quid pro quo” compromise that FECA adopts. See Wallenius Bremen, 409 F. 2d, at 995.
The Government seeks to distinguish Weyerhaeuser, but the present situation is nearly identical. Here, as in Weyer-haeuser, a third party has been forced to pay tort damages for the death or injury of a federal employee covered by FECA, and the third party seeks to recover a portion of its payment. Here the basis for the suit against the United States is the Federal Tort Claims Act rather than the Public Vessels Act, but that difference is irrelevant. Congress intended § 8116(c) to apply to suits under both Acts without distinction. See H. R. Rep. No. 729, 81st Cong., 1st Sess., 14 (1949); S. Rep. No. 836, 81st Cong., 1st Sess., 23 (1949). Here Lockheed relies on substantive indemnity law, while the private shipowner in Weyerhaeuser relied on the admiralty divided damages rule, but this is the same irrelevant distinction. The Federal Tort Claims Act permits an indemnity action against the United States “in the same manner and to the same extent” that the action would lie against “a private individual under like circumstances.” 28 U. S. C. §2674; see Stencel Aero Engineering Corp. v. United States, 431 U. S. 666, 669-670 (1977) (citing United States v. Yellow Cab Co., 340 U. S. 543 (1951)). The Public Vessels Act permits an action to recover collision damages on essentially the same terms. To the extent that the basis for the underlying cause of action could make any difference, the indemnity theories on which Lockheed relies are as well established as the divided damages rule was in Weyerhaeuser.
C
The most relevant changes since Weyerhaeuser have been in the LHWCA Amendments of 1972, 86 Stat. 1251. While these changes are illuminating, they do not help the Government’s position. Under the amended LHWCA, an injured longshoreman’s employer is no longer liable to a shipowner for tort damages that the shipowner has paid the employee. See 33 U. S. C. § 905(b). Congress thus overruled the result in Ryan, supra, and abolished the shipowner’s indemnity action. But in so doing, Congress also abolished the injured employee’s seaworthiness remedy against the shipowner — a strict-liability action that the Court had recognized in Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946). In other words, Congress abolished the third-party indemnity action only in conjunction with a “quid pro quo” to benefit the third parties. Here there has been no FECA amendment to abolish the third-party indemnity action recognized in Weyer-haeuser. The Government nevertheless invites us to abolish the action without the benefit of an amendment. We are requested to do this- even though Congress has provided no “quid pro quo” as it thought appropriate in the LHWCA context. We decline the invitation.
rH 1 — i
The District Court held that Lockheed had a right to indemnity under the governing substantive law, but the Court of Appeals did not rule on that question. Accordingly, we do not consider it. We adhere to the decision in Weyerhaeuser, and hold only that FECA’s exclusive-liability provision, 5 U. S. C. § 8116(c), does not directly bar a third-party indemnity action against the United States. We reverse the judgment of the Court of Appeals and remand the case for further consideration consistent with this opinion.
It is so ordered.
The crash occurred during a mission to evacuate over 250 orphans from Vietnam shortly before the fall of Saigon. The incident is discussed in greater detail in Schneider v. Lockheed Aircraft Corp., 212 U. S. App. D. C. 87, 90-91, 658 F. 2d 835, 838-839 (1981) (per curiam), cert. denied, 455 U. S. 994 (1982).
Lockheed also asserted other claims against the United States that are not currently before the Court.
In United Air Lines, Inc. v. Wiener, 335 F. 2d 379, 402-404 (CA9), cert. dism’d sub nom. United Air Lines, Inc. v. United States, 379 U. S. 951 (1964), the court concluded that FECA’s exclusive-liability provision does not bar a third-party indemnification action against the United States. The court held, however, that the Government nevertheless was not liable to the third party. Since there was no underlying tort liability on the Government’s part toward the employee, there was no basis for indemnification.
We note that the decision whether or not to allow third-party indemnity actions is a problem common to all workers’ compensation systems. Professor Larson has described this issue as “[plerhaps the most evenly-balanced controversy in all of workers’ compensation law.” Larson, Third-Party Action Over Against Workers’ Compensation Employer, 1982 Duke L. J. 483, 484.
The FECA exclusive-liability provision was modeled on the analogous provisions of LHWCA and the New York Workmen’s Compensation Law. By 1949 the New York courts already had construed the New York law to permit third-party indemnity actions against the employer. See, e. g., Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N. Y. 175, 15 N. E. 2d 567 (1938); Gorham v. Arons, 76 N. Y. S. 2d 850 (Sup. Ct. N. Y. Cty. 1947); Clements v. Rockefeller, 189 Misc. 885, 70 N. Y. S. 2d 146 (Sup. Ct. N. Y. Cty. 1947).
Contrary to suggestions in the dissent, post, at 199, 200, 201, there is no indication that the Weyerhaeuser Court balanced FECA’s exclusive-liability provision against the divided damages rule. On the contrary, the holding in Weyerhaeuser relates simply to congressional intent. Whatever Congress might have done, it did not intend FECA’s exclusive-liability provision to override the rights of unrelated third parties — including rights asserted under the Public Vessels Act on the basis of the divided damages rule.
We reject the Government’s suggestion that Weyerhaeuser was wrongly decided. See Brief for United States 22. We note that in the 20 years since Weyerhaeuser was decided, Congress has not modified FECA’s exclusive-liability provision to include third parties. This is particularly significant in view of the 1966 codification of FECA, which included amendments to the new § 8116(c). See Pub. L. 89-554, 80 Stat. 542.
As counsel for Lockheed suggested at oral argument, a guardian ad litem for an employee’s minor dependent could be an “other person” under § 8116(c). Tr. of Oral Arg. 7-8.
The validity of Lockheed’s underlying substantive claim is not before us. The District Court ruled that, as a matter of substantive law, indemnity is available to Lockheed against the United States. The Court of Appeals did not find it necessary to rule on this issue.
Since the validity of the substantive indemnity claim is not before us, the LHWCA cases on which the dissent relies, post, at 200-202, are entirely irrelevant. In Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 842 U. S. 282 (1952), decided 4 years before Ryan and 11 years before Weyerhaeuser, the Court merely held that a substantive right of contribution did not exist in the circumstances of that case. The Court explicitly left open the issue whether such a right to contribution, if it were to exist, would be subject to LHWCA’s exclusive-liability provision. 342 U. S., at 286, and n. 12. Atlantic Coast Line R. Co. v. Erie Lackawanna R. Co., 406 U. S. 340 (1972) (per curiam), is nothing more than a three-sentence reaffirmation of Halcyon.
Stencel Aero Engineering Corp. v. United States, 431 U. S. 666 (1977), which the dissent finds “similar,” post, at 202, also offers no support to the Government’s position on this point. The issue in Stencel, again relating to the underlying substantive claim, was whether the Government’s waiver of sovereign immunity in the Federal Tort Claims Act applied to an indemnity action based on an injury to a serviceman. Relying primarily on the military nature of the action, we held that the doctrine of Feres v. United States, 340 U. S. 135 (1950), precluded the substantive claim without regard to any exclusive-liability provision. It is clear that the Government has waived its sovereign immunity here.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_usc2sect
|
22
|
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 11. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
HOILE et al. v. UNITY LIFE INS. CO. (ROWLEY et al., Intervenor).
No. 5055.
Circuit Court of Appeals, Fourth Circuit.
May 18, 1943.
C. S. Bowen, of Greenville, S. C. (Robert L. Ballentine, of Anderson, S. C., and W. E. Bowen, of Greenville, S. C., on the brief), for appellants.
Thomas B. Whaley and R. K. Wise, both of Columbia, S. C. (Wise & Whaley and Fred D. Townsend, all of Columbia, S. C., on the brief), for appellees.
Before SOPER, DOBIE and NORTHCOTT, Circuit Judges.
SOPER, Circuit Judge.
This appeal was taken from an order of the District Court whereby a plea to the jurisdiction was sustained and a creditors’ petition for the reorganization of Unity Life Insurance Company, a South Carolina corporation, under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq., was dismissed. The theory of the creditors is that the debtor is a business, moneyed and commercial corporation entitled to reorganization under the terms of the Act; but the District Judge held that the debtor is not subject to reorganization in this way, because it is either a fraternal benefit company, and as such, not-a moneyed, business or commercial corporation within the meaning of the Act, or it is an insurance company, and as such, expressly excluded from the terms of the Act. See 11 U.S. C.A. §§ 22, 506, 526.
The petition contains the following allegations as to the nature of the corporate business:
“Nature of Corporate Business.
“That the said Unity Life Insurance Company was organized and chartered by the State of South Carolina on or about the 12th day of October, 1934, under the Fraternal Benefit Association Chapter of the South Carolina Code of 1932, embracing sections 8030 to 8072 thereof, both inclusive, and not under the insurance laws of said State, and is a fraternal benefit association, without capital stock and not operating for benefit, but for the mutual protection, relief ar.d benefit of its. members and their families, having a representative form of government, and incidentally, but not as its main purpose, issuing benefit certificates over the lives of its members, payable to said members, their families or designated beneficiaries.
“The nature of said company’s business can be further explained by reference to Section 8030 of the Code aforesaid under which it was incorporated and with which it conformed, and which reads as follows:
“ ‘Any corporation, society, order or voluntary association without a capital stock, organized and carried on solely for the mutual benefit of its members and their beneficiaries, and not for profit, by a lodge system with ritualistic form of work and a representative form of government, and which may make provision for the payment of benefits, in accordance with section 8034, is hereby declared to be a fraternal benefit association.’
“Additional light on the nature of the company’s business is given by the application upon which its charter was issued, the pertinent portion thereof being as follows:
“ ‘The object and purpose of the corporation are to form a Fraternal Benefit Company, without capital stock, to be organized and carried on for the mutual benefit of its members and not for profit, and having a ritualistic form of work and representative form of government, and to make provision for the payment of benefits in accordance with the laws governing fraternal benefit companies. * * *
“ ‘Other objects of this Company are to unite in bonds of fraternalism and benevolence, all acceptable persons of a good moral character and sound bodily health and who believe in the existence of a Supreme Being, to educate and improve the members, morally, socially and intellectually and to furnish insurance protection and benefits upon the lives of such of its members as may be entitled thereto, under the laws, rules and regulations of the Company. * * * > »
Other allegations of the petition show substantially the following facts: The assets of the debtor amount to $171,455.44 and the liabilities to $309,412.57, which include $139,470 in reserves, required to be held to secure the payment of certain benefit certificates. The debtor has more than three thousand members with benefit certificates insuring the members against death, accident and dismemberment, in the sum of approximately $2,400,000. For the last eleven months of the calendar year 1941, dues and premiums collected from the members amounted to $77,657.53 against $15,799.78 in death claims, and $6,764.59 in cash surrender values paid out during the period; and during said period the debtor received an income on investments of $7,-138,12. As the result of the financial condition of the corporation and of certain irregularities in the management of its affairs, a receiver was appointed in the Court of Common Pleas for Richland County, South Carolina; and various questions were raised which were considered on appeal by the Supreme Court of South Carolina wherein the corporation was treated and classed as a fraternal benefit association under the laws of the State, and it was pointed out that such associations are not subject to the laws governing insurance companies except those that are made especially applicable. See Powell v. Gary, 200 S.C. 154, 20 S.E.2d 391; Ex parte Rowley et al., 200 S.C. 174, 20 S.E.2d 383; Morris v. Unity Life Ins. Co., 200 S.C. 166, 20 S.E.2d 388.
This recital of facts clearly shows the alternative perceived by the District Judge that the corporation debtor was either a fraternal benefit association or an insurance company, and requires the conclusion that in either aspect it is not subject to reorganization under the Bankruptcy Act. Considering first the status of the corporation as a fraternal bénefit association and the power of the court to subject it to reorganization in an involuntary proceeding, we must apply § 106 of the Bankruptcy Act as added by the Act of June 22, 1938, Ch. 575, § 1, 52 Stat. 883, 11 U.S.C.A. § 506. This section defines a corporation for the purpose of Chapter X as a corporation which could be adjudged a bankrupt under the Act. Section 1 of the Act of June 22, 1938, 11 U.S.C.A. § 1, declares that “ ‘persons’ shall include corporations except where otherwise specified”; and § 4, subd. a of the Act, 11 U.S.C.A. § 22, sub. a, provides “that any person, except a municipal, railroad, insurance, or banking corporation or a building and loan association, shall be entitled to the benefits of this title as a voluntary bankrupt.” Under, these provisions a fraternal benefit association could be adjudged a bankrupt in a voluntary proceeding; and so it has been held In re Carthage Lodge, D.C.N.D.N.Y., 230 F. 694; In re Grand Lodge, D.C.N.D. Cal., 232 F. 199; Grand Lodge, Knights of Pythias v. O’Connor, 5 Cir., 95 F.2d 477; Grand Lodge, Knights of Pythias v. McKee, 5 Cir., 95 F.2d 474.
The proceeding in the pending case, however, is involuntary in character and we must apply subsection (b) of § 4 of the Act, 11 U.S.C.A. § 22, sub. b, which provides “that any natural person, except a wage earner or farmer, and any moneyed, business, or commercial corporation, except a building and loan association, a municipal, railroad, insurance, or banking corporation, owing debts to the amount of $1,000 or over, may be adjudged an involuntary bankrupt upon default or an impartial trial and shall be subject to the provisions and entitled to the benefits of this title.”
It is contended that Unity Life Insurance Company is “a moneyed, business or commercial corporation” because of the money and property which it owns and the moneys which it collects and pays out in benefits. But this contention is untenable because the phrase by judicial interpretation and reenactment has acquired a meaning which limits it to corporations organized for profit, and the facts in the pending case show that the debtor corporation was organized under the South Carolina statute “for the mutual benefit of its members and their beneficiaries and not for profit”. In a similar case, In re Supreme Lodge of the Masons Annuity, D.C.N.D. Ga., 286 F. 180, 184, to which we had occasion to refer in Sims v. Fidelity Assur. Ass’n, 4 cir., 129 F.2d 442, Judge Sibley held that a fraternal benefit association is not subject to involuntary bankruptcy as a moneyed, business or commercial corporation. See, also, In re Deauville, Inc., D.C.Nev., 52 F.2d 963; cf., In re Roumanian Workers’ Educational Ass’n, 6 Cir., 108 F.2d 782; In re Wisconsin Co-op. Milk Pool, 7 Cir., 119 F.2d 999. We are in accord with this view. The precise question for decision in the cases of In re Order of Sparta, 3 Cir., 242 F. 235, and In re William McKinley Lodge No. 840, F. & A. M., D.C.S.D.N.Y., 4 F.Supp. 280, cited in opposition to this conclusion, was whether an unincorporated fraternal benefit association might be subjected to bankruptcy in an involuntary proceeding, and hence they differ from the pending case in an important particular. We cannot follow these decisions insofar as they may be supposed to support views inconsistent with those herein expressed.
Looking at the pending case from the other aspect, it may be urged that we should disregard the charter of the debtor corporation, the statute law of South Carolina, under which it was formed, and fEe decisions of the Supreme Court of South Carolina, to which we have referred, and should find that the debtor corporation was a fraternal organization in name only, but an insurance company in reality. In respect to such a situation we made the following comment in Sims v. Fidelity Assur. Ass’n, 4 Cir., 129 F.2d 442, 451:
“These authorities establish the rule that in determining whether a corporate debtor is a member of the excepted classes, the provisions of the state law must be given predominating influence. This is not to say that the classification of a state statute must be followed literally in every instance without any regard whatsoever to the real activity of the corporate body. The course of decisions, even in the Second Circuit, where perhaps the rule of state classification has been most strongly stated, indicates that the spirit rather than the letter of the local statutes should prevail; In re Prudence Co., 2 Cir., 79 F.2d 77; Empire Title & Guar. Co. v. United States, 2 Cir., 101 F.2d 69; and the mere fact that a state may have provided for state supervision and liquidation of a kind of corporation does not of itself bring them within the excepted class. In re Prudence Co., supra; Capital Endowment Co. v. Kroeger, 6 Cir., 86 F.2d 976.”
But if we should adopt this view of the facts, the decision must necessarily be the same, for insurance corporations are expressly excepted from adjudication in bankruptcy in either voluntary or involuntary proceedings.
Having reached these conclusions, we have no need to consider whether the financial condition of the debtor corporation, as shown by the allegations of the petition, is so unsound as to support the additional conclusion of the District Judge that the petition for reorganization must be dismissed because it was not filed in good faith within the meaning of the Act, in that it is unreasonable to expect that a plan of reorganization can be affected. See § 146 of the Act as added June 22, 1938, 11 U.S.C.A. § 546. It is established by the decision in Fidelity Assur. Ass’n v. Sims, 63 S.Ct. 807, 87 L.Ed. -, that reorganization proceedings under Chapter X cannot be resorted to for the mere purpose of liquidation.
Affirmed.
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 11? Answer with a number.
Answer:
|
songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
WILLETT MFG. CO. et al. v. ROOT SPRING SCRAPER CO. DEAN et al. v. WEEKS et al.
Nos. 5907, 5908.
Circuit Court of Appeals, Sixth Circuit.
Feb. 5, 1932.
Frank E. Liverance, Jr., of Grand Rapids, Mich. (Harold O. Van Antwerp, of Grand Rapids, Mich., on the brief), for Willett Mfg.* Co.
Fred L. Chappell, of Kalamazoo, Mich. (Chappell & Eai*l, of Kalamazoo, Mich., on the brief), for Root Spring Scraper Co. et al.
Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.
HICKENLOOPER, Circuit Judge.
No. 5907 is an appeal from a decree of the District Court finding claim 4 of patent No. 1,750,610, issued March 11, 1930', upon application of Ernest A. Weeks, valid and infringed. In No. 5908, the complainant below, the defendant in the infringement suit, appeals from a decree refusing to “adjudge that such applicant is entitled, according to law, to receive a patent” (Rev. St. § 4915, 35 TJ. S. C. § 63 [35 USCA § 63]) for the combination set forth in certain broad generic claims which had been the subject of interference proceedings in the Patent Office, and which are sufficiently described by saying that they cover all use of hydraulic means for raising or lowering the blade of a road scraper. We first dispose of cause No. 5908,
A large portion of the record and much of the briefs are devoted to questions of priority of invention as between the parties to the interference, reduction to practice, carrying the date of invention back to the date of conception, application of the doctrine of Morgan v. Daniels, 153 U. S. 120, 14 S. Ct. 772, 38 L. Ed. 657, and related matters. These are interesting questions, but their decision is unnecessary in the instant case. The use of mechanical means for raising or lowering the blade of a road scraper is almost as old as the use of such scrapers. Invention may he exercised in devising a specific form of hydraulic moans for accomplishing this end, just as in improving the mechanical means for doing so; but merely substituting hydraulic, pneumatic, or electrical means t'or the former manually operated mechanical means, is hut the substitution of one well-recognized source of power for another, and ordinarily is not broadly patentable. An exercise of the inventive faculty is not required to conceive, without more, that such substitution may be made. Tom Houston Mfg Co. v. Clyde Iron Works, 32 F.(2d) 558 (C. C. A. 6).
It is true that where the availability of the old device to use in the new environment is not obvious, either because of intrinsic differences in the quality of the operation to be performed, or because the relationship between the two arts or fields of use is remote, invention may he found in the mere concept of such availability to useful service in the new and different environment (Herman v. Youngstown Car Mfg. Co., 191 F. 579 (C. C. A. 6); and compare National Cash Register Co. v. Boston Cash Indicator Co., 156 U. S. 502, 514, 15 S. Ct 434, 39 L. Ed. 511); but this principle is inapplicable here. The field of use is essentially the same whether the work performed be raising an elevator, a dump truck body, or a scraper blade. In this sense the relationship between the arts is not remote. Choice of one or another of the available types of power, apart from the specific means by which such power unit is adapted to the new use, is well within the domain of selection open to the public. Beck-Frost Corp. v. Ford Motor Car Co., 44 F.(2d) 519 (C. C. A. 6). The validity of the patent must then depend upon the existence of a true combination in the specific means disclosed; and an exercise of the inventive faculty is to be found, if at all, in the changes in the old device necessary to adapt it to the new use, and which therefore and thereby produce the new combination. Potts v. Creager, 155 U. S. 597, 606, 15 S. Ct. 194, 39 L. Ed. 275; Kendall v. Trico Products Corp., 31 F.(2d) 522, 524 (C. C. A. 6). Since a valid patent could not issue for the generic claims in interference, the complainant in the District Court was rightly denied relief under Rev. St. § 4915. The court will not perform a wholly vain act. This decree is affirmed.
Passing to appeal No. 5907, it is at once apparent from what we have said that claim 4 cannot he given a broad generic construction. From the very nature of the inventive step the patentee is entitled to hut a comparatively narrow range of equivalents: Doubtless a claim which is susceptible to so broad a construction as to invalidate it may often he saved from invalidity by limiting it to substantially the structure disclosed by the specification; hut even in such case the mode of operation, the means by which the broad generic principle is operatively applied, is of controlling importance. Cf. Merit Oil Equipment Co. v. Fry Equipment Corp., 48 F.(2d) 488 (C. C. A. 6), and Directoplate Corp. v. Donaldson Lithographing Co., 51 F.(2d) 190 (C. C. A. 6).
Applying this thought to the ease at bar, if the patentee be not entitled to claim a monopolistic right in the use of all hydraulic means for raising or lowering the scraper blade (and such hydraulic means would include a hydraulic cylinder with double-acting piston, pump, motor, connections, etc., for these are the customary devices for applying hydraulic power)., and if the inventive step is to be found only in the association of the several elements which, in the environment of such power unit, is new, the defendant cannot be held to infringe unless he has appropriated the substance of that invention ; unless the elements which give novelty to the combination, or their substantial equivalents, are also found in the defendant’s device.
The patent in suit discloses a combination of operating elements which for the purposes of this opinion we assume to be new and useful, and to evidence invention. These elements are a reversible electric motor, a rotary pump, a shut-off valve at one end of the hydraulic cylinder, and a switch in the cab, which, as a single moving part/controls both the shut-off valve and the motor, and therefore also the pump. Defendant’s device operates upon a substantially different principle. The motor is not reversible, and the pump is constructed and adapted to drive the fluid only in one direction. The flow of the oil to one end or the other of the hydraulic cylinder is controlled by a four-way valve manually operated from the cab, and separate from the switch which controls the motor. It is true that each device has a hydraulic cylinder, an electric motor, a pump, and a valve or valves which shut off the cylinder to hold the blade in the desired position, but these elements are all inherent in the very, use of every hydraulic power unit. They are not new in the environment of such a power unit. They add nothing to the novelty of association of elements. The elements which we are assuming were combined for the first time in the device of claim 4 are absent from defendant’s mechanism. The claim may read, literally, upon the defendant’s device, but to save it from invalidity it must be read in the light of the specification as calling for those elements which alone would give it novelty; and, when so read, it is' not infringed.
The District Judge was of the opinion that the unidirectional pump and motor and four-way valve of the", defendant were the mechanical equivalents of the patentee^ reversible motor and pump and his shut-off valve. That both combinations accomplish, the same function of raising and lowering the scraper blade by hydraulic means cannot be denied, but, as we have said, neither this result nor the use of hydraulic means, as such, was patentable. This was to give entirely too broad a meaning to the term “equivalent,” which should not be held to include that which operates in a substantially different manner as well as being substantially different in structural characteristics. Burr v. Duryee, 1 Wall. 531, 572, 17 L. Ed. 650; Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, 568, 18 S. Ct. 707, 42 L. Ed 1136; Directoplate Corp. v. Donaldson Lithographing Co., supra.
It follows that the decree of the District Court (Appeal No. 5907) must be reversed and the cause is remanded, with instructions to dismiss the bill on the ground of noninfringement.
No. 5907, reversed; No. 5908, affirmed.
“4. In an actuating means for road scrapers, tile combination of a rocksbaft, a scraper carried thereby, a hydratilic cylinder with double acting piston, connections from the said piston for operating the said rockshaft, a geared power pump connected to and associated with the said cylinder, an electric motor connected with said power pump, a switch moans in the cab for controlling the said motor, a shut off means for the said hydraulic cylinder to cut off the cylinder when the motor is stopped, as specified.”
The specification describes the operation of these parts as follows: ‘‘.When it [the switch] is moved to either forward or reverse the valve is opened so that the pump can drive the oil from one end of the cylinder 12 to the other and actuate the piston to control the scraper. Automatically the. valve is closed when the current is cut off and the pressure is maintained in the left-hand end of the hydraulic cylinder,” thus holding the blade in place.
Question: What type of court made the original decision?
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. Special DC court
H. Other
I. Not ascertained
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.
ARTHUR ANDERSEN LLP v. UNITED STATES
No. 04-368.
Argued April 27, 2005
Decided May 31, 2005
Rehnquist, C. J., delivered the opinion for a unanimous Court.
Maureen E. Mahoney argued the cause for petitioner. With her on the briefs were Alexandra A. E. Shapiro, J. Scott Ballenger, and Charles A. Rothfeld.
Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Acting Solicitor General Clement, Acting Assistant Attorney General Keeney, Kannon K. Shanmugam, Sangita K. Rao, Andrew Weissmann, and Matthew W. Friedrich.
Briefs of amici curiae urging reversal were filed for the American Institute of Certified Public Accountants by Kelly M. Hnatt and Richard
I. Miller; for the New York Council of Defense Lawyers by Lewis J. Liman; and for the Washington Legal Foundation et al. by Carter G. Phillips, Virginia A. Seitz, Daniel J. Popeo, and Paul D. Kamenar.
Robert N. Weiner and Joshua L. Dratel filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae.
Chief Justice Rehnquist
delivered the opinion of the Court.
As Enron Corporation’s financial difficulties became public in 2001, petitioner Arthur Andersen LLP, Enron’s auditor, instructed its employees to destroy documents pursuant to its document retention policy. A jury found that this action made petitioner guilty of violating 18 U. S. C. §§ 1512(b) (2)(A) and (B). These sections make it a crime to “knowingly us[e] intimidation or physical force, threate[n], or corruptly persuad[e] another person... with intent to ... cause” that person to “withhold” documents from, or “alter” documents for use in, an “official proceeding.” The Court of Appeals for the Fifth Circuit affirmed. We hold that the jury instructions failed to convey properly the elements of a “corrup[t] persuasión]” conviction under § 1512(b), and therefore reverse.
Enron Corporation, during the 1990’s, switched its business from operation of natural gas pipelines to an energy conglomerate, a move that was accompanied by aggressive accounting practices and rapid growth. Petitioner audited Enron’s publicly filed financial statements and provided internal audit and consulting services to it. Petitioner’s “engagement team” for Enron was headed by David Duncan. Beginning in 2000, Enron’s financial performance began to suffer, and, as 2001 wore on, worsened. On August 14, 2001, Jeffrey Skilling, Enron’s Chief Executive Officer (CEO), unexpectedly resigned. Within days, Sherron Watkins, a senior accountant at Enron, warned Kenneth Lay, Enron’s newly reappointed CEO, that Enron could “implode in a wave of accounting scandals.” Brief for United States 2. She likewise informed Duncan and Michael Odom, one of petitioner’s partners who had supervisory responsibility over Duncan, of the looming problems.
On August 28, an article in the Wall Street Journal suggested improprieties at Enron, and the SEC opened an informal investigation. By early September, petitioner had formed an Enron “crisis-response” team, which included Nancy Temple, an in-house counsel. On October 8, petitioner retained outside counsel to represent it in any litigation that might arise from the Enron matter. The next day, Temple discussed Enron with other in-house counsel. Her notes from that meeting reflect that “some SEC investigation” is “highly probable.” Id., at 8.
On October 10, Odom spoke at a general training meeting attended by 89 employees, including 10 from the Enron engagement team. Odom urged everyone to comply with the firm’s document retention policy. He added: “ ‘[I]f it’s destroyed in the course of [the] normal policy and litigation is filed the next day, that’s great.... [W]e’ve followed our own policy, and whatever there was that might have been of interest to somebody is gone and irretrievable.’” 374 F. 3d 281, 286 (CA5 2004). On October 12, Temple entered the Enron matter into her computer, designating the “Type of Potential Claim” as “Professional Practice — Government/Regulatory Inv[estigation].” App. JA-127. Temple also e-mailed Odom, suggesting that he “ ‘remin[d] the engagement team of our documentation and retention policy.’” Brief for United States 6.
On October 16, Enron announced its third quarter results. That release disclosed a $1.01 billion charge to earnings. The following day, the SEC notified Enron by letter that it had opened an investigation in August and requested certain information and documents. On October 19, Enron forwarded a copy of that letter to petitioner.
On the same day, Temple also sent an e-mail to a member of petitioner’s internal team of accounting experts and attached a copy of the document policy. On October 20, the Enron crisis-response team held a conference call, during which Temple instructed everyone to “[m]ake sure to follow the [document] policy.” Brief for United States 7 (brackets in original). On October 23, Enron CEO Lay declined to answer questions during a call with analysts because of “potential lawsuits, as well as the SEC inquiry.” Ibid. After the call, Duncan met with other Andersen partners on the Enron engagement team and told them that they should ensure team members were complying with the document policy. Another meeting for all team members followed, during which Duncan distributed the policy and told everyone to comply. These, and other smaller meetings, were followed by substantial destruction of paper and electronic documents.
On October 26, one of petitioner’s senior partners circulated a New York Times article discussing the SEC’s response to Enron. His e-mail commented that “the problems are just beginning and we will be in the cross hairs. The marketplace is going to keep the pressure on this and is going to force the SEC to be tough.” Id., at 8. On October 30, the SEC opened a formal investigation and sent Enron a letter that requested accounting documents.
Throughout this time period, the document destruction continued, despite reservations by some of petitioner’s managers. On November 8, Enron announced that it would issue a comprehensive restatement of its earnings and assets. Also on November 8, the SEC served Enron and petitioner with subpoenas for records. On November 9, Duncan’s secretary sent an e-mail that stated: “Per Dave— No more shredding. . . . We have been officially served for our documents.” Id., at 10. Enron filed for bankruptcy less than a month later. Duncan was fired and later pleaded guilty to witness tampering.
In March 2002, petitioner was indicted in the Southern District of Texas on one count of violating §§ 1512(b)(2)(A) and (B). The indictment alleged that, between October 10 and November 9, 2001, petitioner “did knowingly, intentionally and corruptly persuade . . . other persons, to wit: [petitioner’s] employees, with intent to cause” them to withhold documents from, and alter documents for use in, “official proceedings, namely: regulatory and criminal proceedings and investigations.” App. JA-139. A jury trial followed. When the case went to the jury, that body deliberated for seven days and then declared that it was deadlocked. The District Court delivered an “Allen charge,” Allen v. United States, 164 U. S. 492 (1896), and, after three more days of deliberation, the jury returned a. guilty verdict. The District Court denied petitioner’s motion for a judgment of acquittal.
The Court of Appeals for the Fifth Circuit affirmed. 374 F. 3d, at 284. It held that the jury instructions properly conveyed the meaning of “corruptly persuades” and “official proceeding”; that the jury need not find any consciousness of wrongdoing; and that there was no reversible error. Because of a split of authority regarding the meaning of § 1512(b), we granted certiorari. 543 U. S. 1042 (2005).
Chapter 73 of Title 18 of the United States Code provides criminal sanctions for those who obstruct justice. Sections 1512(b)(2)(A) and (B), part of the witness tampering provisions, provide in relevant part:
“Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to .. . cause or induce any person to ... withhold testimony, or withhold a record, document, or other object, from an official proceeding [or] alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding... shall be fined under this title or imprisoned not more than ten years, or both.”
In this case, our attention is focused on what it means to “knowingly . . . corruptly persuad[e]” another person “with intent to . . . cause” that person to “withhold” documents from, or “alter” documents for use in, an “official proceeding.”
“We have traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress, Dowling v. United States, 473 U. S. 207 (1985), and out of concern that ‘a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed,’ McBoyle v. United States, 283 U. S. 25, 27 (1931).” United States v. Aguilar, 515 U. S. 593, 600 (1995).
Such restraint is particularly appropriate here, where the act underlying the conviction — “persua[sion]”—is by itself innocuous. Indeed, “persuading]” a person “with intent to . . . cause” that person to “withhold” testimony or documents from a Government proceeding or Government official is not inherently malign. Consider, for instance, a mother who suggests to her son that he invoke his right against compelled self-incrimination, see U. S. Const., Amdt. 5, or a wife who persuades her husband not to disclose marital confidences, see Trammel v. United States, 445 U. S. 40 (1980).
Nor is it necessarily corrupt for an attorney to “per-suad[e]” a client “with intent to . . . cause” that client to “withhold” documents from the Government. In Upjohn Co. v. United States, 449 U. S. 383 (1981), for example, we held that Upjohn was justified in withholding documents that were covered by the attorney-client privilege from the Internal Revenue Service (IRS). See id., at 395. No one would suggest that an attorney who “persuade[d]” Upjohn to take that step acted wrongfully, even though he surely intended that his client keep those documents out of the IRS’ hands.
“Document retention policies,” which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business. See generally Chase, To Shred or Not to Shred: Document Retention Policies and Federal Obstruction of Justice Statutes, 8 Ford. J. Corp. & Fin. L. 721 (2003). It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.
Acknowledging this point, the parties have largely focused their attention on the word “corruptly” as the key to what may or may not lawfully be done in the situation presented here. Section 1512(b) punishes not just “corruptly persuading]” another, but “knowingly . . . corruptly persuading]” another. (Emphasis added.) The Government suggests that “knowingly” does not modify “corruptly persuades,” but that is not how the statute most naturally reads. It provides the mens rea — “knowingly”—and then a list of acts — “uses intimidation or physical force, threatens, or corruptly persuades.” We have recognized with regard to similar statutory language that the mens rea at least applies to the acts that immediately follow, if not to other elements down the statutory chain. See United States v. X-Citement Video, Inc., 513 U. S. 64, 68 (1994) (recognizing that the “most natural grammatical reading” of 18 U. S. C. §§ 2252(a)(1) and (2) “suggests that the term ‘knowingly’ modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces”); see also Liparota v. United States, 471 U. S. 419 (1985). The Government suggests that it is “questionable whether Congress would employ such an inelegant formulation as ‘knowingly . . . corruptly persuades.’” Brief for United States 35, n. 18. Long experience has not taught us to share the Government’s doubts on this score, and we must simply interpret the statute as written.
The parties have not pointed us to another interpretation of “knowingly . . . corruptly” to guide us here. In any event, the natural meaning of these terms provides a clear answer. See Bailey v. United States, 516 U. S. 137, 144-145 (1995). “[K]nowledge” and “knowingly” are normally associated with awareness, understanding, or consciousness. See Black’s Law Dictionary 888 (8th ed. 2004) (hereinafter Black’s); Webster’s Third New International Dictionary 1252-1253 (1993) (hereinafter Webster’s 3d); American Heritage Dictionary of the English Language 725 (1981) (hereinafter Am. Hert.). “Corrupt” and “corruptly” are normally associated with wrongful, immoral, depraved, or evil. See Black’s 371; Webster’s 3d 512; Am. Hert. 299-300. Joining these meanings together here makes sense both linguisti-eally and in the statutory scheme. Only persons conscious of wrongdoing can be said to “knowingly . . . corruptly per-suadí].” And limiting criminality to persuaders conscious of their wrongdoing sensibly allows § 1512(b) to reach only those with the level of “culpability ... we usually require in order to impose criminal liability.” United States v. Aguilar, 515 U. S., at 602; see also Liparota v. United States, supra, at 426.
The outer limits of this element need not be explored here because the jury instructions at issue simply failed to convey the requisite consciousness of wrongdoing. Indeed, it is striking how little culpability the instructions required. For example, the jury was told that, “even if [petitioner] honestly and sincerely believed that its conduct was lawful, you may find [petitioner] guilty.” App. JA-213. The instructions also diluted the meaning of “corruptly” so that it covered innocent conduct. Id., at JA-212.
The parties vigorously disputed how the jury would be instructed on “corruptly.” The District Court based its instruction on the definition of that term found in the Fifth Circuit Pattern Jury Instruction for § 1503. This pattern instruction defined “corruptly” as “ ‘knowingly and dishonestly, with the specific intent to subvert or undermine the integrity’ ” of a proceeding. Brief for Petitioner 3, n. 3 (emphasis deleted). The Government, however, insisted on excluding “dishonestly” and adding the term “impede” to the phrase “subvert or undermine.” Ibid, (internal quotation marks omitted). The District Court agreed over petitioner’s objections, and the jury was told to convict if it found petitioner intended to “subvert, undermine, or impede” governmental factfinding by suggesting to its employees that they enforce the document retention policy. App. JA-212.
These changes were significant. No longer was any type of “dishonest[y]” necessary to a finding of guilt, and it was enough for petitioner to have simply “impede[d]” the Government’s factfinding ability. As the Government conceded at oral argument, “ ‘[ijmpede’ ” has broader connotations than “‘subvert’” or even ‘“[u]ndermine,’” see Tr. of Oral Arg. 38, and many of these connotations do not incorporate any “corrupt[ness]” at all. The dictionary defines “impede” as “to interfere with or get in the way of the progress of” or “hold up” or “detract from.” Webster’s 3d 1132. By definition, anyone who innocently persuades another to withhold information from the Government “get[s] in the way of the progress of” the Government. With regard to such innocent conduct, the “corruptly” instructions did no limiting work whatsoever.
The instructions also were infirm for another reason. They led the jury to believe that it did not have to find any nexus between the “persua[sion]” to destroy documents and any particular proceeding. In resisting any type of nexus element, the Government relies heavily on § 1512(e)(1), which states that an official proceeding “need not be pending or about to be instituted at the time of the offense.” It is, however, one thing to say that a proceeding “need not be pending or about to be instituted at the time of the offense,” and quite another to say a proceeding need not even be foreseen. A “knowingly . . . corrup[t] persaude[r]” cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material.
We faced a similar situation in Aguilar, supra. Respondent Aguilar lied to a Federal Bureau of Investigation agent in the course of an investigation and was convicted of “ 'corruptly endeavoring] to influence, obstruct, and impede [a]... grand jury investigation’ ” under § 1503. 515 U. S., at 599. All the Government had shown was that Aguilar had uttered false statements to an investigating agent “who might or might not testify before a grand jury.” Id., at 600. We held that § 1503 required something more — specifically, a “nexus” between the obstructive act and the proceeding. Id., at 599-600. “[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding,” we explained, “he lacks the requisite intent to obstruct.” Id., at 599.
For these reasons, the jury instructions here were flawed in important respects. 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.
We refer to the 2000 version of the statute, which has since been amended by Congress.
During this time, petitioner faced problems of its own. In June 2001, petitioner entered into a settlement agreement with the Securities and Exchange Commission (SEC) related to its audit work of Waste Management, Inc. As part of the settlement, petitioner paid a massive fine. It also was censured and enjoined from committing further violations of the securities laws. In July 2001, the SEC filed an amended complaint alleging improprieties by Sunbeam Corporation, and petitioner’s lead partner on the Sunbeam audit was named.
A key accounting problem involved Enron’s use of “Raptors,” which were special purpose entities used to engage in “off-balance-sheet” activities. Petitioner’s engagement team had allowed Enron to “aggregate” the Raptors for accounting purposes so that they reflected a positive return. This was, in the words of petitioner’s experts, a “black-and-white” violation of Generally Accepted Accounting Principles. Brief for United States 2.
The firm's policy called for a single central engagement file, which “should contain only that information which is relevant to supporting our work.” App. JA-45. The policy stated that, “[i]n cases of threatened litigation, ... no related information will be destroyed.” Id., at JA-44. It also separately provided that, if petitioner is “advised of litigation or subpoenas regarding a particular engagement, the related information should not be destroyed. See Policy Statement No. 780 — Notification of Litigation.” Id., at JA-65 (emphasis deleted). Policy Statement No. 780 set forth “notification” procedures for whenever “professional practice litigation against [petitioner] or any of its personnel has been commenced, has been threatened or is judged likely to occur, or when governmental or professional investigations that may involve [petitioner] or any of its personnel have been commenced or are judged likely.” Id., at JA-29 to JA-30.
The release characterized the charge to earnings as “non-recurring.” Brief for United States 6, n. 4. Petitioner had expressed doubts about this characterization to Enron, but Enron refused to alter the release. Temple wrote an e-mail to Duncan that “suggested deleting some language that might suggest we have concluded the release is misleading.” App. JA-95.
For example, on October 26, John Riley, another partner with petitioner, saw Duncan shredding documents and told him “this wouldn’t be the best time in the world for you guys to be shredding a bunch of stuff.” Brief for United States 9. On October 31, David Stulb, a forensics investigator for petitioner, met with Duncan. During the meeting, Duncan picked up a document with the words “smoking gun” written on it and began to destroy it, adding “we don’t need this.” Ibid. Stulb cautioned Duncan on the need to maintain documents and later informed Temple that Duncan needed advice on the document retention policy.
Compare, e.g., United States v. Shotts, 145 F. 3d 1289, 1301 (CA11 1998), with United States v. Farrell, 126 F. 3d 484, 489-490 (CA3 1997).
Section 1512(b)(2) addresses testimony, as well as documents. Section 1512(b)(1) also addresses testimony. Section 1512(b)(3) addresses “persuade[rs]” who intend to prevent “the communication to a law enforcement officer or judge of the United States of information” relating to a federal crime.
The parties have pointed us to two other obstruction provisions, 18 U. S. C. §§ 1503 and 1505, which contain the word “corruptly.” But these provisions lack the modifier “knowingly,” making any analogy inexact.
We disagree with the Government’s suggestion that petitioner’s “nexus” argument is not preserved or that it is only subject to plain-error review for failure to comply with Federal Rule of Criminal Procedure 30(d). Petitioner plainly argued for, and objected to the instructions’ lack of, a nexus requirement. See, e. g., Record 425 (arguing for a “nexus” and explaining that “it is insufficient for the government to show that the defendant intended to affect some hypothetical future federal proceeding”); id., at 931-932, 938; Tr. 4339-4345 (May 25, 2002). In so doing, it reasonably relied on language in United States v. Shively, 927 F. 2d 804, 812-813 (CA5 1991). Although the instruction petitioner proposed, based on Shively, does not mirror the nexus requirement it now proposes, its actions were sufficient to satisfy Rule 30(d). This argument also was preserved in the Court of Appeals, which recognized that petitioner was challenging “the concreteness of the defendant’s expeetation[s] of a proceeding.” 374 F. 3d 281, 298 (CA5 2004); see United States v. Williams, 504 U. S. 36, 41-42 (1992). However, the Court of Appeals did not address, and petitioner did not preserve, its argument that informal inquiries are not covered by the statute. See ibid.
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
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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 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.
George Washington PIERCE, Plaintiff-Appellant, v. HEWLETT-PACKARD COMPANY et al., Defendants-Appellees.
No. 4902.
United States Court of Appeals, First Circuit.
Argued Jan. 6, 1955.
Decided March 30, 1955.
Rehearing Denied May 2,1955.
David Rines and Robert H. Rines, Boston, Mass., with whom Rines & Rines, Boston, Mass., were on the brief, for appellant.
William R. Hulbert, Boston, Mass., with whom William Rymer, Jr., Fish, Richardson & Neave, Boston, Mass., and Flehr & Swain, San Francisco, Cal., were on the brief, for appellees.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
HARTIGAN, Circuit Judge.
This is an appeal from an order of the United States District Court for the District of Massachusetts entered October 22, 1954, denying the plaintiff’s motion for a preliminary injunction and granting the defendants’ motion for partial summary judgment. In his complaint the plaintiff alleged infringement of six patents including claims 51, 52, 54, 55, 56 and 61 to 68 inclusive, of patent No. 2,133,642. The defendants, after the plaintiff moved for a preliminary injunction confined to the defendants’ asserted infringement of the above enumerated claims of patent No. 2,133,642, moved for a partial summary judgment declaring those claims invalid. The district court in granting the defendants’ motion based its decision on the ground that this Court in American Communications Co. v. Pierce, 1 Cir., 1953, 208 F.2d 763, certiorari denied, 1954, 347 U.S. 944, 74 S.Ct. 639, 98 L.Ed. 1092, rehearing denied 347 U.S. 970, 74 S.Ct. 775, 98 L.Ed. 1111; had adjudicated these enumerated claims void for double patenting.
The plaintiff bases his appeal in effect on two grounds: (1) that this Court in American Communications Co. v. Pierce, supra, did not hold these claims to be invalid for double patenting and (2) that these claims are not invalid for double patenting.
The plaintiff in his construction of our opinion in the American Communications Co. case has, as Judge Wyzanski so aptly phrased it, ignored the main thrust of that opinion.
In our decision we relied on the law set forth in Miller v. Eagle Manufacturing Co., 1894, 151 U.S. 186, 14 S.Ct. 310, 38 L.Ed. 121, and Palmer Pneumatic Tire Co. v. Lozier, 6 Cir., 1898, 90 F. 732. It is not necessary now to repeat the language we cited in the American Communications Co. case from the Miller and Palmer Pneumatic Tire Co. opinions. It is enough to say that we found in the American Communications Co. case that the plaintiff in patents Nos. .1,789,496 and 2,133,642 made only one distinctive contribution to the “Progress of Science and useful Arts,” U.S.Const. Art. I, § 8, and that was the invention of a two electrode piezo-electric crystal in a single vacuum tube circuit. The utility of this invention was that it obtained to a much greater extent than had been previously possible a constant frequency of oscillations.
The plaintiff now contends that this Court did not understand that the result obtained under his earlier patent No. 1,789,496 was a constant beat frequency resulting from the difference in the frequency of oscillations of the receiver and the frequency of oscillations of the transmitter. This beat is comparable to the beat produced when two tuning forks are caused to vibrate at slightly different frequencies, but in place of the tuning forks are two oscillating circuits, one in the transmitter and one in the receiver. But there is no element of invention in the idea that if one employs two circuits each of which produces oscillations at constant or stabilized frequencies the beat resulting from the difference between these two frequencies would be more stabilized and constant than would be the case if each of the circuits produced oscillations at frequencies which could not be fully controlled. In other words, it is obvious that if a transmitter is able to operate at a constant frequency and the corresponding receiver also operates at a constant frequency that any beat resulting from their combination will also be more constant than would be the case if the receiver or transmitter or both were unable to operate at a constant frequency.
The plaintiff cannot claim that patent No. 1,789,496 is a valid invention merely on the ground that through it a beat is produced for in Kintner v. Atlantic Communication Co., D.C.S.D.N.Y.1917, 241 F. 956, the use of oscillating circuits to obtain a beat was shown to be the subject of a patent antedating the plaintiff’s application by almost twenty years. The plaintiff also cannot successfully contend that his earlier patent No. 1,789,496 constitutes a valid invention merely because through the employment of prior art electromechanical vibrators it obtains a more constant beat, for prior to the plaintiff’s application for his patent electromechanical vibrators had been used in an attempt to stabilize the frequency of oscillations of an electric circuit. Although these earlier electromechanical vibrators were less efficient than the plaintiff’s two electrode piezoelectric crystal in maintaining a constant frequency of oscillations, they did achieve some control over the frequency of oscillations and consequently when employed in transmitting and receiving equipment a more constant beat would be produced than had been possible in circuits not employing such electromechanical vibrators.
The plaintiff received patent No. 1,789,496 only because of his contribution of a device which stabilized the frequency of oscillations of an electric circuit. Without this device the patent would not have been granted. The plaintiff cannot extract this essential element and make it the subject of a subsequent patent. Palmer Pneumatic Tire ■Co. v. Lozier, supra, 90 F. at page 744; .see Application of Horneman, 1952, 194 F.2d 108, 39 C.C.P.A., Patents, 809. The Pierce oscillator, the subject of patent No. 2,133,642 rather than the production of a constant beat, is the essential distinguishing feature of combination patent No. 1,789,496. See Application of Coleman, 1951, 189 F.2d 976, 38 C.C. P.A., Patents, 1156.
In Palmer v. John E. Brown Mfg. Co., 1 Cir., 1899, 92 F. 925, cited by the plaintiff, the patentee’s combination patent was sustained on the ground that the invention of a quilting machine which was the result of combining the paten-tee’s “mechanical movement”, .the subject of his basic patent, with a workholder and sewing machine required perception as such combination was not an obvious one. In the instant case, the inclusion of the plaintiff’s piezo-electric oscillator in a transmitting and receiving system did not involve any element of perception, as the principal purpose of the oscillator, if not its only purpose, was in the transmission or reception of intelligence by means of high frequency currents.
The plaintiff in 1924 applied for one patent but the Patent Office erroneously required a divisional application with regard to the claims now found in patent No. 1,789,496. The Patent Office thus in effect stated that the plaintiff had two separate inventions, but we are not bound by such a holding and the patent in issue will not be sustained merely because of a requirement of division ordered by the Patent Office.
The plaintiff contends that section 121 of the Patent Act of 1952 should be applied by the Court in the instant case and that this statute would prevent the use of the plaintiff’s earlier patent as a reference in this case. However, the statute expressly refers to patents “* * * issuing on an application with respect to which a requirement for restriction under this section has been made * * The Patent Act of 1952 took effect on January 1, 1953. Plaintiff’s patent No. 2,133,642 was granted on October 18, 1938. It was, therefore, impossible for the plaintiff’s patent to have been issued on an application which was required to be restricted under the 1952 Act and consequently § 121 is inapplicable in the instant case. See Application of Eisler, 1953, 203 F.2d 726, 40 C.C.P.A., Patents, 913.
The judgment of the district court is affirmed.
. 35 U.S.O.
Ҥ 123. Divisional applications
“If two or more independent and distinct inventions are claimed in one application, the Commissioner may require the application to be restricted to one of the inventions. If the other invention is made the subject of a divisional application which complies with the requirements ‘of section 120 of this title it shall be entitled to the benefit of the filing date of the original application. A patent issuing on an application with respect to which a requirement for restriction under this section has been made, or on an application filed as a result of such a requirement, shall not be used as a reference either in the Patent Office or in the courts against a divisional application or against the original application or any patent issued on either of them, if the divisional application is filed before the issuance of the patent on the other application. If a divisional application is directed solely to subject matter described and claimed in the original application as filed, the Commissioner may dispense with signing and execution by the inventor. The validity of a patent shall not be questioned for failure of the Commissioner to require the application to be restricted to one invention.”
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_treat
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C
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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.
UNITED STATES v. DE VITO et al.
No. 291.
Circuit Court of Appeals, Second Circuit.
Jan. 29, 1934.
Blake, Stim & Curran, of New York City (Isidore Beerman, of New York City, and Harold L. Cowin, of Brooklyn, N. Y., of counsel), for appellants.
Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg and Kenneth E. Vought, Asst. U. S. Attys., both of Brooklyn, N. Y., of counsel), for the United States.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
CHASE, Circuit Judge.
The appellants, together with James Fer-rano, who has not appealed, were convicted on four of five counts in the indictment. Three other men were indicted with them, but there was a severance as to them on motion of the government. The fourth count charging unlawful possession of intoxicating liquor was dismissed by the court.
The first count charged a conspiracy to possess unlawfully an unregistered still; the second charged the unlawful possession of an unregistered still; the third charged the unlawful manufacture of intoxicating liquor; and the fifth the maintenance of a nuisance. Suspended sentences were imposed on the conviction under the first, third, and fifth counts. This appeal relates only to the second count, which charged'the unlawful possession of an unregistered still.
The government proved by two officers of the police department of the city of New York that they went with other police officers to the premises of the Summitt Coal & Lumber Company at 485 Mosel avenue, Grassmere, N. Y., on March 20, 1933. They found a building about which they smelled the odor of alcohol. One of them climbed up to the roof on a ladder by the side of the building and looked through a window. He then saw a copper column inside the building extending úp to the roof. The officers then went to the door, which was hooked on the inside, inserted a stick through a crack to raise the hook, and entered. They found the defendants, and another man who has since been deported, standing in a group at the right of the door near a boiler. A large still was in operation in plain sight of all, but no one was working about it. Appellant De Vito was dressed in street clothes and wore a hat. He was served with a summons in a proceeding relating to a fire hazard, and no question of unlawful entry is involved. The officers could not remember how the others were dressed. The men were arrested and refused to answer questions except to give their names and- addresses. The premises were searched, and some overalls and shirts were found, but no questions were asked regarding them. Samples of mash and liquor were taken. The liquor contained 95 per cent, of ethyl alcohol by volume, and was fit for use for beverage purposes. Upon investigation later by a prohibition officer, not one of the addresses given by the appellants was found to be correct. When so much had been proved, the government rested.
Each of the appellants testified in defense and explained his presence inside the building where the still was as follows:
De Vito said he had entered the building a few minutes before the officers went in to see if his cousin was there. He said he had a job for his cousin and went to the coalyard in the belief that he might find him somewhere about the place. He said the door was open when he walked into the building where the still was, and that he saw no one close it after he entered.
Ferraro said he had formerly worked for the coal company and had gone there to try to get a job; that, while he was sitting on some scales, Davis, the man who has been deported, gave him a dollar and asked him to go and buy some sandwiches for him; that, when he got back, Davis was not at the scales, so he walked to the budding and went in through the open door. Davis told him to keep 70 cents of the money and get out, but he had not gone when the officers entered.
Berman testified that he was a plumber. He had worked for a man named Pierce putting in a water main for the coal company about three weeks before, and had gone to the promises to find out about his pay. He went to the office, and was told by the girl there that the boss was over in the lumber building. He went there, opened the door, walked in, and asked for the boss. Davis asked him what he wanted, and Berman replied that he wanted to find the boss to get his pay for working cn the water main, and that if he' was not paid ho was going “to turn this place in.”
Marrone testified that he went to the yard to buy some lumber he wanted to use to repair two bungalows, and that he was arrested just before he got to the yard and taken into the building where the others were.
Rosen testified that he got into eonveisation that day with another passenger on a train from Coney Island to New York. This man offered him a job which he was so glad to get that he inquired no more about it. They went to Staten Island and to the coal-yard, where they went into the building containing the still. There was one man inside who went out after the man who had brought Rosen said something to him which Rosen did not hear. Then Berman came in and began to talk about money; Ferraro next entered with some package whose contents he did not know; then De Vito came in and asked for somebody; and a few minutes later the officers entered. He thought they had Marro ne with them.
It was on this evidence that the appellants were convicted of possessing an unregistered still. The still was there, and it was unregistered. They were there also. In spite of the conflict in the evidence, the jury was justified in finding that Man-one was inside the building when the officers testified. Their presence there with the still in operation was a suspicious circumstance. So was the fact that the addresses they gave did not prove to be correct when investigated. If suspicious circumstances were enough, "the evidence would be sufficient to support the conviction. But that is not enough, of course. Graceffo v. United States (C. C. A.) 46 F.(2d) 852. Granted that the statute, section 3258 Rev. St. (26 USCA § 281), does not make it necessary to show possession, but that custody or control is enough, and that it would be unreasonable to believe that the still would have been in operation with no one having it in custody or control; the evidence is woefully weak in any showing that these appellants or any of them had the custody or control of it. They might have. Any one of them might have. Davis might have; and so might one or more now unknown. They were unfortunate enough to be inside at the moment the officers entered. Had they been working there and had the custody and control of the still, the appearance of their clothing might, perhaps, have given some indication of it. But the officers could remember only how De Vito was dressed, and his clothing was not the kind a workman at a still would be expected to wear. There was no evidence that the clothing of any of the ethers indicated that its wearer was working there. Nor that the operation of the still required the services of so many. The burden, of course, was on the government to prove beyond a reasonable doubt that these defendants were guilty as charged in the second count. The proof that all were guilty rises only to the level of suspicion, and, as there is nothing to distinguish one from another in this respect, the guilt of none was proved.
Judgment on the second count reversed.
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
|
99
|
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.
DELTA ENGINEERING CORPORATION and the Travelers Insurance Company, Appellants, v. Joseph Ruby SCOTT et al., Appellees. COLUMBIAN ROPE COMPANY, Appellant, v. Joseph Ruby SCOTT, Appellee. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Joseph Ruby SCOTT, Appellee. Joseph Ruby SCOTT, Appellant, v. DELTA ENGINEERING CORPORATION et al., Appellees.
No. 19861.
United States Court of Appeals Fifth Circuit.
Jan. 2, 1964.
For original opinion see 5 Cir., 322 F.2d 11.
Robert B. Acomb, Jr., George Denegre, A. R. Christovich, Charles Kohlmeyer, Jr., Thomas W. Thorne, Jr., New Orleans, La., for appellants.
Donald V. Organ, Christopher Tompkins, New Orleans, La., for appellees.
Before CAMERON and BROWN, Circuit Judges, and WHITEHURST, District Judge.
PER CURIAM.
The several petitions for rehearing are denied. So far as the contention by Delta Engineering Corporation (The Travelers Insurance Company) that payment to the plaintiff Scott of the judgment due by them to him and now affirmed by our opinion will render ineffectual their possible right to recover contribution or the like from Columbian Rope Company, the District Court on remand for the limited retrial shall be free to stay execution on that judgment on such terms and suitable security as required in its discretion to assure ulti- ' mate payment of the full amount of the judgment by Delta-Travelers to Scott with interest and costs. If, to preserve possible rights by Delta-Travelers against Columbian the plaintiff Scott is to be delayed in enjoying the fruits of the judgment heretofore affirmed in his favor, he is entitled to full security and protection.
Denied.
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_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, Appellee, v. Richard ROSARIO, Appellant,
No. 268, Docket 28151.
United States Court of Appeals Second Circuit.
Argued Jan. 15, 1964.
Decided Feb. 10, 1964.
Michael S. Fawer, Asst. U. S. Atty., New York, N. Y. (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, and Charles A. Stillman, Asst, U. S. Atty., New York, City, on the brief), for appellee.
Joseph I. Stone, New York City, for annellant
Before LUMBARD, Chief Judge, and SWAN and SMITH, Circuit Judges.
LUMBARD, Chief Judge:
Richard Rosario appeals from a judgment of conviction on two counts of a three-count indictment charging him with conspiracy to sell and with the sale 0f narcotics knowing the same to have been illegally imported. 21 U.S.C. §§ 173-174. Judgment was entered in the Southern District of New York after a two-day trial before Judge Croake, sit-without a jury_ Finding no error> we affirm ^ judgment of the district ^ ‘
,. , ,. Three federal narcotics agents testified to the following course of events. On October 15, 1962, at approximately 7:00 P-M- agent Weinberg was introduced to the defendant Rosario by a special em-pl°yee’ or ^former, in the area of 145th Street and Broadway in Manhattan. After a brief discussion concerning the amount of heroin Weinberg desired to purchase and the sale price, Rosario indicated that either he or someone else would return shortly to deliver the narcoties. At approximately 7:30 P.M., Rosario returned and informed Weinberg an(l the informer that he would deliver the narcotics at 9:30 at 136th Street and Broadway. These activities were observed by agents Cockerille and Panella.
A few minutes after Weinberg and the informer had arrived at 136th Street and Broadway, they were met by Rosario and Michael Del Rosario, a co-defendant wbo ultimately pleaded guilty and whom ROSario had met in a restaurant just after the defendant’s second meeting with Weinberg. Apparently feeling that the area was not safe for a delivery, Rosario directed Weinberg to come to the uptown side of the subway entrance on 79th Street and Broadway.
Soon after Weinberg and the informer arrived at the subway station Del Rosario met them and handed Weinberg a bag; Weinberg gave Del Rosario $150 and told him that if the supply was good he would purch+f! “°re‘ ?el Rosari° asfUl;ed him that the supply was good and also stated that he was working for someone named Richie, the name by which Rosario had first been introduced to Weinberg. As the three emerged from the subway station Del Rosario approached Rosario, who had arrived with Del Rosario but had waited outside the station. Del Rosario was observed by Panella and Coek-erille passing the money to Rosario. The bag received by Weinberg was subsequently found to contain heroin in a glassine envelope. The next day Weinberg against purchased heroin from Del Rosario, who again met Rosario after the delivery.
Rosario raises two principal claims of error, first that the government’s evidence failed to support a finding that he had constructive possession of the narcotics passed from Del Rosario to Weinberg, and second that the trial judge improperly refused to direct the government to disclose the true name of the informer.
Constructive possession may be established by a showing of dominance and control over the narcotics although physical custody remains in an agent over whom the defendant exercises control. United States v. Hernandez, 290 F.2d 86 (2 Cir. 1961). Here, the evidence well supports Judge Croake’s finding that Rosario “was no casual participant in any of the above transactions; in each he was the active promoter who assured the delivery of heroin to the undercover agent. In each instance he put into motion the chain of events which led to the sale of heroin to the undercover agent, culminating in delivery of the heroin by the codefendant, Michael Del Rosario.”
We find no error in the government’s refusal to disclose the true name of the informer. Agent Cockerille, on direct examination, testified that one name by which the informer was known was Roy Cummings. Agents Weinberg and Panella were questioned on cross-examination as to the true name of the informer, but Judge Croake sustained government objections. Del Rosario testified for the defense and stated that although agent Weinberg was present at both sales a man he knew as Roy Cummings had given Del Rosario the money and received the narcotics. Rosario, testifying on his own behalf, stated that he-was an addict and admitted that he knew-Roy Cummings and that they had occasionally exchanged narcotics and that he and Del Rosario had occasionally given each other money. Rosario denied any complicity in the transactions of October 15 and 16, declaring that he had not been present at any of them.
It is thus clear that both the defendant and Del Rosario knew the informer-under the name of Roy Cummings.. Moreover, Rosario testified that he knew where Cummings usually could be located', but that he had made no attempt to do-so. Although Rosario’s attorney cross-examined agent Cockerille about an alleged conversation between him and Cummings when Cummings was in prison at, some prior time, the attorney did not even pursue this information so far as-, to inquire as to Cummings’ whereabouts, at the time of Rosario’s trial or where-he might be located. In short there is, no showing that the defense really sought to locate Cummings. Nor has any showing been made that the failure to learn his real name could have prejudiced the-defense.
In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Supreme Court stated: “Where the-disclosure of an informer’s identity, or of the contents of his communication, is. relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege [of nondisclosure] must give way.” However,, the Court did caution that the resolution of these questions requires a balancing of" the public interest in the continued flow of information against the right of the-accused adequately to prepare his defense.
While, of course, it is possible that. Cummings would have supported Rosario’s unlikely story, there is certainly-nothing in this record to suggest that he would have done so. Moreover, since-the defendant here knew the identity of" the informer — at least by an alias— and knew the places he frequented, in the-absence of some showing that the defendant made a diligent attempt to locate Cummings but could not do so without further information, we are unable to see any prejudice to the defense arising from the government’s position.
Our disposition of this case does not negate the government’s obligation to disclose the informer’s identity or information about him where it is clear that the defense is in need of this information in order to secure his attendance to testify. Indeed, there may be •eases where the government would be under a duty to produce the informer, if it is able to do so. But this case falls far short of establishing that the government’s failure to supply information amounts to error. Of course, where the reliability of the informer’s information is essential to establish probable cause, the government must give the information or suffer the consequence. United States v. Robinson, 325 F.2d 391 (2 Cir. 1963).
The judgment of the district court is therefore affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_authoritydecision
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
AMERICAN SOCIETY OF MECHANICAL ENGINEERS, INC. v. HYDROLEVEL CORP.
No. 80-1765.
Argued January 13, 1982
Decided May 17, 1982
Blackmun, J., delivered the opinion of the Court, in which BRENNAN, Marshall, Stevens, and O’Connor, JJ., joined. Burger, C. J., filed an opinion concurring in the judgment, post, p. 578. Powell, J., filed a dissenting opinion, in which White and Rehnquist, JJ., joined, post', p. 578.
Harold R. Tyler, Jr., argued the cause for petitioner. With him on the briefs were Richard D. Parsons, Frederick T. Davis, and Steven C. Charen.
Carl W. Schwarz argued the cause for respondent. With him on the brief were Stephen P. Murphy and William H. Barrett.
Deputy Solicitor General Shapiro argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Lee, Assistant Attorney General Baxter, Barry Grossman, and Ernest J. Isenstadt.
Briefs of amici curiae urging reversal were filed by Michael D. Brown for the American Association of Engineering Societies, Inc.; by Lewis H. Van Dusen, Jr., for the American Society for Testing and Materials; by Robert J. Siverd for the Institute of Electrical and Electronics Engineers, Inc.; by David Crump for the Legal Foundation of America; and by Daniel J. Piliero II for the National Fire Protection Association.
Merle L. Royce and James P. Chapman filed a brief for ECOS Electronic Corp. as amicus curiae urging affirmance.
Briefs of amici curiae were filed by Henry A. Field, Jr., for Adolph J. Ackerman; and by Kim Zeitlin for the National Commission for Health Certifying Agencies.
Justice Blackmun
delivered the opinion of the Court.
Petitioner, the American Society of Mechanical Engineers, Inc. (ASME), is a nonprofit membership corporation organized in 1880 under the laws of the State of New York. This case presents the important issue of the Society’s civil liability under the antitrust laws for acts of its agents performed with apparent authority. Because the judgment of the Court of Appeals upholding civil liability is consistent with the central purposes of the antitrust laws, we affirm that judgment.
I
ASME has over 90,000 members drawn from all fields of mechanical engineering. It has an annual operating budget of over $12 million. It employs a full-time staff, but much of its work is done through volunteers from industry and government. The Society engages in a number of activities, such as publishing a mechanical engineering magazine and conducting educational and research programs.
In addition, ASME promulgates and publishes over 400 separate codes and standards for areas of engineering and industry. These codes, while only advisory, have a powerful influence: federal regulations have incorporated many of them by reference, as have the laws of most States, the ordinances of major cities, and the laws of all the Provinces of Canada. See Brief for Petitioner 2. Obviously, if a manufacturer’s product cannot satisfy the applicable ASME code, it is at a great disadvantage in the marketplace.
Among ASME’s many sets of standards is its Boiler and Pressure Vessel Code. This set, like ASME’s other codes, is very important in the affected industry; it has been adopted by 46 States and all but one of the Canadian Provinces. See id., at 5. Section IV of the code sets forth standards for components of heating boilers, including “low-water fuel cutoffs.” If the water in a boiler drops below a level sufficient to moderate the boiler’s temperature, the boiler can “dry fire” or even explode. A low-water fuel cutoff does what its name implies: when the water in the boiler falls below a certain level, the device blocks the flow of fuel to the boiler before the water level reaches a dangerously low point. To prevent dry firing and boiler explosions, ¶ HG-605 of Section IV provides that each boiler “shall have an automatic low-water fuel cutoff so located as to automatically cut off the fuel supply when the surface of the water falls to the lowest visible part of the water gage glass.” Plaintiffs Exhibit 30A. See 635 F. 2d 118, 121 (CA2 1980).
For some decades, McDonnell & Miller, Inc. (M&M), has dominated the market for low-water fuel cutoffs. But in the mid-1960’s, respondent Hydrolevel Corporation entered the low-water fuel cutoff market with a different version of this device. The relevant distinction, for the purposes of this case, was that Hydrolevel’s fuel cutoff, unlike M&M’s, included a time delay.
In early 1971, Hydrolevel secured an important customer. Brooklyn Union Gas Company, which had purchased M&M’s product for several years, decided to switch to Hydrolevel’s probe. Not surprisingly, M&M was concerned.
Because of its involvement in ASME, M&M was in an advantageous position to react to Hydrolevel’s challenge. ASME’s governing body had delegated the interpretation, formulation, and revision of the Boiler and Pressure Vessel Code to a Boiler and Pressure Vessel Committee. See App. 120. That committee in turn had authorized subcommittees to respond to public inquiries about the interpretation of the code. An M&M vice president, John W. James, was vice chairman of the subcommittee which drafted, revised, and interpreted Section IV, the segment of the Boiler and Pressure Vessel Code governing low-water fuel cutoffs.
After Hydrolevel obtained the Brooklyn Union Gas account, James and other M&M officials met with T. R. Hardin, the chairman of the Section IV subcommittee. The participants at the meeting planned a course of action. They decided to send an inquiry to ASME’s Boiler and Pressure Vessel Committee asking whether a fuel cutoff with a time delay would satisfy the requirements of ¶ HG-605 of Section IV. James and Hardin, as vice chairman and chairman, respectively, of the relevant subcommittee, cooperated in drafting a letter, one they thought would elicit a negative response.
The letter was mailed over the name of Eugene Mitchell, an M&M vice president, to W. Bradford Hoyt, secretary of the Boiler and Pressure Vessel Committee and a full-time ASME employee. App. 62. Following ASME’s standard routine, Hoyt referred the letter to Hardin, as chairman of the subcommittee. Under the procedures of the Boiler and Pressure Vessel Committee, the subcommittee chairman— Hardin — could draft a response to a public inquiry without referring it to the entire subcommittee if he treated it as an “unofficial communication.”
As a result, Hardin, one of the very authors of the inquiry, prepared the response. Id., at 63. Although he retained control over the inquiry by treating the response as “unofficial,” the response was signed by Hoyt, secretary of the Boiler and Pressure Vessel Committee, and it was sent out on April 29, 1971, on ASME stationery. Id., at 64. Predictably, Hardin’s prepared answer, utilized verbatim in the Hoyt letter, condemned fuel cutoffs that incorporated a time delay:
“A low-water fuel cut-off is considered strictly as a safety device and not as some kind of an operating control. Assuming that the water gage glass is located in accordance with the requirements of Par. HG-602(b), it is the intent of Par. HG-605(a) that the low-water fuel cut-off operate immediately and positively when the boiler water level falls to the lowest visible part of the water gage glass.
“There are many and varied designs of heating boilers. If a time delay feature were incorporated in a low-water fuel cut-off, there would be no positive assurance that the boiler water level would not fall to a dangerous point during a time delay period.” Ibid.
As the Court of Appeals in this case observed, the second paragraph of the response does not follow from the first: “If the cut-off is positioned sufficiently above the lowest permissible water level, a cut-off with a time-delay could assure, even allowing for the delay, that the fuel supply would stop by the time the water fell to the lowest visible part of the water-gauge glass.” 685 F. 2d, at 122-123. Hoyt signed and mailed the response without checking its accuracy. See App. 124-126.
As anticipated, M&M seized upon this interpretation of Section IV to discourage customers from buying Hydrolevel’s product. It instructed its salesmen to tell potential customers that Hydrolevel’s fuel cutoff failed to satisfy ASME’s code. See 635 F. 2d, at 123. And M&M’s employees did in fact carry the message of the subcommittee’s response to customers interested in buying fuel cutoffs. Thus, M&M successfully used its position within ASME in an effort to thwart Hydrolevel’s competitive challenge.
Several months later, Hydrolevel learned of the subcommittee interpretation from a former customer. Hydro-level wrote ASME for a copy of the April 29 response. On February 8, 1972, over the signature of the assistant secretary of the Boiler and Pressure Vessel Committee, ASME sent Hydrolevel a letter quoting the two paragraphs of the April 29 interpretation of Section IV. App. 66-67.
On March 23, Hydrolevel’s president wrote Hoyt and demanded that ASME cure the effect of the April 29 letter by sending a correction to whomever might have received it. Id., at 68-73. Hoyt placed Hydrolevel’s complaint on the agenda for the meetings of the Boiler and Pressure Vessel Committee and Subcommittee to be held on May 4 and 5.
On May 4, the subcommittee voted to confirm the intent of the first quoted paragraph of the April 29 letter. James, by then the chairman of the subcommittee, reported this recommendation to the committee on May 5. Id., at 82. Thereafter, the committee designated two persons to propose a response to Hydrolevel. Id., at 83. In the end, on June 9 the committee mailed Hydrolevel a reply that “confirmed the intent” of the April 29 letter. Id., at 84. The committee’s letter further advised that there was
“no intent in Section IV to prohibit the use of low water fuel cutoffs having time delays in order to meet the requirements of Par. HG-605(a). This paragraph relates itself to Par. HG-602(b) which specifically delineates the location of the lowest visible part of the water gage glass.” Ibid.
The committee concluded the letter with a warning paragraph suggested by James, see id., at 111-112:
“If a means for retarding control action is incorporated in a low-water fuel cutoff, the termination of the retard function must operate to cutoff the fuel supply before the boiler water level falls below the visible part of the water gage glass.” Id., at 84.
After this response to its complaint, Hydrolevel continued to suffer from market resistance. Two years later, the Wall Street Journal published an article describing Hydrolevel’s predicament in trying to sell a fuel cutoff that many in the industry thought to be in violation of ASME’s code. Wall Street Journal, July 9, 1974, p. 44, col. 1; App. 94-98. Reacting to this story, ASME’s Professional Practice Committee opened an investigation. It never discovered that James had been involved with the original inquiry. In a resolution reporting the results of its investigation, the committee decided that all ASME officials had acted properly. Further, the Professional Practice Committee “commend[ed] [James] for conducting himself in a forthright manner.” Id., at 104.
Subsequently, James’ part in drafting the original letter of inquiry became public because of his testimony in March 1975 before a Senate Subcommittee. See Voluntary Industrial Standards: Hearings before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 186-199 (1975) (testimony of John W. James of M&M (ITT)); see also id., at 171-185 (testimony of Eugene Mitchell, Manager of Original Equipment Sales, ITT Fluid Handling Division). Within a few months, Hydrolevel filed suit against ITT, ASME, and Hartford in the United States District Court for the Eastern District of New York. Hydrolevel alleged that the defendants’ actions had violated §§ 1 and 2 of the Sherman Act, 15 U. S. C. §§ 1 and 2. App. 11. Prior to trial, Hydrolevel sold all its assets, except this suit, for salvage value. Ultimately, ITT and Hartford settled.
The lawsuit proceeded to trial against ASME, as the remaining defendant. Hydrolevel requested the trial court to instruct the jury that ASME could be held liable under the antitrust laws for its agents’ conduct if the agents acted within the scope of their apparent authority. See id., at 59. The District Court, however, rejected this approach and, instead, at ASME’s suggestion, charged the jury that ASME could be held liable only if it had ratified its agents’ actions or if the agents had acted in pursuit of ASME’s interests. The District Court explained to the jury:
“If the officers or agents act on behalf of interests adverse to the corporation or acted for their own economic benefit or the benefit of another person or corporation, and this action was not ratified or adopted by the defendant [ASME], their misconduct cannot be considered that of the corporation with which they are associated.” Id., at 49.
The jury, nonetheless, returned a verdict for Hydrolevel.
Before the Court of Appeals, the parties disputed the sufficiency of the evidence to support a verdict based on the District Court’s instruction. See 635 F. 2d, at 125. But the Court of Appeals chose not to decide whether the evidence was sufficient to demonstrate that ASME had ratified its agents’ actions or that the agents had acted to advance ASME’s interests. Instead, after surveying the law of agency and the policies underlying the antitrust laws, the Court of Appeals concluded that ASME could be held liable if its agents had acted within the scope of their apparent authority. Id., at 124-127. Since, therefore, the District Court had delivered “a charge that was more favorable to the defendant than the law requires,” id., at 127, the Court of Appeals affirmed the judgment on liability, that is, the jury’s finding that ASME was liable under § 1 of the Sherman Act for its agents’ actions.
Because the Court of Appeals’ decision presents an important issue concerning the interpretation of the antitrust laws, we granted certiorari. 452 U. S. 937 (1981).
HH HH
A
As the Court of Appeals observed, under general rules of agency law, principals are liable when their agents act with apparent authority and commit torts analogous to the antitrust violation presented by this case. See generally 10 W. Fletcher, Cyclopedia of the Law of Private Corporations ¶ 4886, pp. 400—401 (rev. ed. 1978); W. Seavey, Law of Agency § 92 (1964). For instance, a principal is liable for an agent’s fraud though the agent acts solely to benefit himself, if the agent acts with apparent authority. See, e. g., Standard Surety & Casualty Co. v. Plantsville Nat. Bank, 158 F. 2d 422 (CA2 1946), cert. denied, 331 U. S. 812 (1947). Similarly, a principal is liable for an agent’s misrepresentations that cause pecuniary loss to a third party, when the agent acts within the scope of his apparent authority. Restatement (Second) of Agency §§ 249, 262 (1957) (Restatement); see Rutherford v. Rideout Bank, 11 Cal. 2d 479, 80 P. 2d 978 (1938). Also, if an agent is guilty of defamation, the principal is liable so long as the agent was apparently authorized to make the defamatory statement. Restatement §§ 247, 254. Finally, a principal is responsible if an agent acting with apparent authority tortiously injures the business relations of a third person. Id., § 248 and Comment b, p. 548.
Under an apparent authority theory, “[liability is based upon the fact that the agent’s position facilitates the consummation of the fraud, in that from the point of view of the third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of the business confided to him.” Id., § 261, Comment a, p. 571. See Record v. Wagner, 100 N. H. 419, 128 A. 2d 921 (1957). As with the April 29 letter issued by the Boiler and Pressure Vessel Subcommittee, the injurious statements are “effective, in part at least, because of the personality of the one publishing it.” Restatement § 247, Comment c, p. 545. In other words, “one who appears to have authority to make statements for the [principal] gives to his statements the weight of the [principal’s] reputation,” ibid. — in this case, the weight of ASME’s acknowledged expertise in boiler safety. See generally W. Prosser, Law of Torts 467 (4th ed. 1971).
ASME’s system of codes and interpretative advice would not be effective if the statements of its agents did not carry with them the assurance that persons in the affected industries could reasonably rely upon their apparent trustworthiness. Behind the principal’s liability under an apparent authority theory, then, is “business expediency — the desire that third persons should be given reasonable protection in dealing with agents.” Restatement § 262, Comment a, p. 572. See Ricketts v. Pennsylvania R. Co., 153 F. 2d 757 (CA2 1946). The apparent authority theory thus benefits both ASME and the public whom ASME attempts to serve through its codes: “It is... for the ultimate interest of persons employing agents, as well as for the benefit of the public, that persons dealing with agents should be able to rely upon apparently true statements by agents who are purporting to act and are apparently acting in the interests of the principal.” Restatement § 262, Comment a, p. 572.
The apparent authority theory has long been the settled rule in the federal system. See Ricketts v. Pennsylvania R. Co., 153 F. 2d, at 759. In Friedlander v. Texas & Pacific R. Co., 130 U. S. 416 (1889), the Court held that an employer was not liable for the fraud of his agent, when the employer could derive no benefit from the agent’s fraud. But Gleason v. Seaboard Air Line R. Co., 278 U. S. 349 (1929), discarded that rule. In Gleason, a railroad’s employee sought to enrich himself by defrauding a customer of the railroad through a forged bill of lading. The Court of Appeals had absolved the railroad from liability because the employee perpetrated the fraud solely for his own benefit. But this Court reversed, overruling Friedlander. 278 U. S., at 357. Noting that “there was... no want of authority in the agent,” id., at 355, the Court held the railroad liable despite the agent’s desire to benefit only himself. It explained that “few doctrines of the law are more firmly established or more in harmony with accepted notions of social policy than that of the liability of the principal without fault of his own.” Id., at 356.
In a wide variety of areas, the federal courts, like this Court in Gleason, have imposed liability upon principals for the misdeeds of agents acting with apparent authority. See, e. g., Dark v. United States, 641 F. 2d 805 (CA9 1981) (federal tax liability); National Acceptance Co. v. Coal Producers Assn., 604 F. 2d 540 (CA7 1979) (common-law fraud); Holloway v. Howerdd, 536 F. 2d 690 (CA6 1976) (federal securities fraud); United States v. Sanchez, 521 F. 2d 244 (CA5 1975) (bail bond fraud), cert. denied, 429 U. S. 817 (1976); Kerbs v. Fall River Industries, Inc., 502 F. 2d 731 (CA10 1974) (federal securities fraud); Gilmore v. Constitution Life Ins. Co., 502 F. 2d 1344 (CA10 1974) (common-law fraud).
In the past, the Court has refused to permit broad common-law barriers to relief to constrict the antitrust private right of action. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134 (1968). It stated there that “the purposes of the antitrust laws are best served by insuring that the private action will be an ever-present threat” to deter antitrust violations. Id., at 139. In Perma Life Mufflers, the Court honored that purpose by denying defendants the right to invoke a common-law defense (the doctrine of in pari delicto) that was inconsistent with the antitrust laws. In this case, we can honor the statutory purpose best by interpreting the antitrust private cause of action to be at least as broad as a plaintiff’s right to sue for analogous torts, absent indications that the antitrust laws are not intended to reach so far. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 639 (1981); Perma Life Mufflers, 392 U. S., at 138. Our remaining inquiry, then, is whether ASME’s liability under a theory of apparent authority is consistent with the intent behind the antitrust laws.
B
We hold that the apparent authority theory is consistent with the congressional intent to encourage competition. ASME wields great power in the Nation’s economy. Its codes and standards influence the policies of numerous States and cities, and, as has been said about “so-called voluntary standards” generally, its interpretations of its guidelines “may result in economic prosperity or economic failure, for a number of businesses of all sizes throughout the country,” as well as entire segments of an industry. H. R. Rep. No. 1981, 90th Cong., 2d Sess., 75 (1968). ASME can be said to be “in reality an extra-governmental agency, which prescribes rules, for the regulation and restraint of interstate commerce.” Fashion Originators’ Guild of America, Inc. v. FTC, 312 U. S. 457, 465 (1941). When it cloaks its subcommittee officials with the authority of its reputation, ASME permits those agents to affect the destinies of businesses and thus gives them the power to frustrate competition in the marketplace.
The facts of this case dramatically illustrate the power of ASME’s agents to restrain competition. M&M instigated the submission of a single inquiry to an ASME subcommittee. For its efforts, M&M secured a mere “unofficial” response authored by a single ASME subcommittee chairman. Yet the force of ASME’s reputation is so great that M&M was able to use that one “unofficial” response to injure seriously the business of a competitor.
Furthermore, a standard-setting organization like ASME can be rife with opportunities for anticompetitive activity. Many of ASME’s officials are associated with members of the industries regulated by ASME’s codes. Although, undoubtedly, most serve ASME without concern for the interests of their corporate employers, some may well view their positions with ASME, at least in part, as an opportunity to benefit their employers. When the great influence of ASME’s reputation is placed at their disposal, the less altruistic of ASME’s agents have an opportunity to harm their employers’ competitors through manipulation of ASME’s codes.
Again, the facts of this case are illustrative. Hardin was able to issue an interpretation of ASME’s Boiler and Pressure Vessel Code which in effect declared Hydrolevel’s product unsafe. Hardin’s interpretation of the code was sent out under Hoyt’s name as secretary of the committee, though Hoyt exercised only ministerial duties and played no role in confirming the substance of the April 29, 1971, letter. See App. 125-126. Thus, without any meaningful safeguards, ASME entrusted the interpretation of one of its codes to Hardin. As a result, M&M was able to use ASME’s reputation to hinder Hydrolevel’s competitive threat.
A principal purpose of the antitrust private cause of action, see 15 U. S. C. § 15, is, of course, to deter anticompetitive practices. Pfizer Inc. v. Government of India, 434 U. S. 308, 314 (1978); Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S., at 139; see Reiter v. Sonotone Corp., 442 U. S. 330, 342-344 (1979). It is true that imposing liability on ASME’s agents themselves will have some deterrent effect, because they will know that if they violate the antitrust laws through their participation in ASME, they risk the consequences of personal civil liability. But if, in addition, ASME is civilly liable for the antitrust violations of its agents acting with apparent authority, it is much more likely that similar antitrust violations will not occur in the future. “[Pressure [will be] brought on [the organization] to see to it that [its] agents abide by the law.” United States v. A & P Trucking Co., 358 U. S. 121, 126 (1958). Only ASME can take systematic steps to make improper conduct on the part of all its agents unlikely, and the possibility of civil liability will inevitably be a powerful incentive for ASME to take those steps. Thus, a rule that imposes liability on the standard-setting organization — which is best situated to prevent antitrust violations through the abuse of its reputation — is most faithful to the congressional intent that the private right of action deter antitrust violations.
The wisdom of the apparent authority rule becomes evident when it is compared to the alternative approaches advanced by the District Court’s instructions to the jury, see supra, at 564-565, and advocated by ASME. First, ASME insists that it should not be held liable unless it ratified the actions of its agents. But a ratification rule would have anti-competitive effects, directly contrary to the purposes of the antitrust laws. ASME could avoid liability by ensuring that it remained ignorant of its agents’ conduct, and the antitrust laws would therefore encourage ASME to do as little as possible to oversee its agents. Thus, ASME’s ratification theory would actually enhance the likelihood that the Society’s reputation would be used for anticompetitive ends.
Second, ASME contends that it should not be held liable unless its agents act with an intent to benefit the Society. This proposed rule falls short, though, because it is simply irrelevant to the purposes of the antitrust laws. Whether they intend to benefit ASME or not, ASME’s agents exercise economic power because they act with the force of the Society’s reputation behind them. And, whether they act in part to benefit ASME or solely to benefit themselves or their employers, ASME’s agents can have the same anticompetitive effects on the marketplace. The anticompetitive practices of ASME’s agents are repugnant to the antitrust laws even if the agents act without any intent to aid ASME, and ASME should be encouraged to eliminate the anticompetitive practices of all its agents acting with apparent authority, especially those who use their positions in ASME solely for their own benefit or the benefit of their employers.
C
Finally, ASME makes two additional arguments in an attempt to avoid antitrust liability. It characterizes treble damages for antitrust violations as punitive, and urges that under traditional agency law the courts do not employ apparent authority to impose punitive damages upon a principal for the acts of its agents. See Lake Shore & M. S. R. Co. v. Prentice, 147 U. S. 101 (1893); United States v. Ridglea State Bank, 357 F. 2d 495 (CA5 1966); see also Restatement § 217C. It is true that antitrust treble damages were designed in part to punish past violations of the antitrust laws. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S., at 639. But treble damages were also designed to deter future antitrust violations. Ibid. Moreover, the antitrust private action was created primarily as a remedy for the victims of antitrust violations. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 485-486 (1977); see Illinois Brick Co. v. Illinois, 431 U. S. 720, 746-747 (1977). Treble damages “make the remedy meaningful by counterbalancing ‘the difficulty of maintaining a private suit’ ” under the antitrust laws. Brunswick Corp., supra, at 486, n. 10, quoting 21 Cong. Rec. 2456 (1890) (remarks of Sen. Sherman). Since treble damages serve as a means of deterring antitrust violations and of compensating victims, it is in accord with both the purposes of the antitrust laws and principles of agency law to hold ASME liable for the acts of agents committed with apparent authority. See Restatement § 217C, Comment c, p. 474 (rule limiting principal’s liability for punitive damages does not apply to special statutes giving triple damages).
In addition, ASME contends it should not bear the risk of loss for antitrust violations committed by its agents acting with apparent authority because it is a nonprofit organization, not a business seeking profit. But it is beyond debate that nonprofit organizations can be held liable under the antitrust laws. See, e. g., Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U. S. 656 (1961); Associated Press v. United States, 326 U. S. 1 (1945). Although ASME may not operate for profit, it does derive benefits from its codes, including the fees the Society receives for its code-related publications and services, the prestige the codes bring to the Society, the influence they permit ASME to wield, and the aid the standards provide the profession of mechanical engineering. Since the antitrust violation in this ¿ase could not have occurred without ASME’s codes and ASME’s method of administering them, it is not unfitting that ASME be liable for the damages arising from that violation. See W. Prosser, Law of Torts 459 (4th ed. 1971); W. Seavey, Law of Agency § 83 (1964). Furthermore, as shown above, ASME is in the best position to take precautions that will prevent future antitrust violations. Thus, the fact that ASME is a nonprofit organization does not weaken the force of the antitrust and agency principles that indicate that ASME should be liable for Hydrolevel’s antitrust injuries.
h — i HH
We need not delineate today the outer boundaries of the antitrust liability of standard-setting organizations for the actions of their agents committed with apparent authority. There is no doubt here that Hardin acted within his apparent authority when he answered an inquiry about ASME’s Boiler and Pressure Vessel Code as the chairman of the relevant ASME subcommittee. And in this case, we do not face a challenge to a good-faith interpretation of an ASME code reasonably supported by health or safety considerations. See Silver v. New York Stock Exchange, 373 U. S. 341 (1963). We have no difficulty in finding that this set of facts falls well within the scope of ASME’s liability on an apparent authority theory.
When ASME’s agents act in its name, they are able to affect the lives of large numbers of people and the competitive fortunes of businesses throughout the country. By holding ASME liable under the antitrust laws for the antitrust violations of its agents committed with apparent authority, we recognize the important role of ASME and its agents in the economy, and we help to ensure that standard-setting organizations will act with care when they permit their agents to speak for them. We thus make it less likely that competitive challengers like Hydrolevel will be hindered by agents of organizations like ASME in the future.
The judgment of the Court of Appeals is affirmed.
So ordered.
M&M’s fuel cutoff is a floating bulb that falls with the boiler’s water level. When the level reaches the critical point, the bulb causes a switch to cut off the boiler’s fuel supply. Hydrolevel’s product, in contrast, was an immovable probe inserted in the side of the boiler; when the water level dropped below the probe, the fuel supply was interrupted. Because water in a boiler surges and bubbles, the level intermittently would seem to fall slightly below the probe even though the overall level remained safe. To prevent premature fuel cutoff because of these intermittent fluctuations, Hydrolevel’s probe included a time delay that allowed the boiler to operate for a brief period after the water level dropped beneath the probe.
Hardin was an executive vice president of Hartford Steam Boiler Inspection and Insurance Company. A controlling interest in Hartford was owned by International Telephone and Telegraph Corporation, which acquired M&M within the year. See 635 F. 2d 118, 122, n. 2 (CA2 1980).
Actually, the committee “confirmed the intent” of ASME’s February 8, 1972, letter to Hydrolevel. That letter, however, simply quoted the original April 29, 1971, response. See App. 66-67.
The Court of Appeals remanded the case to the District Court after finding that the damages awarded Hydrolevel were excessive and that the District Court had made errors in its calculation of damages. 635 F. 2d, at 128-131. The damages issue is the subject of a pending cross-petition for certiorari, No. 80-1771, filed April 22, 1981. Hydrolevel’s damages arguments are not now before us, and we express no opinion on that aspect of the Court of Appeals’ decision.
“Apparent authority is the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other’s manifestations to such third persons.” Restatement (Second) of Agency § 8 (1957).
The dissent delves into the agency law of the late 19th century and concludes that “it was far from clear” that a principal could be held liable for the deliberate torts of his agent. Post, at 587. But in fact, while there was a division of authority, many courts had made it very clear that principals could be held liable for torts analogous to the antitrust violations committed by ASME’s agents.
For instance, a treatise of that era noted that a “considerable number of American courts” had held the principal liable for the agent’s fraud, though the agent acted solely for his own benefit, and praised a leading opinion for its “singular ability and
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
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.
ROBINSON v. HAMILTON WHOLESALE LIQUOR CO. et al.
No. 8981.
Circuit Court of Appeals, Sixth Circuit.
Dec. 1, 1942.
Phil B. Whitaker, of Chattanooga, Tenn. (Samuel Bosworth Smith, Whitaker, Hall, Haynes & Allison, and Harry A. Hite, all of Chattanooga, Tenn., on the brief), for appellant.
Will Allen Wilkerson, of Chattanooga, Tenn. (Shepherd, Curry & Levine, of Chattanooga, Tenn., on the brief), for appellees.
Before HICKS, ALLENand McALLISTER, Circuit Judges.
ALLEN, Circuit Judge.
This is an appeal from an order adjudicating the appellant an involuntary bankrupt.
The case arises out of the following facts, which are not controverted.
The appellant obtained from his mother, Eva Robinson, $4,200 to establish himself in the liquor business in Chattanooga, Tennessee. A state and county license was secured in the name of “The Robinson Liquor Store.” The city license ran to “Mrs. Eva Robinson,” and the state retailer’s license to “Eva Robinson, doing business as the Robinson Liquor Store.” The appellant had entire management of the business. After carrying an average stock in the amount of about $3,500 for nearly a year, between December 13, 1940, and December 24, 1940, the appellant bought a large amount of liquor from the five petitioning creditors, bringing his stock up to a cost value of some $13,000. About December 24, 1940, this entire stock had disappeared, and no payment was ever made by the appellant on account of these purchases. Meanwhile appellant paid in full his debts to certain public service corporations in Chattanooga, and informed appellees that he had sold the liquor and paid his gambling debts. A separate involuntary petition containing averments substantially identical with those in the instant case was filed by the same creditors against appellant’s mother, Eva Robinson, charging acts of concealment and preference of creditors. Eva Robinson was adjudged bankrupt after the hearing in the instant case, but has filed no appeal.
We think the judgment of the District Court must be affirmed. Appellant contends that the petitioning creditors have no valid claims against him because any sales made to him were consummated in violation of the statutes of Tennessee relating to sale of alcoholic beverages. He urges that no license was issued to him as required by the Austin Liquor Act, Chapter 49 of the Acts of 1939 of the General Assembly of Tennessee, Williams’ Tennessee Code 1934, Section 6648.4 et seq., and that no sales therefore could legally be made to him. No section of the statute and no Tennessee decisions have been cited which make these sales illegal under state law. A license was properly issued to the Robinson Liquor Store and another was issued to Eva Robinson, doing business as the Robinson Liquor Store. Section 8 of the Austin Act, Williams’ Tennessee Code, Section 6648.11, permits the issuance of a license to “any person, firm or corporation” and there is no contention that the statutory prerequisites for these licenses were not fully observed. Contracts made with the Robinson Liquor Store were unquestionably valid. The District Court found in effect and the record shows that appellant was doing business as the Robinson Liquor Store; that he “was the store.” The business was conducted under the trade name, all purchases being delivered on the order of appellant to the Robinson Liquor Store, and all the accounts of the petitioning creditors being kept in the name of the Robinson Liquor Store. The petitioning creditors dealt with appellant exclusively. While checks given in payment of purchases were at first signed “Robinson Liquor Store by Amos Robinson,” they were later signed simply “Amos Robinson.”
It is urged that these purchases could not have resulted in debts owed both by the mother and by the son, and that the fact that the mother was adjudicated bankrupt establishes that there was error in the present adjudication. The order with reference to Eva Robinson could have been challenged by appeal. As it is not so challenged, the question of her liability is not presented here. With reference to the relationship between appellant and his mother, the evidence is uncontradicted. Eva Robinson was never at any time in the store. She stated that she gave appellant all the money she had to establish the business. Appellant paid her no dividends and made no settlement for the conduct of the store. He took substantially all the profits and had an absolutely free hand in rqnning the business. Eva Robinson knew none of the details, either from whom appellant bought or to whom he sold, or anything with reference to any sale or purchase made at the store, and stated that appellant sold the whiskey and kept the money for himself, never accounting to her. As intimated by the District Court, it was evident that Eva Robinson secured the licenses for appellant in order to avoid official inquiry into his reputation as a bootlegger and the possible refusal of a license on that ground.
The District Court made no formal findings of fact and conclusions of law. It may be inferred from the fact that the court adjudicated the mother a bankrupt as well as appellant that it considered that a partnership existed. If appellant was a partner in the business his contracts to pay for the liquor were binding upon him as well as upon his mother, and there was no inconsistency in concluding that both were liable thereon. Whether this view be taken, or whether we consider that Eva Robinson made an outright gift to appellant of capital to operate the store and had no interest in the business, the conclusion is the same. The licenses under which the store was operated were valid. Appellant held himself out as having an interest in the business and apparently was considered by his mother to own it. The debts were lawfully contracted and were binding upon the appellant.
The order of adjudication is affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_typeiss
|
B
|
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.
Janet M. HERREMAN et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.
No. 72-1055.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 24, 1973.
Decided March 22, 1973.
Jack Aulik, Sun Prairie, Wis., for plaintiffs-appellants.
Harlington Wood, Jr., Morton Hollander, Robert M. Feinson, Dept, of Justice, Washington, D. C., David J. Cannon, U. S. Atty., Milwaukee, Wis., for defendants-appellees.
Before SWYGERT, Chief Judge, and STEVENS and SPRECHER, Circuit Judges.
SPRECHER, Circuit Judge.
The question is whether the widow of a National Guard officer killed while returning from a Florida fishing trip with the Adjutant General of the State of Wisconsin, as a non-paying passenger on a military aircraft, may sue the United States under the Federal Tort Claims Act.
Jerold F. Herreman was a Captain in the Wisconsin Army National Guard and the Army National Guard of the United States. On January 26, 1969, he joined Major General Ralph Olson, the Adjutant General of the State of Wisconsin, in Key West, Florida. The General and his wife were vacationing in Florida and had invited Captain Herreman to come down from Milwaukee to go fishing with the General. Intending to return home, on January 29, 1969, the Captain appeared at the Key West Naval Air Station, Florida, in military uniform and requested, on a space-available basis, transportation back to Milwaukee on the military aircraft assigned to transport General Olson home. The request was granted. The aircraft crashed on its flight from Key West to Milwaukee, killing General Olson, his wife, and Captain Herreman.
The visit to Key West to fish with the General was a purely social visit. At the time of the crash of the aircraft, Herreman was not on any mission pertaining to the Wisconsin Army National Guard. Neither he nor his unit of assignment was in active federal service. He was not on active duty for training or inactive duty training in his Army National Guard of the United States status, nor was he performing training or duty as a member of the Army National Guard.
Herreman’s widow brought this action pursuant to 28 U.S.C. § 2674 of the Federal Tort Claims Act, asserting that the United States is liable. She also named the Wisconsin Air National Guard as a defendant. After several affidavits were filed by the parties, the district court entered a summary judgment in favor of the United States and dismissed the claim against the Wisconsin Air National Guard. The court concluded at 332 F.Supp. 763, 766 (E.D.Wis.1971):
“[Ejven if a soldier is on leave or off duty, alternatively (1) if the soldier is injured taking advantage of military privileges generally restricted to the military and not generally permitted civilians, or (2) if the soldier is injured while under military jurisdiction, then (whichever way the rule is phrased) he will be barred from suing the Government. In the instant case, Captain Herreman was fatally injured while taking advantage of special travel privileges granted military personnel. While taking advantage of this privilege, it is undisputed that he was under military jurisdiction. The fact that he was not on active duty or that he was pursuing purely pleasurable activities is of no . . . relevance . . .
The outer dimensions of this problem are measured by two Supreme Court cases decided in successive years.
In Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), two brothers who were then members of the armed forces of the United States on furlough, driving their own automobile along a highway, collided at an intersection with a United States Army truck. The Court held that their injuries were “not incident to their service” and that their claims were therefore cognizable under the Federal Tort Claims Act. 28 U.S.C. § 2674.
In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), three servicemen while on active duty and not on furlough sustained injury due to the negligence of others in the armed forces. The Court held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. at 146, 71 S.Ct. at 159.
The issue in this ease is whether Herreman’s activity at the time he was killed in the crash was incident to his service.
At the time of his death Herreman was a member of the Wisconsin Army National Guard with the rank of captain, assigned to the Selective Service Section, Headquarters and Headquarters Detachment at Madison, Wisconsin. In accordance with 10 U.S.C. § 3351(a), he was also a federally recognized captain in the Army National Guard of the United States, a reserve component of the United States Army. 10 U.S.C. § 3077. “The Army consists of . the Regular Army, the Army National Guard of the United States . . .”. 10 U.S.C. § 3062(c)(1). Hence, Herreman at the time of his death was a member of the United States Army. See Layne v. United States, 190 F.Supp. 532 (S.D.Ind.1961), affirmed, 295 F.2d 433 (7th Cir. 1961), cert. denied, 368 U. S. 990, 82 S.Ct. 605, 7 L.Ed.2d 527 (1962).
“The transportation of members of the Army throughout the United States shall be under the immediate control and supervision of the Secretary of the Army and agents appointed or designated by him.” 10 U.S.C. § 4741. Similarly, the transportation of members of the Air Force is under the control and supervision of the Secretary of the Air Force. 10 U.S.C. § 9741.
The aircraft in which Herreman was killed was military property of the United States but was assigned to the Wisconsin Air National Guard for its use. At the time of the crash, the aircraft had been on a duly authorized flight for the purpose of providing navigational training for Wisconsin Air National Guard personnel on board the aircraft and of transporting Major General Olson from Key West Naval Air Station, Florida, to Milwaukee, Wisconsin.
Pursuant to his power to control and supervise the transportation of “members [and] . . . equipment” of the Air Force (10 U.S.C. § 9741), of which the Air National Guard of the United States is a component part (10 U.S.C. § 8062(d)(1), the Secretary of the Air Force promulgated Air National Guard Regulations No. 76-6 (May 23, 1950), which included paragraph 4b which describes passengers to include as follows:
“Military personnel in appropriate uniform in the categories indicated below, without reimbursement, upon proper identification and when the aircraft is on a duly scheduled training flight, or on a strictly military mission. No flight of an Air National Guard aircraft will be scheduled for the specific purpose of transporting military personnel on leave but such personnel may ride as passengers when the aircraft is on a training flight or a strictly military mission.
-X- * * -X- -X- *
“(2) Military personnel of the National Guard . . . ”
It is not disputed that the aircraft in this case was on a duly authorized and duly scheduled navigational training flight. Herreman was riding in uniform on the aircraft as a non-paying passenger. While on board the aircraft, he was subject to military courtesies and discipline. Most important however, he was subject to the “immediate control and supervision” of both the Secretary of the Army and the Secretary of the Air Force and “agents appointed or designated” by them. He was on board a military training flight engaged in a military mission.
The situation comes very close to that existing in Archer v. United States, 217 F.2d 548 (9th Cir. 1954), cert. denied, 348 U.S. 953, 75 S.Ct. 441, 99 L.Ed. 745 (1955), where a cadet on leave from the United States Military Academy at West Point was “riding gratuitously in a military plane under military discipline and under the laws and regulations in force at the time.” Id. at 550. In dismissing the claim of the cadet’s parents under the Federal Tort Claims Act, the Court said at 551, 552:
“The Trial Court was undoubtedly correct in holding that a cadet riding under military discipline on an army plane under control of a superior officer has no claim under the Act for injury sustained through whatever cause. This principle would not vary even though the service man were on leave and whether he were on the plane voluntarily or by command. He was in line of duty. Under such circumstances, his parents could not recover for his death.
-X -X- * -X -X *
“ . . . In riding aboard that plane, under these allegations, Herman Archer was either ‘in command’ or ‘under command.’
“The complaint in this case on its face did not state a cause of action or a claim upon which relief could be granted against the United States.”
Here also, Herreman was “in line of duty” and “under command.” Under those circumstances, his activity at the time he was killed was incident to his service. The district court properly rendered judgment for the government under Feres v. United States, supra.
It is significant that if Herreman had sought passage without his uniform and in the capacity of non-military or civilian personnel, it would have been necessary (1) for Major General Olson to execute “a certificate to be attached to the flight clearance certifying” that Herreman was “on National Guard business,” Air National Guard Regulations No. 76-6, par. 4j, and (2) for Herreman to execute a release releasing and discharging “the Government of the United States, and all of its officers and agents, acting officially or otherwise, from any and all claims, demands, actions, or causes of action, on account of my death or on account of any injury to me which may occur by reason of the said flight . . . .” No. 76-6, par. 6.
The judgment is affirmed.
Affirmed.
. As an Army officer, Herreman was also subject to 10 U.S.C. § 4743, which provides :
“Under such conditions as the Secretary of tlie Army may prescribe, officers of the Army may, in the performance of their duties, use means of transportation provided for the Army and its supplies.” A similar statute applies to Air Force officers using transportation provided for the Air Force. 10 U.S.O. § 9743.
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_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
ORENSTEIN & KOPPEL AKTIENGESELLSCHAFT v. KOPPEL INDUSTRIAL CAR & EQUIPMENT CO.
No. 4937.
Court of Appeals of District of Columbia.
Submitted Dec. 2, 1929.
Decided Feb. 4, 1930.
D. H. Stanley, of Washington, D. C., and Sidney Struble, and A. G-. Hays, both of New York City, for appellant.
C. H. Butler, J. A. Kratz, and Gr. L. Munter, all of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and YAN ORSDEL, Associate Justices.
VAN ORSDEL, Associate Justice.
This case is here on special appeal from an order of the Supreme Court of the District of Columbia denying a motion by appellant, defendant below, to vacate an attachment against property belonging to the defendant.
. It appears that, prior to the opening of the war, April 6, 1917, defendant, a joint-stock company organized under the laws o£ Germany, and having its principal place of business in this country, was transacting its business in the United States through various agencies. The business of defendant consisted principally in the manufacture and sale of industrial railway materials and equipment, and in the purchase and sale of merchandise on commission, including a large brokerage business. On June 15, 1918, the Alien Property Custodian seized the property of the defendant in the United States, and later sold the defendant’s property to plaintiff company for $1,312,000. It is alleged that the property sold consisted of real and personal tangible and intangible rights, claims, titles, and interests, including the business of defendant’s American branch as a going concern, together with the good will enjoyed by the defendant, including trade-names, trade-marks, symbols registered and unregistered, and patents.
It is alleged that following the war defendant, in violation of the terns of its contract, opened offices and agencies in plaintiff’s territory, soliciting former customers to buy and sell merchandise of the kind previously dealt in by the American branch in competition with the plaintiff, using the names and symbols that had been transferred under the contract to the plaintiff. It is also alleged that defendant instituted vexatious and harassing suits and claims, not only in courts in this country, but in various foreign courts, and that it registered in territory where defendant carried on business the trade-marks, trade-names and symbols purchased by the plaintiff from the Alien Property Custodian. Plaintiff claims that by reason of these acts it has been damaged in the sum of $100,000, for which this suit was brought.
In aid of its suit plaintiff attached $150,-000 of defendant’s money in the possession of the Alien Property Custodian; and we are asked to review the action of the court below in refusing to dissolve this attachment.
Section 30 of Trading with the Enemy Act, as added by section 15 of the Settlement of War Claims Act of 1928, 45 Stat. 2,75 (50 USCA Appendix § 30), provides as follows : “Any money or other property returnable under subsection (b) or (n) of section 9 shall, at any time prior to such return, be subject to attachment in accordance with the provisions of the code of law for the District of Columbia, as amended, relating to attachments in suits at law and to attachments for the enforcement of judgments at law and decrees in equity, but any writ of attachment or garnishment issuing in any such suit, or for the enforcement of any judgment or decree, shall be served only upon the Alien Property Custodian, who shall for the purposes of this section be considered as holding credits in favor of the person entitled to such return to the extent of the value of the money or other property so returnable. Nothing in this section shall be construed as authorizing the taking of actual possession, by any officer of any court, of any money or other property held by the Alien Property Custodian or by the Treasurer of the United States.”
Section 445 of the Code of the District of Columbia, among other things, provides: “In any action at law in the Supreme Court of the District of Columbia or the municipal court of said District, for the recovery of specific personal property, or a debt, or damages for the breach of a contract, express or implied, if the plaintiff, his agent or attorney, either at the commencement of the action or pending the same, shall file an affidavit showing the grounds of his claim and setting forth that the plaintiff has a just right to recover what is claimed in his declaration, * “ * and where the action is to recover damages for the breach of a contract setting out, specifically and in detail, the breach complained of and the actual damage resulting therefrom, ® ® ®' the clerk shall issue a writ of attachment,” etc.
The question here is one of jurisdiction of the court to issue the attachment in question, and it must be decided solely upon the sufficiency of the declaration, regardless of any defenses available to the defendant, since these are waived by its motion to dissolve the attachment. We think the averments of the declaration, if ultimately sustained, establish plaintiff’s right to damages, if the Alien Property Custodian possessed the power to convey the property of defendant company in the manner alleged in the declaration, and thereby bind the defendant by the terms of the contract in an implied negative covenant not to engage in the future in business in the United States in violation of the terms of the conveyance.
We are not impressed with the contention that, if defendant did business wrongfully, in violation of its contract, it would be guilty of the commission of a tort rather than a breach of contract. This brings us to the question of the power of the Alien Property Custodian with reference to the custody and disposition of alien property, coming into his possession as the result of the war. He occupied the relation to the owners of the property of a common-law trustee, and as such was vested with full power to act in compliance with the statutory authority vested in him by Congress. Under the provisions of section 30, supra, Congress was giving a remedy that did not before exist, by which contractual claimants might protect themselves against the funds in the custody of the Alien Property Custodian before the same should be removed from the jurisdiction of the courts of this country. The statute- is remedial, and is entitled to liberal construction, and, when the action is based upon or growing out of a contract express or implied, whether made with the alien or with the Alien Property Custodian, acting as his trustee and in his behalf, the remedy provided by the statute is available.
In respect of the contract and the scope of its provisions as against defendant company, the Circuit Court of Appeals of the Second Circuit, in Koppel Industrial Car & Equipment Co. v. Orenstein & Koppel Aktiengesellschaft, 289 F. 446, 451, said: “We think this conveyed to the purchaser the exclusive right carry on the business in the United States, with the right of protection of a court of equity from interference by the German corporation; for, if the present interference be permitted, what was conveyed would in time he destroyed. The sale was as complete as if it were a voluntary convey-’ anee of its interests in the United States by the German corporation. It is not the case of a sale in invitum of the good will and business. Assuming a voluntary sale of its good will and business had been made by the German corporation, would it have been at liberty later to impair the good will by seeking the customers of the buyer and carrying on business, using substantially the same trade-name and trade symbol as they had theretofore used? We think not. * * * After the 'sale, in this instance, of the good will of the German corporation’s business, it had no right to represent itself as carrying on that business which had been sold or to use its trade-marks or symbols or to represent itself as a continuer of that business in this country. The avenue of relief to it for what it lost, through the fortunes of war, is some future action by the Congress, and this is made clean by the statute. This is the only relief the German corporation can look forward to. It had no right to change its name, and then have its representatives solicit the business in this country, using such name and such means as before described in seeking the business.”
The contention of counsel for defendant that the declaration is not sufficiently explicit to sustain the cause of action is not well founded. We are here considering the sufficiency of the declaration on a motion to-dissolve the attachment. In view of the fact that the plaintiff is required, in order to secure the attachment, to give a bond in double the amount of his claim, the court would hesitate to place a technical construction upon the averments of the declaration, inasmuch as its terms may be enlarged or amplified in the future development of the issues in the ease.
Speaking of the object of the attachment statute, this court, in Suter v. Lockwood Dental Co., 45 App. D. C. 92, 111, said: “We do not consider that the attachment statute is only meant to apply to those actions for damages for breach of contract which are precisely liquidated and ascertained. The object of the statute undoubtedly is to require such a statement of the damages suffered as will be informing to the defendant and enable him to prepare himself to meet the issue tendered.”
It may be in future proceedings leading to a trial of the issues in this case that defendant will be entitled to a bill of particulars requiring the plaintiff to more specifically state the grounds upon which it is claimed that, damage has been sustained, hut these are matters with which we are not at this stage concerned, since, in our opinion, the declaration sufficiently states a case that will justify the issuing of an attachment as provided in the statute.
Counsel for defendant attack the provisions of section 30, supra, as unconstitutional and void. This contention can be disposed of briefly in view of the power vested in the government to seize alien property in time of war. That this is alien property is not contested. Disposing of a similar contention, Mr. Justice Holmes, in White v. Mechanics’ Securities Corporation, 269 U. S. 283, 300, 46 S. Ct. 116, 118, 70 L. Ed. 275, said: “The funds were seized adversely by the United States in time of war. They are in its hands; it has declared by an Act of Congress what shall be done with them, and that is the end of the matter. There is no question that such a seizure and disposition are within its powers. * * * The United States seized the property in question from an enemy and of course could do with it what it liked.”
This holding is supported in United States v. Chemical Foundation, 272 U. S. 1, 47 S. Ct. 1, 71 L. Ed. 131; Swiss National Insurance Co. v. Miller, 267 U. S. 42, 45 S. Ct. 213, 69 L. Ed. 504. The unlimited power of the government to provide for the disposition of alien property funds is also specifically ratified by the Treaty of Berlin, § 297, subsee. (d), and Annex to section 4, sub-secs. 1 and 3.
The order is affirmed, with costs, and the cause is remanded for further proceedings.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_two_issues
|
B
|
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.
PHILLIPS PETROLEUM CO. v. THRELKELD et al.
No. 2295.
Circuit Court of Appeals, Tenth Circuit.
Nov. 6, 1941.
Rehearing Denied Nov. 28, 1941.
Harry D. Turner, of Oklahoma City, Okl. (Don Emery and Rayburn L. Foster, both of Bartlesville, Okl., and R. B. F. Hummer and E. G. De Parade, both of Oklahoma City, Okl., on the brief), for appellant.
Paul F. Showalter, of Oklahoma City, Okl. (David A. Kline, of Oklahoma City, Okl., and C. B. Memminger, of Atoka, Okl, on the brief), for appellee C. O. Threlkeld.
C. D. Ellison, of Oklahoma City. Old., for other appellees.
Before BRATTON and HUXMAN, Circuit Judges.
IIUXMAN, Circuit Judge.
This case was argued to a court composed of Judges Bratton, Huxman and Williams. After adjournment, Judge Williams concluded that he was disqualified and therefore withdrew from the case. The parties by stipulation agreed that the decision should be rendered by the remaining two members of the court.
The sole question presented is whether there is an intervening strip of land between River Drive Street in Walnut Grove Addition to Oklahoma City and the east bank of the North Canadian River as it existed in 1902 and 1903. The Wintrode Land Company owned Lots 11 and 12 and the south half (S%) of the northeast quarter (NEj4,) of section three (3), township eleven (11) north of range three (3) west, such being all of the northeast quarter (NE)4) °f section three (3) except that which was cut off to the north and northwest by the center line of the North Canadian River. Lot 11 extended to the center line of the river. In 1902 the company platted the land into Walnut Grove Addition to Oklahoma City. An amended plat, not in issue here, was later filed. The plat was duly filed of record in conformity with the laws of Oklahoma.
From the time of the filing of the plat until 1923, there was no change in the course of the river, but at that time it abandoned its channel and the old bank became obliterated.
In 1923 appellant obtained a community oil and gas lease on all of block 2, and applied to the city authorities for a permit to drill a well' thereon. The Board of Adjustors of the City attached to the block as a part of the permit area the east half of the river as a contiguous tract. Thereafter appellant procured from the successors of the Wintrode Land Company an oil and gas lease covering the area constituting the east half of the river as it existed from 1902 to the change in 1923, described by metes and bounds. Appellant developed the property and discovered oil and gas in producing quantities. Thereafter, by separate quit claim deeds, the successors to Wintrode Land Company conveyed to C. O. Threlkeld successively the surface rights and seven-eights of the mineral estate to an area described by metes and bounds, containing 39,412 square feet, and lying west of block 2 and east of the east river bank. The deed expressly reserved the area embraced in the lease to appellant. If the deed to Threlkeld conveyed anything, it was a tract between the west line of River Drive Street and the east bank of the North Canadian River as it existed in 1902 and 1903.
Threlkeld brought a quiet title suit seeking to quiet his title to the strip of ground described in his quit claim deed and for an accounting of the oil and gas taken from the well. The accounting action was later dismissed. His right to recover depends upon whether there was a strip of ground between the west line of River Drive Street and the east. bank of the North Canadian River as it existed in 1902 and 1903, which was not included in Walnut Grove Addition as platted by the Wintrode Real Estate Company. The trial court found there was, and judgment quieting title was rendered against appellant, from which it has appealed.
AMENDED PLAT, SHOWING RIVER DRIVE STREET:
The appellees other than Threlkeld claim no interest. Their position in their brief before this court is that there is no separate tract of ground between River Drive Street and the east bank of the river susceptible of separate ownership, but that if they are in error in this and Threlkeld is right in his contention, then they would be the owners of their proportionate part of the oil and gas, concerning which proportion there is no dispute. The opinion will proceed as though Threlkeld alone were the appellee.
The court found that:
“The court further finds that the said land does physically exist as described by the plat and is susceptible of ownership and that the said Riverside Drive is a street fifty feet in width, as marked on the plats of Walnut Grove Addition and that there was never more than fifty feet dedicated to the public or used by the public in such a way or in any manner to vest adverse title in the public, or in the City of Oklahoma City as Trustee for the public and the court specifically finds in that connection that there was never more than fifty feet dedicated to the public as a part of Riverside Drive as shown by the amended plat of Walnut Grove Addition to Oklahoma City, Oklahoma.
***>{<*
“That the lines on the plats of Walnut Grove Addition purporting to show the location of the North Canadian River may not be viewed as a monument but that all natural monuments refer to such as are on the ground, the facts herein being that no river existed at said place at the time the conveyances in this case were executed by the parties herein and that the plat to the Walnut Grove Addition, Oklahoma County, Oklahoma, does not establish the North Canadian River as the boundary of the plat but establishes rather the west line of Riverside Drive as the plat of Walnut Grove Addition, as filed and amended and does not effect, cover, or control the existence or nonexistence of any tract or parcel of land existing west of Riverside Drive except insofar as respect must be given, and is given, to all the land described in the Walnut Grove Addition as platted and filed.”
Sec. 6137, O.S.1931, 11 Okl.St.Ann. § 511, provides that one desiring to lay out a town or an addition or subdivision shall cause it to be surveyed and a plat thereof made, which shall set forth all of the streets, alleys, common or public grounds, and all in or out lots or fractional lots within or adjoining such tract, giving the names, width, courses, boundaries and the extent of all such streets and alleys. Sec. 6141, 11 Old. St.Ann. § 515, provides that when such a plat has been made, certified, acknowledged and recorded, the land intended to be used for streets, alleyways, commons or other public purposes, shall be held in the corporate name of the city or town to and for the use and purpose set forth and expressed or intended in the plat. The plat of Walnut Grove Addition complied with the law. It was certified, acknowledged and recorded, as required by statute. It set out in the dedication that the streets, avenues and alleys shown on the plat were thereby dedicated to the use of the public.
Looking at the plat, it would appear that River Drive Street is bounded on the east by a solid line represented by the west boundary of the reserve tract and the west line of lots 13, 14 and 15, and on the west by lines indicating the east bank of the river. The figure “50” appears in the middle of River Drive Street both at the north and south ends of the street. This, the appellee argues, establishes the width of the street at fifty feet and leaves a tract of land between the street and the east bank of the river which he owns. Were it not for the figure “50” appearing at both ends of the street, it could not be seriously contended that the plat did not establish the east bank of the river as the west line of the street, because the statutes of Oklahoma require the dedicator to show on the plat the width, courses and boundaries of all streets and alleys, and unless the line indicating the river bank indicates the west boundary and course of the street, the dedicators failed to comply with the statute. Plaintiffs contend that the “50” written at both the top and the bottom of the street establishes the width of the street and that a line drawn fifty feet west of and parallel with the west line of the reserve tract and lots 13, 14 and 15 establishes the west boundary of the street. The plat does not indicate this, and, as has been said, it was the duty of the dedicator to indicate on the plat the west boundary and course of the street the same as the east boundary thereof.
It is a well established principle of law that where in a conveyance or declaration there is a conflict between a natural object or monument and a distance, the former prevails over the latter. M’Iver’s Lessee v. Walker, 9 Crunch 173, 3 L.Ed. 694; County of St. Clair v. Lovingston, 23 Wall. 46, 90 U.S. 46, 23 L.Ed. 59; Oklahoma v. Texas, 268 U.S. 252, 253, 45 S.Ct. 497, 69 L.Ed. 937; Smith v. Phillips, 9 Okl. 297, 60 P. 117.
The east bank of the river was somewhat more than fifty feet from the east line of River Drive Street. There was therefore a conflict between the figure “50,” indicating the width of the street, and the distance to the natural monument, the river, the boundary of the street on the west. In such cases, the natural boundary controls and the indicated distance gives way. It has been held in a number of cases that where a river is indicated upon a plat to be the boundary of a street, it will control a statement in the plat that the street is to be a certain width. 44 C.J. 891, § 3611; Nicolin v. Schneiderhan, 37 Minn. 63, 33 N.W. 33.
The mere index of distances is not conclusive in such cases, and our problem is to seek the intent of the proprietor of the plat. That may be shown in any proper way. It may be established by the plat itself, Ingraham v. Brown, 231 Ill. 256, 83 N.E. 156; Frye v. King County, 151 Wash. 179, 275 P. 547, 62 A.L.R. 476, or in any other way. Considering the plat in its entirety and applying to it the principle of natural monuments over distances, it is our conclusion that the eastern bank of the North Canadian River as it existed in 1902 and 1903 is the western boundary of River Drive Street. By so holding, we give effect to the intent of the proprietor to comply fully with the law with respect to platting additions by not only establishing on the plat the west boundary line and course of River Drive Street, but by also indicating on the map the width thereof, which he thought was fifty feet, but which actually was slightly more.
Plaintiff places strong reliance on Anderson-Prichard Oil Corp. v. Key Okla Oil Co., 149 Okl. 262, 299 P. 850. In that case, land in lot 7 and a part of the northwest quarter of the northeast quarter of section 2, township 11 north, range 3 west, in Oklahoma County, Oklahoma, was platted into an addition called Rosedale. The east bounda^ line of lot 7 was the center line of the North Canadian River. The plat included all of lot 7. Lots 11 and 16 were bounded on the east by Woodlawn Avenue, a street thirty feet wide. There was a small strip of ground between the east line of Woodlawn Avenue and the center line of the river. Through mesne conveyances, W. S. Keys became the owner of these lots. In the deeds of conveyance they were described by reference to the plat. Keys gave an oil and gas lease in which he described them as lots 11 and 16. The deed contained the further statement that they contained 10.81 acres more or less. The lots as platted and within their boundaries as indicated on the plat, contained less than the denominated number of acres. The lessee claimed the ground lying to the east of the lots between the east line of the street and the center line of the river as a part of his lots, contending that only thereby could you reach the acreage set out in the deed. The Supreme Court held that where a grantor conveys by reference to a plat, he is considered as having adopted the plat as a part of the deed and that the grantee takes title in accordance with the boundaries indicated on the plat, and that therefore the grantee in the oil lease would not take the ground lying to the east of the street. The question in that case was entirely different from the question we have ttnder consideration here.
The judgment of the court is reversed and the cause is remanded with directions to enter judgment against appellee and in favor of appellant, Phillips Petroleum Company.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_treat
|
B
|
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.
PRIEBE & SONS CO. v. HUNT et al.
No. 14223.
United States Court of Appeals Eighth Circuit.
May 4, 1951.
Casper W. Ooms, Chicago, Ill. (Owen J. Ooms, Chicago, Ill., and Benjamin F. Swisher, Waterloo, Iowa, on the brief), for appellant.
F. O. Richey and H. F. McNenny, Cleveland, Ohio (Richey & Watts, Cleveland, Ohio, on the brief), for appellees.
Before GARDNER, Chief Judge, and THOMAS and RIDDICK, Circuit Judges.
GARDNER, Chief Judge.
This appeal is from a judgment holding Hunt Patent No. 2,300,157, for “Feather-Picking Apparatus for Fowls and the Like,” valid and infringed by certain chicken-picking machines used by appellant but built by others. The parties will be referred to as they were designated in the trial court.
Plaintiff Anna May Hunt, Administratrix, is the owner and plaintiff Greenbrier Company is the licensee of the Hunt patent. The defendant is a poultry processor. Defendant challenged the validity of the patent, denied infringement, and affirmatively pleaded patent misuse. By stipulation of the parties the case was tried on the record made in an earlier suit under the same patent against Armour and Company, Hunt v. Armour & Co., D.C., 90 F.Supp. 767. The trial court found all the issues in favor of plaintiffs and entered judgment enjoining defendant from using or causing to be used any poultry-picking machines embodying the invention described in the Hunt patent and adjudging that plaintiffs recover general damages for the infringement.
The Hunt patent contains 19 claims but prior to the institution of this suit claim 16 of the patent was disclaimed. Defendant was charged with the infringement of claims 2, 3, 7, 8, Í0, 12, 14, 17 and 19 by reason of its use of machines and fingers for such machines manufactured respectively by F. J. Albright Company and Gordon Johnson Company. The device disclosed by the patent comprises a hollow drum mounted in a frame and driven by an electric motor. From the outside surface of the' drum extend flexible fingers arranged completely around the drum and extending outward at an angle or inclination of 14 degrees. The fingers are arranged in spaced rows, each, row being staggered with reference to the adjacent rows. In the preferred form the fingers have a tapered bore extending from the outer or free end almost as far as the corrugations extend. The specifications recite that solid fingers would remove feathers but that the operation was speeded by the use of hollow fingers.
Before a chicken is processed it is dipped in hot water, the temperature varying, dependent upon whether the chicken is being prepared for immediate sale or for cold storage. The operator places the chicken against the fingers projecting from the revolving drum and by turning the chicken to different positions all parts of its body are contacted by the fingers of the machine and the feathers ¡removed by a rubbing or scrubbing action. When higher temperatured water is used the machine removes practically all of the feathers within a period of from eight to ten seconds and the machine does a noticeably better job of picking than does the hand picker. The court found that, “Until the Hunt patent, and the disclosures made by Hunt, no machine had been built or constructed which successfully picked fowl by mechanical means. Such prior art as has been disclosed consists entirely of ‘paper’ patents for machines that were either never built or never operated in accordance with the disclosures of those patents.”
The court also found that the machine defined by the finger claims of the patent “were new and useful, accomplished important new results and embodied patentable invention. The patent in suit is a pioneer patent and basic in nature.” The court further found that, “The machine of the Hunt patent met with immediate commercial success and has continued to meet with commercial success.”
In seeking reversal defendant renews the contentions urged by it in the trial court.
The court found that the Hunt patent is a pioneer patent and basic in nature. This is probably a mixed question of law and fact. The finding is not specifically challenged on this appeal but we think it important to consider this holding of the court at the very inception of our consideration of the issues. A primary or pioneer invention is entitled to a broad and liberal construction and to a broad and liberal range of equivalence and is riot to be limited to the precise device and instrumentality disclosed. Dean Rubber Mfg. Co. v. Killian, 8 Cir., 106 F.2d 316, certiorari denied, 308 U.S. 624, 60 S.Ct. 380, 84 L.Ed. 521; Flowers v. Austin-Western Co., 7 Cir., 149 F.2d 955; Mason Corporation v. Halliburton, 10 Cir., 118 F.2d 729. We think the finding is sustained by abundant evidence. This device performed a function never successfully performed by an earlier invention. It was of such novelty and importance as to mark a distinct forward step in the progress of the art. It has in fact revolutionalized the art and was the first successful solution of the problem involved.
We should perhaps here observe that while this patent is a comparatively new one, it has been the subject of much litigation. This litigation will be found reflected in the 'following reported cases: Campbell v. Mueller, 6 Cir., 159 F.2d 803; Hunt v. Armour & Co., 7 Cir., 185 F.2d 722; Mueller v. Campbell, D.C., 68 F.Supp. 464; Mueller v. Campbell, D.C., 68 F.Supp. 475; Mueller v. Wolfinger, D.C., 68 F.Supp. 485; Mueller v. Pickwick, Corp., D.C., 94 F.Supp. 742; Hunt v. Armour & Co., D.C. 90 F.Supp. 767; Mueller v. Wolfinger, D.C., 91 F.Supp. 971; Hunt v. Priebe & Sons, D.C., 92 F.Supp. 767.
Judge Duffy, speaking for the Court of Appeals for the Seventh Circuit, in Hunt v. Armour and Company, supra, in a searching opinion reviews the many cases which had passed upon the validity and scope of the Hunt patent.
In view of the unanimity of judicial reaction to the various contentions urged against the' validity and scope of this patent, it would be presumptuous in us to attempt to add anything to the law or literature as applied to this patent. While these decisions may not be binding upon us they are certainly persuasive and should not lightly be brushed aside. Faulkner v. Gibbs, 338 U.S. 267, 70 S.Ct. 25, 94 L.Ed. 62; Republic Steel Corp. v. Farval, Corp., 6 Cir., 179 F.2d 719. Neither may the findings of the trial court as to validity and infringement be set aside unless clearly erroneous. Buder v. Becker, 8 Cir., 185 F.2d 311; Hunt v. Armour & Co., 7 Cir., 185 F.2d 722.
The prior art relied upon, including the Bouda and Richards patents, was before the Patent Office and likewise before each of the courts in the above cited cases. District Judge Shaw in Hunt v. Armour & Co., 90 F.Supp. 767, 769, in referring to the so-called prior art relied upon, among other things said: “It is my holding, and the record shows conclusively, that until the Hunt patent and the disclosures made by Hunt there was never any machine built that successfully picked chickens mechanically. Such prior art as has been disclosed consists entirely of ‘paper’ patents, none of which has ever been built or operated in accordance with the disclosures of those patents.”
We are in accord with this view as expressed by Judge 'Shaw, based upon the same record as is now before us, and there being no prior art, the Hunt patent is entitled to a liberal construction.
Having in mind the rule applicable to the construction oif a basic or pioneer patent, we turn to a consideration of the question of infringement by the devices used by the defendant. There are two classes of claims embodied in the patent — machine claims and finger claims. Claims 2 and 3 are said to be typical of the machine claims. They read as follows:
“Claim 2. A feather plucking device comprising a rotatable member having secured thereto means projecting from the outer surface thereof, said means 'being substantially cylindrical in shape, of elastic material, and having projections on the surface thereof, a portion of said means adjacent one end thereof being hollow.
“Claim 3. A feather plucking device comprising a rotatable member having secured thereto means projecting from the outer surface thereof, said means being substantially cylindrical in shape, of elastic material, and having projections on the surface thereof, a portion of said means having a thin wall and the remainder thereof having thicker wall portions.”
No single claim may be said to« be typical of the finger claims. Thus, Claim No. 12, reads as follows: “Claim 12. A poultry plucking finger member of the character described comprising a substantially cylindrical body formed of elastic material and having projections on the outer surface thereof, a portion of said body throughout its length being hollow, the walls of the body being sufficiently thick to avoid collapse in a direction parallel to the longitudinal axis when the finger is in use.”
It is observed that this claim describes the fingers as hollow. However, Claims 3, 8, 14, 17 and 19 do not recite the hollow feature.
It is strenuously argued that the accused devices do not infringe because the fingers on those devices are not hollow. This argument assumes that the fingers used by the defendant are solid. The finger used in the Albright device is a trough-like structure, while the finger used in the Johnson device is cut away at the back. Each of these fingers in a sense at least is hollowed on the outside. Part of the material in these devices is cut away. In the hollow finger the cut is on the inside and in the other finger the cut is on the outside. Even m patent law, substance is more important than form and should control over mere words. An expert witness was interrogated with reference to the difference in these fingers as follows:
“Q. What is the effect of the removal of rubber by making one side flat in the finger, Defendant’s Exhibit 5, as compared to the effect of a hollow interior as illustrated in the Hunt patent in suit? A. It increases the flexibility of the finger because of the decrease of the amount of material in the finger.
“Q. How does that compare with the effect of the hollow in the finger of the Hunt patent in suit? A. The effect of it is the same.”
It is elementary that infringement can not be avoided by a mere reversal of parts where the functions and operations are the same. It is observed too that Claim 17 provides for “flexible studs projecting outwardly from the drum, each stud having a plurality of projections on the face thereof, the outer end of each stud being recessed to provide edges thereon in spaced relation in the plane of the edges.” This claim, with Claims 18 and 19, was embodied to cover the idea of “having an opening or cutout portion of the outer end of the finger.” In Hunt v. Armour & Company, supra, in speaking of these claims, it is said: “As allowed, patent Claims 17 and 19, with the express agreement of the examiner, covered both solid and hollow fingers, with either the end surface or a side surface of the outer end portion recessed to provide spaced edges or spaced surfaces.”
These claims as allowed read directly on the so-called solid finger construction, and the other claims, while not reading directly on the solid finger construction, are infringed under the doctrine of equivalence. If the claims may be said to be ambiguous, then resort may be had to the specifications and in the Hunt patent the specifications clearly reserve the solid finger. In these specifications it is said: “Also, it has been found that a solid finger of the kind described will remove feathers satisfactorily but the operation is further speeded up if a tapered bore is formed in each finger with the taper decreasing inwardly as shown in Fig. 3.”
It is further said: “Although I have illustrated and described the preferred form of my invention, it will be obvious that various changes may be made therein without departing from the spirit of the invention or from the scope of the subjoined claims.”
It is doubtless true that an element may not be read into or out of a claim by referring to the specifications, yet an element may be construed in the light of the specifications in view of the merit of the invention. The rubber finger is recited in each claim and the question is whether the finger described must necessarily be a hollow finger or whether it may be a hollow or a solid finger. Certainly a number of these claims do not recite a hollow finger and we think the infringer may not read the hollow finger into the claim in order to avoid infringement.
The test of infringement is whether the accused device does substantially the same work in substantially the same way to accomplish the same result by the same or equivalent means and infringement is not to be avoided by a substitution of equivalence whether the equivalent is verbally within the claim or not, nor may it be avoided by a mere transposition or reversal of parts. Graver Tank Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 856, 94 L.Ed. 1097; Willis v. Town, 8 Cir., 182 F.2d 892; Dean Rubber Mfg. Co. v. Killian, supra; Montgomery Ward & Co. v. Clair, 8 Cir., 123 F.2d 878; Vallen v. Volland, 8 Cir., 122 F.2d 175. In Graver Tank Mfg. Co. v. Linde Air Products Co., supra, in speaking of the doctrine of equivalence, the Supreme Court said: “The essence of the doctrine is that one may not practice a fraud on a patent. Originating almost a century ago in the case of Winans v. Denmead, 15 How. 330, 14 L.Ed. 717, .it-has been consistently applied-by this Court and the lower federal courts, and continues today ready and available for utilization when the proper circumstances for its application arise. ‘To temper unsparing logic' and prevent an infringer from stealing the benefit of the invention’ a patentee may invoke this doctrine to proceed against the producer of a device ‘if it performs substantially the same function in substantially the same way to obtain the same result.’ Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 13, 74 L.Ed. 147, The theory on which it is founded is that ‘if two devices do the same work in substantially the same way, and accomplish substantially the same result,- they are ‘the same, even though they differ in name, form or shape.’ Union Paper-Bag Machine Co. v. Murphy, 97 U.S. 120, 125, 24 L.Ed. 935.”
On this phase of the case we are of the view that the accused devices used by the defendant infringe the Hunt patent. It is, however, urged that plaintiffs are not entitled to a liberal construction of the Hunt patent because of a file wrapper estoppel. In answer to this contention we adopt the words of Judge Duffy in Hunt v. Armour & Co., supra:
“Of course accepting a narrower claim when the Patent Office makes it a condition of the grant may result in estoppel. Cadillac Motor Car Co., et al. v. Austin, 6 Cir., 225 F. 983. However, our examination of the proceedings as shown in the file wrapper convinces us that Hunt did not surrender his claims which were broad enough to cover a solid finger, and that the Patent Office did not make any such limitation a condition of the grant.
“Hunt filed his application in the Patent Office disclosing the preferred form of machine equipped with hollow fingers having a tapering bore. However, the specification disclosed that a solid finger could also be used, instead of the hollow form. The examiner at first rejected many of Hunt’s claims on the prior art. Thereupon Hunt and his solicitor had an interview with -the principal examiner and his assistant, and demonstrated the Hunt machine. Following this demonstration all of the claims, including both the allowed and rejected claims, were cancelled ‘without prejudice.’ The .rewritten claims included both broad and narrow claims, and included Claim 31, which was broader than any claim theretofore presented. The examiner acquiesced in the cancellation of the claims ‘without prejudice,’ and the rewritten claims including the broad claims were allowed and made counts of the three interferences which the examiner thereupon set up.” [185 F. 727.] See, also: Hunt v. Armour & Co., D.C., 90 F.Supp. 767; Mueller v. Wolfinger, D.C., 91 F.Supp. 971; Hunt v. Priebe & Sons, D.C., 92 F.Supp. 767.
We conclude,- that the trial court was not in error in holding that there was no file wrapper estoppel shown in this case.
It remains to consider the “misuse”-defense. This defense is apparently based upon the fact that plaintiffs and their licensees sell machines and also sell separately fingers covered by the finger claims of the Hunt patent, the fingers for use as replacements for worn-out fingers in licensed machines. This same defense was pleaded by defendants in all of the other cases above cited, involving the Hunt patent. In the instant case the trial judge found as follows:
“21. The plaintiffs are not and have not been- using the Hunt patent in suit to -control the sale of unpatented poultry machine components.
“22. The plaintiffs do not control or attempt to control the patented fingers after the patent monopoly on the fingers is exhaused by the sale of them.
“23. The plaintiffs have not expanded or attempted to expand their patent monopoly to secure a monopoly on or to control unpatented rotary members or other parts for poultry picking machines.
“24. The plaintiffs sell the patented machines, and also sell the patented fingers, which have a legitimate use as replacement for broken or worn out fingers on the patented machines which have been sold by the plaintiffs and their licensees.”
After the commencement of Hunt v. Armour and Company, defendant purchased fingers licensed under the Hunt patent and installed them in the accused Albright machine and it argues that by this purchase of the fingers which are covered by one group of claims in the patent, it also obtained a license under the separate groups of machine claims. Each claim of the patent, however, is a separate grant. Sanitary District of Chicago v. Activated Sludge, Inc., 7 Cir., 90 F.2d 727; Radio Corp. of America v. Andrea, 2 Cir., 90 F.2d 612; National Aluminate Corp. v. Permutit Co., 8 Cir., 145 F.2d 175; Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312. Under the circumstances disclosed by this record the mere sale of these patented fingers did not import a license. The patent grants conferred upon the patentee the right to a monoply on each claim with the right to exact compensation in respect thereto. We think the defense is not sustained by this record.
Being of the view that the court’s findings of fact and conclusions of law are abundantly sustained by substantial evidence, the judgment appealed from is affirmed.
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_counsel1
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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 appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Jonathan C. HARBAUGH and Watson D. Harbaugh, Appellants, v. UNITED STATES of America, Appellee.
No. 9695.
Circuit Court of Appeals, Sixth Circuit.
April 4, 1944.
J. Earl Pratt and Losh O. Harbaugh, both of Ironton, Ohio, for appellants.
Calvin Crawford, of Cincinnati, Ohio, and Eugene A. Mayl, of Dayton, Ohio, for appellee.
Before HICKS, ALLEN, and HAMILTON, Circuit Judges.
PER CURIAM.
This cause was heard on the transcript of the record, briefs and arguments of counsel, and on consideration whereof it appears to the court that there is no prejudicial or reversible error on the record. It is therefore ordered and adjudged that the judgment appealed from entered on August 3, 1943, be and the same is in all things affirmed.
Question: What is the nature of the counsel for the appellant?
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_treat
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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 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.
UNITED STATES of America, Plaintiff-Appellee, v. Michael Stephen LANCELLOTTI, Defendant-Appellant.
No. 82-1594.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 14, 1983.
Vacated Oct. 11, 1983.
Resubmitted Oct. 10, 1984.
Decided May 23, 1985.
Sandra Teters, Asst. U.S. Atty., U.S. Attorney’s Office, San Francisco, Cal., for plaintiff-appellee.
Allen Ruby, Morgan, Ruby, Teter, Scho-field, Franich, Bouchier & Fredkin, San Jose, Cal., for defendant-appellant.
Before KENNEDY and REINHARDT, Circuit Judges, and HOFFMAN, District Judge.
Honorable Walter E. Hoffman, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
KENNEDY, Circuit Judge:
Michael Stephen Lancellotti appeals his conviction for possession of firearms in violation of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. app. § 1202(a)(1) (1982). The appeal raises two distinct issues: first, whether the trial court erred in denying Lancellot-ti’s motion to suppress evidence seized from his trailer pursuant to a valid search warrant where, prior to the issuance of the warrant, Santa Clara County Sheriffs officers had entered and secured the trailer; and second, whether there was sufficient evidence before the trial court to support the conviction. We deferred submission of this case pending disposition by the Supreme Court in Sequra v. United States, — U.S. -, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). We now affirm.
The Santa Clara County Sheriffs Department had reliable information and probable cause to arrest Lancellotti after the victim of a shooting identified him as the assailant and other witnesses corroborated the identification. At approximately 2:00 a.m., shortly following receipt of this information, the Sheriffs Office placed a call to the trailer while officers at the scene guarded its exits. A male voice with an Eastern or New York accent answered the phone and stated that “Mike” was not there. Lancel-lotti denies making this statement. The man on the phone was told to step outside with his hands in plain view, and responded that he would do so after getting dressed. Approximately five minutes later, Lancel-lotti stepped out of the trailer and was arrested.
The officers entered the trailer for about ten minutes to ascertain that no one else was inside. Before and after Lancellotti emerged from the trailer, the officers had heard noises coming from the direction of the trailer, but, due to the proximity of residences in the trailer park, had been unable to determine whether the noises were in fact coming from Lancellotti’s trailer rather than from another nearby residence. No other occupant was discovered in the trailer. Nor was any evidence seized at this time. It is unclear whether the officers then sat in the kitchen of the trailer for an hour or so until relief arrived, or whether they waited outside for their relief. When the relieving officers arrived, however, the trailer was placed under surveillance from outside until approximately 8:00 a.m., when a search warrant was issued. Upon execution of the warrant, two firearms, the evidence at issue in this case, were found in the trailer.
Lancellotti contends the motion to suppress the evidence should have been granted on the ground that the issuance of a valid search warrant for the firearms did not purge the evidence of the taint created by the prior warrantless entry into the trailer. We evaluate the district court’s ruling based on our independent review of the record. Ker v. California, 374 U.S. 23, 33-34, 83 S.Ct. 1623, 1629-1630, 10 L.Ed.2d 726 (1963); United States v. Kunkler, 679 F.2d 187, 192 n. 6 (9th Cir.1982); United States v. Bates, 533 F.2d 466, 468 (9th Cir.1976); accord United States v. McConney, 728 F.2d 1195, 1203, 1205 (9th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We find this issue is controlled by Sequra v. United States, — U.S. -, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).
In United States v. Allard, 600 F.2d 1301 (9th Cir.1979) (“Allard I”), we held that a warrantless entry of a hotel room was not justified by exigent circumstances. 600 F.2d at 1304. Then, in United States v. Allard, 634 F.2d 1182 (9th Cir.1980) {“Allard II"), we held that where police officers remained in the room for two hours until a search warrant was issued, their conduct, when combined with the initial illegal entry, constituted an ongoing illegal “seizure” of the room and its contents, tainting the evidence ultimately obtained pursuant to the warrant. The fact that the Government had sufficient independent grounds for obtaining the search warrant and did not need to rely on the information gathered in the course of improper activity was deemed insufficient to dissipate the taint. The panel stated:
where a defendant establishes that the government illegally “secured” and thereby seized evidence, and that seizure continues while the government procures a search warrant, the defendant has demonstrated a sufficient nexus between the illegality and the subsequently seized evidence notwithstanding any “independent source” supporting the warrant. Upon establishing this nexus, the burden shifts to the government to demonstrate that it would have both independently discovered and successfully obtained the proffered evidence, notwithstanding the illegal seizure.
634 F.2d at 1187 (emphasis added). The seizure in Allard was held improper under this stringent two-part test.
In the case before us, the district court admitted the firearms seized from the trailer and found Allard II distinguishable. The contention on appeal is that Allard II controls. We need not reach the point for we conclude that the rationale of Allard II and the cases following it, such as United States v. Lomas, 706 F.2d 886 (9th Cir. 1983), cert. denied, — U.S. -, 104 S.Ct. 720, 79 L.Ed.2d 182 (1984), have been rejected by the Supreme Court in Sequra v. United States, — U.S. -, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).
In Sequra New York Drug Enforcement Task Force agents, after arresting Segura in the lobby of his apartment building, made a warrantless entry of his apartment and conducted a “limited security check of the apartment to ensure that no one else was there who might pose a threat to their safety or destroy evidence.” 104 S.Ct. at 3384. Two Task Force agents then remained in the apartment for approximately 19 hours until a search warrant was issued. Upon the issuance of the warrant, the agents searched the apartment and seized almost three pounds of cocaine and various other incriminating items. The Supreme Court undertook to decide “whether [the] drugs and ... other items ... first discovered by the agents the day after the entry, under an admittedly valid search warrant, should have been suppressed,” 104 S.Ct. at 3385, and did not review the Second Circuit’s affirmance of the district court’s determination that the initial warrantless entry and limited security check of the apartment were not justified by exigent circumstances and were therefore illegal.
A majority of the Court determined that “[w]hether the initial entry was illegal or not is irrelevant to the admissibility of the challenged evidence because there was an independent source for the warrant under which that evidence was seized,” 104 S.Ct. at 3391, and held that the valid warrant was sufficient to purge the evidence of any taint created by the initial illegal entry. In so holding, the Court reaffirmed the independent source rule, see Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963); Silver-thorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920), a doctrine followed by all federal courts of appeals except the Ninth Circuit. Sequra, 104 S.Ct. at 3391 n. 9. The majority explicitly declined to compel the Government to demonstrate that it could have successfully obtained the evidence in question without the illegal entry and without securing the premises, as required by Allard II. This element of the Allard II rule was unequivocally rejected. 104 S.Ct. at 3392.
When an intervening Supreme Court decision undermines an existing precedent of the Ninth Circuit, and both cases are closely on point, a three judge panel of this court may reexamine our precedent to determine its continuing authority. United States v. Maybusher, 735 F.2d 366, 371 n. 1 (9th Cir.1984); LeVick v. Skaggs Co., 701 F.2d 777, 778 (9th Cir.1983). Having reviewed our holdings in Allard II and Lo-mas, we conclude they have been effectively overruled by the Supreme Court and are no longer controlling precedents in this circuit. We are therefore bound to follow the Sequra analysis in resolving the case before us. We are in accord in this view with the decision in United States v. Moreno, 701 F.2d 815 (9th Cir.1985).
Although we are inclined to agree with the district court that the initial warrant-less entry of Laneellotti’s trailer was justified by exigent circumstances since the officers entered for the purpose of conducting a protective sweep, Sequra does not require us to decide this issue. 104 S.Ct. at 3391. Nor are we required to decide whether, by securing the trailer until the search warrant was issued, the officers effected an illegal seizure of the premises. We must only decide whether there was an independent source for the discovery of the evidence seized, unrelated to matters observed by the officers pursuant to the war-rantless entry of the trailer.
In this case, as in Sequra, there was ample information, independent of the warrantless entry, to furnish probable cause for the search warrant under which the incriminating evidence was ultimately seized. The victim of the shooting had identified Lancellotti as his assailant; witnesses had heard Lancellotti threaten to kill anyone who called the police or testified against him; and Lancellotti was known to have at least two firearms in his possession. Under Sequra this information, known to the police before the initial entry of the trailer, was sufficient to purge the evidence subsequently seized of any potential taint resulting from the initial entry, 104 S.Ct. at 3391, since the connection between the warrantless entry and the subsequent discovery and seizure of evidence was so attenuated. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). See also Wong Sun v. United States, 371 U.S. at 488, 83 S.Ct. at 417; Silverthorne Lumber Co. v. United States, 251 U.S. at 392, 40 S.Ct. at 183. The motion to suppress was properly denied.
The second issue on appeal concerns the sufficiency of the evidence. Lancellotti contends there was insufficient evidence before the trial court to establish a nexus between the firearms in his possession and commerce as required under Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. app. § 1202(a)(1). That statute provides in pertinent part:
Any person who—
(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony [], ... and who receives, possesses, or transports in commerce or affecting commerce ... any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.
Since Lancellotti failed to object to the sufficiency of the evidence at trial, we review the findings of the district court for plain error only. Fed.R.Evid. 103(a), (d); Fed.R.Crim.P. 52(b). See also United States v. Kennedy, 726 F.2d 546, 548 (9th Cir.), cert. denied, — U.S. -, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984). Plain error is highly prejudicial error that affects substantial rights, United States v. Kennedy, 726 F.2d at 548; United States v. Gilman, 684 F.2d 616, 620 (9th Cir.1982), and reversal for plain error is appropriate only when necessary to safeguard the integrity and reputation of the judicial process or to forestall a miscarriage of justice. United States v. Krasn, 614 F.2d 1229, 1236 (9th Cir.1980); United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979).
A nexus between commerce and the firearm possessed by the convicted felon is an essential element of a section 1202(a)(1) violation. United States v. Bass, 404 U.S. 336, 350, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). In applying the statute, this court will reverse lower court decisions that fail to establish such a nexus. See, e.g., United States v. Hiram, 473 F.2d 670, 671 (9th Cir.1973) (per curiam). The nexus requirement, however, is minimal, and is satisfied by showing that the firearms possessed by the convicted felon previously traveled in commerce. Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977); United States v. Robbins, 579 F.2d 1151, 1153 (9th Cir.1978).
At issue here is the effect of paragraph 1 of the stipulation executed by the parties and filed by the district court on August 19, 1982, which states: “Exhibits 1-8 may be admitted into evidence, all objections to foundational facts are waived.” (Emphasis added). Exhibits four and five contain the certifications of manufacture and record search information prepared by the Bureau of Alcohol, Tobacco and Firearms for each of the two firearms in question. These documents establish that the firearms were manufactured in Southport, Connecticut, and shipped to Belmont, California, and had therefore traveled in interstate commerce as required by section 1202(a)(1). Scarborough, 431 U.S. at 575, 97 S.Ct. at 1969; Robbins, 579 F.2d at 1153.
Lancellotti’s contention is that it is unclear from the words “may be admitted” whether the trial court was required to make a further, specific order to put the exhibits in evidence; and that since the court made no specific findings regarding the exhibits, it is possible that the exhibits were not before the court. While the potential ambiguity regarding whether any action was required of the trial court could have been avoided had the parties merely stipulated that the exhibits were evidence to be considered by the court, we view the stipulation as a self-executing document which obviates the need for any formal judicial action. Cf. Gardiner v. A.H. Robbins Co., 747 F.2d 1180, 1189 (8th Cir.1984) (entry of stipulation of dismissal is effective automatically and does not require judicial approval). We therefore hold that exhibits four and five were properly before the trial court. See Starsky v. Williams, 512 F.2d 109, 111-13 (9th Cir.1975); Southwest Forest Industries, Inc. v. Westinghouse Electric Corp., 422 F.2d 1013, 1017-18 (9th Cir.), cert. denied, 400 U.S. 902, 91 S.Ct. 138, 27 L.Ed.2d 138 (1970); Gillespie v. Norris, 231 F.2d 881, 883-84 (9th Cir. 1956) (where parties agree to try a case upon an undisputed record of specific affidavits, admissions, and other documents, all documents submitted as part of such record are before the trial court). Accord Wilson v. Block, 708 F.2d 735, 745 n. 7 (D.C.Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 371, 739, 78 L.Ed.2d 330 (1984). Having so concluded, we need not ascertain whether the trial judge actually considered exhibits four and five, although his statement “I’ve read the documents and ... on the basis of that, I have to find you guilty of both counts,” made during the suppression hearing, would indicate that he did. It is enough that there was sufficient evidence before the court to support a conviction under section 1202(a)(1). The Government has therefore established the required nexus between the firearms and commerce.
In cases tried on stipulated facts, each party should exercise great care to avoid ambiguity and imprecision with respect to the factual matters agreed upon. Although stipulated fact trials, properly conducted, conserve judicial resources and enhance the efficient functioning of the judicial process as a whole, they contain a myriad of opportunities for an incomplete record. In deciding that only one particular issue will be tried and that everything else will be stipulated, the parties risk an incorrect result based on an incomplete record. Stipulations should be presented with great care. A stipulation should indicate in unequivocal terms what is before the trial court. The parties should not create an ambiguous record. In this case, however, we find no error and sufficient evidence.
The conviction is AFFIRMED.
. Lancellotti was found guilty of a felony by a New York State court in 1972 and is therefore a convicted felon within the meaning of the statute.
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_respond2_3_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "agency whose first word is "federal"". Your task is to determine which specific federal government agency best describes this litigant.
COOK, INC., Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents, White River Radio Corporation and Bloomington Broadcasting Company, Intervenors.
No. 16496.
United States Court of Appeals Seventh Circuit.
May 3, 1968.
Robert A. Marmet, Peter L. Koff, Washington, D. C., for petitioner.
Michael H. Bader, Lois P. Siegel, Lauren A. Colby, Washington, D. C., for intervenors.
Howard E. Shapiro, Asst. Atty. Gen., Dept. of Justice, Henry Geller, John H. Conlin, Lenore G. Ehrig, Joseph A. Marino, Washington, D. C., for respondents.
Before DUFFY, Senior Circuit Judge, and KILEY, and SWYGERT, Circuit Judges.
KILEY, Circuit Judge.
Petitioner, Cook, Inc., seeks to review and set aside an order of respondent Commission returning Cook’s application for a new standard radio broadcasting station license for operation at Ellets-ville, Indiana; and an order denying Cook’s petition for Commission reconsideration of the order returning the application. White River Radio Corporation and Bloomington Broadcasting Company have intervened. We think sole jurisdiction of Cook’s petition is in the District of Columbia Court of Appeals, and we accordingly sustain the Commission’s motion to dismiss Cook’s appeal in this court.
On July 8, 1965, the Commission, pursuant to its rules, gave public notice of the filing of several applications, for new radio broadcasting stations, which were ready and available for administrative processing. The Commission, in the notice, set August 17, 1965, as the cut-off date before which potential applicants must file applications, if their applications involved an engineering conflict with any application listed in the public notice or with any other application on file at the close of business on the cut-off date.
Intervenor Bloomington’s application was filed on August 17, 1965, the cutoff date. On September 9, 1965, Cook tendered its application for a license, which involved a conflict with the Bloom-ington application. The application being late, Cook requested waiver of the Commission cut-off rule. Bloomington moved to dismiss Cook’s application as untimely and as presenting no reason for waiver. On March 16, 1967, the Commission sustained Bloomington’s motion and returned the Cook application as unacceptable.
On February 15, 1967, the Commission published another list of applicants and set March 30, 1967, as the cut-off date. Two of the applications on this list conflicted with Cook’s application, although neither conflicted with the Bloomington application. Cook again tendered its application, and on April 17 petitioned for reconsideration of the Commission’s March 16 return order. White River, an applicant whose name appeared on the list published on February 15, and Bloomington, opposed the filing of Cook’s application. On October 3, 1967, the Commission denied reconsideration on the earlier return order and again returned the application. This petition to review followed.
The provisions for judicial review of decisions of the Federal Communications Commission are found in 47 U.S.C. Sec. 402. Section 402(a) is the general review section providing for judicial review of Commission decisions by the courts in accordance with the provisions of 28 U.S.C. Sees. 2341-2350. Section 402(b), however, provides that “Appeals may be taken from * * * the Commission to the United States Court of Appeals for the District of Columbia” in certain classes of cases involving the Commission’s exercise of its radio licensing power.
This court’s jurisdiction to entertain Cook’s petition for review is challenged by the Commission and intervenors on the ground that the orders which Cook seeks to overturn fall within the scope of See. 402(b) and therefore may be reviewed only by the Court of Appeals for the District of Columbia.
The Commission’s position is that Secs. 402(a) and 402(b) are mutually exclusive; and that the latter section pertains to orders of the Commission with respect to its radio licensing powers, lodging exclusive jurisdiction to review those orders in the Court of Appeals for the District of Columbia. The Commission relies upon the legislative history of the Communications Act and several court of appeals decisions to support its contention.
The Radio Act of 1927, 44 Stat. 1169, established the Federal Radio Commission and expressly provided that “any applicant” whose application for a construction permit was denied “shall have the right to appeal * * * to said Court of Appeals of the District of Columbia.” Although the language of this provision has been modified by Congress over the years until it has evolved into the present Sec. 402(b), courts have consistently held that the Court of Appeals for the District of Columbia has exclusive jurisdiction over cases that fall within the scope of the provision. Sykes v. Jenny Wren Co., 64 App.D.C. 379, 78 F.2d 729, 732, 104 A.L.R. 864; Black River Valley Broadcasts v. McNinch, 69 App.D.C. 311, 101 F.2d 235, 238. In American Bond & Mortgage Co. v. United States, 7 Cir., 52 F.2d 318, this court recognized that 402(b) of the 1934 Act lodged exclusive jurisdiction of 402(b) orders in the District of Columbia Circuit.
In its report on the 1952 amendment of Sec. 402 of the Act, the Senate Committee plainly stated that appeals from orders of the Commission in exercising its “licensing powers” must be taken to the District of Columbia Circuit. All other orders fall within the general coverage of Sec. 402(a). Columbia Broadcasting System v. Federal Communications Commission, 93 U.S.App.D.C. 399, 211 F.2d 644. Sections 402(a) and (b) are mutually exclusive. Functional Music, Inc. v. FCC, 107 U.S.App.D.C. 34, 274 F.2d 543, 547; Rhode Island Television Corporation v. FCC, 116 U.S.App.D.C. 40, 320 F.2d 762, 765.
Neither a Commission order returning an application nor a Commission order denying reconsideration of a return order is specified in the categories listed in Sec. 402(b). However, the District of Columbia Court of Appeals in Metropolitan Television Co. v. United States, 95 U.S.App.D.C. 326, 221 F.2d 879, treated orders denying protests and orders denying rehearing as reviewable under 402(b), although neither is specified in that Section. The Ninth Circuit in Helena TV, Inc. v. FCC, 269 F.2d 30, declined to entertain jurisdiction over a petition to review a Commission order which was “ancillary to a protest proceeding” pending before the Commission in which the District of Columbia Circuit had already acted, on the ground that sole jurisdiction was in the District of Columbia Circuit.
In Tomah-Mauston Broadcasting Co. v. FCC, 113 U.S.App.D.C. 204, 306 F.2d 811, the District of Columbia court decided that it had sole jurisdiction under 402(b) to review an order denying a petition to stay and revoke a construction permit for a new broadcasting station. The court, in the light of the legislative purpose, considered the order “ancillary” to the grant of the construction permit. The District of Columbia Circuit in Kes-sler v. FCC, 117 U.S.App.D.C. 130, 326 F.2d 673, asserted jurisdiction over appeals from an order of the Commission refusing to accept applications of the appellants. In fn. 4, 826 F.2d p. 679, the court agreed with the position of the Commission that the orders of the Commission were reviewable only under 402(b).
We think the orders before us are “ancillary” to an exercise of the Commission’s “licensing power,” since Cook’s application was returned because it was filed after a cut-off date which was set by the Commission in order that the Commission be enabled to exercise its licensing power efficiently and expeditiously. The orders are therefore reviewable only under Sec. 402(b). Tomah-Mauston Broadcasting Co. v. FCC, 113 U.S.App.D.C. 204, 306 F.2d 811; Helena TV, Inc. v. FCC, 9 Cir., 269 F.2d 30.
Cook seeks to restrict the meaning of the term “ancillary” to the meaning of the term “subordinate” and argues that since there has been no license granted or denied in the proceeding before us, the orders entered cannot be considered subordinate to an exercise of licensing power. We see no need, however, to decide whether an order is “ancillary” only when it is “subordinate,” as that term is used by Cook.
The legislative history of Secs. 402(a) and (b) demonstrates that Congress intended that the type of order appealed from by Cook be reviewable only by the Court of Appeals for the District of Columbia. The Communications Act of 1934 which created the Federal Communications Commission also included provisions for judicial review of orders of the Commission. Section 402(b) of that Act was substantially the same as the current Sec. 402(b) despite the fact that the wording of the Section has been modified for the purpose of clarity. Section 402(b) of the 1934 Act was intended to limit all appeals, taken by applicants for radio licenses from rulings by the Commission, to the Court of Appeals for the District of Columbia.
In this case Cook came to the Commission and applied for a license for a radio station. The Commission issued an order refusing to consider the application and Cook seeks to appeal the Commission’s order. The return orders are in aid of and within the exercise of the Commission’s licensing power, and Congress intended that appeals from such orders be limited to the District of Columbia Circuit. The petition for review in this court therefore must be rejected for want of jurisdiction.
Appeal dismissed.
. Sec. 1.227(b) (1), and 1.591(b) of the Rules of the Commission.
. The Commission’s brief (fn. 5) states that Cook’s counsel was advised “at the outset” that the District of Columbia Court had exclusive jurisdiction over the orders and that it would challenge the jurisdiction of this court; and that petitioner filed no “timely appeal” in the District of Columbia Court. Petitioner’s reply brief states it was not so advised until the last day for filing in the District of Columbia Court. Petitioner’s appeal for review to the District of Columbia Court was dismissed as untimely November 22, 1967.
. Sec. 402(b), Communications Act of 1934:
(b) An appeal may be taken, in the manner hereinafter provided, from decisions of the Commission to the United States Court of Appeals for the District of Columbia in any of the following cases:
(1) By any applicant for a construction permit for a radio station, or for a radio station license, or for renewal of an existing radio station license, or for modification of an existing radio station license, whose application is refused by the Commission.
(2) By any other person aggrieved or whose interests are adversely affected by any decision of the Commission granting or refusing any such application.
. “The language of this subsection, when considered in relation to that of subsection (a), also would make it clear that judicial review of all cases involving the exercise of the Commission’s radio licensing power is limited to that court.” SR No. 44, 82nd Cong. 1st Sess., p. 10.
. See 28 U.S.C. § 2347.
. In the Kessler, Rhode Island, and Functional cases, the appellants, out of caution, filed appeals under both Secs. 402 (a) and (b). Cook also filed an appeal with the District of Columbia Circuit, but it was rejected because filed too late.
. Webster’s New International Dictionary, Second Edition, Unabridged: “ancillary * * * 2. Lato. Designating * * * a * * * proceeding * * * that is subordinate to, or in aid of, another primary or principal one; * * *”
. Senator Dill, who guided the bill in the Senate, stated that “ * * * in the case where the applicant for the license * * * comes to the Commission and asks for * * * a new license, then if the Commission makes a decision from which he desires to appeal he must make his appeal in the District of Columbia.” 78 Cong.Ree. 8826. The Senator also indicated when an order involving radio licensing would be permitted under 402 (a), stating “that where the decisions of the Commission are made in cases wherein the stations took no part in beginning the suits, appeal may be taken * * ::: [under 402(a)].”
The Senate Report on the 1934 bill reaffirms Senator Dill’s view. The Committee states that
“Where a licensee desires to appeal from orders of the Commission affecting his interest, but which he did not originate, he may file his appeal in the three-judge district court in the jurisdiction where he lives. In those cases where he has applied to the Commission for an order and desires to appeal from the Commission’s action, he must come to Washington, D.C., to prosecute his appeal, just as he came to Washington to ask for the order.”
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "agency whose first word is "federal"". Which specific federal government agency best describes this litigant?
A. Federal Aviation Administration
B. Federal Bureau of Investigation (FBI)
C. Federal Coal Mine Safety Board
D. Federal Communications Commission
E. Federal Deposit Insurance Corporation and FSLIC
F. Federal Election Commission
G. Federal Energy Agency (Federal Power Commission)
H. Federal Energy Regulatory Commission
I. Federal Home Loan Bank Board
J. Federal Housing Authority (FHA)
K. Federal Labor Relations Authority
L. Federal Maritime Board
M. Federal Maritime Commission
N. Federal Mine Safety & Health Administration
O. Federal Mine Safety & Health Review Commission
P. Federal Reserve System
Q. Federal Trade Commission
Answer:
|
songer_state
|
56
|
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".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DIAMOND STANDARD FUEL CORP., Respondent.
No. 7702.
United States Court of Appeals, First Circuit.
Jan. 29, 1971.
Warren M. Davison, Deputy Asst. Gen. Counsel, with whom Arnold Ord-man, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Arthur L. Fox II, Atty., Washingon, D. C., were on brief, for petitioner.
Julius Kirie, Boston, Mass., for respondent.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
PER CURIAM.
This is the usual petition for enforcement of a Labor Board order. The Board found that the respondent, a New Hampshire trucking concern, violated § 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), by coercively interrogating and threatening its employees with regard to their union activities; § 8(a) (3) and (1) of the Act, 29 U.S.C. § 158(a) (3) and (1), by laying off eight employees because they had joined the union; and § 8(a) (5) and (1) of the Act, 29 U.S.C. § 158(a) (5) and (1), by refusing to recognize the union.
Early in September 1968 the Teamsters’ Union obtained signatures from eleven of respondent’s seventeen truck drivers authorizing it to represent them for the purpose of collective bargaining. On the basis of this action, the union contacted the company on September 13 requesting recognition, which was refused. On September 19 eight of the drivers, known by the company to be union adherents, were laid off, assertedly for lack of available work. Respondent contends that the Board erred in discrediting its witnesses and in believing employee testimony regarding the alleged coercive interrogations and the discriminatory motivation behind its layoff policy. That “questions of credibility are for the Board” is too well established to require further discussion here. N. L. R. B. v. Universal Packaging Corporation, 361 F.2d 384, 388 (1st Cir. 1966).
Respondent counters Board charges that it was obligated to recognize the union by asserting that (1) the Board’s determination that respondent’s truck drivers constitute an appropriate bargaining unit was arbitrary, capricious, and an abuse of discretion and (2) the authorization cards were invalid designations of the union. With regard to the bargaining unit, we cannot say that the Board’s omission of respondent’s five garage employees was lacking in rationality or an abuse of its broad discretion to determine appropriate units. S. D. Warren Co. v. N. L. R. B., 353 F.2d 494 (1st Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 300 (1966). As to the cards, they “unambiguously authorized the Union to represent the signing employee for collective bargaining purposes * * * [and made] no reference to elections.” N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 583 n. 4, 89 S.Ct. 1918, 1925, 23 L.Ed.2d 547 (1969). There was ample evidence for the hearing examiner’s finding that there had been no discussion about using the cards to obtain an election until after they were signed. There was also ample support for the Board’s decision to certify the union without holding an election on the grounds that the company’s unfair labor practices were so “outrageous” and “pervasive” that “the invocation of traditional remedies affords no guarantee that an election will provide a more accurate index of employee sentiment than the cards.” See N. L. R. B. v. Gissel Packing Co., supra at 613-615, 89 S.Ct. 1918.
Finally, respondent argues that the trial examiner’s refusal to permit pre-hearing discovery was erroneous in view of N. L. R. B. v. Schill Steel Products, Inc., 408 F.2d 803 (5th Cir. 1969). But that case dealt with the scope of discovery in contempt hearings before the court of appeals and was not intended to apply to proceedings before the Board.
The order of the Board will be enforced.
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_adminaction
|
073
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
LEGAL SERVICES CORPORATION v. VELAZQUEZ et al.
No. 99-603.
Argued October 4, 2000
Decided February 28, 2001
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion in which Rehnquist, C. J., and O’Connor and Thomas, JJ., joined, post, p. 549.
Alan Levine argued the cause for petitioner in No. 99-603. With him on the briefs was Stephen L. Ascher.
Deputy Solicitor General Kneedler argued the cause for the United States in No. 99-960. With him on the briefs were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Beth S. Brinkmann, Barbara L. Herwig, and Matthew M. Collette.
Burt Neuborne argued the cause for respondents in both cases. With him on the brief were Laura K. Abel, Kimani Paul-Emile, Paul K. Sonn, David S. Udell, Peter M. Fish-bein, and Alan E. Rothman.
Together with No. 99-960, United States v. Velazquez et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the Pacific Legal Foundation by John H. Findley; and for the Washington Legal Foundation et al. by Daniel J. Popeo and R. Shawn Gunnarson.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Arthur N. Eisenberg and Steven R. Shapiro; and for the New York State Bar Association et al. by Bruce A. Green and Lawrence S. Lustberg.
Frederick A. O. Schwarz, Jr., filed a brief for the American Judicature Society as amicus curiae.
Justice Kennedy
delivered the opinion of the Court.
In 1974, Congress enacted the Legal Services Corporation Act, 88 Stat. 378, 42 U. S. C. §2996 et seq. The Act establishes the Legal Services Corporation (LSC) as a District of Columbia nonprofit corporation. LSC’s mission is to distribute funds appropriated by Congress to eligible local grantee organizations “for the purpose of providing financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance.” § 2996b(a).
LSC grantees consist of hundreds of local organizations governed, in the typical case, by local boards of directors. In many instances the grantees are funded by a combination of LSC funds and other public or private sources. The grantee organizations hire and supervise lawyers to provide free legal assistance to indigent clients. Each year LSC appropriates funds to grantees or recipients that hire and supervise lawyers for various professional activities, including representation of indigent clients seeking welfare benefits.
This suit requires us to decide whether one of the conditions imposed by Congress on the use of LSC funds violates the First Amendment rights of LSC grantees and their clients. For purposes of our decision, the restriction, to be quoted in further detail, prohibits legal representation funded by recipients of LSC moneys if the representation involves an effort to amend or otherwise challenge existing welfare law. As interpreted by the LSC and by the Government, the restriction prevents an attorney from arguing to a court that a state statute conflicts with a federal statute or that either a state or federal statute by its terms or in its application is violative of the United States Constitution.
Lawyers employed by New York City LSC grantees, together with private LSC contributors, LSC indigent clients, and various state and local public officials whose governments contribute to LSC grantees, brought suit in the United States District Court for the Eastern District of New York to declare the restriction, among other provisions of the Act, invalid. The United States Court of Appeals for the Second Circuit approved an injunction against enforcement of the provision as an impermissible viewpoint-based discrimination in violation of the First Amendment, 164 F. 3d 757 (1999). We granted certiorari, and the parties who commenced the suit in the District Court are here as respondents. The LSC as petitioner is joined by the Government of the United States, which had intervened in the District Court. We agree that the restriction violates the First Amendment, and we affirm the judgment of the Court of Appeals.
I
From the inception of the LSC, Congress has placed restrictions on its use of funds. For instance, the LSC Act prohibits recipients from making available LSC funds, program personnel, or equipment to any political party, to any political campaign, or for use in “advocating or opposing any ballot measures.” 42 U. S. C. § 2996e(d)(4). See § 2996e(d)(3). The Act further proscribes use of funds in most criminal proceedings and in litigation involving non-therapeutic abortions, secondary school desegregation, military desertion, or violations of the Selective Service statute. §§2996f(b)(8)-(10) (1994 ed. and Supp. IV). Fund recipients are barred from bringing class-action suits unless express approval is obtained from LSC. § 2996e(d)(5).
The restrictions at issue were part of a compromise set of restrictions enacted in the Omnibus Consolidated Rescis-sions and Appropriations Act of 1996 (1996 Act), §604, 110 Stat. 1321-53, and continued in each subsequent annual appropriations Act. The relevant portion of §504(a)(16) prohibits funding of any organization
“that initiates legal representation or participates in any other way, in litigation, lobbying, or rulemaking, involving an effort to reform a Federal or State welfare system, except that this paragraph shall not be construed to preclude a recipient from representing an individual eligible client who is seeking specific relief from a welfare agency if such relief does not involve an effort to amend or otherwise challenge existing law in effect on the date of the initiation of the representation.”
The prohibitions apply to all of the activities of an LSC grantee, including those paid for by non-LSC funds. §§ 504(d)(1) and (2). We are concerned with the statutory provision which excludes LSC representation in cases which “involve an effort to amend or otherwise challenge existing law in effect on the date of the initiation of the representation.”
In 1997, LSC adopted final regulations clarifying § 504(a)(16). 45 CFR pt. 1639 (1999). LSC interpreted the statutory provision to allow indigent clients to challenge welfare agency determinations of benefit ineligibility under interpretations of existing law. For example, an LSC grantee could represent a welfare claimant who argued that an agency made an erroneous factual determination or that an agency misread or misapplied a term contained in an existing welfare statute. According to LSC, a grantee in that position could argue as well that an agency policy violated existing law. §1639.4. Under LSC’s interpretation, however, grantees could not accept representations designed to change welfare laws, much less argue against the constitutionality or statutory validity of those laws. Brief for Petitioner in No. 99-603, p. 7. Even in cases where constitutional or statutory challenges .became apparent after representation was well under way, LSC advised that its attorneys must withdraw. Ibid.
After the instant suit was filed in the District Court alleging the restrictions on the use of LSC funds violated the First Amendment, see 985 F. Supp. 323 (1997), the court denied a preliminary injunction, finding no probability of success on the merits. Id., at 344.
On appeal, the Court of Appeals for the Second Circuit affirmed in part and reversed in part. 164 F. 3d 757 (1999). As relevant for our purposes, the court addressed respondents’ challenges to the restrictions in §504(a)(16). It concluded the section specified four categories of prohibited activities, of which “three appeared] to prohibit the type of activity named regardless of viewpoint, while one might be read to prohibit the activity only when it seeks reform.” Id., at 768. The court upheld the restrictions on litigation, lobbying, and rulemaking “involving an effort to reform a Federal or State welfare system,” since all three prohibited grantees’ involvement in these activities regardless of the side of the issue. Id., at 768-769.
The court next considered the exception to §504(a)(16) that allows representation of “ ‘an individual eligible client who is seeking specific relief from a welfare agency.’” The court invalidated, as impermissible viewpoint discrimination, the qualification that representation could “not involve an effort to amend or otherwise challenge existing law,” because it “clearly seeks to discourage challenges to the status quo.” Id., at 769-770.
Left to decide what part of the 1996 Act to strike as invalid, the court concluded that congressional intent regarding severability was unclear. It decided to “invalidate the smallest possible portion of the statute, excising only the viewpoint-based proviso rather than the entire exception of which it is a part.” Id., at 773.
Dissenting in part, Judge Jacobs agreed with the majority except for its holding that the proviso banning challenges to existing welfare laws effected impermissible viewpoint-based discrimination. The provision, in his view, was permissible because it merely defined the scope of services to be funded. Id., at 773-778 (opinion concurring in part and dissenting in part).
LSC filed a petition for certiorari challenging the Court of Appeals’ conclusion that the § 504(a)(16) suits-for-benefits proviso was unconstitutional. We granted certiorari, 529 U. S. 1052 (2000).
II
The United States and LSC rely on Rust v. Sullivan, 500 U. S. 173 (1991), as support for the LSC program restrictions. In Rust, Congress established program clinics to provide subsidies for doctors to advise patients on a variety of family planning topics. Congress did not consider abortion to be within its family planning objectives, however, and it forbade doctors employed by the program from discussing abortion with their patients. Id., at 179-180. Recipients of funds under Title X of the Public Health Service Act, §§ 1002, 1008, as added, 84 Stat. 1506, 1508, 42 U.S.C. §§300a, 300a-6, challenged the Act’s restriction that provided that none of the Title X funds appropriated for family planning services could “be used in programs where abortion is a method of family planning.” §3Q0a-6. The recipients argued that the regulations constituted impermissible viewpoint discrimination favoring an antiabortion position over a proabortion approach in the sphere of family planning. 500 U. S., at 192. They asserted as well that Congress had imposed an unconstitutional condition on recipients of federal funds by requiring them to relinquish their right to engage in abortion advocacy and counseling in exchange for the subsidy. Id., at 196.
We upheld the law, reasoning that Congress had not discriminated against viewpoints on abortion, but had “merely chosen to fund one activity to the exclusion of the other.” Id., at 193. The restrictions were considered necessary “to ensure that the limits of the federal program [were] observed.” Ibid. Title X did not single out a particular idea for suppression because it was dangerous or disfavored; rather, Congress prohibited Title X doctors from counseling that was outside the scope of the project. Id., at 194-195.
The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding. We have said that viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker, see Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 229, 235 (2000), or instances, like Rust, in which the government “used private speakers to transmit specific information pertaining to its own program.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995). As we said in Rosenberger, “[w]hen the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.” Ibid. The latitude which may exist for restrictions on speech where the government’s own message is being delivered flows in part from our observation that, “[w]hen the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position.” Board of Regents of Univ. of Wis. System v. Southworth, supra, at 235.
Neither the latitude for government speech nor its rationale applies to subsidies for private speech in every instance, however. As we have pointed out, “[i]t does not follow . . . that viewpoint-based restrictions are proper when the [government] does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.” Rosenberger, supra, at 834.
Although the LSC program differs from the program at issue in Rosenberger in that its purpose is not to “encourage a diversity of views,” the salient point is that, like the program in Rosenberger, the LSC program was designed to facilitate private speech, not to promote a governmental message. Congress funded LSC grantees to provide attorneys to represent thé interests of indigent clients. In the specific context of § 504(a)(16) suits for benefits, an LSC-funded attorney speaks on the behalf of the client in a claim against the government for welfare benefits. The lawyer is not the government’s speaker. The attorney defending the decision to deny benefits will deliver the government’s message in the litigation. The LSC lawyer, however, speaks on the behalf of his or her private, indigent client. Cf. Polk County v. Dodson, 454 U. S. 312, 321-322 (1981) (holding that a public defender does not act “under color of state law” because he “works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the client” and because there is an “assumption that counsel will be free of state control”).
The Government has designed this program to use the legal profession and the established Judiciary of the States and the Federal Government to accomplish its end of assisting welfare claimants in determination or receipt of their benefits. The advice from the attorney to the client and the advocacy by the attorney to the courts cannot be classified as governmental speech even under a generous understanding of the concept. In this vital respect this suit is distinguishable from Rust.
The private nature of the speech involved here, and the extent of LSC’s regulation of private expression, are indicated further by the circumstance that the Government seeks to use an existing medium of expression and to control it, in a class of eases, in ways which distort its usual functioning. Where the government uses or attempts to regulate a particular medium, we have been informed by its accepted usage in determining whether a particular restriction on speech is necessary for the program’s purposes and limitations. In FCC v. League of Women Voters of Cal., 468 U. S. 364 (1984), the Court was instructed by its understanding of the dynamics of the broadcast industry in holding that prohibitions against editorializing by public radio networks were an impermissible restriction, even though the Government enacted the restriction to control the use of public funds. The First Amendment forbade the Government from using the forum in an unconventional way to suppress speech inherent in the nature of the medium. See id., at 396-397. In Arkansas Ed. Television Common v. Forbes, 523 U. S. 666, 676 (1998), the dynamics of the broadcasting system gave station programmers the right to use editorial judgment to exclude certain speech so that the broadcast message could be more effective. And in Rosenberger, the fact that student newspapers expressed many different points of view was an important foundation for the Court’s decision to invalidate viewpoint-based restrictions. 515 U. S., at 836.
When the government creates a limited forum for speech, certain restrictions may be necessary to define the limits and purposes of the program. Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37 (1983); see also Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993). The same is true when the government establishes a subsidy for specified ends. Rust v. Sullivan, 500 U. S. 173 (1991). As this suit involves a subsidy, limited forum cases such as Perry, Lamb’s Chapel, and Rosenberger may not be controlling in a strict sense, yet they do provide some instruction. Here the program presumes that private, nongovernmental speech is necessary, and a substantial restriction is placed upon that speech. At oral argument and in its briefs the LSC advised us that lawyers funded in the Government program may not undertake representation in suits for benefits if they must advise clients respecting the questionable validity of a statute which defines benefit eligibility and the payment structure. The limitation forecloses advice or legal assistance to question the validity of statutes under the Constitution of the United States. It extends further, it must be noted, so that state statutes inconsistent with federal law under the Supremacy Clause may be neither challenged nor questioned.
By providing subsidies to LSC, the Government seeks to facilitate suits for benefits by using the state and federal courts and the independent bar on which those courts depend for the proper performance of their duties and responsibilities. Restricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys in much the same way broadcast systems or student publication networks were changed in the limited forum cases we have cited. Just as government in those cases could not elect to use a broadcasting network or a college publication structure in a regime which prohibits speech necessary to the proper functioning of those systems, see Arkansas Ed. Television Comm’n, supra, and Rosenberger, supra, it may not design a subsidy to effect this serious and fundamental restriction on advocacy of attorneys and the functioning of the judiciary.
LSC has advised us, furthermore, that upon determining a question of statutory validity is present in any anticipated or pending ease or controversy, the LSC-funded attorney must cease the representation at once. This is true whether the validity issue becomes apparent during initial attorney-client consultations or in the midst of litigation proceedings. A disturbing example of the restriction was discussed during oral argument before the Court. It is well understood that when there are two reasonable constructions for a statute, yet one raises a constitutional question, the Court should prefer the interpretation which avoids the constitutional issue. Gomez v. United States, 490 U. S. 858, 864 (1989); Ashwander v. TVA, 297 U. S. 288, 346-348 (1936) (Brandeis, J., concurring). Yet, as the LSC advised the Court, if, during litigation, a judge were to ask an LSC attorney whether there was a constitutional concern, the LSC attorney simply could not answer. Tr. of Oral Arg. 8-9.
Interpretation of the law and the Constitution is the primary mission of the judiciary when it acts within the sphere of its authority to resolve a case or controversy. Marbury v. Madison, 1 Cranch 137, 177 (1803) (“It is emphatically the province and the duty of the judicial department to say what the law is”). An informed, independent judiciary presumes an informed, independent bar. Under §504(a)(16), however, eases would be presented by LSC attorneys who could not advise the courts of serious questions of statutory validity. The disability is inconsistent with the proposition that attorneys should present all the reasonable and well-grounded arguments necessary for proper resolution of the case. By seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power. Congress cannot wrest the law from the Constitution which is its source. “Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.” Id., at 178.
The restriction imposed by the statute here threatens severe impairment of the judicial function. Section 504(a)(16) sifts out cases presenting constitutional challenges in order to insulate the Government’s laws from judicial inquiry. If the restriction on speech and legal advice were to stand, the result would be two tiers of cases. In cases where LSC counsel were attorneys of record, there would be lingering doubt whether the truncated representation had resulted in complete analysis of the case, full advice to the client, and proper presentation to the court. The courts and the public would come to question the adequacy and fairness of professional representations when the attorney, either consciously to comply with this statute or unconsciously to continue the representation despite the statute, avoided all reference to questions of statutory validity and constitutional authority. A scheme so inconsistent with accepted separation-of-powers principles is an insufficient basis to sustain or uphold the restriction on speech.
It is no answer to say the restriction on speech is harmless because, under LSC’s interpretation of the Act, its attorneys can withdraw. This misses the point. The statute is an attempt to draw lines around the LSC program to exclude from litigation those arguments and theories Congress finds unacceptable but which by their nature are within the province of the courts to consider.
The restriction on speech is even more problematic because in cases where the attorney withdraws from a representation, the client is unlikely to find other counsel. The explicit premise for providing LSC attorneys is the necessity to make available representation “to persons financially unable to afford legal assistance.” 42 U. S. C. § 2996(a)(3). There often will be no alternative source for the client to receive vital information respecting constitutional and statutory rights bearing upon claimed benefits. Thus, with respect to the litigation services Congress has funded, there is no alternative channel for expression of the advocacy Congress seeks to restrict. This is in stark contrast to Rust. There, a patient could receive the approved Title X family planning counseling funded by the Government and later could consult an affiliate or independent organization to receive abortion counseling. Unlike indigent clients who seek LSC representation, the patient in Rust was not required to forfeit the Government-funded advice when she also received abortion counseling through alternative channels. Because LSC attorneys must withdraw whenever a question of a welfare statute’s validity arises, an individual could not obtain joint representation so that the constitutional challenge would be presented by a non-LSC attorney, and other, permitted, arguments advanced by LSC counsel.
Finally, LSC and the Government maintain that § 504(a)(16) is necessary to define the scope and contours of the federal program, a condition that ensures funds can be spent for those cases most immediate to congressional concern. In support of this contention, they suggest the challenged limitation takes into account the nature of the grantees’ activities and provides limited congressional funds for the provision of simple suits for benefits. In petitioners’ view, the restriction operates neither to maintain the current welfare system nor insulate it from attack; rather, it helps the current welfare system function in a more efficient and fair manner by removing from the program complex challenges to existing welfare laws.
The effect of the restriction, however, is to prohibit advice or argumentation that existing welfare laws are unconstitutional or unlawful. Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise. Here, notwithstanding Congress’ purpose to confine and limit its program, the restriction operates to insulate current welfare laws from constitutional scrutiny and certain other legal challenges, a condition implicating central First Amendment concerns. In no lawsuit funded by the Government can the LSC attorney, speaking on behalf of a private client, challenge existing welfare laws. As a result, arguments by indigent clients that a welfare statute is unlawful or unconstitutional cannot be expressed in this Government-funded program for petitioning the courts, even though the program was created for litigation involving welfare benefits, and even though the ordinary course of litigation involves the expression of theories and postulates on both, or multiple, sides of an issue. “
It is fundamental that the First Amendment “ Vas fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”’ New York Times Co. v. Sullivan, 376 U. S. 254, 269 (1964) (quoting Roth v. United States, 354 U. S. 476, 484 (1957)). There can be little doubt that the LSC Act funds constitutionally protected expression; and in the context of this statute there is no programmatic message of the kind recognized in Rust and which sufficed there to allow the Government to specify the advice deemed necessary for its legitimate objectives. This serves to distinguish §504(a)(16) from any of the Title X program restrictions upheld in Rust, and to place it beyond any congressional funding condition approved in the past by this Court.
Congress was not required to fund an LSC attorney to represent indigent clients; and when it did so, it was not required to fund the whole range of legal representations or relationships. The LSC and the United States, however, in effect ask us to permit Congress to define the scope of the litigation it funds to exclude certain vital theories and ideas. The attempted restriction is designed to insulate the Government’s interpretation of the Constitution from judicial challenge. The Constitution does not permit the Government to confine litigants and their attorneys in this manner. We must be vigilant when Congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge. Where private speech is involved, even Congress’ antecedent funding decision cannot be aimed at the suppression of ideas thought inimical to the Government’s own interest. Regan v. Taxation With Representation of Wash., 461 U. S. 540, 548 (1988); Speiser v. Randall, 357 U. S. 513, 519 (1958).
For the reasons we have set forth, the funding condition is invalid. The Court of Appeals considered whether the language restricting LSC attorneys could be severed from the statute so that the remaining portions would remain operative. It reached the reasoned conclusion to invalidate the fragment of §504(a)(16) found contrary to the First Amendment, leaving the balance of the statute operative and in place. That determination was not discussed in the briefs of either party or otherwise contested here, and in the exercise of our discretion and prudential judgment we decline to address it.
The judgment of the Court of Appeals is
Affirmed.
Question: What is the agency involved in the administrative action?
001. Army and Air Force Exchange Service
002. Atomic Energy Commission
003. Secretary or administrative unit or personnel of the U.S. Air Force
004. Department or Secretary of Agriculture
005. Alien Property Custodian
006. Secretary or administrative unit or personnel of the U.S. Army
007. Board of Immigration Appeals
008. Bureau of Indian Affairs
009. Bureau of Prisons
010. Bonneville Power Administration
011. Benefits Review Board
012. Civil Aeronautics Board
013. Bureau of the Census
014. Central Intelligence Agency
015. Commodity Futures Trading Commission
016. Department or Secretary of Commerce
017. Comptroller of Currency
018. Consumer Product Safety Commission
019. Civil Rights Commission
020. Civil Service Commission, U.S.
021. Customs Service or Commissioner or Collector of Customs
022. Defense Base Closure and REalignment Commission
023. Drug Enforcement Agency
024. Department or Secretary of Defense (and Department or Secretary of War)
025. Department or Secretary of Energy
026. Department or Secretary of the Interior
027. Department of Justice or Attorney General
028. Department or Secretary of State
029. Department or Secretary of Transportation
030. Department or Secretary of Education
031. U.S. Employees' Compensation Commission, or Commissioner
032. Equal Employment Opportunity Commission
033. Environmental Protection Agency or Administrator
034. Federal Aviation Agency or Administration
035. Federal Bureau of Investigation or Director
036. Federal Bureau of Prisons
037. Farm Credit Administration
038. Federal Communications Commission (including a predecessor, Federal Radio Commission)
039. Federal Credit Union Administration
040. Food and Drug Administration
041. Federal Deposit Insurance Corporation
042. Federal Energy Administration
043. Federal Election Commission
044. Federal Energy Regulatory Commission
045. Federal Housing Administration
046. Federal Home Loan Bank Board
047. Federal Labor Relations Authority
048. Federal Maritime Board
049. Federal Maritime Commission
050. Farmers Home Administration
051. Federal Parole Board
052. Federal Power Commission
053. Federal Railroad Administration
054. Federal Reserve Board of Governors
055. Federal Reserve System
056. Federal Savings and Loan Insurance Corporation
057. Federal Trade Commission
058. Federal Works Administration, or Administrator
059. General Accounting Office
060. Comptroller General
061. General Services Administration
062. Department or Secretary of Health, Education and Welfare
063. Department or Secretary of Health and Human Services
064. Department or Secretary of Housing and Urban Development
065. Administrative agency established under an interstate compact (except for the MTC)
066. Interstate Commerce Commission
067. Indian Claims Commission
068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
069. Internal Revenue Service, Collector, Commissioner, or District Director of
070. Information Security Oversight Office
071. Department or Secretary of Labor
072. Loyalty Review Board
073. Legal Services Corporation
074. Merit Systems Protection Board
075. Multistate Tax Commission
076. National Aeronautics and Space Administration
077. Secretary or administrative unit or personnel of the U.S. Navy
078. National Credit Union Administration
079. National Endowment for the Arts
080. National Enforcement Commission
081. National Highway Traffic Safety Administration
082. National Labor Relations Board, or regional office or officer
083. National Mediation Board
084. National Railroad Adjustment Board
085. Nuclear Regulatory Commission
086. National Security Agency
087. Office of Economic Opportunity
088. Office of Management and Budget
089. Office of Price Administration, or Price Administrator
090. Office of Personnel Management
091. Occupational Safety and Health Administration
092. Occupational Safety and Health Review Commission
093. Office of Workers' Compensation Programs
094. Patent Office, or Commissioner of, or Board of Appeals of
095. Pay Board (established under the Economic Stabilization Act of 1970)
096. Pension Benefit Guaranty Corporation
097. U.S. Public Health Service
098. Postal Rate Commission
099. Provider Reimbursement Review Board
100. Renegotiation Board
101. Railroad Adjustment Board
102. Railroad Retirement Board
103. Subversive Activities Control Board
104. Small Business Administration
105. Securities and Exchange Commission
106. Social Security Administration or Commissioner
107. Selective Service System
108. Department or Secretary of the Treasury
109. Tennessee Valley Authority
110. United States Forest Service
111. United States Parole Commission
112. Postal Service and Post Office, or Postmaster General, or Postmaster
113. United States Sentencing Commission
114. Veterans' Administration or Board of Veterans' Appeals
115. War Production Board
116. Wage Stabilization Board
117. State Agency
118. Unidentifiable
119. Office of Thrift Supervision
120. Department of Homeland Security
121. Board of General Appraisers
122. Board of Tax Appeals
123. General Land Office or Commissioners
124. NO Admin Action
125. Processing Tax Board of Review
Answer:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
MICHAEL M. v. SUPERIOR COURT OF SONOMA COUNTY (CALIFORNIA, REAL PARTY IN INTEREST)
No. 79-1344.
Argued November 4, 1980
Decided March 23, 1981
Rehnquist, J., announced the judgment of the Court and delivered an opinion, in which Burger, C. J., and Stewart and Powell, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 476. Blackmun, J., filed an opinion concurring in the judgment, post, p. 481. Brennan, J., filed a dissenting opinion, in which White and Marshall, JJ., joined, post, p. 488. Stevens, J., filed a dissenting opinion; post, p. 496.
Gregory F. Jilka argued the cause and filed a brief for petitioner.
Sandy B. Kriegler, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were George Deukmejian, Attorney General, Robert H. Phili-bosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, and William R. Pounders, Deputy Attorney General.
Briefs of amici curiae urging reversal were filed by Bruce J. Ennis, Jr., for the American Civil Liberties Union et al; and by John W. Karr for the Women’s Legal Defense Fund.
Solicitor General McCree, Assistant Attorney General Heymann, and Sara Criscitelli filed a brief for the United States as amicus curiae urging affirmance.
Justice Rehnquist
announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Stewart, and Justice Powell joined.
The question presented in this case is whether California’s “statutory rape” law, § 261.5 of the Cal. Penal Code Ann. (West Supp. 1981), violates the Equal Protection Clause of the Fourteenth Amendment. Section 261.5 defines unlawful sexual intercourse as “an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.” The statute thus makes men alone criminally liable for the act of sexual intercourse.
In July 1978, a complaint was filed in the Municipal Court of Sonoma County, Cal., alleging that petitioner, then a 17%-year-old male, had had unlawful sexual intercourse with a female under the age of 18, in violation of § 261.5. The evidence adduced at a preliminary hearing showed that at approximately midnight on June 3, 1978, petitioner and two friends approached Sharon, a 16%-year-old female, and her sister as they waited at a bus stop. Petitioner and Sharon, who had already been drinking, moved away from the others and began to kiss. After being struck in the face for rebuffing petitioner’s initial advances, Sharon submitted to sexual intercourse with petitioner. Prior to trial, petitioner sought to set aside the information on both state and federal constitutional grounds, asserting that § 261.5 unlawfully discriminated on the basis of gender. The trial court and the California Court of Appeal denied petitioner’s request for relief and petitioner sought review in the Supreme Court of California.
The Supreme Court held that “section 261.5 discriminates on the basis of sex because only females may be victims, and only males may violate the section.” 25 Cal. 3d 608, 611, 601 P. 2d 572, 574. The court then subjected the classification to “strict scrutiny,” stating that it must be justified by a compelling state interest. It found that the classification was “supported not by mere social convention but by the immutable physiological fact that it is the female exclusively who can become pregnant.” Ibid. Canvassing “the tragic human costs of illegitimate teenage pregnancies,” including the large number of teenage abortions, the increased medical risk associated with teenage .pregnancies, and the social consequences of teenage childbearing, the court concluded that the State has a compelling interest in preventing such pregnancies. Because males alone can “physiologically cause the result which the law properly seeks to avoid,” the court further held that the gender classification was readily justified as a means of identifying offender and victim. For the reasons stated below, we affirm the judgment of the California Supreme Court.
As is evident from our opinions, the Court has had some difficulty in agreeing upon the proper approach and analysis in cases involving challenges to gender-based classifications. The issues posed by such challenges range from issues of standing, see Orr v. Orr, 440 U. S. 268 (1979), to the appropriate standard of judicial review for the substantive classification. Unlike the California Supreme Court, we have not held that gender-based classifications are “inherently suspect” and thus we do not apply so-called “strict scrutiny” to those classifications. See Stanton v. Stanton, 421 U. S. 7 (1975). Our cases have held, however, that the traditional minimum rationality test takes on a somewhat “sharper focus” when gender-based classifications are challenged. See Craig v. Boren, 429 U. S. 190, 210 n." (1976) (Powell, J., concurring). In Reed v. Reed, 404 U. S. 71 (1971), for example, the Court stated that a gender-based classification will be upheld if it bears a “fair and substantial relationship” to legitimate state ends, while in Craig v. Boren, supra, at 197, the Court restated the test to require the classification to bear a “substantial relationship” to “important governmental objectives.”
Underlying these decisions is the principle that a legislature may not “make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class.” Parham v. Hughes, 441 U. S. 347, 354 (1979) (plurality opinion of Stewart, J.). But because the Equal Protection Clause does not “demand that a statute necessarily apply equally to all persons” or require “ 'things which are different in fact... to be treated in law as though they were the same/ ” Rinaldi v. Yeager, 384 U. S. 305, 309 (1966), quoting Tigner v. Texas, 310 U. S. 141, 147 (1940), this Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. Parham v. Hughes, supra; Califano v. Webster, 430 U. S. 313 (1977); Schlesinger v. Ballard, 419 U. S. 498 (1975); Kahn v. Shevin, 416 U. S. 351 (1974). As the Court has stated, a legislature may “provide for the special problems of women.” Weinberger v. Wiesenfeld, 420 U. S. 636, 653 (1975).
Applying those principles to this case, the fact that the California Legislature criminalized the act of illicit sexual intercourse with a minor female is a sure indication of its intent or purpose to discourage that conduct. Precisely why the legislature desired that result is of course somewhat less clear. This Court has long recognized that “[¿Inquiries into congressional motives or purposes are a hazardous matter,” United States v. O’Brien, 391 U. S. 367, 383-384 (1968); Palmer v. Thompson, 403 U. S. 217, 224 (1971), and the search for the “actual” or “primary” purpose of a statute is likely to be elusive. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 265 (1977); McGinnis v. Royster, 410 U. S. 263, 276-277 (1973). Here, for example, the individual legislators may have voted for the statute for a variety of reasons. Some legislators may have been concerned about preventing teenage pregnancies, others about protecting young females from physical injury or from the loss of “chastity,” and still others about promoting various religious and moral attitudes towards premarital sex.
The justification for the statute offered by the State, and accepted by the Supreme Court of California, is that the legislature sought to prevent illegitimate teenage pregnancies. That finding, of course, is entitled to great deference. Reitman v. Mulkey, 387 U. S. 369, 373-374 (1967). And although our cases establish that the State’s asserted reason for the enactment of a statute may be rejected, if it “could not have been a goal of the legislation,” Weinberger v. Wiesenfeld, supra, at 648, n. 16, this is not such a case.
We are satisfied not only that the prevention of illegitimate pregnancy is at least one of the “purposes” of the statute, but also that the State has a strong interest in preventing such pregnancy. At the risk of stating the obvious, teenage pregnancies, which have increased dramatically over the last two decades, have significant social, medical, and economic consequences for both the mother and her child, and the State. Of particular concern to the State is that approximately half of all teenage pregnancies end in abortion. And of those children who are born, their illegitimacy makes them likely candidates to become wards of the State.
We need not be medical doctors to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse. Only women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity. The statute at issue here protects women from sexual intercourse at an age when those consequences are particularly severe.
The question thus boils down to whether a State may attack the problem of sexual intercourse and teenage pregnancy directly by prohibiting a male from having sexual intercourse with a minor female. We hold that such a statute is sufficiently related to the State’s objectives to pass constitutional muster.
Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. It is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males. A criminal sanction imposed solely on males thus serves to roughly “equalize” the deterrents on the sexes.
We are unable to accept petitioner’s contention that the statute is impermissibly underinclusive and must, in order to pass judicial scrutiny, be broadened so as to hold the female as criminally liable as the male. It is argued that this statute is not necessary to deter teenage pregnancy because a gender-neutral statute, where both male and female would be subject to prosecution, would serve that goal equally well. The relevant inquiry, however, is not whether the statute is drawn as precisely as it might have been, but whether the line chosen by the California Legislature is within constitutional limitations. Kahn v. Shevin, 416 U. S., at 356, n. 10.
In any event, we cannot say that a gender-neutral statute would be as effective as the statute California has chosen to enact. The State persuasively contends that a gender-neutral statute would frustrate its interest in effective enforcement. Its view is that a female is surely less likely to report violations of the statute if she herself would be subject to criminal prosecution. In an area already fraught with prose-cutorial difficulties, we decline to hold that the Equal Protection Clause requires a legislature to enact a statute so broad that it may well be incapable of enforcement.
We similarly reject petitioner’s argument that § 261.5 is impermissibly overbroad because it makes unlawful sexual intercourse with prepubescent females, who are, by definition, incapable of becoming pregnant. Quite apart from the fact that the statute could well be justified on the grounds that very young females are particularly susceptible to physical injury from sexual intercourse, see Rundlett v. Oliver, 607 F. 2d 495 (CA1 1979), it is ludicrous to suggest that the Constitution requires the California Legislature to limit the scope of its rape statute to older teenagers and exclude young girls.
There remains only petitioner’s contention that the statute is unconstitutional as it is applied to him because he, like Sharon, was under 18 at the time of sexual intercourse. Petitioner argues that the statute is flawed because it presumes that as between two persons under 18, the male is the culpable aggressor We find petitioner’s contentions unpersuasive. Contrary to his assertions, the statute does not rest on the assumption that males are generally the aggressors. It is instead an attempt by a legislature to prevent illegitimate teenage pregnancy by providing an additional deterrent for men. The age of the man is irrelevant since young men are as capable as older men of inflicting the harm sought to be. prevented.
In upholding the California statute we also recognize that this is not a case where a statute is being challenged on the grounds that it “invidiously discriminates” against females. To the contrary, the statute places a burden on males which is not shared by females. But we find nothing to suggest that men, because of past discrimination or peculiar disadvantages, are in need of the special solicitude of the courts. Nor is this a case where the gender classification is made “solely for . . . administrative convenience,” as in Frontiero v. Richardson, 411 U. S. 677, 690 (1973) (emphasis omitted), or rests on “the baggage of sexual stereotypes” as in Orr v. Orr, 440 U. S., at 283. As we have held, the statute instead reasonably reflects the fact that the consequences of sexual intercourse and pregnancy fall more heavily on the female than on the male.
Accordingly the judgment of the California Supreme Court is
Affirmed.
The lower federal courts and state courts have almost uniformly concluded that statutory rape laws are constitutional. See, e. g., Rundlett v. Oliver, 607 F. 2d 495 (CA1 1979); Hall v. McKenzie, 537 F. 2d 1232 (CA4 1976); Hall v. State, 365 So. 2d 1249, 1252-1253 (Ala. App. 1978), cert. denied, 365 So. 2d 1253 (Ala. 1979); State v. Gray, 122 Ariz. 445, 446-477, 595 P. 2d 990, 991-992 (1979); People v. Mackey, 46 Cal. App. 3d 755, 760-761, 120 Cal. Rptr. 157, 160, cert. denied, 423 U. S. 951 (1975); People v. Salinas, 191 Colo. 171, 551 P. 2d 703 (1976); State v. Brothers, 384 A. 2d 402 (Del. Super. 1978); In re W. E. P., 318 A. 2d 286, 289-290 (DC 1974); Barnes v. State, 244 Ga. 302, 303-304, 260 S. E. 2d 40, 41-42 (1979); State v. Drake, 219 N. W. 2d 492, 495-496 (Iowa 1974); State v. Bell, 377 So. 2d 303 (La. 1979); State v. Rundlett, 391 A. 2d 815 (Me. 1978); Green v. State, 270 So. 2d 695 (Miss. 1972); In re J. D. G., 498 S. W. 2d 786, 792-793 (Mo. 1973); State v. Meloon, 116 N. H. 669, 366 A. 2d 1176 (1976); State v. Thompson, 162 N. J. Super. 302, 392 A. 2d 678 (1978); People v. Whidden, 51 N. Y. 2d 457, 415 N. E. 2d 927 (1980); State v. Wilson, 296 N. C. 298, 311-313, 250 S. E. 2d 621, 629-630 (1979); Olson v. State, 588 P. 2d 1018 (Nev. 1979); State v. Elmore, 24 Ore. App. 651, 546 P. 2d 1117 (1976); State v. Ware, - R. I. -, 418 A. 2d 1 (1980); Roe v. State, 584 S. W. 2d 257, 259 (Tenn. Crim. App. 1979); Ex parte Groves, 571 S. W. 2d 888, 892-893 (Tex. Crim. App. 1978); Moore v. McKenzie, 236 S. E. 2d 342, 342-343 (W. Ya. 1977) ; Flores v. State, 69 Wis. 2d 509, 510-511, 230 N. W. 2d 637, 638 (1975). Contra, Navedo v. Preisser, 630 F. 2d 636 (CA8 1980); United States v. Hicks, 625 F. 2d 216 (CA9 1980); Meloon v. Helgemoe, 564 F. 2d 602 (CA1 1977) (limited in Rundlett v. Oliver, supra), cert. denied, 436 U. S. 950 (1978).
The statute was enacted as part of California’s' first penal code in 1850, 1850 Cal. Stats., ch. 99, § 47, p. 234, and recodified and amended in 1970.
In 1976 approximately one million 15-to-19-year-olds became pregnant, one-tenth of all women in that age group. Two-thirds of the pregnancies were illegitimate. Illegitimacy rates for teenagers (births per 1,000 unmarried females ages 14 to 19) increased 75% for 14-to-17-year-olds between 1961 and 1974 and 33% for 18-to-19-year-olds. Alan Guttmacher Institute, 11 Million Teenagers 10, 13 (1976); C. Chilman, Adolescent Sexuality In a Changing American Society 195 (NIH Pub. No. 80-1426, 1980).
The risk of maternal death is 60% higher for a teenager under the age of 15 than for a women in her early twenties. The risk is 13% higher for 15-to-19-year-olds. The statistics further show that most teenage mothers drop out of school and face a bleak economic future. See, e. g., 11 Million Teenagers, supra, at 23, 25; Bennett & Bardon, The Effects of a School Program On Teenager Mothers and Their Children, 47 Am. J. Orthopsychiatry 671 (1977); Phipps-Yonas, Teenage Pregnancy and Motherhood, 50 Am. J. Orthopsychiatry 403, 414 (1980).
This is because teenagers are disproportionately likely to seek abortions. Center for Disease Control, Abortion Surveillance 1976, pp. 22-24 (1978). In 1978, for example, teenagers in California had approximately 54,000 abortions and 53,800 live births. California Center for Health Statistics, Reproductive Health Status of California Teenage Women 1, 23 (Mar. 1980).
The policy and intent of the California Legislature evinced in other legislation buttresses our view that the prevention of teenage pregnancy is a purpose of the statute. The preamble to the Pregnancy Freedom of Choice Act, for example, states: “The legislature finds that pregnancy among unmarried persons under 21 years of age constitutes an increasing social problem in the State of California.” Cal. Welf. & Inst. Code Ann. §16145 (West 1980).
Subsequent to the decision below, the California Legislature considered and rejected proposals to render § 261.5 gender neutral, thereby ratifying the judgment of the California Supreme Court-. That is enough to answer petitioner’s contention that the statute was the “ 'accidental byproduct of a traditional way of thinking about females.’” Califano v. Webster, 430 U. S. 313, 320 (1977) (quoting Califano v. Goldfarb, 430 U. S. 199, 223 (1977) (Stevens, J., concurring in judgment)). Certainly this decision of the California Legislature is as good a source as is this Court in deciding what is “current” and what is “outmoded” in the perception of women.
Although petitioner concedes that the State has a “compelling” interest in preventing teenage pregnancy, he contends that the “true” purpose of § 261.5 is to protect the virtue and chastity of young .women. As such, the statute is unjustifiable because it rests on archaic stereotypes. What we have said above is enough to dispose of that- contention. The question for us — and the only question under the Federal/Constitution — is whether the legislation violates the Equal Protection Clause of the Fourteenth Amendment, not whether its supporters may have^endorsed it for reasons no longer generally accepted. Even if the preservation of female chastity were one of the motives of the statute, and even if that motive be impermissible, petitioner’s argument must fail because “[i]t is a familiar practice of constitutional law that this court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien, 391 U. S. 367, 383 (1968). In Orr v. Orr, 440 U. S. 268 (1979), for example, the Court rejected one asserted purpose as impermissible, but then considered other purposes to determine if they could justify the statute. Similarly, in Washington v. Davis, 426 U. S. 229, 243 (1976), the Court distinguished Palmer v. Thompson, 403 U. S. 217 (1971), on the grounds that the purposes of the ordinance there were not open to impeachment by evidence that the legislature was actually motivated by an impermissible purpose. See also Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 270, n. 21 (1977); Mobile v. Bolden, 446 U. S. 55, 91 (1980) (Stevens, J., concurring in judgment).
We do not understand petitioner to question a State’s authority to make sexual intercourse among teenagers a criminal act, at least on a gender-neutral basis. In Carey v. Population Services International, 431 U. S. 678, 694, n. 17 (1977) (plurality opinion of Brennan, J.), four Members of the Court assumed for the purposes of that case that a State may regulate the sexual behavior of minors, while four other Members of the Court more emphatically stated that such regulation would be permissible. Id., at 702, 703 (White, J., concurring in part and concurring in result); id., at 705-707, 709 (Powell, J., concurring in part and concurring in judgment); id., at 713 (Stevens, J., concurring in part and concurring in judgment); id., at 718 (Rehnquist, J., dissenting). The Court has long recognized that a State has even broader authority to protect the physical, mental, and moral well-being of its youth, than of its adults. See, e. g., Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 72-74 (1976); Ginsberg v. New York, 390 U. S. 629, 639-640 (1968); Prince v. Massachusetts, 321 U. S. 158, 170 (1944).
Petitioner contends that a gender-neutral statute would not hinder prosecutions because the prosecutor could take into account the relative burdens on females and males and generally only prosecute males. But to concede this is to concede all. If the prosecutor, in exercising discretion, will virtually always prosecute just the man and not the woman, we do not see why it is impermissible for the legislature to enact a statute to the same effect.
The question whether a statute is substantially related to its asserted goals is at best an opaque one. It can be plausibly argued that a gender-neutral statute would produce fewer prosecutions than the statute at issue here. See Stewart, J., concurring, post, at 481, n. 13. Justice Brennan’s dissent argues, on the other hand, that
“even assuming that a gender-neutral statute would be more difficult to enforce, . . . [cjommon sense . . . suggests that a gender-neutral statutory rape law is potentially a greater deterrent of sexual activity than a gender-based law, for the simple reason that a gender-neutral law subjects both men and women to criminal sanctions and thus arguably has a deterrent effect on twice as many potential violators.” Post, at 493-494 (emphasis deleted).
Where such differing speculations as to the effect of a statute are plausible, we think it appropriate to defer to the decision of the California Supreme Court, “armed as it was with the knowledge of the facts and circumstances concerning the passage and potential impact of [the statute], and familiar with the milieu in which that provision would operate.” Reitman v. Mulkey, 387 ü. S. 369, 378-379 (1967).
It should be noted that two of the three cases relied upon by Justice Brennan’s dissent are readily distinguishable from the instant one. See post, at 490, n. 3. In both Navedo v. Preisser, 630 F. 2d 636 (CA8 1980), and Meloon v. Helgemoe, 564 F. 2d 602 (CA1 1977), cert. denied, 436 U. S. 950 (1978), the respective governments asserted that the purpose of the statute was to protect young women from physical injury. Both courts rejected the justification on the grounds that there had been no showing that young females are more likely than males to suffer physical injury from sexual intercourse. They further held, contrary to our decision, that pregnancy prevention was not a “plausible” purpose of the legislation. Thus neither court reached the issue presented here, whether the statute is substantially related to the prevention of teenage pregnancy. Significantly, Meloon has been severely limited by Rundlett v. Oliver, 607 F. 2d 495 (CA1 1979), where the court upheld a statutory rape law on the ground that the State had shown that sexual intercourse physically injures young women more than males. Here, of course, even Justice Brennan’s dissent does not dispute that young women suffer disproportionately the deleterious consequences of illegitimate pregnancy.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_casetyp1_2-3-1
|
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.
Your task is to determine the specific issue in the case within the broad category of "civil rights - civil rights claims by prisoners and those accused of crimes".
UNITED STATES v. ALBRECHT et al.
Circuit Court of Appeals, Seventh Circuit.
February 17, 1928.
No. 3963.
1. Criminal law @=31001 — Order placing defendants on probation, to be effective after they had served part of sentences, held beyond court’s power.
Order placing defendants on probation, made after defendants had commenced serving sentences, and requiring continuance of imprisonment for some period of time before order for probation should be effective, was beyond court’s power, even if court bad jurisdiction to make probation order, as contended, because motions for probation were made- before commencement of sentences, since, after commencement of service of sentence of imprisonment, District Court is without power to place prisoners on probation.
2. Criminal law @=31024(1) — Court had jurisdiction to entertain writ of error at instance of United States, where District Court placed prisoners on probation.
Circuit Court of Appeals had jurisdiction to entertain writ of error at instance of United States, where District Court made order placing prisoners on probation.
In Error to the District Court of the-United States for the Eastern District of II linois.
Henry Albrecht, Sr., and another, were convicted of violation of the National Prohibition Act, and the District Court made an order placing defendants on probation. The United States brings error.
Reversed and remanded.
Ralph F. Lesemann, of Bast St. Louis, Ill., for the United States.
William M. Acton, of Danville, Ill., for defendants in error.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
ALSCHULER, Circuit Judge.
The United States brings this writ of error from an order of the District Court placing on probation the defendants in error, who, on March 31, 1924, were convicted for violation of the National Prohibition Act (27 USCA), and each sentenced to pay a fine of $3,500 and to imprisonment in the Vermilion county, Illinois, jail for one year.
Both were admitted to bail pending the disposition of writ of error to the Supreme Court, which, on January 3, 1927, affirmed the judgment. February 19, 1927, the mandate of the -Supreme Court was filed in the District Court. February 24, 1927, upon a duly issued warrant of commitment, both were taken to the jail, where they commenced serving their respective sentences of imprisonment.
February 5, 1927, after the affirmance by the Supreme Court and before the mandate was filed in the District Court, defendants in error orally petitioned the District Court to be placed on probation. The court took the matter under advisement, and on March 5, 1927, at the adjournment of the September term, 1926, continued the petitions to the March term, 1927.
On May 27, 1927, written petitions for probation, designated amended petitions, were filed, and on June 11 a hearing was had and an order entered placing both defendants in error on probation, viz., Albrecht, Jr., at the expiration of 4 months’ imprisonment under his sentence to be released and placed on probation for a period of 18 months from that date, and Albrecht, Sr., at the expiration of 8 months’ imprisonment under his sentence, to be released and placed on probation for a period of 18 months from that date.
It is the government’s principal contention that, because defendants in error had commenced serving their sentences before the order for probation was entered, the court was without power to place them on probation.
Since the argument of this’ cause the Supreme Court handed down its opinion in United States v. Murray, and Cook, Petitioner v. United States, 48 S. Ct. 146, 72 L. Ed. —, January 3, 1928, which leaves no room for dimbt on this proposition. Murray had served one day of a three months’ jaü sentence when the court made an order placing him on probation. Cook was serving his penitentiary sentence when the court ordered him placed on probation. The Supreme Court unqualifiedly held that, after commencement of service of a sentence of imprisonment, the District Court was without power to place the prisoners on probation. •
It is urged for defendants in error that since the record discloses motions for probation made before the commencement of the sentences, the court retained jurisdiction over the motions notwithstanding the commitment. Such a situation, unmixed with qualifying circumstances, would be at least interesting. But it appears that the oral motions for probation were made before the mandate from the Supreme Court was filed in the District Court, and the government contends the District Court was therefore without jurisdiction at that time to entertain motions for probation, and, no other action for probation appearing prior to the commitment and beginning of sentences, that the oral motion, in any event, was not carried forward to the time of the making of the order after the imprisonment under the sentences had commenced.
It appears, further, that the warrant of commitment, which is unassailed, is in all respects regular, upon authority of the judge of the court, under signature of the clerk, duly sealed, and that it fully empowered the marshal to deliver and the jailer to receive and hold these men in service of the sentences which the court had imposed.
Furthermore, the very probation order recognizes the propriety of the imprisonment which defendants in error had theretofore severally undergone, and in each ease requires continuance of the imprisonment for some period of time before the ox’der for probation was to be effective, thus by its terms bringing the order within the condemnation of the Murray-Cook decision, and, even if within the court’s jurisdiction to make, neutralizing its own effectiveness. Archer v. Snook (D. C.) 10 F.(2d) 567.
But in any event the Murray-Cook decision is so positive and unequivocal that we would not feel justified in making exception to its broadest application.
For defendants in error it is urged that this court is without jurisdiction to entertain this writ of error at the instance of the United States. "Without discussing the contention, we need only say that the Murray-Cook cases were each brought to the Circuit Courts of Appeals on writs of error at the instance of the United States, and from these courts to the Supreme Court, and each of these courts assumed jurisdiction and adjudicated the questions involved.
The order placing defendants in error on probation is reversed, and the cause remanded for further proceedings in consonance herewith.
Question: What is the specific issue in the case within the general category of "civil rights - civil rights claims by prisoners and those accused of crimes"?
A. suit for damages for false arrest or false confinement
B. cruel and unusual punishment
C. due process rights in prison
D. denial of other rights of prisoners - 42 USC 1983 suits
E. denial or revocation of parole - due process grounds
F. other denial or revocation of parole
G. other prisoner petitions
H. excessive force used in arrest
I. other civil rights violations alleged by criminal defendants
Answer:
|
songer_appel1_7_5
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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).
Shirley Ann MAXWELL, alias Shirley Ann Bagby, Appellant, v. UNITED STATES of America, Appellee.
No. 15488.
United States Court of Appeals Eighth Circuit.
July 12, 1956.
Rodger J. Walsh, Kansas City, Mo., for appellant.
Paul R. Shy, Asst. U. S. Atty., Kansas City, Mo. (Edward L. Scheufler, U. S. Atty., Kansas City, Mo., was with him on the brief), for appellee.
Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.
SANBORN, Circuit Judge.
Shirley Ann Maxwell has appealed in forma pauperis from a judgment of conviction under Section 1702, Title 18, U.S. C. She was charged, by Information filed October 21, 1955 (indictment having been waived), with having unlawfully taken, at Kansas City, Missouri, on April 12, 1955, “a letter addressed to Sarah Dodd, 3239 East 32nd Street, Kansas City, Missouri, which letter had been in a Post Office and an authorized depository for mail matter, before it had been delivered to the person to whom it was directed, with design to obstruct the correspondence and to pry into the business and secrets of another, and did open, secrete and embezzle the contents of the same, to wit, a State of Missouri check in the amount of $10.50, No. 824979, dated April 12, 1955, payable to Sarah Dodd, in violation of Section 1702, Title 18, United States Code.”
Section 1702, Title 18, U.S.C. reads as follows:
“Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined not more than $2,000 or imprisoned not more than five years, or both.”
The District Court appointed Mr. Rodger J. Walsh, of the Kansas City, Missouri, bar, to represent the defendant. Upon arraignment on October 21, 1955, she entered a plea of guilty. On October 28, 1955, by leave of court, she withdrew that plea and entered a plea of not guilty. She waived trial by jury, and the case was tried to the court upon written stipulations of the facts.
It was stipulated that the defendant on April 12,1955, lived at 3239 East 32nd Street, Kansas City, Missouri, a residence which had been converted into apartments, and that mail for all tenants thereof was delivered to a common mail box located on the porch. All of the tenants had access to this mail box, and it was customary for “the first person out to get their mail and place mail for other families on a little table in the hall.” The letter addressed to Sarah Dodd at 3239 East 32nd Street, Kansas City, Missouri, being the letter referred to in the Information, had been placed in a United States Post Office and in an authorized depository for mail matter at 3239 East 32nd Street, Kansas City, Missouri, for delivery to Sarah Dodd, and was on April 12, 1955, removed from the depository or mail box at that address, together with other mail, by the resident-manager of the apartment building or by a tenant and placed with the other mail upon the table in the hall of the building. The defendant went to the table upon which the mail had been placed, took the Sarah Dodd letter with intent to embezzle it and its contents, opened the letter, secreted the check contained in it, forged an endorsement of the check, and cashed it. Neither the resident-manager nor any tenant of the building had express authority to receive mail matter “as agent of any specific addressee.”
The question which the District Court was called upon to decide was whether the stealing by the defendant of the letter addressed to Sarah Dodd, which concedely had never been delivered manually to her, was a federal offense under Section 1702. The importance of the question at the present time, when the mails are flooded with letters containing Government checks, both state and federal, can hardly be overstated. The District Court gave painstaking consideration to the question, and concluded that the defendant was guilty, under Section 1702, of the offense charged in the Information, denied her motion for judgment of acquittal and imposed a sentence of imprisonment for one year, which was suspended and the defendant placed on probation for two years. The opinion of the District Court is reported in United States v. Maxwell, 137 F.Supp. 298.
Both this Court and the District Court are greatly indebted to Mr. Walsh, who, without compensation or hope of reward, has ably represented the defendant. Briefly stated, his contentions are: (1) that the hall table, in the apartment house, from which the defendant took the Sarah Dodd letter, was not a receptacle for mail conforming to the regulations of the Postmaster General; (2) that the defendant stole the letter after delivery and after federal authority and control over it had ceased; and (3) that the court erred in concluding that the language of the statute, “before it has been delivered to the person to whom it was directed,” means actual manual delivery to the addressee and that federal protection of mail matter continues until actual delivery.
The theory of the defendant is, of course, that when the Sarah Dodd letter was removed from the mail box on the porch of the apartment house and placed upon the hall table it passed beyond the reach and protection of Section 1702, and that its taking could not constitute a federal offense but was, if anything, an offense against the laws of the State. It seems to us, however, that the plain language of the statute discloses a clear intent on the part of Congress to extend federal protection over mail matter from the time it enters the mails until it reaches the addressee or his authorized agent. We can think of no sound reason for not giving to the statute the full meaning which its language imports or for denying to Congress the power to protect a letter from theft from the time it is mailed until it has actually been received by the person to whom it is addressed. Certainly the stealing of undelivered United States mail is a matter of national concern.
The nearest approach to the instant case which has arisen in the Supreme Court is Rosen v. United States, 245 U.S. 467, 38 S.Ct. 148, 62 L.Ed. 406. That case involved letters stolen from unlocked mail boxes placed by tenants in the halls of buildings in which they had their places of business. The federal statute applicable in that case made it an offense to steal from any “authorized depository for mail matter * * * any letter * * A regulation of the Post Office Department had made the private mail boxes authorized depositories for mail matter. The Supreme Court, in affirming the conviction of the defendants in the Rosen case, said, 245 U.S. at page 473, 38 S.Ct. at page 151:
“The suggestion that when the mail was deposited in a privately owned box it passed out of the custody of the government and beyond the protection of the law does not deserve extended notice. The letters which were stolen did not reach the manual possession of the persons to whom they were addressed, but were taken from an authorized depository over which the Act of Congress, by its express terms, extended its protection until its function had been served.”
Here, the stolen letter did not reach the manual possession of the person to whom it was addressed, but was an undelivered letter over which Section 1702, we think, extended its protection, even though the letter was not, at the time it was stolen, in an authorized depository for mail matter.
We think it is unnecessary to add anything further to the opinion of the District Court.
The defendant, if so advised, may apply to the Supreme Court for certiorari without payment of Clerk’s fees or costs in this Court.
The judgment appealed from is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
John DeCECCO, Defendant, Appellant, v. UNITED STATES of America, Appellee.
No. 6367.
United States Court of Appeals First Circuit.
Nov. 30, 1964.
Joseph Mainelli, Providence, R. I., for appellant.
Alton W. Wiley, Asst. U. S. Atty., with whom Raymond J. Pettine, U. S. Atty., was on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH. Circuit Judges.
ALDRICH, Circuit Judge.
This appeal raises only one substantial question. The defendant was convicted following a jury trial, on a two-count information charging the failure to pay the special occupational (wagering) tax in violation of 26 U.S.C. §§ 7203 and 7262. The record appendix shows that the defendant presented evidence in his defense, but none to the effect that he had paid the tax. The defendant requested the court to charge the jury that the “mere fact that the Government’s evidence is uncontradicted” did not require the jury to accept it. The court gave not this request, but just the reverse. It is true that at the outset it properly instructed the jury that the government had the burden of proving “every material element of * * * [the] offense.” However, it thereafter stated that it was “undisputed” that the defendant had not paid the tax. Then, as to one count inferentially and the other specifically, removed the issue of payment from this instruction.
“If the Government has satisfied you by the required degree of proof, that is, by proof, beyond a reasonable doubt, that the defendant on and before March 7, 1963 was engaged in the business of accepting wagers, and that he wilfully failed to pay said tax before engaging in said business, then your verdict as to Count I shall be guilty.”
It seems fairly clear, not only because of the court’s failure to give the defendant’s request, and its reference to the fact of non-payment being undisputed, but also from what it said subsequently, that “wilfully failed to pay” was limited to defendant’s state of mind, and assumed the fact of non-payment. When the court came to the second count, where wilfullness was not involved, it laid the matter firmly on the line.
“As to Coünt II I instruct you -that if the Government has satisfied you by the required degree of proof that the defendant was engaged in the business of accepting wagers on and before March 7, 1963, then your verdict as to that count shall be guilty.
“That is the only element that the Government need prove because it is undisputed here that no wagering stamp was ever issued to the defendant or ever issued for the premises at'50 Pekin Street.”
The defendant duly noted his objection.
The objection must be sustained. No matter how persuasive the government’s evidence may seem to the court, there is no burden on a defendant to dispute it. Nor can defendant’s failure to offer evidence on one issue change or satisfy the government’s burden with respect to it. United States v. Gollin, 3 Cir., 1948, 166 F.2d 123, 125-127, cert. den. 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151; Carothers v. United States, 5 Cir., 1947, 161 F.2d 718, 722. The court’s charge in this case, if correct, would mean that if a defendant rests at the close of the government’s case, the burden on all matters is on the government, but that if he offers evidence on some issues he admits any on which he does not. This would require a defendant to offer partial evidence at his peril. We could recognize no such principle. It may have seemed to the district court, and seems to us,.highly unlikely that the government’s case would founder on the issue of non-payment of the tax, but it was the defendant’s right to insist on its incurring that risk however small.
Judgment will be entered setting aside the verdicts of the jury and vacating the judgment thereon and ordering further proceedings not inconsistent herewith.
. Our opinion in Calo v. United States, 1 Cir., 1964, 338 F.2d 793, adequately covers the defendant’s attack on the descriptions in the search warrant.
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_initiate
|
B
|
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.
Emil N. STILINOVIC, Appellant, v. UNITED STATES of America, Appellee.
No. 17616.
United States Court of Appeals Eighth Circuit.
Oct. 12, 1964.
Richard M. Stout, St. Louis, Mo., made argument for appellant and filed brief with Philip M. Sestric and William H. Crandall, Jr., St. Louis, Mo.
William C. Martin, Asst. U. S. Atty., St. Louis, Mo., made argument for ap-pellee and filed brief with Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo.
Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and DELEHANT, District Judge.
VAN OOSTERHOUT, Circuit Judge.
This is an appeal' by defendant Stilino-vie from his conviction on a charge of filling a liquor bottle with distilled spirits other than those contained in such bottle at the time of stamping in violation of 26 U.'S.C.A. § 5301(c) (1). Such statute reads:
“(c) Refilling of liquor bottles.— No person who sells, or offers for sale, distilled spirits, or agent or employee of such person, shall—
“(1) place in any liquor bottle any distilled spirits whatsoever other than those contained in such bottle at the time of stamping under the provisions of this chapter;
The Government, in compliance with an order sustaining a motion for bill of particulars, named the brands of whiskey in the bottles at the time of stamping and asserted it is unable to state the brand of whiskey with which the bottles were refilled and that it is unable to state whether or not the tax had been paid upon the distilled spirits used to refill the bottles.
All parties having waived a jury, the ease was tried to the court. Defendant is an officer and employee of a corporation engaged in the sale of liquor by the drink in St. Louis. Two Government witnesses testified that they were at defendant’s bar just prior to closing on the night of June 22, 1963, and observed that certain liquor bottles in use for filling customers’ orders were nearly empty. After the bar had closed, such witnesses by looking through a window saw defendant refilling the bottles. The witnesses then gained entrance to the bar and observed that the bottles in use previously observed had been refilled to the neck. Such bottles were seized as were unopened bottles of the same brands, the stamps of which bore serial numbers very close to those of the open bottles. The seized bottles were sealed, marked for identification, and subsequently turned over to a Government chemist for analysis. The chemist made an analysis of the contents of the open bottle and of the sealed bottle of each brand of whiskey and upon the basis of such analysis, he testified that in each instance the substance in the open bottle was not the same as that in the sealed bottle of like brand.
The chemist testified that the close relationship in numbers on the tax stamps on the used and unused bottles indicated that the contents were produced at the same time and hence that the chemical analysis of such bottles should be substantially the same. Defendant offered no evidence.
The court found the defendant guilty of the crime charged and sentenced him to pay a fine of $600.
Defendant prior to trial made a motion to dismiss the indictment. At the close-of the evidence, defendant made a motion for judgment of acquittal which was renewed by a motion for judgment n. o. v. and a new trial, and defendant also made-a motion in arrest of judgment. All such motions were overruled. The issue-raised in defendant’s motions and relied upon here is stated in defendant’s brief.' as follows:
“The substantial issue is whether it is necessary that the Government charge and prove that the actions-of the defendant complained of had. an effect upon the revenue, i. e.,. whether the Statute extends to prohibiting the combining of two partially used bottles of taxed whiskey.. If the Court feels that the Statute, construed in a constitutional manner, prohibits this, and that Congress has the power under the Constitution, to prohibit this, then the conviction should be affirmed.”
Section 5301(c) (1) here involved elearly and unambiguously proscribes the refilling of any liquor bottle after stamping with “any distilled spirits-whatsoever.” Upon this record, the court was clearly justified in finding defendant has violated such statute. Defendant as a basis for reversal relies largely upon Wisniewski v. United States, 8 Cir., 247 F.2d 292, decided August 12, 1957. Such reliance is misplaced. The regulation involved in Wisniewski has been replaced by § 5301(c). The ambiguity found in the regulation in Wisniewski does not •exist in the statute.
Judge Vogel in Vinyard v. United States, 8 Cir., 335 F.2d 176, 181, speaking for this court, in rejecting a contention like that made by the defendant here, .states:
“Approximately one year after Wisniewski was decided, September 2, 1958, Congress amended the statute and recodified it as 26 U.S. C.A. § 5301(c), the text of which is set out in f.n. 2, supra, and the effective date of which was July 1, 1959. The new statute encompassed both the old law and the prior regulation and included certain key words as indicated in that portion of the legislative history quoted infra. 'The Report of the Senate Committee ■on Finance, Report No. 2090, published in 1958 U.S.Code Cong. & .Adm.News, p. 4395, specifically mentions Wisniewski and expresses quite ■clearly an intent to circumvent that •decision. In discussing the intended •effect of the amendment, the committee stated in its report at page ■4563 of 1958 U.S.Code Cong. & Adm. News
“ ‘The regulations prescribed under existing law * * * have recently been restrictively construed in certain court decisions. The use of the word ‘whatsoever’ in the phrases ‘any distilled spirits whatsoever’ and ‘any substance whatsoever’ makes it completely ■clear that the construction given to the regulations under existing law in U. S. [United States] v. Goldberg et al. (8 Cir. 1955, 225 F.2d 180) and in Wisniewski v. U. S. [United States] (8 Cir. 1957, 247 F.2d 292) does not apply with respect to the provisions of this subsection. The language of this subsection as contained in the House bill and as restated by your committee is intended to obviate any question that its provisions are applicable, whether or not the tax has been paid or determined on the distilled spirits used in refilling and whether or not the substance used to alter the original contents is taxable under the internal revenue laws.’ (Emphasis supplied.)
“The 1958 amendment and the legislative history quoted above clearly reflect a congressional intent to make criminal the act for which appellant here was initially arrested. Our Wisniewski opinion based upon the violation of a regulation no longer in effect and replaced by a statute specifically enacted to avoid Wis-niewski, can be of no help to the appellant.”
We find no merit to defendant’s contention that Congress acted beyond its constitutional power in enacting the statute. In upholding the constitutional right of Congress to prescribe restrictions with respect to packaging taxable tobacco, the Supreme Court in Felsenheld v. United States, 186 U.S. 126, 132, 22 S.Ct. 740, 742-743 46 L.Ed. 1085, states:
“It seems to us that, in the rules and regulations for the manufacture and handling of goods which are subjected to an internal revenue tax, Congress may prescribe any rule or regulation which is not in itself unreasonable; that it is a perfectly reasonable requirement that every package of such goods should contain nothing but the article which is taxed; * *
Defendant has failed to demonstrate that the statute contains any unreasonable restriction. Moreover, we believe that the statute bears a reasonable relationship to the collection of revenue. The evidence in the present case shows that chemical analysis of the contents of a liquor bottle affords a cheek upon whether the bottle contains the whiskey upon which the tax was paid as manifested by the tax stamp.
In United States v. Goldberg, 8 Cir., 225 F.2d 180, 188, we stated:
“Each manufacturer of distilled spirits has a formula. Through the various insignia required to be blown on the bottle, placed on the label, and on the revenue stamp, authorized investigators are able to ascertain with relative ease and reasonable certainty whether the distilled spirits in the container are those described by the various insignia. In the event the whiskey in the container does not correspond with that described and that on which the tax as evidenced by the stamp was paid, the burden should not be upon the Government to assume the almost insurmountable task of determining the source of the whiskey added to the container contrary to the regulations.”
The validity of reasonable laws and statutes aimed at enforcing the collection of revenue is discussed and recognized in the majority and minority opinions in Goldberg.
The Report of The Committee of Finance to accompany H.R. 7125, Senate Report No. 2090, July 31, 1958, 1958 U. S.Code Cong. & Adm.News, pp. 4395, 4562, clearly shows that Congress deemed the provisions of § 5301(c) essential to the protection of the revenue, said report among other things stating:
“The prevention of the reuse of liquor bottles or other authorized containers for the packaging of any distilled spirits, or of the alteration of the original contents of liquor bottles or other authorized containers which have been used for the packaging of distilled spirits, is essential for the protection of the revenue since it is in most cases impossible, once the container has been refilled or the original contents thereof altered by the addition of any substance (whether taxable or nontaxable), to establish whether the tax on the contents of such containers has been lawfully determined.”
Congress in enacting the statute here attacked acted within its constitutional power to facilitate the collection of revenue.
The judgment of conviction is affirmed.
. For example, with respect to Exhibit 2, the open bottle of Seagram’s V.O., stamp No. 78126649, shows solids 177.6, color 8.7, acid 20.4, proof 85.27. The sealed bottle of the same brand, Exhibit 12, stamp No. 78126643, shows solids 68.4, color 7.1, acids 17.5, proof 86.78.
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_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES ex rel. FLETCHER v. FAHEY et al.
No. 7568.
United States Court of Appeals for the District of Columbia.
Argued Dec. 12, 1940.
Decided Feb. 24, 1941.
Petition for Rehearing Denied March 19, 1941.
Motion to Vacate Opinion and Judgment Denied April 10, 1941.
Edmond C. Fletcher, of Washington, D. C., pro se.
Harvey D. Jacob and E. K. Neumann, both of Washington, D. G, for appellees.
Before GRONER, Chief Justice, and LUHRING and O’DONOGHUE, United States District Judges sitting by assignment.
GRONER, C. J.
R.S. § 5438 made it a crime to present false claims against the United States, and by the terms of R.S. §§ 3490, 3491, and 3493, any person may institute an action in a District Court, on behalf of the United States, against the wrongdoer, to recover a penalty and double the damages sustained, one half of which the informer may keep for himself.
Appellant brought this action in the court below against John H. Fahey and others, who at the time in question were either members or executive officers of the Federal Home Loan Bank Board, to recover 400 million dollars, plus a penalty of $34,-000, because of their acts in the following circumstances. § 4(a) of The Home Owners’ Loan Act of 1933, authorized and directed the Federal Home Loan Bank Board “to create a corporation to be known as the Home Owners’ Loan Corporation, * * * which shall have authority to sue and to be sued in any court of competent jurisdiction, Federal or State”. The complaint charges that certain of the defendants, acting as members of the Board, “misconceiving themselves to be a Sovereign power, from which all corporate franchises flow, spread upon the records of said Board” a paper purporting to be a charter of the Home Owners’ Loan Corporation; that their action in this respect was beyond any power committed to them by the Act or by any statute of the United States; that, having taken this illegal action, they then transmitted to the Secretary of the Treasury a copy of the resolution, represented to him that the corporation was a bona fide and existing body corporate with a capital stock of 200 million dollars, called on him to subscribe on behalf of the United States for all of “such purported capital stock of said pretended corporation”, and demanded and received from the Treasury of the United States from time to time various sums of money aggregating 200 millions in payment for the stock.
This brief narrative is sufficient to show that the purpose of the suit is to recover on behalf of the United States double the amount of money paid for stock of the Home Owners’ Loan Corporation, on the theory that there is no such legal corporation and that the money had been secured by the false and fictitious claim of the defendants that the corporation had been properly and legally incorporated. The trial court dismissed the complaint on the authority of Fletcher v. Jones, 70 App.D.C. 179, 105 F.2d 58, certiorari denied 308 U.S. 555, 60 S.Ct. 116, 84 L.Ed. 467.
In this court appellant contends that it takes the act of a sovereign power to create a corporation, that the statute does not authorize the Board to issue a charter, and that the Board could create the Home Owners’ Loan Corporation only by obtaining a charter from the District of Columbia or some state.
We find no merit in the contention and think the lower court was quite correct in holding the case controlled hy the Jones decision. There the same plaintiff as here sought to recover possession of realty on a resulting trust, on the ground that the beneficiary in a deed of trust was the Home Owners’ Loan Corporation, which it was alleged did not exist. We examined the statute and held that Home Owners’ Loan Corporation had been properly organized according to law and had complete corporate existence. We now adhere to all that we said there.
Appellant also argues that the complaint could not be “dismissed” without the written consent of the judge and of the United States Attorney, required by R.S. § 3491 before actions of this nature, once filed, may be “withdrawn or discontinued”. This point, too, we think without merit. The action of the court was on a motion to dismiss for failure to state a cause of action. This was a proper defense, and the prohibitions of the statute were intended to reach a wholly different situation.
Affirmed.
Now reproduced in amended form in 18 U.S.C.A. § 80, cf. United States ex rel. Kessler v. Mercur Corp., 2 Cir., 83 F.2d 178, certiorari denied 299 U.S. 576, 57 S.Ct. 40, 81 L.Ed. 424.
31 U.S.C.A. §§ 231, 232, 234.
48 Stat. 129, 12 U.S.C.A. § 1463(a).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_stpolicy
|
C
|
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 interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court 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".
BURGER KING CORPORATION, Plaintiff-Appellee, Cross-Appellant, v. Gerald A. MASON, et al., Defendants-Appellants, Cross-Appellees. BURGER KING CORPORATION, a Florida Corporation, Plaintiff-Appellee, Counter-Defendant, Cross-Appellant, v. Gerald A. MASON, et al., Defendants-Appellants, Counter-Plaintiffs, Cross-Appellees.
Nos. 82-5066, 82-5803.
United States Court of Appeals, Eleventh Circuit.
Aug. 1, 1983.
Rehearing and Rehearing En Banc Denied Oct. 14,1983.
Edward A. Kaufman, John T. Kinsey, J. Robert Olian, Britton, Cohen, Kaufman, Benson & Schantz, Miami, Fla., for Mason, et al.
Andrew C. Hall, Richard F. O’Brien, III, Hall & O’Brien, Miami, Fla., Mayer, Brown & Platt, Lee N. Abrams, Mark McLaughlin, Chicago, 111., for Burger King Corp.
Before VANCE and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.
ALBERT J. HENDERSON, Circuit Judge:
Following approximately five years of litigation in the United States District Court for the Southern District of Florida encompassing two jury trials, one bench trial and countless motions and hearings, the appellants, a group of investors including Gerald Mason, Wesley Hardy, Donald Szabo and Richard Peterson (hereinafter collectively referred to as “Mason”) by this appeal, seek to reverse portions of the final judgment. The Burger King Corporation (“BKC”), the original plaintiff in the action, filed a cross-appeal to certain adverse rulings of the district court. Mason also filed a separate appeal from the attorney’s fee award and BKC again cross-appealed on this issue. After an exhaustive review of the evidence and each assignment of error, we affirm in part and remand in part for further proceedings.
I. Introduction
BKC, one of the largest franchisors of fast-food restaurants in the United States, maintained a business relationship with Mason for many years. As a result of this relationship, Mason acquired the right to establish Burger King restaurants in two major metropolitan areas and to develop other restaurants throughout the United States during the 1970’s. Mason’s territorial rights derived from two development agreements between the parties by which Mason obtained the exclusive authority to establish Burger King franchises in Pitts-burg and Kansas City. Over the years Mason purchased at least twenty-seven Burger King franchises under separate agreements. In connection with the development of some of the franchises, BKC provided financing to Mason for which Mason executed promissory notes. Mason incurred additional obligations for payments due under certain lease agreements with BKC, for supplies furnished on account and for royalties due under the franchise agreements. (The leases, accounts for supplies and royalties will be referred to as the “accounts”.)
The long standing Mason-BKC business association began to deteriorate in 1977 when BKC notified Mason of the cancellation of the two exclusive development agreements. In 1978, BKC filed this suit seeking a declaration that it had properly terminated the development contracts. Mason responded with a counterclaim for reinstatement and damages for the revocation. Afterwards, in 1979, BKC informed Mason that it was unilaterally terminating all twenty-seven of its Burger King franchises for failure to comply with the terms of the franchise agreements. Eventually, through amendments to the complaint and counterclaim, the suit filed in 1978 expanded to controversies concerning both the development and franchise agreements as well as demands arising from Mason’s liability on the promissory notes and the accounts.
In 1980 the case came on for trial and the issues were submitted to the jury on special interrogatories. The jury found that the development contracts were validly can-celled but that BKC wrongfully terminated twelve of the franchise agreements. Because of the equivocal nature of the jury’s verdict as to the remaining fifteen franchise terminations, the district court ordered a new trial on those agreements. The court also granted a new trial to BKC for a computation of damages resulting from Mason’s liability on the promissory notes and accounts. Since there was no genuine issue of fact as to the amount due on the promissory notes and accounts, the district court thereafter entered a summary judgment in favor of BKC for those damages. Before the second jury trial, BKC conceded its error in terminating one of the fifteen franchises left for trial. Also, during the second trial, the district court sustained, as a matter of law, the revocation of seven of the franchises. Thus, by concession or court order, eight of these fifteen terminations were eliminated from the jury’s consideration. After the second trial in 1981, the jury found, that BKC validly terminated six of the remaining franchises. Consequently, Mason prevailed in its efforts to nullify the terminations of fourteen of its franchises and BKC successfully defended the cancellation of thirteen franchise agreements.
Subsequent to the second jury trial, the district court held a bench trial on BKC’s claims for common law trademark infringement, unfair competition and breach of the franchise agreements based upon Mason’s post-termination use of the Burger King trademarks. The court awarded to BKC the profits earned from the franchises previously found to have been lawfully terminated for the breach of the franchise agreements.
Finally, the district court conducted a hearing on BKC’s application for attorney’s fees. The court awarded fees in accordance with the provisions of the development agreements, the notes, the leases and a Florida statute.
II. The 1980 Jury Verdict
In attacking the trial judge’s resolution of the 1980 jury verdict, Mason challenges the grant of a new trial limited to the issue of BKC’s damages on the promissory notes and the accounts. Second, Mason asserts that the district court also erred in ordering a new trial for a determination of the validity of BKC’s cancellation of the franchises not listed on the jury’s verdict form.
A. Did the jury compromise?
In its answer to Special Issue # 1, the jury found in favor of BKC on the promissory notes (valued at approximately $1,000,-000. 00), rejecting Mason’s affirmative defenses thereto. However, it awarded BKC only $1.00 as damages. Responding to Issue # 2, the jury sustained BKC’s right to recover on the accounts (valued at approximately $500,000.00) and found against the affirmative defenses. BKC was awarded $100,000.00 as “damages” for this item.
Neither party brought these inconsistent results to the district court’s attention until after the jury had been discharged and it was too late to resubmit the damages question to the jury. BKC eventually filed a motion for a clarification of the jury verdict on the promissory notes and the accounts. By this motion, BKC sought a judgment for the face amount of the debts, as shown by the evidence, plus the “damages” awarded by the jury. Alternatively, BKC moved for a judgment notwithstanding the verdict for the full amount of the obligations. The district court denied both motions and, instead, ordered a new trial limited to a computation of BKC’s damages on the promissory notes and the accounts. Subsequent to this order, BKC filed a motion for summary judgment supported by affidavits establishing its entitlement to the full amount of the debts. Since Mason submitted no evidence in opposition to the affidavits, the district court granted judgment to BKC for these liquidated amounts.
Mason contends that the jury’s inadequate award of damages signifies an improper compromise verdict because there was no dispute as to the correct amount due on the notes and accounts. Mason therefore claims that the liability and damages issues were inseparable and the trial judge erred in restricting a new trial to the question of damages.
Rule 59(a) of the Federal Rules of Civil Procedure provides that a new trial may be granted “on all or part of the issues.” The decision whether to grant a new trial is discretionary with the district court and will not be reversed absent an abuse of that discretion. See, e.g., Franks v. Associated Air Center, Inc., 663 F.2d 583, 586 (5th Cir.1981); Lucas v. American Manufacturing Co., 630 F.2d 291 (5th Cir.1980); Young v. International Paper Co., 322 F.2d 820, 822 (4th Cir.1963).
It is axiomatic, however, that a partial new trial may not be granted if it would infringe upon a litigant’s seventh amendment right to a jury trial. In Gasoline Products v. Champlin Refining Co., 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188 (1930), the Supreme Court enunciated the standard which governs partial new trial practice:
[w]here the practice permits a partial new trial, it may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice.
Id. at 500, 51 S.Ct. at 515, 75 L.Ed. at 1191. Applying Champlin Refining, the former Fifth Circuit Court of Appeals held that a jury verdict influenced by an improper compromise cannot stand and a complete new trial is required because liability and damages are inseparable. See, e.g., Lucas v. American Manufacturing Co., 630 F.2d 291, 294 (5th Cir.1980); Hatfield v. Seaboard Air Line R.R. Co., 396 F.2d 721, 724 (5th Cir.1968). Hence, if there is a compromised finding on liability, a separate trial on damages alone will not suffice — both liability and damages must be relitigated in a new trial. Id.
With this admonition in mind, we focus our attention on whether the district court abused its discretion in rejecting the compromise claim. “A compromise verdict is one where it is obvious that the jury compromised the issue of liability by awarding inadequate damages.” Freight Terminals Inc. v. Ryder System, Inc., 461 F.2d 1046, 1053 (5th Cir.1972). However, a review of the cases from the former Fifth Circuit Court of Appeals establishes that a nominal or inadequate finding of damages by itself does not automatically mandate the conclusion that the award was the product of a compromise verdict. See, e.g., Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242, 1247 (5th Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981); Davis v. Becker & Associates, Inc., 608 F.2d 621 (5th Cir.1979); Bassett Furniture Industries of North Carolina, Inc. v. NVF Co., 576 F.2d 1084, 1094 (5th Cir.), reh. denied with opinion, 583 F.2d 778 (5th Cir.1978); Parker v. Wideman, 380 F.2d 433, 437 (5th Cir.1967). Indeed, if inadequate damages was the sole test for a compromise, Rule 59(a) would have little or no purpose. Rather, our inquiry must concentrate on any indicia of compromise apparent from the record, Hatfield, 396 F.2d 721, 723-24, and other factors which may have caused the jury to return a verdict for inadequate damages. See Hadra, 632 F.2d 1242, 1244 n. 1. Only if the “totality of the circumstances” indicates that the issue sought to be excluded by a partial new trial is not separable from the error in the damage award, will a plenary new trial be authorized. See Williams v. Slade, 431 F.2d 605, 609 (5th Cir.1970).
Two former Fifth Circuit cases offer instructive examples of situations where the record contained adequate indications of compromise to warrant a complete new trial. In Hatfield, the court held that a jury verdict finding liability and awarding $1.00 in damages was the result of a compromise. The court found that under all the circumstances, including the jury’s confusion concerning contributory negligence and the fact that it took two days to return a verdict, there was strong support for the conclusion that the inadequate award of damages was the culmination of a compromise among the jurors. The former Fifth Circuit again determined that the jury probably compromised in Lucas v. American Manufacturing Co., 630 F.2d 291 (5th Cir.1980). In Lucas, the trial judge admonished the jury to return a verdict quickly because a hurricane was approaching the city. The jury did so, but after finding the defendant liable, awarded the plaintiff patently inadequate damages. On appeal, the Fifth Circuit remanded for a new trial on liability and damages. The court reasoned that in their haste to decide the case before the arrival of the hurricane, the jurors probably compromised, agreeing to find liability only if the damages were kept to a minimum.
By contrast, the court has rejected the compromise theory when the record discloses another basis for the improper award. For example, in Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242 (5th Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981), the jury found that the defendant had breached the plaintiff’s employment contract but awarded no damages. The district court ordered a new trial confined to the plaintiffs’ claim of damages for the breach. The Fifth Circuit affirmed the grant of a partial new trial. The court rejected the defendant’s contention that the jury verdict was the product of a compromise, thereby affirming the district court’s explanation that the failure to afford monetary relief could have resulted from an improper determination that the plaintiff failed to mitigate his damages by accepting alternative employment. See 632 F.2d at 1244, n. 1. In Hadra, the court emphasized that the defendant pointed to “no circumstances, such as those listed in Hatfield, that indicate the possibility of a compromise verdict... ”. Id. at 1246. Consequently, since there was sufficient evidence to support the jury’s finding of liability, the court held that it was proper to order a new trial limited to damages.
The record before us confirms our belief that the liability and damages issues were also separable in this instance. First, and foremost, the jury repeatedly found that Mason failed to establish its affirmative defenses, the only basis upon which Mason could escape liability. It did so in finding against Mason on the promissory notes and accounts; it rejected the affirmative defenses again when they were asserted as grounds for setting aside the terminations of the development agreements; and once more when they constituted the foundation for the counterclaim against BKC. We can come to no other conclusion than that the jury did not believe Mason’s allegations of economic coercion, fraudulent inducement or wrongful termination of the development agreements. Having clearly convinced the jury that these claims lacked merit, BKC should not have to defend against them again. Second, the record contains absolutely no indicia of a compromise other than the low amount of damages. After a long, protracted trial, the jury required only two to three hours to reach its verdict. It obviously was not deadlocked. The jury did not request additional instructions or attempt to qualify its verdict in any manner. Finally, as BKC points out, the award could be explained by reference to the use of the term “damages” on the special interrogatories. It is possible that the jury thought that BKC would receive payment on the promissory notes and accounts based solely on their finding that BKC was entitled to recover for these items and, therefore, any additional finding of “damages” would simply amount to a duplication. The “totality of the circumstances” simply do not point to a compromise verdict. Viewed in this factual and procedural setting, the district court did not abuse its discretion in ordering the partial new trial.
B. Franchise Termination Verdict Form
Special Issue # 5 sought a determination of the validity of BKC’s terminations of Mason’s franchise agreements. The jury could find: (a) BKC properly terminated all of the agreements; (b) BKC wrongfully terminated all of the agreements; or (c) BKC properly terminated the franchises listed in column one and wrongfully terminated the franchises listed in column two. The jury circled alternative (c), but after designating some franchise numbers under the properly terminated column, crossed them out and wrote “none”. The jury specified only twelve of the twenty-seven franchise agreements at issue in the wrongfully terminated column.
Again, neither party requested that the issue be resubmitted to the jury for clarification. As a result, the jury was discharged without the opportunity to correct these inconsistencies, leaving the district court with the difficult task of interpreting the verdict. In a post trial motion, BKC sought a judgment notwithstanding the verdict, claiming that the evidence established that all of the franchises had been properly cancelled. Alternatively, BKC asked for a new trial on all of the franchise terminations. As expected, Mason took the opposite position, asserting that the verdict correctly found that all of the franchises were wrongfully terminated. The district court rejected all of those contentions, instead ordering a new trial for the restaurants which were not listed in either column. In its order, the court stated that “[i]t [was] very uncertain... whether [the jury] made any determination as to the other restaurants [not listed]... [and] it would not serve the best interests of justice for the court to attempt to read the jury’s mind in an effort to resolve this ambiguity.” R. 3136.
Mason faults the trial court for its failure to construe these responses as a finding that all of the franchises had been wrongfully terminated. Emphasizing the district court’s duty to attempt to reconcile inconsistent special verdicts, Mason claims that the district court was required to so conclude because the jury’s answer that “none” were properly cancelled obviously indicates that the jury decided that all twenty-seven terminations were without legal cause. Mason makes this argument in spite of the fact that the jury did not select that alternative on the verdict form and only identified twelve franchises in that category.
As stated before, the district court has authority under Rule 59(a) of the Federal Rules of Civil Procedure to order a partial new trial. Even though more stringent appellate review is called for when the trial court orders a new trial, the abuse of discretion standard still controls our consideration of the decision. See, e.g., Williams v. City of Valdosta, 689 F.2d 964, 974 (11th Cir.1982); Rabun v. Kimberly-Clark Corp., 678 F.2d 1053 (11th Cir.1982).
A trial judge must make all reasonable efforts to reconcile an inconsistent jury verdict and “if there is a view of the case which makes the jury’s answers consistent, the court must adopt that view and enter judgment accordingly.” Griffin v. Matherne, 471 F.2d 911, 915 (5th Cir.1973). See, e.g., Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798, 806-807 (1962); Aquachem Company, Inc. v. Olin Corp., 699 F.2d 516, 521 (11th Cir.1983); Miller v. Royal Netherlands Steamship Co., 508 F.2d 1103, 1106 (5th Cir.1975). The test employed in determining whether a conflict in the verdict can be reconciled is “whether the answers may fairly be said to represent a logical and probable decision on the relevant issues as submitted... ”. Griffin, 471 F.2d at 915. However, if the jury’s answers are so ambiguous or conflicting that they cannot be reconciled fairly, the trial court may not enter judgment thereon. Royal Netherlands Steamship Co. v. Strachan Shipping Co., 362 F.2d 691, 694 (5th Cir.1966), cert. denied, 385 U.S. 1004, 87 S.Ct. 708, 17 L.Ed.2d 543 (1967). A special verdict which does not resolve the essential facts, or does so in an inexplicable fashion, will not support a judgment. Prentice v. Zane’s Administrator, 49 U.S. (8 HOW.) 470, 484, 12 L.Ed. 1160, 1166 (1850); Hartnett v. Brown & Bigelow, 394 F.2d 438, 441, n. 2 (10th Cir.1968). Moreover, trial judges are not empowered to fill in facts omitted from the answer to a special interrogatory. Guidry v. Kem Manufacturing Co., 598 F.2d 402 (5th Cir.), reh. denied with opinion, 604 F.2d 320, 321 (5th Cir.1979). When an insurmountable inconsistency or ambiguity is perceived, the trial court may resubmit the issue to the jury before it is dismissed or order a new trial on some or all of the issues. Nordmann v. National Hotel Co., 425 F.2d 1103, 1106 (5th Cir.1970).
Without doubt, the response to special issue # 5 was both inconsistent and ambiguous. If the jury intended to find that all of the franchises had been wrongfully terminated, it could have selected alternative (b) — it did not. Thus, the choice of alternative (e) was inconsistent with its answer that none of the franchises had been properly terminated. More significantly, the answer does not resolve the disposition of over half of the franchises. As the district court observed, it is not clear what the jury found, if anything, with respect to the omitted franchises. The trial court properly declined to supply facts submitted for the jury’s determination but left unanswered. Guidry, 598 F.2d 402. Inconsistent dr ambiguous verdicts must be reconciled only if that can be accomplished from a fair reading of the verdict. Griffin, 471 F.2d at 915. Faced with this incompatible answer, we have no criticism of the district court’s exercise of its discretion in this instance.
III. Material Breach Instruction
In its cross-appeal, BKC challenges the finding that some of the franchises were wrongfully terminated. The source of this complaint is the district court’s instruction to the jury that a franchise could not be revoked absent a “material” breach of the particular agreement. This, BKC says, is an erroneous statement of Florida law. In essence, BKC urges that it was entitled to strictly enforce the termination provisions of the agreements without regard to the materiality of the alleged defaults.
Although the Florida courts have recognized that the terms of franchise agreements are enforceable, North Dade Imported Motors, Inc. v. Brundage Motors, Inc., 221 So.2d 170, 177 (Fla.Dist.Ct.App.), “it is elementary that the mere breach of an agreement which causes no loss... will not sustain a suit... for damages, much less rescission.” Block v. City of West Palm Beach, 112 F.2d 949, 952 (5th Cir.1940) (quoted in, Westcap Government Securities, Inc. v. Homestead Air Force Base Federal Credit Union, 697 F.2d 911, 913 (11th Cir.1983)). Pursuant to this rule, the Florida courts, and this court construing Florida law, have held that a party may not escape performance under a contract on the ground that a tender was not made by the date specified in the contract. Rather, a party who tenders late may enforce the contract with due allowance for any damage caused by the tardiness. See, e.g., Westcap Government Securities, Inc., 697 F.2d at 914; Blaustein v. Weiss, 409 So.2d 103 (Fla.Dist.Ct.App.1982); Jackson v. Holmes, 307 So.2d 470 (Fla.Dist.Ct.App.), cert. denied, 318 So.2d 404 (Fla.1975); Larsen v. Miami Gardens Dev. Corp., 299 So.2d 50 (Fla.Dist.Ct.App.1974); National Exhibition Co. v. Ball, 139 So.2d 489 (Fla.Dist.Ct.App.1962). Indeed, a Florida court has refused to countenance unilateral cancellation in that context even when the contract stipulated that time was of the essence. Jackson, 307 So.2d at 471-472. Thus, although as a general rule parties to a contract may strictly enforce its terms and the courts will not rewrite an agreement to undo the consequences of a bad bargain, see, e.g., Sapienza v. Bass, 144 So.2d 520 (Fla.Dist.Ct.App.1962), the Florida courts do not blindly sanction unilateral termination of contracts when a default causes no harm to the party seeking to avoid performance.
Consistent with this principle, the Florida courts have indicated that the materiality of a breach is relevant when a party seeks to terminate or rescind a contractual relationship. See, e.g., Callins v. Abbatecola, 412 So.2d 58 (Fla.Dist.Ct.App.1982) (when a party sought to terminate a real estate contract on the ground that the purchaser’s cheek was returned for insufficient funds, the court stated that “the question involved here is... whether [the tender of a bad check]... constituted such a material breach... as to justify... termination... ”. Id. at 59); Gittlin Companies, Inc. v. David & Dash, Inc., 390 So.2d 86 (Fla.Dist.Ct.App.1980) (rescission of distributorship contract was not justified when the defendant made direct sales in violation of the exclusive distribution provision of the distributorship agreement because the breach was not material or substantial). In Gittlin Companies, 390 So.2d at 86, the Florida court cited McAlpine v. Aamco Automatic Transmissions, Inc., 461 F.Supp. 1232 (E.D.Mich.1978), in support of its holding that an immaterial breach of a distributorship agreement did not excuse performance. The McAlpine opinion states the rule followed by the district court in this case:
A material breach would allow the franchisees to terminate their Franchise Agreements and discontinue future performance. An immaterial breach would allow the franchisees to sue for any damage caused, but they would still be bound to continue performance under the contract.
461 F.Supp. at 1249.
We conclude that the district court’s instruction comported with substantial Florida case law and reject BKC’s argument to the contrary.
IV. Post-Termination Trademark Use
A. Background
Each of the franchise agreements stipulates that upon termination of the franchise, the franchisee must discontinue use of the Burger King trademarks. Following the May 1979 unilateral cancellation of all 27 of Mason’s franchises, Mason sought an injunction to prohibit BKC from interfering with the operation of its restaurants as Burger King franchises. At the August 1979 evidentiary hearing on this motion, BKC advised the court that it would maintain the status quo, e.g. it would not force Mason to cease operating under the Burger King name, pending a final resolution of the franchise dispute. However, BKC conditioned this offer on its right to later pursue relief for the post-termination operation. Although Mason made no explicit response to this proposal, no further mention was made of this issue and Mason limited its proof and arguments to other remedies. Thereafter, BKC provided supplies to and accepted royalties from the Mason franchises during the litigation.
BKC amended its complaint to add a cause of action under the Lanham Act, 15 U.S.C. § 1114(l)(a), for Mason’s post-termination use of the Burger King trademarks. At the close of the 1980 jury trial, the district court granted Mason’s motion for a directed verdict on the Lanham Act claim. After doing so, the district court permitted BKC to again amend its complaint to include claims for common law trademark infringement, unfair competition and breach of contract based upon Mason’s use of the trademarks at any restaurants whose franchise revocations might be adjudicated valid in the second trial. Finally, following the second jury’s finding that certain franchises had been legally terminated, the district court proceeded with a bench trial on BKC’s common law trademark, unfair competition and breach of contract causes of action. The district court held that Mason breached the franchise provisions prohibiting use of the Burger King trademark after invalidation of the agreement. Concluding that Mason had been “unjustly enriched” by this breach, the district court awarded BKC the profits earned by Mason as a consequence of the post-termination operation of these franchises as “compensatory damages” for the violation. In this order, the court found that BKC did not consent to the post-termination use of the trademark.
B. Lanham Act Claim
By way of cross-appeal, BKC asserts that the district court erred in directing a verdict favorable to Mason during the first jury trial on its Lanham Act claim for post-termination trademark infringement. BKC maintains that it established the essential elements of federal trademark infringement when it proved that Mason displayed the Burger King marks after its right to do so had been revoked. We agree.
In order to prevail on a trademark infringement claim, the registrant must show that (1) its mark was used in commerce by the defendant without the registrant’s consent and (2) the unauthorized use was likely to cause confusion, or to cause mistake or to deceive. 15 U.S.C. § 1114(l)(a). Ordinarily, trademark infringement cases are predicated on the complaint that the defendant employed a trademark so similar to that of the plaintiff that the public will mistake the defendant’s products for those of the plaintiff. See, e.g., Exxon Corp. v. Texas Motor Exchange of Houston, Inc., 628 F.2d 500 (5th Cir.1980). Also, it is well established that “falsely suggesting affiliation with the trademark owner in a manner likely to cause confusion as to source or sponsorship constitutes infringement.” Professional Golfers Ass’n of America v. Bankers Life & Casualty Co., 514 F.2d 665, 670 (5th Cir.1975) (emphasis supplied). See also, Control Components, Inc. v. Valtek, Inc., 609 F.2d 763, 770 (5th Cir.), cert.. denied, 449 U.S. 1022, 101 S.Ct. 589, 66 L.Ed.2d 484 (1980). Thus, a trademark infringement case need not just involve imitation of the registrant’s mark. The unauthorized use of a trademark which has the effect of misleading the public to believe that the user is sponsored or approved by the registrant can constitute infringement. Professional Golfers Ass’n, 514 F.2d at 670. The Lanham Act cause of action was based on the theory that by using the Burger King trademarks after the trademark license had been cancelled, Mason falsely suggested that its restaurants were sponsored by and affiliated with BKC. Because this type of infringement is cognizable under the Lanham Act, we must examine BKC’s proof in light of the requirements of the statute.
Mason denies the use of BKC’s trademark without consent because after the terminations, BKC provided supplies bearing the Burger King trademarks and accepted royalties from the Mason group. This point was stressed on several occasions in the district court. Mason advanced this argument for the first time during the hearing on Mason’s motion for a directed verdict on the Lanham Act claim. The trial judge granted the motion without stating his reasons. Mason had insisted that a directed verdict was mandated because (1) BKC consented to the use of the trademark and (2) BKC did not show likelihood of confusion. Subsequently, BKC amended its complaint to allege common law trademark infringement, unfair competition and breach of contract arising from Mason’s post-termination use of the trademarks. BKC and Mason stipulated that any relief for these claims would be determined by the district court in a bench trial following the second jury trial if any of the franchises were found to have been properly terminated. At the subsequent bench trial, Mason asserted that BKC could not recover for common law trademark infringement because BKC consented to Mason’s continued use. The consent issue was finally resolved adversely to Mason by the district judge in his findings of fact rendered after the bench trial. The court found that rather than acquiescing in the infringement, BKC agreed at the August 1979 hearing that it would allow Mason to continue operating restaurants under the Burger King banner, provided that it retained its right to seek damages upon a later determination of its right to cancel any or all of the remaining franchises. The court found that Mason had “ratified” this proposal, and therefore, was estopped from claiming that BKC had agreed to the trademark use.
The trial court reasonably could infer that Mason acquiesced in BKC’s offer to permit Mason to continue to operate its restaurants upon the condition that BKC retained its right to recover for post-termination trademark infringement. Mason did not object to this approach and acted in a manner consistent with acceptance until the close of the 1980 jury trial. From our review of the record, we cannot say that a finding of estoppel under these circumstances was clearly erroneous.
Because Mason used the Burger King trademarks after the revocation of that right without BKC’s consent, a trademark infringement claim was established so long as the trademarks were employed in a manner that was likely to cause confusion, to cause mistake or to deceive. 15 U.S.C. § 1114(l)(a). Common sense compels the conclusion that a strong risk of consumer confusion arises when a terminated franchisee continues to use the former franchisor’s trademarks. A patron of a restaurant adorned with the Burger King trademarks undoubtedly would believe that BKC endorses the operation of the restaurant. Consumers automatically would associate the trademark user with the registrant and assume that they are affiliated. Any shortcomings of the franchise therefore would be attributed to BKC. Because of this risk, many courts have held that continued trademark use by one whose trademark license has been cancelled satisfies the likelihood of confusion test and constitutes trademark infringement. See, e.g., United States Jaycees v. Philadelphia Jaycees, 639 F.2d 134 (3d Cir.1981); Professional Golfers Ass’n v. Bankers Life & Casualty Co., 514 F.2d 665 (5th Cir.1975); Prompt Electric Supply Co., Inc. v. Allen-Bradley Co., 492 F.Supp. 344, 349 (E.D.N.Y.1980); National Board of YWCA v. YWCA of Charleston, S.C., 335 F.Supp. 615, 628-629 (D.S.C.1971). BKC proved that Mason employed the Burger King trademarks after its franchise agreements were properly cancelled. This use was without BKC’s consent and was likely to cause confusion. Accordingly, we hold that the district court erred in directing a verdict against BKC on its Lanham Act complaint and remand for a determination of the appropriate relief in conformity with 15 U.S.C. § 1117.
C. Damages for Breach of the Franchise Agreements
As pointed out earlier, the district court concluded that Mason breached the provisions of the franchise agreements which prohibited the post-termination use of the Burger King trademarks. Although BKC also argued that Mason was guilty of common law trademark infringement and unfair competition through the continued use of the trademark, the district court made no findings on those claims. Then, after ruling that BKC had not shown certain consequential damages from the post-termination use of the trademarks, the court awarded BKC the profits that Mason earned at the properly terminated franchises as “compensatory damages” for the breach. BKC complains that the trial court should have allowed consequential damages; Mason, on the other hand, alleges that the trial court erred in ordering it to disgorge the profits.
BKC’s assertions need not detain us long. It sought damages based on its contention that Mason’s continued operation damaged its reputation and thwarted its plans to expand in the areas in which Mason franchises were located. After considering BKC’s evidence in support of those damages
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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.
UNITED STATES ex rel. DE VITA v. UHL, District Director of Immigration.
No. 42.
Circuit Court of Appeals, Second Circuit.
Nov. 7, 1938.
Emily Marx, of New York City, for appellant.
Lamar Hardy, U. S. Atty., of New York City (Samuel Brodsky, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for appellee.
Before MANTON, AUGUSTUS N. FIAND, and CHASE, Circuit Judges.
CHASE, Circuit Judge.
The relator-appellant is an alien who was lawfully admitted to this country for permanent residence in 1913. He lived here until March, 1921, when he went abroad for a temporary visit. His visit was prolonged until October, 1927, when he re-entered the United States surreptitiously without either an immigration visa or a re-entry permit. He was arrested on November 9, 1936 on a warrant charging that at the time of his entry in 1927 he was not in the possession of an unexpired immigration visa. After due hearings a warrant of deportation was issued. He surrendered and then sued out a writ of habeas corpus. The writ was dismissed upon hearing and he has appealed.
His contention is that, having prior to his surreptitious entry acquired a domicile here which he had never relinquished and to which he was returning in 1927, he could enter of right without an immigration visa. Consequently he did not violate the provisions of the Immigration Act of 1924, 8 U.S.C.A. -§§ 145, 146, 166, 167, 179, 201 et seq., and at most entered only contrary to the Immigration Act of 1917, 39 Stat. 874, in that he did not present himself for inspection. The latter violation of the law cannot be the basis of deportation now since the period of limitation has expired.
We will assume that the alien was returning in 1927 to an unrelinquished domicile in this country but, even ^o, he could not enter lawfully unless he had either a re-entry permit or an unexpired immigration visa. United States v. Trudell, 284 U. S. 279, 52 S.Ct. 143, 76 L.Ed. 291; Id., 2 Cir., 49 F.2d 730. Despite the fact of his previous lawful residence here, he was an alien immigrant within the definition of that term in Sec. 3 of the Immigration Act of 1924, 8 U.S.C.A. § 203. .Karnuth v. United States, 279 U.S. 231, 49 S.Ct. 274, 73 L.Ed. 677. He has failed to show that he was within any of the exceptions dispensing with his neefl for an immigration visa. It is immaterial that he might, perhaps, have secured a re-entry permit which would have done away with the need of an immigration visa for he had no re-entry permit. Sec. 13(b) of the 1924 Act, 8 U.S. C.A. § 213(b), upon which he relies merely permits returning immigrants who have complied with the prescribed regulations to enter without an immigration visa but this relator had not so complied.
That he admittedly violated the 1917 Act is no evidence, of course, that he did not violate the provisions of the 1924 Act also and the record shows clearly that he did. Having entered contrary to the last mentioned statute without an unexpired immigration visa, he was subject to deportation at any time. 8 U.S.C.A. § 214. Deportation on this ground is not barred by the lapse of time. United States ex rel. Giuriciu v. Day, 2 Cir., 54 F.2d 362. That is the ground on which he was ordered deported and, accordingly, it was not error to dismiss the writ.
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:
|
sc_issue_9
|
06
|
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.
HUFFMAN et al. v. PURSUE, LTD.
No. 73-296.
Argued December 10, 1974
Decided March 18, 1975
James J. Clancy argued the cause for appellants. With him on the brief were Lawrence S. Huffman pro se, Richard M. Bertsch, and Albert S. Johnston III.
Gilbert H. Deitch argued the cause for appellee. With him on the brief was Robert Eugene Smith
Barbara Scott and James Bouras filed a brief for the Motion Picture Association of America, Inc., as amicus curiae urging affirmance.
Me. Justice Rehnquist
delivered the opinion of the Court.
This case requires that we decide whether our decision in Younger v. Harris, 401 U. S. 37 (1971), bars a federal district court from intervening in a state civil proceeding such as this, when the proceeding is based on a state statute believed by the district court to be unconstitutional. A similar issue was raised in Gibson v. Berry hill, 411 U. S. 564 (1973), but we were not required to decide it because there the enjoined state proceedings were before a biased administrative body which could not provide a necessary predicate for a Younger dismissal, that is, “the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved.” Id., at 577. Similarly, in Speight v. Slaton, 415 U. S. 333 (1974), we noted probable jurisdiction to consider the applicability of Younger to noncriminal cases, but remanded for reconsideration in light of a subsequent decision of the Georgia Supreme Court which struck down the challenged statute on similar facts. Today we do reach the issue, and conclude that in the circumstances presented here the principles of Younger are applicable even though the state proceeding is civil in nature.
I
Appellants are the sheriff and prosecuting attorney of Allen County, Ohio. This case arises from their efforts to close the Cinema I Theatre, in Lima, Ohio. Under the management of both its current tenant, ap-pellee Pursue, Ltd., and appellee’s predecessor, William Dakota, the Cinema I has specialized in the display of films which may fairly be characterized as pornographic, and which in numerous instances have been adjudged obscene after adversary hearings.
Appellants sought to invoke the Ohio public nuisance statute, Ohio Rev. Code Ann. § 3767.01 et seq. (1971), against appellee. Section 3767.01 (C) provides that a place which exhibits obscene films is a nuisance, while § 3767.06 requires closure for up to a year of any place determined to be a nuisance. The statute also provides for preliminary injunctions pending final determination of status as a nuisance, for sale of all personal property used in conducting the nuisance, and for release from a closure order upon satisfaction of certain conditions (including a showing that the nuisance will not be re-established).
Appellants instituted a nuisance proceeding in the Court of Common Pleas of Allen County against appel-lee’s predecessor, William Dakota. During the course of the somewhat involved legal proceedings which followed, the Court of Common Pleas reviewed 16 movies which had been shown at the theater. The court rendered a judgment that Dakota had engaged in a course of conduct of displaying obscene movies at the Cinema I, and that the theater was therefore to be closed, pursuant to Ohio Rev. Code Ann. § 3767.06 (1971), “for any purpose for a period of one year unless sooner released by Order of [the] Court pursuant to defendant-owners fulfilling the requirements provided in Section 3767.04 of the Revised Code of Ohio.” The judgment also provided for the seizure and sale of personal property used in the theater’s operations.
Appellee, Pursue, Ltd., had succeeded to William Dakota’s leasehold interest in the Cinema I prior to entry of the state-court judgment. Rather than appealing that judgment within the Ohio court system, it immediately filed suit in the United States District Court for the Northern District of Ohio. The complaint was based on 42 U. S. C. § 1983 and alleged that appellants’ use of Ohio’s nuisance statute constituted a deprivation of constitutional rights under the color of state law. It sought injunctive relief and a declaratory judgment that the statute was unconstitutional and unenforceable. Since the complaint was directed against the constitutionality of a state statute, a three-judge court was convened. The District Court concluded that while the statute was not vague, it did constitute an overly broad prior restraint on First Amendment rights insofar as it permanently or temporarily prevented the showing of films which had not been adjudged obscene in prior adversary hearings. Cf. Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). Fashioning its remedy to match the perceived constitutional defect, the court permanently enjoined the execution of that portion of the state court’s judgment that closed the Cinema I to films which had not been adjudged obscene. The judgment and opinion of the District Court give no indication that it considered whether it should have stayed its hand in deference to the principles of federalism which find expression in Younger v. Harris, 401 U. S. 37 (1971).
On this appeal, appellants raise the Younger problem, as well as a variety of constitutional and statutory issues. We need consider only the applicability of Younger.
II
Younger and its companion cases considered the propriety of federal-court intervention in pending state criminal prosecutions. The issue was not a novel one, and the Court relied heavily on Fenner v. Boykin, 271 U. S. 240 (1926), and subsequent cases which endorsed its holding that federal injunctions against the state criminal law enforcement process could be issued only “under extraordinary circumstances where the danger of irreparable loss is both great and immediate.” Id., at 243. Younger itself involved a challenge to a prosecution under the California Criminal Syndicalism Act, which allegedly was unconstitutional on its face. In an opinion for the Court by Mr. Justice Black, we observed that “it has been perfectly natural for our cases to repeat time and time again that the normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions.” 401 U. S., at 45. We noted that not only had a congressional statute manifested an interest in permitting state courts to try state cases, but that there had also long existed a strong judicial policy against federal interference with state criminal proceedings. We recognized that this judicial policy is based in part on the traditional doctrine that a court of equity should stay its hand when a movant has an adequate remedy at law, and that it “particularly should not act to restrain a criminal prosecution.” Id,, at 43. But we went on to explain that this doctrine “is reinforced by an even more vital consideration,” an aspect of federalism which we described as
“the notion of 'comity/ that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” Id., at 44.
Central to Younger was the recognition that ours is a system in which
“the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.” Ibid.
We reaffirmed the requirement of Fenner v. Boykin that extraordinary circumstances must be present to justify federal injunctive relief against state criminal prosecutions. Echoing Fenner, we stated that a movant must show not merely the “irreparable injury” which is a normal prerequisite for an injunction, but also must show that the injury would be “ ‘great and immediate.’ ” 401 U. S., at 46. The opinion also suggested that only in extraordinary situations could the necessary injury be shown if the prosecution was conducted in good faith and without an intent to harass. Id., at 54. It was particularly noted that the “cost, anxiety, and inconvenience of having to defend against a single criminal prosecution” was not the type of injury that could justify federal interference. Id., at 46.
In Younger we also considered whether the policy of noninterference had been modified by our decision in Dombrowski v. Pfister, 380 U. S. 479 (1965), at least insofar as First Amendment attacks on statutes thought to be facially invalid are concerned. We observed that the arrests and threatened prosecutions in Dombrowski were alleged to have been in bad faith and employed as a means of harassing the federal-court plaintiffs. That case was thus within the traditional narrow exceptions to the doctrine that federal courts should not interfere with state prosecutions. We acknowledged in Younger that it is “ ‘of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it/ ” and that such a situation might justify federal intervention, 401 U. S., at 53-54. But we unequivocally held that facial invalidity of a statute is not itself an exceptional circumstance justifying federal interference with state criminal proceedings.
In Steffel v. Thompson, 415 U. S. 452 (1974), we considered whether Younger required exceptional circumstances to justify federal declaratory relief against state criminal statutes when a prosecution was not pending. In concluding that it did not, we had occasion to identify more specifically some of the means by which federal interference with state proceedings might violate the principles of comity and federalism on which Younger is based. We noted that “the relevant principles of equity, comity, and federalism 'have little force in the absence of a pending state proceeding.' ” Id., at 462. We explained:
“When no state criminal proceeding is pending at the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles.” Ibid.
It is against this background that we consider the propriety of federal-court intervention with the Ohio nuisance proceeding at issue in this case.
Ill
The seriousness of federal judicial interference with state civil functions has long been recognized by this Court. We have consistently required that when federal courts are confronted with requests for such relief, they should abide by standards of restraint that go well beyond those of private equity jurisprudence. For example, Massachusetts State Grange v. Benton, 272 U. S. 525 (1926), involved an effort to enjoin the operation of a state daylight savings act. Writing for the Court, Mr. Justice Holmes cited Fenner v. Boykin, supra, and emphasized a rule that “should be very strictly observed,” 272 U. S., at 529, “that no injunction ought to issue against officers of a State clothed with authority to enforce the law in question, unless in a case reasonably free from doubt and when necessary to prevent great and irreparable injury.” Id., at 527.
Although Mr. Justice Holmes was confronted with a bill seeking an injunction against state executive officers, rather than against state judicial proceedings, we think that the relevant considerations of federalism are of no less weight in the latter setting. If anything, they counsel more heavily toward federal restraint, since interference with a state judicial proceeding prevents the state not only from effectuating its substantive policies, but also from continuing to perform the separate function of providing a forum competent to vindicate any constitutional objections interposed against those policies. Such interference also results in duplicative legal proceedings, and can readily be interpreted “as reflecting negatively upon the state court's ability to enforce constitutional principles.” Cf. Stefiel v. Thompson, supra, at 462.
The component of Younger which rests upon the threat to our federal system is thus applicable to a civil proceeding such as this quite as much as it is to a criminal proceeding. Younger, however, also rests upon the traditional reluctance of courts of equity, even within a unitary system, to interfere with a criminal prosecution. Strictly speaking, this element of Younger is not available to mandate federal restraint in civil cases. But whatever may be the weight attached to this factor in civil litigation involving private parties, we deal here with a state proceeding which in important respects is more akin to a criminal prosecution than are most civil cases. The State is a party to the Court of Common Pleas proceeding, and the proceeding is both in aid of and closely related to criminal statutes which prohibit the dissemination of obscene materials. Thus, an offense to the State’s interest in the nuisance litigation is likely to be every bit as great as it would be were this a criminal proceeding. Cf. Younger v. Harris, 401 U. S., at 55 n. 2 (Stewart, J., concurring). Similarly, while in this case the District Court’s injunction has not directly disrupted Ohio’s criminal justice system, it has disrupted that State’s efforts to protect the very interests which underlie its criminal laws and to obtain compliance with precisely the standards which are embodied in its criminal laws.
IV
In spite of the critical similarities between a criminal prosecution and Ohio nuisance proceedings, appellee nonetheless urges that there is also a critical difference between the two which should cause us to limit Younger to criminal proceedings. This difference, says appellee, is that whereas a state-court criminal defendant may, after exhaustion of his state remedies, present his constitutional claims to the federal courts through habeas corpus, no analogous remedy is available to one, like appellee, whose constitutional rights may have been infringed in a state proceeding which cannot result in custodial detention or other criminal sanction.
A civil litigant may, of course, seek review in this Court of any federal claim properly asserted in and rejected by state courts. Moreover, where a final decision of a state court has sustained the validity of a state statute challenged on federal constitutional grounds, an appeal to this Court lies as a matter of right. 28 U. S. C. § 1257 (2). Thus, appellee in this case was assured of eventual consideration of its claim by this Court. But quite apart from appellee’s right to appeal had it remained in state court, we conclude that it should not be permitted the luxury of federal litigation of issues presented by ongoing state proceedings, a luxury which, as we have already explained, is quite costly in terms of the interests which Younger seeks to protect.
Appellee's argument, that because there may be no civil counterpart to federal habeas it should have contemporaneous access to a federal forum for its federal claim, apparently depends on the unarticulated major premise that every litigant who asserts a federal claim is entitled to have it decided on the merits by a federal, rather than a state, court. We need not consider the validity of this premise in order to reject the result which appellee seeks. Even assuming, arguendo, that litigants are entitled to a federal forum for the resolution of all federal issues, that entitlement is most appropriately asserted by a state litigant when he seeks to relitigate a federal issue adversely determined in completed state court proceedings. We do not understand why the federal forum must be available prior to completion of the state proceedings in which the federal issue arises, and the considerations canvassed in Younger militate against such a result.
The issue of whether federal courts should be able to interfere with ongoing state proceedings is quite distinct and separate from the issue of whether litigants are entitled to subsequent federal review of state-court dispositions of federal questions. Younger turned on considerations of comity and federalism peculiar to the fact that state proceedings were pending; it did not turn on the fact that in any event a criminal defendant could eventually have obtained federal habeas consideration of his federal claims. The propriety of federal-court interference with an Ohio nuisance proceeding must likewise be controlled by application of those same considerations of comity and federalism.
Informed by the relevant principles of comity and federalism, at least three Courts of Appeals have applied Younger when the pending state proceedings were civil in nature. See Duke v. Texas, 477 F. 2d 244 (CA5 1973); Lynch v. Snepp, 472 F. 2d 769 (CA4 1973); Cousins v. Wigoda, 463 F. 2d 603 (CA7 1972). For the purposes of the case before us, however, we need make no general pronouncements upon the applicability of Younger to all civil litigation. It suffices to say that for the reasons heretofore set out, we conclude that the District Court should have applied the tests laid down in Younger in determining whether to proceed to the merits of appellee’s prayer for relief against this Ohio civil nuisance proceeding.
Appellee contends that even if Younger is applicable to civil proceedings of this sort, it nonetheless does not govern this case because at the time the District Court acted there was no longer a “pending state court proceeding” as that term is üsed in Younger. Younger and subsequent cases such as Steffel have used the term “pending proceeding” to distinguish state proceedings which have already commenced from those which are merely incipient or threatened. Here, of course, the state proceeding had begun long before appellee sought intervention by the District Court. But appellee’s point, we take it, is not that the state proceeding had not begun, but that it had ended by the time its District Court complaint was filed.
Appellee apparently relies on the facts that the Allen County Court of Common Pleas had already issued its judgment and permanent injunction when this action was filed, and that no appeal from that judgment has ever been taken to Ohio’s appellate courts. As a matter of state procedure, the judgment presumably became final, in the sense of being nonappealable, at some point after the District Court filing, possibly prior to entry of the District Court’s own judgment, but surely after the single judge stayed the state court’s judgment. We need not, however, engage in such inquiry. For regardless of when the Court of Common Pleas’ judgment became final, we believe that a necessary concomitant of Younger is that a party in appellee’s posture must exhaust his state appellate remedies before seeking relief in the District Court, unless he can bring himself within one of the exceptions specified in Younger.
Virtually all of the evils at which Younger is directed would inhere in federal intervention prior to completion of state appellate proceedings, just as surely as they would if such intervention occurred at or before trial. Intervention at the later stage is if anything more highly duplicative, since an entire trial has already taken place, and it is also a direct aspersion on the capabilities and good faith of state appellate courts. Nor, in these state-initiated nuisance proceedings, is federal intervention at the appellate stage any the less a disruption of the State’s efforts to protect interests which it deems important. Indeed, it is likely to be even more disruptive and offensive because the State has already won a nisi prius determination that its valid policies are being violated in a fashion which justifies judicial abatement.
Federal post-trial intervention, in a fashion designed to annul the results of a state trial, also deprives the States of a function which quite legitimately is left to them, that of overseeing trial court dispositions of constitutional issues which arise in civil litigation over which they have jurisdiction. We think this consideration to be of some importance because it is typically a judicial system’s appellate courts which are by their nature a litigant’s most appropriate forum for the resolution of constitutional contentions. Especially is this true when, as here, the constitutional issue involves a statute which is capable of judicial narrowing. In short, we do not believe that a State’s judicial system would be fairly accorded the opportunity to resolve federal issues arising in its courts if a federal district court were permitted to substitute itself for the State’s appellate courts. We therefore hold that Younger standards must be met to justify federal intervention in a state judicial proceeding as to which a losing litigant has not exhausted his state appellate remedies.
At the time appellee filed its action in the United States District Court, it had available the remedy of appeal to the Ohio appellate courts. Appellee nonetheless contends that exhaustion of state appellate remedies should not be required because an appeal would have been “futile.” This claim is based on the decision of the Supreme Court of Ohio in State ex rel. Keating v. A Motion Picture Film Entitled “Vixen,” 27 Ohio St. 2d 278, 272 N. E. 2d 137 (1971), which had been rendered at the time of the proceedings in the Court of Common Pleas. While Keating did uphold the use of a nuisance statute against a film which ran afoul of Ohio’s statutory definition of obscenity, it had absolutely nothing to say with respect to appellee’s principal contention here, that of whether the First and Fourteenth Amendments prohibit a blanket injunction against a showing of all films, including those which have not been adjudged obscene in adversary proceedings. We therefore have difficulty understanding appellee’s belief that an appeal was doomed to failure.
More importantly, we are of the opinion that the considerations of comity and federalism which underlie Younger permit no truncation of the exhaustion requirement merely because the losing party in the state court of general jurisdiction believes that his chances of success on appeal are not auspicious. Appellee obviously believes itself possessed of a viable federal claim, else it would not so assiduously seek to litigate in the District Court. Yet, Art. VI of the United States Constitution declares that “the Judges in every State shall be bound” by the Federal Constitution, laws, and treaties. Appel-lee is in truth urging us to base a rule on the assumption that state judges will not be faithful to their constitutional responsibilities. This we refuse to do. The District Court should not have entertained this action, seeking preappeal interference with a state judicial proceeding, unless appellee established that early intervention was justified under one of the exceptions recognized in Younger.
VI
Younger, and its civil counterpart which we apply today, do of course allow intervention in those cases where the District Court properly finds that the state proceeding is motivated by a desire to harass or is conducted in bad faith, or where the challenged statute is “ 'flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it/ ” As we have noted, the District Court in this case did not rule on the Younger issue, and thus apparently has not considered whether its intervention was justified by one of these narrow exceptions. Even if the District Court’s opinion can be interpreted as a sub silentio determination that the case fits within the exception for statutes which are “ 'flagrantly and patently violative of express constitutional prohibitions/ ” such a characterization of the statute is not possible after the subsequent decision of the Supreme Court of Ohio in State ex rel. Ewing v. A Motion Picture Film Entitled “Without a Stitch,” 37 Ohio St. 2d 95, 307 N. E. 2d 911 (1974). That case narrowly construed the Ohio nuisance statute, with a view to avoiding the constitutional difficulties which concerned the District Court.
We therefore think that this case is appropriate for remand so that the District Court may consider whether irreparable injury can be shown in light of “Without a Stitch,” and if so, whether that injury is of such a nature that the District Court may assume jurisdiction under an exception to the policy against federal judicial interference with state court proceedings of this kind. The judgment of the District Court is vacated and the cause is remanded for further proceedings consistent with this opinion.
It is so ordered.
Other recent cases raising issues of the applicability of Younger in the noncriminal context include Mitchum v. Foster, 407 U. S. 225 (1972), and Sosna v. Iowa, 419 U. S. 393 (1975). In Mitchum, a 42 U. S. C. § 1983 action to enjoin a pending nuisance proceeding was remanded for further proceedings; the District Court had denied relief solely on the basis of the anti-injunction, statute, 28 U. S. C. § 2283, see n. 15, infra. Our opinion specified that we were in no way questioning or qualifying “the principles of equity, comity, and federalism” canvassed in Younger. 407 U. S., at 243.
In Sosna we directed the parties to address the Younger issue, 415 U. S. 911 (1974), reflecting our concern as to whether the constitutional merits should be reached in light of Sosna’s failure to appeal the state trial court’s adverse ruling through the state appellate network. Because both parties urged that we proceed to the merits, we did not reach the issue. Sosna, 419 U. S., at 396-397, n. 3.
See Miller v. California, 413 U. S. 15, 18-19, n. 2 (1973), which discusses the distinction between “pornography” and “obscenity.”
Ҥ 3767.01 Definitions.
“As used in all sections of the Revised Code relating to nuisances:
“(C) ‘Nuisance’ means that which is defined and declared by statutes to be such and also means any place in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists, or any place, in or upon which lewd, indecent, lascivious, or obscene films or plate negatives, film or plate positives, films designed to be projected on a screen for exhibition, films or glass slides either in negative or positive form designed for exhibition by projection on a screen, are photographed, manufactured, developed, screened, exhibited, or otherwise prepared or shown, and the personal property and contents used in conducting and maintaining any such place for any such purpose. This chapter shall not affect any newspaper, magazine, or other publication entered as second class matter by the post-office department.”
As interpreted by the Ohio Supreme Court, State ex rel. Keating v. A Motion Picture Film Entitled “Vixen,” 27 Ohio St. 2d 278, 272 N. E. 2d 137 (1971), the determination of obscenity is to be based on the definition contained in Ohio’s criminal statutes, Ohio Rev. Code Ann. §2905.34 (Supp. 1972), now §2907.01 (1975). On this Court’s remand of Keating, 413 U. S. 905 (1973), following our decision in Miller v. California, swpra, the Ohio Supreme Court concluded that the statute’s definition comported with Miller’s, constitutional standards. 35 Ohio St. 2d 215, 301 N. E. 2d 880 (1973).
Ҥ 3767.06 Content of judgment and order.
“If the existence of a nuisance is admitted or established in an action as provided in sections 3767.01 to 3767.11, inclusive, of the Revised Code, or in a criminal proceeding, an order of abatement snau ue entered as a part of the judgment in the case, which order shall direct the removal from the place of all personal property and contents used in conducting the nuisance, and not already released under authority of the court as provided in section 3767.04 of the Revised Code, and shall direct the sale of such thereof as belong to the defendants notified or appearing, in the manner provided for the sale of chattels under execution. Such order shall also require the renewal for one year of any bond furnished by the owner of the real property, as provided in section 3767.04 of the Revised Code, or, if not so furnished shall continue for one year any closing order issued at the time of granting the temporary injunction, or, if no such closing order was then issued, shall include an order directing the effectual closing of the place against its use for any purpose, and keeping it closed for a period of one year unless sooner released. The owner of any place closed and not released under bond may then appear and obtain such release in the manner and upon fulfilling the requirements provided in section 3767.04 of the Revised Code. The release of the property under this section shall not release it from any judgment, lien, penalty, or liability to which it may be subject. Owners of unsold personal property and contents so seized must appear and claim the same within ten days after such order of abatement is made and prove innocence, to the satisfaction of the court, of any knowledge of said use thereof and that with reasonable care and diligence they could not have known thereof. Every defendant in the action is presumed to have had knowledge of the general reputation of the place. If such innocence is established, such unsold personal property and contents shall be delivered to the owner, otherwise it shall be sold as provided in this section. For removing and selling the personal property and contents, the officer shall be entitled to charge and receive the same fees as he would for levying upon and selling like property on execution; and for closing the place and keeping it closed, a reasonable sum shall be allowed by the court.”
Ohio Rev. Code Ann. §3767.04 (1971).
§3767.06 (1971), supra, n. 5.
Ibid. The referenced portion of §3767.04 (1971) provides:
“The owner of any real or personal property closed or restrained or to be closed or restrained may appear between the filing of the petition and the hearing on the application for a permanent injunction and, upon payment of all costs incurred and upon the filing of a bond by the owner of the real property with sureties to be approved by the clerk in the full value of the property to be ascertained by the court, or, in vacation, by the judge, conditioned that such owner will immediately abate the nuisance and prevent the same from being established or kept until the decision of the court or judge is rendered on the application for a permanent injunction, then the court, or judge in vacation, if satisfied of the good faith of the owner of the real property and of innocence on the part of any owner of the personal property of any knowledge of the use of such personal property as a nuisance and that, with reasonable care and diligence, such owner could not have known thereof, shall deliver such real or personal property, or both, to the respective owners thereof, and discharge or refrain from issuing at the time of the hearing on the application for the temporary injunction any order closing such real property or restraining the removal or interference with such personal property. The release of any real or personal property, under this section, shall not release it from any judgment, lien, penalty, or liability to which it may be subjected.”
State ex rel. Huffman v. Dakota, No. 72 CIV 0326 (Ct. Com. Pleas, Allen County, Ohio, Nov. 30, 1972).
Because the state-court judgment was primarily directed against a property interest to which Pursue had succeeded, the District Court concluded that Pursue had standing to challenge the nuisance statute. Similarly, counsel for Pursue conceded at oral argument that Pursue could have appealed the judgment of the Court of Common Pleas within the Ohio court system.
Pending the convening of the three-judge court, a single judge of the Northern District of Ohio stayed the judgment of the Court of Common Pleas, except insofar as that judgment applied to films which had been declared obscene in a prior adversary hearing. The stay order was entered on the day that the action was filed, one day after entry of judgment by the Court of Common Pleas.
No. C 72-432 (ND Ohio, Apr. 20, 1973).
Samuels v. Mackell, 401 U. S. 66 (1971); Boyle v. Landry, 401 U. S. 77 (1971); Perez v. Ledesma, 401 U. S. 82 (1971); Dyson v. Stein, 401 U. S. 200 (1971); Byrne v. Karalexis, 401 U. S. 216 (1971).
See, e. g., Spielman Motor Sales Co. v. Dodge, 295 U. S. 89 (1935); Beal v. Missouri P. R. Co., 312 U. S. 45 (1941); Watson v. Buck, 313 U. S. 387 (1941); Williams v. Miller, 317 U. S. 599 (1942); Douglas v. City of Jeannette, 319 U. S. 157 (1943).
Title 28 U. S. C. §2283 provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” We held in Mitchum v. Foster, 407 U. S. 225 (1972), that 42 U. S. C. § 1983 contained an expressly authorized congressional exception. Thus, while the statute does express the general congressional attitude which was recognized in Younger, it does not control the case before us today.
While these standards governing federal interference were largely shaped in the context of prayers for federal injunctions against state proceedings, it is clear that with respect to pending prosecutions the same standards apply to interference in the form of declaratory relief. See Samuels v. Mackell, 401 U. S. 66 (1971).
The relation of a proceeding which is nominally “civil” to a State’s criminal laws has been relied on by lower federal courts in resolving Younger problems. See MTM, Inc. v. Baxley, 365 F. Supp. 1182 (ND Ala. 1973), probable jurisdiction noted, 415 U. S. 975 (1974); Palaio v. McAulifie, 466 F. 2d 1230 (CA5 1972).
We in no way intend to suggest that there is a right of access to a federal forum for the disposition of aE federal issues, or that the normal rules of res judicata and judicial estoppel do not operate to bar relitigation in actions under 42 U; S. C. § 1983 of federal issues arising in state court proceedings. Cf. Preiser v. Rodriguez, 411 U. S. 475, 497 (1973). Our assumption is made solely as a means of disposing of appellee’s contentions without confronting issues which have not been briefed or argued in this case.
It would
Question: What is the issue of the decision?
01. comity: civil rights
02. comity: criminal procedure
03. comity: First Amendment
04. comity: habeas corpus
05. comity: military
06. comity: obscenity
07. comity: privacy
08. comity: miscellaneous
09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals
10. assessment of costs or damages: as part of a court order
11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules
12. judicial review of administrative agency's or administrative official's actions and procedures
13. mootness (cf. standing to sue: live dispute)
14. venue
15. no merits: writ improvidently granted
16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit
17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals)
18. no merits: adequate non-federal grounds for decision
19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law)
20. no merits: miscellaneous
21. standing to sue: adversary parties
22. standing to sue: direct injury
23. standing to sue: legal injury
24. standing to sue: personal injury
25. standing to sue: justiciable question
26. standing to sue: live dispute
27. standing to sue: parens patriae standing
28. standing to sue: statutory standing
29. standing to sue: private or implied cause of action
30. standing to sue: taxpayer's suit
31. standing to sue: miscellaneous
32. judicial administration: jurisdiction or authority of federal district courts or territorial courts
33. judicial administration: jurisdiction or authority of federal courts of appeals
34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753)
35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court
36. judicial administration: jurisdiction or authority of the Court of Claims
37. judicial administration: Supreme Court's original jurisdiction
38. judicial administration: review of non-final order
39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision)
40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question)
41. judicial administration: ancillary or pendent jurisdiction
42. judicial administration: extraordinary relief (e.g., mandamus, injunction)
43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal)
44. judicial administration: resolution of circuit conflict, or conflict between or among other courts
45. judicial administration: objection to reason for denial of certiorari or appeal
46. judicial administration: collateral estoppel or res judicata
47. judicial administration: interpleader
48. judicial administration: untimely filing
49. judicial administration: Act of State doctrine
50. judicial administration: miscellaneous
51. Supreme Court's certiorari, writ of error, or appeals jurisdiction
52. miscellaneous judicial power, especially diversity jurisdiction
Answer:
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sc_casesource
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025
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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.
McNALLY v. UNITED STATES
No. 86-234.
Argued April 22, 1987
Decided June 24, 1987
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, Blackmun, Powell, and Scalia, JJ., joined. Stevens, J., filed a dissenting opinion, in Parts I, II, and III of which O’Connor, J., joined, post, p. 362.
Carter G. Phillips argued the cause for petitioners in both cases. With him on the briefs for petitioner in No. 86-286 were James A. Shuffett, William E. Johnson, and Benjamin W. Heineman, Jr. Frank E. Haddad, Jr., filed briefs for petitioner in No. 86-234.
Deputy Solicitor General Ayer argued the cause for the United States in both cases. With him on the brief were Solicitor General Fried, Assistant Attorney General Weld, Christopher J. Wright, and Sara Criscitelli.
Together with No. 86-286, Gray v. United States, also on certiorari to the same court.
Justice White
delivered the opinion of the Court.
This action involves the prosecution of petitioner Gray, a former public official of the Commonwealth of Kentucky, and petitioner McNally, a private individual, for alleged violation of the federal mail fraud statute, 18 U. S. C. § 1341. The prosecution’s principal theory of the case, which was accepted by the courts below, was that petitioners’ participation in a self-dealing patronage scheme defrauded the citizens and government of Kentucky of certain “intangible rights,” such as the right to have the Commonwealth’s affairs conducted honestly. We must consider whether the jury charge permitted a conviction for conduct not within the scope of the mail fraud statute.
We accept for the sake of argument the Government’s view of the evidence, as follows. Petitioners and a third individual, Howard P. “Sonny” Hunt, were politically active in the Democratic Party in the Commonwealth of Kentucky during the 1970’s. After Democrat Julian Carroll was elected Governor of Kentucky in 1974, Hunt was made chairman of the state Democratic Party and given de facto control over selecting the insurance agencies from which the Commonwealth would purchase its policies. In 1975, the Wombwell Insurance Company of Lexington, Kentucky (Wombwell), which since 1971 had acted as the Commonwealth’s agent for securing a workmen’s compensation policy, agreed with Hunt that in exchange for a continued agency relationship it would share any resulting commissions in excess of $50,000 a year with other insurance agencies specified by him. The commissions in question were paid to Wombwell by the large insurance companies from which it secured coverage for the Commonwealth.
From 1975 to 1979, Wombwell tunneled $851,000 in commissions to 21 separate insurance agencies designated by Hunt. Among the recipients of these payments was Seton Investments, Inc. (Seton), a company controlled by Hunt and petitioner Gray and nominally owned and operated by petitioner McNally.
Gray served as Secretary of Public Protection and Regulation from 1976 to 1978 and also as Secretary of the Governor’s Cabinet from 1977 to 1979. Prior to his 1976 appointment, he and Hunt established Seton for the sole purpose of sharing in the commissions distributed by Wombwell. Wombwell paid some $200,000 to Seton between 1975 and 1979, and the money was used to benefit Gray and Hunt. Pursuant to Hunt’s direction, Wombwell also made excess commission payments to the Snodgrass Insurance Agency, which in turn gave the money to McNally.
On account of the foregoing activities, Hunt was charged with and pleaded guilty to mail and tax fraud and was sentenced to three years’ imprisonment. Petitioners were charged with one count of conspiracy and seven counts of mail fraud, six of which were dismissed before trial. The remaining mail fraud count was based on the mailing of a commission check to Wombwell by the insurance company from which it had secured coverage for the State. This count alleged that petitioners had devised a scheme (1) to defraud the citizens and government of Kentucky of their right to have the Commonwealth’s affairs conducted honestly, and (2) to obtain, directly and indirectly, money and other things of value by means of false pretenses and the concealment of material facts. The conspiracy count alleged that petitioners had (1) conspired to violate the mail fraud statute through the scheme just described and (2) conspired to defraud the United States by obstructing the collection of federal taxes.
After informing the jury of the charges in the indictment, the District Court instructed that the scheme to defraud the citizens of Kentucky and to obtain money by false pretenses and concealment could be made out by either of two sets of findings: (1) that Hunt had de facto control over the award of the workmen’s compensation insurance contract to Womb-well from 1975 to 1979; that he directed payments of commissions from this contract to Seton, an entity in which he had an ownership interest, without disclosing that interest to persons in state government whose actions or deliberations could have been affected by the disclosure; and that petitioners, or either of them, aided and abetted Hunt in that scheme; or (2) that Gray, in either of his appointed positions, had supervisory authority regarding the Commonwealth’s workmen’s compensation insurance at a time when Seton received commissions; that Gray had an ownership interest in Seton and did not disclose that interest to persons in state government whose actions or deliberations could have been affected by that disclosure; and that McNally aided and abetted Gray (the latter finding going only to McNally’s guilt).
The jury convicted petitioners on both the mail fraud and conspiracy counts, and the Court of Appeals affirmed the convictions. 790 F. 2d 1290 (CA6 1986). In affirming the substantive mail fraud conviction, the court relied on a line of decisions from the Courts of Appeals holding that the mail fraud statute proscribes schemes to defraud citizens of their intangible rights to honest and impartial government. See, e. g., United States v. Mandel, 591 F. 2d 1347 (CA4 1979), aff’d in relevant part, 602 F. 2d 653 (en banc), cert. denied, 445 U. S. 961 (1980). Under these cases, a public official owes a fiduciary duty to the public, and misuse of his office for private gain is a fraud. Also, an individual without formal office may be held to be a public fiduciary if others rely on him “‘because of a special relationship in the government’ ” and he in fact makes governmental decisions. 790 F. 2d, at 1296 (quoting United States v. Margiotta, 688 F. 2d 108, 122 (CA2 1982), cert. denied, 461 U. S. 913 (1983)). The Court of Appeals held that Hunt was such a fiduciary because he “substantially participated in governmental affairs and exercised significant, if not exclusive, control over awarding the workmen’s compensation insurance contract to Wombwell and the payment of monetary kickbacks to Seton.” 790 F. 2d, at 1296.
We granted certiorari, 479 U. S. 1005 (1986), and now reverse.
The mail fraud statute clearly protects property rights, but does not refer to the intangible right of the citizenry to good government. As first enacted in 1872, as part of a recodification of the postal laws, the statute contained a general proscription against using the mails to initiate correspondence in furtherance of “any scheme or artifice to defraud.” The sponsor of the recodification stated, in apparent reference to the antifraud provision, that measures were needed “to prevent the frauds which are mostly gotten up in the large cities ... by thieves, forgers, and rapscallions generally, for the purpose of deceiving and fleecing the innocent people in the country.” Insofar as the sparse legislative history reveals anything, it indicates that the original impetus behind the mail fraud statute was to protect the people from schemes to deprive them of their money or property.
Durland v. United States, 161 U. S. 306 (1896), the first case in which this Court construed the meaning of the phrase “any scheme or artifice to defraud,” held that the phrase is to be interpreted broadly insofar as property rights are concerned, but did not indicate that the statute had a more extensive reach. The Court rejected the argument that “the statute reaches only such cases as, at common law, would come within the definition of ‘false pretences/ in order to make out which there must be a misrepresentation as to some existing fact and not a mere promise as to the future.” Id., at 312. Instead, it construed the statute to “includ[e] everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future.” Id., at 313. Accordingly, the defendant’s use of the mails to sell bonds which he did not intend to honor was within the statute. The Court explained that “[i]t was with the purpose of protecting the public against all such intentional efforts to despoil, and to prevent the post office from being used to carry them into effect, that this statute was passed . . . .” Id., at 314.
Congress codified the holding of Durland in 1909, and in doing so gave further indication that the statute’s purpose is protecting property rights. The amendment added the words “or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises” after the original phrase “any scheme or artifice to defraud.” Act of Mar. 4, 1909, ch. 321, § 215, 35 Stat. 1130. The new language is based on the statement in Durland, that the statute reaches “everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future.” 161 U. S., at 313. However, instead of the phrase “everything designed to defraud” Congress used the words “[any scheme or artifice] for obtaining money or property.”
After 1909, therefore, the mail fraud statute criminalized schemes or artifices “to defraud” or “for obtaining money or property by means of false or fraudulent pretenses, representation, or promises . . . .” Because the two phrases identifying the proscribed schemes appear in the disjunctive, it is arguable that they are to be construed independently and that the money-or-property requirement of the latter phrase does not limit schemes to defraud to those aimed at causing deprivation of money or property. This is the approach that has been taken by each of the Courts of Appeals that has addressed the issue: schemes to defraud include those designed to deprive individuals, the people, or the government of intangible rights, such as the right to have public officials perform their duties honestly. See, e. g., United States v. Clapps, 732 F. 2d 1148, 1152 (CA3 1984); United States v. States, 488 F. 2d 761, 764 (CA8 1973).
As the Court long ago stated, however, the words “to defraud” commonly refer “to wronging one in his property rights by dishonest methods or schemes,” and “usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.” Hammerschmidt v. United States, 265 U. S. 182, 188 (1924). The codification of the holding in Durland in 1909 does not indicate that Congress was departing from this common understanding. As we see it, adding the second phrase simply made it unmistakable that the statute reached false promises and misrepresentations as to the future as well as other frauds involving money or property.
We believe that Congress’ intent in passing the mail fraud statute was to prevent the use of the mails in furtherance of such schemes. The Court has often stated that when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language. United States v. Bass, 404 U. S. 336, 347 (1971); United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 221-222 (1952). See also Rewis v. United States, 401 U. S. 808, 812 (1971). As the Court said in a mail fraud case years ago: “There are no constructive offenses; and before one can be punished, it must be shown that his case is plainly within the statute.” Fasulo v. United States, 272 U. S. 620, 629 (1926). Rather than construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure and good government for local and state officials, we read § 1341 as limited in scope to the protection of property rights. If Congress desires to go further, it must speak more clearly than it has.
For purposes of this action, we assume that Hunt, as well as Gray, was a state officer. The issue is thus whether a state officer violates the mail fraud statute if he chooses an insurance agent to provide insurance for the State but specifies that the agent must share its commissions with other named insurance agencies, in one of which the officer has an ownership interest and hence profits when his agency receives part of the commissions. We note that as the action comes to us, there was no charge and the jury was not required to find that the Commonwealth itself was defrauded of any money or property. It was not charged that in the absence of the alleged scheme the Commonwealth would have paid a lower premium or secured better insurance. Hunt and Gray received part of the commissions but those commissions were not the Commonwealth’s money. Nor was the jury charged that to convict it must find that the Commonwealth was deprived of control over how its money was spent. Indeed, the premium for insurance would have been paid to some agency, and what Hunt and Gray did was to assert control that the Commonwealth might not otherwise have made over the commissions paid by the insurance company to its agent. Although the Government now relies in part on the assertion that petitioners obtained property by means of false representations to Wombwell, Brief'for United States 20-21, n. 17, there was nothing in the jury charge that required such a finding. We hold, therefore, that the jury instruction on the substantive mail fraud count permitted a conviction for conduct not within the reach of § 1341.
The Government concedes that if petitioners’ substantive mail fraud convictions are reversed their conspiracy convictions should also be reversed. Id., at 36, n. 28.
The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
Section 1341 provides in pertinent part:
“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, ... for the purpose of executing such scheme or artifice or attempting so to do, [uses the mails or causes them to be used], shall be fined not more than $1,000 or imprisoned not more than five years, or both.”
The six counts dismissed were based on the mailing of Seton’s tax returns. The Court of Appeals held that mailings required by law cannot be made the basis for liability under § 1341 unless the documents are themselves false, see Parr v. United States, 363 U. S. 370 (1960), and that the six counts were properly dismissed since the indictment did not allege that Seton’s tax returns were false. The Government has not sought review of this holding.
The mail fraud count also alleged that petitioners’ fraudulent scheme had the purpose of defrauding the citizens and government of Kentucky of their right to be made aware of all relevant facts when selecting an insurance agent to write the Commonwealth’s workmen’s compensation insurance policy. The District Court did not instruct on this purpose, holding that it was subsumed in the purpose to deny the right to honest government.
The instruction summarized the charges as follows:
“Count 4 of the Indictment charges in part that the defendants devised a scheme or artifice to:
“(a)(1) defraud the citizens of the Commonwealth of Kentucky and its governmental departments, agencies, officials and employees of their right to have the Commonwealth’s business and its affairs conducted honestly, impartially, free from corruption, bias, dishonesty, deceit, official misconduct, and fraud; and,
“(2) obtain (directly and indirectly) money and other things of value, by means of false and fraudulent pretenses, representations, and promises, and the concealment of facts.
“And for the purpose of executing the aforesaid scheme, the defendants, James E. Gray and Charles J. McNally, and Howard P. ‘Sonny’ Hunt, Jr., and others, did place and cause to be placed in a post office or authorized deposit for mail matter, matters and things to be sent and delivered by the Postal Service, and did take and receive and cause to be taken and received therefrom such matters and things and did knowingly cause to be delivered thereon and at the place at which it was directed to be delivered by the person to whom it was addressed, matters and things.
“(b) Defraud the United States by impeding, impairing, and obstructing and defeating the lawful governmental functions of the Internal Revenue Service of the Treasury Department of the United States of America in the ascertainment, computation, assessment and collection of federal taxes.” Brief for United States 9-10, n. 8.
The Government concedes that it was error for the District Court to include the instruction on tax fraud in the substantive mail fraud instruction, see id., at 11, n. 9, but the effect of that error is not now at issue.
Cong. Globe, 41st Cong., 3d Sess., 35 (1870) (remarks of Rep. Farnsworth). These remarks were made during the debate on H. R. 2295, the recodification legislation introduced during the 41st Congress. Representative Farnsworth proceeded to describe a scheme whereby the mail was used to solicit the purchase by greedy and unwary persons of counterfeit bills, which were never delivered.
The recodification bill was not passed by the 41st Congress, but was reintroduced and passed by the 42d Congress with the antifraud section intact. Act of June 8, 1872, ch. 335, §§ 149 and 301, 17 Stat. 302 and 323.
Prior to Durland Congress had amended the statute to add language expressly reaching schemes of the period, many of the same nature as those mentioned by Representative Farnsworth in 1870, see n. 5, supra, dealing or pretending to deal in counterfeit currency under such names as “green coin” or “green cigars.” Act of Mar. 2, 1889, ch. 393, § 1, 25 Stat. 873. The addition of this language appears to have been nothing more than a reconfirmation of the statute’s original purpose in the face of some disagreement among the lower federal courts as to whether the statute should be broadly or narrowly read. See Rakoff, The Federal Mail Fraud Statute, 18 Duquesne L. Rev. 771, 790-799, 808-809 (1980). Some of the language added in 1889 was removed in 1948 in an amendment (Act of June 25, 1948, ch. 645, § 1341, 62 Stat. 763) designed to remove surplus-age without changing the meaning of the statute. See H. R. Rep. No. 304, 80th Cong., 1st Sess., A100 (1947). Post-1948 amendments to the statute have been technical in nature. The last substantive amendment of the statute, then, was the codification of the holding of Durland, and other changes not relevant here, in 1909.
The new language was suggested in the Report of the Commission to Revise and Codify the Criminal and Penal Laws of the United States, which cited Durland in the margin of its Report. See S. Doc. No. 68, 57th Cong., 1st Sess., pt. 2, 63, 64 (1901). The sponsor of the 1909 legislation did not address the significance of the new language, stating that it was self-explanatory. 42 Cong. Rec. 1026 (1908) (remarks of Sen. Heyburn).
Hammerschmidt concerned the scope of the predecessor of 18 U. S. C. § 371, which makes criminal any conspiracy “to defraud the United States, or any agency thereof in any manner or for any purpose.” Hammer schmidt indicates, in regard to that statute, that while “[t]o conspire to defraud the United States means primarily to cheat the Government out of property or money, ... it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.” 265 U. S., at 188. Other cases have held that § 371 reaches conspiracies other than those directed at property interests. See, e. g., Haas v. Henkel, 216 U. S. 462, 480 (1910) (predecessor of § 371 reaches conspiracy to defraud the Government by bribing a Government official to make an advance disclosure of a cotton crop report); Glasser v. United States, 315 U. S. 60 (1942) (predecessor of § 371 reaches conspiracy to defraud the United States by bribing a United States attorney). However, we believe that this broad construction of § 371 is based on a consideration not applicable to the mail fraud statute.
In Curley v. United States, 130 F. 1 (CA1 1904), cited with approval in Haas v. Henkel, supra, the court stated: “Quite likely the word ‘defraud,’ as ordinarily used in the common law, and as used in English statutes and in the statutes of our states, enacted with the object of protecting property and property rights of communities and individuals, as well as of municipal governments, which exist largely for the purpose of administering local financial affairs, has reference to frauds relating to money and property.” 130 F., at 6-7. The court concluded, however, that “[a] statute which. . . has for its object the protection of the individual property rights of the members of the civic body, is one thing; a statute which has for its object the protection and welfare of the government alone, which exists for the purpose of administering itself in the interests of the public, [is] quite another.” Id., at 7. Section 371 is a statute aimed at protecting the Federal Government alone; however, the mail fraud statute, as we have indicated, had its origin in the desire to protect individual property rights, and any benefit which the Government derives from the statute must be limited to the Government’s interests as property holder.
Justice Stevens would affirm the convictions even though it was not charged that requiring the Wombwell agency to share commissions violated state law. We should assume that it did not. For the same reason we should assume that it was not illegal under state law for Hunt and Gray to own one of the agencies sharing in the commissions and hence to profit from the arrangement, whether or not they disclosed it to others in the state government. It is worth observing as well that it was not alleged that the mail fraud statute would have been violated had Hunt and Gray reported to state officials the fact of their financial gain. The violation asserted is the failure to disclose their financial interest, even if state law did not require it, to other persons in the state government whose actions could have been affected by the disclosure. It was in this way that the indictment charged that the people of Kentucky had been deprived of their right to have the Commonwealth’s affairs conducted honestly.
It may well be that Congress could criminalize using the mails to further a state officer’s efforts to profit from governmental decisions he is empowered to make or over which he has some supervisory authority, even if there is no state law proscribing his profiteering or even if state law expressly authorized it. But if state law expressly permitted or did not forbid a state officer such as Gray to have an ownership interest in an insurance agency handling the State’s insurance, it would take a much clearer indication than the mail fraud statute evidences to convince us that having and concealing such an interest defrauds the State and is forbidden under federal law.
Question: What is the court whose decision the Supreme Court reviewed?
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211. Court of Private Land Claims
Answer:
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songer_circuit
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L
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
O’NEILL v. DISTRICT OF COLUMBIA.
No. 8188.
United States Court of Appeals for the District of Columbia.
Argued Nov. 12, 1942.
Decided Dec. 21, 1942.
Mr. E. W. Mollohan, Jr., of Washington, D. C., for petitioner. Messrs. Vincent A. Sheehy, Jr., and Arthur C. Elgin, both of Washington, D. C., were on the brief for petitioner. Mr. Donald S. Caruthers, of Washington, D. C., also entered an appearance for petitioner.
Mr. Glenn Simmon, Assistant Corporation Counsel, with whom Messrs. Richmond B. Keech, Corporation Counsel, and Vernon E. West, Principal Assistant Corporation Counsel, all of Washington, D. C., were on the brief for respondent.
Before GRONER, Chief Justice, and VINSON and RUTLEDGE, Associate Justices.
GRONER, C. J.
Charles J. O’Neill, a resident of the District of Columbia, died March 17, 1941. Paragraph two of his will is as follows:
“ * * * All the rest, residue and remainder of my estate, of every kind and description, real and personal, wheresoever and however situated, now possessed or that may hereafter be acquired by me, including any lapsed or void legacy or devise, I give, devise and bequeath unto my wife, Julia F. O’Neill, for and during the term of her natural life, and on her death unto my daughters, Julia Mary O’Neill and Helena O’Neill, absolutely and in fee simple, share and share alike, and in the event that either of them be then dead unto the survivor of them, absolutely and. in fee simple, unless the deceased daughter leave issue surviving in which event ’each surviving issue shall be entitled to the share thereof to which the deceased daughter would have been entitled if living, distributable among such issue, per stirpes and not per capita.”
The widow qualified as executrix and in due time filed the required District of Columbia inheritance tax return. She reported a life estate passing to herself and a vested remainder passing to her daughters, Julia and Helena, and computed the tax accordingly. The Assessor, being of opinion that under the provisions of the District of Columbia Inheritance Tax Act the interest of. the daughters should be treated as a contingent rather than a vested remainder, assessed the tax on that basis.
The District Board of Tax Appeals affirmed the Assessor’s holding in this respect. On this appeal the question is: Was the interest left by the decedent to his daughters vested or contingent? The applicable statute is District of Columbia Revenue Act of 1937, 50 Stat. 686, Chap. 690, Title V, § 10, as amended by the Act of May 16, 1938, 52 Stat. 361, Chap. 223, Sec. 5(d), D.C.Code 1940, § 47, 1607, which reads in part as follows:
“In the case of any grant, deed, devise, descent, or bequest of a life interest or term of years, the donee for life or years shall pay a tax only on the value of his interest, determined in a manner as the Commissioners by regulation may prescribe, and the donee of the future interest shall pay a tax only on his interest as based upon the value thereof .at the time of the death of the decedent creating such interest. The value of any future interest shall be determined by deducting from the market value of such property at the time of the death of such decedent the value of the precedent life interest or term of years. Where the future interest is vested the donee thereof shall pay the tax within the time in which the tax upon the precedent life interest or term of years is required to be paid under the provisions of sections 4 and 7 of this article [sections 47-1604 and 47-1606], as the case may be. Where the future interest is contingent the personal representative of such decedent or the persons interested in such contingent future estate shall have the option of (1) paying, within the time herein provided for the payment of taxes due upon vested future interests, a tax equal to the mean between the highest possible tax and the lowest possible tax' which could be imposed under any contingency or condition whereby such contingent future interest might be wholly or in part created, defeated, extended, or abridged; or (2) paying the tax upon such transfer at the time when such future interest shall become vested at rates and with exemptions in force at the time of the death of such decedent: * *
This statute and the regulations made pursuant thereto definitely distinguish between a vested interest and a contingent interest and specifically provide a different method of taxation for. each, with the result that, in this case, the amount of the tax will be larger if the estate passing to the daughters is contingent than if it is vested.
The District Board of Tax Appeals held, on the authority of Klein v. United States, 283 U.S. 231, 51 S.Ct. 398, 75 L.Ed. 996, and Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, that an interest which, by the local property law, is a vested remainder subject to be divested upon the happening of some uncertain future event is nevertheless, for the purpose of the local tax statute, a contingent remainder. But in our opinion there is nothing in the District of Columbia statute which will justify this conclusion. In the District of Columbia the characteristics of a “vested interest” and a “contingent interest” have been firmly established by repeated decisions of this court, and likewise by statutory enactment. Congress, in enacting the law in .question, was legislating solely for the District, and in using the terms “vested” and “contingent” without defining them, recognized as valid for tax purposes the well established distinction between these two classes of estates. To hold otherwise would be to ignore the canon of construction which requires that every word of a statute be given its ordinary and natural meaning.
In this view we are of opinion that the decisions in the' Klein and Hallock cases are inapplicable. In. each, the decedent had created a trust in favor of his wife, with a provision that if the husband survived the wife the property was to revert to him. In each case the Supreme Court held that the trust property should be included in the decedent’s gross estate under the Federal Revenue Act, which defines gross estate as including any property as to which there has been a transfer, by trust or otherwise, intended to take effect in possession or enjoyment at or after death. The rationale of the decisions was that it was the purpose of Congress to tax the transfer of interests which ripened into full enjoyment only at the death of the transferor, that this purpose could not be thwarted by the application of the “refined technicalities of the law of property” to inter vivos transactions which were in effect contingent upon and incomplete until death, and that the “importation of these distinctions and controversies from the law of property into the administration of the estate tax precludes a fair and workable tax system.”
These principles have no place here. For this case involves a wholly different disposition of property and arises under wholly different statutory enactments. There is here no attempt to thwart the statute or evade taxation. The interest devised and bequeathed admittedly arises on the death of the testator and is clearly taxable under the local act. The question is, how it shall be taxed. To answer that question by determining whether it is vested or contingent is not to preclude a workable system, for the act itself provides one method in the case of the former and another in the case of the latter. Since, as we have seen, Congress used these terms in their ordinary meaning, all that is required is the determination whether, according to the established property laws of the District of Columbia, this interest' is a vested or contingent remainder.
The answer is not difficult, for this court, following the decision of the Supreme Court in Doe ex dem. Poor v. Considine, 6 Wall. 458, 18 L.Ed. 869, has frequently held that devises substantially similar to that in the will of Charles J. O’Neill here create in the devisees vested estates, and the statute of the District of Columbia, which we quote in the margin, confirms the ruling. Both daughters at the time of the father’s death were in being and had capacity to take immediate possession upon the termination of their mother’s life estate. The devise and bequest of the father to the daughters gave them the property “absolutely and in fee simple”, with enjoyment in possession postponed. The added words “and in the event that either of them be then dead unto the survivor of them * * etc., relate, under the rule expressly recognized in Doe ex dem. Poor v. Considine, supra, to the time of enjoyment and not to the time of vesting in interest.
Respondent, in a supplement to its brief filed after the argument, attempts to support the holding of the Board by cases from New York, Illinois and Ohio. But these authorities are concerned with the construction of particular inheritance tax statutes which are essentially different in the respect in which we are concerned from the one involved here. Each of the three statutes carefully defines contingent interests for the purpose of taxation as interests which may be wholly or in part created, defeated, extended or abridged. None of these statutes attempts to differentiate between future interests that are vested and future interests that are contingent in accord with the law of property. The obvious legislative purpose in all three was to make the tax applicable in every case in which there is any contingency which might make it impossible to determine who would actually enjoy the property upon the termination of the preceding estate. This is not true of the local tax statute, which, as we have seen, recognizes and taxes separately and differently vested estates and contingent estates and itself leaves such estates undefined and therefore, subject to the statutory definition in existing law. The vital difference between the District statute and the statutes of New York, Illinois and Ohio is that in the latter the Legislatures expressly adopted what may be said to be the lay view of contingent estates, while Congress, in the former, did not.
We are of opinion that the decision of the Board that the interest of Julia and Helena was contingent and not vested is wrong.
Reversed.
Richardson v. Penicks, 1 App.D.C. 261; O’Brien v. Dougherty, 1 App.D.C. 148; Marshall v. Augusta, 5 App.D.C. 183; Craig v. Rowland, 10 App.D.C. 402; Hauptman v. Carpenter, 16 App.D.C. 524; Vogt v. Vogt, 26 App.D.C. 46; Fields v. Gwynn, 19 App.D.C. 99; Green v. Gordon, 38 App.D.C. 443.
D.C.Code (1940) § 45 — 812. “A future estate is vested when there is a person in being who would have an immediate right to the possession of the land upon the expiration of the intermediate or precedent estate, or upon the arrival of a certain period or event when it is to commence in possession. It is contingent when the person to whom or the event upon which it is limited to take effect in possession or become a vested estate is uncertain.”
In re Vanderbilt’s Estate, 172 N.Y. 69, 64 N.E. 782; People v. Byrd, 253 Ill. 223, 97 N.E. 293; Tax Commission of Ohio v. Commerce Bank, 24 Ohio App. 331, 157 N.E. 423.
gee D.C.Statute, supra, footnote 2.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_usc2
|
12
|
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 42. 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.
UNITED STATES of America, Appellee, v. CHESAPEAKE GARDENS, INC., and Chesapeake Gardens, Inc., No. 2, Appellants.
No. 12504.
United States Court of Appeals Fourth Circuit.
Argued Oct. 7, 1968.
Decided Nov. 22, 1968.
John J. Geraghty, Raleigh, N. C. (Poy-ner, Geraghty, Hartsfield & Townsend, Raleigh, N. C., John A. Pryor, Joseph M. Wyatt, and Wyatt & Jones, Baltimore, Md., on brief), for appellants.
S. Billingsley Hill, Atty., Dept. of Justice (Clyde O. Martz, Asst. Atty. Gen., Roger P. Marquis, Anne S. Bell, Attys., Dept. of Justice, Stephen H. Sachs, U. S. Atty. and Ralph J. Luttrell, Sp. Asst. U. S. Atty., on brief), for appellee.
Before SOBELOFF, BOREMAN and BUTZNER, Circuit Judges.
. The Administrative Rules of FHA, Section V, paragraph 4(a) provides as follows:
(a) No charge shall be made by the mortgagor for the accommodations offered by the project in excess of a rental schedule to be filed with the Commissioner and approved by him or his duly constituted representative pri- or to the opening of the project for rental, which schedule shall be based upon a maximum average rental fixed prior to the insurance of the mortgage, and shall not thereafter he changed except upon application of the mortgagor to, and the written approval of the change hy, the Commissioner. (Emphasis supplied.)
SOBELOFF, Circuit Judge:
This appeal concerns the proper measure of compensation in a condemnation case instituted by the Government.
The Capehart Act, 42 U.S.C. § 1594 (a), provides that Wherry Act (12 U.S.C. § 1748 et seq.) housing may be acquired by the Government in the discretion of the Secretary of Defense. Pursuant to this authorization, condemnation proceedings were instituted against Chesapeake Gardens, Inc., and Chesapeake Gardens, Inc., No. 2, owner-mortgagors of a Wherry leasehold interest, and they now appeal from a judgment rendered in their favor by the District Court on a jury verdict of $184,000.
The Wherry Act was passed in response to the acute housing shortage existing in the area of most military installations. It provided for leasing of Government-owned land at nominal rentals under long-term leases to “Owner” corporations which would construct and operate the needed housing. Owner corporations are subject to Federal Housing Administration regulations on such matters as rents, rate of return, and certain aspects of operation, and mortgages made to financing institutions by the Owners are insured by the FHA up to 90% of the estimated cost of construction.
The Owners assign error to the reception of testimony that they had realized the sum of $569,000 by reason of the fact that the mortgage loan exceeded the actual cost of construction by that amount. The Owners do not dispute the fact that there were excess mortgage proceeds and that the excess has been retained by them, but they contend that this evidence was irrelevant and prejudicial and did not enter into the estimates of value made by any of the expert witnesses who testified at trial. The Government counters that the evidence is indeed relevant on the issue of what a “willing, prudent buyer and seller could contemplate or expect in the way of income and rental ceilings in the future.”
The Government reasons that the fact that there were excess mortgage proceeds might be considered by the FHA as justification for reducing rentals presently being charged by the Owners or as ground for refusing increases if applied for in the future. The Owners rejoin that no statute, rule, or regulation having the force of law has conferred upon the FHA the power unilaterally to reduce rents.
We deem it unnecessary, in determining that the proffered evidence was admissible, to decide whether the FHA could upon its own initiative reduce rents. We adhere to the rule announced by Judge Boreman in another Wherry Act condemnation case. United States v. Certain Interests in Property in Cumberland County, 296 F.2d 264 (4 Cir. 1961). There he stated that “this court has in the past favored a broad rule of admissibility and consideration of evidence in condemnation cases; the only condition has been that there be a showing that willing vendees and vendors would deem such evidence or information relevant in their negotiations.”
It seems patent to us that in his negotiations a prospective buyer would find the fact of excess mortgage proceeds highly relevant because the FHA might well be influenced adversely thereby in the event of a future request for a rental increase. The Ninth Circuit in Winston v. United States, 342 F.2d 715 (1965), upheld the admission of evidence of excess mortgage proceeds and rejected the argument now urged by the Owners that this fact could not possibly affect future rental charges. The conclusion of the Tenth Circuit in Sill Corporation v. United States, 343 F.2d 411, cert. denied, 382 U.S. 840, 86 S.Ct. 88, (1965), is in accord with that reached by the Ninth.
The other major contention of the Owners is that the Government’s witnesses, in computing “just compensation,” improperly deducted from capitalized value the amount of a certain reserve fund. The Owners were required by their charters to deposit $39,750 annually into a fund which was designed to assure the mortgagee that funds would be available to replace certain assets at the end of their respective useful lives. On the date of the taking, the accumulated reserve had a balance of $296,337 on deposit with the mortgagee. Subsequently, the Government and the mortgagee executed an agreement for the payment of the full amount of the accumulated fund to the Owners, and this was done.
The Owners insist that the fund was their asset and that the Government is therefore not entitled to a deduction by virtue of the release of the fund to them. The Government asserts, and we agree, that the deduction of this amount by the Government’s witnesses in computing the value of the Owners’ interest was correct because a prospective buyer would be required upon acquisition of the Owners’ interest to deposit $296,337 of his own funds with, the mortgagee or be held in default on the mortgage. The Owners acknowledge that the fund depleted by the payment made to them would have to be replenished and maintained by a prospective purchaser. They argue however that to permit a deduction of the amount accumulated results in a double deduction because the annual contributions to the fund have been treated by the expert witnesses as deductions in determining the income figure to be capitalized. In view of the fact that the Owners have been permitted to draw down and pocket the accumulated reserve, it is difficult to perceive how there has been a wrongful double deduction..
We think that the Government’s experts committed no error in making the deduction, because the offer of a willing buyer would doubtless be depressed by the known requirement that he deposit with the mortgagee a fund sufficient to offset the accumulated depreciation. No prudent prospective purchaser would ignore the fact that in acquiring the property he obligated himself to restore the reserve fund. Nothing in the Wherry cases cited to us by the Owners is inconsistent with this reasoning.
We have examined the other contentions raised in the Owners’ briefs and find them without merit. Accordingly, the judgment of the District Court is
Affirmed.
. We are advised by counsel that this is the last of the series of Wherry Act condemnation cases. See, e. g., United States v. Benning Housing Corporation, 276 F.2d 248 (5 Cir. 1960); Buena Vista Homes, Inc. v. United States, 281 F.2d 476 (10 Cir. 1960); United States v. Leavell & Ponder, Inc., 286 F.2d 398 (5 Cir.), cert. denied, 366 U.S. 944, 81 S.Ct. 1674, 6 L.Ed.2d 855 (1961); United States v. Tampa Bay Garden Apartments, Inc., 294 F.2d 598 (5 Cir. 1961); United States v. Certain Interests in Property in Cumberland County, 296 F.2d 264 (4 Cir. 1961); United States v. 190.71 Acres of Land in Lake County, Illinois, 300 F.2d 52 (7 Cir. 1962); Fairfield Gardens, Inc. v. United States, 306 F.2d 167 (9 Cir. 1962); Likins-Foster Monterey Corp. v. United States, 308 F.2d 595 (9 Cir. 1962); United States v. Certain Interests in Property in Borough of Brooklyn, 326 F.2d 109 (2 Cir. 1964); Winston v. United States, 342 F.2d 715 (9 Cir. 1965); Sill Corporation v. United States, 343 F.2d 411 (10 Cir.), cert. denied, 382 U.S. 840, 86 S.Ct. 88, 15 L.Ed.2d 81 (1965).
. The District Judge’s pre-trial order provided in part:
10. Evidence of the actual cost of construction shall be admissible, not as a measure of value, nor as evidence of what it would cost to replace these improvements at the date of taking, but solely as evidence as to what a willing, prudent buyer and seller could contemplate or expect in the way of income and rental ceilings in the future.
. There Chief Judge Murrah wrote:
“Under the- lease contract, the FHA, as we have seen, was empowered to regulate rates, charges, capital structure, rate of returns, and methods of operations, and it was certainly relevant for a prospective purchaser to know that in the event increased rentals were needed in order to maintain the level of capitalized income, the FHA would invoke its policy in the face of excess mortgage proceeds. This was the extent to which the excess mortgage proceeds and windfall was used in the Government’s case, and it was not irrelevant for that purpose.” 343 F.2d at 420.
The appellants rely upon a dictum in a footnote to the Fort Hamilton case, United States v. Certain Interests in Property in Borough of Brooklyn, 326 F.2d 109, 116 n. 7 (2 Cir. 1964). We are not persuaded that they read the footnote correctly, but to the extent that it may be construed as inconsistent with our ruling, we decline to follow the dictum.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 42. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_usc1
|
29
|
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.
Lawrence F. CAFERO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 433, Docket 28622.
United States Court of Appeals Second Circuit.
Argued April 21, 1964.
Decided Aug. 27, 1964.
Gene Crescenzi, New York City, for petitioner.
Arnold Ordman, Gen. Counsel, Domi-, nick L. Manoli, Associate Gen. Counsel,' Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, George B. Driesen, Attys., N. L. R. B., for respondent.
Before WATERMAN, KAUFMAN and MARSHALL, Circuit Judges.
PER CURIAM.
This is a petition brought pursuant to Section 10(f) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq., to review an order of the NationalLabor Relations Board dismissing a complaint of an employee which charged the respondent union with having violated Sections 8(b) (1) (A) and 8(b) (2) of the Act. Petitioner, who has been a member of the respondent union and a night shift proofreader at the New York Times since 1946, and who enjoyed senior job security status, was, at the union’s insistence, dropped to the bottom of the Times’s seniority list in 1962 after it had been discovered that petitioner was also employed full time during the day as a junior high school principal and had been steadily employed on a full time basis as either a teacher or a principal for the previous thirteen years. Section 33(f) of the collective bargaining agreement then in effect between respondent and the Times provided that an employee like petitioner might engage in pursuits other than composing room work for a period not exceeding 90 days per year without the loss of seniority job priority, and a union rule provided that “members who have full-time employment at other occupations are classed as ‘N.A.T.’ [not-at-trade] and are not eligible for employment at the printing trade except with the permission of proper officers of the local union when all available substitutes are employed.”
We think that we are com-'i pelled by this Court’s recent decision in ! N. L. R. B. v. Miranda Fuel Co., 326 F.2d 172 (2 Cir. 1963), to affirm the Board’s : dismissal of petitioner’s complaint. A j synthesis of the majority and concurring j opinions in that case indicates that a 1 complainant such as petitioner must ■ show, at the very least, that the union has . arbitrarily or capriciously discriminated i against him. This petitioner has failed ! to do. The determination by the National Labor Relations Board that the employment rule pursuant to which petitioner’s seniority priority was revoked, being designed to insure that available fpositions in the printing trade would go | to those workers in the trade who most needed the employment, was not inherently discriminatory, cf. Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), and the record amply supports the Board’s conclusion that the rule was not discriminatorily applied in practice.
The Board’s order dismissing the complaint is affirmed and the petition to review that order is denied.
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_geniss
|
F
|
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".
UTAH PLUMBING AND HEATING CONTRACTORS ASSOCIATION and its members, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 6617.
United States Court of Appeals Tenth Circuit.
Aug. 24, 1961.
Louis H. Callister, Salt Lake City, Utah (Callister & Fullmer, Salt Lake City, Utah, were with him on the brief), for petitioner.
Rosanna A. Blake, Washington, D. C. (Stuart Rothman, Dominick L. Manoli, Marcel Mallet-Prevost and Nancy M. Sherman, Washington, D. C., were with her on the brief), for respondent.
Before MURRAH, Chief Judge, and BRATTON and BREITENSTEIN, Circuit Judges.
BRATTON, Circuit Judge.
Utah Plumbing and Heating Contractors Association, with its principal office located in Salt Lake City, Utah, is a multi-employer bargaining association comprised of various members engaged in the plumbing and pipe fitting industry; and it represents its members in collective bargaining with labor organizations. Four local unions at Salt Lake City of the United Association of Journeymen and Apprentices of the Pipe Fitting Industry are labor organizations.
The unions filed with the National Labor Relations Board a charge of unfair labor practice on the part of the association and its interested members. The Board issued its complaint; the association and its members responded; and a trial examiner made findings of fact. This was the substance of the findings. A two-year contract between the unions and their employers who were members of the association was to expire March 31, 1959. In January, the unions advised their employers of their desire to open negotiations for a new contract. Pursuant to such advice, several meetings of the parties were held during which proposals and counter-proposals were made for the terms of a new contract. The respective business representatives composed the negotiating team for the unions; and the association acted for its members. A wage increase was the principal if not the sole issue. The association rejected the initial proposal of the unions and submitted a counter-proposal which was rejected by the membership of the unions. By such vote of rejection, the unions were authorized upon appropriate notice to their membership to call a strike provided a better offer was not received; and that was customary procedure within the unions. On March 30, a meeting of the association and its interested employer members was held, at which the association was given authority to make a final offer not to exceed a stipulated amount, and to institute a lockout of employees if such offer was rejected. On the following day — the date of expiration of the two-year contract — ■ spokesmen for the association and its interested members and the representatives of the unions held a conference at which the association submitted the new proposal and insisted that the negotiators for the unions give some assurance of its acceptance or at least assure the association that they would try to “sell it to their people.” A spokesman for the association advised the representatives of the unions that unless they could assure the association that they would try to sell the offer to their people, the employers would have to cease work the next morning. Representatives of the association said in words of their own choice that the interested employers had as much right to lock out the employees as the employees had to strike. And they threatened a lockout unless the negotiators for the unions would give assurance that they would urge the membership of their respective locals to accept the wage proposal of the employers. The requested assurance was not given. But the unions proposed to continue working under the old contract until the new proposal could be submitted to a vote of the membership of the unions; and the association was informed that such vote could and would be taken after the membership had been served with appropriate notice, a matter of a few days. The interested employers who were members of the association were not faced with a strike or strike threat. The association called on its interested members and other interested employers to lock out their employees; and effective the following day, April 1, many though not all complied. Despite the lockout, the unions submitted the proposal to their members. Three of the unions voted to accept it. One voted against its acceptance, but the vote of the majority of the unions was binding on all. On April 4, the bargaining principals executed a new contract and the lockout was terminated.
The Board adopted the findings made by the examiner. And the Board entered an order in which it required the association and its interested members to desist and refrain from threatening their employees with a shutdown, lockout, or layoff in order to force such employees and their bargaining representatives to give up their bargaining demands and accept the proposals of the association and its members without further bargaining ; to cease and desist from interfering with, restraining, or coercing their employees in any like or related manner in their right of self-organization; to bargain collectively; to make whole employees discriminated against in the lockout, shutdown, or curtailment of operations which had occurred; and to post notices. The association and its interested members brought the proceeding here on petition to review the order.
The order of the Board is not challenged for lack of evidence to sustain the findings of fact. It is challenged on the single ground that an employer may use the economic weapon of a lockout at the termination of a contract with a union as a corollary of a strike which may be used by the union at any time its members see fit. It is conceded that the threat of the lockout and the lockout itself were intended to exert economic force on the employees and the unions to accept the contract which had been offered them, but it is argued that the use of such weapon did not constitute an unfair labor practice. The Labor Management Relations Act, 61 Stat. 136, 29 U.S.C.A. § 141 et seq., as amended, does not contain a provision expressly forbidding a lockout when used as an economic weapon in defense to a strike or threat of strike by employees who are members of a union, and therefore it cannot be said that every lockout constitutes an unfair labor practice per se. National Labor Relations Board v. Truck Drivers Local Union, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676. But section 7 of the Act, 29 U.S.C.A. § 157 creates the right of collective bargaining; and section 8, 29 U.S.C.A. § 158 makes wrongful interference with the exercise of that right an unfair labor practice.
Considered as a whole, the Act and its legislative history make it clear that “there are circumstances in which employers may lawfully resort to the lockout as an economic weapon.” National Labor Relations Board v. Truck Drivers Local Union, supra [353 U.S. 87, 77 S.Ct. 646]. But in this instance the parties had been negotiating in conventional manner for a new contract. The negotiations had not been terminated. Proposals and counter-proposals had been submitted and rejected. While the vote of the members of the unions rejecting the last offer made to them authorized the calling of a strike in the event no better offer should be received, no strike was called and there is no showing in the record that anything was said at the conference table which amounted to a threat of a strike. And no critical operational problem or hazard of economic loss immediately confronted the association or the employers as the unions offered to continue working under the terms of the old contract until the members of the unions could vote on the last offer submitted. Under these circumstances, the threat at the bargaining table to resort to a lockout unless the representatives of the unions would give assurance of their endeavor to bring about acceptance of the last offer and the prompt effectuating of the lockout constituted wrongful interference with the right of collective bargaining under section 7 of the Act and therefore an unfair labor practice under section 8. Quaker State Oil Refining Corp. v. National Labor Relations Board, 3 Cir., 270 F.2d 40, certiorari denied, 361 U.S. 917, 80 S.Ct. 261, 4 L.Ed.2d 185.
The order of the Board will be enforced.
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:
|
songer_trialpro
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. 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".
SWEENEY v. DISTRICT OF COLUMBIA.
No. 7361.
United States Court of Appeals for the District of Columbia.
Decided March 11, 1940.
Writ of Certiorari Denied May 20, 1940.
See 60 S.Ct. 1082, 84 L.Ed.
Joseph A. Cantrel and James J. Sweeney, both of Washington, D. C., for petitioner.
Elwood H. Seal, Vernon E. West, and Glenn Simmon, all of Washington, D. C., for respondent.
Before GRONER, Chief Justice, and EDGERTON and RUTLEDGE, Associate Justices.
RUTLEDGE, Associate Justice.
The question presented is whether petitioner is subject to the tax on intangible personalty imposed by Sections 754 and 756, Title 20, District of Columbia Code. He paid assessments for 1938 and 1939 under protest, claiming that his domicil has been at all times in Boston, Massachusetts. The Board denied his claim for refund, holding that he was domiciled on the taxable dates in the District. It also increased the assessments to include taxes on funds and securities, petitioner’s ownership of which was disclosed only at the hearing, and imposed penalties for nonpayment of the increases when due. This action is not contested except as it also is involved in the question of domicil. The appeal is from the Board’s decision so rendered.
Petitioner was domiciled in Boston in 1918, when he first came to the District as a member of the military service of the United States. Since his discharge here in 1919, he has resided continuously in the District. He married in 1924, and since 1933 he and his wife have maintained their only domestic establishment in a rented apartment which respondent contends is their legal domicil. He has been employed continuously by the Federal Government, as a Civil Service employee until 1928, since then as an attorney in the Department of Justice under appointments some of which were limited in duration. He has at all times by word and -act steadfastly maintained that his permanent home, legal residence and domicil are in Boston, and has declared repeatedly his intention to return on expiration of his public service here, with a view to running for public office or seeking a judicial appointment in his home ’state. He asserts that he has resided here at all times only temporarily in order to discharge his governmental duties, always with the intention of returning home on their completion and never with that of living permanently in the District or making- it other than a place of sojourn or temporary abode as required by his duties.
On the other hand, respondent says that petitioner’s long-continued residence in Washington has ripened into domiciliary change; that his home, principal headquarters and only domestic establishment are here; that he has no other in Massachusetts or elsewhere; that his motive in remaining here to take and perform work is immaterial, as are the facts that it is governmental and that the situs of performance is the national capital. It is urged that his subjective intention to retain his legal domicil in Massachusetts cannot overcome these facts and amounts to no more than a “floating intention to return to his former place' of abode at some future period,” which “will not defeat the newly acquired residence or the rights and obligations which attach to it.” It is said also that the Board has found as a fact that petitioner’s domicil was in the District on the taxable dates, and that the finding is conclusive as being supported by substantial evidence. Both parties have proceeded on the theory that domicil in the legal sense is the fulcrum of the tax.
The question in the present case concerns a Federal employee. That only Federal officials can determine it creates an embarrassment from which escape would be desirable. But a doubtful escape in order to avoid the embarrassment merely would create a greater one.
We do not consider the Board’s finding conclusive. Domicil is a compound of fact and law. When there is no question concerning the applicable law and conflict concerns only the facts, the Board’s determination is conclusive if supported by substantial evidence. But where, upon admitted or undisputed facts, the decision turns on controverted legal principles, it is reviewable. Here there is no dispute as to the essential facts. The conflict relates only to their legal effect. That is true though opposite inferences are drawn as to petitioner’s intent. The difference is not as to what he intended in fact, but as to whether that intent can be given the legal effect which he claims for it. The Board’s decision, therefore, is reviewable.
The tax-imposing provision is Section 754. It lays the tax upon “the moneys and credits * * * of any person * * * resident or engaged in business within said District * * (Italics supplied) Section 756 specially defines “resident” for purposes of the assessment and creates exemptions. The statute carefully avoids using “domicil.” But clearly it applies to persons domiciled in the District. Section 754 was the general, not a special, taxing act as to intangible property. The term it uses is “resident.” Without more, its normal and usual meaning is “domiciled.” That is true as to both inclusive and exclusive function. The section, therefore, unaided by Section 756, would tax domiciliaries and no others.
As the case has been presented to us, we are not required to determine whether Section 756 was intended to extend the tax to others than those already taxed by Section 754. Respondent, for its own purposes (cf. note 20, infra), has conceded that..the assessments were invalid if petitioner was not domiciled in the District on the taxable dates. Nor is the case rested upon the special definition contained in Section 756 as having either presumptive or conclusive effect in determining domicil. As presented, therefore, the issue is one of general, not special, domicil.
So considered, we think petitioner’s domicil has remained in Massachusetts. It was there in 1918 and concededly for some period after his removal to Washington. Respondent fixes upon no specific date for a later shift, but asserts merely that it occurred some time prior to 1938.
Traditional formula requires con» junction of physical presence and animus manendi in the new location to bring about a domiciliary change. There is no question here concerning the former — conflict is confined to the element of intent. As presented it takes two forms: (1) whether, disregarding the nature of petitioner’s work and its situs, a sufficient intention is shown by the facts; (2) whether the character of his duties and the situs of performance make the case different from one of private employment here or elsewhere. Respondent asserts that Federal employment in the District is not different, for purposes of determining domicil, from any other and therefore that that element in the case is immaterial except as it may bear factually upon the existence of domiciliary intention just as private employment under like circumstances would do. It is claimed also that, so considered, the facts establish the domiciliary change. Petitioner takes the contrary position on both contentions.
In the view we take of the case, we do not undertake to determine whether petitioner would be domiciled here if he had come or had remained in order to accept private employment or engage in private business. Boiled down to its essence, the question here is whether a citizen and resident of a state must surrender his state allegiance for all the purposes in which domicil may be controlling when he accepts Federal employment in the District of indefinite or relatively permanent duration. The question is not whether he may do so if he wishes. To hold that he must would create startling consequences, including unjust and untenable, not to say intolerable, discriminations.
Some of them may be shown by illustrations stated in the briefs or at the argument. Military and naval men, it was conceded, would retain domicil in the state of. residence at the time of appointment. This, regardless of length of absence from and lack of a domestic habitation in the state, presence of one here or length of residence in the District. As to them the presumption of continuity remains in full force. Likewise with elected officials, the President, the Vice President and, normally, members of Congress. So also with cabinet officers and persons holding only short-term or temporary appointments in executive, administrative and Congressional services. These, it is said, either by reason of their limited tenure and consequent assumed brevity of service or, in the military branches, because of its assumed compulsory character and regardless of its permanence, occupy special and preferred status which prevents applying to them criteria normally applicable to all others. In contrast with them, it is said, are members of the Supreme Court and other distinctively Federal courts sitting in the District, members of administrative tribunals enjoying long, though not unlimited tenure, Civil Service employees! and all others whose tenure is indefinite or is not limited to a short term. As to these the argument is carried to the full length of the logic implicit in the premises. It is that upon appointment and establishment of a place of abode in the District, whether it be their only or merely their principal one, with intention to remain indefinitely for the discharge of their duties and only a so-called “floating” intention to return on their completion, they lose domiciliation in the state and become domiciled forthwith in the District. The conclusion is applied even to Senators and Congressmen in the not infrequent cases of those who succeed, practically speaking, m establishing an indefinite tenure and, resting upon the demonstrated confidence of constituents, maintain their only' or principal domestic establishments here. In short, except for the comparatively small group of military men, elected officials and temporary employees residing in the District, the principle would deprive of state domiciliation and impose that of the District upon all Federal officials and employees required to live herein order to perform work without which the Government could not go on. That such a consequence might be desirable as a matter of District taxing policy cannot outweigh the havoc it would work in other respects. Without regard to constitutional considerations, the system would be •strange which would permit or require state domiciliation for elected legislative and executive officials and deny it automatically to coordinate judicial officers or compel them to maintain it by residing outside the District and in a state not otherwise of their choice. Equally, if not more, strange would be one so capable of discriminating, in practical consequences and legal effects, between the high and the low, the well-to-do and the poor in the Federal service. If such a price were placed so broadly upon the acceptance of Federal duty, the consequences would be ■entirely unpredictable, whether for the Government or for the individuals immediately concerned. Many would accept it of necessity. Others would not do so for.any preferment. State attachment is not incompatible with Federal service. On the contrary, it remains a compelling allegiance, secondary only to national loyalty, not merely for a few, but for all Federal servants who do not prefer District.domiciliation. Our dual system contemplates a harmony, not an antagonism, •of state and national allegiances. Each is the complement, not the antithesis, of the other. A rule which would compel surrender of the one in order to exercise the other fully would be inconsistent with these principles. Creation of a vast army of Federal officials and employees detached from the states in all of the civil and political relations which domicil sustains is not a thing desired or desirable, whether regarded from the point of view of the ■ Government, the states or the individuals. That connection with the home community is a key pin in the structure of the dual system. It should not be weakened or destroyed, as it would be by acceptance of respondent’s view.
These considerations, standing alone, are sufficient to sustain our conclusion. But partial escape from the consequences of respondent’s position is sought in recourse to an asserted distinction between civil and political domicil. Political citizenship, it is said, is distinct from civil domiciliary status, and therefore we need not concern ourselves with the former. The distinction may be admitted, but not to the extent or with the consequences claimed. Distinct the two conceptions are, but they are not entirely independent. For some purposes, it is true, state citizenship may be conferred without reference to domiciliation. But that is not to say that such purposes are many, that the citizenship so created is full-grown, or that it is in fact frequently conferred. The contrary is the case. That the suggested distinction is more theoretical than practical, argumentatively specious than safely tenable, is shown by this widespread practice. In effect, this is admitted by respondent’s further argument, made in answer to petitioner’s claim of jeopardy here to his political status as a citizen of Massachusetts, namely: “It may be that petitioner, in voting in Massachusetts under the claim that he is a resident of that State and maintains a residence in an apartment house in which he has no place of abode, may be perpetrating a fraud upon the law •of Massachusetts.” The effect of the concession cannot be wiped out merely by asserting that “that question is not before this court.”
Equally untenable in principle is respondent’s position insofar as it attempts to distinguish between military men, elected officials and others, pn the one hand, and judicial officers, administrative officials and indefinitely employed minor officials and workers, on the other. The difficulty is to find a consistent principle of differentiation. If permanence or indefiniteness of term is controlling, judicial officers and civil servants, for instance, might be distinguished from the elected officials and cabinet officers. But the distinction breaks down in relation to military and naval officers. To meet the-breach resort is had to a theory of compulsion. Their residence here (or elsewhere), it is said, is not voluntary — they have no other choice. But this confuses choice as to maintaining a place of- abode with choice of personal presence in order to perform duty. At the cost of separation from their families, homes could be maintained in the state of appointment just as they could by civil servants. But in the one case as in the other, the price would be prohibitive for the great majority. Further, the two groups have the same choice as to entering the service and many members of both as to leaving it. Officers may resign, though enlisted men ordinarily must serve out their limited terms. In effect all respond to the same fundamental compulsions as do civil servants on entering, and officers do so by remaining, in the service. We fail to see, either in compulsion or in length or definiteness of term how they occupy status in respect to loss or acquisition of domicil basically different from that of permanent civil officers and servants. If actual length of service and residence here supplants definiteness of term, the senior Senators and Congressmen may find themselves destated, and therefore ineligible to hold their offices. Constitution, Art. I, Secs. 2, 3. If election as against appointment turns the scales, they will retain domicil at home, while their secretaries and clerks acquire status as residents of the District, although their tenures are identical.
These incongruous discriminations disclose the inadequacy of their foundations. But apart from them we are unwilling to accept a principle implicit in which are consequences so questionable for the national services and welfare and so contradictory of the dual system which postulates allegiance to nation and state. That the consequences of acceptance would be so largely indeterminate or that partial escape might be found by tortuous methods of individual adjustment or legalistic interpretation, does not add to the force of the argument. The controlling consideration is found, we think, not in the length or definiteness of term, nor in election as against appointment, nor in any compulsion peculiar to military men. It is in the fact that Federal duty requires residential presence in the District. That is true, not merely of some particular officer or officers, but of. all who must come and remain here to do the work of the Government. It is true whether the service is short or long, definite or indefinite in term, appointive or elective, civil or military, in high or modest place. Residence here during the term of duty is reasonably incident to its performance. The opportunity to discharge it is not to be purchased at the cost of separation from family. Nor, because the separation is avoided, should the avoidance be visited with the penalty of severing state allegiance or making it dubious. No such dilemma was contemplated by the Constitution or by the statute. Accordingly we think that one who comes to the District and remains to render service to the Government which requires his presence here, may retain his domicil in the state from which he comes until the service terminates unless he gives clear evidence of his intention to forego his state allegiance. This conclusion, we think, is supported by sound’ policy, the clear weight of judicial authority, many instances.of Congressional recognition in principle, and the long-established custom and practice of other officials and departments. Whether the principle is stated in terms of a presumption of continuity of state domiciliation during the Federal employment or of privilege derived from the dual form of government is perhaps a matter of more theoretical than practical consequence. The privilege of course could be waived. The presumption would require strong evidence to overcome it. In either case the state domicil could not be overthrown by mere proof of long residence during performance or ambiguous showing of intention to change. The considerations which we have held controlling require that evidence of intention to change be clear and unequivocal, whether its effect be waiver of privilege or to overcome a presumption. The evidence here was not unequivocal. Except for the payment of taxes on his intangible personalty (the record does not show that Massachusetts taxes it except as to income), petitioner has done all that anyone could do, circumstanced as he has been, to maintain his state domiciliation. It follows that he was not domiciled in the District on the taxable dates and that the taxes assessed against him as a domiciliary were invalid.
We have limited the decision to the issue of domicil as it has been presented. In doing so, we express no opinion as to other issues which might have been, but were not, presented, including the questions whether Section 756 should be construed as intended to impose the tax upon persons not domiciled here but situated as was petitioner and whether, if so, it would be valid. Whether, in view of the more recent Supreme Court decisions, in order to prevent the District from being made a tax-dodging refuge by Federal employees domiciled elsewhere, Congress could impose taxes upon them here conditioned upon their failure to pay like taxes in the states or might do so to some extent upon a theory of commercial or business domicil, we are not required to determine. Federal legislation in aid of state policy is not a new, though it is a recently expanded, phenomenon. But these questions have not been briefed or argued. We think they should not be decided without mature deliberation on full and adequate presentation. Their importance and the doubtful character of the consequences, in addition to the lack of aid from counsel, require us to dispose of the case on the basis upon which it was presented. We therefore express no opinion concerning these questions.
In so disposing of the case, we add that the basic question here is not taxation as against escape from it. We would be reluctant to relieve Federal officials from any obligation imposed on other citizens unless required to do so by controlling authority. Such a result would be peculiarly unfortunate in view of recent decisions which have terminated formerly prevailing special privileges of some of them. But such is not the issue here. The question is not whether the Federal official or employee shall or shall not pay taxes on his intangible property. It is, What taxes and to whom shall he pay them? The rule which relieves him from domiciliary taxation in the District subjects him to it in the state of his domicil. He is not therefore, legally or morally, placed in a preferred position. That the amount of his state taxes may be greater or less than those which would be imposed were he domiciled in the District is beside the point. Whatever the burden imposed by the state taxing statutes, that is a consequence of his domiciliation in the state and he must bear it. In view of that burden, which persons domiciled in the District are not required to bear, there is no unjust discrimination between him and them.
The decision of the Board is reversed, and the case remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.
The language of the sections follows:
“754. Exemptions, etc., from taxation of personal property; rate of taxation. * * * The moneys and credits, including moneys loaned and invested, bonds and shares of stock (except the stock of banks and other corporations within the District of Columbia the taxation of which banks and corporations is herein provided for) of any person, firm, association, or corporation resident or engaged in business within said District shall be scheduled and appraised in the manner provided by section 753 of this title for listing and appraisal of tangible personal property and assessed at their fair cash value, and as taxes on said moneys and credits there shall be paid to the tax collector of said District not less than five-tenths of 1 per centum of the value thereof. * * * (July 1, 1902, 32 Stat. 618, c. 1352, sec. 6, par. 2; Sept. 1, 1916, 39 Stat. 717, c. 433, sec. 11; Mar. 3, 1917, 39 Stat. 1046, e. 160, see. 9; June 29, 1922, 42 Stat. 669, c. 249; July 3, 1926, 44 Stat. 833, c. 759, sec. 4.)” (Italics supplied)
“756. Resident of the District of Oolumbia defined. Any person maintaining a place of abode in the District of Columbia on the 1st day of July of a taxable year, and for the three months prior thereto, shall be considered as a resident for the purpose of assessment on intangible property wherever located, unless evidence shall be submitted to the assessor of the District of Columbia, satisfactory to him, that such intangible personal property or the income thereof is taxed to said person in some other jurisdictionr or that the assets of a corporation or association represented by shares or certificates constituting such intangible personal property are taxed by the State in-which such corporation or association is-chartered or organized and in which such-person has a legal residence, in lieu of a tax upon such shares or certificates: Provided, That Cabinet officers and persons in the service of the United States-Government elected for a definite term of office shall not be considered as residents of the District of Columbia for the-purposes of this section..(July 3, 1926, 44 Stat. 833, c. 759, see. 2; Feb. 18r 1929, 45 Stat. 1227, e. 259, sec. 4.)” (Italics supplied)
Further factual details may be stated. Petitioner resided and was domiciled' in Boston from his birth in 1891 until 1918. In the latter year his home was with his mother in a rented apartment at 467 Tremont Street. It has not been occupied by Him or any member of his family for several years, but he claims his domicil has remained at that address.
His Civil Service appointment, presumably, was under Massachusetts’ quota. Of. 5 U.S.C. (1934) § 633, 5 U.S.C. A. § 633. He has declared Boston his legal residence consistently in correspondence, tax returns, his will, applications for work, Civil Service records and documents and those of the Department of Justice. He has voted annually in Massachusetts; paid poll taxes there; returned annually to spend time with relatives and friends; used the Tremont Street number as a mailing address. He owns no property physically located there; nor until after the taxable dates did he make a state income tax return, apparently because his salary was not then regarded as taxable by the state. He has no tangible property in the District except household goods and an automobile, which is registered here. He has kept his securities and funds in a Baltimore bank. There is nothing to show he has remained in Washington for any other purpose than to discharge his governmental duties or that he would have done so if they had terminated. There is evidence, principally his own declarations, that on one or two occasions he contemplated returning to Boston when it was expected his service here would terminate.
Bradstreet v. Bradstreet, 1889, 7 Mackey (18 D.C.) 229.
Cf. Evans v. Gore, 1920, 253 U.S. 245, 40 S.Ct. 550, 64 L.Ed. 887, 11 A.L.R. 519.
The language of the section is set forth in note 1 supra. The statute has been repealed (Revenue Act of July 26, 1939, 53 Stat. 1107, c. 367, Tit. IV, § 1), being replaced by other legislation (District of Columbia Revenue Act of 1939, July 26, 1939, 53 Stat. 1085-1119, c. 367).
In re Moir’s Estate, 1904, 207 Ill. 180, 69 N.E. 905, 99 Am.St.Rep. 205; Staiar’s Adm’r v. Commonwealth, 1922, 194 Ky. 316, 239 S.W. 40; People v. Platt, 1888; 50 Hun 454, 3 N.Y.S. 367.
On the theory that Section 756 would be invalid if construed to impose the tax upon persons not domiciled in the District, based upon inferences drawn from First National Bank v. Maine, 1932, 284 U.S. 312, 52 S.Ct. 174, 76 L.Ed. 313, 77 A.L.R. 1401; Farmers Loan & Trust Co. v. Minnesota, 1930, 280 U.S. 204, 50 S.Ct. 98, 74 L.Ed. 371, 65 A.L.R. 1000; Baldwin v. Missouri, 1930, 281 U.S. 586, 50 S.Ct. 436, 74 L.Ed. 1056, 72 A.L.R. 1303; Beidler v. South Carolina Tax Commission, 1930, 282 U.S. 1, 51 S.Ct. 54, 75 L.Ed. 131. Later decisions throw some doubt upon the limitations apparently imposed by these eases. Curry v. McCanless, 1939, 307 U.S. 357, 59 S.Ct. 900, 83 L.Ed. 1339, 123 A.L.R. 162; Graves v. Elliott, 1939, 307 U.S. 383, 59 S.Ct. 913, 83 L.Ed. 1356; Worcester County Trust Co. v. Riley, 1937, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268; Texas v. Florida, 1939, 306 U.S. 398, 59 S.Ct. 563, 830, 83 L.Ed. 817, 121 A.L.R. 1179. In accordance with respondent’s theory, therefore, “maintaining a place of abode” means “domiciled.”
Construed as a conclusive definition of domicil for purposes of the tax, the section would have the same practical consequences as if construed to tax nondomiciliaries circumstanced as required by its terms.. Each view would raise difficult questions, to some extent identical, which respondent’s concession relieves us from considering. Cf. note 7 supra. Construed as having merely prima facie effect, the definition would avoid these difficulties, but would add little to the District’s revenues.
We are not required, therefore, to determine whether the legislature could foreclose inquiry into general domicil (i. e., as a constitutional condition for application of the statute to petitioner) by the special statutory definition of persons “to be considered as residents for purposes of the assessment.”
Adopting, apparently, the contemporaneous approach said to be preferable to that which traces domicil chronologically from the cradle to the grave, or other material event. Cf. 53 Harv.L.Rev. 87, 88 (loc. cit.). Respondent does not contend, therefore, that the shift occurred when, or until after, petitioner entered the Civil Service about 1919.
Respondent does not deny that petitioner’s intention was to return to Massachusetts on completing service here or that it was honest and real. Cf. 306 U.S. loc. cit. 411, 425, 59 S.Ct. 563, 830, 83 L.Ed. 817, 121 A.L.R. 1179. It is urged, however, that it could not prevent a change of domicil in the circumstances. There was also, it is said, an intention to remain here during such service, which in part was indefinite in duration. This intention rather than the former is claimed to be controlling. So put, the issue involves a conflict between two intentions, neither simulated. Resolving it would require definition of the element of permanence in animus manendi, as to which there is much uncertainty. Cf. 53 Harv.L.Rev. 83, 86; 306 U.S. 431, 59 S.Ct. 563, 830, 83 L.Ed. 817, 121 A.L.R. 1179; and note 26 infra.
it is implied, of course, that the duties require his physical presence here for the greater part of the year (normally all of it except annual leave) and that he maintains some kind of “place of abode” for purposes of residence while discharging them.
Mead v. Carrol, 1868, 6 D.C. 338; Sealey v. United States, D.C.E.D.Va., 1934, 7 F.Supp. 434; Harris v. Harris, 1927, 205 Iowa 108, 215 N.W. 661; Radford v. Radford, 1904, 26 Ky.L.Rep. 652, 82 S.W. 391; McLaughlin v. Feerick, 1931, 276 Mass. 180, 176 N.E. 779; Gallagher v. Gallagher, Tex.Civ.App., 1919, 214 S.W. 516; 1 Beale, Conflict of Laws (1935) § 21.2.
United States Court of Customs and Patent Appeals; Court of Claims of the United States; District Court of the United States for the District of Columbia ; and this court.
E. g., Comptroller General and Assistant Comptroller General (15 years); Board of Tax Appeals (12 years); Federal Reserve Board (12 years); Federal Communications Commission (7 years); Federal Trade Commission (7 years); Interstate Commerce Commission (7 years); Tariff Commission (6 years) ; Comptroller of Currency (5 years); National Labor Relations Board (5 years); Securities and Exchange Commission (5 years); Power Commission (5 years); Railroad Retirement Board (5 years).
Economic pressure forces some to give up maintenance of an establishment at home. That others are able to maintain two, one at home, one here, does not avoid the problem, but merely gives it the form of determining which is the principal one. According to the argument here and the theory on which it is based, that would be the one occupied for the greater part of the year, ordinarily that located in the District.
Entirely apart from discrimination between elected officials and coordinate judicial officers, it may be questioned whether Congress has power, directly or indirectly, to require surrender of state domiciliation and correlative citizenship •as k condition or consequence of holding Federal office or employment.
The argument appears to invest the District with something of the status of •a state, to the extent at least of assuming that the considerations controlling •change of domicil from state to state for non-Federal purposes apply with equal force to change from a state to the District expressly for Federal purposes. Whatever may be the principles or policies underlying the, asserted relaxation ■of the presumption of domiciliary continuity on removal of residence from state to state (cf. 53 Harv.L.Rev. 86, 83 note 45), we think they are inconsistent with the purpose and character of the District as the seat of the national government, and therefore the most distinctively and exclusively national place within the Union, as applied to state domiciliaries in •the Federal services. There is in no true sense a new and conflicting state or local allegiance such as characterizes removal from state to state. Undoubtedly one of the controlling considerations underlying the Constitution’s failure to prescribe or guarantee for the District the status of a state and for its residents that of state citizenship was the assumption, not widely questioned until recently, that Federal officials and employees would bring with them and retain their state citizenship while performing their duties here. That assumption is consistent with the dual form of government, the exclusively national character of the place, and the absence of a conflicting comparable local citizenship. Many of the considerations which dictated application of the presumption of continuity of English domicil by the English courts to colonial officials apply with equal force to Federal employees residing in the District for Federal purposes.
Cf. 1 Beale, Conflict of Laws (1935) § 410.7; Note (1925) 37 A.L.R. 138 (indicating that most states require domicil for voting and have constitutional provisions preventing loss of “residence” for voting purposes by absence in Government service).
Taxable status is merely one consequence of a domiciliary determination. Other civil, as well as political, rights and duties turn upon it. To the extent that domicil rules them, such a determination has the effect of stare decisis, but not of res judicata, though the immediate consequences may be distinct, in subsequent litigation. The citation of domiciliary decisions without discrimination as to the particular consequences involved in those cited and the pending case is a common, if not universal, practice. Whether it is merely indiscriminate or represents a considered rejection of the special domiciliary theory in an inappropriate application (Of. notes 8, 9 supra), tiie practical result is to malte the domiciliary determination involving one particular consequence effective, or at any rate affective, as to another.
The argument either confuses main-taming domicil with keeping a place of abode, or, more probably, assumes the point at issue in asserting their identity and ignoring or repudiating the presumption of continuity. The admission is consistent with respondent’s basic position, namely, that general, not special domicil as defined in Section 756 is involved. What is sought is not a special definition for purposes of applying the Act now repealed, but a new definition of general domicil which will apply to it and other-statutes. We cannot, therefore, assume that the effects of the decision will be limited to this statute or to taxing acts, or-therefore that political rights may not be affected.
Cf. notes 19, 20 supra. Nor is the possibility of affectation of other interests negatived, on the contrary it is magnified greatly, by the uncertainties characterizing the application of domiciliary theory. Of. note 22 infra.
Cf. Tweed and Sargent, Death and Taxes Are Certain — But What of Domicile (1939) 53 Harv.L.Rev. 68; also notes 9-11 supra. Uncertainties in the conception of domicil itself are magnified in application by the difficulties of proof and the ease with which “a small change of portions in the admixture” (306 U.S. 431) or in emphasis upon one portion as against another brings major changes in legal consequence (cf. 53 Harv.L.Rev. 86). Added effect is given by breaches in the common-law tradition of unitary domicil created by operation of other conceptions, notably res judicata, full faith and credit, and ideas of state sovereignty and limited federal judicial power [cf. Texas v. Florida, 1938, 306 U.S. 398, and the dissenting opinion page 428 ff., 59 S.Ct. 563, 830, 83 L.Ed. 817, 121 A.L.R. 1179], as well as the apparent inconsistency, for jurisdictional purposes, of special and general domicil. Cf. note 9 supra.
Deming v. United States ex rel. Ward, 1930, 59 App.D.C. 188, 37 F.2d 818; Rollings v. Rollings, 1931, 60 App.D.C. 305, 53 F.2d 917. Cf. Lankford v. Gebhart, 1885, 130 Mo. 620, 32 S.W. 1127, 51 Am.St.Rep.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_circuit
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L
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Joseph S. GULLO and Vivian B. Gullo, Appellants, v. VETERANS COOPERATIVE HOUSING ASSOCIATION et al., Appellees.
No. 14925.
United States Court of Appeals District of Columbia Circuit.
Argued May 15, 1959.
Decided May 28, 1959.
Mr. Joseph S. Gullo, Arlington, Va., for appellants.
Mr. Paul Daniel, Washington, D. C., with whom Mr. Carlyle C. Ring, Jr., Washington, D. C., was on the brief, for appellee Veterans Cooperative Housing Ass’n. Mr. James R. Worsley, Jr., Washington, D. C., also entered an appearance for appellee Veterans Cooperative Housing Ass’n.
Mr. Hubert B. Pair, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. Chester H. Gray, Corp. Counsel, and Milton D. Korman, Principal Asst. Corp. Counsel, were on the brief, for appellee District of Columbia.
Before Wilbur K. Miller, Bazelon and BASTIAN, Circuit Judges.
PER CURIAM.
This case was dismissed by the District Court apparently on the ground of res judicata, the court taking judicial notice of the previous case between the parties, the details of which are spelled out in Gullo v. Veterans Cooperative Housing Association, 1957, 101 U.S.App. D.C. 167, 247 F.2d 573.
In all its essential particulars, the present action is the same as that of the previous case, and the District Court correctly applied the doctrine of res judi-cata.
While the defense of laches was interposed, it is not necessary that we pass on that issue.
Affirmed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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sc_authoritydecision
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
INGRAHAM et al. v. WRIGHT et al.
No. 75-6527.
Argued November 2-3, 1976
Decided April 19, 1977
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Blackmun, and Rehnquist, JJ., joined. White, J., filed a dissenting opinion, in which Brennan, Marshall, and Stevens, JJ., joined, post, p. 683. Stevens, J., filed a dissenting opinion, post, p. 700.
Bruce S. Rogow argued the cause for petitioners. With him on the briefs were Howard W. Dixon and Peter M. Siegel.
Frank A. Howard, Jr., argued the cause and filed a brief for respondents.
Michael Nussbaum, Lucien Hilmer, Ronald G. Precup, and David Rubin filed a brief for the National Education Assn. as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Leon Fieldman for the National School Boards Assn.: and by Tobias Simon and Elizabeth J. du Fresne for the United Teachers of Dade, Local 1974, AFT, AFL-CIO.
Gertrude M. Bacon filed a brief for the American Psychological Association Task Force on the Rights of Children and Youths as amicus curiae.
Mr. Justice Powell
delivered the opinion of the Court.
This case presents questions concerning the use of corporal punishment in public schools: First, whether the paddling of students as a means of maintaining school discipline constitutes cruel and unusual punishment in violation of the Eighth Amendment; and, second, to the extent that paddling is constitutionally permissible, whether the Due Process Clause of the Fourteenth Amendment requires prior notice and an opportunity to be heard.
I
Petitioners James Ingraham and Roosevelt Andrews filed the complaint in this case on January 7, 1971, in the United States District Court for the Southern District of Florida. At the time both were enrolled in the Charles R. Drew Junior High School in Dade County, Fla., Ingraham in the eighth grade and Andrews in the ninth. The complaint contained three counts, each alleging a separate cause of action for deprivation of constitutional rights, under 42 U. S. C. §§ 1981-1988. Counts one and two were individual actions for damages by Ingraham and Andrews based on paddling incidents that allegedly occurred in October 1970 at Drew Junior High School. Count three was a class action for declaratory and injunctive relief filed on behalf of all students in the Dade County schools. Named as defendants in all counts were respondents Willie J. Wright (principal at Drew Junior High School), Lemmie Deliford (an assistant principal), Solomon Barnes (an assistant to the principal), and Edward L. Whigham (superintendent of the Dade County School System).
Petitioners presented their evidence at a week-long trial before the District Court. At the close of petitioners’ case, respondents moved for dismissal of count three “on the ground that upon the facts and the law the plaintiff has shown no right to relief,” Fed. Rule Civ. Proc. 41 (b), and for a ruling that the evidence would be insufficient to go to a jury on counts one and two. The District Court granted the motion as to all three counts, and dismissed the complaint without hearing evidence on behalf of the school authorities. App. 142-150.
Petitioners’ evidence may be summarized briefly. In the 1970-1971 school year many of the 237 schools in Dade County used corporal punishment as a means of maintaining discipline pursuant to Florida legislation and a local School Board regulation. The statute then in effect authorized limited corporal punishment by negative inference, proscribing punishment which was “degrading or unduly severe” or which was inflicted without prior consultation with the principal or the teacher in charge of the school. Fla. Stat. Ann. § 232.27 (1961). The regulation, Dade County School Board Policy 5144, contained explicit directions and limitations. The authorized punishment consisted of paddling the recalcitrant student on the buttocks with a flat wooden paddle measuring less than two feet long, three to four inches wide, and about one-half inch thick. The normal punishment was limited to one to five “licks” or blows with the paddle and resulted in no apparent physical injury to the student. School authorities viewed corporal punishment as a less drastic means of discipline than suspension or expulsion. Contrary to the procedural requirements of the statute and regulation, teachers often paddled students on their own authority without first consulting the principal.
Petitioners focused on Drew Junior High School, the school in which both Ingraham and Andrews were enrolled in the fall of 1970. In an apparent reference to Drew, the District Court found that “[t]he instances of punishment which could be characterized as severe, accepting the students’ testimony as credible, took place in one junior high school.” App. 147. The evidence, consisting mainly of the testimony of 16 students, suggests that the regime at Drew was exceptionally harsh. The testimony of Ingraham and Andrews, in support of their individual claims for damages, is illustrative. Because he was slow to respond to his teacher’s instructions, Ingraham was subjected to more than 20 licks with a paddle while being held over a table in the principal’s office. The paddling was so severe that he suffered a hematoma requiring medical attention and keeping him out of school for several days. Andrews was paddled several times for minor infractions. On two occasions he was struck on his arms, once depriving him of the full use of his arm for a week.
The District Court made no findings on the credibility of the students’ testimony. Rather, assuming their testimony to be credible, the court found no constitutional basis for relief. With respect to count three, the class action, the court concluded that the punishment authorized and practiced generally in the county schools violated no constitutional right. Id., at 143, 149. With respect to counts one and two, the individual damages actions, the court concluded that while corporal punishment could in some cases violate the Eighth Amendment, in this case a jury could not lawfully find “the elements of severity, arbitrary infliction, unacceptability in terms of contemporary standards, or gross disproportion which are necessary to bring 'punishment' to the constitutional level of ‘cruel and unusual punishment.’” Id., at 143.
A panel of the Court of Appeals voted to reverse. 498 F. 2d 248 (CA5 1974). The panel concluded that the punishment was so severe paid oppressive as to violate the Eighth and Fourteenth Amendments, and that the procedures outlined in Policy 5144 failed to satisfy the requirements of the Due Process Clause. Upon rehearing, the en banc court rejected these conclusions and affirmed the judgment of the District Court. 525 F. 2d 909 (1976). The full court held that the Due Process Clause did not require notice or an opportunity to be heard:
“In essence, we refuse to set forth, as constitutionally mandated, procedural standards for an activity which is not substantial enough, on a constitutional level, to justify the time and effort which would have to be expended by the school in adhering to those procedures or to justify further interference by federal courts into the internal affairs of public schools.” Id., at 919.
The court also rejected the petitioners’ substantive contentions. The Eighth Amendment, in the court’s view, was simply inapplicable to corporal punishment in public schools. Stressing the likelihood of civil and criminal liability in state law, if petitioners’ evidence were believed, the court held that “[t]he administration of corporal punishment in public schools, whether or not excessively administered, does not come within the scope of Eighth Amendment protection.” Id., at 915. Nor was there any substantive violation of the Due Process Clause. The court noted that “[p]addling of recalcitrant children has long been an accepted method of promoting good behavior and instilling notions of responsibility and decorum into the mischievous heads of school children.” Id., at 917. The court refused to examine instances of punishment individually:
“We think it a misuse of our judicial power to determine, for example, whether a teacher has acted arbitrarily in paddling a particular child for certain behavior or whether in a particular instance of misconduct five licks would have been a more appropriate punishment than ten licks....” Ibid.
We granted certiorari, limited to the questions of cruel and unusual punishment and procedural due process. 425 U. S. 990.
II
In addressing the scope of the Eighth Amendment’s prohibition on cruel and unusual punishment, this Court has found it useful to refer to “[traditional common-law concepts,” Powell v. Texas, 392 U. S. 514, 535 (1968) (plurality opinion), and to the “attitude[s] which our society has traditionally taken.” Id., at 531. So, too, in defining the requirements of procedural due process under the Fifth and Fourteenth Amendments, the Court has been attuned to what “has always been the law of the land,” United States v. Barnett, 376 U. S. 681, 692 (1964), and to “traditional ideas of fair procedure.” Greene v. McElroy, 360 U. S. 474, 508 (1959). We therefore begin by examining the way in which our traditions and our laws have responded to the use of corporal punishment in public schools.
The use of corporal punishment in this country as a means of disciplining schoolchildren dates back to the colonial period. It has survived the transformation of primary and secondary education from the colonials' reliance on optional private arrangements to our present system of compulsory education and dependence on public schools. Despite the general abandonment of corporal punishment as a means of punishing criminal offenders, the practice continues to play a role in the public education of schoolchildren in most parts of the country. Professional and public opinion is sharply divided on the practice, and has been for more than a century. Yet we can discern no trend toward its elimination.
At common law a single principle has governed the use of corporal punishment since before the American Revolution: Teachers may impose reasonable but not excessive force to discipline a child. Blackstone catalogued among the “absolute rights of individuals” the right “to security from the corporal insults of menaces, assaults, beating, and wounding,” 1 W. Blackstone, Commentaries *134, but he did not regard it a “corporal insult” for a teacher to inflict “moderate correction” on a child in his care. To the extent that force was “necessary to answer the purposes for which [the teacher] is employed,” Blackstone viewed it as “justifiable or lawful.” Id., at *453; 3 id., at *120. The basic doctrine has not changed. The prevalent rule in this country today privileges such force as a teacher or administrator “reasonably believes to be necessary for [the child’s] proper control, training, or education.” Restatement (Second) of Torts § 147 (2) (1965) ; see id., § 153 (2). To the extent that the force is excessive or unreasonable, the educator in virtually all States is subject to possible civil and criminal liability.
Although the early cases viewed the authority of the teacher as deriving from the parents, the concept of parental delegation has been replaced by the view—more consonant with compulsory education laws—that the State itself may impose such corporal punishment as is reasonably necessary “for the proper education of the child and for the maintenance of group discipline.” 1 F. Harper & F. James, Law of Torts § 3.20, p. 292 (1956). All of the circumstances are to be taken into account in determining whether the punishment is reasonable in a particular case. Among the most important considerations are the seriousness of the offense, the attitude and past behavior of the child, the nature and severity of the punishment, the age and strength of the child, and the availability of less severe but equally effective means of discipline. Id., at 290-291; Restatement (Second) of Torts § 150, Comments c-e, p. 268 (1965).
Of the 23 States that have addressed the problem through legislation, 21 have authorized the moderate use of corporal punishment in public schools. Of these States only a few have elaborated on the common-law test of reasonableness, typically providing for approval or notification of the child’s parents, or for infliction of punishment only by the principal or in the presence of an adult witness. Only two States, Massachusetts and New Jersey, have prohibited all corporal punishment in their public schools. Where the legislatures have not acted, the state courts have uniformly preserved the common-law rule permitting teachers to use reasonable force in disciplining children in their charge.
Against this background of historical and contemporary approval of reasonable corporal punishment, we turn to the constitutional questions before us.
III
The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Bail, fines, and punishment traditionally have been associated with the criminal process, and by subjecting the three to parallel limitations the text of the Amendment suggests an intention to limit the power of those entrusted with the criminal-law function of government. An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes. We adhere to this longstanding limitation and hold that the Eighth Amendment does not apply to the paddling of children as a means of maintaining discipline in public schools.
A
The history of the Eighth Amendment is well known. The text was taken, almost verbatim, from a provision of the Virginia Declaration of Rights of 1776, which in turn derived from the English Bill of Rights of 1689. The English version, adopted after the accession of William and Mary, was intended to curb the excesses of English judges under the reign of James II. Historians have viewed the English provision as a reaction either to the “Bloody Assize,” the treason trials conducted by Chief Justice Jeffreys in 1685 after the abortive rebellion of the Duke of Monmouth, or to the perjury prosecution of Titus Oates in the same year. In either case, the exclusive concern of the English version was the conduct of judges in enforcing the criminal law. The original draft introduced in the House of Commons provided:
“The requiring excessive bail of persons committed in criminal cases and imposing excessive fines, and illegal punishments, to be prevented.”
Although the reference to “criminal cases” was eliminated from the final draft, the preservation of a similar reference in the preamble indicates that the deletion was without substantive significance. Thus, Blackstone treated each of the provision’s three prohibitions as bearing only on criminal proceedings and judgments.
The Americans who adopted the language of this part of the English Bill of Rights in framing their own State and Federal Constitutions 100 years later feared the imposition of torture and other cruel punishments not only by judges acting beyond their lawful authority, but also by legislatures engaged in making the laws by which judicial authority would be measured. Weems v. United States, 217 U. S. 349, 371-373 (1910). Indeed, the principal concern of the American Framers appears to have been with the legislative definition of crimes and punishments. In re Kemmler, 136 U. S. 436, 446-447 (1890); Furman v. Georgia, 408 U. S. 238, 263 (1972) (Brennan, J., concurring). But if the American provision was intended to restrain government more broadly than its English model, the subject to which it was intended to apply—the criminal process—was the same.
At the time of its ratification, the original Constitution was criticized in the Massachusetts and Virginia Conventions for its failure to provide any protection for persons convicted of crimes. This criticism provided the impetus for inclusion of the Eighth Amendment in the Bill of Rights. When the Eighth Amendment was debated in the First Congress, it was met by the objection that the Cruel and Unusual Punishments Clause might have the effect of outlawing what were then the common criminal punishments of hanging, whipping, and earcropping. 1 Annals of Cong. 754 (1789). The objection was not heeded, “precisely because the legislature would otherwise have had the unfettered power to prescribe punishments for crimes.” Furman v. Georgia, supra, at 263.
B
In light of this history, it is not surprising to find that every decision of this Court considering whether a punishment is “cruel and unusual” within the meaning of the Eighth and Fourteenth Amendments has dealt with a criminal punishment. See Estelle v. Gamble, 429 U. S. 97 (1976) (incarceration without medical care); Gregg v. Georgia, 428 U. S. 153 (1976) (execution for murder); Furman v. Georgia, supra (execution for murder); Powell v. Texas, 392 U. S. 514 (1968) (plurality-opinion) ($20 fine for public drunkenness); Robinson v. California, 370 U. S. 660 (1962) (incarceration as a criminal for addiction to narcotics); Trop v. Dulles, 356 U. S. 86 (1958) (plurality opinion) (expatriation for desertion); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947) (execution by electrocution after a failed first attempt); Weems v. United States, supra (15 years’ imprisonment and other penalties for falsifying an official document); Howard v. Fleming, 191 U. S. 126 (1903) (10 years’ imprisonment for conspiracy to defraud) ; In re Kemmler, supra (execution by electrocution); Wilkerson v. Utah, 99 U. S. 130 (1879) (execution by firing squad); Pervear v. Commonwealth, 5 Wall. 475 (1867) (fine and imprisonment at hard labor for bootlegging).
These decisions recognize that the Cruel and Unusual Punishments Clause circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes, e. g., Estelle v. Gamble, supra; Trop v. Dulles, supra; second, it proscribes punishment grossly disproportionate to the severity of the crime, e. g., Weems v. United States, supra; and third, it imposes substantive limits on what can be made criminal and punished as such, e. g., Robinson v. California, supra. We have recognized the last limitation as one to be applied sparingly. “The primary purpose of [the Cruel and Unusual Punishments Clause] has always been considered, and properly so, to be directed at the method or kind of punishment imposed for the violation of criminal statutes....” Powell v. Texas, supra, at 531-532 (plurality opinion).
In the few cases where the Court has had occasion to confront claims that impositions outside the criminal process constituted cruel and unusual punishment, it has had no difficulty finding the Eighth Amendment inapplicable. Thus, in Fong Yue Ting v. United States, 149 U. S. 698 (1893), the Court held the Eighth Amendment inapplicable to the deportation of aliens on the ground that “deportation is not a punishment for crime,” Id., at 730; see Mahler y. Eby, 264 U. S. 32 (1924); Bugajewitz v. Adams, 228 U. S. 585 (1913). And in Uphaus v. Wyman, 360 U. S. 72 (1959), the Court sustained a judgment of civil contempt, resulting in incarceration pending compliance with a subpoena, against a claim that the judgment imposed cruel and unusual punishment. It was emphasized that the case involved “ 'essentially a civil remedy designed for the benefit of other parties... exercised for centuries to secure compliance with judicial decrees.’ ” Id., at 81, quoting Green v. United States, 356 U. S. 165, 197 (1958) (dissenting opinion).
C
Petitioners acknowledge that the original design of the Cruel and Unusual Punishments Clause was to limit criminal punishments, but urge nonetheless that the prohibition should be extended to ban the paddling of schoolchildren. Observing that the Framers of the Eighth Amendment could not have envisioned our present system of public and compulsory education, with its opportunities for noncriminal punishments, petitioners contend that extension of the prohibition against cruel punishments is necessary lest we afford greater protection to criminals than to schoolchildren. It would be anomalous, they say, if schoolchildren could be beaten without constitutional redress, while hardened criminals suffering the same beatings at the hands of their jailers might have a valid claim under the Eighth Amendment. See Jackson v. Bishop, 404 F. 2d 571 (CA8 1968); cf. Estelle v. Gamble, supra. Whatever force this logic may have in other settings, we find it an inadequate basis for wrenching the Eighth Amendment from its historical context and extending it to traditional disciplinary practices in the public schools.
The prisoner and the schoolchild stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration. The prisoner’s conviction entitles the State to classify him as a “criminal,” and his incarceration deprives him of the freedom “to be with family and friends and to form the other enduring attachments of normal life.” Morrissey v. Brewer, 408 U. S. 471, 482 (1972); see Meachum v. Fano, 427 U. S. 215, 224-225 (1976). Prison brutality, as the Court of Appeals observed in this case, is “part of the total punishment to which the individual is being subjected for his crime and, as such, is a proper subject for Eighth Amendment scrutiny.” 525 F. 2d, at 915. Even so, the protection afforded by the Eighth Amendment is limited. After incarceration, only the “ ‘unnecessary and wanton infliction of pain,' ” Estelle v. Gamble, 429 U. S., at 103, quoting Gregg v. Georgia, 428 U. S., at 173, constitutes cruel and unusual punishment forbidden by the Eighth Amendment.
The schoolchild has little need for the protection of the Eighth Amendment. Though attendance may not always be voluntary, the public school remains an open institution. Except perhaps when very young, the child is not physically restrained from leaving school during school hours; and at the end of the school day, the child is invariably free to return home. Even while at school, the child brings with him the support of family and friends and is rarely apart from teachers and other pupils who may witness and protest any instances of mistreatment.
The openness of the public school and its supervision by the community afford significant safeguards against the kinds of abuses from which the Eighth Amendment protects the prisoner. In virtually every community where corporal punishment is permitted in the schools, these safeguards are reinforced by the legal constraints of the common law. Public school teachers and administrators are privileged at common law to inflict only such corporal punishment as is reasonably necessary for the proper education and discipline of the child; any punishment going beyond the privilege may result in both civil and criminal liability. See Part II, supra. As long as the schools are open to public scrutiny, there is no reason to believe that the common-law constraints will not effectively remedy and deter excesses such as those alleged in this case.
We conclude that when public school teachers or administrators impose disciplinary corporal punishment, the Eighth Amendment is inapplicable. The pertinent constitutional question is whether the imposition is consonant with the requirements of due process.
IV
The Fourteenth Amendment prohibits any state deprivation of life, liberty, or property without due process of law. Application of this prohibition requires the familiar two-stage analysis: We must first ask whether the asserted individual interests are encompassed within the Fourteenth Amendment's protection of “life, liberty or property"; if protected interests are implicated, we then must decide what procedures constitute “due process of law.” Morrissey v. Brewer, 408 U. S., at 481; Board of Regents v. Roth, 408 U. S. 564, 569-572 (1972). See Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975). Following that analysis here, we find that corporal punishment in public schools implicates a constitutionally protected liberty interest, but we hold that the traditional common-law remedies are fully adequate to afford due process.
A
“[T]he range of interests protected by procedural due process is not infinite.” Board of Regents v. Roth, supra, at 570. We have repeatedly rejected “the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause.” Meachum v. Fano, 427 U. S., at 224. Due process is required only when a decision of the State implicates an interest within the protection of the Fourteenth Amendment. And “to determine whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake.” Roth, supra, at 570-571.
The Due Process Clause of the Fifth Amendment, later incorporated into the Fourteenth, was intended to give Americans at least the protection against governmental power that they had enjoyed as Englishmen against the power of the Crown. The liberty preserved from deprivation without due process included the right “generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Meyer v. Nebraska, 262 U. S. 390, 399 (1923); see Dent v. West Virginia, 129 U. S. 114, 123-124 (1889). Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.
While the contours of this historic liberty interest in the context of our federal system of government have not been defined precisely, they always have been thought to encompass freedom from bodily restraint and punishment. See Rochin v. California, 342 U. S. 165 (1952). It is fundamental that the state cannot hold and physically punish an individual except in accordance with due process of law.
This constitutionally protected liberty interest is at stake in this case. There is, of course, a de minimis level of imposition with which the Constitution is not concerned. But at least where school authorities, acting under color of state law, deliberately decide to punish a child for misconduct by restraining the child and inflicting appreciable physical pain, we hold that Fourteenth Amendment liberty interests are implicated.
B
“[T]he question remains what process is due.” Morrissey v. Brewer, supra, at 481. Were it not for the common-law privilege permitting teachers to inflict reasonable corporal punishment on children in their care, and the availability of the traditional remedies for abuse, the case for requiring advance procedural safeguards would be strong indeed. But here we deal with a punishment—paddling—within that tradition, and the question is whether the common-law remedies are adequate to afford due process.
“‘[D]ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.... Representing a profound attitude of fairness... 'due process' is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess...." Anti-Fascist Comm. v. McGrath, 341 U. S. 123, 162-163 (1951) (Frankfurter, J., concurring).
Whether in this case the common-law remedies for excessive corporal punishment constitute due process of law must turn on an analysis of the competing interests at stake, viewed against the background of “history, reason, [and] the past course of decisions.” The analysis requires consideration of three distinct factors: “First, the private interest that will be affected... ; second, the risk of an erroneous deprivation of such interest... and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [state] interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U. S. 319, 335 (1976). Cf. Arnett v. Kennedy, 416 U. S. 134, 167-168 (1974) (Powell, J., concurring).
1
Because it is rooted in history, the child’s liberty interest in avoiding corporal punishment while in the care of public school authorities is subject to historical limitations. Under the common law, an invasion of personal security gave rise to a right to recover damages in a subsequent judicial proceeding. 3 W. Blackstone, Commentaries *120-121. But the right of recovery was qualified by the concept of justification. Thus, there could be no recovery against a teacher who gave only “moderate correction” to a child. Id., at *120. To the extent that the force used was reasonable in light of its purpose, it was not wrongful, but rather “justifiable or lawful.” Ibid.
The concept that reasonable corporal punishment in school is justifiable continues to be recognized in the laws of most States. See Part II, supra. It represents “the balance struck by this country,” Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting), between the child’s interest in personal security and the traditional view that some limited corporal punishment may be necessary in the course of a child’s education. Under that longstanding accommodation of interests, there can be no deprivation of substantive rights as long as disciplinary corporal punishment is within the limits of the common-law privilege.
This is not to say that the child’s interest in procedural safeguards is insubstantial. The school disciplinary process is not “a totally accurate, unerring process, never mistaken and never unfair....” Goss v. Lopez, 419 U. S. 565, 579-580 (1975). In any deliberate infliction of corporal punishment on a child who is restrained for that purpose, there is some risk that the intrusion on the child’s liberty will be unjustified and therefore unlawful. In these circumstances the child has a strong interest in procedural safeguards that minimize the risk of wrongful punishment and provide for the resolution of disputed questions of justification.
We turn now to a consideration of the safeguards that are available under applicable Florida law.
2
Florida has continued to recognize, and indeed has strengthened by statute, the common-law right of a child not to be subjected to excessive corporal punishment in school. Under Florida law the teacher and principal of the school decide in the first instance whether corporal punishment is reasonably necessary under the circumstances in order to discipline a child who has misbehaved. But they must exercise prudence and restraint. For Florida has preserved the traditional judicial proceedings for determining whether the punishment was justified. If the punishment inflicted is later found to have been excessive—not reasonably believed at the time to be necessary for the child's discipline or training—the school authorities inflicting it may be held liable in damages to the child and, if malice is shown, they may be subject to criminal penalties.
Although students have testified in this case to specific instances of abuse, there is every reason to believe that such mistreatment is an aberration. The uncontradicted evidence suggests that corporal punishment in the Dade County schools was, “[w]ith the exception of a few cases,... unremarkable in physical severity.” App. 147. Moreover, because paddlings are usually inflicted in response to conduct directly observed by teachers in their presence, the risk that a child will be paddled without cause is typically insignificant. In the ordinary case, a disciplinary paddling neither threatens seriously to violate any substantive rights nor condemns the child “to suffer grievous loss of any kind.” Anti-Fascist Comm. v. McGrath, 341 U. S., at 168 (Frankfurter, J., concurring).
In those cases where severe punishment is contemplated, the available civil and criminal sanctions for abuse—considered in light of the openness of the school environment—afford significant protection against unjustified corporal punishment. See supra, at 670. Teachers and school authorities are unlikely to inflict corporal punishment unnecessarily or excessively when a possible consequence of doing so is the institution of civil or criminal proceedings against them.
It still may be argued, of course, that the child's liberty interest would be better protected if the common-law remedies were supplemented by the administrative safeguards of prior notice and a hearing. We have found frequently that some kind of prior hearing is necessary to guard against arbitrary impositions on interests protected by the Fourteenth Amendment. See, e. g., Board of Regents v. Roth, 408 U. S., at 569-570; Wolff v. McDonnell, 418 U. S. 539, 557-558 (1974); cf. Friendly, 123 U. Pa. L. Rev., at 1275-1277. But where the State has preserved what “has always been the law of the land,” United States v. Barnett, 376 U. S. 681 (1964), the case for administrative safeguards is significantly less compelling.
There is a relevant analogy in the criminal law. Although the Fourth Amendment specifically proscribes “seizure” of a person without probable cause, the risk that police will act unreasonably in arresting a suspect is not thought to require an advance determination of the facts. In United States v. Watson, 423 U. S. 411 (1976), we reaffirmed the traditional common-law rule that police officers may make warrantless public arrests on probable cause. Although we observed that an advance determination of probable cause by a magistrate would be desirable, we declined “to transform this judicial preference into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause....” Id., at 423; see id., at 429 (Powell, J., concurring). Despite the distinct possibility that a police officer may improperly assess the facts and thus unconstitutionally deprive an individual of liberty, we declined to depart from the traditional rule by which the officer’s perception is subjected to judicial scrutiny only after the fact. There is no more reason to depart from tradition and require advance procedural safeguards for intrusions on personal security to which the Fourth Amendment does not apply.
3
But even if the need for advance procedural safeguards were clear, the question would remain whether the incremental benefit could justify the cost. Acceptance of petitioners’ claims would work a transformation in the law governing corporal punishment in Florida and most other States. Given the impracticability of formulating a rule of procedural due process that varies with the severity of the particular imposition, the prior hearing petitioners seek would have to precede any paddling, however moderate or trivial.
Such a universal constitutional requirement would significantly burden the use of corporal punishment as a disciplinary measure. Hearings—even informal hearings—require time, personnel, and a diversion of attention from normal school pursuits. School authorities may well choose to abandon corporal punishment rather than incur the burdens of complying with the procedural requirements. Teachers, properly concerned with maintaining authority in the classroom, may well prefer to rely on other disciplinary measures—which they may view as less effective—rather than confront the possible disruption that prior notice and a
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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sc_casesource
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030
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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.
Terance Martez GAMBLE, Petitioner
v.
UNITED STATES
No. 17-646
Supreme Court of the United States.
Argued December 6, 2018
Decided June 17, 2019
Jeffrey B. Wall, Acting Solicitor General, Brian A. Benczkowski, Assistant Attorney General, Eric J. Feigin, Jenny C. Ellickson, Assistants to the Solicitor General, Ross B. Goldman, Attorney, Department of Justice, Washington, DC, for Respondent.
Barre C. Dumas, Mobile, AL, Robert N. Stander, Jones Day, Washington, DC, Louis A. Chaiten, Emmett E. Robinson, Jones Day, Cleveland, OH, Amanda K. Rice, Jones Day, Detroit, MI, for Petitioner.
Louis A. Chaiten, Cleveland, OH, for Petitioner.
Eric J. Feigin, Washington, DC, for Respondent.
Kyle D. Hawkins, Solicitor General, for Texas, et al. as amicus curiae, in support of affirmance.
Justice ALITO delivered the opinion of the Court.
We consider in this case whether to overrule a longstanding interpretation of the Double Jeopardy Clause of the Fifth Amendment. That Clause provides that no person may be "twice put in jeopardy" "for the same offence." Our double jeopardy case law is complex, but at its core, the Clause means that those acquitted or convicted of a particular "offence" cannot be tried a second time for the same "offence." But what does the Clause mean by an "offence"?
We have long held that a crime under one sovereign's laws is not "the same offence" as a crime under the laws of another sovereign. Under this "dual-sovereignty" doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute.
Or the reverse may happen, as it did here. Terance Gamble, convicted by Alabama for possessing a firearm as a felon, now faces prosecution by the United States under its own felon-in-possession law. Attacking this second prosecution on double jeopardy grounds, Gamble asks us to overrule the dual-sovereignty doctrine. He contends that it departs from the founding-era understanding of the right enshrined by the Double Jeopardy Clause. But the historical evidence assembled by Gamble is feeble; pointing the other way are the Clause's text, other historical evidence, and 170 years of precedent. Today we affirm that precedent, and with it the decision below.
I
In November 2015, a local police officer in Mobile, Alabama, pulled Gamble over for a damaged headlight. Smelling marijuana, the officer searched Gamble's car, where he found a loaded 9-mm handgun. Since Gamble had been convicted of second-degree robbery, his possession of the handgun violated an Alabama law providing that no one convicted of "a crime of violence" "shall own a firearm or have one in his or her possession." Ala. Code § 13A-11-72(a) (2015) ; see § 13A-11-70(2) (defining "crime of violence" to include robbery). After Gamble pleaded guilty to this state offense, federal prosecutors indicted him for the same instance of possession under a federal law-one forbidding those convicted of "a crime punishable by imprisonment for a term exceeding one year... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g)(1).
Gamble moved to dismiss on one ground: The federal indictment was for "the same offence" as the one at issue in his state conviction and thus exposed him to double jeopardy. But because this Court has long held that two offenses "are not the'same offence' " for double jeopardy purposes if "prosecuted by different sovereigns," Heath v. Alabama, 474 U.S. 82, 92, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985), the District Court denied Gamble's motion to dismiss. Gamble then pleaded guilty to the federal offense while preserving his right to challenge the denial of his motion to dismiss on double jeopardy grounds. But on appeal the Eleventh Circuit affirmed, citing the dual-sovereignty doctrine. 694 Fed. Appx. 750 (2017). We granted certiorari to determine whether to overturn that doctrine. 585 U.S. ----, 138 S.Ct. 2707, 201 L.Ed.2d 1095 (2018).
II
Gamble contends that the Double Jeopardy Clause must forbid successive prosecutions by different sovereigns because that is what the founding-era common law did. But before turning to that historical claim, see Part III infra, we review the Clause's text and some of the cases Gamble asks us to overturn.
A
We start with the text of the Fifth Amendment. Although the dual-sovereignty rule is often dubbed an "exception" to the double jeopardy right, it is not an exception at all. On the contrary, it follows from the text that defines that right in the first place. "[T]he language of the Clause... protects individuals from being twice put in jeopardy 'for the same offence,' not for the same conduct or actions," Grady v. Corbin, 495 U.S. 508, 529, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), as Justice Scalia wrote in a soon-vindicated dissent, see United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (overruling Grady ). And the term " '[o]ffence' was commonly understood in 1791 to mean 'transgression,' that is, 'the Violation or Breaking of a Law.' " Grady, 495 U.S. at 529, 110 S.Ct. 2084 (Scalia, J., dissenting) (quoting Dictionarium Britannicum (Bailey ed. 1730)). See also 2 R. Burn & J. Burn, A New Law Dictionary 167 (1792) ("OFFENCE, is an act committed against law, or omitted where the law requires it"). As originally understood, then, an "offence" is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two "offences." See Grady, 495 U.S. at 529, 110 S.Ct. 2084 (Scalia, J., dissenting) ("If the same conduct violates two (or more) laws, then each offense may be separately prosecuted"); Moore v. Illinois, 14 How. 13, 17, 14 L.Ed. 306 (1852) ("The constitutional provision is not, that no person shall be subject, for the same act, to be twice put in jeopardy of life or limb; but for the same offence, the same violation of law, no person's life or limb shall be twice put in jeopardy" (emphasis added)).
Faced with this reading, Gamble falls back on an episode from the Double Jeopardy Clause's drafting history. The first Congress, working on an earlier draft that would have banned "'more than one trial or one punishment for the same offence,' " voted down a proposal to add " 'by any law of the United States.' " 1 Annals of Cong. 753 (1789). In rejecting this addition, Gamble surmises, Congress must have intended to bar successive prosecutions regardless of the sovereign bringing the charge.
Even if that inference were justified-something that the Government disputes-it would count for little. The private intent behind a drafter's rejection of one version of a text is shoddy evidence of the public meaning of an altogether different text. Cf. United States v. Craft, 535 U.S. 274, 287, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002) ("[F]ailed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute" (internal quotation marks omitted)).
Besides, if we allowed conjectures about purpose to inform our reading of the text, the Government's conjecture would prevail. The Government notes that the Declaration of Independence denounced King George III for "protecting [British troops] by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States." ¶ 17. The Declaration was alluding to "the so-called Murderers' Act, passed by Parliament after the Boston Massacre," Amar, Sixth Amendment First Principles, 84 Geo. L. J. 641, 687, n. 181 (1996), a law that allowed British officials indicted for murder in America to be " 'tried in England, beyond the control of local juries.' " Ibid. (quoting J. Blum et al., The National Experience 95 (3d ed. 1973)). "During the late colonial period, Americans strongly objected to... [t]his circumvention of the judgment of the victimized community." Amar, 84 Geo. L. Rev., at 687, n. 181. Yet on Gamble's reading, the same Founders who quite literally revolted against the use of acquittals abroad to bar criminal prosecutions here would soon give us an Amendment allowing foreign acquittals to spare domestic criminals. We doubt it.
We see no reason to abandon the sovereign-specific reading of the phrase "same offence," from which the dual-sovereignty rule immediately follows.
B
Our cases reflect the same reading. A close look at them reveals how fidelity to the Double Jeopardy Clause's text does more than honor the formal difference between two distinct criminal codes. It honors the substantive differences between the interests that two sovereigns can have in punishing the same act.
The question of successive federal and state prosecutions arose in three antebellum cases implying and then spelling out the dual-sovereignty doctrine. The first, Fox v. Ohio, 5 How. 410, 12 L.Ed. 213 (1847), involved an Ohio prosecution for the passing of counterfeit coins. The defendant argued that since Congress can punish counterfeiting, the States must be barred from doing so, or else a person could face two trials for the same offense, contrary to the Fifth Amendment. We rejected the defendant's premise that under the Double Jeopardy Clause "offences falling within the competency of different authorities to restrain or punish them would not properly be subjected to the consequences which those authorities might ordain and affix to their perpetration." Id., at 435. Indeed, we observed, the nature of the crime or its effects on "public safety" might well "deman[d]" separate prosecutions. Ibid. Generalizing from this point, we declared in a second case that "the same act might, as to its character and tendencies, and the consequences it involved, constitute an offence against both the State and Federal governments, and might draw to its commission the penalties denounced by either, as appropriate to its character in reference to each." United States v. Marigold, 9 How. 560, 569, 13 L.Ed. 257 (1850).
A third antebellum case, Moore v. Illinois, 14 How. 13, 55 U.S. 13, 14 L.Ed. 306, expanded on this concern for the different interests of separate sovereigns, after tracing it to the text in the manner set forth above. Recalling that the Fifth Amendment prohibits double jeopardy not "for the same ac[t]" but "for the same offence," and that "[a]n offence, in its legal signification, means the transgression of a law," id., at 19, we drew the now-familiar inference: A single act "may be an offence or transgression of the laws of" two sovereigns, and hence punishable by both, id., at 20. Then we gave color to this abstract principle-and to the diverse interests it might vindicate-with an example. An assault on a United States marshal, we said, would offend against the Nation and a State: the first by "hindering" the "execution of legal process," and the second by "breach[ing]" the "peace of the State." Ibid. That duality of harm explains how "one act" could constitute "two offences, for each of which [the offender] is justly punishable." Ibid.
This principle comes into still sharper relief when we consider a prosecution in this country for crimes committed abroad. If, as Gamble suggests, only one sovereign may prosecute for a single act, no American court-state or federal-could prosecute conduct already tried in a foreign court. Imagine, for example, that a U.S. national has been murdered in another country. That country could rightfully seek to punish the killer for committing an act of violence within its territory. The foreign country's interest lies in protecting the peace in that territory rather than protecting the American specifically. But the United States looks at the same conduct and sees an act of violence against one of its nationals, a person under the particular protection of its laws. The murder of a U.S. national is an offense to the United States as much as it is to the country where the murder occurred and to which the victim is a stranger. That is why the killing of an American abroad is a federal offense that can be prosecuted in our courts, see 18 U.S.C. § 2332(a)(1), and why customary international law allows this exercise of jurisdiction.
There are other reasons not to offload all prosecutions for crimes involving Americans abroad. We may lack confidence in the competence or honesty of the other country's legal system. Less cynically, we may think that special protection for U.S. nationals serves key national interests related to security, trade, commerce, or scholarship. Such interests might also give us a stake in punishing crimes committed by U.S. nationals abroad-especially crimes that might do harm to our national security or foreign relations. See, e.g., § 2332a(b) (bombings). These examples reinforce the foundation laid in our antebellum cases: that a crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate.
We cemented that foundation 70 years after the last of those antebellum cases, in a decision upholding a federal prosecution that followed one by a State. See United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922) ("[A]n act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each"). And for decades more, we applied our precedent without qualm or quibble. See, e.g., Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) ; Jerome v. United States, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640 (1943) ; Puerto Rico v. Shell Co. (P. R.), Ltd., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235 (1937) ; Westfall v. United States, 274 U.S. 256, 47 S.Ct. 629, 71 L.Ed. 1036 (1927) ; Hebert v. Louisiana, 272 U.S. 312, 47 S.Ct. 103, 71 L.Ed. 270 (1926). When petitioners in 1959 asked us twice to reverse course, we twice refused, finding "[n]o consideration or persuasive reason not presented to the Court in the prior cases" for disturbing our "firmly established" doctrine. Abbate v. United States, 359 U.S. 187, 195, 79 S.Ct. 666, 3 L.Ed.2d 729 ; see also Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684. And then we went on enforcing it, adding another six decades of cases to the doctrine's history. See, e.g., Puerto Ricov.Sánchez Valle, 579 U.S. ----, 136 S.Ct. 1863, 195 L.Ed.2d 179 (2016) ; Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) ; United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) ; Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977) ( per curiam ).
C
We briefly address two objections to this analysis.
First, the dissents contend that our dual-sovereignty rule errs in treating the Federal and State Governments as two separate sovereigns when in fact sovereignty belongs to the people. See post, at 1990 (opinion of GINSBURG, J.); post, at 1999 (opinion of GORSUCH, J.). This argument is based on a non sequitur. Yes, our Constitution rests on the principle that the people are sovereign, but that does not mean that they have conferred all the attributes of sovereignty on a single government. Instead, the people, by adopting the Constitution, "'split the atom of sovereignty.' " Alden v. Maine, 527 U.S. 706, 751, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (alteration omitted) (internal quotation marks and citation omitted). As we explained last Term:
"When the original States declared their independence, they claimed the powers inherent in sovereignty.... The Constitution limited but did not abolish the sovereign powers of the States, which retained 'a residuary and inviolable sovereignty.' The Federalist No. 39, p. 245 (C. Rossiter ed. 1961). Thus, both the Federal Government and the States wield sovereign powers, and that is why our system of government is said to be one of 'dual sovereignty.' Gregory v. Ashcroft, 501 U.S. 452, 457 [111 S.Ct. 2395, 115 L.Ed.2d 410] (1991)." Murphy v. National Collegiate Athletic Assn., 584 U.S. ----, ----, 138 S.Ct. 1461, 1475, 200 L.Ed.2d 854 (2018).
It is true that the Republic is " 'ONE WHOLE,' " post, at 1990 (opinion of GINSBURG, J.) (quoting The Federalist No. 82, p. 493 (C. Rossiter ed. 1961) (A. Hamilton)); accord, post, at 1999 (opinion of GORSUCH, J.). But there is a difference between the whole and a single part, and that difference underlies decisions as foundational to our legal system as McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819). There, in terms so directly relevant as to seem presciently tailored to answer this very objection, Chief Justice Marshall distinguished precisely between "the people of a State" and "[t]he people of all the States," id., at 428, 435 ; between the "sovereignty which the people of a single state possess" and the sovereign powers "conferred by the people of the United States on the government of the Union," id., at 429-430 ; and thus between "the action of a part" and "the action of the whole," id., at 435-436. In short, McCulloch's famous holding that a State may not tax the national bank rested on a recognition that the States and the Nation have different "interests" and "right[s]." Id., 431, 436. One strains to imagine a clearer statement of the premises of our dual-sovereignty rule, or a more authoritative source. The United States is a federal republic; it is not, contrary to Justice GORSUCH's suggestion, post, at 2001 - 2002, a unitary state like the United Kingdom.
Gamble and the dissents lodge a second objection to this line of reasoning. They suggest that because the division of federal and state power was meant to promote liberty, it cannot support a rule that exposes Gamble to a second sentence. See post, at 1990 - 1991 (opinion of GINSBURG, J.); post, at 1999 - 2000 (opinion of GORSUCH, J.). This argument fundamentally misunderstands the governmental structure established by our Constitution. Our federal system advances individual liberty in many ways. Among other things, it limits the powers of the Federal Government and protects certain basic liberties from infringement. But because the powers of the Federal Government and the States often overlap, allowing both to regulate often results in two layers of regulation. Taxation is an example that comes immediately to mind. It is also not at all uncommon for the Federal Government to permit activities that a State chooses to forbid or heavily restrict-for example, gambling and the sale of alcohol. And a State may choose to legalize an activity that federal law prohibits, such as the sale of marijuana. So while our system of federalism is fundamental to the protection of liberty, it does not always maximize individual liberty at the expense of other interests. And it is thus quite extraordinary to say that the venerable dual-sovereignty doctrine represents a " 'desecrat[ion]' " of federalism. Post, at 2000 (opinion of GORSUCH, J.).
III
Gamble claims that our precedent contradicts the common-law rights that the Double Jeopardy Clause was originally understood to engraft onto the Constitution-rights stemming from the "common-law pleas of auterfoits acquit [former acquittal] and auterfoits convict [former conviction]." Grady, 495 U.S. at 530, 110 S.Ct. 2084 (Scalia, J., dissenting). These pleas were treated as "reason[s] why the prisoner ought not to answer [an indictment] at all, nor put himself upon his trial for the crime alleged." 4 W. Blackstone, Commentaries on the Laws of England 335 (1773) (Blackstone). Gamble argues that those who ratified the Fifth Amendment understood these common-law principles (which the Amendment constitutionalized) to bar a domestic prosecution following one by a foreign nation. For support, he appeals to early English and American cases and treatises. We have highlighted one hurdle to Gamble's reading: the sovereign-specific original meaning of "offence." But the doctrine of stare decisis is another obstacle.
Stare decisis "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Of course, it is also important to be right, especially on constitutional matters, where Congress cannot override our errors by ordinary legislation. But even in constitutional cases, a departure from precedent "demands special justification." Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). This means that something more than "ambiguous historical evidence" is required before we will "flatly overrule a number of major decisions of this Court." Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 479, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987). And the strength of the case for adhering to such decisions grows in proportion to their "antiquity." Montejo v. Louisiana, 556 U.S. 778, 792, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009). Here, as noted, Gamble's historical arguments must overcome numerous "major decisions of this Court" spanning 170 years. In light of these factors, Gamble's historical evidence must, at a minimum, be better than middling.
And it is not. The English cases are a muddle. Treatises offer spotty support. And early state and federal cases are by turns equivocal and downright harmful to Gamble's position. All told, this evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns' laws-much less do so with enough force to break a chain of precedent linking dozens of cases over 170 years.
A
Gamble's core claim is that early English cases reflect an established common-law rule barring domestic prosecution following a prosecution for the same act under a different sovereign's laws. But from the very dawn of the common law in medieval England until the adoption of the Fifth Amendment in 1791, there is not one reported decision barring a prosecution based on a prior trial under foreign law. We repeat: Gamble has not cited and we have not found a single pre-Fifth Amendment case in which a foreign acquittal or conviction barred a second trial in a British or American court. Given this void, Gamble faces a considerable challenge in convincing us that the Fifth Amendment was originally understood to establish such a bar.
Attempting to show that such a bar was available, Gamble points to five early English decisions for which we have case reports. We will examine these in some detail, but we note at the outset that they play only a secondary role for Gamble.
The foundation of his argument is a decision for which we have no case report: the prosecution in England in 1677 of a man named Hutchinson. (We have a report of a decision denying Hutchinson bail but no report of his trial.) As told by Gamble, Hutchinson, having been tried and acquitted in a foreign court for a murder committed abroad, was accused of the same homicide in an English tribunal, but the English court held
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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_respond1_1_4
|
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 business (including criminal enterprises)", specifically "transportation". Your task is to determine what subcategory of business best describes this litigant.
MISSISSIPPI INVESTMENTS, Inc., v. NEW ORLEANS & NORTH EASTERN R. CO. et al.
No. 13219.
United States Court of Appeals Fifth Circuit.
April 6, 1951.
Garner W. Green,' Reynolds Cheney, Jackson, Miss., Jack McDill, Laurel, Miss., for appellant.
Ben F. Cameron, Meridian, Miss., J. Blanc Monroe, New Orleans, La., for appellee.
Before HUTCHESON, Chief Judge, and McCORD and BORAH, Circuit Judges.
BORAH, Circuit Judge.
This suit for a declaratory judgment was brought by New Orleans & North Eastern Railroad 'Company (Railroad) against Mississippi Investments, Inc., (Investments) and Frank Gardner Hardware & Supply Company (Hardware) to cancel Investment’s claim that Railroad could not lease a portion of its then unused lands at Laurel, Mississippi, to Hardware and others for warehouse purposes; to compel Hardware to perform certain lease agreements; and to have the court declare and adjudge its right to lease the lands for such purposes.
The material facts, so far as they need be stated, are these: Railroad alleges that it is the real owner of and in possession of certain lands in the City of Laurel, having acquired title thereto under the following deeds. The first of these deeds, dated January 28, 1882, was from W. F. Evans & Company, predecessor in title of Investments, and conveyed to Railroad a right of way for two hundred feet south of the half-section line of Sec. 6, T. 8 N. R. 11 W. Three months later, in April 1882, Evans & Company conveyed to Railroad an additional two hundred foot strip of land, being one hundred feet on each side of and parallel to the original two hundred foot grant. This deed recites that the land was conveyed for the “sole and only purposes of Depot, sidings and switches and other railroad purposes.” In September, 1887, John Kamper by two deeds conveyed to Railroad certain parcels of land lying north of the half-section line of Section 6, a description of which need not here be stated for reasons presently appearing.
Following the conveyances described, Railroad entered into possession of the lands, constructed its railroad thereon, and for more than 60 years continuously occupied and used the lands as part of its interstate railroad. In June, 1945, Investments began to question the right of Railroad to lease these lands to its customers and patrons. Thereafter, Railroad entered into leasing agreements with Hardware, under the terms of which Railroad leased certain portions of the lands south of the half-section line which were not, in its judgment, needed at the time for railroad tracks, sidings, depots and other like purposes. These leases provide in substance that the lands demised are to be occupied and used for the purpose of erecting a warehouse for the conduct of lessee’s hardware business involving the storage and handling of freight forwarded and received by the lessee over the lessor’s railroad lines and for no other purposes. Under the terms of the leases, Railroad is to receive a substantial compensation as rent.
In August, 1948, Investments gave notice to both Hardware and Railroad that neither of them had any valid claim of right in the lands and that Railroad had never had so much as a conveyance of a restricted easement therein. Because of this attitude of Investments and its threat to initiate litigation, Hardware refused to perform under the contracts and in consequence Railroad brought this action.
Prior to the institution of suit, Investments gave Railroad notice that its title in the lands lying north of the half-section line was being slandered. In its answer, however, it disclaimed any interest in the land. north of the half-section line but claimed ownership of the fee in that land lying south of the half-section line, west of the railroad track, and specifically denied that Railroad had other than an easement therein. In view of this claim on the part of Investments, that the deeds from W. F. Evans & Company conveyed only an easement for railroad purposes, Railroad, in order to simplify the issues, assented to that contention for the purposes of this action. Consequently, the trial court in its judgment did not determine ownership of the fee but assumed that these two deeds conveyed only an easement for railroad purposes.
The arguments in this case have taken a wider range than is required for its decision. The important question here is whether Railroad, having an easement in lands, has the general right to lease portions of its unused lands to its patrons for the maintenance of warehouses and other like structures for the receipt and delivery of freight shipments. Specifically involved is the question as to whether plaintiff’s leases with Hardware were for railroad purposes and in conformity with the duty which Railroad owes to the public.
Regardless of what the law may be in other jurisdictions, we have no doubt whatever but that under the decisions of the highest court of the State of Mississippi, which are controlling, the leases to Hardware were for a use consistent with the purposes for which the easements were acquired and were not so foreign to railroad purposes as to constitute an abandonment or an additional servitude not permissible under the right of title acquired for railroad purposes. Weir v. Standard Oil Co., 136 Miss. 205, 101 So. 290, 292; Jones v. City of Hattiesburg, Miss., 42 So.2d 717; see Mitchell v. Illinois Cent. R. Co., 384 Ill. 258, 51 N.E.2d 271, 149 A.L.R. 369 ; 44 Am. Jur., § 144, p. 358; Anderson v. Interstate Mfg. Co., 152 Iowa 455, 132 N.W. 812, 36 L.R.A.,N.S., 512 et seq.; 94 A.L.R. 522 et seq.; Wilzinsky v. Louisville, N. O. & T. Ry. Co., 66 Miss. 595, 6 So. 709, upon which Investments relies, is not contra but is clearly distinguishable on its facts.
We are not impressed by defendant s contention that the judgment of the court below imposes onerous burdens on the servient estate. The court below did not determine ownership of the fee, nor did it give the Railroad unlimited authority to lease the lands for any and every purpose. The judgment was rendered on the basis of facts before the court and the obligation rests on Railroad to see to it that the use of the land sued on conforms to the concept of “railroad purposes.” If Railroad should deviate from that concept, it will have placed itself beyond the scope of the judgment and cannot claim its protection. Therefore, all rights which Investments ever possessed are preserved in their entirety.
Other points raised by Investments have been carefully considered but do not merit discussion.
The judgment was right and it will be affirmed.
Affirmed.
. The deed dated January 28, 1882 reads in part as follows: “I hereby grant, bargain, sell and quit claim unto the said New Orleans and North Eastern Railroad Company, a Right of Way for two hundred feet, through the following lands, to-wit: The N.W. % N. % S.W. % Sec. 32. T. 9 N.R. 11 W. Also the S.E. % . of Sec. 6, and the N.E. J4 Sec. 7 & the S.E. Yi of S.W. Yl Sec.'7 in T. 8 N.R. 11 W.”
. The deed dated April 29, 1882 reads in part as follows: “We hereby sell and quitclaim to * * * an additional two hundred feet through the E/2 of S. E./4 of Sec. 6 T. 8 N.R. 11 West in Jones County, being one hundred feet on each side of and parallel to the right of way heretofore granted * * * for the sole- and only purposes of Depot, sidings and. switches and other railroad purposes.”'
Question: This question concerns the first listed respondent. 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:
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songer_summary
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D
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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 appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Appellee, v. Joey Lee MOON, Appellant.
No. 73-1334.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 17, 1973.
Decided March 6, 1974.
Ralph Edwards and John J. Bahnak, Jr., St. Louis, Mo., for appellant.
Donald J. Stohr, U. S. Atty., and Thomas Earl Loraine, Asst. U. S. Atty., St. Louis, Mo., for appellee.
Before LAY and BRIGHT, Circuit Judges, and EISELE, District Judge.
G. THOMAS EISELE, District Judge, Eastern District of Arkansas, sitting by designation.
PER CURIAM.
The defendant, Joey Lee Moon, was charged by juvenile information with possession of a firearm which had not been registered to him pursuant to the relevant provision of 26 U.S.C. § 5861 (d), which reads:
It shall be unlawful for any person—
******
(d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.
The district court convicted him of violating such provision following a bench trial. Moon brings this timely appeal contending that § 5861(d), as applied, violated his Fifth Amendment right to due process. We reject this contention and affirm.
The facts disclose that the police, while investigating a motor vehicle accident, observed and removed a sawed-off shotgun from Moon’s automobile. Moon claimed that he found the gun and that he kept it for two weeks to “show off.” On these facts, the trial court rendered a guilty verdict.
. On appeal, Moon argues that since he had found an abandoned weapon, any prosecution against him for possession of the weapon would be unreasonable and, therefore, a denial of due process. We disagree.
In order to convict Moon, the government had to establish the following elements: (1) that defendant knowingly possessed the firearm; (2) that the object possessed was in fact a firearm; and (3) that such firearm was unregistered. United States v. Freed, 401 U.S. 601, 612, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) (Brennan, J., concurring). The government made such showing here. The prosecution needed to prove no more.
In United States v. Johnson, 441 F.2d 1134, 1136 (5th Cir. 1971), the court stated, in response to a charge that the statute was unconstitutionally vague, that “possession of such firearm, if unregistered, whether abandoned or not, is prohibited.” Moreover, in Milentz v. United States, 446 F.2d 111 (8th Cir. 1971), we said that “specific intent to violate the law [§ 5861(d)] is not a necessary element of the crime,” but we stressed that the act of possession of the weapon must be “willing and knowing.” Id. at 113, 114. The prosecution made a showing that Moon was not merely an innocent finder but rather a possessor of the weapon who kept the shotgun in his automobile for two weeks for “kicks” and to “show off” to his friends.
Thus, we hold the conviction proper and the appeal without merit.
Affirmed.
EISELE, District Judge, concurs in the result.
Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_procedur
|
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 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.
UNITED STATES of America, Plaintiff-Appellee, v. Robert Paul NEMETH, Defendant-Appellant.
No. 20024.
United States Court of Appeals, Sixth Circuit.
Aug. 18, 1970.
Charles E. Peyton (Court Appointed) Louisville, Ky., for appellant on brief.
John L. Smith, U. S. Atty., Louisville, Ky., for appellee on brief.
Before WEICK, CELEBREZZE and PECK, Circuit Judges.
PER CURIAM.
Appellant was observed by two Louisville police officers outside a Louisville bank at 2:15 a. m. on February 10, 1969. The officers testified that as they approached appellant he was standing beside the bank’s night deposit box and that as soon as he saw them, he made a motion as though he were throwing something away and began walking rapidly away from the bank. After questioning appellant about his actions and his reason for being in the area at that time of night and receiving vague and unsatisfactory answers, the police arrested appellant on loitering and disorderly conduct charges. Subsequent investigation at the bank disclosed that $750' was missing from the night deposit box, and an envelope scoop device bearing appellant’s fingerprint was found inside the night deposit box. Appellant was then indicted, tried and convicted by a jury of violation of 18 U.S.C. § 2113(b), larceny of a federally insured bank. This appeal followed.
Appellant did not take the witness stand or offer any evidence in his defense at the trial. The government’s case against him consisted principally of the circumstances of his arrest, of the fact that $750 was missing from the bank’s night deposit box, and of the fact that appellant’s fingerprint was on the envelope device found inside the night deposit box. The government’s final witness was an FBI agent who, after testifying that he was familiar with the method of committing larceny of bank night deposit boxes by the use of wires and envelope scoop devices, testified that appellant had a prior conviction of the same offense with which he was charged in this case. All of the pertinent testimony on this point is contained in the following:
“Q. [By the U. S. Att’y.] Mr. Doma-lewski, [FBI Agent] are you familiar with the defendant, Robert Paul Nemeth?
“A. Yes, I am.
“Q. And how long have you been familiar with him, sir?
“A. I have had knowledge of Robert Paul Nemeth for approximately five years.
“Q. And in what way?
“A. Mr. Nemeth was first brought to my attention in connection with activity of which I had an interest.
“Q. All right; has he been convicted before ?
“Mr. Peyton: [Defense Counsel] Objection, Your Honor.
“By the Court: Overruled.
“Mr. Peyton: Move that the jury be discharged.
“By the Court: Overruled. I will give the jury an admonition at the right time.
“Q. Has Mr. Nemeth been convicted under the same statute before, using that same kind of device?
“A. Yes, sir; he has.”
Although the trial judge immediately instructed the jury in substance that evidence of a prior conviction could not be considered as evidence of guilt of the offense charged, the testimony, and the manner in which it was presented, was so prejudicial that appellant’s conviction must be reversed and a new trial ordered.
The general rule is that evidence of prior criminal activity is inadmissible to prove the commission of a later offense. The only exceptions to that rule are that when intent, motive or lack of mistake are in issue, evidence of prior similar and related offenses tending to show a consistent pattern of conduct is admissible if accompanied by appropriate cautionary instructions. E. g., Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919 (1949); Gilstrap v. United States, 389 F.2d 6, 9-10 (5th Cir. 1968); Zamora v. United States, 369 F.2d 855, 858-859 (10th Cir. 1966), cert. denied, 386 U.S. 913, 87 S.Ct. 863, 17 L.Ed.2d 785 (1967); United States v. Kirkpatrick, 361 F.2d 866, 868 (6th Cir. 1966); Kowalchuk v. United States, 176 F.2d 873, 878 (6th Cir. 1949). Furthermore, in order to show a consistent pattern of conduct relating to the offense charged, the evidence must be of prior similar acts reasonably near in time to the offense charged. Gilstrap v. United States, supra; Whaley v. United States, 324 F.2d 356, 358 (9th Cir. 1963), cert. denied, 376 U.S. 911, 84 S.Ct. 665, 11 L.Ed.2d 609 (1964).
Here there was no showing where or by what means the appellant committed the prior act, nor was it shown to be related in point of time or otherwise to the offense charged. From all that appears in this testimony, appellant had one prior conviction for the same offense. Presumably this was within the five year period prior to his trial in this case, although even this is not clear. If such is an accurate reflection of the record, even proper evidence of facts concerning a prior offense would be inadmissible as too remote in time. Finally, the manner in which the evidence was presented to the jury was particularly objectionable since the only thing stressed in the instruction to the jury was the agent’s hearsay statement that appellant had a prior conviction of the same offense. Evidence of this fact even if properly documented, would clearly be inadmissible where the defendant does not testify and his character is not otherwise in issue. Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892); United States v. Rudolph, 403 F.2d 805, 807 (6th Cir. 1968).
Since the substance and the pres-. entation of the evidence here was clearly inadmissible and prejudicial, the trial judge’s cautionary instruction immediately following the agent’s testimony cannot be held to have cured the error. As stated above, properly authenticated evidence of prior offenses is admissible only if accompanied by appropriate instructions.' However, otherwise proper cautionary instructions cannot supply the first element of the exceptions to the general rule, i. e., authenticated evidence of prior similar offenses tending to show a consistent pattern of conduct.
The remaining issues raised by appellant are either without merit or consideration of them is unnecessary in light of the disposition of this ease.
The judgment of the District Court is reversed and the case is remanded with instructions to grant the appellant a new trial.
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_circuit
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
MARYLAND CAS. CO. v. NEIMAN-MARCUS CO.
No. 13131.
United States Court of Appeals Fifth Circuit.
Jan. 5, 1951.
W. J. Holt, Harold Hoffman, and Pat Coon, all of Dallas, Tex., for appellant.
Newton Gresham, Houston, Tex., William A. Rembert, Jr., J. L. Lancaster, Jr., Dallas, Tex., for appellee.
Before HUTCHESON, Chief Judge, and McCORD and BORAH, Circuit Judges.
HUTCHESON, Chief Judge.
The suit was against several insurers for the recovery of losses the insured had sustained. The complaint, alleging that the defendants named had investigated the loss suffered and had agreed that the amount claimed, $80,344.52 was correct, set forth a schedule apportioning it among the defendants. It then went on to say: that defendant, Maryland Casualty Company, had taken the position that the damage to plaintiff’s property sued for was not the result of the perils insured against by it; that it was, therefore, not liable for any part of the loss; and that the other companies named, while admitting their liability for the whole sum, claim that, under the terms of its policy, Maryland is also liable for one-half of it and the other companies for the other half in the proportions set out in plaintiffs schedule.
Maryland answered, denying that the losses sued for by plaintiff were the result of perils insured against in Maryland’s policy and setting out the nature and limits of the coverage that policy afforded.
It further pleaded: that one object insured by its policy was known as a shell •cooler or heat exchanger; that that object •did not explode but froze; that the defendant had paid plaintiff for all loss of property directly damaged as the result of that freezing; that the property for which plaintiff sues was not directly damaged by the freezing; that an interval of approximately three hours elapsed between the cracking and the escape of ammonia and the time the explosion occurred in a fire 'box or furnace in the basement of plaintiff’s building; and that the damage plaintiff sues for did not result directly from the freezing and cracking of the shell cooler, but from an intervening cause, the negligence of plaintiff’s employees in failing to keep the fan running and in failing to discover the •situation before the explosion and thereby prevent the loss it caused.
The other defendants in answers of substantially the same purport, claimed, as plaintiff had pleaded they did, that Maryland was liable for one-half the loss, and -they were liable for the other half, in the proportions scheduled.
The case was tried to a jury, and, at the conclusion of all the evidence, the court instructed a verdict for the plaintiff against the defendants, apportioning it in accordance with plaintiff’s claim, and Maryland Casualty Company has appealed.
Here it argues vigorously that the evidence presented a fact issue upon whether, within the meaning of its policies, the cracking of the shell cooler directly damaged the property, the loss of which is sued for, and that the judge erred in directing a verdict.
It argues further that, assuming its liability for a part of the damages, it was error to hold it liable under the pro rata liability clause of its policy for one-half of the damages. It insists that, on the contrary, the loss charged to it should have been arrived at by the application of the pro rata liability clauses of the other insurance companies in accordance with the amount of insurance carried by each.
On the issue of Maryland’s liability, the other companies rely, indeed they pitch their whole case, upon Dixie Pine Products Co. v. Maryland Cas. Co., 5 Cir., 133 F.2d 583, in which Maryland made substantially the same contention it makes here, and our decision in Federal Insurance Co. v. Tamiami Trail Tours, 5 Cir., 117 F.2d 794, and similar cases.
On the issue of apportionment, the other insurance companies, insisting that Maryland must stand bound to its own proposal, point out that their pro rata clauses could not apply to Maryland, because their policies covered different perils from that insured against by Maryland, and their pro rata clauses were made expressly to apply only to policies covering the same peril, while Maryland’s was not.
They urge upon us, therefore, that the only pro rata clause that could apply here, as between them and Maryland, is the “other insurance” provision or pro rata clause of the Maryland policy.
We are not in any doubt that under the holding in the Dixie Pine case the evidence was ample to support a jury finding that Maryland is liable under its policy. Nor are we in any, despite Maryland’s urging to the contrary, that the evidence establishes Maryland’s liability as matter of law and the instructed verdict was justified.
Precise and careful examination of the record in the light of the arguments and contentions of appellant convinces us that the record is completely devoid of any evidence tending to show, as claimed by Maryland, that the occurrence was a furnace explosion or a fire loss within the “furnace explosion” or fire loss explosion clauses of its policy. It convinces us, too-, of the complete untenableness of Maryland’s contention, that the claimed negligence of the insured, in not keeping the exhaust fan running and in not sooner discovering the escape of the ammonia and protecting against ■its consequences, was, within our holding in the Dixie Pine Products case an “intermediate controlling and self-sufficient” intervening cause [133 F.2d 585], Federal Ins. Co. v. Tamiami, supra.
Appellant’s argument, vigorously put forward in its supplemental brief, that this is a case not of insured’s negligence prior to the occurrence of the accident, which is, of course, not a defense, but of its failure after the accident to- take all necessary precautions to minimize its results, finds no support in the record. The evidence it refers to and relies on goes only to- the negligence in not having the fan running and the negligence in not sooner discovering the danger and preventing its consequences. There is not one syllable of evidence showing, or tending to show, that plaintiff knew of the situation in time to prevent the consequences, the losses from which this suit was brought to recoup. There is none to rebut the compelling inference that the destruction of the property sued for was- directly caused by the freezing and cracking of the shell cooler and the escape of the ammonia, the peril 'Maryland’s policy admittedly insured against.
An examination of the opinions on the two appeals in the Dixie Pine Products case, including Judge Sibley’s concurring opinion, shows -that the fact issues, which the case was sent back to try, are not presented in this case. They were: (1) whether the ruptured pipe was an “inter-connecting pipe and as such a part of the extractor vessel, or whether it was an outlet pipe excluded from the policy provisions”; (2) whether “neglecting to extinguish the fire” after it became known was the true direct cause of the explosion; and (3) whether the injured extractors were not injured by overpressure caused by the pump rather than by the external explosion and before the explosion took place.
When the case came back the second time, the Court said: “Appellee bolstered its case by further showing -that it was not negligent in failing to prevent the explosive vapors from reaching the boilers.”
Two of the judges who- sat in the Dixie Pine Products case had sat also in the Tamiami case, and the third judge was in full agreement with the Tamiami decision. That Court certainly did not intend to hold, as is in effect contended here, that an issue of fact was made by the claim here put forward that there was negligence on the part of the insured in not discovering the danger and preventing its consequences.
Appellant’s other point, that the judgment was wrong in fixing Maryland’s liability at one-half of the loss, is, we think, no better taken. Indeed when -it is considered that -both appellant and appellees agree that the plaintiff could have claimed from Maryland, without joining the other companies, or from them, without joining Maryland, the whole loss, it is difficult to understand how Maryland can predicate a legal complaint against the judgment which condemns it to pay only half of the loss.
If, as appellees contend, the pro rata clause of Maryland’s policy 'is applicable because, though the risks insured against are different from those insured against in their policies, Maryland “has, by its policy recognized its liability to share with any other insurance covering the loss (regardless of identity of property and peril)”, certainly Maryland cannot complain of the application of that clause merely because the insurance carried by it is much less than that carried by the other companies.
If the shoe were on the other foot, if Maryland’s policy were for $3,000,000 and the other policies in the aggregate for only $500,000, Maryland would have been the last to raise the cry it now raises that its pro rata clause was not applicable and the loss must be apportioned on the basis of the insurance carried by each company. Had this cry been raised by the others those circumstances, Maryland could and would have pointed to the terms of its policy as fixing its proportion of the loss as one-half, regardless of the amount of the insurance it carried.
If, as appellant insists and as appellees agree, the principle of contribution among co-insurers does not apply in the absence of “other insurance”, or “pro rata clauses” in the various policies, and if, as appellant further insists, to constitute other insurance which will permit proration of a loss, the policies “must cover the same risk, property, or subject matter and interest”, it seems clear to us that Maryland is not in a position to claim injury when, liable for the whole amount and, without benefit of contribution or proration, it is sued, and recovered against, for only one-half of its full liability.
The cases appellant cites as supporting its claim to an equitable apportionment do- not do so. The Bergstrom Paper Co. v. Continental Ins. Co. case, 7 Cir., 174 F.2d 636, in our view, is to the contrary, for it presented as the primary consideration in a suit where several insurance companies are concerned, “the insured must be fully indemnified”, and because of this, it modified the pro rata clause of policies which would otherwise have been given effect. It did this not on any considerations of equitable apportionment but on the strict basis, as far as that was possible, of the contracts of the insurance companies, and it assessed the whole of the “gap” or deficiency against Hartford because the peculiar clause of its policy and the facts did not warrant the extension of liability on the other policy beyond the limit fixed in its clause. Instead of being a holding in favor of settling issues of the kind raised here on general equitable principles, the invoked decision gave a strict construction to the apportionment clauses as far as possible and departed from them only to the extent necessary to-satisfy insured’s demand.
If the opinion of the district court in the other case cited, New Amsterdam Casualty Co. v. Hartford, Accident & Indemnity Co., D.C., 18 F.Supp. 707, can be considered as containing anything in it of benefit to appellant, this was swept away on appeal, 6 Cir., 108 F.2d 653, 656, by the holding of the appellate court that appellant was liable for the whole loss “and the view of the District Court that the parties were coinsurers is erroneous”.
It is admitted by all that plaintiff had a right to join all the companies with Maryland in the suit, and, this being so, it is difficult to see how Maryland can complain because plaintiff elected to treat its pro rata clause as applicable and to claim no more from it than was fixed thereby.
Finally, if equitable considerations, rather than plaintiff’s election within the limits of the full liability which the insurers were under, are to be entertained, there is much to be said for the view put forward in Hartford Steam Boiler Inspection & Insurance Company v. Cochran Oil Mill & Ginnery Co., 26 Ga.App. 288, 105 S.E. 856, that between two insurers, one limiting its liability to injuries growing out of boiler insurance, the other being general, the boiler insurer should be held primarily liable because the risk it had specifically insured against was the source of the liability.
Here the source of the liability was the peril Maryland had insured against. But for the freezing and cracking of the shell cooler, there would have been no liability. In a suit to recover the losses caused thereby, if equities are to be invoked, there is much to be said for the view that requiring Maryland to pay only one-half of the loss is certainly not visiting an inequity on it.
The judgment is Affirmed.
. Maryland Casualty Company $39,836.68 Fireman’s Fund Indemnity Company ................. 671.15 Royal Insurance Company, Ltd...................... 13,278.90 United States Fire Insurance Company ................ 3,319.72 The Home Insurance Company 1.659.86 Aetna Insurance Company .., 1,327.89 Fire Association of Philadelphia ..................... 3,651.70 Insurance Company of North America .................. 9i,959.17 Springfield Fire & Marine Ins. Co....................... 6,639.45 Total $80,344.52
. This was only accidents to “All Refrigerating Vessels and Piping of Refrigerating and air conditioning systems”; “All air tanks, hot water tanks, clothes pressing machines, hot blast heating units and steam radiators”; “All Fire Tube & Water Tube Boilers”; and “All C.I.S. Hot Water Supply Boilers and Storage and coil water heaters”; but excluded furnace explosion in connection with the aforesaid boilers and water heaters, and, in connection with the aforesaid C.I.S. water supply boilers and water heaters, excluded boiler piping. Further, in this respect, this defendant says that its policy covered only loss on property “directly damaged” by the accident which it insured against.
. “3. In the event of loss of a kind described in Sections I, II and HI, to which both this insurance and other insurance carried by the Assured apply, herein referred to as ‘joint losses’, the Company shall be liable only for the proportion of the said joint loss that the amount independently payable under this policy on account of said loss (had no other insurance existed) bears to the combined total of the said amount and the amount independently payable under all other insurance on account of said loss (had there been no insurance under this policy). Suits against Assured.”
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_appel2_1_4
|
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 second listed appellant. 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.
METAL STAMPING CORPORATION et al. v. GENERAL MOTORS CORPORATION.
Circuit Court of Appeals, Seventh Circuit.
June 18, 1929.
No. 4086.
Arthur H. Boettcher, of Chicago, 111., for appellants.
Thomas Francis Howe and Henry S. Rademaeher, both of Chicago, 111., for appellee. •
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
ALSCHULER, Circuit Judge.
The appeal is from an order of the District Court awarding a preliminary injunction against appellants, restraining them from making, or marketing when so made, hub caps for automobiles upon which appear the names “Buiek,” “Oakland,” “Chevrolet,” or “Pontiac,” in unqualified imitation of appellee’s registered trade-marks for such names, as applied by appellee to the hub caps of automobiles which appellee manufactures and sells under such several names.
As is well understood, the hub cap is screwed onto and covers the hub of the wheel, and has the function of protecting the bearings against dust and grit. Caps for the various makes of cars are of different size and design, and are evidently made to be ornamental as well as useful. As the caps of these makes protrude more or less prominently, they are quite subject to injury from contact, and in their use quite occasionally become unscrewed and lost, making replacement necessary. They are, in value, an insignificant part of the machine, those in question being listed to the user at from 20 to 85 cents apiece.
It was the practice of appellants, one to manufacture and the other to distribute caps for the different makes of ears, in exact imitation of those wherewith the ears were equipped by their makers. An assortment of the various caps would then he placed upon a large display card, with name of car and price of caps printed on the card, and the cards thus equipped distributed among garages and other dealers in automobile parts, where the car owner seeking to replace a cap might select and purchase one like those on his car.
The bill alleges that appellee is the manufacturer of these makes of ears, and the owner of the registered trade-marks which have long’ been used in connection with such ears; and that it manufactures and offers for sale the various replacement parts, including hub caps, in which it continuously does a large business.
Appellants contend that the automobile owner himself has the lawful right to replace parts, and that therefore appellants have the right to make and to sell to the owners such parts for replacement. Generally speaking, this is not controverted. Indeed, appellee concedes to appellants the right to make and sell for replacement the hub caps in exact form of the originals, but denies the right to place upon the caps appellee’s trade-marks. It contends that the trade-mark indicates the origin of the product, and its employment by another is calculated to lead the ultimate buyer to.believe that the caps so marked were the output of appellee.
This contention seems to be logical and just, and has the sanction of excellent authority. A leading ease is Moline Plow Co. v. Omaha Iron Store Co., 235 F. 519 (8 C. C. A.), where plowshares for replacement in Moline Company’s plows were stamped with a monogram closely simulating the registered trade-mark which the Moline Company placed upon its plowshares, whether sold on its plows or sold for replacement. Although it appeared that upon each of the alleged offending shares there was pasted a printed statement that they were made by a concern other than the Moline Company, the court denied the right to make and sell for replacement purposes plowshares with the closely simulated Moline trade-mark thereon.
In another ease a maker of internal combustion engines, which were trade-marked with the name “Duro,” sought relief against a maker of spark plugs which were fitted for use in the Duro engine, from marking the spark plugs with the name “Duro.” Injunctive relief was awarded, and was sustained in Duro Co. v. Duro Co., 27 F.(2d) 339 (3 C. C. A.).
But appellants contend that in the ease of the hub caps the trade-mark thereon is made to serve the purpose not alone of a trade-mark, but to help give an individualistic and pleasing appearance to the ear itself, which would be marred if an original hub cap should be replaced by another which was materially different in appearance from the rest, and that this would be the result if the replacement cap was not an exact imitation, in all respects, of the others.
While we hardly think that this fact alone would be sufficient to justify appropriation of appellee’s trade-mark, we are of the belief that the suggestion is more argumentative than real. Certainly, when the ear is in motion, it would scarcely be perceptible whether, between hub caps otherwise alike, one had and another had not the name thereon; and since the different wheels of the car do not synchronize in their movement, it would only be by chance that thé lettering on any two'o'f the caps would be in the same position when the ear is at rest.
It is easily conceivable that, other things being equal, many car owners may prefer replacement parts to be the product of the makers of their cars, in which case the maker’s trade-mark on the copied hub cap might induce the assumption that the hub cap was an output of the makers of the cars, and thus the buyer be deceived by this false indication of origin, and this wholly regardless of whether or not such was the intent of those who made and sold the hub cap.
That the cards on which the hub caps were placed bore the printed statement that the maker was one of appellants is quite beside the question. Purchasers may not notice the printing on the cards, and may act wholly upon the faith of the representation of origin which the name on the cap is likely to convey.
There is no potency in the suggestion, repeatedly put forth for appellants, that to sustain appellee’s contentions would give it a monopoly on supplying such replacement parts whereon it had placed its trade-mark, and would enable it to extort unconscionable prices from those who must have the parts. If the public insists upon having trademarked parts which are the output of the original maker of the ear, then in such sense the maker of the ear may have a monopoly. We see no reason why the maker may not stamp its mark on every nut and bolt which enters into the construction. This would not prevent others from making and supplying for replacement sueh nut or bolt or other parts just like those of the original, but it would not justify others in placing thereon any distinctive arbitrary mark which would tend to make the public believe the parts to be the output of the trade-mark owner.
If unconscionable and extortionate practices of the ear maker in respect to the supplying of replacement parts may injuriously affect his status in a court of equity when he there seeks protection of his lawful trademarks, it is sufficient to say that the record here so far discloses no facts which tend to indicate that for any such reason the court should have withheld its injunctive order.
From the present state of the record we are satisfied that it sufficiently appears that the placing of appellee’s trade-marks upon hub caps made and sold by appellants is a representation to the ultimate purchaser of their origin with appellee, and is to that extent an invasion of its rights; and we must conclude that in awarding a temporary injunction the District Court did not transgress its discretion. -
The decree 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 "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:
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songer_source
|
A
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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.
Louie King FONG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 17744.
United States Court oí Appeals Ninth Circuit.
June 27, 1962.
Sullivan, Redman & Winsor, and John J. Sullivan, Seattle, Wash., for appellant.
Brockman Adams, U. S. Atty., and Phillip DeTurk, Asst. U. S. Atty., Seattle, Wash., for appellee.
Before POPE, HAMLEY and BROWNING, Circuit Judges.
POPE, Circuit Judge.
This case was first instituted by the filing of a complaint in the District Court of the United States for the Western District of Washington, by Fong, as plaintiff, against John P. Boyd, District Director of Immigration and Naturalization Service of the United States Department of Justice, as defendant. The complaint sought judicial review by way of a declaratory judgment of a deportation order of the Immigration and Naturalization Service through its special inquiry officer, which found and determined that the plaintiff Fong was, as a deportable alien, not eligible to apply for or obtain suspension of deportation under Sec. 244(a) of the Immigration and Nationality Act of 1952, (8 U.S.C.A. § 1254(a)).
After answer had been filed in the district court, the litigation there was carried through a pretrial hearing and entry of a pretrial order in which all the facts of the case were stipulated by the parties. Thereafter, and before any further hearing was had in the district court, the Act of September 26, 1961, (Public Law 87-301), 75 Stat. 650 to 657, became effective as of October 26, 1961, 18 U.S.C.A. § 1101 et seq. Section 5 of that Act provided, with certain exceptions not here relevant, that: “The procedure prescribed by, and all the provisions of the Act of December 29, 1950, as amended (64 Stat. 1129; 68 Stat. 961; 5 U.S.C. 1031 et seq.), shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings * * It also provided: “Any judicial proceeding to review an order of deportation which is pending unheard in any district court of the United States on the effective date of this section (other than a habeas corpus or criminal proceeding in which the validity of the deportation order has been challenged) shall be transferred for determination in accordance with this section to the court of appeals having jurisdiction to entertain a petition for review under this section.” 8 U.S. C.A. § 1105a. The case was transferred by order of the district court to this court in accordance with the statutory provision quoted.
The record shows that prior to the filing of his complaint in the district court, (the complaint is now treated as a petition for review as provided by the Act of December 29, 1950, (5 U.S.C.A. § 1031 et seq.), petitioner had exhausted all of his administrative remedies.
Petitioner made timely application for suspension of deportation and at a time when no final order of deportation had been served on him. In affirming the order of the special inquiry officer, the Board of Immigration Appeals, to whom the record had been certified, stated the admitted facts respecting the petitioner, as follows: “The pertinent case history will be reviewed briefly. The undisputed facts are that respondent, a native Chinese citizen, was brought to the United States in October 1943 from Trinidad, British West Indies, where he had been taken about 1942, following rescue after the sinking of a British tanker on which he was working as a seaman in the Atlantic. He began sailing in 1941 and the purpose of his admission to the United States in 1943 was to allow him to ship out as a seaman or otherwise give service in the war effort. He registered for military service, was medically examined and classified IV(F). He has remained in the United States continuously and has worked intermittently. He failed to furnish notification of address or other information in February 1953 as required by Section 265 of the Immigration and Nationality Act [8 U.S.C.A. § 1305]. He is unmarried and has no dependent ties here. He has no criminal record. Good moral character and physical presence in the United States for a continuous period of ten years are established. The hardship factor is present. No evidence has been presented to indicate that the alien has any connection with subversive groups. He has lived here 17 years. * * * Although the evidence shows that after admission as a nonimmigrant respondent failed to comply with the terms and conditions of his admission; and/or as a nonimmigrant he remained longer than permitted; and that he acquired a deportable status about 1944 (8 U.S.C. 203, 214 and 215, Act of 1924 ), no charge has been urged under current law based on that violation of the immigration laws (8 U.S.C. 1251 (a) (2)). Respondent has been found deportable solely for failure to furnish notification of address or other information in 1953 as required by Section 265 of the Immigration and Nationality Act. This ground for deportation was lodged in the hearing and is assigned under Section 241(a) (5) of the Immigration and Nationality Act.”
The issues considered by the administrative officers and decided against the petitioner were stated as follows: “The controversial issue, as clearly stated by the special inquiry officer and counsel, is a question of law pertaining to one of the statutory requirements which the alien has not met under Section 244(a) (5) of the Immigration and Nationality Act. This question arises because the alien acquired a deportable status on two occasions, namely in 1944 and 1953, respectively. The question is whether the date of the first deportable status acquired by the respondent in 1944, which constitutes a ground for deportation (other than one specified in Section 244 (a) (5)), may be a basis for computing continuous residence in the United States and thus satisfy the resident provision of the last mentioned section of law, which requires that an alien must have been physically present in the United States for a continuous period of ‘not less than ten years immediately following the commission of an act or the assumption of a status, constituting a ground for deportation.’ The special inquiry officer has ruled in the negative.”
The applicable statute, upon whose construction the outcome of this case' depends, is Sec. 244(a) of the Immigration and Nationality Act of 1952, (Title 8 U.S.C.A. § 1254(a)), which undertakes to describe and define the persons to whom suspension of deportation may be granted by the Attorney General. That subdivision contains five numbered paragraphs, the fifth of which has significance here. It is the only paragraph under which petitioner could possibly apply for suspension of deportation. Paragraph (5), with the introductory paragraph of the section, reads as follows: “§ 1254. (a). As hereinafter described in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who — ■ * * * (5) is deportable under paragraphs (4) — (7), (11), (12), (14)-(17), or (18) of section 1251(a) of this title for an act committed or status acquired subsequent to such entry into the United States or having last entered the United States within two years prior to, or at any time after June 27, 1952, is deportable under paragraph (2) of section 1251(a) of this title as a person who has remained longer in the United States than the period for which he was admitted; has been physically present in the United States for a continuous period of not less than ten years immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation, and proves that during all of such period he has been and is a person of good moral character; has not been served with a final order of deportation issued pursuant to this chapter in deportation proceedings up to the time of applying to the Attorney General for suspension of deportation; and is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or to his spouse, parent, or child, who is a citizen or an alien lawfully admitted for permanent residence.”
The report of the special inquiry officer noted that petitioner became deportable at various times: — “he became deport-able shortly after entry by accepting employment inconsistent with non-immigrant status or by remaining longer than the period for which he was admitted, which would fix his deportable status as commencing sometime early in 1944.” “He also acquired a deportable status by virtue of the charge upon which deporta-bility is based, failure to report his address annually to the Attorney General.” His first violation under this provision occurred about February 1, 1953.
It is also to be noted that the first ground for deportability would be the ground mentioned in paragraph 2 of Sec. 1251(a) of Title 8, namely, “Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who — * * * (2)'entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or in violation of any other law of the United States.” It is not one of the paragraphs listed in the first line of paragraph (5) quoted above. However, failure to register is described in paragraph 5 of Sec. 1251(a), which is one of the paragraphs mentioned in paragraph (5) which we have quoted above as a part of Sec. 1254.
The case is one of first impression and neither party has been able to cite cases or decisions in point. In support of the finding of the administi'ative officers, counsel for the respondent Immigration and Naturalization Service argues that it was necessary for this petitioner to prove that “he has had physical presence in the United States for a continuous period of ten years after he has last become deportable.” (Emphasis ours.)
The main trouble with that contention is that the statute here in question does not so state. On the other hand, as petitioner shows, the quoted paragraph (5), in referring to physical presence in the United States for a continuous period of not less than ten years, states “immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation.” (Emphasis ours) If it was the intent to give the paragraph the meaning which the special inquiry officer has given it, it would have been a simple matter to have made this language read: “Immediately following the commission of the act, or the assumption of the status, constituting the ground upon which deportation is ordered. * * * ”
We think that at the very least it must be said that the manner in which this paragraph is worded left it open to two possible constructions. If that is the case, then the principle which should be applied here is that stated in Barber v. Gonzales, 347 U.S. 637, 642, 74 S.Ct. 822, 98 L.Ed. 1009, as follows: “Although not penal in character, deportation statutes as a practical matter may inflict ‘the equivalent of banishment or exile’, Fong Haw Tan v. Phelan, 333 U.S. 6, 10, [68 S.Ct. 374, 92 L.Ed. 433] and should be strictly construed.”
Furthermore, to give the language of this section the meaning which respondent has applied in ruling petitioner ineligible for suspension of deportation would make the statutory language appear irrational and lacking in ordinary common sense. The conduct of this petitioner which forms the basis of the order for his deportation is innocuous and minor when compared with the sort of conduct which would constitute the basis for deportation under the various paragraphs listed in the first line of the quoted paragraph (5). Included there are persons convicted of crimes involving moral turpitude, anarchists, members of the Communist party, or persons who advocate totalitarian dictatorship, or the overthrow by force, violence or other unconstitutional means of the Government of the United States; narcotics addicts, persons convicted of violation of laws relating to illicit traffic in narcotic drugs; persons convicted of possession of automatic weapons or sawed-off shotguns. Any of these persons, ten years after the cause of their deportability, would be eligible for suspension of deportation. It does indeed appear to be irrational so to construe this paragraph as to bar from suspension of deportation this petitioner whose record shows years of good behavior, no moral turpitude whatever, and only a minor infraction of law through a failure to register.
It seems difficult to square with the statute as a whole any thought that Congress, through the use of ambiguous or vague language in the section here involved, intended to limit its declared purpose of granting the Attorney General broad powers to avoid the hardships of deportation through the use of the authority to suspend deportation. It should be remembered that the use of that power is always subject to the strict limitations of Sec. 1254 which requires Congressional approval of the Attorney General’s extension of clemency. As stated in Addison v. Holly Hill Fruit Products, 322 U.S. 607, 617, 64 S.Ct. 1215, 88 L.Ed. 1488: “If legislative policy is couched in vague language, easily susceptible of one meaning as well as another in the common speech of men, we should not stifle a policy by a pedantic or grudging process of construction.”
As in the case of Delgadillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 92 L.Ed. 17, we feel that “the hazards to which we are now asked to subject the alien are too irrational to square with the statutory scheme.”
The statutory provisions relating to suspension of deportation are designed to ameliorate the ordinary drastic consequences of an order of deportation. As stated by Mr. Justice Douglas, in speaking for the Court in Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433: “We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388 [68 S.Ct. 10, 92 L.Ed. 17]. It is a forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.”
Accordingly we hold that those portions of the orders of the respondent holding petitioner not eligible for suspension of deportation are invalid and they are set aside. 5 U.S.C.A. § 1032. The cause is remanded to the respondent Immigration and Naturalization Service with directions to modify its orders in conformity with this opinion. 5 U.S.C.A. § 1009(e).
The title of this proceeding is ordered amended as follows: LOUIE KING FONG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
. In the matter before the special hearing officer Fong was held (a) to be deport-able; and (b) ineligible for suspension of deportation. The order as to deportation is not in issue here; the only questions presented relate to the order as to eligibility for suspension of deportation. .
. In his complaint in the district court Fong properly named the District Director of Immigration and Naturalization Service as defendant. The new statute, Public Law 87-301, supra, provides that “The action shall be brought against the Immigration and Naturalization Service, as respondent.” The petitioner’s briefs in this court continue to describe John P. Boyd, District Director, as defendant, and the brief on behalf of the Immigration and Naturalization Service describes the United States as defendant. We treat Fong as petitioner here, and the Immigration and Naturalization Service as respondent, and the title-of the proceedings in this court will be ordered amended accordingly.
Now 8 U.S.C.A. §§ 1101(a) (15) (A-G), (27) (A-C, F), 1251(a) (1, 2, 9), (e), 1252, 1102, 1184.
. Tlie other four paragraphs describe various classes of deportable persons but in each case the language of those paragraphs expressly excludes any person in the situation of this petitioner. Thus paragraph 1 refers to an alien who “applies to the Attorney General within five years after the effective date of this chapter for suspension of deportation”; paragraphs 2, 3 and 4, are expressly limited to aliens who “last entered the United States within two years prior to, or at any time after June 27, 1952”. Petitioner cannot qualify under any of those paragraphs because of the indicated time limitations.
. “Certainly, so harsh a penalty as deportation is far out of proportion with the crime. * * * Such a penalty is not in keeping with the principles of our jurisprudence.” U.S.Code Congressional Service, 82nd Cong. 2d Sess., Vol. 2, p. 1753. (Statement of Congressman Celler appended to House Report.)
. Statement of House Mgrs. on Conference Report, U.S.Code Congressional Service, 82nd Cong., 2nd Sess. vol. 2, p. 1753: “Similarly, the conferees believe they have applied very broad standards of humanitarianism in composing the differences between both versions of this legislation as they appeared in the sections governing the granting of suspension of deportation.”
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_usc2
|
9
|
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 29. 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.
INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, LOCAL UNION 34, AFL-CIO, Appellee, v. GENERAL PIPE COVERING, INC., Western Insulation Services, Inc., Thermal Insulation Supply Corp., Donna M. Dingley and Sheldon L. Dingley, Appellants.
No. 85-5319.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 14, 1986.
Decided May 15, 1986.
J. Dennis O’Brien, Minneapolis, Minn., for appellants.
Stephen D. Gordon, Minneapolis, Minn., for appellee.
Before HEANEY and BOWMAN, Circuit Judges, and HANSON, Senior District Judge.
The HONORABLE WILLIAM C. HANSON, Senior United States District Judge for the Northern and Southern Districts of Iowa, sitting by designation.
HEANEY, Circuit Judge.
General Pipe Covering, Inc. (General Pipe), appeals from a district court order, 613 F.Supp. 858 (1985), granting appellee’s motion to confirm an arbitration award.
General Pipe, a commercial insulation business owned by Donna and Sheldon Dingley, was a member of the Thermal Insulation Contractors’ Association (TICA) and, as such, was bound by a collective bargaining agreement (Trade Agreement or Agreement) between TICA and the International Association of Heat and Frost Insulators and Asbestos Workers Local No. 34 (Local 34). The Trade Agreement covered the rates of pay, rules, and working conditions of the insulation workers, and established a grievance and arbitration procedure. It created a six-person “Trade Board,” consisting of three employer and three union members, which had the power to investigate the labor operations of the parties, hear trade disputes, and impose fines or penalties for violations of the Agreement.
On February 12, 1985, Local 34 filed a grievance with the Trade Board alleging that General Pipe had violated the Trade Agreement by diverting union work to Western Insulation Services, Inc. (Western Insulation), a nonunion shop also owned by the Dingleys. Although General Pipe had notice that the Trade Board planned to consider the matter at its March 15, 1985, meeting, it did not send a representative and, instead, wrote a letter stating that “[a]s of February 28, 1985, General Pipe Covering, Inc. will be ceasing operation. All union personnel will be laid off.” Appellants’ Appendix at 82. The Trade Board found that General Pipe had violated the Trade Agreement, causing a loss to Local 34 members of wages and benefits worth approximately $75,000. It ordered General Pipe to pay that amount to the American Lung Association on behalf of Local 34, pursuant to the Trade Agreement. General Pipe did not comply with the order. Accordingly, on April 11, 1985, Local 34 filed suit in district court against General Pipe, Western Insulation, Thermal Insulation Supply Corporation,1 and the Dingleys, seeking to enforce the arbitration award. It also filed a motion for a temporary injunction and a writ of attachment. General Pipe filed motions to stay proceedings, compel additional arbitration, and vacate the arbitration award. The district court denied General Pipe’s motions. It granted Local 34’s motions to confirm the arbitration award, denied its motions for injunctive relief and for a writ of attachment, and awarded it attorneys’ fees. This appeal followed.
1. JURISDICTION.
General Pipe argues that the district court did not have jurisdiction to confirm the Trade Board’s award pursuant to 9 U.S.C. § 9, because the Trade Agreement did not provide that “a judgment of the court shall be entered upon the award made pursuant to the arbitration.” We need not reach this issue, as Local 34 also claimed jurisdiction under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, which also authorizes federal courts to enforce arbitration awards. See General Drivers, Warehousemen & Helpers, Local Union No. 89 v. Riss & Co., 372 U.S. 517, 519, 83 S.Ct. 789, 791, 9 L.Ed.2d 918 (1963) (award of Joint Area Cartage Committee); Rallen v. District 1199, National Union of Hospital and Health Care Employees, 574 F.2d 723, 725 (2d Cir.1978) (jurisdiction independent of 9 U.S.C. § 9).
General Pipe also argues that the district court lacked jurisdiction because there was no final and binding award by a neutral arbitrator. Federal courts have approved the use of trade boards to resolve disputes under collective bargaining agreements. See e.g., Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); General Drivers, 372 U.S. at 519, 83 S.Ct. at 791; NLRB v. Wolff & Munier, Inc., 747 F.2d 156 (3d Cir.1984); Early v. Eastern Transfer, 699 F.2d 552 (1st Cir.), cert. denied, 464 U.S. 824, 104 S.Ct. 93, 78 L.Ed.2d 100 (1983); Teamsters Freight Employees Local Union No. 480 v. Bowling Green Express, 707 F.2d 254 (6th Cir.1983); Chicago Cartage Co. v. International Brotherhood of Teamsters, 659 F.2d 825 (7th Cir.1981); Barrentine v. Arkansas-Best Freight System, 615 F.2d 1194 (8th Cir.1980), rev’d on other grounds, 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981). As this Court stated in Barrentine, however,
[a] forceable argument can be made * * * that the kind of arbitration in question is subject to grave abuses, including, notably, collusive secret agreements between employers and unions as a result of which the interests of individual * * * grievants may be sacrificed to arrangements that management and union labor may consider to be in their own broader interests.
Barrentine, 615 F.2d at 1201.
Courts have not hesitated to set aside awards of joint employer/union committees where they have found that the committee members had interests adverse to those of the grievants. See Morales v. Vega, 579 F.2d 677 (1st Cir.1978) (courts should consider allegations that members of committee conspired to deprive grievant of first-amendment rights); Kirkland v. Arkansas-Best Freight System, 475 F.Supp. 180 (E.D.Ark.1979) (award set aside where union members of committee did not fairly represent all employees and where process violated fundamental rules of fairness), affd in part, rev’d in part on other grounds, 629 F.2d 538 (8th Cir.1980) (reversed only as to damages), cert. denied, 450 U.S. 980,101 S.Ct. 1514, 67 L.Ed.2d 814 (1981); Allsbrook v. Consolidated Freightways, 100 L.R.R.M. (BNA) 2153 (E.D.Pa. 1978) (use of arbitration procedure not required where adverse interests). General Pipe has failed to show, however, that the proceedings were fundamentally unfair. Accordingly, if the award of the Trade Board “is under the collective bargaining agreement final and binding, the District Court has jurisdiction under § 301 to enforce it.” See General Drivers, 372 U.S. at 519, 83 S.Ct. at 791.
General Pipe contends that the award was not final and binding because, under the Trade Agreement, General Pipe was entitled to a subsequent proceeding before a neutral arbitrator. Article IV, section 2 of the Agreement states: “Any controversy which cannot be settled informally by the Trade Board parties shall be referred to a neutral arbitrator chosen by mutual agreement of the parties.” Appellants’ Appendix at 70. A question thus arises as to the meaning of “Trade Board parties.” If, as General Pipe argues, it refers to the parties to the Trade Agreement, General Pipe’s refusal to participate in the Trade Board proceeding and to abide by the Trade Board’s decision could arguably entitle it to a further proceeding before a neutral arbitrator. If, on the other hand, “Trade Board parties” refers to the members of the Trade Board itself, General Pipe would have been entitled to a neutral arbitrator only if the Trade Board had not been able to reach a decision by a majority vote.
We agree with the Trade Board and the district court that the latter is the correct interpretation. The Trade Board’s treatment of its award as final is persuasive. “Because the authority of arbitrators is a subject of collective bargaining, just as is any other contractual provision, the scope of the arbitrator’s authority is itself a question of contract interpretation that the parties have delegated to the arbitrator.” W.R. Grace & Co. v. Local Union 759, International Union of the United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 765, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983). Additionally, any other interpretation would be illogical. As the district court points out, if either party could ignore the decisions of the Trade Board, the Trade Board would be a “toothless organism.” Order at 5. More importantly, the Trade Agreement expressly provides for “cases where the parties to [the] Agreement fail to agree;” in those cases “the matter in dispute shall be referred to the Joint Trade Board.” Appellants’ Appendix at 69. We therefore conclude that the Trade Board’s award was final and binding and that the district court had jurisdiction to confirm it under section 301.
II. STANDARD OF REVIEW.
Since we find that the district court had jurisdiction to confirm the arbitration award, we must consider whether it applied the correct standard of review. Federal labor policy encourages arbitration as one major method of achieving industrial peace. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 1350, 4 L.Ed.2d 1409 (1960).
Under well-established standards for the review of labor arbitration awards, a federal court may not overrule an arbitrator’s decision simply because the court believes its own interpretation of the contract would be the better one. When the parties include an arbitration clause in their collective-bargaining agreement, they choose to have disputes concerning constructions of the contract resolved by an arbitrator. Unless the arbitral decision does not “dra[w] its essence from the collective bargaining agreement,” a court is bound to enforce the award and is not entitled to review the merits of the contract dispute. This remains so even when the basis for the arbitrator’s decision may be ambiguous.
W.R. Grace, 461 U.S. at 764, 103 S.Ct. at 2182 (citations omitted).
This Court’s review, therefore, is limited to determining whether the Trade Agreement gave the Trade Board authority to make its award. Zeviar v. Local No. 2747, Airline, Aerospace and Allied Employees, IBT, 733 F.2d 556, 559 (8th Cir.1984); see 9 U.S.C. § 10(d). We “must broadly construe the agreement and resolve all doubts in favor of the [Trade] Board’s authority.” Zeviar, 733 F.2d at 559.
General Pipe argues that this Court should vacate the Trade Board’s award because the Trade Agreement did not authorize the award of punitive damages. This argument is clearly without merit even though, as General Pipe points out, the award was punitive in nature. Although punitive arbitration awards are generally disfavored, see, e.g., Westinghouse Electric Corp. v. I.B.E.W. Local 1805, 561 F.2d 521, 523 (4th Cir.1977), cert. denied, 434 U.S. 1036, 98 S.Ct. 771, 54 L.Ed.2d 783 (1978), courts enforce them where they are authorized by the collective bargaining agreement, see, e.g., United Electrical, Radio & Machine Workers v. Litton Microwave Cooking Products, 728 F.2d 970 (8th Cir.1984); Bonner v. Prichard, 661 F.2d 1206 (11th Cir.1981). In this case, the Agreement expressly stated that where either party violated any of its provisions, “[t]he Trade Board [would] have the power to impose fines or other penalties.” Appellants’ Appendix at 70. The Agreement further authorized the Trade Board to collect any fines or penalties and donate them to charity. Id. As the district court found, therefore, the Trade Board had the authority to assess a fine against General Pipe.
Although the Trade Board had the general authority to assess a fine, our inquiry must go one step further, as there may be merit to General Pipe’s argument that the Trade Board exceeded its authority in fining General Pipe $75,000. The Supreme Court has stated that “an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. * * * [H]is award is legitimate only so long as it draws its essence from the collective bargaining agreement.” United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). General Pipe argues that since the fine imposed was substantially greater than the Trade Board’s usual award of $5,000 per infraction, the fine did not draw its essence from the Trade Agreement. It contends that United Steelworkers v. War rior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), requires the Trade Board’s previous practice of limiting its awards to $5,000 to be incorporated into the Agreement. We do not agree with this application of the rule in Warrior. Although the Warrior Court did state that “the industrial common law — the practices of the industry and the shop — is equally a part of the collective bargaining agreement although not expressed in it,” id. at 581-82, 80 S.Ct. at 1352-53, the Court formulated this rule to extend the reach of the arbitrator, not to limit it. This was in keeping with the Court’s central premise that “[d]oubts should be resolved in favor of coverage.” See id. at 583, 80 S.Ct. at 1353. Additionally, the record does not clearly demonstrate either that the $5,000 limit had been an established practice, or that the $75,000 award violated any $5,000 per infraction limit that may have been established.
Because the district court decided only that the Agreement authorized punitive awards, and did not consider whether the size of the award took the award outside of the Trade Board’s authorization, we must reverse the district court to the extent that it confirmed the award, and remand for a consideration of the award’s size. On remand, there are a number of points that the district court should consider. The Supreme Court has stated:
The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. * * * ******
* * * A mere ambiguity in the opinion accompanying an award, which permits the inference that the arbitrator may have exceeded his authority, is not a reason for refusing to enforce the award.
Enterprise Corp., 363 U.S. at 596-98, 80 S.Ct. at 1360-61.
On the other hand, an arbitrator “cannot assume existence of facts central to the award if there is no support therefor in the record.” See Manhattan Coffee Co. v. International Brotherhood of Teamsters, Local No. 688, 743 F.2d 621, 623 (8th Cir.), cert. denied, — U.S.-, 105 S.Ct. 2323, 85 L.Ed.2d 842 (1985). Finally,
[although an arbitrator is not required to make formalized findings or to offer reasons for his decisions, when he does so, a court may properly consider them. A court may also consider other evidence extrinsic to the award that will assist it in determining whether the award draws its essence from the collective bargaining agreement.
United Electrical, 704 F.2d at 397 (citations omitted).
The district court may, therefore, allow both parties to present evidence, including, but not limited to, evidence regarding the Trade Board’s previous awards and General Pipe’s violations of the Trade Agreement.
III. ATTORNEY’S FEES.
General Pipe argues that the district court should not have awarded to Local 34 the attorneys’ fees it incurred in bringing its motion to confirm the arbitration award. It contends that, under the circumstances, its challenge of the Trade Board’s award was justified.
Attorneys’ fees are ordinarily not recoverable by the prevailing party in federal litigation unless authorized by statute or justified by circumstances in which the losing party has acted in bad faith. Attorneys’ fees are not authorized by statute in suits to enforce arbitration awards.
Lackawanna Leather Co. v. United Tool & Commercial Workers International Union, 706 F.2d 228, 232 (8th Cir.1983) (en banc) (citations omitted).
Although “[a]n unjustified refusal to abide by an arbitrator’s award may constitute bad faith for the purpose of awarding attorneys’ fees,” International Union, United Automobile, Aerospace & Agricultural Implement Workers v. United Farm Tools, Inc., Speedy Mfg. Division, 762 F.2d 76, 77 (8th Cir.1985), General Pipe's challenge of the award was justified, as shown by the necessity for a remand. We must, therefore, reverse the district court’s award of attorneys’ fees.
Accordingly, we affirm the district court to the extent that it accepted jurisdiction over this matter and found that the Trade Board had authority to impose a fine against General Pipe. We reverse and remand to the extent that the district court confirmed the arbitration award, with directions to consider whether the amount of the award took it beyond the Trade Board’s authority, and reverse the award of attorneys’ fees.
. The Trade Agreement, Article VI, states:
Section 1. No subcontracting by Employer. No contracting by Employees. The Employers agree that they will not sublet or contract out any work described in Article XI and the Union agrees not to contract, subcontract or estimate on work nor allow its membership to do so nor to act in any trade capacity other than that of workman. It is also agreed that no member of a firm or officer of a corporation or their representative or agents shall execute any part of the work of application of materials and in no case shall any member of the Union estimate on or give any labor figures.
Section 2. In order to protect and preserve, for the employees covered by this agreement, all work heretofore performed by them as specified under Article XI of this Agreement, it is agreed: that if and/or when an Employer shall perform work covered by this Agreement, under its own name, or is involved in any type of business enterprise performing such work, this Agreement shall be applicable to all such work performed.
Appellants’ Appendix at 66.
. On February 27, 1985, Western Insulation was merged into Thermal Insulation Supply Corporation, another firm incorporated by the Dingleys. Appellants’ Supplemental Appendix at 45, 50.
. 9 U.S.C. § 9 provides, in pertinent part:
If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made.
. Because the district court had jurisdiction under 29 U.S.C. § 185, we also need not consider General Pipe’s argument that applications to confirm under 9 U.S.C. § 9 must be made and heard as a motion to the court.
. We note, however, that a more likely consequence of General Pipe’s total refusal to participate in the proceedings would have been its abandonment of any rights it may have had to a neutral arbitrator.
. While we do not agree that the $5,000 limit became a binding part of the Agreement through the Trade Board’s past practice, it is one factor which may be considered in determining whether the fine imposed was within the essence of the Agreement.
. Notwithstanding the fact that General Pipe, through its refusal to participate in the arbitration proceeding, may be responsible for the scanty record of which it now complains, we believe that justice will best be served by allowing it an opportunity to present its evidence on these matters.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 29. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_suffic
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" 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".
In re KOUNTZE BROS. et al. CITY OF CANTON, OHIO, et al. v. IRVING TRUST CO.
Nos. 328-330.
Circuit Court of Appeals, Second Circuit.
May 22, 1939.
Gould & Wilkie, of New York City (M. S. Lockhart and John F. Boyer, both of New York City, of counsel), for appellant City of Canton, Ohio.
Olney & Comstock, of New York City (Irving Smith, Jr., of New York City, of counsel), for appellant Big Horn County, Wyo.
Zabriskie, Sage, Gray & Todd, of New York City (Melber Chambers, William E. Sims, and Edward H. Spencer, all of New York City, of counsel), for appellants San Juan County, N. M., and others.
Allen R. Memhard, of New York City (Henry A. Jones,, of New York City, of counsel), for appellee.
Before L. HAND, AUGUSTUS N. HAND, and PATTERSON, Circuit Judges.
PATTERSON, Circuit Judge.
Kountze Brothers were private bankers in New York. One of the firm’s activities was to act for cities, counties, school districts and so on in payment of bonds and coupons. The firm closed its doors on October 13, 1931, and later went into bankruptcy. Reclamation proceedings were brought by the appellants, the City of Canton, Ohio, Big Horn County, Wyoming, and a number of counties, cities and districts in New Mexico, claiming that moneys sent by them to the bankrupts for the purpose of paying coupons made payable at the bankrupts’ place of business were received and held by the latter in á trust capacity. The referee took the view that the appellants were merely general creditors of the bankrupts and dismissed the petitions. The district court took the same view and affirmed the referee’s orders.
In Re Kountze Bros. (City of Los Angeles v. Irving Trust Company), 2 Cir., 103 F.2d 785, decided May 1, 1939, we passed on a similar claim made against this estate and held that the deposits made with the bankrupt firm by Los Angeles for the purpose of meeting bonds and coupons resulted in a debtor and creditor relationship. The authorities were discussed and from them the general principle was drawn that a deposit of funds with bankers for the purpose of meeting coupons owed by the depositor does not create a trust save in cases where it is plainly shown that by understanding of the parties the bankers were not to use the funds in their general business. In view of the full discussion in the Los Angeles case it would be superfluous to review the authorities again.
The features said to distinguish the present claims from that of Los Angeles are that commissions were paid by the present appellants to the bankers for their services in paying bonds and coupons, and that there was no agreement or practice of sending on the funds a specified number of days in advance of the due dates. We recognize that the presence of commissions and the absence of a fixed interval of time between deposits and the due dates of the bonds or coupons make the present claims somewhat more potent than the Los Angeles claim. But there is not enough to indicate that the parties contemplated a holding apart of the funds in trust. The bankers put the moneys into their general funds. In the correspondence there is frequent mention of crediting and charging of items to the accounts and of balances in the accounts. The record shows that the bankers had part of the moneys deposited by the appellants for considerable periods, owing to the fact that many coupons would be presented days, weeks or months late, and that the appellants were aware of this. Indeed, the funds sought to be reclaimed are in the main unapplied balances of deposits made months before the failure. The presumption is that deposits of money in a bank give rise to the relation of debtor and creditor, not to one-of trustee and beneficiary, and the facts in these cases do not take them out of the general rule. We see no distinction between these cases and Staten Island Cricket & Baseball Club v. Farmers’ Loan & Trust Co., 41 App.Div. 321, 58 N.Y.S. 460.
Big Horn County made an effort to prove that it had an explicit understanding with the bankers that the funds were held by the latter in trust. Several witnesses in behalf of the county testified to an alleged exchange of letters in 1929, in which the bankers acknowledged that the moneys were trust funds. There was no trace of the letters or copies of them, however, in the county’s files or in the bankers’ files. The referee and the district judge found that the alleged understanding had not been proved. We are of the same opinion.
Affirmed,
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_app_stid
|
05
|
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 an appellant.
WHITE RIVER LEVEE DIST. v. McWILLIAMS DREDGING CO. McWILLIAMS DREDGING CO. v. WHITE RIVER LEVEE DIST.
Nos. 8660, 8675.
Circuit Court of Appeals, Eighth Circuit.
April 16, 1930.
Ross Mathis, of Cotton Plant, Ark., and Charles T. Coleman and Walter G. Riddick, both of Little Rock, Ark., for White River Levee Dist.
Sam Costen and Wils Davis, both of Memphis, Tenn., for McWilliams Dredging Co.
Before STONE and VAN VALKENBURGH, Circuit Judges, and DAVIS, District Judge.
STONE, Circuit Judge.
This is an action by the dredging company against the district for damages, arising from breach of a contract to construct a system of ditches for the district. Because of accounting features it was brought in equity. The cause was submitted to a master. The court sustained certain exceptions and overruled others to the report, and entered a decree in favor of the plaintiff for $27,381.45, with interest thereon from August 27, 1921. From such decree the defendant brings an appeal, claiming that there should be no recovery at all. The plaintiff brings a cross-appeal, claiming recovery in larger amount.
Main Appeal.
The main appeal raises the issues of the validity of the contract and of the right of the district to terminate such contract for nonperformance.
As to the right to terminate the contract, the evidence is sharply in conflict, but is sufficient to support the finding of the master, approved by the court, to the effect that there was not sufficient basis therefor. Where a finding is made by a master and approved by the trial court, this court will not reverse such action, unless it be made to appear very clearly that there was no substantial evidence upon which to base such result. There is no such showing here, and that point is resolved against the district.
The validity of the contract is attacked upon two grounds. It is claimed that each of these grounds is a necessary precedent condition to any authority on the part of the district to make such a contract. One ofl these claimed precedent conditions is that there was no plan adopted by the board for the doing of this work before the contract was let. The second alleged precedent condition is that there was no assessment of benefits covering the work before the contract was made.
Plan of Work.
The master found that no definite plan locating the proposed ditch or drain, with proper estimate of its cost, was ever adopted by the board, and that such plans were required by the act authorizing the improvement. The court found that plans in sufficient detail were prepared by the engineers of the district submitted to and used by the board of commissioners, and that these plans set out in sufficient detail the location and size of the ditches upon which to base the estimate cost and the nature of the work to be done, and that such plans were a sufficient compliance with respect to preparation and adoption of plans.
Early in 1919 the engineer of the district was working on a general drainage survey which was apparently completed shortly before December 10, 1919. Upon that date, a meeting of the board was held for the purpose of hearing and passing upon that matter, at which time “the plans and specifications as prepared were laid before the meeting and the report of Mr. Bailéy was .read by him to the board and landowners present.” The only action taken was that “the said plans and report were ordered filed with the secretary.” The .minutes of a meeting held by the board on February 24, 1920, show that it was held for the purpose of receiving bids for this work “according to the plans and specifications of consulting engineer, 0. B. Bailey, who was present at the meeting.” At that meeting the bid of the appellee was submitted and accepted. From the above, two things appear clearly: First, that there was no formal adoption of a plan for this work; second, that some sort of plan and specifications had been filed with the board and were the bases of bids and of the contract for this work. As to just what those plans and specifications were, there is a conflict in the evidence which would have justified a finding either way as to the sufficiency of such plans. This evidence appears in the testimony of J. B. Wilson, C. B. Bailey, E. E. Mashbum, and E. L. Freeman. The testimony of Bailey is abundantly sufficient to establish that Mashbum (engineer of the district) made rather detailed plans showing the location, elevations, estimates of excavation, and other data, which were embodied in a report approved by Bailey, who acted as consulting and critical engineer. In fact, Bailey was employed to check and criticize Mashburn’s work in this regard and the plans represented the work of Mashburn with Bailey’s action thereon. The court was amply justified in finding that these plans were sufficient m character to meet the requirement of the statute, leaving open only the question of law as to whether a formal adoption of the plans was required by the statute. The only statutory requirement in this regard is in connection with a reassessment. This is contained in Section 3 of the Act of 1920 (Acts Ark., Ex. Sess. 1920, No. 27, p. 263), and is as follows: “When said Board shall have formed its plans for the improvement, it shall cause the assessors of the district to make a reassessment,” etc. This required that the board should determine upon a plan for the improvement. The usual way of manifesting such a determination is by a formal action incorporated in the minutes of the board. However, where a plan has been submitted to and, by the board, ordered filed, with its secretary, and is so filed, and the board thereafter advertises for bids to do the work, as outlined by such plan, and makes a contract therefor, and the contractor proceeds with the work thereunder, we think the requirements of the above statute have been substantially met.
Assessment.
This appellant urges that an assessment of benefits covering the improvement was a necessary prerequisite to the making of a valid contract for its construction. Counsel cite several decisions of the Supreme Court of Arkansas. There are expressions in such cases which lend some support- to this position. In our judgment, however, those decisions are not applicable to the facts here. The facts regarding this matter are practically beyond dispute, and are as follows: In 1911 (Sp. Acts Ark. 1911, No. 97, p. 215) the Legislature passed a special act authorizing the formation of the White River levee district for the purpose of protecting lands from overflow of that river by a construction of levees. The district was formed and levees were constructed. Within such district was a portion of the Cache river, which is a tributary of the White river. It developed that lands along the Cache river required protection in addition to that afforded by the levees constructed along White river. It was conceived that this protection could be afforded by straightening the channel of the Cache river. With that object in view, a special act was passed in 1919 (Sp. Acts Ark. 1919, No. 178, p. 306), empowering the levee district to straighten that river and for that purpose to issue bonds, not to exceed $150,-000. Thereafter two difficulties developed in connection with that matter. The first was that the bonds so authorized could not be sold because the 1919 act made no specific provision for their payment from assessments upon the land in the district. The second appears to have arisen from the investigations of the engineers of the district in connection with a plan for such work. That investigation developed, in the opinion of the engineers, that a mere straightening of the channel of Cache river would not afford the desired relief, but that it would be necessary to construct a line of ditches across the bends of that river, and that such an undertaking was much larger than had been contemplated and more expensive. This investigation resulted in plans, etc., drawn up by the engineer (Mashburn) and approved by Bailey in a report made to the board. These plans and report are those referred to in the point above discussed. The necessity for further legislation was apparent, and this resulted in the act of 1920, which authorized “the Board of Directors of the White River Levee District * * * to straighten the channel of Cache River * * « to construct such drains, ditches and levees * * * as will be necessary to protect the lands of the district from overflow from the waters of Cache River” and its tributaries. “To that end” the district was authorized to issue bonds in a sum not exceeding $400,000.' The act also provided that such bonds should be secured by a lien on all lands, etc., in the district, and the board of directors are directed to “see to it that a tax is levied annually, and collected under the provisions of this bill, so long as it may be necessary to pay any bond issue or obligation contracted under its authority.” There is also provision for the appointment of a receiver should the bonds or interest come in default. Section 3 of the act is as follows:
“Section 3. .When said Board shall have formed its plans for the improvement, it shall cause the assessors of the district to make a re-assessment of the benefits which will aeerue to the lands affected by the work of improvement herein contemplated, and said assessment of benefits shall be made, advertised and equalized in the manner provided in the act establishing said White Riv,er Levee District; but until said re-assessment is made, equalized and finally established, the owners of real property within said district shall continue to pay their taxes upon the existing assessment of benefits, as the same are now levied, or as they may hereafter be levied by said Board.”
Several things are necessary to be noted. One of these is that the Legislature recognized the existence of the levee district and contemplated that this improvement should be made by that district as being related to the lands in the district and to be paid for by the district as then formed. It did not contemplate the formation of a new district composed of only such lands as might be benefited by this particular improvement, nor did it contemplate that the same result should be reached indirectly by having this improve- ' ment paid for only by those lands in the district found to be directly benefited by it. The thought of the Legislature clearly was that this improvement was subsidiary to, related to, and additional to, that for which the district had been formed. At the same time the Legislature realized that particular benefits might flow from this improvement to certain lands in the district which would not be experienced by all. Also the Legislature properly recognized, what was indeed a fact, that the lands which would be benefited particularly by this improvement had received a lowered assessment in the district because they were subject to overflow or damage which this improvement was designed to do. away with. Therefore the Legislature deemed proper a reassessment of the lands to be affected by this improvement. The Legislature had a practical situation to deal with. One feature of that situation was that this district had been in existence for some years with improvements constructed, obligations outstanding, and benefits assessed. It had to fit this later law into that situation. This it sought to do by providing for the reassessment of certain of the lands (those particularly affected by this new improvement), but at the same time recognizing and continuing existing assessments uptil the one authorized by this act had been made. The act is clear that this improvement was to be paid for by the entire district. Because of the above situation and requirements of the act, we think this reassessment was not a prerequisite either to the sale of the bonds authorized by this act or to the making of a contract and the doing of the work.
Cross-Appeal.
This cross-appeal is based on the refusal of the trial court to allow all of the damages claimed. The claim in the petition is for two general items: “In preparing for and doing the construction” $141,890.03; and loss of future profits $68,177.00 — a credit, through payments and advances, of $58,-349.13 was conceded, leaving a balance of $151,717.90 (erroneously stated in the petition as $152,721.00) due. The first item was made up of “installation expense,” $31,132.-13; “hull or boat expense,” $32,873.38; and “construction expense,” $77,884.52.
The master found the above installation, hull, and construction items in the above amounts and that $45,080.35 (which did not include $17,776.85 advanced by the district to pay for clearing right of way) had been paid by the district on the contract. Neither the master nor the court made any finding as to amount of future profits. The master deemed the contract invalid, so accorded no recovery. The court allowed the item of “hull or boat expense” (less value at time of cancellation of contract, of $10,000); rejected “installation” expenses as being duplicated by the “hull or boat” item; rejected the “construction” expense; allowed $4,508.-07 due for work actually performed at the time of such cancellation; and rejected all claim for future profits.
Where a construction contract has been breached by refusal of the other party to further perform, the rule for damages to the contractor is set forth in United States v. Behan, 110 U. S. 338, 344, 4 S. Ct. 81, 83, 28 L. Ed. 168, as follows:
“If the breach consists in preventing the performance of the contract,, without the fault of the other party, who is willing to perform it, the loss of the latter will consist of two distinct items or grounds of damage, namely, — First, what he has already expended towards performance (less the value of materials on hand); secondly, the profits that he would realize by performing the whole contract. The second item, profits, cannot always be recovered. They may be too remote and speculative in their character, and therefore incapable of that clear and direct proof which the law requires.”
Applying the above rule to the facts - of this case, our conclusions are as follows:
The claim for future profits is not allowed. The evidence falls short of “that clear and direct proof which the law requires” of a future profit or of the amount thereof. One side of the evidence is that this contract required excavation of 80,000 cubic yards each month and completion, in thirty months, of the estimated 2,400,000 cubic yards of excavation; that at the end of fifteen months only, 290,841 cubic yards had been excavated; that the new and only dredge on the work could not possibly compíete the work in contract time; that the work, up to cancellation, had been at a loss. The other side of the evidence is that other dredges could "have been put' to work, and that the profit on the work to be done would have been at the various figures put by several witnesses. In the face of the undisputed condition at the time of cancellation, we are not justified in assessing substantial damages upon the bare estimates as to future happenings. ' ,
The other items are upon a different footing. They are claimed actual expenditures. Two of these (“installation expenses” and “hull or boat expenses”) are related. “Installation Expensed account included “bringing in of the original dredge boat and the preparation, supplies and materials for the construction of the new hull.” The “hull or boat expense” account “represents the cost of completing and equipping the new hull.” The trial court thought these two items were duplications, and allowed the latter, less salvage value. The evidence is that, as soon as the contract was entered into, a dredge boat was started from Menfro, Mo., to the work site, four hundred miles away, and was “on the scene” in twenty days; that this boat was unfitted to do this work, and could not possibly do it in anything like the contract time limit; that the boat was fourteen years old, had been sold by the contractor, and, after a year, taken back (when the purchaser became bankrupt), and moved to this work; that, at the time this boat was sent, the contractor ordered “timber, iron and material for the construction of a new hull for this dredgeboat”; that the contractor knew a new hull would be necessary for “economical and continued operation”; that the old dredge “was so inefficient that we thought it necessary to build a new one, and, during the time of this construction work, we didn’t do much excavation”; that this work “required a very strong hull”; that the old dredge arrived in May, 1920, and the new hull was not ready until February or March, 1921. It is obvious that the contractor placed on the work.an old, inefficient machine which it knew could not do the work and intended to replace it later with a new efficient one which was to be built. The real reason for this unusual action was to secure and hold the contract — as said by one witness, “It was decided, in view of the quickness with which these people wanted the work started, to move the dredge in, and immediately proceed to build a new hull for it.” Not only was this boat entirely inadequate, and known by the contractor to be so, but it did not at all comply with the contract requirement. The contract required:
“The contractor shall install, within forty days after having been notified that the bonds issued for this proposed work have been sold to a responsible firm of bond buyers, one three-yard dredgeboat having a boom of not less than seventy-five feet in length, this equipment to be installed at the head of the lower ditch in’ section nine, township 4 north, range three west, and shall then proceed with the excavation downstream at the rate of not less than 80,000 cubic yards per month.”
The contractor knew this boat was no compliance with the contract, and could not approach doing the work required thereby.
While the above-quoted rule of law allows recovery for “what he has already expended toward performance,” such expenditures must be “fairly and in good faith” laid out, and must not be “extravagant, and unnecessary for the purpose of carrying out the contract.” United States v. Behan, 110 U. S. 338, 345; 346, 4 S. Ct. 81, 83, 28 L. Ed. 168. Certainly, when the contractor understood the impatience of the district to begin this work, and, of course, earry it through, it cannot, in violation of the express terms of the contract, knowingly place an entirely inefficient plant on the work for the purpose of holding the contract, and then claim such expense as a damage. We think the allowance of this “installation expense” of $31,-132.13 was properly denied.
The second and related item is “hull or boat expense.” This was expense incurred in building a new hull for the dredge boat. The material was ordered and sent to “Cotton Plant, Arkansas,” where the new boat was constructed. This seems to have been within or near the levee district.- The court allowed this item, reduced by $10,000. Apparently the theory of the court was that this was an installation expense. We are unable to accept this view. As said above, the contractor was obligated (in the contract) to furnish, for the work, a dredge of a certain described character which could excavate a given minimum of yardage monthly. The old boat was the one sent to begin the work, and was the only one which ever did any excavating. The new boat was intended as a replacement and not as an installation. However, had this boat been brought to the work, the contractor might have been entitled to the expenditures for getting it there and for taking it away. The difficulty is that there is no evidence as .to such expense of taking it away, and it was built on tbe ground,, To require tbe district to pay the cost of making a new boat is another matter. This is not a ease of an expenditure purely and solely for this work. The plaintiff was -extensively engaged in excavation work of this general character, and, while this work was the immediate occasion for building this new boat, yet it does not appear that this boat will not be entirely useful to plaintiff in its work elsewhere. It was a replacement of an old hull by one “very strong, the construction'of which is expensive,” built “especially to serve the three yard machines.” .W¿ile one witness testified that the market for such a hull was only to a contractor having the “same work to do” or for a heavy freight barge, yet the same witness said plaintiff “had in mind another and larger machine which we also proposed to move on the work from Marked Tree, Arkansas.” In fact, the evidence not only fails to show that this new boat was fitted only for the work under this contract and would otherwise have only a salvage value to plaintiff, but it convinces that the boat would be a useful instrument in plaintiff's business. Also it is evident that the only effeet, if any, which this work had on the building of this new hull was to make it more expensive because of the stronger construction. The evidence is bare of any showing as to what amount, if any, was expended over and above what would have been paid out to replace the old boat with a hull of ordinary strength. We think there can be no recovery, under the evidence, for this item.
The next item is “Construction Expense.” This included “all the expense of operations including operating the dredge after it -arrived on the work, providing all necessary supplies and labor and cost of everything associated with moving dirt.” The master found the amount so expended to be $77,884.52, and we accept this finding without particular examination of the numerous items making up this total. The court rejected this item. We think this was error. So far as the evidence shows, this expenditure was in direct prosecution of the work under the contract. Against the above sum are two conceded credits: Payments made by the district,to the contractor, for excavation, $40,572.28, and for clearing right of way, $17,776.85, a total of $58-,349’.13. The balance due upon this item is $19,535.39'.
To this should be added several other items of loss shown by the evidence. -The first of these is an unpaid indebtedness of $4,508.07 due from the district for work done since the last work estimate and up to the time work was stopped. The master found this item to be included in the $77,884.5-2 (“Construction Expense”). An examination of the items in that account does not discover this one. Probably what the master meant was that the expense for doing the work was included therein. But this item includes the profit, and was an earned and due item. Two other items are for coal and wood which had been placed along the right of way to be used as the work progressed, but which were not so used and could not be disposed of. The coal was 530 tons at $9' per ton, $4,770, and the wood was 350 cprds at $4 per cord, $1,400, a total of $6,170'.
The amount for which recovery should be had is made up of the balance nf expenditures ($19,535.39), the work done since the last estimate and payment ($4,508.07), and the coal and wood loss ($6,170), making a total of $30,213.46.
Of the above sum, only the amount for work unpaid for ($4,508.07) was liquidated and known at the time the district stopped the work on August 20, 1921. On this amount, interest is allowed from that date at the rate of 6 per centum. As to the remainder ($25,705.39), interest at the same rate will begin from the date when the order upon this opinion is filed in this court. No costs will be allowed either party in this court. Costs in the trial court are assessed against the district.
The ease is remanded, with instructions to enter a decree for $30,213.46 and interest and costs as above set forth.
Question: What is the state of the first listed state or local government agency that is an appellant?
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_issuearea
|
I
|
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.
PACILEO, SHERIFF v. WALKER
No. 79-2040.
Decided December 8, 1980
Per Curiam.
The United States Constitution provides that “[a] person charged in any State with Treason, Felony or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” Art. IV, § 2, cl. 2.
In this case, there is no dispute as to the facts necessary to resolve the legal question presented. In 1975, respondent James Dean Walker escaped from the Arkansas Department of Corrections and remained at large until he was apprehended in California in 1979. In December 1979, the Governor of Arkansas requested the arrest and rendition of respondent, alleging that respondent was a fugitive from justice. In February 1980, the Governor of California honored the request of the Governor of Arkansas and duly issued a warrant of arrest and rendition. This warrant was then served upon respondent by the Sheriff of El Dorado County, Cal. Respondent thereafter challenged the Governor’s issuance of the warrant in both state and federal courts. He was unsuccessful until he reached the Supreme Court of California, which, on April 9, 1980, issued a writ of habeas corpus directing the Superior Court of El Dorado County to “conduct hearings to determine if the penitentiary in which Arkansas seeks to confine petitioner is presently operated in conformance with the Eighth Amendment of the United States Constitution and thereafter to decide the petition on its merits.”
Petitioner Sheriff contends that Art. IV, § 2, cl. 2, and its implementing statute, 18 U. S. C. § 3182, do not give the courts of the “asylum” or “sending” State authority to inquire into the prison conditions of the “demanding” State. We agree. In Michigan v. Doran, 439 U. S. 282 (1978), our most recent pronouncement on the subject, we stated that “[interstate extradition was intended to be a summary and mandatory executive proceeding derived from the language of Art. IV, § 2, cl. 2, of the Constitution.” Id., at 288. We further stated:
“A governor’s grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met. . . . Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable.” Id., at '289.
In Sweeney v. Woodall, 344 U. S. 86 (1952), this Court held that a fugitive from Alabama could not raise in the federal courts of Ohio, the asylum State, the constitutionality of his confinement in Alabama. We stated:
“Considerations fundamental to our federal system require that the prisoner test the claimed unconstitutionality of his treatment by Alabama in the courts of that State. Respondent should be required to initiate his suit in the courts of Alabama, where all parties may be heard, where all pertinent testimony will be readily available, and where suitable relief, if any is necessary, may be fashioned.” Id., at 90.
We think that the Supreme Court of California ignored the teachings of these cases when it directed one of its own trial courts of general jurisdiction to conduct an inquiry into the present conditions of the Arkansas penal system. Once the Governor of California issued the warrant for arrest and rendition in response to the request of the Governor of Arkansas, claims as to constitutional defects in the Arkansas penal system should be heard in the courts of Arkansas, not those of California. “To allow plenary review in the asylum state of issues that can be fully litigated in the charging state would defeat the plain purposes of the summary and mandatory procedures authorized by Art. IV, § 2.” Michigan v. Doran, supra, at 290.
The petition for certiorari is granted, the judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
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_casetyp1_7-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Cathelina ANTOLOK, et al., Appellants v. UNITED STATES of America.
No. 87-5324.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 10, 1988.
Decided April 28, 1989.
Abram Chayes, Cambridge, Mass., with whom E. Cooper Brown, Takoma Park, Md., Kathleen M. Tucker, and Fred Baron, Washington, D.C., were on the brief, for appellants.
Gregory C. Sisk, Atty., Dept, of Justice, with whom John R. Bolton, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Robert S. Greenspan, Atty., Dept, of Justice, Washington, D.C., and Howard L. Hills, Atty., Dept, of State, were on the brief, for appel-lee.
Before WALD, Chief Judge, and STARR and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Opinion filed by Chief Judge WALD, concurring in judgment only.
Circuit Judge SENTELLE announced the judgment of the Court in an opinion as to which Circuit Judge STARR concurs in all except Part IIB. Chief Judge WALD filed a separate opinion concurring in the result.
SENTELLE, Circuit Judge:
Residents and former residents of the northern atolls of the Marshall Islands appeal from a District Court judgment dismissing tort claims arising out of nuclear testing conducted by the United States on those islands. The District Court dismissed these tort claims for lack of justicia-bility, concluding that the complaint raised nonjusticiable political questions. Since we find that the District Court committed no error in its dismissal, we affirm for the reasons set out more fully below.
I. Background
A. The United States and the Marshall Islands
The relationship between the United States and the Marshall Islands traces to the end of World War II, when the United States liberated the islands from Japan, which had administered them under a League of Nations mandate. From 1944 until July 18, 1947, the United States governed the islands under a temporary military occupation government. On July 18, 1947, the United Nations brought the Marshall Islands and other islands of Micronesia within the U.N. trusteeship system. The United States and the United Nations Security Council approved a trusteeship agreement designating the United States as “administering authority” over a trust territory comprised of the Marshall Islands, the Mariana Islands, and the Caroline Islands, all of which were commonly referred to as Micronesia. Trusteeship Agreement for the Former Japanese Mandated Islands, approved Apr. 2-Jul. 18, 1947, United Nations-United States, 61 Stat. 3301, T.I.A.S. No. 1665. As administering authority, the United States assumed full responsibility for governmental functions of Micronesia, including executive, legislative, and judicial powers, see id., art. 3, and agreed to assist in the development of the Micronesian islanders toward self-government and independence. See id., art. 6; see also United Nations Charter, art. 76(b). Under the Trusteeship Agreement, the United States retained the necessary control and authority over the Marshall Islands to continue nuclear testing begun during the period of military occupation pursuant to the Atomic Energy Act of 1946, Pub.L. No. 79-585, 60 Stat. 755 (1946), as amended by Atomic Energy Act of 1954, Pub.L. No. 83-703, 68 Stat. 919 (1954). Plaintiffs in the present litigation are residents and former residents of the northern Marshall Islands claiming injury to their persons or property by radioactive fallout from the nuclear tests.
During the twenty years following the commencement of the trusteeship arrangement, the Secretary of the Interior, by authority of the President and with the advice and consent of the Senate, appointed a High Commissioner to serve as senior administrator of the trust territory. See Department of Interior Secretarial Order No. 2876, 29 Fed.Reg. 1855 (1964), superseded by Secretarial Order No. 2918, 34 Fed.Reg. 157 (1969). The High Commissioner reviewed both domestic and foreign governmental affairs of the trust territories. In the 1960’s, the United States initiated progress toward Micronesian self-government. In 1965 a congress of Micronesia came into being. Elected leaders from throughout the trust territory met to discuss concepts of independence and political unity.
After the Micronesian Congress had considered various options, all parties agreed that cultural and geographic factors dictated a division of the trust territory into four independent governmental units, the Federated States of Micronesia, the Republic of Palau, the Commonwealth of the Northern Mariana Islands, and the Republic of the Marshall Islands (“RMI” or “Marshall Islands”), the only government whose citizens are plaintiffs in the present litigation. The RMI ratified a new constitution by referendum of March 1, 1979, and initiated a parliamentary government on May 1 of the same year. By order of April 25, 1979, the Secretary of the Interior, on behalf of the United States, acknowledged the existence of the governments of the Federated States of Micronesia, the Republic of Palau, and the RMI. Secretarial Order No. 3039, 44 Fed.Reg. 28, 116 (1979). This order delegated to the new governments most functions of government pending the termination of the trusteeship agreement but, subject to limitations contained in the order, retained in the United States residual authority for trusteeship obligations, including oversight of budget functions and administrative power to “suspend” legislation, amounting to a veto in the High Commissioner, subject to an appeal to the Secretary. Id. at §§ 3-6, 44 Fed.Reg. 28, 117-18.
B. The Compact of Free Association
All governments contemplated the evolution of the new entities toward self-governance with a view to the entry of each new government into a Compact of Free Association with the United States. In the case of the RMI, the negotiations leading to the Compact proceeded over the course of the next five years. Much of the negotiation concerned the settlement of nuclear claims giving rise to the present litigation. On June 25, 1983, the two governments executed the final version of the Compact of Free Association, Oct. 1, 1982-Jun. 25, 1983, United States-Micronesia-Marshall Islands, 99 Stat. 1800, T.I.A.S. No. _ (“Compact”), with an accompanying nuclear testing claims settlement, Agreement for the Implementation of Section 177 of the Compact of Free Association, Jun. 25, 1983, United States-Marshall Islands (“settlement agreement” or “Section 177 Agreement”), reprinted in Joint Appendix (“J.A.”) 67, which we will discuss below. The RMI approved the Compact including the settlement agreement in a U.N.-monitored plebiscite in September of 1983 by 58 percent vote of the Marshall Islanders.
The President submitted the Compact and settlement agreement to Congress on March 30, 1984. After the 98th Congress failed to complete ratification, the President resubmitted the agreements to the 99th Congress on February 20, 1985. The House of Representatives approved final modified versions on December 11, 1985, and the Senate on December 13, 1985. See Juda v. United States, 13 Cl.Ct. at 673.
On February 18, 1986, the Nitijela, the constitutionally established legislative body of the RMI, enacted the Compact of Free Association Resolution of 1986, Res. No. 62 N.D.-2 (1986), declaring “for purposes of... Article V of the Constitution [of the RMI], the Nitijela hereby approves the Compact and its subsidiary agreements, as they relate to the Republic of the Marshall Islands_” Id. § 3.
Thereafter the United States presented the Compact to the Trusteeship Council of the United Nations. On May 29, the Council adopted Resolution 2183 recalling the Trusteeship Agreement and
Not [ing ] that the peoples of the... Marshall Islands [and the surrounding Micronesian states]... have freely exercised their right to self-determination in plebiscites observed by the visiting missions of the Trusteeship Council and have chosen free association with the United States of America.... [and]
Consider [ing ] that the Government of the United States, as the Administering Authority, ha[d] satisfactorily discharged its obligations under the terms of the Trusteeship Agreement and that it [was] appropriate for that Agreement to be terminated with effect [from the effective date of full entry in the Compact]....
Examination of the annual report of the Administering Authority for the year ended 30 September 1985: Trust Territory of the Pacific Islands. T.C. Res. 2183, 53 U.N. TCOR (1617th mtg). The Resolution further declared the awareness of the Trusteeship Council that the process “of facilitating the progressive development of the peoples in Micronesia toward self-government or independence... has been successfully completed.” Id. On January 14, 1986, President Reagan signed into law the Compact of Free Association Act of 1985, Pub.L. No. 99-239, 99 Stat. 1770 (1986) (reprinted as amended in 48 U.S.C. § 1681 note at 624-54 (Supp. IV 1986)) (“Compact Act”).
On November 3, 1986, the President declared the Compact of Free Association with the Republic of the Marshall Islands in full force and effect retroactive to October 21, 1986. Proclamation No. 5564, § 3(a), 3 C.F.R. 149 (1987), reprinted in 48 U.S.C. § 1681 note at 658 (Supp. IV 1986). The United States and the Republic of the Marshall Islands subsequently exchanged diplomatic notes of formal recognition and established diplomatic missions headed by representatives ranked with other ambassadors. Juda, 13 Cl.Ct. at 677.
C. The Present Litigation and the Settlement Agreement
On August 22, 1983, while the Compact and settlement were in negotiation, approximately three thousand present and former residents of the northern Marshall Islands and atolls directly downwind from the nuclear test sites filed the present action in the District Court for the District of Columbia, seeking damages for personal inju-ríes and death resulting from their exposure to dangerous levels of radiation. Plaintiffs claimed that the District Court had subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1346 (United States as defendant), claiming liability under the Federal Tort Claims Act, 28 U.S.C. § 2674.
The District Court stayed the action at the request of the United States pending the entry of the two governments into the Compact of Free Association. Then, on motion of the United States, the Court dismissed the action for lack of jurisdiction based on Section 103(g)(1) of the Compact Act and Articles X and XII of the Section 177 Agreement. Section 103(g)(1) expresses the intent of Congress that the provisions of the 177 Agreement constitute a full and final settlement of all claims described in the cited articles of the Agreement and that “any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.” Pub.L. No. 99-239, § 103(g)(1), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629 (Supp. IV 1986)).
The District Court held that the RMI’s espousal and settlement of the claims were not reviewable by the courts of the United States and that the Court lacked “jurisdiction over plaintiffs’ claims, pursuant to valid law and in conjunction with non-reviewable foreign relations decisions.” Antolok v. United States, No. 85-2471, slip op. at 8 (D.D.C. Jun. 16, 1987). It is from this order of dismissal that plaintiffs now appeal.
II. Analysis
The United States urges that we should affirm the District Court’s dismissal of these claims on two distinct theories, both of which arise out of the terms of the Section 177 Agreement and the Compact Act incorporating that Agreement: first, that the Compact (incorporating the Agreement) and the Act of Congress endorsing the Compact withdrew jurisdiction over these claims in express terms; second, that the challenge to settlement terms negotiated as an integral part of diplomatic recognition of a foreign state raises non-reviewable political question. Upon analysis of the Compact, the incorporated 177 Agreement, and the relevant legislation in light of precedent and other applicable law, we find that the District Court was correct in dismissing these claims for lack of jurisdiction.
A. The Withdrawal of Jurisdiction
In Section 177 of the Compact of Free Association the United States “accepted] the responsibility for compensation owing to citizens of the Marshall Islands... for loss or damage to property and person... resulting from the nuclear testing program which the Government of the United States conducted in the Northern Marshall Islands between June 30, 1946, and August 18, 1958.” Compact, § 177(a), 99 Stat. 1812 (reprinted in 48 U.S.C. § 1681 note at 642 (Supp. IV 1986)), T.I.A.S. No_, at_ This Section provided that the two governments, the United States and the Marshall Islands, would set forth in a separate agreement provisions for “just and adequate settlement” of those claims and that the “separate agreement shall come into effect simultaneously with” the Compact. Id. § 177(b). Section 177(c) provides for a one hundred fifty million dollar grant from the United States to the Marshall Islands for payment and distribution under the separate agreement in satisfaction of those claims. Id. § 177(c).
Article X of the resulting Section 177 Agreement headed “Espousal” provides that the Agreement constitutes full settlement of all the nuclear testing claims, including any then pending or later filed in any court or other judicial or administrative forum “including... the courts of the United States and its political subdivisions.” Section 177 Agreement, art. X, § 1. Article XII of the Agreement is entitled “United States Courts.” That Article reads, in full, as follows:
All claims described in Articles X and XI of this Agreement shall be terminated. No court of the United States shall have jurisdiction to entertain such claims, and any such claims pending in the courts of the United States shall be dismissed.
Id., art. XII. By its plain language, the Agreement contemplated a divestiture of jurisdiction of the District Court over this subject matter.
Congress recognized as much and indeed required the same in the Compact Act. Section 103(g) of that Act expressly states “the intention of the Congress of the United States that the provisions of section 177... and the [Section 177] Agreement... constitute a full and final settlement of all claims described in Articles X and XI of the Section 177 Agreement, and that any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.” Pub.L. No. 99-239, § 103(g)(1), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629 (Supp. IV 1986)).
It would appear obvious from the plain language of the 177 Agreement and the statute that Congress intended the District Court, and in turn this Court, to have no jurisdiction over claims, such as the ones asserted here, encompassed within the settlement agreement. It is axiomatic in our federal jurisprudence that inferior courts, including the District Court and this Court, have only that jurisdiction afforded them by Congress. Article III, Section 1 of the Constitution established the judicial power in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const, art. Ill, § 1. In 1850, a unanimous Supreme Court held that
[t]he Constitution has defined the limits of the judicial power of the United States, but has not prescribed how much of it shall be exercised by the [inferior] Court[s]; consequently, the statute which does prescribe the limits of their jurisdiction, cannot be in conflict with the Constitution, unless it confers powers not enumerated therein.
Sheldon v. Sill, 49 U.S. (8 How.) 441, 449, 12 L.Ed. 1147 (1850). The 1850 Court was already able to call upon fifty-one years of precedent for that doctrine. See Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 11, 1 L.Ed. 718 (1799); McIntire v. Wood, 11 U.S. (7 Cranch) 504, 506, 3 L.Ed. 420 (1813); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 619, 9 L.Ed. 1181 (1838); Cary v. Curtis, 44 U.S. (3 How.) 236, 245, 11 L.Ed. 576 (1845). Otherwise put, every court other than the Supreme Court “created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution.” Kline v. Burke Constr. Co., 260 U.S. 226, 234, 43 S.Ct. 79, 82, 67 L.Ed. 226 (1922). See also Christianson v. Colt Indus., — U.S. —, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988).
It is simply too late in the day to assert that Congress lacks the power to deprive the inferior federal courts of subject matter jurisdiction over the present claims. The language of the statute and the Agreement are simply too plain to deny that Congress expressed this very intent in the present case.
This power of Congress is particularly plain in the present case, since it involves a matter of sovereign immunity. It is another axiom of our jurisprudence that “the United States may not be sued without its consent.” 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3654, at 186 (2d ed.1985), and authorities collected at note 2. While plaintiffs are correct that the Federal Tort Claims Act, 28 U.S.C. § 1346(b), initially provided a waiver of immunity for this tort action, Congress withdrew their consent for this type of claim in ratifying the Compact and the Section 177 Agreement, providing that “all claims described in Articles X and XI of the Section 177 Agreement... [are] terminated and barred except insofar as provided in the Section 177 Agreement.” Compact Act, § 103(g)(1), 99 Stat. 1782. As the Claims Court noted in the companion litigation, “[a]n unbroken line of decisions holds that Congress may withdraw its consent to sue the Government at any time.” Juda v. United States, 13 Cl.Ct. at 689. Existing authorities clearly support this holding by the Claims Court. In Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 (1934), Justice Brandéis, writing for a unanimous Court, stated “consent to sue the United States is a privilege accorded; not the grant of a property right protected by the Fifth Amendment. The consent may be withdrawn, although given after much deliberation and for a pecuniary consideration.” Id. at 581, 54 S.Ct. at 844 (citation omitted). While that statement was technically dicta, since the Court held that Congress had not in that case withdrawn consent, id. at 583, 54 S.Ct. at 845, there is no indication in any later decision that the dicta is other than an accurate statement of the law. Indeed, in Maricopa County v. Valley Nat’l Bank of Phoenix, 318 U.S. 357, 63 S.Ct. 587, 87 L.Ed. 834 (1943), Justice Douglas, again for a unanimous Court, stated, this time as a holding, that
[n]o... suit [against the United States] may be maintained without the consent of the United States. Such consent, though previously granted, has now been withdrawn. And the power to withdraw the privilege of suing the United States or its instrumentalities knows no limitations.
Id. at 362, 63 S.Ct. at 589 (citing Lynch v. United States, supra).
Plaintiffs’ argument against withdrawal of jurisdiction is based on a convoluted interpretation of Section 103(g)(2) of the Compact Act and Article XII of the 177 Agreement. Section 103(g)(2) recites that
[i]t is the explicit understanding and intent of Congress that the jurisdictional limitations set forth in Article XII of [the Section 177] Agreement are enacted solely and exclusively to accomplish the objective of Article X of such Agreement and only as a clarification of the effect of Article X, and are not to be construed or implemented separately from Article X.
Pub.L. No. 99-239, § 103(g)(2), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629-30 (Supp. IV 1986)). Subsection (g) bears the caption “Espousal Provisions.” Article X of the Section 177 Agreement is likewise headed “Espousal.” In international law the doctrine of “espousal” describes the mechanism whereby one government adopts or “espouses” and settles the claim of its nationals against another government. See generally Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1522-23 (D.C.Cir.1984), cert. denied, 470 U.S. 1051, 105 S.Ct. 1751, 84 L.Ed.2d 815 (1985). Reading together the quoted language from Section 103(g)(2) and the heading lines and language of that statute and the cited article of the Section 177 Agreement, plaintiffs argue that Congress’s withdrawal of jurisdiction over these claims is a conditional one effective only if the espousal by the Marshall Islands of the claims of its nationals is valid. Plaintiffs then argue that we should review the espousal, find it to be invalid, then find the condition for the withdrawal of jurisdiction not to be met, jurisdiction to exist under the Federal Tort Claims Act, and the District Court to have been in error.
The short answer to plaintiffs’ argument that this is the meaning of Section 103(g)(2) is: This is not what the statute says. Section 103(g)(1) expresses “the intention of the Congress of the United States that the provisions of [the Compact and the Section 177 Agreement] constitute a full and final settlement of all claims described in Articles X and XI of the... Agreement, and that any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.” Pub.L. No. 99-239, § 103(g)(1), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629 (Supp. IV 1986)). The Agreement entered by the Executive and approved by Congress expressly states in Article XII “[a]ll claims described in Articles X and XI... shall be terminated. No court of the United States shall have jurisdiction to entertain such claims, and any such claims pending in the courts of the United States shall be dismissed.” Section 177 Agreement, art. XII. Congress could hardly have spoken more explicitly in stripping jurisdiction. Congress has simply deprived the District Court and in turn this Court of jurisdiction to review these claims. As the Claims Court noted in parallel litigation, “[as] enacted,... Section 103(g) makes no reference as to the validity of espousal on the basis of either international or constitutional law.” Juda v. United States, 13 Cl.Ct. at 684.
Similarly, as the District Court for the Central District of California noted in other related litigation, if Congress had meant to condition this important international agreement on a review of a fundamental provision therein by the courts, it surely could have included language to that effect. “If Congress wanted to first have the courts test the Compact, it could have said so; instead Congress stripped the court of jurisdiction.” Antolok v. Brookhaven Nat’l Laboratories, Nos. CV 82-2364, CV 82-4978, slip op. at 8 (C.D.Cal. Jan. 6, 1988). Congress has deprived the courts of the United States of jurisdiction over these claims. It did not deprive the courts of jurisdiction over the substance of the claims until after a review of the espousal question; it deprived the courts of jurisdiction. That is the end of the matter. The language of Section 103(g)(2) upon which plaintiffs rely simply makes it plain that the deprivation of jurisdiction applies not to all claims by the Marshall Islanders against the United States, but only those described in Articles X and XI of the Section 177 Agreement. Presumably, any other claim, under the Federal Torts Claims Act or other authority, could proceed.
Plaintiffs attempt to bolster their interpretation of Section 103(g)(2) and the incorporated articles of the Agreement and Compact by a single statement of Congressman Seiberling from the legislative history. Seiberling, Chairman of the House Interior Committee’s Subcommittee on Public Lands, inserted into the Congressional Record a statement that the relevant language
is intended to make it clear that court-stripping provisions in article XII of the section 177 agreement have no independent force or effect and their sole function is to implement the provisions of article X. Thus, if article X is valid, the espousal stands; and if article X is invalid, claims covered by the espousal provision will remain justiciable in U.S. courts, regardless of article XII.
131 Cong.Rec. H11829 (daily ed. Dec. 11, 1985).
Again, the short answer to plaintiffs’ contention is a simple one. As the Supreme Court has repeatedly reminded us, “ ‘[w]hen... the terms of a statute [are] unambiguous, judicial inquiry is complete except “in ‘rare and exceptional circumstances.’ ” ’ ” United States v. James, 478 U.S. 597, 606, 106 S.Ct. 3116, 3122, 92 L.Ed. 2d 483 (1986) (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981) (citations within Rubin omitted)). We cannot find the single statement of even an influential Congressman to overcome the plain language of the statute itself, especially where that statement was not spoken in floor debate but rather inserted into the Congressional Record.
Further, if we do go beyond the language of the statute, we find, as the Supreme Court did in James in construing a statute rendering the United States immune from flood damage claims, that the legislative history of the Compact Act taken as a whole reinforces, rather than contradicts, the plain language of the statute. An earlier version of 103(g)(2) drafted by Congressman Seiberling and passed by the House would have provided:
(2) If, notwithstanding the enactment into law of this joint resolution, a United States court of competent jurisdiction determines that the provisions of Article X of the [Section 177 Agreement] are invalid as a matter of international law or for any other reason, the provisions of Article XII... shall not, of themselves, prevent any court of the United States otherwise having jurisdiction over claims described in Articles X and XI... from entertaining such claims; and the time between the effective date of the Compact and subsequent final judicial determination of the invalidity of Article X... shall not be included in any calculations regarding applicable statutes of limitation....
H.R.J.Res. 355, 99th Cong., 1st Sess., § 103(g)(2), 131 Cong.Rec. 20,643 (1985).
In the Compact Act as adopted, Congress retained the House-passed version of Paragraph 1 of Section 103(g), affirming the “full and final settlement,” but completely rewrote Paragraph 2. See Pub.L. No. 99-239, § 103(g)(2), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629-30 (Supp. IV 1986)). The prior version supportive of plaintiffs’ argument for conditional withdrawal of jurisdiction was deleted in favor of the present language of the statute. Congressman Seiberling’s insertion into the Congressional Record cannot reinstate the provision which Congress refused to enact. The section-by-section analysis of the Compact Act prepared by the Senate managers of the legislation states that Section 103(g) “reiterates the provisions of Section 177 of the Compact which provide that there is full and final settlement of all nuclear effects claims.” 131 Cong. Rec. 36,468 (1985) (emphasis supplied). The Senate analysis further expressed an understanding of subsection (g) that in light of concerns over “protracted litigation” “an explicit endorsement of the resolution was important.” Id.
Moreover, at least one other speaker on the House floor contradicted the interpretation of the statute offered in Congressman Sieberling’s insertion. Congressman So-larz expressly stated “the compact settles all nuclear claims resulting from our nuclear weapons testing program in Micronesia.” 131 Cong.Rec. 36,039 (1985).
The contradiction between Congressmen Seiberling and Solarz need not dismay us, nor need we seek to resolve it. It may simply remind us once again that
an endemic interplay, in Congress, of political and legislative considerations... makes it necessary for judges to exercise extreme caution before concluding that a statement made in floor debate, or at a hearing, or printed in a committee document may be taken as statutory gospel. Otherwise, they run the risk of reading authentic insight into remarks intended to serve quite different purposes.
International Bhd. of Elec. Workers, Local Union No. 474 v. NLRB, 814 F.2d 697, 717 (D.C.Cir.1987) (Buckley, J., concurring).
While it is only waggishly stated that “where the statutory history is ambiguous we will look to the words of the statute,” our result in this case would be unchanged if that were the proper canon of statutory construction. Congress has stripped the courts of jurisdiction over these claims. We are not surprised, but are bolstered, in our confidence in our interpretation of the statute that the Claims Court in Juda, the Federal Circuit in People of Enewetak and in People of Bikini, and the District Court for the Central District of California in Antolok v. Brookhaven Nat’l Laboratories have all viewed the jurisdictional question consistently with our decision today. See supra note 3.
Before closing our analysis of the statutory bar to jurisdiction, we note that plaintiffs have attempted to shore up their interpretation of the statute by arguing that the literal interpretation of the statute adopted by the District Court and by us herein raises a constitutional difficulty avoided by accepting their more convoluted interpretation. This argument, relying on In re Consol. United States Atmospheric Testing Litigation v. United States, 820 F.2d 982 (9th Cir.1987), asserts that the plaintiffs’ claims for relief against the United States are a “ ‘species of property protected by the Fourteenth Amendment’s Due Process Clause.’ ” Id. at 988 (citation omitted). Thus, they argue, while this does not necessarily mean that the claims have the same Fifth Amendment protections accorded real or personal property, nonetheless each plaintiff has the “right to assert a claim for compensation or some other form of judicial relief.” Id. at 989.
This argument proves far too much. If we adopted the Ninth Circuit’s language and gave it the interpretation sought by plaintiffs, we would fly in the face of the language quoted above from Lynch and Maricopa County. Indeed, in Lynch, the dicta approving the power of Congress to eliminate claims from the jurisdiction of the courts was pronounced by a Court striking down on Fifth Amendment grounds a statute which, rather than limiting jurisdiction, was, in fact, abrogating obligations of the United States. 292 U.S. at 579-80, 583-85, 54 S.Ct. at 845-46. Had jurisdictional limitation partaken of the same constitutional infirmity, it is hardly likely that the Court would have been at pains to distinguish stripping of jurisdiction from abrogation of claims. In Lynch, the Supreme Court expressly held “[rjights against the United States arising out of a contract with it are protected by the Fifth Amendment.” Id. at 579, 54 S.Ct. at 843 (citations omitted). At the same time it noted in dicta that “consent to sue the United States is a privilege accorded; not the grant of a property right protected by the Fifth Amendment.” Id. at 581, 54 S.Ct. at 844. Plaintiffs’ argument cannot survive in light of this distinction. Likewise, in Maricopa County the Supreme Court reviewed a statute withdrawing, as to preferred shares held by a United States agency, a previously granted statutory right of the several states to collect taxes on the stock of national banks. Plaintiff in that case argued that the retrospective application of the statute violated the Fifth Amendment by destroying the liens of taxes impressed before the effective date of the Act. The Court rejected this argument, citing Lynch for the proposition that “the power to withdraw the privilege of suing the United States or its instrumentalities knows no limitations.” 318 U.S. at 362, 63 S.Ct. at 589.
We would further note, that even if the legislation amounted to an actual taking of property (and we do not read plaintiffs’ complaint to so state) then the substitution of another remedy is compensation therefor. This is in fact consistent with the Ninth Circuit’s decision in In re Consol. United States Atmospheric Litigation relied on by plaintiffs. There the Court held that the substitution of Federal Tort Claims Act liability for preexisting common law tort liability of government contractors was no violation of the Fifth Amendment. 820 F.2d at 988-89. While we recognize that plaintiffs’ argument in the present case’ is slightly stronger, since the substituted remedy here is against the fund provided under the settlement agreement rather than in an Article III court, this difference in no way grants us jurisdiction. If there is an uncompensated or inadequately compensated taking, then plaintiffs’ remedy is in the Claims Court under the Tucker Act, 28 U.S.C. § 1491(a)(1), not in District Court under the Federal Torts Claims Act. See Juda v. United States, 13 Cl.Ct. at 686-87. Therefore, the District Court did not err in its dismissal.
Since plaintiffs have not alleged a valid constitutional claim over which our Court has jurisdiction, we do not face the difficult question of whether inferior courts may be barred by an act of Congress from review of constitutional challenges to statutes. See Johnson v. Robison, 415 U.S. 361, 366, 94 S.Ct. 1160, 1165, 39 L.Ed.2d 389 (1974) (barring federal courts from deciding constitutionality of statute would “raise serious questions”); but see Webster v. Doe, — U.S. —, 108 S.Ct. 2047, 2057-60, 100 L.Ed.2d 632 (1988) (Scalia, J., dissenting) (Congress has authority to preclude lower court review of constitutional claims). Chief Judge Wald expresses a further constitutional concern as to the validity of an act of Congress restricting access to courts by jurisdictional-stripping statutes based on constitutionally suspect criteria. Wald Op. at 386-388. Certainly a constitutional enactment that limited access to the courts on the basis of some category such as race would immediately raise our constitutional hackles. This is not that statute. Just as Congress has previously left us without jurisdiction over certain intentional torts committed by non-law enforcement federal personnel, inter alia, in 28 U.S.C. § 2680(h), so now Congress deprives us of jurisdiction over claims arising from tor-tious acts by negligence or intent in the conduct of a broad and years-long nuclear testing program. While Chief Judge Wald is concerned by the “narrow” class of claims taken from our jurisdiction, this is in no sense narrower than the claims discussed in Lynch. While concededly dicta, the Supreme Court there made it plain that while the consent to sue had not been withdrawn, it could have been, “although given after much deliberation and for a pecuniary consideration.” 292 U.S. at 581, 54 S.Ct. at 844. Those claims belonged to the beneficiaries of insured veterans. The present claims belong to nationals of the Marshall Islands. The distinction appears to us to be without difference.
Chief Judge Wald’s attempt to treat this as a suspect category case simply is without foundation. As far as her reference to the racial “group” to which most plaintiffs “seem[ ] likely” to belong, Wald Op. at 386 -387, there is no indication that this fact, if it is a fact, was
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_direct1
|
B
|
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.
CONSUMERS CONST. CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 3269.
Circuit Court of Appeals, First Circuit
Feb. 15, 1938.
Bernhard Knollenberg, of New York City (Charles M. Trammell, of Washington, D. C., and Bradford S. Magill and Francis J. Sweeney, both of New York City, on the brief), for petitioner for review.
Ellis N. Slack, Sp. Asst, to Atty. Gen. (James W. Morris, Asst Atty. Gen., and 'Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for the Commissioner.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
- This is a petition for review of a decision and order of the Board of Tax Appeals determining a deficiency in the income tax of the petitioner for the period from August 1, 1927, to December 31, 1927.
There was originally before the Commissioner the assessment of the, tax of the petitioner, not only for the period covered in this appeal, but also for the periods from March 30, 1927, to December 31, 1927, and from January'1, 1928, to October 31, 1928, as well as the taxes for the same periods to be assessed on several affiliated corporations and trusts. The petitioner’s appeal from the Board’s decision affirming the findings of the Comr missioner for the period from’August 1, 1927, to December 31, 1927, raises the only questions which are before this court in these proceedings.
To state in detail all the interrelations of the several corporations and trusts forming the set-up of the system of which the petitioner was a part would only serve to confuse the issue here involved, which is, whether the net income received by the petitioner from the operating companies during the period from August 1, 1927, to December 31, 1927, was taxable to the petitioner, or whether the petitioner acted merely as the agent of the two companies holding its common stock, or as a conduit through which the receipts from operating companies were passed on to the holding companies and should be taxed to them.
So far as this appeal is concerned, it is sufficient to state the following facts: The petitioner was organized as a corporation on March 30, 1927. All of its common stock was issued to holding companies in the proportion of five per cent, to the New England Gas & Electric Association, a Massachusetts trust, which controlled through stock ownership certairi subsidiary corporations furnishing gas and electricity to the public, and 95 per cent, to the Associated Gas & Electric Company, which controlled a larger nhmber of subsidiary companies, of which there were a total of over 163 in the system and which are hereafter referred to as operating companies. In consideration of the issue of its common stock to the New England Gas & Electric Association and to the Associated Gas & Electric Company, it received from these companies certain construction contracts with the operating companies under which the petitioner was to supervise the construction activities of the operating companies, and was to receive for such supervision 7% per cent, of the total cost of any construction work undertaken by the operating companies. During the period covered in this appeal the petitioner had no employees, and employed the J. G. White Management Corporation to do the work of construction, for which the petitioner paid it a stated sum.
The petitioner also issued a large amount of preferred stock which was held by the Eastern Utilities Investing Corporation, an investment trust, though for what consideration does not appear. 14,500 shares of the 7 per cent, preferred stock of the Eastern Utilities Investing Corporation was sold and transferred to the New England Gas & Electric Association, and practically all the remainder of the preferred stock of the Eastern Utilities Investing Corporation, except such as was sold to the public, was held by the Associated Gas & Electric Company.
After operating under this arrangement, it was found that the subsidiaries of the New England Gas & Electric Association contributed 10 per cent, of the construction fees, and the operating subsidiaries of the Associated Gas & Electric Company contributed 90 per cent, of the construction fees. To readjust the stock holdings of these companies to correspond to the contributions of its subsidiaries to the petitioner under its construction contracts, 10 per cent, of the common stock of the petitioner was transferred to the New England Gas & Electric Association, leaving 90 per cent, in the hands of the Associated Gas & Electric Corporation. Apparently this readjustment of the stock holdings of tfye holding companies took place on or about August 1, 1927, as, prior to that date, the petitioner was clearly affiliated-with the Associated Gas & Electric Company, which held 95 per cent, of its common stock.
Before the Commissioner, and in its petition to the Board of Tax Appeals for redetermination of its tax, the petitioner based its claim for a redetermination in part on the ground that it was affiliated with certain other corporations, and in part on the ground that it should be permitted to file a consolidated return under section 240(f) of the Revenue Act of 1926 with certain other taxpayers who were also asking for a redetermination of their taxes for the year 1927. In its petition to this court, however, it claims that during the period in question it was a mere conduit between the operating companies and the holding companies for conducting the income received from the many operating companies under its construction contracts with them to the holding companies, or that it was an agent of the holding companies for the collection and distribution of the moneys it received from the operating companies to its principals.
From March 31 to August 1, 1927, the petitioner was clearly affiliated with the Associated Gas & Electric Company, which owned 95 per cent, of its common stock. After August 1, 1927, when the ratio of the petitioner’s common stock owned by the Associated Gas & Electric Company and the New England Gas & Electric Association was changed from 95 per cent, and 5 per cent, to 90 per cent, and 10 per cent., the petitioner was no longer affiliated with any other corporation. Its right to file a consolidated return after August 1, 1927, under section 240(f) of the Revenue Act of 1926, 44 Stat. 46, was also refused by the Commissioner, and the ruling of the Commissioner on this point was accepted by the petitioner before the Board of Tax Appeals.
The petitioner could not, we think, claim to be affiliated with another corporation from March 30 to August 1, 1927, and then claim to be a mere agent of the affiliated corporation from August 1 to December 31, 1927. If its status as an affiliated corporation from March 31, 1927, to August 1, 1927, is once conceded, its status as an independent corporation after August 1 continues.
It may be significant, too, that the petitioner did not appeal from so much of the Board’s decision as related to its tax for the period from January 1, 1928, to October 31, 1928, inasmuch as for a part of that period the petitioner had employees and apparently conducted the construction work for the subsidiaries, which the J. G. White Management Corporation had previously done.
As further evidence of its functioning as an independent corporation and that it was not a mere agent of the holding companies or a conduit for transferring to the holding companies the income received under its construction contracts with the operating companies, it appears that, after paying the stipend of- the J. G. White Management Corporation and its ordinary expenses, it declared first from its receipts from its construction contracts dividends on the preferred stock held by the Eastern, Utilities Investing Corporation, and then from the remainder of its receipts dividends on its common stock held by the holding companies. This is significant, since the New England Gas & Electric Association and the Associated Gas & Electric Company held only a part of the preferred stock of the Eastern Utilities Investing Corporation, while the remainder was held by the public. It is, therefore, clear that not all of the earnings or receipts of the petitioner from its construction con-' tracts found their way into the hands of the holding companies, but a part, at least, came, or might come, into the hands of the investing public through dividends on the preferred stock of the Eastern Utilities Investing Corporation. It is clear, we think, the corporate entity of the petitioner must be kept up in order for' the Eastern Utilities Investing Corporation and its stockholders to receive such .part of the earnings of the petitioner as they were entitled to.
The petitioner lays stress on an admission in the answer of the Commissioner that the petitioner “was engaged in the business of serving as a corporation control and convenience.” While the answer .of the Commissioner admits the allegations of the paragraph in which the statement appears, it is far from being a categorical admission that the petitioner was the agent of the holding companies, or served as a conduit for the transfer of construction service funds from the operating companies to the holding companies. It is not clear at all what it was intended to allege by the statement above referred to. To serve as a “corporate control,” the natural inference is that the petitioner’s business was to control something, which it did not do. Such an allegation is too vague and indefinite to bind the Commissioner to any form of doing business, and the other paragraphs denied in the Commissioner’s answer clearly indicate, we think, that he had no intent to admit that the petitioner was acting as agent of the holding companies. It is not necessary to comment on the petitioner’s brief in which it is stated that “corporate control and convenience” was the sole business of the petitioner.
Stress is also laid on the stock control of the holding companies over the petitioner, but it does not appear that, during the period involved here, the holding companies controlled, or could have controlled, the declaration of dividends on the preferred stock of the petitioner. They were the first to be recognized in distributing the earnings of the petitioner, and the investing public was entitled to have the Eastern Utilities Investing Company receive its share of the dividends on the preferred stock of the petitioner as against ’ common stock holdings of the holding companies.
It is the general rule that a corporate entity must be observed unless unusual conditions exist which require the courts to look behind the form to the substance.
; It cannot be said, we think, that the petitioner did not .serve a business purpose; and, as the Board said in Broadway Strand Theatre Co. v. Commissioner, 12 B.T.A. 1052: “Where a corporate cloak is resorted to for its business benefits, the burdens, if any, must also be assumed.”
The cases in which the line is drawn between a corporate entity, which must be observed, and one in which corporate foi;m may be disregarded and the rule pf constructive receipts be applied, may be more or less shadowy. Only in cases .where there are exceptional .circumstances may the separate entity of the corporation be disregarded and the courts look through form to the substance. Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399; Nixon v. Lucas, 2 Cir., 42 F.2d 833, 834; McDonald et al. v. Commissioner, 4 Cir., 52 F.2d 920, 922.
It is not surprising, therefore, that charges of inconsistency, on the part of the Commissioner or the Board in determining upon this finely drawn line arise. No hard and fast rule can be laid down for drawing this line in every case. The determination of the Board in a given case must stand if there is substantial evidence to support its finding.
The petitioner cites Southern Pacific Co. v. Lowe, 247 U.S. 330, 38 S.Ct. 540, 62 L.Ed. 1142; Gulf Oil Corporation v. Lewellyn, 248 U.S. 71, 39 S.Ct. 35, 63 L.Ed. 133; Rensselaer & S. R. Co. v. Irwin, 2 Cir., 239 F. 739; West End Street Railway Co. v. Malley, 1 Cir., 246 F. 625; Gold & Stock Telegraph Co. v. Commissioner, 2 Cir., 83 F.2d 465. But these cases and other similar cases cited by the petitioner all provided for the lessee, or a subsidiary company, to pay rentals directly to the stockholders of the lessor or a parent company. This the court held was, in effect, a payment to the lessor or the parent company itself, which was trustee for the benefit of its stockholders, and are in no way controlling as to this petitioner, which maintained separate books of account, carried on business as any independent corporation would. The other cases cited by the petitioner are not in point.
In the Gordon Can Company v. Com’r Case, 29 B.T.A. 272, Helvering v. Gordon, 8 Cir., 87 F.2d 663, on which the petitioner relies, Gordon and his wife owned all the stock of the Gordon Can Company. They also owned all the stock of a Realty Company. Gordon arranged to buy tin plate of a corporation engaged in supplying this article and at a price considerably below the regular market price. He arranged with an official of this corporation supplying the tin plate who was a personal and close friend to bill the plate to the Gordon Can Company at the regular market price and to give a rebate agreed upon which was paid to the Realty Company without any obligation, contractual or otherwise, to do so, which company had nothing to -do with making or selling cans. The court very properly held that the Realty Company was a mere conduit in that case to transfer the rebate through it to the stockholders of the Can Company. The petitioner undertakes to draw an analogy between the parties in that case and this, but the part performed by the Realty Company in that case is in no way analogous to that performed by the petitioner in this case. The Realty Company performed no service at all except as a conduit to transfer the funds represented by the rebates to the stockholders of the Can Company. It does not appear to have had any contractual relations with the corporation giving the rebates. On the other hand, the petitioner, which it is claimed corresponds to the Realty Company in that case, performs a very important service directly. connected with the collection of the funds under its construction contracts and their distribution as dividends among the stockholders holding its stock, some part of which finds its way into the hands of the public through preferred dividends by the Eastern Utilities Investing Corporation.
In the case of Ford Motor Co. v. United States, Ct.Cl., 9 F.Supp. 590, 599, the government referred to the cases of Southern Pacific Co. v. Lowe, supra, and Gulf Oil Corporation v. Lewellyn, supra, but the court, in holding they did not apply to the facts before it, said:
“We have carefully considered the decisions of the Supreme Court cited by the defendant in support of the contention that the separate corporate entities of the corporations involved should be disregarded and the case treated as that of a single taxpayer. The facts in each of the cases relied upon are, we think, clearly distinguished from the facts in the instant case. * ❖ ❖
“The essence of the decisions in the cases referred to is that, where stock ownership has been resorted to, not for the purpose of participating in the affairs of a corporation in the normal and usual manner, but for the purpose of controlling the corporation and dominating its management and affairs so that it may be used as a mere agency, tool, or instrumentality of the owning corporation or corporations, the courts will disregard the fiction of the separate corporate entity and deal with the substance of the transactions in such manner as the justice of the case may require. * * *
“In each of the cases cited, the company, whose separate corporate entity was disregarded by the court, was a subsidiary corporation, the entire property and assets of which were owned by one or more other corporations which completely dominated its affairs and exercised control over the management of its business to such an extent that the companies were in substance but one corporation.”
This case obviously is not authority in support of the petitioner’s contention in the case at bar.
The holding companies in this case did not have in their possession any of the property of the petitioner, nor does the record show that they undertook to dominate its corporate dealings. So far as the record shows, they permitted it to act throughout as an independent corporate entity. The construction contracts with the operating companies transferred to the petitioner in return for the issue of its stock must be held to be capital assets and the earnings under them constituted income.
It is not denied that the petitioner was corporate in form; that it kept separate books of account; that it had all the officers common to corporations; that they performed their usual functions in the collection of the construction contract fees, the expending of the moneys, in meeting any obligations they were under, and in the declaration of dividends.
The Board found the petitioner was not an example of an agency passing along benefits to its principal, that it was not a mere bookkeeping entity or a corporation without substance, or an agent or conduit for holding companies. We think its findings are supported by some substantial evidence and cannot be disturbed on appeal.
The decision and order of the Board of Tax Appeals are affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_casetyp1_7-3-3
|
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 - commercial disputes".
CRANE COMPANY, Appellant, v. RICHARDSON CONSTRUCTION COMPANY, Bahamas Ltd., et al., Appellees.
No. 19525.
United States Court of Appeals Fifth Circuit.
Jan. 9, 1963.
John L. Britton, Feibelman, Friedman, Hyman & Durant, Fort Lauderdale, Fla., for appellant.
Frank M. Hamilton, Fleming, O’Bryan & Fleming, Fort Lauderdale, Fla., for appellees.
Before RIVES, CAMERON and BELL, Circuit Judges.
RIVES, Circuit Judge.
The only question presented for decision is whether the provisions of Florida Statutes § 608.55, F.S.A. apply to a foreign corporation and to the officers and directors of a foreign corporation while such corporation is engaged in business in the State of Florida. We agree with the district court that they do not.
The appellant Crane Company sought to recover the sums due it by the appellee Bahamian corporation from appellee E. J. Richardson, by virtue of the fact that Richardson, while he was an officer of the Bahamian corporation and while that corporation was failing to meet its obligations, had been repaid loans of money made by him to the Bahamian corporation. The appellant insists that Richardson thus became personally liable to appellant by virtue of the provisions of Florida Statute, § 608.55, F.S.A. The district court, after hearing the evidence, entered its findings and conclusions, ruled that the provisions of the Florida Statute, § 608.55, F.S.A. were not applicable to a foreign corporation, and accordingly entered judgment for defendant Richardson.
Florida Statute, § 608.55, F.S.A. (without some later amendments not here material) was first enacted by the Florida Legislature in 1925. It was adopted almost entirely from the New York Stock Corporation Law enacted by the Legislature of New York in 1893. In 1894, the Court of Appeals for the State of New York, in Vanderpoel v. Gorman, 140 N.Y. 563, 35 N.E. 932, 24 L.R.A. 548, construed the New York statute as being limited to domestic corporations. Thereafter, in 1897, long before the enactment of the Florida statute, the New York Legislature, by Section 114, Article 11, provided expressly that the New York statute should apply to foreign stock corporations transacting or doing business in the State of New York. See Irving Trust Co. v. Maryland Casualty Co., 2 Cir., 1936, 83 F.2d 168, 170, 111 A.L.R. 781, footnote. The earlier, but not the later, New York statute was adopted by the Florida Legislature.
The Supreme Court of Florida has applied to this particular Florida statute the familiar rule that it is governed by the construction placed upon it at the time of its enactment by the highest court of the state from which the statute was adopted. Denmark v. Ridgell Furniture Co., 1934, 117 Fla. 244, 157 So. 489; see also Williams v. American Crafts, Inc., D.C.App.FIa., 3rd Dist., 1961, 129 So.2d 165, 168.
The Supreme Court of Florida has also held that when the legislature adopts only a portion of an existing statute of another state, it creates a strong presumption of legislative intention to omit from Florida law that portion of the other state statute not adopted. Peterman v. Floriland Farms, Inc., 1961, 131 So.2d 479, 480. Without more, it would appear that Section 608.55 of the Florida Statutes does not apply to a foreign corporation.
The history of the Florida statute is equally compelling. As stated, it was originally enacted in 1925. With a number of amendments, the statute has remained on the books. It obtained its present identity, Section 608.55, by virtue of the Florida Laws of 1953, c. 28170, Sec. 1. Prior thereto it was known as Section 612.45, Florida Statutes. Chapter 612 was repealed by the 1953 Legislature, the sections thereof being consolidated into new Chapter 608. Old Section 612.01, Florida Statutes, reveals that Chapter 612, including Section 612.45, was limited in its application to domestic corporations. See 18 F.S.A. p. 270.
The appellant Crane Company insists, however, that the decision of the Court of Appeals of New York in Vanderpoel v. Gorman, supra, does not apply, because the rationale of that case is in conflict with the provisions of the Florida Statute, § 613.02, F.S.A. That section does not, however, make foreign corporations subject to the same penalties, obligations, liabilities and restrictions as domestic corporations, nor does it provide for any personal liability of officers and directors.
No Florida case has been cited to justify appellant’s position that Florida Statute, § 613.02, F.S.A. would authorize the district court to disregard the clear and explicit language of the New York and Florida courts and the history of Section 608.55, all of which lead to the inevitable conclusion that Section 608.55 applies only to domestic corporations.
Accordingly, the judgment of the district court is
Affirmed.
. In pertinent part:
“No corporation which shall have refused to pay any of its notes or other obligations when due, nor any of its officers or directors, shall transfer any of its property, to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, or upon any other consideration than the full value of the property paid in cash. * * * The directors or officers of a corporation who shall violate or be concerned in violating any provision of this section shall be personally liable to the creditors and stockholders of the corporation of which they shall he directors or officers to the full extent of any loss such creditors and stockholders may respectively sustain by such violation.” 18 F.S.A. § 608.55, pp. 224, 225.
. Florida Laws, 1925, c. 1009G, Section 43.
. In pertinent part:
“013.02 Issuing permit to transact business in the state
«(l) * * * the secretary of state shall, if the objects of the corporation are such as are not prohibited by the laws of the state, issue a permit allowing such corporation to transact business in this state, and such corporation shall thereupon be empowered to exercise all and be limited to the same rights, powers and privileges as like corporations organized under the laws of this state * *
. The authority and cases relied upon by appellant are distinguishable on that ground. See 23 Am.Jur., Foreign Corporations, Sections 313, 314; Friend & Company v. Goldsmith and S. Company, 1923, 307 ILl. 45, 138 N.E. 185; Floyd v. National Loan & Investment Co.. 1901, 49 W. Va. 327, 38 S.E. 653, 54 L.R.A. 536.
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_numresp
|
99
|
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 respondents in the case. 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.
Flossie Marie MASSEY, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
No. 83-8505.
United States Court of Appeals, Eleventh Circuit.
May 15, 1984.
Edmund A. Booth, Jr., Asst. U.S. Atty., Augusta, Ga., G.R. Smith, Asst. U.S. Atty., Savannah, Ga., for defendant-appellant.
Joseph Jones, Jr., Atlanta, Ga., for Massey, et al.
John S. Kalil, C. Wayne Alford, Jacksonville, Fla., for Roberson, et al.
Jim Ammerman, Marshall, Tex., for plaintiffs-appellees.
Before GODBOLD, Chief Judge, RONEY, Circuit Judge, and TUTTLE, Senior Circuit Judge.
TUTTLE, Senior Circuit Judge:
This is an appeal from the denial by the trial court of the motion of the United States for summary judgment in a case which had been pending in that court or on appeal since 1971. We affirm that judgment.
Because the trial court’s well-reasoned opinion is not published and because the Georgia law has changed once again since it was entered we refrain from affirming the judgment on the basis of that opinion, a disposition we sometimes make when we have for consideration an opinion as carefully and correctly crafted as the one before us. Nevertheless, we do quote extensively from Judge Edenfield’s opinion:
“Eleven years and ten months after the incident giving rise to the above-styled actions, five and one-half years after the entry of judgment of liability against the government in the consolidated eases, two years after the former fifth circuit’s remand to this Court for further proceedings pursuant to the appellate court’s affirmance of the district court in accordance with the Georgia Supreme Court’s ruling on questions certified to it, forty-six days after the appointment of a Special Master to try the damages claims of the plaintiffs and after nine months of additional discovery and preparation for trial or settlement of the damages claims, the government has presented the Court with a motion to dismiss for failure to state a claim or for lack of jurisdiction, or in the alternative, for summary judgment on the issue of liability.
“The government submits that because of a change in controlling law, there is a bar to liability and recovery. Specifically, the government cites recent developments in Georgia workers’ compensation law conferring tort immunity upon statutory employers and asserts that the United States is entitled to raise the statutory employer defense at this point in the litigation. The plaintiffs challenge the government’s assertion of this shield from liability on both substantive and procedural grounds. The parties’ positions will be explored after a description of the history of this case.
“It is not uncommon for the law to change, nor are protracted court proceedings a rarity. In this case, the two have coalesced to form a result disillusioning to laymen and lawyers alike. Enormous resources have been expended; the record is vast; the case, under the style of Aretz v. United States, has been reported at various stages no less than eight times since 1973. The plaintiffs decry the unfairness of permitting the government to shield itself from liability years after the determination of liability. No less forcefully the government argues that recovery in these cases would work an injustice. Neither of these contentions adds anything to the ultimate issue facing the Court: a question of law and fact to be decided under legal principles. The Court would be remiss, however, if it did not acknowledge the irony of the situation, i.e., that by mere fortuitousness, two plaintiffs have recovered damages, awards which were upheld on appeal and have now been satisfied, and that after long years, the end of this litigation for a few months in view, has disappeared with the filing of this motion, leaving the litigants and the Court once again at the threshold.
“History of the Thiokol Cases
“The facts, as briefly described by Judge Lawrence in the introduction to his opinion containing findings of fact and conclusions of law on the issue of liability, are as follows:
“These Federal Tort Claim actions have resulted from the fire and explosion which occurred at the Woodbine, Georgia plant of Thiokol Chemical Corporation on February 3, 1971.
“Thiokol was engaged in the manufacture, under contract with the Army, of trip flares which were used by the military during the war in Viet Nam as an aid to troops subjected to attack at night. The flares are ignited by pulling the trip or cutting of the trip wire. A bright flame is emitted which lights up a considerable area.
“On February 3, 1971, around 60 employees of Thiokol were working in or near Building M-132 in which the flares were produced. At 10:53 A.M. a fire broke out at the ‘first fire’ addition station in the facility. The loose illuminant material (magnesium and sodium nitrate) burns at a speed measured in milliseconds and reaches very high temperatures. The fire ran down the ignition pellet assembly line and eventually got into the cure room where 8,000 pounds of loose illuminants were being cured in trays. Also in the curing room were 56,322 candles containing approximately 0.3 pounds of illuminant each; 18,472 ignition pellets, and 100 pounds of first fire and intermediate mix.
“An enormous pressure built up as the result of the deflagration of the illuminants. The fire culminated in an explosion in the cure room that destroyed the building. Twenty-nine employees lost their lives. More than fifty other employees were injured. The amounts sought by the plaintiffs aggregate $717,-526,391.
“Aretz et al. v. United States, 503 F.Supp. 260, 264-65 (S.D.Ga.1977).
“Twenty-five separate suits were brought against the United States by injured employees and representatives of deceased employees under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq. Thiokol, which was a named defendant in many of the cases was dismissed after raising the exclusive remedy bar of workers’ compensation, Ga.Code Ann. §§ 114-103 [O.C.G.A. § 34-9-11]. Massey v. Thiokol Chemical Corp., 368 F.Supp. 668 (S.D.Ga.1973). The government and the plaintiffs filed a joint motion to consolidate the case for the purpose of discovery and of determination as to liability. The Court granted the motion, ruling that “said eases be consolidated for trial for the purpose of determining the issue of liability” in accordance with Rule 42(a) of the Federal Rules of Civil Procedure. (Order of May 13, 1974). According to Neil R. Peterson, lead trial counsel for the government, the intent was to preserve specific affirmative defenses such as comparative negligence, applicable in various actions for trial of the damages aspect. Apparently, this was the case, since the government raised and the Court addressed specific defenses in the Aretz cases when they went to trial on the damages claim. Aretz v. United States, 456 F.Supp. 397, 411 (S.D.Ga.1978).
“The consolidated cases went to trial on the liability issue in the summer of 1974. In Aretz et al. v. United States, 503 F.Supp. 260 (S.D.Ga.1977), the Court found negligence on the part of the United States in wrongly classifying the illuminant used in the manufacture of the flares and in failing to communicate to Thiokol an upgrading in classification of the material. This negligence, Judge Lawrence held, was the proximate cause, along with the negligence of the joint tort-feasor Thiokol, of the explosion. Judgment was entered in favor of all the plaintiffs and against the United States on the question of liability on June 28, 1977. The government sought certification for interlocutory appeal under 28 U.S.C. § 1292(b). By Order of February 14, 1978, Judge Lawrence declined to certify the judgment for appeal and decided instead to proceed to trial on the damages aspect in the cases of Mr. and Mrs. Thomas F. Aretz, the first cases filed. Thereafter, the government would be able to take a direct appeal. The Court awarded damages to the Aretzes in the amount of $594,-272.50. Aretz v. United States, 456 F.Supp. 397 (S.D.Ga.1978). Aretz was affirmed, 604 F.2d 417 (5th Cir.1979), then vacated on rehearing en banc, 616 F.2d 254 (5th Cir.1980). The questions of the government’s duty of care to the Thiokol employees and of proximate causation were certified by the fifth circuit to the Supreme Court of Georgia which found a duty to properly classify the illuminant and to communicate the proper classification to Thiokol and declined to disturb the district court’s holding that the breach of this duty was a proximate cause of the explosion. United States v. Aretz, 248 Ga. 19, 280 S.E.2d 345 (1981). The fifth circuit adopted the Georgia court’s conclusions, reinstated the panel decision, affirmed the district court and remanded to the district court for further proceedings. 660 F.2d 531 (5th Cir. 1981).
“Shortly after remand, the Court was notified that the Solicitor General had decided not to file a petition for writ of certiorari in the Aretz cases. The United States Attorney expressed his intention to proceed with discovery and settlement negotiations ‘as expeditiously as circumstances will permit in order to seek a final resolution of these damage claims.’ (Letter to Court dated February 2, 1982). In October, 1982, the government reported that discovery had been undertaken but not completed and informed the Court that the Department of Justice was considering whether to file a motion raising the defense of statutory employer-tort immunity. As late as October 8, the government continued to assure the Court that it would complete all discovery and participate in settlement discussions.
“Thereafter, the Court issued an order appointing Michael J. Gannam as Special Master to take and hear evidence on all issues presented in the damage claims. The first meeting of the parties or their attorneys with the Special Master was scheduled on December 6, 1982. At that meeting, a preliminary trial schedule was set and arrangements were made to hold the trials. On December 27, 1982, an order establishing procedure was entered. That same day, the United States filed the motion for summary judgment currently before the Court.
“The Parties’ Contentions
“Under the Federal Tort Claims Act, the United States is liable to suit only in the same manner and to the same extent as a private individual in like circumstances under the law of the place where the act or the omission occurred. 28 U.S.C. § 1346(b); United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976). The government is likewise entitled to raise all defenses available to a private defendant under state law. The government contends that though the plaintiffs had a state-created right of action at the incipience of this litigation, a change in Georgia law has abrogated the cause of action against the government which now claims the status of “statutory employer” as that term has evolved in Georgia workers’ compensation law.
“The portions of the workers’ compensation act, O.C.G.A. §§ 34-9-8; 34-9-11; Ga. Code Ann. §§ 114-203; 114-112, on which the government relies are as follows:
Ҥ 34-9-8:
“(a) A principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.
“(b) Any principal, intermediate, or subcontractor who shall pay compensation under subsection (a) of this Code section may recover the amount paid from any person who, independently of this Code section, would have been liable to pay compensation to the injured employee or from any intermediate contractor.
“(c) Every claim for compensation under this Code section shall be in the first instance presented to and instituted against the immediate employer, but such proceedings shall not constitute a waiver of the employee’s right to recover compensation under this chapter from the principal or intermediate contractor. If such immediate employer is not subject to this chapter by reason of having less than the required number of employees as prescribed in subsection (a) of Code Section 3409-2 and Code Section 34-9-124 does not apply, then such claim may be directly presented to and instituted against the intermediate or principal contractor. However, the collection of full compensation from one employer shall bar recovery by the employee against any others, and the employee shall not collect a total compensation in excess of the amount for which any of the contractors is liable.
“(d) This Code Section shall apply only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management.
Ҥ 34-9-11:
“The rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits.
“Before 1981, a principal contractor in Georgia could be liable for workers’ compensation benefits to injured employees of independent contractors, American Mutual Liability Ins. Co. v. Fuller, 123 Ga.App. 585, 181 S.E. 876 (1971), but was not afforded immunity from suit in tort under Ga.Code Ann. § 114-103, O.C.G.A. § 34-9-11. Bli Construction Co. v. Knowles, 123 Ga.App. 588, 181 S.E.2d 879 (1971); Blair v. Smith, 201 Ga. 747, 41 S.E.2d 133 (1947). That the predicament of the general contractor who hired independent contractors defied the logic of the theory underlying workers’ compensation law, i.e., that tort immunity is conferred in exchange for liability for workers’ compensation benefits, did not escape the notice of the Georgia courts. See Bli Construction, 123 Ga.App. at 589, 181 S.E.2d 879. The anomaly did not exist, however, where the statutory employer actually paid the benefits before being sued by the employee on a common law negligence action. See Haygood v. Home Transportation Co., Inc., 244 Ga. 165, 259 S.E.2d 429 (1979) (Jordan, J., concurring specially, arguing that majority had overruled Blair v. Smith sub silentio); Jackson v. J.B. Rush Construction Co., 134 Ga.App. 445, 214 S.E.2d 710 (1975) (no distinction made between independent contractors and non-independent subcontractors). In this regard, it is noteworthy that in both Bli Construction and American Mutual, the statutory employer was directly responsible for workers’ compensation benefits because the subcontractors did not have sufficient employees to come within the provisions of the workers’ compensation act, but had not yet paid any benefits. Thus, the distinctions were whether the subcontractors were independent contractors or not and whether the statutory employer had actually paid the benefits before suit was brought or was merely potentially liable because the immediate employer had paid the benefits.
“The Georgia Supreme Court brought symmetry to this area of the law in Wright Associates, Inc. v. Rieder, 247 Ga. 496, 277 S.E.2d 41 (1981). The court there held:
“In the case before us, we have the same facts as in Haygood, supra, that here the employee recovered workers’ compensation benefits not from the statutory employer, Wright Associates, but from his immediate employer, Eastern Steel Erectors. Wright Associates argues that as a statutory employer liable to pay workers’ compensation benefits under Code Ann. § 114-112, it should receive the correlative benefit of tort immunity under Code Ann. §§ 114-103, 114-112. We agree and so hold. As one commentator has pointed out in his discussion of statutory employers, “Since the general contractor is thereby, in effect, made the employer for the purpose of the compensation statute, it is obvious that he should enjoy the regular immunity of an employer from third-party suit when the facts are such that he could be made liable for compensation; and the great majority of cases have so held,” 2A Larson’s, Workmen’s Compensation Law, § 72.32 at p. 14-47.
“Id. at 499, 277 S.E.2d 41 (footnotes omitted).
“Potential as well as actual liability for workers’ compensation benefits to injured employees of independent subcontractors now insulates the statutory employer from tort recoveries. See generally Potter, Workers’ Compensation, 34 Mer.L.Rev. 335-38 (1982).”
“The government in the Thiokol cases likewise argues that Wright Associates is factually indistinguishable and that the benefits of the holding in Wright Associates should extend retroactively to it. The contract to manufacture flares for the Army between the government and Thiokol, an independent contractor, see 503 F.Supp. at 285, was procured through the Department of the Army. The government contends that it is a ‘principal contractor’ and that the injury occurred on premises under the control or management of the government. Therefore, the argument goes, the government would have been liable to provide compensation benefits to the injured employees and representatives of the deceased employees had not Thiokol paid them and this being the case, it is entitled to immunity from suit in tort under O.C.G.A. § 34-9-11.”
The trial court thereafter concluded that it would not attempt to analyze further or decide other complex issues, but that it would base a judgment for the plaintiffs on the single ground: “The government waived its statutory employer defense by failing to timely bring it before the court. It cannot now avail itself of the defense of coverage by the Workers’ Compensation Act.”
We agree with this conclusion. It would be intolerable for us to hold that after the government and all the parties entered into a solemn agreement to be bound by the holding on liability in the Aretz case, the government could unilaterally ignore the stipulation and raise a defense to liability as to the remaining parties.
We would be remiss, however, in our obligation to the parties, if we failed to note a further change in the Georgia law since the trial court’s judgment. The vagaries of the Georgia Workers’ Compensation “statutory employment” law have now hopefully been stopped. What the trial judge here thought might, if not waived, give the United States immunity has again been considered by the Georgia Supreme Court in Manning v. Georgia Power Co., 252 Ga. 404, 314 S.E.2d 432 (Ga.S.Ct., 1984). There the Georgia court construed the language “a principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer ...” The court said:
In Evans v. Hawkins, 114 Ga.App. 120 (150 SE 2d 324) (1966), it was established that “principal” in paragraph (a) meant “principal contractor,” just as in paragraph (d), and not a principal party to whom an obligation to perform work is owed. Thus a property owner, although he may be a “principal, ” is not a principal contractor within the meaning of this section and is not a statutory employer who is liable for workers’ compensation benefits or immune to tort liability by reason of the exclusive remedy provision of the Act, OCGA § 34-9-11. The Court of Appeals apparently lost track of Evans however, in deciding Godbee v. Western Electric Co., 161 Ga.App. 731 (288 SE 2d 881) (1982). Godbee ignored Evans and announced the rule that OCGA § 34-9-6(a) pertains to any employer who hires another to perform work, regardless of whether he is an owner rather than a contractor. Nevertheless, the error in Godbee, and the failure to account for Evans, was remedied in Modlin v. Black & Decker, Court of Appeals case no. 67781 (decided March 5, 1984), wherein Godbee was expressly overruled and the reasoning of Evans revived. “Owners or entities merely in possession or control of the premises would not be subject to workers’ compensation liability as statutory employees, except in the isolated situation where the party also serves as a contractor for yet another entity and hires another contractor to perform the work on the premises.” Id. at 6. We agree with and adopt this analysis of the intent and meaning of OCGA § 34-9-8(a) as to the statutory employer doctrine.
Applying the precepts of Modlin to the present case it is clear that we must reverse. Georgia Power is an owner (and is not acting as a contractor), on whose property Manning was injured. The Act does not make Georgia Power liable for workers’ compensation benefits in such circumstances, nor does it immunize Georgia Power from potential liability in tort. Therefore it was error for the Court of Appeals to hold that Georgia Power Company was a statutory employer of Manning and immune to tort liability.
Manning v. Georgia Power Co., et al., 252 Ga. 404, 314 S.E.2d 432 (Ga.S.Ct., 1984) (emphasis added.)
We do not attempt to decide what might be the proper application of Manning to this case. Since we approve the judgment of the trial court on the basis of the government’s having waived the defense of immunity under O.C.G.A. § 34-9-8, we do not reach this issue.
The judgment is AFFIRMED.
Because of the inordinate delay in this case, it is ORDERED that this judgment be issued in manuscript form.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_genresp1
|
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.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Johannes HANSARD, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. Mark J. BARRETT, Individually and as Superintendent, Franklin County Jail; Al Clark, Individually and as Chief Deputy, Franklin County Jail, Defendants-Appellees.
No. 91-3927.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 15, 1992.
Decided Dec. 2, 1992.
Todd D. Penney, Dinsmore & Shohl, Cincinnati, Ohio (argued), David Goldberger, Ohio State University College of Law, Columbus, Ohio (briefed), for plaintiff-appellant.
Harland H. Hale, Pros. Attorney’s Office, Columbus, Ohio (argued and briefed), for defendant-appellee.
Before: KENNEDY, and MILBURN, Circuit Judges; and WELLFORD, Senior Circuit Judge.
KENNEDY, Circuit Judge.
Plaintiffs, a class of homosexual inmates of the Franklin County Jail, Columbus, Ohio, appeal the summary judgment entered in favor of the defendants in this class action involving alleged discrimination in their opportunity to earn a reduction in sentences for work done at the jail. Plaintiff Hansard represents the class of all present and future inmates at the Franklin County Jail who have been or will be classified by defendant jail officials as homosexuals. When an inmate is classified as a homosexual upon entering the jail, he is housed in 6 West Left 1 (6WL1), a range of the jail designated for homosexual housing. Inmates living in 6WL1 are segregated from the general prison population.
Plaintiffs do not challenge the classification and segregation of homosexual inmates. They do charge that inmates identified as homosexual are automatically and categorically denied the opportunity to earn discretionary reductions in sentences available only to inmates who perform work during their terms, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Because we find that the Due Process Clause is not implicated, and that the plaintiffs failed to present evidence of a discriminatory policy, we AFFIRM the District Court’s grant of summary judgment in favor of the defendants.
I.
Plaintiff Hansard filed this class action in December, 1988, pursuant to 42 U.S.C. § 1983 and 29 U.S.C. § 792, alleging arbitrary and discriminatory treatment of inmates at the Franklin County Jail who are designated as homosexual. The class was certified in August, 1989. The defendants in this action are Mark J. Barrett and A1 Clark, superintendent and chief deputy of the jail, respectively. Both were sued individually and in their official capacity. The case was submitted to the District Court on cross-motions for summary judgment. The parties agreed that the depositions and any affidavits submitted with the summary judgment motions would constitute the record in the action. On August 29, 1991, the District Court granted defendants' motion for summary judgment and denied plaintiffs’ motion for summary judgment.
This Court reviews the granting of a • motion for summary judgment de novo, Aetna Insurance Co. v. Loveland Gas & Electric Co., 369 F.2d 648, 651 (6th Cir.1966); Hines v. Joy Manufacturing Co., 850 F.2d 1146, 1149 (6th Cir.1988), and uses the standard under Federal Rule of Civil Procedure 56(c), the same test as the District Court employs. Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). The Supreme Court clarified the relevant inquiry:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmov-ing party’s case necessarily renders all other facts immaterial. The moving party is “entitled to judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Moreover,
there is no issue for trial unless there is sufficient evidence favoring the nonmov-ing party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). A court should view the evidence in a light most favorable to the nonmoving party. Id. at 255, 106 S.Ct. at 2513. Additionally,
[a]n appellate court can find an alternative basis for concluding that a party is entitled to summary judgment and ignore any erroneous basis relied upon by the district court, provided it proceeds carefully so the opposing party is not denied an opportunity to respond to the new theory.
Hines, 850 F.2d at 1150 (quoting Herm v. Stafford, 663 F.2d 669, 684 (6th Cir.1981)). The District Court granted summary judgment on the equal protection claim based on its finding that inmates have no fundamental right to earn work reduction credits (and on a separate basis not before this Court). We affirm the District Court’s grant of summary judgment on the alternative basis that the plaintiffs failed to make a sufficient showing that the defendants applied the work reduction program' in a discriminatory fashion.
II.
In Ohio, county sheriffs have the discretion to recommend reductions of inmates’ sentences upon “a consideration of the quality and amount of work done in the kitchen, in the jail offices, on the jail premises, or elsewhere." Before a reduction is granted, the sentencing judge or magistrate must concur with the sheriff’s recommendation. Ohio Rev.Code § 2947.151. To become eligible to earn these credits an inmate must obtain a job in the jail facility. Whether homosexual inmates are denied eligibility for these jobs is at the center of this dispute.
In their motion for summary judgment and in their brief to this Court, plaintiffs argue that section 2947.151 is unconstitutional on its face and as applied by the defendants. They assert that defendants categorically deny homosexual inmates access to work assignments and the opportunity to reduce their sentences because they are homosexual, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The defendants answer that inmates have no protected liberty interest in this discretionary program for sentence reductions and that homosexuals were not denied work opportunities, therefore, no constitutional violation occurred.
A. Due Process Claim
The United States Supreme Court has held that inmates have no inherent constitutional right to good time credit. Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). But it has also recognized that a state may nevertheless “create a liberty interest protected by the Due Process Clause through its enactment of certain statutory or regulatory measures.” Hewitt v. Helms, 459 U.S. 460, 469, 103 S.Ct. 864, 870, 74 L.Ed.2d 675 (1983). The Court further explained that, by the use of “language of an unmistakably mandatory character, requiring that certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed,” a state may create in its prisoners a protected liberty interest. Id. at 471, 103 S.Ct. at 871.
Plaintiffs claim that Ohio has created a protected liberty interest in the plaintiffs’ right to the sentence reductions at issue here through the promulgation of Ohio Administrative Code, § 5120:l-8-15(G). This section reads:
Prisoners placed in administrative segregation shall receive all regular privileges and rights unless they pose a serious threat to the security of the facility or the health and welfare of the individual.
This section guarantees that those in administrative segregation will have the same rights and privileges as do those in the general population. It does not concern or in any way establish a right on the part of any prisoner to earn the credits involved here. That right is governed by section 2947.151 of the Ohio Revised Code. Under this section, a sheriff has complete discretion in recommending a sentence reduction. No prisoner, whether in the general population or administrative segregation, has an absolute right to earn a recommendation for reduction of sentence by reason of his or her work in the jail. As the District Court found:
The mandatory language found by the [Supreme] Court in Hewitt to require constitutional safeguards is clearly lacking in O.R.C. § 2947.151. That statute merely provides that the sheriff “may” recommend a reduction in an inmate’s sentence based on work performed. Even if an inmate is granted a work assignment and performs commendably, the statute does not direct that the sheriff make such a recommendation — the decision lies solely within the sheriff’s discretion. Clearly, then, no protected liberty interest in either good time credits or work opportunities is created by O.R.C. § 2947.151.
Because the plaintiffs are not vested with a constitutionally protected interest in either recommendations for sentence reduction or work opportunities, this Court finds that their denial does not implicate the Due Process Clause of the Fourteenth Amendment.
B. Equal Protection Claim
The plaintiffs allege that they are categorically denied the opportunity to earn good time credits, based solely on their homosexual classification, in violation of the Equal Protection Clause. All inmates in the Franklin County Jail who are granted work assignments are trustees and must live in worker dormitories. Plaintiffs allege that homosexual inmates segregated in 6WL1 are prohibited from transferring into these dormitories. Because they cannot fulfill this housing requirement, this alleged prohibition creates an across-the-board ineligibility of homosexuals assigned to administrative segregation for job assignments.
1.Official Procedure for Work Assignments
Work assignments are made at the jail in accordance with Administrative Regulation 865 and Procedure 865:1. Any inmate interested in becoming a worker, a.k.a. “trusty” [sic], must apply in accordance with the following procedure:
1. Any inmate that wishes to become a trusty must fill out a call-card and explain why he wants to become one. The duty floor, officer shall forward this call card to the classification officer.
2. Trusties shall be considered on a first-come-first-serve basis.
3. Upon receipt of the call-card, the officer in charge of trusty selection shall obtain a copy of the inmate’s slate and shall run a record check [on] the inmate.
4. An inmate’s previous record, amount of bond, and jail offenses shall be considered for selection.
5. The trusty positions are: laundry workers, painters, custodial workers, and kitchen workers.
6. The inmate shall be cleared through the medical section to be physically able to perform the duties of the position requested.
7. If more than one inmate is being considered for the same position, the inmate with the best qualifications in the area of the duties to be performed in the position will be selected.
Dept.Proe. 865:1.
Regulation 865, in effect since August 15,1981, provides that “[prisoners selected as trusties [sic] shall be chosen and have their status changed pursuant to [Regulation] 827.” Regulation 827 §§ 1, 4.1-4.4 classifies prisoners according to their age, sex, offense and legal status upon admission to the facility. A prisoner’s legal status is further classified as either “pretrial,” “trusty,” “sentenced,” “work release” or “other.” Reg. 827 § 4.4.1-4.4.5. An inmate who wants to work must have his status changed to “trusty” because only “trusties” can live in trusty or worker housing. Pursuant to Regulation 827 § 8.7, a prisoner may request that his classification status be changed. “Homosexuality or vulnerability to attack,” “propensity for violent ... behavior,” and other “special needs” are considered “evidence of unusual behavior.” Reg. 827 § 4.6.3. Any “special needs” inmates, including identified homosexuals, must be reclassified as “trusties” before obtaining a work assignment. .
Regulation 827 § 11 lists the following evaluation and selection criteria used in choosing inmates for work assignments and “trusty” status: .
All prisoners being considered for Trusty status shall be evaluated and selected on criteria including, but not limited to:
11.1 The nature of the prisoner’s offense and sentence.
11.2 Previous attempts to escape by the prisoner.
11.3 The prisoner’s ability to understand directions.
11.4 The quality and quantity of the prisoner’s work.
11.5 The prisoner’s behavior in the correctional facility.
There is nothing in these regulations indicating that inmates housed in 6WL1 are prohibited from transferring to worker dormitories. The factors considered in deciding whether or not to grant an- inmate “trusty” status do not include a prisoner’s sexual orientation. Thus, facially, the regulations in effect at the time this action was filed treated all prisoners equally and did not discriminate against homosexual inmates or deny them the opportunity to apply for work assignments and “trusty” status.
2. Application of the Work Assignment Procedure
Next, the plaintiffs argue that the defendants applied Regulation 827 to homosexual inmates in a discriminatory fashion. Plaintiffs offered certain deposition testimony to support this allegation. However, an examination of the proffered testimony finds no more than a scintilla of evidence that homosexual inmates were denied either the opportunity to apply for jobs or that their applications were denied because of their homosexual designation.
Plaintiff Hansard testified that “no homosexuals are allowed to get a job as a runner or anything else. I filled out a call card for a job in the barbering position, and I don’t know if he is the corporal or the sergeant, but his name is West, and he wrote me back, “No way, Miss Hansard.” (Emphasis added). Contrary to showing that Hansard was denied all access to work assignments, this testimony shows that he was able to apply for a job as any other inmate. Hansard asserts that he was denied the job solely because he is a homosexual.
Joseph A. Walters, the classification sergeant on duty at the time of Hansard’s incarceration and the person who made the decision not to give him work, testified that the reason Hansard wasn’t given the job was because he had a history of disciplinary problems.
Q: In regards to Mr. Hansard ... do you remember whether or not he made any request for work assignments?
A: Yes he did.
Q: And can you tell what your determination was with respect to Mr. Han-sard on his work assignment request?
A: Well, it looks like the date here is October 24th, ’88, no trustee status due to disciplinary problem.
Q: So
A: Looks like prior to that he had several rules, facility rules, violations.
Q: What, what does slate card indicate those rules violations were?
A: Well, it looks like he had a threat to security.
A: Looks like August the 15th is when he was threat to security. Looks like on September the 19th he was • for horse playing, looks like October the 3rd he was charged with disobeying staff, smoking in prohibited area. And on October the 7th it looks like there was a hoarding medication. He probably submitted for the job and October 24 he was denied due to a disciplinary problem.
(emphasis added). Hansard does not deny the accuracy of his disciplinary record. An inmate’s disciplinary problems at the jail are a valid justification for denying him worker status under Regulation 827 § 11.5. Although West’s statement, if made, is inexcusable, he was not the person who made the work decision.
Jackie Lee Wilson is the only other homosexual inmate assigned to 6WL1 specifically identified as discriminated against. He testified that he applied for a job in the kitchen as a cook.
Q: Okay. How long did it take before you received the answer back that you couldn’t get the job?
A: It was, it was long after ... they had hired the guy. The guy had already been hired. They had already hired the guy after I had put in for it. Soon as I heard about it I put in for it and after they had hired a guy, then that’s when they came up and told me well the job had been filled already and we don’t allow homosexuals working in the kitchen.
Q: Do you happen to know who did get that job?
A: It was one of the straight guys from another range — from one of the regular ranges. You know what I’m saying? They would never give SWAL no jobs.
Q: When you say SWAL
A: The homosexual tank.
It is unclear from this testimony when Wilson applied for the job. If he applied after the job had been filled, this testimony is inapposite. If, on the other hand, Wilson applied for the job before it was filled, this raises the question of why he was denied it. The testimony reveals that an unidentified jail official told Wilson that homosexuals were ineligible to work in the kitchen. Prisons are often an unpleasant place to live and known homosexuals are frequently subject to derogatory and inappropriate comments from other prisoners and jail officials. However, this statement is not attributable to either Sergeant Walters, the classification sergeant, or the defendants. A statement by one jail official does not make an official policy. Indeed, Sergeant Walters testified that Wilson never applied for a job. The plaintiffs have failed to present more than colorable evidence that Wilson was denied the job because he was a homosexual.
Don Thomas is a floor sergeant who previously has participated in the prisoner intake procedure, but who has no personal knowledge of the classification procedure involved in assigning inmates to worker status. Thomas testified, to the best of his knowledge, that all inmates, including homosexuals, who want a job must fill out a call card so indicating. He thought that unlike those in the general population, the segregated inmate in 6WL1 must additionally apply for a “reclassification hearing” to become eligible to live in the worker dormitories. According to Thomas, a homosexual inmate must convince the hearing board that he is “no longer homosexual” before having his status changed.
The testimony of defendant Barrett, who had direct knowledge of the procedures used, disputes the requirement of a “reclassification hearing.” Barrett testified that 6WL1 inmates need only fill out a call card requesting work and sign a statement indicating that the move out of segregation and into worker housing was the inmate’s own decision. Other than the requirement of this signed statement, characterized as a “waiver,” homosexual inmates are considered for work in the same manner as non-homosexuals. The plaintiffs claim that this policy was initiated after this suit. It appears that in most of the examples the defendants identified, homosexual prisoners who had obtained work did so after this action was filed, but there were at least a couple who had worked earlier. There were no records of earlier periods available. However, Barrett testified that this has been the procedure since 1986, the year he began working at the jail. Walters, the person in charge of worker assignment at the time- in issue, corroborated this testimony in his deposition.
Thomas’ testimony provides no more than a scintilla of evidence that a reclassification procedure was required. He lacked personal knowledge. His testimony indicates that he wasn’t certain about the work assignment procedure. He knew that because identified homosexuals live in special housing, there is a procedure required of them that is not required of the general population before they are granted “trusty” status. This “special procedure” is explained by the “waiver” homosexual inmates are required to sign before leaving 6WL1 that Barrett and Walters testified about.
The problem the plaintiffs have failed to surmount is one of proof. The plaintiffs did not make a showing sufficient to survive defendants’ motion for summary judgment. They argue that the defendants’ policy against homosexuals is unconstitutional without first establishing the existence of such a policy. We therefore do not reach the question of whether a policy which denies homosexual inmates certain rights and privileges, which their heterosexual counterparts enjoy, violates the Equal Protection Clause. There is no evidence that either of the individual defendants personally discriminated in any way.
III.
Accordingly, the District Court’s grant of the defendants’ motion for summary judgment on the plaintiffs’ due process and equal protection claims is AFFIRMED.
. The sentence reductions involved here are separate and distinct from the right to earn time off a sentence for good behavior provided in Ohio Rev.Code § 2967.19 et seq.
. Walters also testified that Wilson would probably not have been eligible if he had applied. Wilson was wanted by Summit County after he served his sentence at the Franklin County Jail. Inmates who have a warrant or detainer on them are considered security risks and can be denied work assignments on that basis.
. Two homosexual inmates, David Thompson and “Sweet Pea,” qualified for job assignments and were transferred to the worker dormitories while plaintiff Hansard was in jail.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_district
|
G
|
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".
LEE FOO v. NAGLE, Commissioner of Immigration.
No. 6614.
Circuit Court of Appeals, Ninth Circuit.
May 16, 1932.
Joseph P. Fallon, of San Francisco, Cal., for appellant.
Geo. J. Hatfield, U. S. Atty., and L. E. Kilkenny, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.
Before WILBUR and SAWTELLE, Circuit Judges.
WILBUR, Circuit Judge.
This appeal is taken from an order of the District Court denying petition for writ of habeas corpus. Appellant, Lee Foo, claims to be the son of Lee Wot, a native-born citizen of the United States. Upon application for admission into the United States, Lee Foo, his alleged father, Lee Wot, also known as Lee Shew Nom, and his alleged cousin, Lee Wah, were examined in detail as to family life- and the home in Ping On village, China. The testimony of the three witnesses agreed in the main as to many intimate details of the home, family life, relationships, ancestral graves, etc. However, during the course of' the examination certain discrepancies between the testimony of the 'witnesses were-developed, and on the basis of these discrepancies the immigration authorities rejected the testimony as to the relationship between the alleged father and son, and held that the applicant had not sustained the burden of proof upon him to show that he is a citizen of the United States, and for that reason directed that he be returned to China. While he was detained for that purpose, he instituted these proceedings.
Some of the alleged discrepancies in regard to the ancestral graves, tombstones, etc., are not of sufficient consequence to justify setting forth in an opinion. On the other hand, the alleged father testified that his oldest son was married, that he lived in the family home in the Ping On village, and that his marriage name was Lee Ngoot L-oy, and his other name was Lee Fong Nai. The appellant testified that his oldest brother had no marriage name, and that he knew this to be so because he lived in the home with him. A similar situation arose with reference to the marriage name of the nephew of the alleged father, living in the adjoining house in the Ping On village. The alleged father testified that his brother’s oldest son was named Lee Wee, that he was married and his marriage name was Lee Em Loy. Appellant, on the other hand, testified that this cousin had no marriage name, and, although his attention was directed to the fact that his alleged father had testified that Lee Wee had a marriage name, the applicant testified to the contrary.
There was also a discrepancy as to the name of the wife of Lee Wee. The other members of the family testified that her name was Dea Shee, while the applicant testified that her name was Jin Shee.
The alleged father testified that, when he-was in China from November, 1927, to June,. 1930, he intended bringing the applicant to the United States with him; that the applicant was willing to come with him, and would have come with him if he could have secured passage, that he told the applicant of his plan to bring him to the United States, and, when he found that he could not get passage for him, told him that he would send for him later; that the applicant quit school in 192-9 in order to prepare to come to the United States. The applicant, however, testified that the subject of his coming to the United States was not discussed between them; that his father never expressed any desire or intention of having him come to the United States with him when he last returned, and that he did not quit school on account of the proposed trip to the United States, nor did such trip have any effect upon him in that regard; that he quit school because he did not want to attend any more and that was the only reason.
The alleged father testified to an outside window in each bedroom in the house in China closed by a shutter and iron grating. The appellant, who lived in the house from the time of his birth until he left to come to the United States, testified that there were no windows in the outer walls of the house.
In view of these discrepancies, and notwithstanding the many agreements in the evidence as to the many details upon which the witnesses were questioned by the immigration authorities, we cannot say that the rejection of the testimony was so arbitrary as to have deprived the appellant of a fair hearing.
Order affirmed.
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_appel1_5_2
|
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 "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.
Alan F. McDONELL, M. Lee Curran; and Sally Phipps, Individually and on behalf of all others similarly situated, Appellees, v. Susan HUNTER; Jean Sebek; Russell Behrends and Harold Farrier, Appellants.
No. 85-1919.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 12, 1986.
Decided Jan. 12, 1987.
Rehearing and Rehearing En Banc Denied Feb. 24, 1987.
Mark Hunacek, Asst. Atty. Gen., Des Moines, Iowa, for appellants.
Mark W. Bennett, Des Moines, Iowa, for appellees.
Before LAY, Chief Judge, and ROSS and WOLLMAN, Circuit Judges.
ROSS, Circuit Judge.
This is a class action challenging the constitutionality of an Iowa Department of Corrections policy under 42 U.S.C. § 1983. This policy subjects the correctional institution employees to searches of their vehicles and of their persons, including urine, blood, or breath testing, upon the request of Department officials. The named plaintiffs are Alan McDonell, Lee Curran, and Sally Phipps. The certified class consists of all individuals employed by the Iowa Department of Corrections at its various institutions who are covered by the Department’s search policy.
The district court enjoined Department of Corrections officials and their agents from enforcing this search policy except in certain limited circumstances, unless the search is based upon a reasonable suspicion. We affirm the district court’s order as herein modified.
I. Facts
Plaintiff McDonell was employed as a correctional officer first at the Men’s Reformatory at Anamosa (Anamosa) and later at another correctional institution. Plaintiffs Curran and Phipps, at all times material to this action, were employed at the Iowa Correctional Institution for Women at Mitchellville (Mitchellville).
Defendant Hunter is the Superintendent and chief executive officer of Mitchellville. Defendant Sebek is the Security Director of Mitchellville, and is responsible for the implementation and enforcement of the Department’s policy. Defendant Behrends is the Acting Deputy Warden of Anamosa, and is responsible for the implementation of the Department’s policy. Defendant Farrier is Director and chief administrative officer of the Iowa Department of Corrections, and is responsible for the supervision and operations of Anamosa, Mitchellville, and other correctional institutions.
When McDonell was employed at Anamosa in 1979, he signed a consent to search form. In January 1984 the supervisory personnel at Anamosa requested McDonell to undergo urinalysis because he had been seen with individuals who were being investigated for possible drug-related activities. McDonell refused and as a result his employment was terminated. Shortly thereafter he was reinstated with loss of ten days’ pay and was transferred to another institution.
In August of 1983, employees at Mitchellville were presented a search consent form to sign. Plaintiffs Curran and Phipps refused to sign. While there was disputed evidence that these employees were told that if they did not sign, they would not receive their paychecks, they did in fact receive paychecks and they have not been discharged or disciplined for refusing to sign.
Plaintiffs sought declaratory and injunctive relief on behalf of themselves and the class they represented, claiming the policy violates the fourth amendment to the United States Constitution and plaintiffs’ constitutional right to privacy.
A preliminary injunction was issued in February 1984. On appeal it was affirmed. McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir.1984). In July 1985, the district court issued its final order 612 F.Supp. 1122. The district court held that searches of correctional employees, including urinalyses, and of their vehicles may be made only on the basis of reasonable suspicion, with certain specified exceptions. The district court found that the policy challenged here was designed to serve security requirements at the state’s correctional facilities, but that the employees had legitimate, although diminished, expectations of privacy while in the correctional institution. The court balanced the state’s interest in security against the infringement upon the individual employee’s right to privacy and determined that reasonable suspicion, rather than probable cause, was the appropriate standard for conducting strip searches and urinalyses of employees. The district court order allows vehicle searches within the confines of the institution to be conducted uniformly or by systematic random selection. Searches of employees’ vehicles within the institution’s confines, other than uniformly or by systematic random selection were permitted only on the basis of a reasonable suspicion.
II. Searches
The fourth amendment to the United States Constitution provides that:
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The basic purpose of the fourth amendment, which is enforceable against the states through the fourteenth amendment, New Jersey v. T.L.O., 469 U.S. 325, 334, 105 S.Ct. 733, 739-40, 83 L.Ed.2d 720 (1985), is “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials,” Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 91967). The fourth amendment imposes a “standard of ‘reasonableness’ upon the exercise of discretion by government officials.” Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). “The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). See also Illinois v. Lafayette, 462 U.S. 640, 644, 103 S.Ct. 2605, 2608, 77 L.Ed.2d 65 (1983); Delaware v. Prouse, supra, 440 U.S. at 654, 99 S.Ct. at 1396.
A. Strip Body Searches
Defendants argue that to maintain security and intercept contraband it is necessary that they be allowed to request strip searches of corrections officers based on mere suspicion. Defendants also argue that plaintiffs have no reasonable expectations of privacy within the institutions in light of their signing consent forms.
Correctional institutions are unique places “fraught with serious security dangers.” Bell v. Wolfish, supra, 441 U.S. at 559, 99 S.Ct. at 1884. Within the walls of the correctional institution, “a central objective of prison administrators is to safeguard institutional security.” Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982). To achieve this goal prison administrators have the responsibility “to intercept and exclude by all reasonable means all contraband smuggled into the facility.” Id.
In analyzing the intrusion on the individual’s fourth amendment interests, there must be a legitimate expectation of privacy. To determine if an individual’s expectation of privacy is legitimate, there must be both an actual subjective expectation and, even more importantly, Hudson v. Palmer, 468 U.S. 517, 525 n. 7, 104 S.Ct. 3194, 3199-3200 n. 7, 82 L.Ed.2d 393 (1984), that expectation must be one which society will accept as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).
While correction officers retain certain expectations of privacy, it is clear that, based upon their place of employment, their subjective expectations of privacy are diminished while they are within the confines of the prison. Security & Law Enforcement Employees, District Council 82 v. Carey, 737 F.2d 187, 202 (2d Cir.1984). We believe that society is prepared to accept this expectation of privacy as reasonable although diminished “in light of the difficult burdens of maintaining safety, order and security that our society imposes on those who staff our prisons.” Id.
The Supreme Court has held that warrantless searches “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz, supra, 389 U.S. at 357, 88 S.Ct. at 514. Exceptions have been made “where a legitimate governmental purpose makes the intrusion into privacy reasonable.” Carey, supra, 737 F.2d at 203.
In light of the legitimate governmental interest in maintaining security at correctional institutions, it is our view, as it is that of the Second Circuit, that a reasonable suspicion standard should be adopted for strip searches of correction officers while working in correctional facilities. Id. at 204. As this court stated in Hunter v. Auger, supra, “[w]e believe that this standard is flexible enough to afford the full measure of fourth amendment protection without posing an insuperable barrier to the exercise of all search and seizure powers.” Hunter v. Auger, supra, 672 F.2d at 674.
A reasonable suspicion standard has been upheld as the appropriate standard for conducting body searches of (1) prison visitors: Thome v. Jones, 765 F.2d 1270, 1277 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986); Hunter v. Auger, supra, 672 F.2d at 674; (2) persons at the country’s borders: United States v. Ogberaha, 771 F.2d 655, 658 (2d Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 887, 88 L.Ed.2d 922 (1986); United States v. Asbury, 586 F.2d 973, 975-76 (2d Cir.1978); United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir.1978); (3) arrestees: Jones v. Edwards, 770 F.2d 739, 741 (8th Cir.1985) (strip search conducted following arrest for animal leash law violation); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985) (strip search of one arrested for minor traffic offenses); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983) (strip search of women arrested for misdemeanor offenses, done while women were awaiting arrival of bail money); and (4) prison guards: Security & Law Enforcement Employees, District Council 82 v. Carey, supra, 737 F.2d at 203-04; accord Armstrong v. New York State Commissioner of Corrections, 545 F.Supp. 728, 731 (N.D.N.Y.1982) (requiring “articulable facts” supporting belief that employee was concealing contraband on his person; cf. Gettleman v. Werner, 377 F.Supp. 445, 452 (W.D.Pa.1974) (reasonable suspicion found, but a federal court should “be reluctant to intervene” in prison administration matters).
The reasonable suspicion standard requires officials to base strip searches on specific objective facts and rational inferences they are entitled to, draw from those facts in light of their experience. It requires individualized suspicion specifically directed to the person who is targeted for the strip search. Hunter v. Auger, supra, 672 F.2d at 674-75. Without reasonable, articulable grounds to suspect an individual employee of secreting contraband on his person, a strip search of that employee is unreasonable under the fourth amendment. We thus affirm the district court's order regarding strip searches of correctional facility employees.
B. Urinalysis
Urinalysis has been determined to be a search and seizure within the meaning of the fourth amendment. Capua v. City of Plainfield, 643 F.Supp. 1507, 1513 (D.N.J.1986); Jones v. McKenzie, 628 F.Supp. 1500, 1508-09 (D.D.C.1986); Allen v. City of Marietta, 601 F.Supp. 482, 488-89 (N.D.Ga.1985); Storms v. Coughlin, 600 F.Supp. 1214, 1217 (S.D.N.Y.1984); In re Patchogue-Medford Congress of Teachers v. Board of Education, 119 A.D.2d 35, 505 N.Y.S.2d 888, 889 (1986); City of Palm Bay v. Bauman, 475 So.2d 1322, 1325-27 (Fla.Dist.Ct.App.1985); cf. Everett v. Napper, 632 F.Supp. 1481, 1484 (N.D.Ga.1986) (no search occurred and there was no fourth amendment violation where employee refused to take urinalysis test). In addition, the Third Circuit has implicitly held that the fourth amendment applies to urinalysis. Shoemaker v. Handel, 795 F.2d 1136, 1142 (3d Cir.1986).
In Allen v. City of Marietta, supra, and Capua, supra, the courts compared urine testing to the involuntary taking of a blood sample. “Though urine, unlike blood, is routinely discharged from the body so that no actual [physical] intrusion is required for its collection,” both can be “analyzed in a medical laboratory to discover numerous physiological facts about the person from whom it came.” Capua, supra, 643 F.Supp. at 1513. The Supreme Court has held that the involuntary administration of a blood test “plainly involves” the fourth amendment, which provides that “ ‘the right of the people to be secure in their persons * * * shall not be violated.’ ” (Emphasis added). Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966) (quoting the fourth amendment in part). We agree with those courts which have held that urinalysis is a search and seizure within the meaning of the fourth amendment.
Having determined that urinalysis is a search and seizure, we look to a balancing of “the need to search against the invasion which the search entails.” Camara, supra, 387 U.S. at 537, 87 S.Ct. at 1735. Iowa Department of Corrections officials assert a strong need to see that prison guards are not working while under the influence of drugs or alcohol. Officials argue that prison security demands that those who have contact with inmates must be alert at all times. They also urge that the use of drugs by a correction officer is some positive indication that such officer may bring drugs into the prison for the use of the inmate.
Urinalysis properly administered is not as intrusive as a strip search or a blood test. While the prison officials have the same legitimate interest in maintaining prison security discussed supra, the infringement upon the privacy interest of correctional institution employees, already diminished, is lessened. Officials have a legitimate interest in assuring that the activities of those employees who come into daily contact with inmates are not inhibited by drugs or alcohol and are fully capable of performing their duties.
In Shoemaker v. Handel, supra, the Third Circuit upheld random selection by lot for urine testing of jockeys as well as daily breathalyzer testing. The court said the state had a “strong interest in assuring the public of the integrity of the persons engaged in the horse racing industry.” Shoemaker v. Handel, supra, 795 F.2d at 1142. In approving this administrative search exception to the warrant requirement, the court looked first to a strong state interest in conducting an unannounced search and second, to a reduction in the justifiable privacy expectation of the subject of the search. Id. We believe the state’s interest in safeguarding the security of its correctional institutions is at least as strong as its interest in safeguarding the integrity of, and the public confidence in, the horse racing industry. On December 1, 1986, the Supreme Court denied certiorari in this case, — U.S.-, 107 S.Ct. 577, 93 L.Ed.2d 580.
Warrantless searches of government employees have been found reasonable where the searches were directly relevant to the employee’s performance of his duties and the government’s performance of its duties. See United States v. Blok, 188 F.2d 1019, 1021 (D.C.Cir.1951); Allen v. City of Marietta, supra, 601 F.Supp. at 489-90, and cases cited therein. We agree with the Allen court that urinalyses are not unreasonable when conducted for the purpose of determining whether corrections employees are using or abusing drugs which would affect their ability to safely perform their work within the prison, “a unique place fraught with serious security dangers.” Bell v. Wolfish, supra,- 441 U.S. at 559, 99 S.Ct. at 1884. In our opinion the use of drugs by employees who come into contact with the inmates in medium or maximum security facilities on a regular day-to-day basis poses a real threat to the security of the prison. The only way this can be controlled in a satisfactory manner is to permit limited uniform and random testing. The least intrusive method of doing so is through use of urinalyses. In our opinion it is also logical to assume that employees who use the drugs, and who come into regular contact with the prisoners, are more likely to supply drugs to the inmates, although the trial court did not agree with this observation.
Because the institutional interest in prison security is a central one, because urinalyses are not nearly so intrusive as body searches, Shoemaker v. Handel, 608 F.Supp. 1151, 1158 (D.C.N.J.1985), aff'd, 795 F.2d 1136 (3d Cir.1986), and because this limited intrusion into the guards’ expectation of privacy is, we believe, one which society will accept as reasonable, we modify the district court’s order and hold that urinalyses may be performed uniformly or by systematic random selection of those employees who have regular contact with the prisoners on a day-to-day basis in medium or maximum security prisons. Selection must not be arbitrary or discriminatory.
Urinalysis testing within the institution’s confines, other than uniformly or by systematic random selection of those employees so designated, may be made only on the basis of a reasonable suspicion, based on specific objective facts and reasonable inferences drawn from those facts in light of experience that the employee is then under the influence of drugs or alcohol or that the employee has used a controlled substance within the twenty-four hour period prior to the required test. The demand for a urine, blood, or breath specimen should be made only on the express authority of the highest officer present in the institution, and the specific, objective facts should be disclosed to the employee at the time the demand is made. Strict guidelines should be established and followed to assure confidentiality of the results of urinalysis testing. Whether the testing is on the limited random basis approved above or on the basis of reasonable suspicion, the equipment and procedure to be used must provide sufficient guarantees of trustworthiness to permit the authorities to accurately determine the presence or absence of both drugs and alcohol in the urine. The equipment and procedure to be used shall conform to those described and approved by this court in Spence v. Farrier, 807 F.2d 753 (8th Cir.1986).
The trial court limited the right to test on reasonable suspicion to those employees who are “then under the influence of alcoholic beverages or controlled substances.” We do not agree with this limitation and hold that urinalyses testing should also be permitted where there is a reasonable suspicion (as defined herein) that controlled substances have been used within the twenty-four hour period prior to the required test.
There was evidence that employees may have been asked to strip before giving a urine specimen, and there was some evidence submitted as to the reason for this requirement but it was not conclusive. We hold that the search policy should not require an employee to strip in connection with giving a urine or blood specimen. Other less intrusive measures can be taken to insure the validity of the specimen. We affirm the district court’s order as to urine, blood, or breath specimens with the modifications set forth above.
C. Vehicle Searches
The motor vehicle parking lot for employees at Mitchellville is within the area where inmates are confined. The parking lots at other correctional facilities are on property outside the area within which inmates are confined. Defendants argue that they have a significant interest in assuring that inmates do not have access to contraband hidden in vehicles.
The search of a vehicle is much less intrusive than a search of one’s person. Almeida-Sanchez v. United States, 413 U.S. 266, 279, 93 S.Ct. 2535, 2542-43, 37 L.Ed.2d 596 (1973) (Powell, J., concurring). Cases involving vehicle searches have recognized that an individual’s expectation of privacy in his vehicle is less than in other property. United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977); United States v. Michael, 645 F.2d 252, 257 (5th Cir.) (en banc), cert. denied, 454 U.S. 950, 102 S.Ct. 489, 70 L.Ed.2d 257 (1981). Likewise, any expecta tion of privacy as to packages or containers within a vehicle is diminished. See United States v. Ross, 456 U.S. 798, 820 n. 26, 102 S.Ct. 2157, 2170, 72 L.Ed.2d 572 (1982). By the same balancing of individual rights against the interests of the correctional institution in maintaining security, we find that it is not unreasonable to search vehicles that are parked within the institution’s confines where they are accessible to inmates. Such searches may be conducted without cause but must be done uniformly or by systematic random selection of employees whose vehicles are to be searched. It also is not unreasonable to search on a random basis, as described supra, employees’ vehicles parked outside the institution’s confines if it can be shown that inmates have unsupervised access to those vehicles. Any other vehicle search may be made only on the basis of a reasonable suspicion, based on specific objective facts and reasonable inferences drawn from those facts in light of experience, that the vehicle to be searched contains contraband. We believe this is reasonable in light of Hudson v. Palmer, supra, in which the Supreme Court granted prison officials “unfettered access” to prisoners’ cells as places where inmates can conceal contraband. Hudson v. Palmer, supra, 468 U.S. at 527, 104 S.Ct. at 3200. We affirm the district court’s order as to vehicle searches with the above modifications.
III. Consent Forms
Defendants argue that employees who signed consent forms have no legitimate expectation of privacy on correctional institution property.
If a search is unreasonable, a government employer cannot require that its employees consent to that search as a condition of employment. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968); Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 593-94, 46 S.Ct. 605, 607, 70 L.Ed. 1101 (1926). Armstrong v. New York State Commissioner of Corrections, supra, 545 F.Supp. at 731. A legal search conducted pursuant to voluntary consent is not unreasonable and does not violate the fourth amendment. Consent must be given voluntarily and without coercion determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973); United States v. Oyekan, 786 F.2d 832, 838 (8th Cir.1986). The district court here specifically made no finding as to the voluntariness of the signing of the consent forms. The district court did hold that “[ajdvance consent to future unreasonable searches is not a reasonable condition of employment.” McDonell v. Hunter, 612 F.Supp. 1122, 1131 (S.D.Ia.1985). We agree. The state may only use a consent form which delineates the rights of the employees consistent with the views of this opinion and which does not require the waiver of any of those rights.
For the above reasons, the district court’s order is affirmed as modified.
. The Honorable Harold D. Vietor, United States District Judge for the Southern District of Iowa.
. The policy in effect at the time of the district court's order is attached as Appendix A. The revised policy is attached as Appendix B.
. A copy of this form is attached to this opinion as Appendix C.
. A copy of this form is attached to this opinion as Appendix D.
. The district court found that there were approximately 1750 correctional institution employees of the Department who are within the certified class.
. The district court noted that, although the Department's policy as written did not expressly mention submission of blood, urine and breath samples, there was no dispute that the policy was considered to include submission of such samples. The revised version of the Department's policy does mention urinalysis and blood tests.
. The text of the district court’s order entered July 9, 1985, is included as Appendix E to this opinion.
. In describing constitutionally protected privacy interests, the Supreme Court uses the words "reasonable" and "legitimate" interchangeably. California v. Ciraolo, — U.S. -, -, 106 S.Ct. 1809, 1816 n. 4, 90 L.Ed.2d 210 (1986).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
|
songer_const1
|
0
|
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 ex rel., Glenn SLEIGHTER, Appellant, v. William J. BANMILLER, Supt., Eastern State Penitentiary, Philadelphia, Pennsylvania.
No. 12275.
United States Court of Appeals Third Circuit.
Submitted Dec. 6, 1957.
Decided Dec. 17, 1957.
Glenn Sleighter, pro se.
George C. Eppinger, Chambersburg, Pa., for appellee.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
PER CURIAM.
In the absence of an opinion by the district court, it is impossible for us to determine the basis of that court's decision in its denial of appellant’s petition for a writ of habeas corpus and to properly consider and pass upon the merits of
this appeal. Cf. United States ex rel. De-Vita v. McCorkle, 3 Cir., 1954, 216 F.2d 743.
The order of the district court will be vacated and the cause remanded for further proceedings in accordance with this opinion.
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_district
|
G
|
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".
POLLOCK-STOCKTON SHIPBUILDING CO. et al. v. BROWN et al.
No. 10114.
United States Court of Appeals Seventh Circuit.
Heard Oct. 19, 1950.
Decided Nov. 8, 1950.
Otto Kerner, Jr., U. S. Atty., Melvin L. Klafter, Asst. U. S. Atty., John Peter Lulinski, Chicago, 111. (Ward E. Boote, Chief Counsel Bureau of Employees’ Compensation, Herbert P. Miller, Assistant Chief Counsel, Washington, D. C., of counsel), for appellants.
William I. Caldwell, Oswell G. Treadway, Chicago, 111. (Hinshaw & Culbertson, Chicago, 111., of counsel), for appellees.
Before MAJOR, Chief Judge, and FINNEGAN and LINDLEY, Circuit Judges.
MAJOR, Chief Judge.
On December 23, 1946, one Melvin L. Brehm (sometimes referred to as the employee or the deceased) fell from the top of a drydock while employed by the libelant, Pollock-Stockton Shipbuilding Company (sometimes referred to as the employer), suffered a fracture of the skull and other injuries which caused his immediate death. His mother, Mrs. John (Emma) Brehm (sometimes referred to as claimant), filed claim for compensation under the terms of the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424, 33 U.S. C.A. § 901 et seq. The employer and its insurer, Industrial Indemnity Exchange, controverted the claim for compensation and a hearing was held before Leonard C. Brown, a Deputy Commissioner, on June 22, 1948. On July 13, 1948, the Deputy Commissioner filed a Compensation Order awarding a death benefit to the claimant. The Deputy Commissioner as a basis for the order among other things stated: “That the employee was unmarried but left surviving him, his mother, Mrs. Emma Brehm, toward whose maintenance he had contributed in the neighborhood of $300.00 during the year preceding his death, and who was dependent upon him to that extent for the necessities and comforts of life.”
The employer and its insurer filed a petition for judicial review of the Compensation Order, pursuant to Sec. 21 (b) of the Longshoremen’s Act, 33 U.S.C.A. § 921 (b), alleging in substance that said order was not in accordance with law because the finding of dependency was not supported by evidence. Attached to the .petition for review and made a part thereof was the Compensation Order complained of and a copy of the record made at the ’hearing before the Deputy Commissioner.
The District Court at a hearing reviewed the record made before the Deputy Commissioner and among other things found: “That Mrs. John (Emma) Brehm, mother of said Melvin L. Brehm, Deceased, was not dependent in whole or in part upon the earnings of said Deceased at the time of his death and that the finding of fact of said Deputy Commissioner, Leonard C. Brown, regarding ,such dependency is not supported by any evidence of the record made before said Deputy Commissioner.” Thereupon the court, by its order of November 15, 1949, set aside the Compensation Order and permanently enjoined its enforcement. It is from such order that the appeal comes to this court.
Thus the crucial issue is whether the finding of dependency made by the Deputy Commissioner is supported by substantial evidence, as urged by respondents, or whether such finding is without such support, as urged by libelants and as found by the District Court.
We observe in the beginning that we think it unnecessary to analyze or discuss numerous cases called to our attention insofar as they relate to the function of a court in a proceeding of the instant character. As stated by this court in Eschbach v. Contractors, Pacific Naval Air Bases, 7 Cir., 181 F.2d 860, 865, “And its function [the District Court] was to examine that evidence [that taken before the Deputy Commissioner] to see if the inferences and findings of the Deputy Commissioner were supported by substantial evidence.” And no citation of authority is required in support of the principle that upon judicial review a Compensation Order is conclusive if substantially supported and that the court in determining if the order is thus supported is not permitted to weigh or evaluate conflicting evidence.
The Act itself does not define the word “dependent.” A reading of the numerous cases called to our attention, however, demonstrates that the word is given its ordinary meaning and generally used in the same sense and with the same meaning as in various Workmen’s Compensation Acts, and we think it sufficient to cite and quote only from a few of such cases. In Obear-Nester Glass Co. v. Industrial Commission, 398 Ill. 342, 346, 75 N.E.Zd 892, 894, the court stated: “The decisive test in determining dependency, we have frequently announced, is whether the contributions were relied upon by t'he applicant for his means oí living, judging by his position in life, and whether he was, to a sub-. stantial degree, supported by the employee at the time of the latter’s death.” The same court, in Wasson Coal Co. v. Industrial Commission, 312 Ill. 241, 244, 143 N.E. 584, 585, stated that there must he evidence that the deceased was actually making some contribution to the support of the claimants at the time of the injury and, “Expectation, however reasonable, of future contributions, such as appeared in this case, does not come within the terms of the statute, and the award was not justified by the evidence.” And it has 'been held that evidence of contributions in the form of gifts is not sufficient to show dependency. In Betor v. National Biscuit Co., 85 Mont. 481, 280 P. 641, 643, the court stated: “It surely needs no argument to support the proposition that a woman living with her husband who is amply able to support, and who does support, her according to her station in life, is not dependent upon a son who occasionally contributes sums of money for her use.” In Pieters v. Drake-Williams-Mount Co., 142 Neb. 315, 6 N.W.2d 69, 72, the court stated: “It is not money contributed, but money contributed for the partial support of the claimant that must be the basis of any claim of partial dependency. Dependency in fact is not created by contributions made for purposes other than partial support of the alleged dependent.”
The term has been similarly defined by the Federal courts. In London Guarantee & Accident Co. v. Hoage, 64 App.D.C. 105, 75 F.2d 236, 237, the court stated: “The test is rather whether the son’s contribution was necessary and relied on by the father for his support or to enable him to discharge the legal duty of support to those dependent on him.” In Standard Dredging Corporation v. Henderson, 5 Cir., 150 F.2d 78, 81, the court adopts a summary of cited authorities defining the term as follows: “ ‘The Lest of dependency as laid down by the decided cases is reliance by the dependent on the employee’s contributions for the means of living for himself or family, having regard to the dependent’s class and position in life, and actual application of the contributions for that purpose’.”
Thus, in light of the tests to be applied, we turn to the evidence taken before the Deputy Commissioner. We have read it with care and are convinced that the District Court correctly found contrary to the Deputy Commissioner on the issue of dependency. The evidence clearly establishes not only that the claimant did not rely upon the deceased for support but that there was no occasion for her to do so. The deceased had been away from home for eight or nine years. In October, 1943, claimant and her husband purchased a home in Rapid City, South Dakota, for which they paid $3,600.-00. The title to the home was taken in the name of the claimant and her husband. At the time of the purchase of this home, deceased gave his father $400.00 to apply on the purchase price. Whether this was a gift or loan the record does not disclose. Prior to the purchase of this home, claimant and her family had lived on a farm at Box Elder, South Dakota. The farm was owned and operated by the family, and consisted of about 1,600 acres. After moving to Rapid City, the claimant’s husband and two of the sons, one of whom was married, operated the farm and divided the income. At the time the home was purchased the deceased gave 'his parents some money to buy some electrical things, such as a mixer and waffle iron.
The finding of the Deputy Commissioner that the deceased contributed in the neighborhood of $300.00 during the year preceding his death appears to be based upon the testimony of the claimant that the deceased sent her $150.00 to apply on the purchase of a refrigerator which was ordered but was not received or paid for until more than a year and one-half or two years after his death. It also appears that the deceased won $75.00 in gambling, which he sent to the claimant. There is also- testimony by the claimant that the deceased on some occasions sent her $5.00 or $10.00, but neither the total amount nor the times when such monies were received is discernible from her testimony. We think there is no basis for the contention that the $150.00 which the deceased sent to claimant to apply on the purchase of a refrigerator ibut which was not spent for that purpose until long after his death, or the sending of the $75.00 under the circumstances stated, or the occasional sending of $5.00 or $10.00, proves or tends to prove that the claimant looked to or relied upon the deceased for her support, either in whole or in part, and we think it likewise fails to show that the deceased recognized any such obligation on his part. The sending of such money by the deceased represented nothing more than gifts and evidenced an affection rather than the recognition of a duty or obligation to contribute to his mother’s support.
Moreover, the claimant, on January 8, 1947 (about two weeks after decedent’s death) made a statement in her own home and in her own handwriting, referred to as Exhibit 1, in which she stated, among other things, “No member of our family was dependent on Melvin for a living. He did from time to time give me some money because of the rather heavy medical expense I have had in treating arthritis. * * * Melvin did not give me money with any regularity. Three or four times a year he might send me money in amounts ranging from $10 to $100. He was just a good," kind boy and always did nice things for me and worried about me. I used some of the money to pay doctor bills, some to buy electrical apparatus for our house which we moved into two years ago in September 1946, and some to buy clothes. Melvin never stipulated what I should do with the money and all amounts given me I considered gifts to do with as I pleased.” Respondents contend that this apparently frank statement should not be considered for the reason that the sentence concerning dependency is a conclusion and contrary to the evidence heard at the hearing and that a consideration of the statement amounts to a weighing of the testimony. We do not agree. The statement, especially taken as a .whole, is factual and, in addition, it is not in conflict with the evidence taken at the hearing but is corroborative thereof. At the hearing, the following occurred in question and answer form:
“Q. Mrs. Brehm, in your statement marked Exhibit 1, you said it was not necessary for Melvin to contribute to your living expense. A. He didn’t. No.
“Q. The income from the farm is enough for you and your husband to take care of yourselves? A. It has been.”
The husband of the claimant testified that he had always supported his wife, that he still did and that he had provided all the necessities for her.
Other minor circumstances shown at the hearing and relied upon by respondents need not be set forth because they carry no weight in support of the finding made by the Deputy Commissioner. Applying the definition ordinarily and usually given to the term “dependent,” we agree with the District Court that there was no substantial evidence to support the finding of dependency.,
The order appealed from is, therefore, Affirmed.
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
|
50
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
Ronald Dennis FENCL, Petitioner-Appellant, v. Gordon ABRAHAMSON, Respondent-Appellee.
No. 86-1813.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 22, 1986.
Decided March 9, 1988.
Ruth S. Downs, Asst. State Public Defender, Richard J. Phelps, State Public Defender, Madison, Wis., for petitioner-appellant.
Daniel J. O'Brien, Asst. Atty. Gen., Dept, of Justice, Madison, Wis., for respondent-appellee.
Before COFFEY and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
RIPPLE, Circuit Judge.
On June 9, 1978, a jury in a Wisconsin trial court found the petitioner, Ronald Dennis Fencl, guilty of first degree murder. Mr. Fencl was sentenced to life imprisonment. The judgment and order were appealed to the Wisconsin Court of Appeals. That court certified the questions presented to the Wisconsin Supreme Court, and the Supreme Court affirmed the trial court’s judgment. State v. Fencl, 109 Wis. 2d 224, 325 N.W.2d 703 (1982). After exhausting the available state remedies, Mr. Fencl raised three issues in his petition for habeas corpus: 1) that the prosecutor’s references to Mr. Fencl’s expressed desire to remain silent violated his fifth amendment privilege against self-incrimination and his sixth amendment right to counsel, 2) that Mr. Fencl’s pre-trial counsel was ineffective, and 3) that the trial court erred in giving Wisconsin Jury Instruction No. 1100. The district court denied Mr. Fencl’s petition for habeas corpus, 628 F.Supp. 1379. For the reasons set forth in this opinion, we affirm the judgment of the district court.
I
Background
The Wisconsin Supreme Court summarized the facts underlying Mr. Fencl’s conviction as follows:
Debra Sukowaty disappeared on September 24, 1977. On October 1, 1977, the police received a purse containing Sukowaty’s identification and several other items which were found in a plastic bag in a nearby river. Among the items contained in the bag was a parking ticket, traceable to Ronald Fencl’s car. Detective Geigel of the Two Rivers Police Department visited Fencl that same day to inquire about Sukowaty. Fencl stated that he did not know Sukowaty or anything about the items found in the river.
At approximately 4 p.m. on October 2, 1977, Geigel again visited Fencl. At this meeting Fencl told Geigel that he wanted to talk to his attorney and that he would get back to him. Half an hour later Fencl went to the police station. He told Geigel that he had found the items in his car and threw them into the river in order to avoid any trouble with the police. Geigel had to cut their conversation short because he received a call informing him that a body had been found in a nearby gravel pit. Fencl agreed to meet with him later that evening. In the meantime, the body was identified as Su-kowaty. The police then impounded Fencl’s car.
At 7 p.m. that same day, Fencl returned to the police station with his attorney, Steven Alpert. Fencl said nothing. His attorney spoke to Geigel only to ask why Fencl’s car had been impounded. Two Manitowoc Police Department detectives talked to Fencl and gave him his Miranda rights. Fencl was allowed to leave while the investigation continued. On November 4,1977, a criminal warrant was issued charging Fencl with first-degree murder. He was arrested the next day. Alpert represented Fencl until just after the preliminary hearing. At that time new counsel was substituted because it appeared that Alpert might be called as a witness against Fencl.
During the trial the state made several references to Fencl’s pre- and post-Miranda silence. In his opening statement the district attorney referred to the 4 p.m. meeting on October 2, 1977, between Detective Geigel and Fencl. He said that Fencl did not want to answer too many questions and that Fencl wanted to talk to his attorney. Detective Geigel also testified about this statement. Geigel testified three times about his 7 p.m., October 2, 1977, meeting with Fencl and Alpert. Each time Geigel indicated that Fencl said nothing. In his closing argument the district attorney once again referred to the 4 p.m. meeting of October 2, 1977, between Geigel and Fencl when he stated:
“He [Geigel] said as long as you’re not mixed up in the disappearance of Debbie Sukowaty we’re not interested in prosecuting. As long as your [sic] not interested. As long as you’re not involved in Sukowaty’s disappearance, that’s alright [sic]. We’re not interested in prosecuting you. He made that quite clear. At that point Fencl said that he wanted to talk to his lawyer, so Geigel left.”
The jury found Fencl guilty of first-degree murder, and the court sentenced him to life imprisonment. Fencl moved for a new trial on September 4, 1979. During a hearing on this motion, it was revealed that Fencl’s first attorney, Alpert, had engaged in some questionable practices in connection with his representation of Fencl. Nevertheless, the court denied Fencl’s motion for a new trial by order entered October 27, 1980. Fencl’s appeal of the judgment and the order was certified by the court of appeals and accepted by this court pursuant to sec. 809.61, Stats.
Fencl, 325 N.W.2d at 705-06.
II
The District Court Opinion
The district court set forth the facts as found by the Wisconsin Supreme Court and determined that those findings were fairly supported by the record and adequate to rule on the issues presented.
A.
The district court first addressed Mr. Fencl’s submission that the prosecution’s references to his silence during questioning violated his fifth amendment right against self-incrimination, his sixth amendment right to assistance of counsel, and his fourteenth amendment right to due process. These references, which totaled six in number, took place during opening and closing arguments and during the prosecution’s case-in-chief through the testimony of Detective Geigel. The court addressed separately those references to Mr. Fencl’s silence that occurred after Miranda warnings had been given and those references that occurred before those warnings had been given.
The court first turned to post-Miranda events. Relying on Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed. 2d 623 (1986) and Dean v. Young, 777 F.2d 1239 (7th Cir.1985), cert. denied, 475 U.S. 1142, 106 S.Ct. 1794, 90 L.Ed.2d 339 (1986), the district court agreed with the Wisconsin Supreme Court that Detective Geigel’s testimony that Mr. Fencl chose to remain silent after he had been given Miranda warnings violated his due process rights. Fencl v. Abrahamson, 628 F.Supp. 1379, 1384 (E.D.Wis.1986).
The district court next considered whether references to Mr. Fencl’s prearrest, pre-Miranda silence violated his right not to incriminate himself under the fifth amendment. The district court noted that prear-rest silence may be used to impeach the credibility of a defendant who offers an exculpatory story when he testifies at trial. See Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam); Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). The court observed that this case differs from Fletcher and Jenkins because Mr. Fencl chose not to testify at trial. Finding no guidance from the Supreme Court in such a situation, the district court, without an extended analysis, decided that because Mr. Fencl chose not to testify at trial, references to his prearrest, pre-Miranda silence violated his right not to incriminate himself as guaranteed by the fifth amendment. Fencl, 628 F.Supp. at 1384-85.
The district court then considered whether the references to Mr. Fencl’s prearrest silence constituted harmless error. In order to determine whether the references constituted harmless error, the district court considered five factors: 1) the intensity and frequency of the references, 2) which party elected to pursue the line of questioning, 3) the use to which the prosecution put the silence, 4) the trial judge’s opportunity to grant a motion for a mistrial or to give a curative instruction, and 5) the quantum of other evidence indicative of guilt. See Phelps v. Duckworth, 772 F.2d 1410, 1413 (7th Cir.), cert. denied, 474 U.S. 1011, 106 S.Ct. 541, 88 L.Ed.2d 471 (1985). The district court found that the state demonstrated that the references to Mr. Fencl’s silence were brief and isolated and mentioned as part of a narrative of the events preceding Mr. Fencl’s arrest. The references were not used to prove any element of the crime, nor did defense counsel move for a mistrial. The district court found that there was no reasonable possibility that the references contributed to the conviction. Therefore, the district court concluded that the references constituted harmless error. Fencl, 628 F.Supp. at 1385-87.
B.
The district court then addressed the second claim raised by Mr. Fencl — whether ineffective assistance by his pretrial counsel rendered his trial fundamentally unfair in violation of his due process rights. The district court decided that because most of the conduct complained of by Mr. Fencl had occurred prior to the initiation of adversary judicial proceedings, the sixth amendment right to counsel did not attach. The only conduct alleged by Mr. Fencl that violated his sixth amendment right to counsel that occurred after adversary proceedings had been initiated was defense counsel’s alleged plan to write a book about the murder. Mr. Fencl also claimed that defense counsel tried to sell information to the district attorney. The district court found that Mr. Fencl did not show how this alleged conflict undermined the reliability of any proceedings prior to the defense counsel’s withdrawal from the trial nor could the court find any mention of the book or sale of information in the transcript. The court accordingly held that Mr. Fencl had not met his burden of showing ineffective assistance of counsel under the Strickland v. Washington standard. Fencl, 628 F.Supp. at 1388-89.
C.
The district court then analyzed whether the trial court erred in giving the former Wisconsin Jury Instruction No. 1100. Mr. Fencl claimed that the instruction imper-missibly shifted the burden of proof on the element of intent to the defendant. Relying upon this court’s holding in Dean v. Young, 777 F.2d 1239 (7th Cir.1985), cert. denied, 475 U.S. 1142, 106 S.Ct. 1794, 90 L.Ed.2d 339 (1986), the district court held that the jury instruction did not impermissi-bly assign a burden of proof to the accused. Fencl, 628 F.Supp. at 1389-90. The district court, therefore, denied Mr. Fencl’s habeas corpus petition.
Ill
Analysis
A. References to Mr. Fencl’s Silence
1. Prearrest, Post-Miranda Silence
Both the Wisconsin Supreme Court and the district court held that Detective Geigel’s three references to Mr. Fencl’s silence during the 7:00 p.m. meeting, after he had been given Miranda warnings, violated his due process rights. Mr. Fencl renews that argument here. The respondent contends that the references to Mr. Fencl’s silence at trial were “used primarily to establish the historical sequence of events.... The probative value of such evidence in a case where the petitioner did not testify, and where he gave exculpatory stories both before and after the ‘silence ’ is so low as to have virtually no impact on the outcome.” Respondent’s Br. at 28-29. We agree with both the Wisconsin Supreme Court and the district court that Mr. Fencl’s due process rights were violated by the government’s use of his prearrest, post-Miranda silence.
In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court held that the prosecution could not use a defendant’s postarrest silence to impeach an exculpatory story told for the first time at trial. Id. at 611, 96 S.Ct. at 2241. The Court stated that referring to the defendant’s silence after he has been given Miranda warnings violates his due process rights. The rationale for this decision is that:
Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.
Id. at 617-18, 96 S.Ct. at 2244-45 (footnotes and citation omitted).
The Supreme Court recently reaffirmed Doyle's reasoning in Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), in a case where, like the one now before us, the reference to post-Miranda silence was introduced in the government’s case-in-chief. In Wainwright, the Court held that the prosecution’s introduction of the defendant’s silence after receiving Miranda warnings as evidence of his sanity violated the due process clause. Id. at 295, 106 S.Ct. at 641. The Court stated that “Doyle and subsequent cases have... made clear that breaching the implied assurance of the Miranda warnings is an affront to the fundamental fairness that the Due Process Clause requires.” Id. at 291, 106 S.Ct. at 639; see also Dean v. Young, 777 F.2d at 1241; United States v. Shue, 766 F.2d 1122, 1128 (7th Cir.1985); United States v. Caro, 637 F.2d 869, 874-75 (2d Cir.1981).
Even more recently, in Greer v. Miller, — U.S. —, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), the Court clarified that “the holding of Doyle is that the Due Process Clause bars ‘the use for impeachment purposes’ of a defendant’s postarrest silence.” Id., 107 S.Ct. at 3108 (quoting Doyle, 426 U.S. at 619, 96 S.Ct. at 2245) (emphasis in original). Thus, in Greer, where the trial court sustained an objection to the only question involving the defendant’s postar-rest silence, the Court held that no Doyle violation occurred because the defendant’s postarrest silence “was not submitted to the jury as evidence from which it was allowed to draw any permissible inference.” Id. Therefore, we conclude, in accordance with precedent of the Supreme Court and of this court, that the repeated references to the petitioner’s post-M-randa silence during the government’s case-in-chief violated the due process clause.
2. Prearrest, Pre-Miranda Silence
Both the Wisconsin Supreme Court and the district court held that references to Mr. Fencl’s silence before he had been given Miranda warnings violated his fifth amendment right not to incriminate himself. These references involved Mr. Fencl’s two encounters with Detective Geigel on Sunday, October 2. The respondent, relying on United States v. Harrold, 796 F.2d 1275 (10th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 892, 93 L.Ed.2d 844 (1987), argues that “there is no independent fifth amendment protection for silence in a prearrest, pre-Miranda situation if there was no governmental action which induced the silence.” Respondent’s Br. at 14. Further, the respondent contends that the petitioner may have waived any fifth amendment right by offering exculpatory stories to the police prior to and after he stated his desire to consult an attorney. At 4:00 p.m. on October 2, the petitioner did not respond to Detective Geigel’s questions about the victim’s belongings found in his car. However, at 4:30 p.m., Mr. Fencl stated to Detective Geigel that he had found the victim’s belongings in his car and had thrown them in a trash bag into the river. Mr. Fencl further offered an explanation for their appearance in his car —he suggested that he had experienced problems with people opening the vent window of his car and breaking into it. The respondent maintains that “the petitioner waived at 4:30 whatever fifth amendment right to silence he may have invoked at 4:00 p.m. that same day. The state submits that it was the 4:30 statement, and not the ‘silence’ one-half hour earlier, that prejudiced the defense at trial.” Respondent’s Br. at 19.
It is firmly established that neither the fifth amendment nor the fourteenth amendment is violated by the government’s use of prearrest silence to impeach a defendant’s credibility when he testifies at trial. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). When a defendant testifies at trial, the fifth amendment is not violated because “impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.” Id. at 238, 100 S.Ct. at 2129. The right to fundamental fairness guaranteed by the due process clause is not violated in this situation, because unlike the Doyle situation where Miranda warnings have been given, in this situation, “no governmental action induced petitioner to remain silent before arrest.” Id. at 240, 100 S.Ct. at 2130; see also Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982) (per curiam) (“In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand.”).
As noted by the Wisconsin Supreme Court and the district court, this case presents a different question than either Jenkins or Fletcher because the petitioner chose not to testify at trial. The Supreme Court has yet to address the precise question of whether the prosecution’s reference to pre-Miranda silence in its case-in-chief violates the fifth amendment. The Tenth Circuit, in United States v. Harrold, 796 F.2d 1275 (10th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 892, 93 L.Ed.2d 844 (1987), has held that “comment on a defendant’s silence is error only when the defendant remained silent in reliance on government action, i.e., a Miranda warning.” Id. at 1279. The court then held that testimony elicited by the government about the defendant’s pre-Miranda reliance on the fifth amendment was proper. Id. Other courts have declined to decide the question because in those cases, the references to the defendant’s silence were harmless beyond a reasonable doubt. See United States v. Blanton, 730 F.2d 1425, 1433-34 (11th Cir.1984); United States v. Caro, 637 F.2d 869, 876 (2d Cir.1981). In Caro, however, the Second Circuit suggested that references to the defendant’s silence during the government’s direct case are improper. “[W]e are not confident that Jenkins permits even evidence that a suspect remained silent before he was arrested or taken into custody to be used in the Government’s case in chief.... [A]ll of the cases permitting proof of silence, including Jenkins, have involved impeachment or rebuttal of the defendant’s testimony.” Id. at 876. We need not decide this question today, however, because our determination rests on the harmless error doctrine.
3. Harmless Error
The petitioner contends that the prosecution’s references to his prearrest silence did not constitute harmless error. In order to evaluate this claim, we must explore the intensity and frequency of the references at trial, which party pursued this line of questioning, the use to which the prosecution put the silence, the trial judge’s opportunity to grant a motion for a mistrial or to give curative instructions, and the quantum of other evidence indicative of guilt. See Phelps v. Duckworth, 772 F.2d 1410, 1413 (7th Cir.), cert. denied, 474 U.S. 1011, 106 S.Ct. 541, 88 L.Ed.2d 471 (1985); see also United States v. Schmitt, 794 F.2d 555, 559 (10th Cir.1986). This examination requires us to review the references at trial to Mr. Fencl’s silence in some detail.
There were six references to Mr. Fencl’s prearrest silence during the five-day trial. The first reference was made by the prosecutor during the opening argument. In his opening statement, the prosecutor related that Detective Geigel “went to talk to Ron Fencl again over at Mr. Dent’s house. And this time Ron Fencl didn’t want to answer too many questions. He said I want to talk to my lawyer first and then maybe I’ll talk to you.” Tr. (Day 2) at 188.
During the government’s case-in-chief, Detective Geigel referred four times to Mr. Fencl’s silence. The first reference occurred when the prosecutor asked Mr. Geigel how Mr. Fencl responded to his explanation that the police were looking for a missing woman during their initial meeting on October 2. Detective Geigel stated, “he was very friendly. He said I want to talk to my lawyer and I’ll get back to you later.” Tr. (Day 3) at 177. The second reference occurred when Mr. Geigel was testifying about the October 2 evening interview with Mr. Fencl, during which interview Mr. Fencl had been given Miranda warnings.
Q. And did Mr. Fencl — did he come back at that time, at 7?
A. Yes. He came back with his Attorney Steve Alpert.
******
Q. And at that time did Mr. Fencl make any statements to you in regards to the missing girl?
A. No sir.
Tr. (Day 3) at 186-87. Mr. Geigel’s third reference to Mr. Fencl’s silence occurred when he was describing the third meeting with Mr. Fencl.
Q. What about the third meeting?
A. The third meeting he said nothing.
Tr. (Day 3) at 196. Finally, in response to a question by the court, Mr. Geigel made another reference to Mr. Fencl’s silence:
THE COURT: You had another meeting with him?
THE WITNESS: We had prearranged a meeting for 7 p.m., but at this time he came in with his attorney and he didn’t say a word; his attorney did all the talking.
Tr. (Day 3) at 198. During the closing argument, the prosecutor referred once again to Mr. Fencl’s silence:
He said as long as you’re not mixed up in the disappearance of Debbie Sukowaty we’re not interested in prosecuting. As long as your [sic] not interested. As long as you’re not involved in Debbie Sukowaty’s disappearance, that’s alright [sic]. We’re not interested in prosecuting you. He made that quite clear. At that point Fencl said he wanted to talk to his lawyer, so Geigel left.
Tr. (Day 5) at 15.
The petitioner contends that the prosecutor repeatedly used Detective Geigel’s testimony to imply that Mr. Fencl was guilty of murder because he would not answer questions and wanted to talk to his attorney. The petitioner further argues that these references to his silence did not constitute harmless error, especially in view of the fact that the prosecution’s case was supported by weak, circumstantial evidence. The state contends that the references to Mr. Fencl’s silence were not used to prove elements of the crime but were merely used to discredit Mr. Fencl’s exculpatory story. Further, argues the state, the references to the silence were not used to imply guilt, but rather to explain the sequence of events.
“Constitutional error is reversible error unless it is harmless beyond a reasonable doubt.” United States v. Shue, 766 F.2d 1122, 1132 (7th Cir.1985). The government bears the burden of proving that a constitutional error is harmless. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). As the Supreme Court stated in Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986):
The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.
Id. 106 S.Ct. at 3105-06 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 1436-37, 89 L.Ed.2d 674 (1986)) (citations omitted). “[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Van Arsdall, 106 S.Ct. at 1436.
Several factors support Mr. Fencl’s argument that the error was not harmless when evaluated under the Chapman standard. As the district court quite candidly noted, the evidence against Mr. Fencl was not overwhelming. However, as the Supreme Court of Wisconsin determined, “there was sufficient evidence to support Fencl’s conviction.” Fencl, 325 N.W.2d at 712. We also note that the Supreme Court of Wisconsin concluded that the prosecution’s inquiry with respect to the post^-Miranda events “were intended to suggest ‘a tacit admission of guilt on the part of the defendant.’ ” Id. at 710 (quoting Reichhoff v. State, 76 Wis.2d 375, 251 N.W.2d 470, 472 (1977)). However, the court seemed to temper that statement in its discussion of harmless error, when it noted that “[t]he state did not make a concentrated, overt effort to imply Fencl’s guilt through references to his silence.” Id. at 712. It is not unusual, in a case such as this one, for the government’s case to be grounded on circumstantial evidence and to be dependent, at least to some degree, on the demeanor of the witnesses.
More important, our task, in assessing whether the error was harmless beyond a reasonable doubt is not to engage simply in a reweighing of the evidence. Rather, as the court made clear in Phelps v. Duckworth, 772 F.2d 1410 (7th Cir.), cert. denied, 474 U.S. 1011, 106 S.Ct. 541, 88 L.Ed. 2d 471 (1985), we must assess, as precisely as we can, the impact of the objectionable material on the jury’s verdict. The references to Mr. Fencl’s silence were brief. Moreover, when viewed as part of the entire record, these references play a rather minor role in the government’s presentation of its case. These references did not, of course, directly establish any element of the charged offense. The majority of the references were made during the witness’s narration of a sequence of events designed to show that, during the course of the investigation, Mr. Fencl voluntarily told the authorities inconsistent stories. See generally 1 J. Weinstein & M. Berger, Wein-stein’s Evidence ¶ 401[10], at 401-70 to 401-71 (1986) (discussion of the use of false exculpatory statements to show consciousness of guilt). Thus, the prosecutor was primarily emphasizing that Mr. Fencl affirmatively attempted to mislead the investigation — not that he relied on his right to remain silent. While the defense counsel had interposed a continuing objection before trial, which was sufficient under state law to preserve the issue, it is not without some significance, in assessing the import of the testimony, that he did not object further or move for a mistrial. Further, the trial judge instructed the jury both before the opening statements and in the final jury instructions that they were not to consider any statements made by counsel during the trial as evidence. Tr. (Day 2) at 178; Tr. (Day 5) at 49; see United States v. Alvarado, 806 F.2d 566, 575 (5th Cir.1986). Accordingly, we conclude that the govemment has satisfied its burden of showing that the jury would have convicted Mr. Fencl absent the improper references to his silence and thus the errors were harmless beyond a reasonable doubt.
B. Ineffective Assistance of Counsel
The petitioner contends that his pretrial counsel’s activities prejudiced his defense and that his counsel’s conduct raised a reasonable probability that the result of the trial would have been different had his attorney’s performance not been deficient. The petitioner claims that he “might never have been charged except for [his attorney’s] conduct and advice which tended to feed and encourage any suspicions the authorities might have had regarding Mr. Fencl’s possible involvement in Ms. Sukowaty’s death.” Petitioner’s Br. at 23. Further, the petitioner maintains that the contradictory stories he told the police about his knowledge concerning the victim’s belongings resulted from the advice he received from his pre-trial counsel. These contradictory stories were prejudicial to his defense, argues the petitioner, because they were used by the prosecution to imply that he was involved in a “coverup.”
In view of the Supreme Court’s decision in Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 1145, 89 L.Ed.2d 410 (1986), holding that the sixth amendment right to counsel does not attach until the first formal charging proceeding, the petitioner no longer bases his ineffectiveness claim on the sixth amendment. Rather, he contends that his pre-trial attorney’s conduct deprived him of a fair trial in violation of the due process clause. We find this claim to be without merit. Mr. Fencl has not shown that the government acted in a way that was so offensive as to deprive him of the fundamental fairness guaranteed by the due process clause. Indeed, his suggestion as to how his attorney’s purported conduct affected the later proceeding is largely speculative. Therefore, we uphold the district court’s determination that the petitioner’s rights to due process and to the effective assistance of counsel were not violated in this case.
C. Constitutionality of Jury Instruction No. 1100
The petitioner contends that the presumption jury instruction impermissibly shifted the burden to him to disprove “an intent to kill once the State had proved that he had caused the death of the victim or had used a dangerous weapon likely to kill in an assault on the victim which caused his death.” Petitioner’s Br. at 35-36. The instruction given to the jury provided:
When there are no circumstances to prevent or rebut the presumption, the law presumes that a reasonable person intends all of the natural, probable, and usual consequences of his deliberate acts. If one person assaults another violently with a dangerous weapon likely to kill, and the person thus assaulted dies therefrom, then, when there are no circumstances to prevent or rebut the presumption, the legal and natural presumption is that death was intended.
Tr. (Day 5) at 44. This court has upheld the constitutionality of this instruction twice. See Dean v. Young, 777 F.2d at 1243-44; Pigee v. Israel, 670 F.2d 690, 694-95 (7th Cir.), cert. denied, 459 U.S. 846, 103 S.Ct. 103, 74 L.Ed.2d 93 (1982). In Dean, this court upheld the earlier decision in Pigee in light of Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). In Francis, the Supreme Court held that a jury instruction violated the fourteenth amendment’s requirement that the government prove beyond a reasonable doubt every element of a criminal offense because the instruction there in question created a mandatory presumption whereby the jury had to infer intent after the government proved certain predicate acts. Id. at 325, 105 S.Ct. at 1977. In Dean, this court provided four reasons why Instruction No. 1100 is still valid after Francis: 1) “the instruction refers to the consequences of a ‘deliberate’ act, not... a ‘voluntary’ one,” 2) “the instruction refers to the intent of a ‘reasonable’ person, not... ‘any person,’ ” 3) “the presumption is dispelled by any evidence..., and such a bursting-bubble instruction is the equivalent of the permissive inference sustained m Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979),” and 4) “the instruction refers to ‘circumstances’ but does not say who has the burden of making these ‘circumstances’ appear, and it is therefore not necessarily read as throwing a burden on the defendant.” Dean, 777 F.2d at 1244 (emphasis in original). We see no reason at this juncture to overturn the controlling precedent of this circuit. Accordingly, we agree with the district court that no constitutional error was committed by the trial court by giving Jury Instruction No. 1100.
Conclusion
Any error resulting from references to Mr. Fencl’s silence during trial was harmless beyond a reasonable doubt. Further, Mr. Fencl’s rights to the effective assistance of counsel and to a fair trial were not violated by his pretrial counsel’s conduct. In addition, the trial court did not err by giving Jury Instruction No. 1100. Accordingly, we affirm the judgment of the district court denying Mr. Fencl’s petition for a writ of habeas corpus.
Affirmed.
. In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Supreme Court expressly declined to address whether a defendant’s fifth amendment right is violated by references to pre-Miranda silence. The Court stated that “[o]ur decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment.” Id. at 236 n. 2, 100 S.Ct. at 2128 n. 2.
. The district court, relying on Dean v. Young, 777 F.2d 1239 (7th Cir.1985), cert. denied, 475 U.S. 1142, 106 S.Ct. 1794
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_casetyp1_7-3-1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright".
KRAFT v. COMMISSIONER OF INTERNAL REVENUE.
No. 7212.
Circuit Court of Appeals, Third Circuit.
April 16, 1940.
Talbot M. Malcolm, of New York City, for petitioner.
L. W. Post, of Washington, D. G, for respondent.
Before BIGGS, CLARK, and JONES, Circuit Judges.
BIGGS, Circuit Judge.
Katherine Kraft, the petitioner and taxpayer, in 1930 and 1932 by indentures created five separate trusts for named beneficiaries. One of these was Clarance Conk-lin and the indenture creating the trust in his favor is typical. The second paragraph of that indenture provides in part that the taxpayer and grantor “* * * shall have the right by an instrument in writing executed under her hand and seal and personally served on the Trustees * * * at least five days before the expiration of any calendar year, to revoke this trust, in whole or in part, after the end of any such calendar year; the intent hereof being that the trust * * * shall continue from year to year unless the [grantor] revokes the same, in whole or in part, after the end of any such year, but that said power of revocation shall not exist or be in the [grantor] at any time during any calendar year and that same shall arise and come into existence only after the end of any such calendar year, nor shall there be power to revest in the [grantor] any part of the corpus of this trust during any such calendar year, but that the latter power shall arise and come into existence only after the end of any such calendar year * * *
The third paragraph provides that upon the termination of the trust all property and securities constituting the corpus shall belong absolutely to and shall vest immediately in. the grantor. The indenture also provides that if the grantor does' not exercise her powér of revocation the trust shall terminate upon the death of Conklin if he shall predecease the grantor, or upon the death of the grantor if she shall predecease Conklin.
The taxpayer gave no notice of revocation of any of the trusts prior to or during the calendar year 1933.- The trusts were in force during the whole of the calendar year 1934 and the beneficiaries received the income from the trusts during that year. The Commissioner contends that the income from the trusts for the taxable year 1934 was attributable and taxable to the taxpayer by virtue of the provisions of Section 166 of the Revenue Act of 1934, c. 277, 48 Stat. 680, 729, 26 U.S.C.A. Int. Rev.Acts, page 727.
Section 166 of the Revenue Act of 1934 provides:
“Where at any time the power to revest in the grantor title to any part of the corpus of the trust is vested—
“(1) in the grantor, either alone or in conjunction with any person not having a substantial adverse interest in the disposition of such part of the corpus or the income therefrom, or
“(2) in any person not having a substantial adverse interest in the disposition of such part of the corpus or the income therefrom, then the income of such part of the trust shall be included in' computing the net income of the grantor.”
It will be observed that the power to revest the grantor with title to the corpora of the trusts is in her alone; that the power to revest is to be exercised at the time specified in the indentures, namely within the preceding calendar year (except for the last five days thereof); and that therefore the trusts are within the literal provisions of Section 166 of the Revenue Act of 1934. It is also clearly apparent that the income from the trusts for any years subsequent to 1934 would be taxable to the taxpayer, for if she has failed to take the necessary steps in 1934 to revoke the trusts for the year 1935 she must be deemed to have elected not to avail herself of the income. The taxpayer points out, however, that Section 166 of the Revenue Act of 1928, 45 Stat. 840, and Section 166 of the Revenue Act of 1932, 47 Stat. 221, 26 U.S.C.A. Int.Rev.Acts, pages 543, 727, in effect when the trusts respectively were created and continuing until the 1934 Act came into effect, contain the phrase “during the taxable year” placed directly after the phrase “at any time” and that the phrase first referred to was omitted from Section 166 of the Revenue Act of 1934. The taxpayer points out that she has not had the opportunity, with knowledge that the income from the trusts for the year 1934 would be taxable to her, to avail herself of the income from the trusts since to do this she would have had to have exercised her power of revocation prior to December 26, 1933. She contends that since the Revenue Act of 1934 became effective on May 10, 1934, the Commissioner in taxing the income from the trusts to her gives retroactive effect to the provisions of Section 166, depriving her of property without due process of law in violation of the Fifth Amendment. We are of the opinion, however, that the decision of the Supreme Court in Reinecke v. Smith, 289 U.S. 172, 175, 53 S.Ct. 570, 77 L.Ed. 1109, disposes of this contention for reasons which we will now state.
In the Reinecke case as in the case at bar, the taxpayer contended that the exaction was not based upon the taxpayer’s income or income from the taxpayer’s property, but upon income which had accrued to others upon property belonging to others. In the Reinecke case the taxpayer at all times retained the power to repossess the corpora. In the instant case the taxpayer at any time possessed the power to repossess the corpora. In the Reinecke case as in the case at bar, the income sought to be taxed to the grantor had already been received by the cestuis and was not recoverable by the grantor. The measure of control retained by the grantor over the corpora of the trusts is within the literal language of Section 166 and we hold the application of the Section by the Commissioner to have been constitutional. '
The case at bar might be decided upon the authority of Helvering, Commissioner, v. Clifford, 60 S.Ct. 554, 84 L.Ed. -, by holding the income from the trusts to be includable within the “gross income” of the taxpayer within the purview of Section 22(a) of the Revenue Act of 1934, 48 Stat. 686, 26 U.S.C.A. Int.Rev. Acts page 669. Two reasons dissuade us from this course, however. First, a family relationship between the settlor and the cestuis has not been proved though such might be inferred from some of the surnames appearing in the indentures. Second, the assessment of the deficiency by the Commissioner was based entirely upon Section 166 and the Board also bottomed its decision upon that Section. We do likewise. Helvering v. Wood, 60 S.Ct. 551, 84 L.Ed. —.
Accordingly, the decision of the Board of Tax Appeals is affirmed.
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:
|
songer_initiate
|
B
|
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.
UNITED STATES of America, Plaintiff-Appellee, v. Wendell BLOUNT, Defendant-Appellant.
No. 72-2040.
United States Court of Appeals, Sixth Circuit.
Argued April 2, 1973.
Decided June 8, 1973.
John W. Peck, Circuit Judge, filed concurring opinion.
Frederick Taft, Cleveland, Ohio, for defendant-appellant; James D. London (Court Appointed), Public Defender, Cleveland, Ohio, on brief.
Clarence B. Taylor, Asst. U. S. Atty., for plaintiff-appellee; Frederick M. Coleman, U. S. Atty., Charles A. Caruso, Dept, of Justice, Atty., Office for Drug Abuse Law Enforcement, Cleveland, Ohio, on brief.
Before PECK, McCREE and LIVELY, Circuit Judges.
McCREE, Circuit Judge.
We consider an appeal from a judgment following jury convictions on both counts of a two-count indictment charging illegal distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). Appellant was sentenced to three years imprisonment on each count, to be served consecutively. Five issues are presented on appeal.
Two issues attack the sufficiency of the evidence to refute the defense of entrapment. We determine that they are without merit. The record contains ample evidence to support the finding that appellant was not entrapped and it was therefore proper to submit that issue to the jury.
A third contention assigns error to the trial judge’s failure to give a limiting instruction about testimony of criminal acts not charged in the indictment, offered solely to negative appellant’s contention that he had been entrapped. Appellant’s counsel did not request a limiting instruction either at the time the evidence was introduced or before the ease was submitted to the jury. Since the testimony was relevant to an issue in the case, we find no error in the court’s failure to give a limiting instruction sua sponte.
Appellant’s remaining assignments of error have more substance. During the voir dire examination of the prospective jurors, the district court refused appellant’.s request to ask if they could accept the proposition of law that a defendant is presumed to be innocent, has no burden to establish his innocence, and is clothed throughout the trial with this presumption. Appellant contends that this refusal constituted reversible error. We agree.
Federal Rule of Criminal Procedure 24(a) invests wide discretion in trial judges in determining the questions to be asked of veniremen, and the prevailing rule is that the court’s determination about the questions to be put to the jury will not be disturbed without a clear showing of abuse of discretion. 5A Moore’s Federal Practice ¶ 47.06 (2d ed. 1967); United States v. Crawford, 444 F.2d 1404 (10th Cir. 1971); United States v. Owens, 415 F.2d 1308 (6th Cir.), cert. denied, 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 406 (1969).
The primary purpose of the voir dire of jurors is to make possible the empanelling of an impartial jury through questions that permit the intelligent exercise of challenges by counsel. Wright, 2 Federal Practice and Procedure ¶ 382 (1969). It follows, then, that a requested question should be asked if an anticipated response would afford the basis for a challenge for cause. See e. g., United States v. Carter, 440 F.2d 1132 (6th Cir. 1971); Brown v. United States, 119 U.S.App.D.C. 203, 338 F.2d 543 (D.C. Cir. 1964); United States v. Napoleone, 349 F.2d 350 (3d Cir. 1965). Certainly, a challenge for cause would be sustained if a juror expressed his incapacity to accept the proposition that a defendant is presumed to be innocent despite the fact that he has been accused in an indictment or information. It is equally likely that careful counsel would exercise a peremptory challenge if a juror replied that he could accept this proposition of law on an intellectual level but that it troubled him viscerally because folk wisdom teaches that where there is smoke there must be fire. Accordingly, the failure of the trial judge to ask the question upon request was erroneous and since the failure may have resulted in the denial of an impartial jury, the error cannot be dismissed as harmless. See Brown v. United States, supra (Burger, J.). It matters not that the putting of the question might also, as appellee contends, have constituted anticipatory argument to precondition the jury. This is an unavoidable consequence of the voir dire jury examination.
The remaining contention concerns the denial of appellant’s request for a continuance. At arraignment on June 8, 1972, without benefit of counsel, appellant pled not guilty and assured the district court that he intended to retain his own attorney prior to trial. To prevent delays and ensure a speedy trial, the district court appointed the Cleveland Public Defender’s Office to act as defense counsel of record and marked the case for trial on June 19, eleven days later. The Defender’s Office was promptly notified that same day, and appellant was told that the court would permit the substitution of counsel once a private attorney was retained. Appellant contends that such a short time to obtain counsel and prepare a defense constituted a violation of due process.
The trial judge’s concern to expedite the trial is most commendable, but expedition should not be pursued at the cost of the quality of justice. Fundamental to due process is the effective assistance of counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799 (1963). And a defendant with sufficient means should be afforded the opportunity to employ counsel of his own choice. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680 (1942); United States v. Balk, 318 F.2d 288 (6th Cir. 1963).
Blount lived in Akron, was incarcerated before trial in Youngstown, and was scheduled to be tried in Cleveland. These cities form the vertices of a scalene triangle, one leg of which is 35 miles long, another 50, and the third 70. Appellant was afforded only 11 days, with two intervening weekends (seven work days), within which to obtain counsel from a jail cell, in a city not his residence. And it does not appear that he had ready access to a telephone and a legal directory. Because of our disposition of the voir dire issue, we find it unnecessary to decide whether the denial of a continuance requires us to follow Balk, supra, where we found a denial of Sixth Amendment rights, or United States v. Sisk, 411 F.2d 1192 (6th Cir.), cert. denied, 396 U.S. 1018, 90 S.Ct. 584, 24 L.Ed.2d 509 (1969), where we found no error.
Reversed and remanded for a new trial.
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_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
CABOT CORPORATION and Cabot Argentina S.A.I.C., Plaintiffs-Appellees, v. S.S. MORMACSCAN, her engines, etc., Moore-McCormack Lines, Inc., Defendants, and John W. McGrath Corporation, Defendant-Appellant.
No. 392, Docket 33876.
United States Court of Appeals, Second Circuit.
Argued Jan. 18, 1971.
Decided March 26, 1971.
Martin J. McHugh, New York City (Maurice F. Beshlian, James M. Kenny, McHugh, Heckman, Smith & Leonard, New York City, on the brief), for defendant-appellant.
Martin B. Mulroy, New York City (Hill, Rivkins, War burton, McGowan & Carey, New York City, on the brief), for plaintiffs-appellees.
Before HAYS and ANDERSON, Circuit Judges, and TYLER, District Judge.
Of the United States District Court for the Southern District of New York, sitting by designation.
HAYS, Circuit Judge:
Appellee Cabot Corporation delivered a large turbogenerator and parts packed in skids and cases to Moore-McCormack Lines for transport aboard the S.S. Mormacscan under Moore-McCormack’s bill of lading. Cabot had received a dock receipt making the shipment subject to the standard bill of lading then used by Moore-McCormack. For the job of loading the ship, Moore-McCormack employed the appellant John W. McGrath Corp. The eases containing the turbo-generator were safely stowed in the No. 3 lower hold of the Mormacsean. However, in the course of loading heavy steel plates belonging to another shipper into the same hold, McGrath’s employees dropped two of the plates onto appellees’ turbogenerator, seriously damaging it.
McGrath stipulated that it had acted negligently in causing damage to Cabot’s cargo and appellees thereupon discontinued their action against Moore-McCormack and elected to pursue their remedies exclusively against McGrath. McGrath invoked the $500.00 per package limitation contained in the bill of lading to limit its liability to that figure.
The district court, 298 F.Supp. 1171, held that the limitation clause contained in the bill of lading was inapplicable to shield appellant from liability to appellees for having negligently damaged appellee’s cargo. The ground of the decision was that Cabot and McGrath were no longer in any contractual relationship at the time of the accident, since Mc-Grath was not “rendering services in connection with Cabot’s * * * contract [i. e. the bill of lading], but [was] instead rendering services in connection with another shipper not a party in this action.” Although we affirm the judgment of the district court, we do so on the ground that the language of the limitation in the bill of lading does not include appellant-stevedore McGrath among those entitled to the benefit of the $500.00 limitation.
Clauses 2 and 13 of the bill of lading contain the relevant language which appellant claims gives it the benefit of the limitation.
Clause 2 provides as follows:
“In this bill of lading, the word ‘ship’ shall include any substituted vessel and any craft, lighter, or other means of conveyance owned, chartered, operated or used by the carrier in performing this contract; the word ‘carrier’ shall include the ship, her owner, operator, demise charterer, time charterer, master and any substituted carrier, whether acting as carrier or bailee, and all persons rendering services in connection with performance of this contract; * * (Emphasis added.)
and Clause 13 reads:
“In case of any loss or damage to or in connection with goods exceeding in actual value $500, lawful money of the United States, per package, or, in case of goods not shipped in packages, per customary freight unit, the value of the goods shall be deemed to be $500 per package or per unit, on which basis the freight is adjusted and the carrier’s liability in any capacity, if any, shall be determined on a value of $500 per package or per customary freight unit, unless the nature of the goods and a valuation higher than $500 shall have been declared in writing by the shipper upon delivery to the carrier and inserted in this bill of lading and extra freight paid if required; and in such case if the actual value of the goods per package or per customary freight unit shall exceed such declared value, the value shall nevertheless be deemed the declared value and the carrier’s liability in any capacity, if any, shall not exceed the declared value. Whenever less than $500 per package or other freight unit, the value of the goods in the calculation and adjustment of claims shall, to avoid uncertainties and difficulties in fixing value, be deemed to be the invoice value, plus freight and insurance if paid, whether any other value be higher or lower.” (Emphasis added.)
In this bill of lading, a contract of adhesion prepared by the carrier (see Caterpillar Overseas, S.A. v. SS Expeditor, 318 F.2d 720, 722 (2d Cir. 1963), cert. denied, 375 U.S. 942, 84 S.Ct. 347, 11 L.Ed.2d 272 (1963)), limitations of liability are to be construed most strongly against the parties who introduced them into the contract. The Caledonia, 157 U.S. 124, 137, 15 S.Ct. 537, 39 L.Ed. 644 (1895); Compania De Navigacion La Flecha v. Brauer, 168 U.S. 104, 118, 18 S.Ct. 12, 42 L.Ed. 398 (1897). In construing exculpatory language in a bill of lading on facts similar to ours, the Supreme Court said:
“ * * * [Cjontracts purporting to grant immunity from, or limitation of, liability must be strictly construed and limited to intended beneficiaries, for they ‘are not to be applied to alter familiar rules visiting liability upon a tortfeasor for the consequences of his negligence, unless the clarity of the language used expresses such to be the understanding of the contracting parties.’ Boston Metals Co. v. The Winding Gulf, 349 U.S. 122, 123-24, 75 S.Ct. 649, 99 L.Ed. 933 (concurring opinion).”
Robert C. Herd & Co., Inc. v. Krawill Machinery Corp., 359 U.S. 297, 305, 79 S.Ct. 766, 771, 3 L.Ed.2d 820 (1959).
The language in the instant bill of lading does not exhibit the clarity required to extend the limitation of liability to the appellant-stevedore. Even if Cabot had actually received a copy of the bill of lading before delivery of the turbogenerator for shipping, it could not have ascertained from the ambiguous language employed whether the $500.00 limitation applied to the stevedore. One can only guess whether clause 13 which speaks in terms of the “carrier’s liability in any capacity” is intended to incorporate the phrase “all persons rendering services in connection with performance of this contract” from clause 2, and, indeed, initially, whether “all persons rendering services” is designed to include stevedores loading the goods of another shipper.
While there is no doubt that the parties to a bill of lading may extend a contractual benefit to a third party by clearly expressing their intent to do so, Herd & Co. v. Krawill Machinery Corp., supra at 302, 79 S.Ct. 766, an intention to extend benefits of the limitation in the present bill to the stevedore would most naturally have been expressed by the addition of the term “stevedore” to the long list of various persons included under the definition of “carrier” in clause 2. In Carle & Montanari, Inc. v. American Export Isbrandtsen Lines, Inc., 275 F.Supp. 76 (S.D.N.Y.), aff’d per curiam, 386 F.2d 839 (2d Cir. 1967), cert. denied sub nom. Carle & Montanari v. John W. McGrath Corp., 390 U.S. 1013, 88 S.Ct. 1263, 20 L.Ed.2d 162 (1968), the benefit of the $500.00 limitation was extended to the same stevedore involved here, but the bill of lading included the language “all agénts and all stevedores.” 275 F.Supp. at 78. The failure to include similar language here would lead one to believe that the protection of stevedores against liability was not intended. In any case such an intention was not expressed with, sufficient “clarity of language.”
We will “not stretch the language when the party drafting such a form contract has not included a provision it easily might have.” The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 183, 79 S.Ct. 710, 712, 3 L.Ed.2d 723 (1959).
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_source
|
D
|
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.
RASMUSSEN v. GRESLY.
No. 10144.
Circuit Court of Appeals, Eighth Circuit.
May 3, 1935.
W. C. Fraser, of Omaha, Neb., for appellant.
B. N. Robertson, of Omaha, Neb., for appellee.
Before STONE, SANBORN, and FARIS, Circuit Judges.
SANBORN, Circuit Judge.
This is an appeal by the trustee of the Walrath & Sherwood Lumber Company, which was adjudged a bankrupt on December 31, 1932, from an order allowing the claim filed by Mrs. J. F. Gresly. Her claim was upon a promissory note for $11,000, dated December 26, 1930, due February 1, 1932, and bearing interest at 7 per cent, per annum. The objections to the allowance of the claim asserted that Mrs. Gresly was not a creditor; that she had surrendered her note about December 6, 1930, for preferred stock of the bankrupt of the par value of $11,000, to be retired December 31, 1934; that, since that time, the bankrupt had operated at a loss and without profits or surplus from which the stock could have been redeemed; that it had, after the surrender of the note, issued financial statements which did not include the note as indebtedness; and that the creditors had no knowledge of and had never consented to the redemption of the preferred stock by the bankrupt.
The claimant’s reply amounted to a denial of the grounds of objection urged by the trustee, and contained an allegation that any pretended surrender of her note for stock was unauthorized and made without her knowledge and consent, and that no stock had ever come into her possession or control.
The referee, after a hearing, disallowed her claim. Upon review, the court below entered an order vacating the order of the referee and allowing the claim as a general claim.
The issues submitted upon the hearing before the referee on the objections to the claim were whether the claimant had authorized her husband to exchange her note for preferred stock, whether she had knowledge of the exchange, and had ratified it, and whether she was estopped to deny her husband’s authority. The referee found against the claimant upon all of these issues, which were issues of fact to be determined from the evidence. It was conceded that the claimant had had a note, as she alleged, and that it was her exclusive property and evidenced a loan of her funds to the bankrupt. It was also conceded that on March 18, 1931, this note was delivered by the claimant’s husband to C. E. Walrath, president of the bankrupt (who, according to a recital in the findings of the court below, was dead at the time of the hearing before the referee), in exchange for preferred stock. If Mrs. Gresly had authorized this exchange, or if she had subsequently learned of and consented to it, there was no basis for her claim. The only witnesses concerning authority, knowledge, or ratification were the claimant and her husband. Both testified that she had given her husband neither general nor specific authority to deal with her note, and that she knew nothing of its exchange for preferred stock until after the bankruptcy of the lumber company. There was no evidence of any ratification of the exchange by her after obtaining knowledge that it had been made. To set out the evidence in detail is unnecessary. If believed, it is consistent only with the hypothesis that the exchange of the note for the stock was unknown to, and unauthorized and unratified by, Mrs. Gresly.
The determination of the issues of fact depended entirely upon the credibility of Mr. and Mrs. Gresly. The referee was the trier of the facts. He had these witnesses before him. In testing their credibility and the weight of their evidence, he had a distinct advantage over this court and the court below, neither of which has had before it anything more than the cold record. The frankness and fairness shown by the witnesses, their attitude upon the witness stand, and the extent to which their testimony was colored, if it was colored at all, by self-interest, were important considerations in weighing their evidence and determining their credibility. These are matters which are not fully disclosed by the record, although the self-interest of the witnesses is apparent. It is obvious that the referee'did not believe that Mr. Gresly had made the exchange of his wife’s note for stock without her authority, knowledge, or consent. The court below, on the other hand, by reversing the referee, took the position that the referee was obliged to accept their testimony.
. The appellant contends for the application of the general rule that in resolving issues of fact depending upon the credibility of witnesses and the weight of the evidence, the determination of the trier of the facts, who had the witnesses before him, must prevail. The appellee contends that her testimony and that of her husband, being un-. disputed and not inherently unreasonable or improbable, was to be accepted by the referee, as the trier of the facts, as true, and that this court will not disturb the findings made by the court below, although contrary to the findings of the referee, unless due to some plain mistake.
The determination of a referee in bankruptcy of issues of fact, based upon the evidence of witnesses appearing in person before him, where such determination must rest upon the credibility of the witnesses and the weight of their evidence, should ordinarily be accepted upon review, except in those cases where it is obvious that the referee has made a mistake. In re Slocum (C. C. A. 2) 22 F.(2d) 282, 284, 285; In re Croonborg (C. C. A. 7) 268 F. 352, 353; Bank of Commerce & Savings v. Matthews (C. C. A. 7) 257 F. 292, 294; In re M. & M. Mfg. Co., Inc. (C. C. A. 2) 71 F.(2d) 140, 142; Ohio Valley Bank Co. v. Mack et al. (C. C. A. 6) 163 F. 155, 158, 24 L. R. A. (N. S.) 184; In re Wheeler (C. C. A. 7) 165 F. 188, 189; In re Miller (D. C. Minn.) 39 F.(2d) 919, 921; In re Hatem (D. C. E. D. N. C.) 161 F. 895, 896; In re Swift et al. (D. C. Mass.) 118 F. 348, 349; Remington on Bankruptcy, vol. 8, § 3871, p. 231. A different rule would virtually make a review of the findings of a referee as to issues of fact which depended for their correctness upon the credibility of witnesses who had personally appeared before him and upon the weight of their evidence, a trial de novo.
The fact that the testimony of the Greslys as to knowledge and authority was uncontradicted did not compel the referee to accept it as the truth. He was not required to believe what seemed unreasonable or improbable. Quock Ting v. United States, 140 U. S. 417, 11 S. Ct. 733, 35 L. Ed. 501; F. T. Dooley Lumber Co. v. United States (C. C. A. 8) 63 F.(2d) 384, 388; Reiss v. Reardon (C. C. A. 8) 18 F.(2d) 200, 202.
The evidence before the referee showed that the Greslys were husband and wife, that they were living together at the time of the transfer, that they kept their securities in a joint deposit box to which each had a key, that Mr. Gresly had previously handled or assisted in handling his wife’s business matters, and that he had dealt with the bankrupt in procuring renewals of loans formerly made by her to the bankrupt. He first testified that in making such renewals he did not consult with his wife, but later testified that he did consult her about such renewals. The fact that this $11,000 note was not promptly renewed by the bankrupt when it became due February 1, 1932, was a matter which might have put Mrs. Gresly upon inquiry. The testimony of the Greslys indicated that Mr. Gresly had not previously betrayed his wife’s confidence. We feel that, under the circumstances, the referee was not bound to accept the claimant’s evidence as to lack of authority or lack of knowledge.
While the sworn proof of claim was evidence on behalf of the claimant sufficient to overcome any unsupported formal objections, the burden of establishing her claim remained with her; and, after the testimony was in, the question which the referee was called upon to determine was whether she had proved her claim by a fair preponderance of the evidence, having regard to the probative value of the sworn proof of claim. Whitney v. Dresser, 200 U. S. 532, 534, 535, 26 S. Ct. 316, 50 L. Ed. 584; Alexander v. Theleman (C. C. A. 10) 69 F.(2d) 610, 611; Hansen v. Nathanson Bros. Co. et al. (C. C. A. 8) 31 F.(2d) 896, 897; In re Smolka (D. C. E. D. Mich.) 58 F.(2d) 403, 405; Baumhauer v. Austin (C. C. A. 5) 186 F. 260, 270; Remington on Bankruptcy, vol. 2, § 1044; Collier on Bankruptcy, vol. 2, pp. 1142, 1169, 1170.
The admission by Mrs. Gresly of the actual exchange of her note for the stock prior to bankruptcy, and the evidence that her husband had the stock certificate and that the bankrupt had the note with the signature removed, were sufficient to overcome the probative force of the sworn proof of claim, and left Mrs. Gresly in a situation where she was entitled to have her claim allowed only in case she proved her assertion that the surrender of her note for the stock was not binding upon her.
The credibility of the witnesses and the weight of the evidence being for the referee to determine, we think the reversal of his order by the court below was not justified.
The order appealed from is reversed, and the case remanded, with directions to disallow the claim.
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:
|
songer_respond2_3_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
FERRIS et al. v. WILBUR, Secretary of the Navy, et al.
Circuit Court of Appeals, Fourth Circuit.
June 15, 1928.
No. 2692.
1. Injunction <@=>129(2) — Suit to enjoin storage of explosives held properly dismissed as to contractor employed only to construct depot roads.
Property owners’ suit against Secretary of the Navy and others to enjoin contemplated storage of large quantities of high explosives in the neighborhood of plaintiffs’ property held properly dismissed on the merits as to one employed only to construct roads in the development of the storage depot.
2. Injunction <@=>129(2) — Suit to enjoin storage of explosives held properly dismissed as to Secretary of the Navy, not served, nor resident of district, nor voluntarily appearing.
Property owners’ suit against Secretary of Navy and others to enjoin, contemplated storage of large quantities of high explosives in the neighborhood of plaintiffs’ property held properly dismissed as to Secretary of the Navy, not a resident of the district, nor served,, nor voluntarily appearing.
3. United States <@=>125(2) — Suit to enjoin storage of explosives held properly dismissed as one against United States to enjoin as nuisance exercise of discretion reposed in executive (Const. Amend. 5, and art. I, § 8, els. 12, 13, 17; Act July I, 1918 [40 Stat. 722]; President’s Proclamation Aug. 7, 1948; Act Feb. 28, 1927 [44 Stat. 1253]).
Suit against Secretary of the Navy and others to enjoin maintenance of depot for storing large quantities of high explosives in neighborhood of plaintiffs’ property as a taking of property without due process, in violation of Const. Amend. 5, held properly dismissed as to naval officer in charge, not because the Secretary of the Navy, his superior, was not a party, but because the suit was in effect against the United States and to restrain as a nuisance the exercise of a discretion reposed in the executive by Const, art. 1, § 8, els. 12, 13, 17, Act July 1, 1918 (40 Stat. 722), President’s Proclamation Aug. 7, 1918 (40 Stat. 1827), and Act Feb. 28, 1927 (44 Stat. 1253).
4. United States <@=>135 — United States is necessary party to suit to enjoin maintenance of naval mine depot.
United States is a necessary party to a suit to enjoin the maintenance of a naval mine depot pursuant to act of Congress.
5. Injunction <@=>75 — Injunction will not lie against executive official to restrain use of government property authorized by Congress and within discretion of executive.
Suit for injunction will not lie against an official of the executive department to restrain as a nuisance the use of government property authorized by Congress and within the discretion of the executive.
6. Constitutional law <@=>82 — Congress and executive, in exercise of rights, must have regard for rights of private persons.
Congress, in exercising the powers vested in it by the Constitution, and the executive, in exercising discretion reposed by Congress, must have regard for the rights of private persons protected by the Constitution.
7. Constitutional law <@=>278(1) — Eminent domain <@=>69 — Private property cannot be taken without just compensation or due process of law.
Private property cannot be taken for public use without just compensation, nor can persons be deprived of property without due process of law.
8. Nuisance <@=>6 — Action authorized by valid legislative authority will not be enjoined as nuisance.
Courts will not enjoin as a nuisance an action authorized by valid legislative authority.
Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; D. Lawrence Groner, Judge.
Suit by Howard Ferris, trustee, and others, against Curtis D. Wilbur, Secretary of the Navy, and others. From a decree of dismissal, plaintiffs appeal.
Affirmed.
Allan D. Jones, of Newport News, Va., for appellants.
Luther B. Way, Sp. Asst. U. S. Atty., of Norfolk, Va. (Paul W. Hear, U. S. Atty., of Norfolk, Va., on the brief), for appellees.
Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal from a decree denying an interlocutory injunction and dismissing the bill of complaint in a suit instituted by persons owning property near the United States naval mine depot in York county, Virginia, to enjoin the Secretary of the Navy and the naval officer in charge of the depot from storing high explosives within the area acquired by the government for that purpose. The bill alleged that large quantities of high explosives were being stored within the area, that it was planned to store there even larger quantities in the future, that the storage of such explosives was and would continue to he a constant source of danger to lives and property for miles around, and that such storage so depreciated the value of the property of complainants as to constitute a taking thereof without due process of law in violation of the Fifth Amendment to the Constitution. One Johnston was joined as a defendant under an allegation that he had been awarded a contract to construct roads in the development of the depot. As to him the bill was dismissed on the merits. As to the Secretary of the Navy it was dismissed because he was not a resident of the district and had not appeared or been served with process. As to defendant Miles, the naval officer in charge of the depot, it was dismissed on the ground that- the Secretary was a necessary party to the suit, as Miles was alleged to be acting under his orders.
In so far as the order dismissed the suit as to the contractor and the Secretary of the Navy, it was so obviously proper as not to merit discussion. We think, also, that it was proper to dismiss the suit as to the defendant Miles, not because the Secretary of the Navy was not made a party, but because it was in effect a suit against the United States and sought to restrain as a nuisance the exercise of a discretion reposed in the executive by a valid act of Congress.
In accordance with the purpose expressed in the Constitution “to provide for the common defense,” Congress is vested with the power to raise and support armies and to provide and maintain a navy and is authorized “to exercise exclusive legislation in all cases whatsoever * * * over all places purchased by the consent of the Legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.” Constitution art. 1, § 8, els. 12, 13, and 17. Acting under these constitutional provisions, Congress by the Act of July 1, 1918, appropriated the sum of $3,000,000 for the erection and equipment of a depot for the storage of high explosives and the loading of mines on a site to be acquired by the President. 40 Stat. 722. On August 7, 1918, the President issued a proclamation designating a tract of 11,433 acres near Yorktown, Va., which is the area here involved, as the navy mine depot authorized by the act. 40 Stat. 1827. Title to this tract was acquired by the United States with the consent of the Legislature of Virginia (Acts of the General Assembly of Virginia of 1918, e. 382, p. 568), and the naval mine depot was established and large quantities of high explosives were stored upon it. Later by Act Feb. 28, 1927, Congress appropriated the sum of $580,000 for additional storage and incidental improvements at this naval mine depot. 44 Stat. pt. 2, p. 1253. There can be no doubt, therefore, that the title to the land upon which the naval mine depot is situate is held by the United States, that it was purchased by the consent of the Legislature of Virginia in accordance with the constitutional requirement, that exclusive legislative power over the land acquired is vested in Congress, that Congress has expressly authorized that it be used for the storage of high explosives, and that the discretion to determine what explosives shall be stored there and how they shall be stored has been vested in the executive.
Now defendant Miles, in storing and preparing to store explosives on the Naval Mine Depot, is admittedly acting under the direction of the Secretary of the Navy, who represents the President. In suing to restrain him, therefore, complainants are suing the authorized representative of the government, and are asking that he be restrained from carrying out on government property a policy determined upon by the Executive Department in the exercise of a discretion reposed in it by Congress. It is manifestly, then, not a suit to restrain unauthorized action by a government official, or action based upon an unconstitutional statute, but a suit to restrain action in which the official is exercising valid governmental authority by virtue of his office. There can be no doubt that such a suit is in essence a suit against the United States, and that the United States is a necessary party thereto. And, as it has. not consented to be made a party, the suit must fail. Morrison v. Work, 266 U. S. 481, 488, 45 S. Ct. 149 (69 L. Ed. 394); United States ex rel. Goldberg v. Daniels, 231 U. S. 218, 221 to 222, 34 S. Ct. 84 (58 L. Ed. 191); Naganab v. Hitchcock, 202 U. S. 473, 476, 26 S. Ct. 667 (50 L. Ed. 1113); International Postal Supply Co. v. Bruce, 194 U. S. 601, 606, 24 S. Ct. 820 (48 L. Ed. 1134); Belknap v. Schild, 161 U. S. 10, 16 S. Ct. 443, 40 L. Ed. 599.
Défendant relies particularly upon the cases of U. S. v. Lee, 106 U. S. 196, 1 S. Ct. 240, 27 L. Ed. 171, Philadelphia Co. v. Stimson, 223 U. S. 605, 32 S. Ct. 340, 56 L. Ed. 570, and Colorado v. Toll, 268 U. S. 228, 45 S. Ct. 505, 69 L. Ed. 927. The Lee Case decided that the owner of land held and occupied by the United States for public uses, but under a defective title, might maintain ejectment against the officers of the United States in possession. But, as pointed out by Mr. Justice Miller in Cunningham v. Macon & Brunswick Railroad, 109 U. S. 446, 452, 3 S. Ct. 292, 609 (27 L. Ed. 992); and by Mr. Justice Gray in Belknap v. Schild, supra, in such case the officer in possession is sued, not as or because he is the officer of the government, but as an individual. The court is not ousted of jurisdiction merely because he asserts authority as an officer, but the burden rests upon him to show that his authority is sufficient in law to protect him. There is an obvious distinction between such a ease and one where defendant is sued as an officer of the government, and it is sought to restrain him from action taken in the exercise of a discretion reposed by Congress in the Executive Department. Where the act complained of is not authorized by statute, or where the statute authorizing it is void because in conflict with some provision of the Constitution, the person attempting it may be restrained in a proper case, notwithstanding his claim that he is acting in his official capacity. In such ease he is acting, not within the law, but outside it, his act is not the act of the government, and the law affords him no proteetipn for what he is doing or is about to do. This is true, whether he be the head of a department or merely a subordinate acting under orders; and, if a subordinate, there is no necessity of joining as defendant the head of the department because the orders of the head are immaterial if the act sought to be enjoined is not authorized by law. Colorado v. Toll, supra. These doctrines, however, have no application where, as here, the official is acting under the 'authority of a statute which does not offend any constitutional provision. In such case his action is the action of the government; if injunction is awarded against him, it is the action of the government, and not his individual action, which is restrained; and the government is consequently a necessary party to the suit, which must fail unless it has consented to be sued.
Nothing said in Philadelphia Co. v. Stimson, supra, or Colorado v. Toll, supra, conflicts with the rule which we have stated. The language relied upon in the opinion of the former case occurs at pages 619 and 620 of 223 U. S. (32 S. Ct. 344), and supports the rule as we have stated it. At page 620 (32 S. Ct. 344) the court said: “The complainant did not ask the court to interfere with the official discretion of the Secretary of War, bu.'i challenged his authority to do the things of which complaint was made. The suit rests upon the charge of abuse of power, and its merits must be determined accordingly; it is not a suit against the United States.”
This effectually distinguishes that case from the ease at bar. Here the injunction if granted would interfere with the official discretion of the Secretary of the Navy and accordingly is a suit against the United States. In Colorado v. Toll, supra, the injunction was sought to restrain defendant from enforcing regulations not authorized by act of Congress. Here the storage of explosives has been expressly authorized.
And apart from the fact that the United States is a necessary party to a suit such as this and has not consented to be sued, we think that the bill is lacking in equity in that suit for injunction will not lie against an official of the Executive Department to restrain as a nuisance a use of government property authorized by Congress and within the discretion of the executive. As said by Professor Pomeroy, Equity Jurisprudence (4th Ed.) vol. 4, p. 4062: “An injunction will not issue against an executive officer of the government, nor against one acting under him, to restrain the performance or execution of administrative acts and orders within the scope of his authority. This is based upon the principle which governs also the legal remedy of mandamus. It would be contrary to our theory of government for the judicial department to interfere with the reasonable discretion of the executive.” See, also, 32 C. J. 246; Dakota Co. v. South Dakota, 250 U. S. 163, 184, 39 S. Ct. 507 (63 L. Ed. 910, 4 A. L. R. 1623); Louisiana v. McAdoo, 234 U. S. 627, 633, 34 S. Ct. 938 (58 L. Ed. 1506); Sheriff v. Turner (C. C.) 119 F. 782.
It is true that Congress, in exercising the powers vested in it by the Constitution, and the executive, in exercising the discretion reposed in it by Congress, must have regard for the rights of private persons as guaranteed by the Constitution. Private property cannot be taken for publie use without just compensation, nor can persons be deprived of property without due process of law. But in this ease the land upon which the explosives are to be stored belongs to the government, and the only injury which complainants apprehend is injury arising out of the government’s use of its own property. The question is whether such use authorized by act of Congress can be enjoined by the courts as a nuisance. The question, we think, answers itself. Of course, if what is done by officials under authority of law amounts to a taking of private property for public use, the owner is entitled to recover just compensation in a proper proceeding. Portsmouth Harbor, etc., Co. v. U. S., 260 U. S. 327, 43 S. Ct. 135, 67 L. Ed. 287.
But it is unthinkable that the courts should enjoin as a nuisance the use of government property by a co-ordinate branch of the government, the executive, where such use is authorized by a valid act of'the other coordinate branch, the legislative. It is elementary that courts will not enjoin as a músanse action authorized by valid legislative authority. 20 R. C. L. 500; Northern Transportation Co. v. Chicago, 99 U. S. 635, 640 (25 L. Ed. 336); note 107 Am. St. Rep. 220. Certainly injunction should not be granted where the alleged nuisance arises out of action taken under legislative authority exercised under one of the first mandates of the Constitution, “to provide for the common defense.”
Por the reasons stated, the action of the court below in dismissing the bill is affirmed.
Affirmed.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_numresp
|
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 respondents in the case. 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.
William METCALF, Jr., Appellee, v. PITTSBURGH ATHLETIC CO., Appellant.
No. 7656.
Circuit Court of Appeals, Third Circuit.
April 29, 1941.
John M. Reed, of Pittsburgh, Pa., for appellant.
Ella Graubart and Patterson, Crawford, Arensberg & Dunn, all of Pittsburgh, Pa., for appellee.
Before BIGGS, CLARK, and GOODRICH, Circuit Judges.
PER CURIAM.
The judgment of the court below, 39 F.Supp. 115, is affirmed.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
sc_petitioner
|
281
|
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.
DIAMOND, COMMISSIONER OF PATENTS AND TRADEMARKS v. BRADLEY et al.
No. 79-855.
Argued October 14, 1980
Decided March 9, 1981
Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Assistant Attorney General Litvack, Harriet S. Shapiro, Robert B. Nicholson, Frederic Freilicher, Joseph F. Nakamura, and Thomas E. Lynch.
Nicholas Prasinos argued the cause for respondents. With him on the briefs were Faith F. Driscoll, Henry L. Hanson, and Ronald T. Reiling.
Edward S. Irons, Mary Helen Sears, and Robert P. Beshar filed a brief for National Semiconductor Corp. as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Donald R. Dunner, Kenneth E. Kuffner, and Travis Gordon White for the American Patent Law Association, Inc.; by Reed C. Lawlor and James W. Geriak for the Los Angeles Patent Association; and by Morton C. Jacobs for Applied Data Research, Inc., et al.
William James Beard and John F. Tregoning filed a brief for Halliburton Services as amicus curiae.
Per Curiam.
The judgment is affirmed by an equally divided Court.
The Chief Justice ..took no part in the consideration or decision of this case.
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_respond1_1_3
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
HOOK v. NATIONAL BRICK CO.
No. 8722.
Circuit Court of Appeals, Seventh Circuit.
June 8, 1945.
Rehearing Denied July 12, 1945.
Wm. Greene, of Chicago, 111., and Robert H. Moore and Oscar B. Thiel, both of Gary, Ind., for appellant.
Owen W. Crumpacker and Frederick C. Crumpacker, Jr., both of Hammond, Ind., for appellee.
Before MAJOR, KERNER, and MIN-TON, Circuit Judges.
MAJOR, Circuit Judge.
This appeal is from a judgment, in an action to recover damages for the death of plaintiff’s decedent, alleged to have been caused by defendant’s negligence. The judgment, favorable to plaintiff, followed a jury trial.
Defendant urges three grounds for reversal: (1) the insufficiency of the evidence to sustain the judgment, raised by the court’s refusal to direct a verdict in favor of the defendant, and the court’s denial of defendant’s motion for judgment non obstante veredicto; (2) the erroneous admission of evidence; and (3) the insufficiency of the allegations of the complaint relative to decedent’s earning capacity.
Defendant was engaged in the making, storing and selling of brick for construction and similar uses in and about Lake County, Indiana. Plaintiff’s decedent was engaged in the business of buying, selling and hauling brick and other building material. Jurisdiction is based upon diversity of citizenship.
Inasmuch as the primary question for decision arises from defendant’s contention that the proof is insufficient to sustain plaintiff’s cause of action, we shall relate the evidence in some detail. The defendant offered no testimony. Plaintiff’s proof, insofar as it relates to the manner in which plaintiff’s decedent met his death, was furnished by three witnesses, Heintz, Kirsch and Bultge, all employees of the defendant at the time of the fatal occurrence.
Late in the forenoon of September 15, 1943, Jacob Hook (plaintiff’s decedent) drove his truck to defendant’s kiln shed for the purpose of purchasing a load of brick from defendant. Defendant, through its employees Kirsch and Heintz, with the assistance of the decedent, proceeded with the loading operation, during the course of which a box of brick struck plaintiff’s decedent in the forehead, causing injuries from which he died a few days later. Decedent left surviving him his widow, Della Hook, 53 years of age, three sons and one daughter. All of the children were of age except one who, together with his mother, was wholly dependent upon the decedent for support.
The loading operation in which the decedent had participated on numerous previous occasions consisted of lifting a box of brick weighing four tons by means of a crane and cables, and dumping the brick into the truck to be loaded. There were four cables attached to the crane, each in diameter and made of strands of fine steel wire, with a hook on each cable to be inserted in angle irons near each corner of the box. They were designed to operate so that all four would rise simultaneously, thus raising the box of brick evenly from the floor as it was being moved to dump in the truck. A timber 4x4 was placed at right angles across the body of the truck and the loading accomplished in the following manner: the crane lifted the box of brick, carried it over the truck and lowered it onto the timber, about one-fourth of the box being forward of and three-fourths to the rear of the timber. When the box came to rest on this timber, the craneman allowed sufficient slack so the front cables could be unhooked and chains about one and one-half feet in length inserted between the ends of the two forward cables and the angle irons at the front of the box. These chains had a ring at one end into which the hooks of the cables were inserted, and hooks at the other end for insertion in the angle irons on the box. The purpose of this mechanism was to provide sufficient slack in the front cables so that the crane when operated would lift the rear end of the box and at the same time lower the front end, thereby causing the bricks to fall onto the truck. Three men were required to perform the operation, the craneman and a hooker to insert the chains on each side of the forward end of the box.
The operation just described was followed on the occasion of the accident. Decedent located his truck near the crane and a timber was placed across the body of the truck. Heintz, the craneman, caused the box of brick to be picked up, carried over to the truck and lowered upon the timber. Kirsch and the decedent handled the chain or hooking operation, one on each side of the truck. Kirsch was in view of Heintz, the craneman, but neither Kirsch nor Heintz could see the decedent. Kirsch hooked the chain on his side; Heintz waited until the decedent called, “All right, Bill,” and then lifted the box about eight inches. Suddenly the box swung toward decedent and knocked him to the ground. The only cable hooked to the box after the accident was the rear cable on Kirsch’s side.
The acts of negligence alleged and relied upon are that defendant (1) failed to inspect the cables on the crane, knowing that they had been used beyond their capacity by the North Pier Terminal Company; (2) permitted,the cables to become stretched so that the box would not be lifted evenly, thereby causing the box to swerve toward and strike the decedent; and (3) failed to maintain the crane and cables in a condition of repair sufficient to prevent injury to decedent, in view of all the circumstances, including the fact that defendant knew or should have known that the cables would become stretched and the hooks at the end of the cables bent because of the use of the equipment by the North Pier Terminal Company in storing material heavier than the capacity load of the crane and cables. •
In view of the importance which plaintiff attaches to the use of defendant’s equipment by the North Pier Terminal Company, it seems pertinent to note the facts relative thereto. This company, about nine .months prior to the accident, commenced the use of defendant’s cranes and equipment for loading and storing merchandise and material in defendant’s storeroom. Defendant had three cranes, including the one involved in the instant case, all of which were used at various times by the Terminal Company. The cranes had a lifting capacity of five tons but freight was sometimes handled which weighed seven or eight tons, and on some occasions only two cables of a crane were used. This use of the cables on some occasions caused them to stretch.1 There was a disagreement between the Terminal Company and defendant as to who should keep in repair the cables and equipment. There was finally an understanding that each company should take care of the cables it broke. It was also shown that the hooks on the cables became bent through use by the Terminal Company. When this happened, they were repaired by defendant.
In connection with the testimony as to the use by the Terminal Company, it is pertinent to note that there is not a scintilla of evidence that any defect in the cables or hooks caused by the Terminal Company’s use existed on the occasion of the accident. In fact, there is no evidence that the cables and hooks of the crane used on the "occasion of the accident were ever damaged by the Terminal Company’s use. The most that can be said is that all three of the cranes were used at some time by the Terminal Company and that some of the cables and hooks on some of the cranes were damaged. There is no proof as to when the cranes or any of them were last used by the Terminal Company prior to the accident. For all that is disclosed, it might have been a day, a week, or six months. The only testimony as to the condition of the crane, cables or hooks at the time of the accident was that of Heintz, who testified that when he picked up the box of brick the crane was in proper order and the cables and hooks were all right, that they were all in good working condition. There is no proof that the crane, cables or hooks were in a defective condition prior to the accident, and there is no proof that any of the cables or hooks broke during the operation in question, or that the cables stretched, or that either the cables or hooks were in a defective condition immediately after the accident.
There is the statement by Heintz that on one occasion two front cables stretched so that they were four inches longer than the two back cables. It is not shown, however, that these were the cables or the crane in use at the time of the accident; furthermore, the occasion about which he testified was two weeks subsequent to the accident. Defendant’s motion to strike this testimony should have been allowed; it neither proved nor tended to prove the negligence relied upon. There is the further testimony of the witness Bultge, admitted over defendant’s objection, that about one week after the accident he found three hooks, detached from cables, in a defective condition. The witness had no knowledge whether they had been removed from the cables of the crane involved in the accident or from the cables of the other cranes. This evidence has no probative value and, in our opinion, was erroneously admitted.
We are not unmindful of the rule in Indiana, as elsewhere, that the evidence must be considered in a light most favorable to the plaintiff, together with all inferences which may be reasonably drawn therefrom. Danner v. Marquiss, 218 Ind. 441, 33 N.E.2d 511; Pfisterer v. Key, 218 Ind. 521, 33 N.E.2d 330; Superior Meat Products v. Holloway, 113 Ind.App. 320, 48 N.E.2d 83. According to plaintiff the full benefit of this rule, we think there is an entire want of proof of any defect in defendant’s equipment which caused decedent’s injury and death. The mere fact that an accident happened is not proof of a defective condition alleged in the complaint.
There is proof, however, that defendant failed to inspect the cables prior to the accident. Heintz, the same witness who testified that the equipment was all in proper operating condition at the time of the accident, also testified that the cables had not been inspected during the nine months prior thereto. This raises the question whether defendant’s failure to inspect the cables constituted negligence which will support the judgment. In considering this question, it must be kept in mind there is no proof as to what caused the box to swerve and strike the decedent. What, if anything, an inspection would have disclosed under such circumstances is purely a matter of conjecture. As pointed out by defendant, it is just as reasonable to infer that an inspection would have revealed the cables in good condition as that it would have revealed a defective condition.
No Indiana case has been cited and we are unable to find one which has announced the rule applicable to such a situation. In Restatement of the Law, Vol. Torts, Chap. 12, Par. 300, it is stated: “A failure to make an inspection does not create liability unless the inspection, if made, would have disclosed the particular defect which makes the use harmful to the other. * * * It is sometimes true that those who use certain instrumentalities are under a duty to make reasonable inspection thereof. The duty of inspection is not, however, ordinarily an independent duty upon which liability is based, but is a duty, the performance of which is a condition precedent to a reasonable use of the instrumentality. The actor’s negligence lies in his act of using the defective instrument without adequate inspection, not in his omission to perform his duty of inspection.”
In Sack v. Dolese et al., 137 Ill. 129, 27 N.E. 62, the court considered the duty to inspect under circumstances somewhat similar to those of the instant case. There, the plaintiff, working in a stone quarry, attempted to stop a loaded car when .the brake gave way and he was thrown to the ground. There was no proof of any defect in the brake or brake chain and no proof as to what had caused the brake to give way. It was contended there, as here, that defendant’s failure to inspect was negligence. In denying recovery on this theory, the court (137 Ill. at page 133, 27 N.E. at page 63) stated: “The proposition goes on an unwarrantable assumption, to-wit, that an inspection would have discovered the defective condition of the brake. That is an affirmative proposition to be shown by the evidence, and the burden of proving it rests on him who asserts it. * * * but before a court or jury can say that their negligence in failing to inspect the car was the cause of plaintiff’s injury, it must be shown by the evidence that the fault or defect in the appliance was one which a proper inspection would have made known to them.” (A number of cases are cited and analyzed in support of this principle.)
On the basis of similar reasoning, the court in National Builders Bank v. Schuham, 319 Ill.App. 546, 49 N.E.2d 825, denied recovery because of defendant’s failure to inspect.
We are of the view that the rule thus stated is controlling in the instant situation. If there had been proof that the accident occurred because of a defective hook or broken or stretched cable, it might well be contended that an inspection would have revealed such condition. Such circumstances would present a jury question as to whether defendant’s failure to inspect was the proximate cause of the accident. There being no proof, however, that the accident occurred because of a defective condition of the cables or the hooks, it cannot be inferred that a failure to inspect was negligence which caused the injury complained of.
We therefore conclude that the proof fails to sustain the negligence alleged in the complaint.
The judgment is reversed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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sc_casedisposition
|
B
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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.
CBOCS WEST, INC. v. HUMPHRIES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 06-1431.
Argued February 20, 2008
Decided May 27, 2008
Michael W. Hawkins argued the cause for petitioner. With him on the briefs were Michael J. Newman and Michael Zylstra.
Cynthia H. Hyndman argued the cause for respondent. With her on the brief were Aleeza M. Strubel and Eric Schnapper.
Solicitor General Clement argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Assistant Attorney General Becker, Deputy Solicitor General Garre, Curtis E. Gannon, and Dennis J. Dimsey
Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States of America by Catherine E. Stetson, Robin S. Conrad, and Shane Brennan; and for the Equal Employment Advisory Council et al. by Rae T. Vann, Karen R. Harned, and Elizabeth Milito.
Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Andrew M. Cuomo, Attorney General of New York, Barbara D. Underwood, Solicitor General, and Benjamin N. Gutman, Deputy Solicitor General, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Richard Blumenthal of Connecticut, Lisa Madigan of Illinois, Thomas Miller of Iowa, Douglas F. Gansler of Maryland, Martha Coakley of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, Catherine Cortez Masto of Nevada, Anne Milgram of New Jersey, Marc Dann of Ohio, Hardy Myers of Oregon, William H. Sorrell of Vermont, and Darrell V. McGraw, Jr., of West Virginia; for Historian Mary Frances Berry et al. by Melissa Hart and Charles J. Ogletree, Jr.; for the Leadership Conference on Civil Rights et al. by Paul R. Q. Wolf-son, Anne Harkavy, and Michael Foreman; for Members of Congress by Aaron M. Panner and Priya R. Aiyar; and for the National Employment Lawyers Association by Douglas B. Huron, Stephen Z. Chertkof and Tammany M. Kramer.
Justice Breyer
delivered the opinion of the Court.
A longstanding civil rights law, first enacted just after the Civil War, provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts... as is enjoyed by white citizens.” Rev. Stat. § 1977, 42 U. S. C. § 1981(a). The basic question before us is whether the provision encompasses a complaint of retaliation against a person who has complained about a violation of another person’s contract-related “right.” We conclude that it does.
I
The case before us arises out of a claim by respondent, Hedrick G. Humphries, a former assistant manager of a Cracker Barrel restaurant, that CBOCS West, Inc. (Cracker Barrel’s owner), dismissed him (1) because of racial bias (Humphries is a black man) and (2) because he had complained to managers that a fellow assistant manager had dismissed another black employee, Venus Green, for race-based reasons. Humphries timely filed a charge with the Equal Employment Opportunity Commission (EEOC), pursuant to 42 U. S. C. § 2000e-5, and received a “right to sue” letter. He then filed a complaint in Federal District Court charging that CBOCS’ actions violated both Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq., and the older “equal contract rights” provision here at issue, §1981. The District Court dismissed Humphries’ Title VII claims for failure to pay necessary filing fees on a timely basis. It then granted CBOCS’ motion for summary judgment on Humphries’ two § 1981 claims. Humphries appealed.
The U. S. Court of Appeals for the Seventh Circuit ruled against Humphries and upheld the District Court’s grant of summary judgment in respect to his direct discrimination claim. But it ruled in Humphries’ favor and remanded for a trial in respect to his § 1981 retaliation claim. In doing so, the Court of Appeals rejected CBOCS’ argument that § 1981 did not encompass a claim of retaliation. 474 F. 3d 387 (2007). CBOCS sought certiorari, asking us to consider this last-mentioned legal question. And we agreed to do so. See 551 U. S. 1189 (2007).
II
The question before us is whether § 1981 encompasses retaliation claims. We conclude that it does. And because our conclusion rests in significant part upon principles of stare decisis, we begin by examining the pertinent interpretive history.
A
The Court first considered a comparable question in 1969, in Sullivan v. Little Hunting Park, Inc., 396 U. S. 229. The case arose under Rev. Stat. § 1978,42 U. S. C. § 1982, a statutory provision that Congress enacted just after the Civil War, along with § 1981, to protect the rights of black citizens. The provision was similar to § 1981 except that it focused, not upon rights to make and to enforce contracts, but rights related to the ownership of property. The statute provides that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” § 1982.
Paul E. Sullivan, a white man, had rented his house to T. R. Freeman, Jr., a black man. He had also assigned Freeman a membership share in a corporation, which permitted the owner to use a private park that the corporation controlled. Because of Freeman’s race, the corporation, Little Hunting Park, Inc., refused to approve the share assignment. And, when Sullivan protested, the association expelled Sullivan and took away his membership shares.
Sullivan sued Little Hunting Park, claiming that its actions violated §1982. The Court upheld Sullivan’s claim. It found that the corporation’s refusal “to approve the assignment of the membership share... was clearly an interference with Freeman’s [the black lessee’s] right to ‘lease.’” 396 U. S., at 237. It added that Sullivan, the white lessor, “has standing to maintain this action,” ibid., because, as the Court had previously said, “the white owner is at times ‘the only effective adversary’ of the unlawful restrictive covenant.” Ibid, (quoting Barrows v. Jackson, 346 U. S. 249 (1953)). The Court noted that to permit the corporation to punish Sullivan “for trying to vindicate the rights of minorities protected by § 1982” would give “impetus to the perpetuation of racial restrictions on property.” 396 U. S., at 237. And this Court has made clear that Sullivan stands for the proposition that § 1982 encompasses retaliation claims. See Jackson v. Birmingham Bd. of Ed., 544 U. S. 167,176 (2005) (“[I]n Sullivan we interpreted a general prohibition on racial discrimination [in §1982] to cover retaliation against those who advocate the rights of groups protected by that prohibition”).
While the Sullivan decision interpreted § 1982, our precedents have long construed §§1981 and 1982 similarly. In Runyon v. McCrary, 427 U. S. 160,173 (1976), the Court considered whether § 1981 prohibits private acts of discrimination. Citing Sullivan, along with Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968), and Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U. S. 431 (1973), the Court reasoned that this case law “necessarily requires the conclusion that § 1981, like § 1982, reaches private conduct.” 427 U. S., at 173. See also id., at 187 (Powell, J., concurring) (“Although [Sullivan and Jones] involved §1982, rather than § 1981,1 agree that their considered holdings with respect to the purpose and meaning of § 1982 necessarily apply to both statutes in view of their common derivation”); id., at 190 (Stevens, J., concurring) (“[I]t would be most incongruous to give those two sections [1981 and 1982] a fundamentally different construction”). See also Shaare Tefila Congregation v. Cobb, 481 U. S. 615, 617-618 (1987) (applying to § 1982 the discussion and holding of Saint Francis College v. AlKhazraji, 481 U. S. 604, 609-613 (1987), a case interpreting §1981).
As indicated in Runyon, the Court has construed §§ 1981 and 1982 alike because it has recognized the sister statutes’ common language, origin, and purposes. Like § 1981, § 1982 traces its origin to §1 of the Civil Rights Act of 1866, 14 Stat. 27. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 383-384 (1982) (noting shared historical roots of the two provisions); Tillman, supra, at 439-440 (same). Like § 1981, § 1982 represents an immediately post-Civil War legislative effort to guarantee the then newly freed slaves the same legal rights that other citizens enjoy. See General Building Contractors Assn., supra, at 388 (noting strong purposive connection between the two provisions). Like §1981, §1982 uses broad language that says “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens....” Compare § 1981’s language set forth above, supra, at 445. See Jones, supra, at 441, n. 78 (noting the close parallel language of the two provisions). Indeed, § 1982 differs from § 1981 only in that it refers, not to the “right... to make and enforce contracts,” 42 U. S. C. § 1981(a), but to the “right... to inherit, purchase, lease, sell, hold, and convey real and personal property,” § 1982.
In light of these precedents, it is not surprising that following Sullivan, federal appeals courts concluded, on the basis of Sullivan or its reasoning, that § 1981 encompassed retaliation claims. See, e. g., Choudhury v. Polytechnic Inst, of N. Y, 735 F. 2d 38, 42-43 (CA2 1984); Goff v. Continental Oil Co., 678 F. 2d 593, 598-599 (CA5 1982), overruled, Carter v. South Central Bell, 912 F. 2d 832 (1990); Winston v. Lear-Siegler, Inc., 558 F. 2d 1266, 1270 (CA6 1977).
In 1989, 20 years after Sullivan, this Court in Patterson v. McLean Credit Union, 491 U. S. 164, significantly limited the scope of § 1981. The Court focused upon § 1981’s words “to make and enforce contracts” and interpreted the phrase narrowly. It wrote that the statutory phrase did not apply to “conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions.” Id., at 177 (emphasis added). The Court added that the word “enforce” does not apply to post-contract-formation conduct unless the discrimination at issue “infects the legal process in ways that prevent one from enforcing contract rights.” Ibid, (emphasis added). Thus §1981 did not encompass the claim of a black employee who charged that her employer had violated her employment contract by harassing her and failing to promote her, all because of her race. Ibid.
Since victims of an employer’s retaliation will often have opposed discriminatory conduct taking place after the formation of the employment contract, Patterson’s holding, for a brief time, seems in practice to have foreclosed retaliation claims. With one exception, we have found no federal court of appeals decision between the time we decided Patterson and 1991 that permitted a § 1981 retaliation claim to proceed. See, e. g., Walker v. South Central Bell Tel. Co., 904 F. 2d 275, 276 (CA5 1990) (per curiam); Overby v. Chevron USA, Inc., 884 F. 2d 470, 473 (CA9 1989); Sherman v. Burke Contracting, Inc., 891 F. 2d 1527, 1534-1535 (CA11 1990) (per curiam). See also Malhotra v. Cotter & Co., 885 F. 2d 1305, 1312-1314 (CA7 1989) (questioning without deciding the viability of retaliation claims under §1981 after Patterson). But see Hicks v. Brown Group, Inc., 902 F. 2d 630, 635-638 (CA8 1990) (allowing a claim for discriminatory discharge to proceed under § 1981), vacated and remanded, 499 U. S. 914 (1991) (ordering reconsideration in light of what became the Eighth Circuit’s en banc opinion in Taggart v. Jefferson Cty. Child Support Enforcement Unit, 935 F. 2d 947 (1991), which held that racially discriminatory discharge claims under § 1981 are barred).
In 1991, however, Congress weighed in on the matter. Congress passed the Civil Rights Act of 1991,105 Stat. 1071, with the design to supersede Patterson. Jones v. R. R. Donnelley & Sons Co., 541 U. S. 369, 383 (2004). Insofar as is relevant here, the new law changed 42 U. S. C. § 1981 by reenacting the former provision, designating it as § 1981(a), and adding a new subsection, (b), which, says:
“ ‘Make and enforce contracts’ defined
“For purposes of this section, the term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”
An accompanying Senate Report pointed out that the amendment superseded Patterson by adding a new subsection (b) that would “reaffirm that the right ‘to make and enforce contracts’ includes the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.” S. Rep. No. 101-315, p. 6 (1990). Among other things, it would “ensure that Americans may not be harassed, fired or otherwise discriminated against in contracts because of their race.” Ibid, (emphasis added). An accompanying House Report said that in “cutting back the scope of the rights to ‘make’ and ‘enforce’ contracts[,] Patterson... has been interpreted to eliminate retaliation claims that the courts had previously recognized under section 1981.” H. R. Rep. No. 102-40, pt. 1, pp. 92-93, n. 92 (1991). It added that the protections that subsection (b) provided, in “the context of employment discrimination... would include, but not be limited to, claims of harassment, discharge, demotion, promotion, transfer, retaliation, and hiring.” Id., at 92 (emphasis added). It also said that the new law “would restore rights to sue for such retaliatory conduct.” Id., at 93, n. 92.
After enactment of the new law, the Federal Courts of Appeals again reached a broad consensus that §1981, as amended, encompasses retaliation claims. See, e.g., Hawkins v. 1115 Legal Serv. Care, 163 F. 3d 684, 693 (CA2 1998); Aleman v. Chugach Support Servs., Inc., 485 F. 3d 206, 213-214 (CA4 2007); Foley v. University of Houston System, 355 F. 3d 333, 338-339 (CA5 2003); Johnson v. University of Cincinnati, 215 F. 3d 561, 575-576 (CA6 2000); 474 F. 3d, at 403 (case below); Manatt v. Bank of America, NA, 339 F. 3d 792, 800-801, and n. 11 (CA9 2003); Andrews v. Lakeshore Rehabilitation Hospital, 140 F. 3d 1405, 1411-1413 (CA11 1998).
The upshot is this: (1) In 1969, Sullivan, as interpreted by Jackson, recognized that § 1982 encompasses a retaliation action; (2) this Court has long interpreted §§ 1981 and 1982 alike; (3) in 1989, Patterson, without mention of retaliation, narrowed § 1981 by excluding from its scope conduct, namely, post-contract-formation conduct, where retaliation would most likely be found; but in 1991, Congress enacted legislation that superseded Patterson and explicitly defined the scope of §1981 to include post-contract-formation conduct; and (4) since 1991, the lower courts have uniformly interpreted § 1981 as encompassing retaliation actions.
C
Sullivan, as interpreted and relied upon by Jackson, as well as the long line of related cases where we construe §§ 1981 and 1982 similarly, lead us to conclude that the view that § 1981 encompasses retaliation claims is indeed well embedded in the law. That being so, considerations of stare decisis strongly support our adherence to that view. And those considerations impose a considerable burden upon those who would seek a different interpretation that would necessarily unsettle many Court precedents. See, e. g., Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 494-495 (1987) (plurality opinion) (describing importance of stare decisis)-, Patterson, 491 U. S., at 172 (considerations of stare decisis “have special force in the area of statutory interpretation”); John R. Sand & Gravel Co. v. United States, 552 U. S. 130, 139 (2008) (same).
Ill
In our view, CBOCS’ several arguments, taken separately or together, cannot justify a departure from what we have just described as the well-embedded interpretation of § 1981. First, CBOCS points to the plain text of § 1981 — a text that says that “[a]ll persons... shall have the same right... to make and enforce contracts... as is enjoyed by white citizens.” 42 U. S. C. § 1981(a) (emphasis added). CBOCS adds that, insofar as Humphries complains of retaliation, he is complaining of a retaliatory action that the employer would have taken against him whether he was black or white, and there is no way to construe this text to cover that kind of deprivation. Thus the text’s language, CBOCS concludes, simply “does not provide for a cause of action based on retaliation.” Brief for Petitioner 8.
We agree with CBOCS that the statute’s language does not expressly refer to the claim of an individual (black or white) who suffers retaliation because he has tried to help a different individual, suffering direct racial discrimination, secure his § 1981 rights. But that fact alone is not sufficient to carry the day. After all, this Court has long held that the statutory text of § 1981’s sister statute, § 1982, provides protection from retaliation for reasons related to the enforcement of the express statutory right. See supra, at 447.
Moreover, the Court has recently read another broadly worded civil rights statute, namely, Title IX of the Education Amendments of 1972, 86 Stat. 373, as amended, 20 U. S. C. §1681 et seq., as including an antiretaliation remedy. In 2005 in Jackson, the Court considered whether statutory language prohibiting “discrimination [on the basis of sex] under any education program or activity receiving Federal financial assistance,” § 1681(a), encompassed claims of retaliation for complaints about sex discrimination. 544 U. S., at 173-174. Despite the fact that Title IX does not use the word “retaliation,” the Court held in Jackson that the statute’s language encompassed such a claim, in part because: (1) “Congress enacted Title IX just three years after Sullivan was decided”; (2) it is “ ‘realistic to presume that Congress was thoroughly familiar’ ” with Sullivan; and (3) Congress consequently “ ‘expected its enactment’ ” of Title IX “ ‘to be interpreted in conformity with’ ” Sullivan. 544 U. S., at 176. The Court in Jackson explicitly rejected the arguments the dissent advances here — that Sullivan was merely a standing case, see post, at 464-467 (opinion of Thomas, J.). Compare Jackson, 544 U. S., at 176, n. 1 (“Sullivan’s holding was not so limited. It plainly held that the white owner could maintain his own private cause of action under § 1982 if he could show that he was ‘punished for trying to vindicate the rights of minorities’” (emphasis in original)), with id., at 194 (Thomas, J., dissenting).
Regardless, the linguistic argument that CBOCS makes was apparent at the time the Court decided Sullivan. See 396 U. S., at 241 (Harlan, J., dissenting) (noting the construction of § 1982 in Jones, 392 U. S. 409, was “in no way required by [the statute’s] language” — one of the bases of Justice Harlan’s dissent in Jones — and further contending that the Court in Sullivan had gone “yet beyond” Jones). And we believe it is too late in the day in effect to overturn the holding in that case (nor does CBOCS ask us to do so) on the basis of a linguistic argument that was apparent, and which the Court did not embrace at that time.
Second, CBOCS argues that Congress, in 1991 when it reenacted §1981 with amendments, intended the reenacted statute not to cover retaliation. CBOCS rests this conclusion primarily upon the fact that Congress did not include an explicit antiretaliation provision or the word “retaliation” in the new statutory language — although Congress has included explicit antiretaliation language in other civil rights statutes. See, e. g., National Labor Relations Act, 29 U. S. C. § 158(a)(4); Fair Labor Standards Act of 1938, 29 U. S. C. § 215(a)(3); Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-3(a); Age Discrimination in Employment Act of 1967, 29 U. S. C. § 623(d); Americans with Disabilities Act of 1990, 42 U. S. C. §§ 12203(a)-(b); Family and Medical Leave Act of 1993, 29 U. S. C. §2615.
We believe, however, that the circumstances to which CBOCS points find a far more plausible explanation in the fact that, given Sullivan and the new statutory language nullifying Patterson, there was no need for Congress to include explicit language about retaliation. After all, the 1991 amendments themselves make clear that Congress intended to supersede the result in Patterson and embrace pre-Patterson law. And pre-Patterson law included Sullivan. See Part II, supra. Nothing in the statute’s text or in the surrounding circumstances suggests any congressional effort to supersede Sullivan or the interpretation that courts have subsequently given that case. To the contrary, the amendments’ history indicates that Congress intended to restore that interpretation. See, e. g., H. R. Rep. No. 102-40, at 92 (noting that § 1981(b) in the “context of employment discrimination... would include... claims of... retaliation”).
Third, CBOCS points out that §1981, if applied to employment-related retaliation actions, would overlap with Title VII. It adds that Title VII requires that those who invoke its remedial powers satisfy certain procedural and administrative requirements that §1981 does not contain. See, e. g., 42 U. S. C. § 2000e-5(e)(l) (charge of discrimination must be brought before EEOC within 180 days of the discriminatory act); §2000e-5(f)(l) (suit must be filed within 90 days of obtaining an EEOC right-to-sue letter). And CBOCS says that permitting a §1981 retaliation action would allow a retaliation plaintiff to circumvent Title VII’s “specific administrative and procedural mechanisms,” thereby undermining their effectiveness. Brief for Petitioner 25.
This argument, however, proves too much. Precisely the same kind of Title VII/§ 1981 “overlap” and potential circumvention exists in respect to employment-related direct discrimination. Yet Congress explicitly created the overlap in respect to direct employment discrimination. Nor is it obvious how we can interpret §1981 to avoid employment-related overlap without eviscerating §1981 in respect to %o%-employment contracts where no such overlap exists.
Regardless, we have previously acknowledged a “necessary overlap” between Title VII and § 1981. Patterson, 491 U. S., at 181. We have added that the “remedies available under Title VII and under §1981, although related, and although directed to most of the same ends, are separate, distinct, and independent.” Johnson v. Railway Express Agency, Inc., 421 U. S. 454,461 (1975). We have pointed out that Title VII provides important administrative remedies and other benefits that § 1981 lacks. See id., at 457-458 (detailing the benefits of Title VII to those aggrieved by race-based employment discrimination). And we have concluded that “Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination.” Alexander v. Gardner-Denver Co., 415 U. S. 36, 48-49 (1974). In a word, we have previously held that the “overlap” reflects congressional design. See ibid. We have no reason to reach a different conclusion in this case.
Fourth, CBOCS says it finds support for its position in two of our recent cases, Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006), and Domino’s Pizza, Inc. v. McDonald, 546 U. S. 470 (2006). In Burlington, a Title VII case, we distinguished between discrimination that harms individuals because of “who they are, i. e., their status,” for example, as women or as black persons, and discrimination that harms “individuals based on what they do, i. e., their conduct,” for example, whistle-blowing that leads to retaliation. 548 U. S., at 63. CBOCS says that we should draw a similar distinction here and conclude that § 1981 only encompasses status-based discrimination. In Burlington, however, we used the status/conduct distinction to help explain why Congress might have wanted its explicit Title VII antiretaliation provision to sweep more broadly (i. e., to include conduct outside the workplace) than its substantive Title VII (status-based) antidiscrimination provision. Burlington did not suggest that Congress must separate the two in all events.
The dissent argues that the distinction made in Burlington is meaningful here because it purportedly “underscores the fact that status-based discrimination and conduct-based retaliation are distinct harms that call for tailored legislative treatment. ” Post, at 462. The Court’s construction of a general ban on discrimination such as that contained in § 1981 to cover retaliation claims, the dissent continues, would somehow render the separate antiretaliation provisions in other statutes “superfluous.” Ibid. But the Court in Burlington did not find that Title VII’s antiretaliation provision was redundant; it found that the provision had a broader reach than the statute’s substantive provision. And in any case, we have held that “legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination.” Alexander, supra, at 47. See Great American Fed. Sav. & Loan Assn. v. Novotny, 442 U. S. 366, 377 (1979) (“[S]ubstantive rights conferred in the 19th century [civil rights Acts] were not withdrawn, sub silentio, by the subsequent passage of the modern statutes”). Accordingly, the Court has accepted overlap between a number of civil rights statutes. See ibid, (discussing interrelation of fair housing provisions of the Civil Rights Act of 1968 and § 1982; between § 1981 and Title VII). See also supra, at 455 (any overlap in reach between § 1981 and Title VII, the statute at issue in Burlington, is by congressional design).
CBOCS highlights the second case, Domino’s Pizza, along with Patterson, and cites Cort v. Ash, 422 U. S. 66 (1975), and Rodriguez v. United States, 480 U. S. 522 (1987) (per curiam), to show that this Court now follows an approach to statutory interpretation that emphasizes text. And that newer approach, CBOCS claims, should lead us to revisit the holding in Sullivan, an older case, where the Court placed less weight upon the textual language itself. But even were we to posit for argument’s sake that changes in interpretive approach take place from time to time, we could not agree that the existence of such a change would justify reexamination of well-established prior law. Principles of stare decisis, after all, demand respect for precedent whether judicial methods of interpretation change or stay the same. Were that not so, those principles would fail to achieve the legal stability that they seek and upon which the rule of law depends. See, e. g., John R. Sand & Gravel Co., 552 U. S., at 139.
IV
We conclude that considerations of stare decisis strongly support our adherence to Sullivan and the long line of related cases where we interpret §§1981 and 1982 similarly. CBOCS’ arguments do not convince us to the contrary. We consequently hold that 42 U. S. C. § 1981 encompasses claims of retaliation. The judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice Thomas, with whom Justice Scalia joins, dissenting.
The Court holds that the private right of action it has implied under Rev. Stat. § 1977, 42 U. S. C. § 1981, encompasses claims of retaliation. Because the Court’s holding has no basis in the text of § 1981 and is not justified by principles of stare decisis, I respectfully dissent.
I
It is unexceptional in our case law that “ ‘[statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.’” Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U. S. 246, 252 (2004) (quoting Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 194 (1985)). Today, that rule is honored in the breach: The Court’s analysis of the statutory text does not appear until Part III of its opinion, and then only as a potential reason to depart from the interpretation the Court has already concluded, on other grounds, must “carry the day.” Ante, at 452. Unlike the Court, I think it best to begin, as we usually do, with the text of the statute. Section 1981(a) provides:
“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
Section 1981(a) thus guarantees “[a]ll persons... the same right... to make and enforce contracts... as is enjoyed by white citizens.” It is difficult to see where one finds a cause of action for retaliation in this language. On its face, § 1981(a) is a straightforward ban on racial discrimination in the making and enforcement of contracts. Not surprisingly, that is how the Court has always construed it. See, e. g., Domino’s Pizza, Inc. v. McDonald, 546 U. S. 470, 476 (2006) (“Section 1981 offers relief when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship”); Patterson v. McLean Credit Union, 491 U. S. 164, 171 (1989) (“[Section] 1981 'prohibits racial discrimination in the making and enforcement of private contracts’” (quoting Runyon v. McCrary, 427 U. S. 160, 168 (1976))); Johnson v. Railway Express Agency, Inc., 421 U. S. 454,459 (1975) (Section 1981 “on its face relates primarily to racial discrimination in the making and enforcement of contracts”).
Respondent nonetheless contends that “[t]he terms of section 1981 are significantly different, and broader, than a simple prohibition against discrimination.” Brief for Respondent 15. It is true that § 1981(a), which was enacted shortly after the Civil War, does not use the modern statutory formulation prohibiting “discrimination on the basis of race.” But that is the clear import of its terms. Contrary to respondent’s contention, nothing in § 1981 evinces a “concer[n] with protecting individuals 'based on what they do,’ ” as opposed to “ ‘preventing] injury to individuals based on who they are.’ ” Ibid, (quoting Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 63 (2006)). Nor does § 1981 “affirmatively guarante[e]” freestanding “rights to engage in particular conduct.” Brief for Respondent 16. Rather, § 1981 is an equal-rights provision. See Georgia v. Rachel, 384 U. S. 780, 791 (1966) (“Congress intended to protect a limited category of rights, specifically defined in terms of racial equality”). The statute assumes that “white citizens” enjoy certain rights and requires that those rights be extended equally to “[a]ll persons,” regardless of their race. That is to say, it prohibits discrimination based on race.
Retaliation is not discrimination based on race. When an individual is subjected to reprisal because he has complained about racial discrimination, the injury he suffers is not on account of his race; rather, it is the result of his conduct. The Court recognized this commonsense distinction just two years ago in Burlington when it explained that Title VII’s antidiscrimination provision “seeks to prevent injury to individuals based on who they are, i. e., their status,” whereas its “antiretaliation provision seeks to prevent harm to individuals based on what they do, i. e., their conduct.” 548 U. S., at 63. This distinction is sound, and it reflects the fact that a claim of retaliation is both logically and factually distinct from a claim of discrimination — logically because retaliation based on conduct and discrimination based on status are mutually exclusive categories, and factually because a claim of retaliation does not depend on proof that any status-based discrimination actually occurred. Consider, for example, an employer who fires any employee who complains of race discrimination, regardless of the employee’s race. Such an employer is undoubtedly guilty of retaliation, but he has not discriminated on the basis of anyone’s race. Because the employer treats all employees — black and white — the same, he does not deny any employee “the same right... to make and enforce contracts... as is enjoyed by white citizens.”
The Court apparently believes
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_typeiss
|
B
|
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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KELLY BROTHERS NURSERIES, INC., Respondent.
No. 206, Docket 29055.
United States Court of Appeals Second Circuit.
Argued Dec. 2, 1964.
Decided Feb. 5, 1965.
James L. Burke, Elmira, N. Y., for Kelly Brothers Nurseries.
Allison W. Brown, Jr., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Michael N. Sohn, Washington, D. C., Atty.), for National Labor Relations Board.
Before FRIENDLY and SMITH, Circuit Judges, and BLUMENFELD, District Judge.
Sitting by designation.
FRIENDLY, Circuit Judge:
The National Labor Relations Board seeks enforcement of an order, 145 N.L. R.B. No. 63 (1963), see also 140 N.L.R. B. 82 (1962), which found a nurseryman guilty of a refusal to bargain and other unfair labor practices toward a union seeking to organize his employees and toward such employees. The employer’s objection relates solely to 47 employees contended to be exempt as agricultural laborers.
From its enactment in 1935, 49 Stat. 450, the National Labor Relations Act has provided, § 2(3), that “the term ‘employee’ * * * shall not include any individual employed as an agricultural laborer * * *.” The basic rights of self-organization, of collective bargaining through representatives of their own choosing, and of engaging in other concerted activities, outlined in § 7 of the Act, are conferred only upon “employees,” and the unfair labor practices on the part of an employer defined in §§ 8(a)(1), (3) and (5) of which respondent was found guilty are stated in terms of “employees” or “employment.” Until July, 1946, there was nothing to supplement § 2(3) by way of guidance as to the meaning of “agricultural laborer.” Since then Congress has regularly added to the annual appropriations for the Board a rider, the most recent of which is the Act of September 19, 1964, Tit. Ill, 78 Stat. 959, that none of the Board’s funds “shall be * * * used in connection with investigations, hearings, directives, or orders concerning bargaining units composed of agricultural laborers * * * as defined in section 3(f)” of the Fair Labor Standards Act of 1938, 29 U.S.C. § 203(f), which we quote in the margin, along with the result of our study of the history of initial enactment of the rider.
We take the facts primarily from the Board’s decision and direction of election, 140 N.L.R.B. 82, and the Intermediate Report of the Trial Examiner in the subsequent unfair labor practice case:
Kelly Brothers Nurseries, Inc., is a large producer of nursery stock, with headquarters at Dansville, N. Y. There it owns a 40-acre tract on which warehouses are located, and operates 14 nearby farms on which trees and shrubs are grown. In addition to selling nursery stock raised on these farms, Kelly Brothers markets some purchased items, which constitute 28% of its gross sales.
Kelly Brothers’ employees are divided into three groups: regular year round employees; “three-season employees,” so called because they do not work in the winter; and employees hired mainly for the busy shipping season in the spring. As the case stands before us, the controversy concerns only the first two groups who, in 1962, numbered 30 and 17, respectively, as compared with 106 in the third. During the spring season, March 15-June 1, these 47 employees spend half their time in the fields, trimming trees, cutting tops, cultivating and propagating trees, and the other half in the warehouses preparing for shipment products grown by Kelly Brothers and purchased by it. From June 1 to October 15 the warehouses are closed and the 47 men are constantly in the fields. From October 15 until the end of the digging season in December, the 47 employees are solely engaged in digging Kelly Brothers’ own nursery stock, except that from the middle of November until the digging is completed, five or six are assigned to the warehouses to unload and store the trees that they and their comrades have dug. From early December until March 15, the 30 employees spend most of their time in the warehouses, with six devoting some time to receiving, grading and storing purchased products, and the others working entirely on Kelly Brothers’ own stock; five or six also spend some time in the fields when weather permits.
On March 29, 1962, the secretary of Retail Store Employees Union, Local 345, wrote Kelly Brothers “that a vast majority of your employees have authorized this Union to represent them for the purpose of negotiating a collective bargaining agreement” and requested a date to prove the union’s majority and begin negotiations. Nothing in the letter limited the request to work done in the warehouses as distinguished from work in the fields. The Kellys said they would not bargain with the union and that their attorney would act for them. After some delays, the attorney informed the union that the company would not bargain since it considered that its employees— apparently all of them — were “agricultural laborers” and thus were not “employees” within the meaning of the Act. Before this Kelly Brothers had engaged in what the Board found to be coercive questioning and other unlawful anti-union activities. A strike began on April 18 and lasted until May 25. Kelly Brothers engaged during the strike in acts found to constitute coercion and after its cessation in acts found to discriminate as to reinstatement. The Board also concluded that Kelly Brothers had unlawfully refused to bargain with a union which it should have known to represent a majority of the employees.
Following the filing of unfair labor practice charges in April, the union, on May 2, filed a petition under § 9(e) of the Act, on which hearings were held in May and June. It sought an election for a unit consisting of all Kelly Brothers’ employees at Dansville “including shipping, retail sales, packing, maintenance, truck drivers and all other non-agricultural employees whether in whole or in part” but excluding “office clerical employees, guards, professional employees, supervisors as defined in the Act, and •other employees excluded by statute.” In its decision and direction of election •dated December 11, 1962, the Board ■defined the unit as “all warehouse employees, including shipping, packing and maintenance employees and truck drivers employed by the Employer at its Dans-ville, New York, warehouses, but excluding office clerical employees, professional employees, agricultural laborers, guards, night watchmen, and supervisors, as defined in the Act.” It recognized, 140 N.L.R.B. at 84, that the field work was within the “primary” and the warehouse work in Kelly Brothers’ own products within the “secondary” definition ■of agriculture, Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 763, 69 S.Ct. 1274, 93 L.Ed. 1672 (1949), but held, on the basis of practices adopted by the Fair Labor Standards Administrator, that the exemption was lost, as to all employees, because of the work done in the warehouses on purchased products. After the decision and direction of election was issued, the union withdrew its representation petition, and amended the unfair labor practice charges it had filed In the spring of 1962. This led to a complaint charging both coercion and refusal to bargain, and, after hearing and report, to the order here sought to be enforced. As noted, the employer does not contest this save as to the 47 regular and three-season employees.
It seems important to clarify the posture in which the case stands before us. The Board concedes that the field work was agricultural and that the work in the warehouses would also be if all of it had been performed on Kelly Brothers’ own products. Contrast the sugar processing operations in Maneja v. Waialua Agricultural Co., 349 U.S. 254, 264-270, 75 S.Ct. 719, 99 L.Ed. 1040 (1955). The respondent now makes no contention that the 106 spring season employees were exempt, and we shall hold it to that concession, without implying whether it was a necessary one.
The Board’s conclusion that the exemption was lost, even as to the 47 employees, stems, as we have said, from regulations under the FLSA. Although § 13(a) of that Act, 29 U.S.C. § 213(a), says that the minimum wage and maximum hour provisions “shall not apply with respect to * * * (6) any employee employed in agriculture,” the Regulations of the Department of Labor prescribe that “where an employee in the same workweek performs work which is exempt under this section 13(a)(6) and also engages in work to which the Act applies, not exempt under this or any other section of the Act, he is not exempt that week, and the wage and hour requirements of the Act are applicable.” 29 C. F.R. § 780.110 (1964). A further regulation indicates that nursery warehouse employees are exempt “provided they handle only products' grown by their employer and their activities * * * are subordinate to his [the employer’s] farming operations.” 29 C.F.R. § 780.178 (1964). Taking the two regulations together, if any of the 47 employees spent only part of a week processing goods as to only part of which Kelly Brothers was acting as a jobber, he was outside the FLSA’s agricultural exemption for that week.
After some backing and filling, see L. Maxcy, Inc., 78 N.L.R.B. 525 (1948), overruled by Clinton Foods, Inc., 108 N.L.R.B. 85 (1954), overruled by H. A. Rider & Sons, 117 N.L.R.B. 517 (1957), the Board, drawing on the example of the FLSA regulation, now takes the position that “employees who perform any regular amount of nonagricultural work are covered by the Act with respect to that portion of the work which is nonagricultural,” Olaa Sugar Co., 118 N.L.R.B. 1442, 1443 (1957). It is not clear just what the Board means by the final phrase, which it paraphrased in the election decision in the instant ease, 140 N.L.R.B. at 85 n. 7. The Olaa case did not demand such clarification; the issue was not the duty to bargain but rather the discriminatory discharge of a single employee whose duties, half of which were nonagricultural, were the same throughout the year. But the instant decision must mean that the Board takes the view that if a man engages to more than a de minimus extent in activities not within the FLSA agricultural exemption, he is subject to the National Labor Relations Act at least for any function (here the warehouse work) in the course of which he performs non-exempt activities and perhaps for the entire period in which he performs that function.
The Board justified this in Olaa on the bases “that Congress intended the Board to apply the law as established under that [Fair Labor Standards] Act” and “to follow the rules laid down by the courts, if not by the Department of Labor, under that Act”; that “considerations of comity between two agencies of the Government make it desirable that the view of the agency most often concerned with a problem be respected by the agency to which the problem is relatively incidental”; and that “the same principles of policy and statutory construction which motivated judicial construction of the Fair Labor Standards Act would appear to apply with equal force to the National Labor Relations Act.” 118 N.L. R.B. at 1444. When the issue is whether particular work is or is not agricultural, these views are salutary and sound. But when the issue is whether a small amount of nonagricultural work converts one who would otherwise be “an agricultural laborer” under § 2(3) into one who is not, the questions “of policy and statutory construction” under the two acts are altogether different. Assignment of a man to covered wage and hour status under the FLSA for a particular workweek in which he has engaged in appreciable non-exempt work has no implications for other work weeks, or other men. Labor relations know no such watertight compartments. A ruling that the-47 employees are subject to organization: under the protection of the National Labor Relations Act for their warehouse activities will almost inevitably result, if the union is successful, in their being organized for weeks in the warehouse in which some or many may have no contact with purchased products; it may well extend the Act to field work performed during the winter and spring-seasons and perhaps, in practical import,, to field work the year round. To be sure there is nothing unlawful in the organization of persons engaged solely or predominantly in agricultural work, and we perceive the problems in reconciling the-Congressional policy in favor of exemption of agricultural labor from the protection of the Labor Relations Act with the desideratum that persons working alongside others not engaged in such, labor should not be excluded from the bargaining unit. But we see no reason for believing that, by regularly enacting riders incorporating the FLSA’s broad definition of agriculture, Congress meant to relieve the Board of the task of developing an approach to this question of mixed work that is suitable in the light of the principles, the policies and the administrative problems of the National Labor Relations Act, and instead to permit mechanical adoption of the practice developed by the Department of Labor to meet the altogether different problems of the FLSA — particularly when this would' often restrict an exemption which Congress intended to expand. The Board’s reliance on cases holding that a small percentage of annual time spent on work outside the definition of § 3(f) of the FLSA, such as our decision in Wirtz v. Jackson & Perkins Co., 312 F.2d 48, 51 (2 Cir.1963), will bring the wage and. hour provisions of that Act into play for particular men and work weeks, and on advice from the Department of Labor “that it considers all employees who work on mingled stock to be engaged in covered employment,” 140 N.L.R.B. at 84, was thus misplaced.
The Board reached an entirely permissible result in Rider, supra, 117 N.L.R.B. 517, where it applied the Act to employees spending 70% of their time at an .apple processing plant, only 5% of whose product was grown by the employer. 'These employees were primarily nonagricultural, and the Board did not say in that opinion that anything more than a de minimis amount of time on nonagricultural work would defeat the exemption; indeed, it explained, 117 N.L.R.B. at 5201 n. 4, “We find it unnecessary to lay down a general rule in this case as to what proportion of time spent in non.agrieultural work is necessary for inclusion in the unit.” Neither do we have .any quarrel with the actual decision in the Olaa case; Banez, the employee there in question, was a truck driver, who, .along with others, spent substantial time —at least 50%, see NLRB v. Olaa Sugar Co., 242 F.2d 714, 715, 722 n. 7 (9 Cir. 1957) —in hauling sugar cane grown by •other producers. Neither of those cases presented the problem here at issue where the 47 employees are solely agricultural laborers from June to December and are predominantly engaged in agricultural work for the balance of the .year.
Since the order sought to be ■enforced was based on a standard borrowed from the practice of the Fair Labor Standards Administrator, which we deem inappropriate for the resolution ■of the problem here at issue, we should be obliged at minimum to remand. SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). Fully recognizing the latitude for the framing of policies to meet this problem which the ■ Board requires, we are convinced that no standard reconcilable with the expressed will of Congress would authorize the instant order as regards the 47 employees. Taking their year round activity as a whole, this is almost completely agricultural. Even during the spring season, when alone they work alongside other employees, the proportion of their total time on non-exempt work is 14% on the figures used by the Board — since they are indoors only half the time — and more like 7% on a more reasonable computation, see fn. 3. Even if the order means that they are subject to the Act only for their warehouse work, the non-exempt proportion on the latter basis is 14% or less. Such small proportions are inadequate to tip the scales in favor of bringing these men, who would be regarded as farmers on any realistic view, within the National Labor Relations Act.
None of the judicial decisions relied on by the Board supports its position. Cases under the Fair Labor Standards Act are not truly apposite, for reasons already developed; and none of these, save possibly one phase of our Jackson & Perkins decision, see fn. 6, goes so far as the Board has gone here. NLRB v. Olaa Sugar Co., supra, held that the Board had erred in finding that a truck driver hauling about equal amounts of employer-grown and nonemployer-grown sugar was in no way engaged in agriculture, and remanded for the Board to determine what should be done about him in the light of that holding. In NLRB v. Tepper, 297 F.2d 280 (10 Cir.1961), the employees worked entirely in a farmer’s processing plant, almost all of whose products came from outside sources. Waldo Rohnert Co. v. NLRB, 322 F.2d 46 (9 Cir.1963), concerned employees who spent the greater portion of their time in a farmer’s seed mill, 75% of whose product, as the court found, was grown by other farmers. NLRB v. Sweetlake Land & Oil Co., 334 F.2d 220 (5 Cir.1964), sustained denial of the exemption as regards employees in a rice drying plant, 20% of whose rice came from outside producers. This last decision would give some support to the Board’s denial of exemption to the 106 spring employees of Kelly Brothers, but that issue is not before us and we therefore need not consider whether or not we would follow Sweetlake on its facts.
Our decision that Kelly Brothers was warranted in resisting organization of the 47 regular and three-season employees does not lead to the conclusion ihat the Board’s order is wholly invalid; indeed, respondent does not claim this. We think the Board may properly decide that when a union seeks to organize some persons as to whom the employer may lawfully resist and some as to whom, in view of Kelly Brothers’ concession, we shall assume it could not, the employer has committed an unfair labor practice if it engages in coercive or discriminatory tactics with respect to the latter, as Kelly Brothers seems to have done in a few instances here. Whether the Board may find a refusal to bargain under such circumstances is a different matter — if a union insists on speaking on behalf of persons for whom it cannot properly so insist, an employer cannot be faulted for refusing to bargain. In this case, however, respondent has conceded an obligation to bargain with the union as representing the seasonal employees, and the Board may therefore require this. We shall hold the case for sixty days for the presentation, on notice to respondent, of a revised order consistent with this opinion; unless such an order is submitted within that period, enforcement will be denied.
. “‘Agriculture’ includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities * * * the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.”
. The 1946 rider was the product of heated debate and of sharp conflict between the two houses, which unfortunately sheds relatively little light on its interpretation. As proposed by Representative Elliott of California and as adopted by the House, it would have banned the use of NLRB funds when a proposed unit was composed, in whole or in part, of agricultural laborers as that term was generously defined in the Social Security Act, a modified version of which is now 42 U.S.C. § 410(f), 92 Cong.Rec. 6689, 6692 (1946). After tbe rider bad been bitterly attacked before a subcommittee of the Senate Committee on Appropriations, Hearings on H.R. 679, 79th Cong., 2d Sess. 235, 239, 246 (1946), the Senate struck it out, 92 Cong.Rec. 7945. After protracted disagreement between the houses, the conflict was suddenly resolved by adoption of the rider incorporating the Fair Labor Standards Act definition and eliminating the provision as to “contamination” by a single agricultural worker. The House Report merely describes the compromise, H.Rep. 2578, which the House approved without debate, 92 Cong.Rec. 9494. In a brief debate pri- or to Senate approval it was stated that the NLRB had been consulted and accepted the revised rider which was far narrower than its predecessor; that the revised rider was confined to operations “on the farm”; and that the NLRB regarded this as producing “very minor” changes in existing law, 92 Cong.Rec. 951L-15. About all one can be sure of is that Congress wished some expansion in the agricultural exemption but not so much as the House rider would have afforded.
. The percent of warehouse time spent on purchased goods, which would seem a more relevant figure, is significantly lower. A Kelly Brothers’ witness testified that the percentage of purchased items to total items handled (as distinguished from their resale value) is only 14%. In addition, the evidence was that the warehouse work devoted to preparing (e. g., trimming, bagging, checking) homegrown items for sale was greater than that expended on purchased stock, which requires unloading but arrives in a far more advanced state of preparation.
. Kelly Brothers later unsuccessfully contended that the 106 employees hired only during the spring season were casual employees. See 140 N.L.R..B. at 85-86.
. See, e. g., William H. Elliott & Sons, 78 N.L.R.B. 1078 (1948); Michigan Peat, Inc., 127 N.L.R.B. 518 (1960); Snake River Trout Co., 129 N.L.R.B. 41 (1960).
. The record in that case does not translate the small annual totals of work on purchased stock into percentages for the particular employees and work weeks involved.
. The evidence indicated that the 30 regular employees spent 68% of their time in the fields, and that the three-seasons employees spent 77% of their time there. Even if we should follow the Board in taking the figure of 28% of gross sales represented by purchases from other growers as controlling, the proportion of the year round time of these workers spent on agricultural activities within the definition of § 3(f) becomes 91% and 93.6%, respectively. Use of the more likely 14% figure, see fn. 3, would raise these to 95.5% and 96.8%.
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_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Plaintiff-Appellee, v. Helen JENKINS, Defendant-Appellant.
No. 78-5088.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 13, 1978.
Decided Nov. 2, 1978.
James E. Roberts, Chief Federal Defender, Kenneth R. Sasse, Detroit, Mich., for defendant-appellant.
James K. Robinson, U. S. Atty., Ellen Ritteman, Detroit, Mich., for plaintiff-appellee.
Before WEICK and EDWARDS, Circuit Judges, and LAWRENCE, District Judge.
Honorable Alexander A. Lawrence, United States District Judge for the Southern District of Georgia, sitting by designation.
PER CURIAM.
Appellant Jenkins was convicted after a jury trial on a charge of smuggling goods into the United States, in violation of 18 U.S.C. § 545 (1976). She received a two-year sentence.
On appeal she contends that the customs regulation was so overbroad and vague that it denied defendant due process, that the jury instruction tended to shift the burden of proof to the defendant, and that the prosecutor improperly prejudiced the result by an accusation of an unrelated crime.
While 19 C.F.R. § 148.11 does contain broad language, 19 C.F.R. § 123.3, which deals specifically with customs relations between the United States and Canada and Mexico, provides such particularity as to make this argument valueless.
As to the jury instruction taken as a whole, we find no reversible error.
Recognizing that in the closing argument of the prosecutor a prejudicial assertion (that the goods sought to be imported may have been stolen) was injected, we nonetheless find no reason to reverse. When the trial judge had heard an objection to said comment, he offered defendant the opportunity to move for mistrial, which was rejected, and gave as a substitute a curative instruction which was agreed upon by defendant. We find no reversible error in proceeding with the trial under these circumstances.
The judgment of conviction is affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_appstate
|
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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
STATE CORPORATION COMMISSION OF the STATE OF KANSAS, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Telephone and Telegraph Company, General Telephone Company of Florida, Mountain States Telephone & Telegraph Company, Northwestern Bell Telephone and Pacific Northwest Bell Telephone Company, MCI Telecommunications Corporation, Bellsouth Corporation on Behalf of Its Operating Companies—Southern Bell Telephone and Telegraph Company, and South Central Bell Telephone Company; the Bell Atlantic Telephone Companies—the Bell Telephone Company of Pennsylvania, the Chesapeake & Potomac Telephone Companies of Maryland, Virginia, West Virginia, and District of Columbia, the Diamond State Telephone Company, and New Jersey Bell Telephone Company; the Ameritech Operating Companies-Illinois Bell Telephone Company, Indiana Bell Telephone Company, Michigan Bell Telephone Company, the Ohio Bell Telephone Company and Wisconsin Bell; the Nynex Telephone Companies—New York Telephone Company, and New England Telephone and Telegraph Company; Southwestern Bell Telephone Company, National Association of Regulatory Utility Commissioners, and Reservation Telephone Cooperative, et al., Intervenors.
No. 84-2259.
United States Court of Appeals, Tenth Circuit.
April 1, 1986.
Lee H. Woodard, Special Counsel, of Woodard, Blaylock, Hernandez, Pilgreen & Roth, Wichita, Kan. (Brian J. Moline, General Counsel, and James G. Flaherty, Staff Counsel, of Kansas Corporation Commission, Topeka, Kan., with him, on brief), for petitioner.
Linda L. Oliver, Counsel, F.C.C., Washington, D.C. (John E. Ingle, Deputy Associate General Counsel with her, on brief), for respondents.
Michael Boudin of Covington & Burling, Washington, D.C. (Elizabeth V. Foote with him, on brief for AT & T and Listed Intervenor Bell Operating Companies; also on brief were Thomas J. Reiman, Chicago, 111., and Alfred Winchell Whittaker, Washington, D.C., for Ameritech Telephone Companies; Judith A. Mayenes, W. Preston Granbery, and Robert B. Stechert, Basking Ridge, N.J., for AT & T; Daniel J. Whelan and David K. Hall, Washington, D.C., for Bell Atlantic Telephone Companies; William J. Byrnes, Washington, D.C., for MCI; Saul Fisher, White Plains, N.Y., and John B. Messenger, Washington, D.C., for NY-NEX Telephone Companies; Vincent L. Sgrosso, Atlanta, Ga., for BellSouth Telephone Companies; Michael C. Cavell, Topeka, Kan., for Southwestern Bell Telephone Co.; David S. Sather and Robert B. McKenna, Washington, D.C., for Mountain States Telephone and Telegraph Co., Northwestern Bell Telephone Co., and Pacific Bell Telephone Company), for intervenors.
David Cosson, Washington, D.C. (Paul G. Daniel with him, on brief, for The Reservation Telephone Cooperative, et al.; also on brief were Paul Rodgers, General Counsel, Charles D. Gray, Asst. Gen. Counsel, and Genevieve Morelli, Deputy Asst. Gen. Counsel, National Ass’n of Regulatory Utility Commissioners, Washington, D.C.), for intervenors.
William Malone, Stamford, Conn., James R. Hobson of Washington, D.C., and James V. Carideo, of counsel, Tampa, Fla., filed a brief, for intervenor General Telephone Co. of Florida.
Before SEYMOUR, SETH and BAL-DOCK, Circuit Judges.
SEYMOUR, Circuit Judge.
Petitioner challenges a declaratory order of the Federal Communications Commission (FCC or Commission). The order would preempt state utility commissions from altering the sampling periods employed by local telephone companies to separate the costs of equipment used in both interstate and intrastate service and to divide interstate revenues among themselves. We affirm.
I.
The FCC and state utility commissions regulate charges for interstate and intrastate service respectively. Appropriate rates depend largely upon the investment and operating costs of individual companies. Because many items of telephone equipment are used for both interstate and intrastate calls, allocating the cost of such equipment bears directly upon the rates customers will pay for each form of service. The process of “jurisdictional separations” determines how these costs are allocated for ratemaking purposes. Since 1947, separations have been accomplished using a manual developed over the years by the FCC and state utility commissions.
Jointly used equipment may be traffic sensitive or not. The cost of traffic sensitive equipment varies according to its use in either interstate or intrastate service, and it has generally been allocated on that basis. In contrast, the cost of non-traffic sensitive equipment remains constant irrespective of use. Such equipment includes telephones, wiring within customers’ homes or offices, and lines connecting individual telephones to local switching offices. The FCC has labored for years to develop an appropriate formula to allocate the costs associated with non-traffic sensitive equipment. Under the 1970 Ozark Plan, each local company sampled calls during a representative period to ascertain the relative amount of time that such equipment was used for interstate calls. The resulting figure is known as a subscriber line use ratio, or SLU. As a matter of policy, the separations manual then applied a formula which shifted approximately 3.3 percent of non-traffic sensitive costs to the interstate jurisdiction for every 1 percent of use. The percentage figure generated by the formula and applied to separate a carrier’s total non-traffic sensitive costs is known as its subscriber plant factor, or SPF.
Between 1970 and 1982, the market for long distance services became markedly competitive. Interstate calling increased substantially in relation to intrastate use, and the multiplier aspect of the SPF formula shifted more non-traffic sensitive costs into the interstate jurisdiction. In response to these developments, the FCC convened a federal-state joint board to reexamine separations policy, including the treatment of non-traffic sensitive costs. The Commission ultimately adopted the joint board’s proposals with minor modifications. See Amendment of Part 67 of the Commission’s Rules and Establishment of a Joint Board, 89 F.C.C.2d 1 (1982). The resulting regulations were affirmed on review. See MCI Telecommunications Corp. v. FCC, 750 F.2d 135 (D.C.Cir.1984).
Concluding that increases in long distance calling may have unduly inflated the non-traffic sensitive costs allocated to interstate use, the FCC determined that carriers’ SPF should be frozen at 1981 levels pending the development of comprehensive revisions in separations policy. See id. at 139, 141. An accompanying amendment to the separations manual specified that a telephone company’s average 1981 SLU ratio should be factored into the SPF formula in order to accomplish this objective. Although the amendment itself did not fix the representative period to be used in calculating SLU, the freeze order states that all allocative variables should remain constant, see Amendment of Part 67, 89 F.C.C.2d at 6, and that carriers would continue to conduct cost studies and calculate SPF as they had done in the past, see id. at 14-15. The Commission left open for joint board consideration whether seven-day usage studies should replace five-day studies. See id. at 22. Based upon these assumptions, the freeze order included specific figures for the Bell system’s frozen SPF and SLU. See id. at 5 & n. 12.
The order issued in this case emerged from a subsequent dispute between Southern Bell and General Telephone of Florida (GTF). Each company provides local telephone service and handles interstate calls as well. Since 1970, Southern Bell had administered a single pool of interstate revenues under what is known as a settlement agreement between the two companies. Under this agreement, Southern Bell reimbursed GTF for its interstate costs in accordance with the separations manual and the SPF formula in particular. In 1980, seeking to increase its share of interstate revenues, GTF requested that seven-day rather than five-day studies be used for the purpose of calculating SPF. Southern Bell refused. GTF then persuaded the Florida Public Service Commission to require that Southern Bell accept seven-day studies. Following Bell’s appeal to state court, the Florida Commission obtained a remand and reversed its initial decision with respect to interstate settlements.
Southern Bell had also petitioned the FCC to preempt Florida from ordering carriers to adopt new sampling periods for interstate settlement purposes. Although Florida had reversed itself, three other states had recently required the use of seven-day studies for separations purposes and others appeared ready to follow. Adjustments of this kind would increase carriers’ SPF and, as a result, the proportion of their non-traffic sensitive costs allocated to interstate use. Accordingly, after soliciting public comment, the FCC concluded that declaratory action was called for and ruled that state regulatory commissions were preempted from prescribing the time period to be used by carriers in calculating SPF for either interstate settlement or jurisdictional separations purposes. See Establishment of Interstate Toll Settlements and Jurisdictional Separations Requiring the Use of Seven Calendar Day Studies by the Florida Public Service Commission, 93 F.C.C.2d 1287 (1983). The Commission based its ruling upon statutory authority conferred by the Communications Act of 1934, 47 U.S.C. §§ 151 et seq. (1982), and upon the conclusion that state regulation would both violate the FCC’s freeze order and frustrate uniform federal regulation of rate base allocation. The preemption order itself expressed no opinion on the merits of any particular time period which carriers might use to calculate SPF, see 93 F.C.C.2d at 1287 n. 1, but left the matter for joint board resolution.
Following requests for reconsideration, including one filed by petitioner, the FCC reaffirmed both the merits of its earlier ruling and the propriety of proceeding via declaratory adjudication. See Establishment of Interstate Toll Settlements and Jurisdictional Separations, 98 F.C.C.2d 777 (1984). The State Corporation Commission of Kansas then filed a petition for review in this court, challenging that portion of the preemption order which pertains to jurisdictional separations.
II.
The Supremacy Clause of the Constitution establishes the primacy of federal over state law. State legislative and regulatory provisions may be preempted (1) when Congress, in the course of enacting a federal statute, has expressed its intention to preempt; or (2) when it is clear, in the absence of such a declaration, that Congress has intended to occupy an entire field of regulation; or (3) when the enforcement of state law would conflict with federal law or otherwise frustrate achievement of Congressional objectives. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 2700, 81 L.Ed.2d 580 (1984); Michigan Canners & Freezers Association v. Agricultural Marketing & Bargaining Board, 467 U.S. 461, 104 S.Ct. 2518, 2523, 81 L.Ed.2d 399 (1984); Guschke v. City of Oklahoma City, 763 F.2d 379, 383 (10th Cir.1985).
In this case, it is sufficient to consider whether the FCC’s own decision to preempt is Congressionally sanctioned and reasonable.
“Federal regulations have no less preemptive effect than federal statutes. Where Congress has directed an administrator to exercise his discretion, his judgments are subject to judicial review only to determine whether he has exceeded his statutory authority or acted arbitrarily____ When the administrator promulgates regulations intended to pre-empt state law, the court’s inquiry is similarly limited:
‘If [h]is choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.’ ”
Fidelity Federal Savings & Loan Association v. De La Cuesta, 458 U.S. 141, 153-54, 102 S.Ct. 3014, 3022-23, 73 L.Ed.2d 664 (1982) (citation omitted) (quoting United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961)); Crisp, 467 U.S. at 699,104 S.Ct. at 2700.
The powers delegated to the FCC encompass plenary authority to regulate jurisdictional separations. Section 221(c) of the Communications Act states that the Commission may “classify the property” of “carriers engaged in wire telephone communication” and “determine what property of said carrier[s] shall be considered as used in interstate or foreign telephone toll service.” 47 U.S.C. § 221(c). In affording the states and affected carriers an opportunity to be heard, see id., Congress implied that the Commission’s final decisions are indeed binding. Cf. Shields v. Utah Idaho Central Railroad, 305 U.S. 177, 182, 59 S.Ct. 160, 163, 83 L.Ed. 111 (1938) (construing comparable provision of Interstate Commerce Act).
In 1971, Congress amended the Communications Act to provide for expanded state involvement in the formulation of separations policy. See Federal State Communications Joint Board Act, Pub.L. No. 92-131, 85 Stat. 363 (1971) (codified at 47 U.S.C. § 410). Section 410(c) establishes a federal-state joint board procedure to advise the FCC on separations matters, and authorizes the participation of state board members in Commission deliberations. Under this section, however, the states are not entitled to vote on final separations decisions. See id.; see also S.Rep. No. 362, 92d Cong., 1st Sess. 5, reprinted in 1971 U.S.Code Cong. & Ad.News 1511, 1515; H.R.Rep. No. 429, 92d Cong., 1st Sess. 3 (1971). The provision of additional procedural mechanisms for state input confirms the purely advisory role of the states. See, e.g., National Association of Regulatory Utility Commissioners v. FCC, 746 F.2d 1492, 1499-1500 (D.C.Cir.1984) (NARUC); North Carolina Utilities Commission v. FCC, 552 F.2d 1036, 1043, 1046 (4th Cir.) (NCUC II), cert. denied, 434 U.S. 874, 98 S.Ct. 222, 54 L.Ed.2d 154 (1977). The FCC retains ultimate authority to prescribe uniform separations procedures. E.g. Illinois Bell Telephone Co. v. Illinois Commerce Commission, 740 F.2d 566, 567 (7th Cir. 1984).
The authority conferred by sections 221(c) and 410(c) enables the FCC to carry out its basic function under the Act: to govern “all interstate and foreign communication by radio or wire.” See 47 U.S.C. §§ 151,152(a). As one of its specific responsibilities, the Commission superintends the rates that carriers charge for interstate telephone calls. See id. §§ 201-205. Appropriate rates depend upon carriers’ revenue requirements, which in turn derive from whatever costs are assigned to the interstate jurisdiction. The separations process determines this allocation. FCC authority under sections 221(c) and 410(c) is thus a vital adjunct to the Commission’s ratemaking powers under the Act.
The FCC’s decision to preempt an area of separations regulation represents a reasonable exercise of its statutory authority. Whenever state regulation would frustrate achievement of a federal regulatory objective, FCC jurisdiction is paramount and conflicting state enactments must yield. Computer & Communications Industry Association v. FCC, 693 F.2d 198, 214-15 (D.C.Cir.1982) (Computer II), cert. denied, 461 U.S. 938, 103 S.Ct. 2109, 77 L.Ed.2d 313 (1983); accord NCUC II, 552 F.2d 1036; New York Telephone Co. v. FCC, 631 F.2d 1059 (2d Cir.1980); Puerto Rico Telephone Co. v. FCC, 553 F.2d 694 (1st Cir.1977). “FCC regulations must preempt any contrary state regulations where the efficiency ... of the national communications network is at stake____” NCUC II, 552 F.2d at 1046; see also North Carolina Utilities Commission v. FCC, 537 F.2d 787, 793 (4th Cir.) (NCUC I) (state order impairing policy for connection of customer equipment with interstate network), cert. denied, 429 U.S. 1027, 97 S.Ct. 651, 50 L.Ed.2d 631 (1976).
In imposing an SPF freeze, the Commission had already determined that effective governance of interstate service demanded at least a temporary halt in the growth of non-traffic sensitive costs being allocated to interstate service. State-ordered modifications in the sampling periods previously employed by carriers to calculate SPF would alter this factor. Switches from five- to seven-day studies, such as Florida and Kansas have purported to mandate, would shift millions of dollars annually into the interstate jurisdiction in violation of the freeze order’s express purpose. “[A]ny growth in SPF,” the FCC’s preemption order concluded, “would result in the inequitable treatment of interstate users.” 93 F.C.C.2d at 1303.
In forbidding state regulation, the Commission specifically construed its original freeze order as permitting only certain carrier-initiated changes in the factors which yield SPF. See id. at 1303-04. This interpretation is entitled to deference on review unless it is plainly wrong or inconsistent with the FCC’s regulation. See United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977); Devon Corp. v. FERC, 662 F.2d 698, 700 (10th Cir.1981). The text of the order reveals a clear and unequivocal intent that not only SPF, but all of the variables which generate this figure, should be held constant. The Commission further contemplated that telephone companies would continue to conduct usage studies, select sampling periods for that purpose, and otherwise apply the SPF formula as they had done in the past. Subsequent joint board proceedings were to address whether the length of carrier sampling periods should be directly prescribed. State regulation would plainly thwart the FCC’s effort to maintain all aspects of the status quo while the joint board deliberated. The freeze order thus provides a sound basis for federal preemption.
Petitioner cannot avoid the order’s import by focusing exclusively upon the separations manual and its failure to supply a definitive representative period. In an analogous case, New York Telephone v. FCC, 631 F.2d 1059, the Commission had declined to impose a tariff of its own for certain interstate services. Even so, an alternative form of regulation requiring the submission of proposed tariffs for FCC approval was no less effective in preempting tariffs unilaterally imposed by the states. See id. at 1066-67; see also Computer II, 693 F.2d at 217. Although the separations manual does not fix the length of carrier sampling periods, the freeze order forecloses state regulatory commissions from doing so themselves.
The FCC’s present exercise of jurisdiction does not improperly invade state authority to regulate intrastate communications. Section 152 of the Communications Act divides regulatory prerogatives between federal and state authorities: the Act and the FCC’s jurisdiction apply to “all interstate and foreign communications,” see 47 U.S.C. § 152(a), but generally not to “charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service,” see id. § 152(b). This section has been uniformly interpreted as depriving the FCC of jurisdiction over local matters only when “their nature and effect are separable from and do not substantially affect” the regulation of interstate communications. NCUC I, 537 F.2d at 793; accord Computer II, 693 F.2d at 214-15; New York Telephone, 631 F.2d at 1065-66; Puerto Rico Telephone, 553 F.2d at 699-700. Before Congress passed the Communications Act, the so-called Shreveport rate case, Houston, E & W Texas Railway v. United States, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914), had upheld an Interstate Commerce Commission order that local railroad rates may not undercut rates for comparable interstate service. Section 152(b) does no more than confirm that the states retain jurisdiction over purely local calls, notwithstanding any indirect economic effect upon the interstate market of the kind present in Shreveport. NARUC, 746 F.2d at 1500; Computer II, 693 F.2d at 215-16 & n. 99. State regulation which formally restricts only intrastate communications may not stand when it encroaches substantially upon federal authority over interstate matters. E.g., NCUC I, 537 F.2d at 793.
Jurisdictional separations involve a clear overlap of federal and state concerns. The relative apportionment of equipment costs bears directly upon the ratemaking function of both the FCC and state utility commissions. “The determination of rate base at the federal level ... has a strong relation to the rates which are charged at the local level.” S.Rep. No. 362 at 3, 1971 U.S.Code Cong. & Ad.News at 1513. Conversely, if the states were permitted to increase SPF via the prescription of carrier sampling periods, the interstate rate base would increase proportionately as a result. Rate adjustments would be needed to cover these additional costs. State regulation would thus encroach upon core federal authority over interstate communications, as well as frustrate the established policy that SPF remain constant. Although costs rather than physical facilities are at issue in this case, the distinction in no way diminishes the potential for conflict. See Virginia State Corporation Commission v. FCC, 737 F.2d 388, 396 (4th Cir.1984); see also Computer II, 693 F.2d at 216. Dual regulation is impossible under the circumstances of this case.
Section 221(b) affords the states no further protection from federal preemption. The language of this section is quite sweeping: it provides that the FCC may not exercise jurisdiction over state-regulated charges, facilities, or other matters “for or in connection with ... telephone exchange service ... even though a portion of such exchange service constitutes interstate or foreign communication." 47 U.S.C. § 221(b). The section's legislative history, however, establishes beyond doubt that it was intended only to maintain state regulation of local exchange services that happen to overlap state lines. Computer II, 693 F.2d at 216-17; New York Telephone, 631 F.2d at 1064-65; Puerto Rico Telephone, 553 F.2d at 698-99; NCUC II, 552 F.2d at 1045; NCUC I, 537 F.2d at 795.
The FCC’s resort to declaratory adjudication does not vitiate the effectiveness of preemption. The choice between rule-making and adjudication is committed to the sound discretion of administrative agencies governed by the Administrative Procedure Act (APA). NLRB v. Bell Aerospace Co., 416 U.S. 267, 290-95, 94 S.Ct. 1757, 1769-72, 40 L.Ed.2d 134 (1974). Preemption decisions by the FCC are no exception. See, e.g., New York State Commission on Cable Television v. FCC, 669 F.2d 58, 62 n. 9 (2d Cir.1982); NCUC I, 537 F.2d at 790-91 & n. 2; see also Brookhaven Cable Television, Inc. v. Kelly, 573 F.2d 765, 768 (2d Cir.1978), cert. denied, 441 U.S. 904, 99 S.Ct. 1991, 60 L.Ed.2d 372 (1979).
The decision to proceed via declaratory adjudication was not an abuse of discretion under the circumstances of this case. The APA authorizes the issuance of declaratory orders “to terminate a controversy or remove uncertainty.” 5 U.S.C. § 554(e). Because the FCC’s freeze order did not specify the sampling periods to be used in calculating SPF, states such as Kansas have sought to fill a perceived gap in the federal regulatory scheme. Federal preemption serves to clarify the boundary of state regulatory power in terms of the FCC’s paramount authority over separations matters and the existing policy that SPF should remain constant. The Commission neither defined “representative period” nor otherwise amended the separations manual. The order issued in this case instead proscribed state interference with carriers’ already established methods of calculating SPF under the manual and the freeze order. FCC preemption maintained the status quo while a federal-state joint board developed proposals to amend the manual. Only later did the Commission decide, through more formal procedures, that seven-day studies should be used to calculate SPF once the freeze had expired. The FCC’s preemption order enacted no new regime of rights and duties which would warrant the procedural safeguards of formal rulemaking. See Batterton v. Marshall, 648 F.2d 694, 705 n. 58 (D.C.Cir. 1980) (court will look beyond labels to ascertain intent and effect of agency action). Moreover, the Commission issued its order only after providing public notice and an opportunity for interested parties, including Kansas, to comment.
Similar considerations dispose of the contention that the FCC was obliged to obtain the recommendation of a joint board before preempting. Section 410(c) requires such consultation, but only when the Commission engages in formal rulemaking. Because the FCC formulated no substantive rule to govern the separations process, there was no need to submit the question of preemption to a joint board.
III.
For the reasons stated in this opinion, the order of the Federal Communications Commission preempting state utility commissions from requiring local telephone companies to adopt any particular SPF sampling period is affirmed.
. See Separations Manual (1971 ed.); Prescription of Procedures for Separating and Allocating Plant Investment, Operating Expenses, Taxes and Reserve Between the Interstate and Intrastate Operations of Telephone Companies, 26 F.C.C.2d 247 (1970) (amending the manual and incorporating it by reference in the Code of Federal Regulations). The current separations manual is codified at 47 C.F.R. §§ 67.1 et seq. (1985).
. The amendment modifies ¶ 23.444 of the 1971 separations manual to read as follows:
"The cost of subscriber line outside plant in Category 1.3 assigned to message telephone services in the study area, as determined in ¶ 23.444, is apportioned between state and interstate operations by the application, to the cost of such plant, of a subscriber plant factor, which is the sum of the following:
(a) Annual average interstate subscriber line use (SLU), for the calendar year 1981, representing the interstate use of the subscriber plant as measured by the ratio of interstate holding time minutes of use to total holding time minutes of use applicable to traffic originating and terminating in the study area, multiplied by .85, the nationwide ratio of (1) subscriber plant costs assignable to the exchange operation per minute of exchange use to (2) total subscriber plant cost per total minute of use of subscriber plant, plus
(b) Twice the annual average interstate subscriber line use ratio for the study area for the calendar year 1981, multiplied by the annual average composite station rate ratio used for the calendar year 1981 (ratio of (1) the nationwide, industry-wide average interstate initial 3-minute station charge at the study area average interstate length of haul to (2) the nationwide, industry-wide average total toll initial 3-minute station charge at the nationwide average length of haul for all toll traffic for the total telephone industry).”
89 F.C.C.2d at 32 app. A. (footnote omitted) (emphasis in original to indicate modifications).
. The FCC later established revised separations procedures based upon further joint board proposals. See Amendment of Part 67, 96 F.C.C.2d 781 (1984), review pending sub nom. Rural Tel. Coalition v. FCC, No. 84-1110 (D.C.Cir.). Under this plan, the SPF freeze would remain in effect through 1985, when a transition would begin to a formula designed to allocate a flat 25% of non-traffic sensitive costs to interstate service. The Commission ordered the use of seven-day studies for separations purposes, but on a prospective basis only. The SPF freeze would remain unaffected by this aspect of the decision.
. Petitioner further contends that § 11.18(h) of the manual authorizes the states to decide which joint costs shall ultimately be included in intrastate rate proceedings. This argument was not raised before the FCC and is therefore not properly presented on review. See Washington Ass'n for Television & Children v. FCC, 712 F.2d 677, 680-84 (D.C.Cir.1983); 47 U.S.C. § 405 (1982). In any case, the argument is patently unsound. Section 11.18 provides that both federal and state regulators may decide that certain costs claimed by carriers are not appropriate for recovery from customers, yet the provision properly applies only after the separations procedure set forth in the manual has already allocated total costs between interstate and intrastate jurisdictions. Any other interpretation would eviscerate the separations process mandated by the manual.
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
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
Robert GUY, Plaintiff-Appellant, v. TRAVENOL LABORATORIES, INC., Defendant-Appellee.
No. 86-2553.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 13, 1986.
Decided March 4, 1987.
Phillip Gregory Kelley (Lentz, Ball & Kelley, P.A., Asheville, N.C., on brief) for plaintiff-appellant.
Philip Marshall Van Hoy (Mullins & Van Hoy, Charlotte, N.C., Maynard, Youngs, Associate Gen. Counsel, Deerfield, 111., Travenol Laboratories, Inc. on brief), for defendant-appellee.
Before ERVIN and WILKINSON, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
WILKINSON, Circuit Judge:
Robert Guy brought this wrongful discharge action after being fired from his supervisory position at Travenol’s North Carolina drug manufacturing plant, allegedly for refusing to falsify certain production and control records. Travenol denied those allegations in its answer and responded that, under North Carolina’s doctrine of employment at will, an employer may fire an employee for virtually any reason. The district court granted defendant’s motion to dismiss for failure to state a claim under North Carolina law. We think the district court properly interpreted North Carolina law, and we affirm its judgment.
I.
In his complaint, Guy alleged that Travenol employees were falsifying certain records “pertaining to the quality and quantity” of pharmaceuticals that drug manufacturers are required to keep under the Food and Drug Administration regulations. 21 C.F.R. § 211.180-198. Falsification of these records may violate the Food, Drug, and Cosmetic Act. 21 U.S.C. § 301, et seq. (1972). When Guy allegedly notified his supervisors that they were violating federal law, he was told to cooperate. When he allegedly refused to falsify the records to exclude wasted and defective drugs, he was fired. Travenol denies these allegations. Because the complaint was dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, however, these alleged facts must be accepted as true. In his prayer for relief, plaintiff claims compensatory damages of $12,138 and punitive damages of $1,000,000.
II.
Federal courts must consider the availability of any wrongful discharge suit in North Carolina against the backdrop of North Carolina’s manifest commitment to the doctrine of employment at will. The North Carolina Supreme Court first recognized the doctrine in the 19th century and has reaffirmed its contemporary vitality. The state Supreme Court has applied it even in cases where the employer had indisputably offered permanent employment. Its cases admit but two exceptions, neither of which is applicable here.
In its pristine form, the doctrine of employment at will permits an employee to be discharged for almost any reason. As a matter of tort law, the doctrine precludes an action for wrongful discharge. Tuttle v. Kernersville Lumber Co., 263 N.C. 216, 139 S.E.2d 249, 251 (1964); Miller v. Ruth’s of North Carolina, Inc., 69 N.C.App. 672, 318 S.E.2d 2, 4 (1984). As a matter of contract law, the doctrine precludes the unilateral representations of an employer from forming part of the contract of employment. Smith v. Monsanto Co., 71 N.C.App. 632, 322 S.E.2d 611, 613 (1984); Still v. Lance, 279 N.C. 254, 182 S.E.2d 403, 406 (1971).
The doctrine of employment at will apparently began in Edwards v. Seaboard R.R. Co., where the court stated that an employee and employer were free “to sever their relationship at will, for their own convenience.” 121 N.C. 490, 28 S.E. 137, 137 (1897). During the following ninety years, the North Carolina Supreme Court has continuously accorded employers broad freedom in employment decisions. For example, when an employer offered an employee a “regular permanent job”, the court found an at will employment relationship. Malever v. Kay Jewelry Co., 223 N.C. 148, 25 S.E.2d 436, 436 (1943).
Even where an employer agreed that an employee would “have a permanent job as long as (his) work was satisfactory,” the court again found the employment to be at will. Tuttle v. Kernersville Lumber Co., 263 N.C. 216, 139 S.E.2d 249, 250 (1964). On one occasion, an employee was told that, if he wanted to make a career with the company, he had to attend a three-week training session out of town. Five days after arriving at the session, the employee was fired without cause. The court said that the employment was terminable at will, even if the employer had offered a job “upon a permanent basis.” Howell v. Commercial Credit Corp., 238 N.C. 442, 78 S.E.2d 146, 147 (1953).
The North Carolina Supreme Court summed up the doctrine when it said “a contract of employment, even though it expressly refers to the employment as ‘a regular, permanent job,’ is terminable at the will of either party irrespective of the quality of performance by the other party.” Still v. Lance, 279 N.C. 254, 182 S.E.2d 403, 406 (1971). North Carolina continues to adhere to this version of the “at will” doctrine. In its latest case on the subject, the state Supreme Court reaffirmed the settled rule that an “employment contract in North Carolina is terminable at the will of either party.” Presnell v. Pell, 298 N.C. 715, 260 S.E.2d 611, 616 (1979).
The North Carolina Court of Appeals has built upon the state Supreme Court’s strong support for the concept. In one case, the employee handbook provided that laid-off employees would be hired back according to seniority. When the employer laid off some employees with the possibility of recall within the year, it subsequently hired independent contractors and temporary help rather than rehire the idled employees. The court held that the laid-off workers had no cause of action because their employment was terminable at will. Smith v. Monsanto Co., 71 N.C.App. 632, 322 S.E.2d 611 (1984).
In Bennett v. Eastern Rebuilders, Inc., 52 N.C.App. 579, 279 S.E.2d 46 (1981), a union employee was promoted to management. Because of the employee’s concern over job security, the employer agreed to demote her to her old position, rather than fire her, if her work proved unsatisfactory. The company subsequently fired the employee without complying with this transfer agreement. Although the employee had explicitly bargained for job security, the court granted only nominal damages, finding that the employer was entitled to demote the employee and then fire her for any reason.
As these cases reveal, the at will doctrine commands long and continued support in the North Carolina courts even in what may appear unusual and extenuating circumstances. The courts of North Carolina have recognized that every adverse employment decision presents a potentially litigable conflict of fact and perception, that the judicial resources of North Carolina should not generally be expended on such matters, and that the freedom of employers to dismiss employees perceived as unreliable or incompetent should not be lightly circumscribed.
It is, of course, immaterial whether a federal court sitting in diversity subscribes to North Carolina’s choice in this perennial area of state law controversy. The North Carolina Supreme Court has recognized but two exceptions to the doctrine: an employee has a wrongful discharge suit only when he obtains an employment contract of fixed duration or gives some extra consideration, such as a change of residence or the dismissal of a personal injury claim, in return for permanent employment. Still, 182 S.E.2d at 405; Tuttle, 139 S.E.2d at 251. While Guy alleges not that he was arbitrarily discharged, but that he was discharged for refusal to perform a wrongful act, his lawsuit cannot be viewed apart from a near-century of commitment in the state of North Carolina to the doctrine of employment at will. Indeed, Guy pleads the very tort and contract claims that the doctrine has always been thought to proscribe.
III.
Confronted with this body of precedent, Guy relies upon the recent case of Sides v. Duke Hospital, which he believes creates a public policy exception to the at will doctrine. In Sides, the North Carolina Court of Appeals held that an employer cannot fire an employee for refusing to commit perjury. 74 N.C.App. 331, 328 S.E.2d 818 (1985). As the Sides opinion and three subsequent appellate cases recognize, this decision created only a narrow public policy exception to the doctrine of at will employment. Because it is a limited exception, most readily explained as an exercise of the judiciary’s supervisory powers over the proper conduct of court proceedings, Sides does not provide Guy with a viable cause of action.
In Sides, a nurse alleged that she was fired because she refused to perjure herself both as a deponent and a witness in a medical malpractice case. The court’s opinion emphasized the need to prevent perjury and preserve judicial integrity. As the court noted, perjury is “an affront to the integrity of our judicial system, an impediment to the constitutional mandate of the courts to administer justice fairly, and a violation of the- right that all litigants in this State have to have their cases tried upon honest evidence fully given.” Sides, 328 S.E.2d at 823-24. To deny a cause of action in that case would have been a “grave disservice to the public and the system of law that we are sworn to administer.” Sides, 328 S.E.2d at 824.
Despite some language dealing with the general need to uphold the law and support public policy, the court’s holding was very specific: “no employer in this State, notwithstanding that an employment is at will, has the right to discharge an employee ... because he refuses to testify untruthfully or incompletely in a court case.” Sides, 328 S.E.2d at 826. The holding rests on the belief that the need to protect the judicial process from the perjured testimony of an intimidated witness outweighs the employer’s right to fire an employee. This limited exception to the doctrine is not surprising. The courts obviously have a special obligation to promote the integrity and truthfulness of the judicial process.
The Sides case is limited, however, by more than its holding and its language. Three subsequent appellate cases reaffirm the narrow scope of that decision. In Walker v. Westinghouse Elec. Co., 77 N.C. App. 253, 335 S.E.2d 79 (1985), the North Carolina Court of Appeals demonstrated its reluctance to expand the Sides exception. In that case, an employee alleged that he was fired in retaliation for raising safety concerns relating to the Westinghouse plant. Although North Carolina has a statute protecting employees who file a complaint with the state OSHA commission, N.C.Gen.Stat. § 95-130(6) (1981), the court was unwilling to establish a general cause of action for any employee who raised a safety concern.
The court characterized Sides as granting a cause of action to employees “on the grounds that the public policy requiring truthfulness before our courts outweighed the employer’s freedom to discharge employees at will.” Walker, 335 S.E.2d at 85. Although the Walker court ultimately concluded that the employee had not presented sufficient evidence to survive the employer’s motion for summary judgment, the decision does reveal the court’s unwillingness to restrict the “at will” doctrine. See also Rupinsky v. Miller Brewing Co., 627 F.Supp. 1181, 1185 (W.D.Pa.1986) (noting that, in Walker, North Carolina Court of Appeals “recently qualified its decision in Sides.”)
In Trought v. Richardson, 78 N.C.App. 758, 338 S.E.2d 617 (1986), a nurse alleged that she was fired for transferring two licensed practical nurses from the emergency room. She claimed that the “at will” doctrine did not apply because in removing the nurses she was following state law, here the state Nursing Practice Act. The court, however, stated that “we do not believe this allegation is sufficient to come within or enlarge the exception created by Sides.” Trought, 338 S.E.2d at 619. The Trought decision, which the district court in this case found dispositive of the motion to dismiss, held that an employee does not come within the Sides exception by alleging that she was fired for attempting to comply with state law.
The North Carolina Court of Appeals continued to limit the new exception in Hogan v. Forsyth Country Club Co., 79 N.C.App. 483, 340 S.E.2d 116 (1986). In Hogan, several female employees claimed that they were fired in retaliation for complaining about the sexual advances of a fellow male employee. The employees argued that Sides allowed a wrongful discharge suit whenever an employee is terminated in violation of public policy. Hogan quickly rejected this interpretation, noting that “though Sides spoke in broad terms of ‘public policy,’ its holding was actually very narrow.” Hogan, 340 S.E.2d at 125. While noting that the claim appeared cognizable under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq., the court rejected the employees’ request to recognize a new public policy exception to the doctrine of employment at will in North Carolina. Id., 340 S.E.2d at 126.
In sum, the Sides opinion and the holdings of three subsequent appellate cases reveal that, instead of seriously eroding the at will doctrine, Sides was intended to be a limited perjury exception. At this point, the law of North Carolina is well-established. An employer may terminate any employee for any reason unless the employee has a specific duration contract, gave some additional consideration for permanent employment, or lost his job for refusing to give perjured testimony. Because his complaint does not come within any of these exceptions, Guy has failed to state a cause of action under state law.
IV.
Having failed to allege a cause of action under state law, Guy offers a more expansive argument. According to Guy, this court should create a cause of action because, if employees can be fired for complying with the Food, Drug, and Cosmetic Act, 21 U.S.C. § 301, et seq., they will be more willing to falsify records, which would impair the Food and Drug Administration’s enforcement of the Act. Whatever the appeal of this argument, Guy is presenting it to the wrong forum. A federal court sitting in diversity simply cannot compel a state to provide a cause of action in tort to supplement enforcement of a federal statute.
Despite Guy’s warnings to the contrary, creating a state recovery in tort is not the only way to protect the public against the sale of impure drugs. Congress has enacted a detailed statutory scheme to enforce the Act’s prohibition of the sale of adulterated drugs. Under this scheme, drug companies must manufacture their products in accordance with the FDA’s regulations on “current good manufacturing practices.” 21 U.S.C. §§ 331, 351(a)(2)(B) (1972). In addition to regulating the actual manufacture of drugs, these regulations require drug companies to keep accurate production and control records. 21 C.F.R. § 211.180-198. To ensure that drug companies comply with these regulations, the Act provides the FDA with broad statutory authority to inspect a manufacturer’s plant and examine any “records, files, papers, processes, controls and facilities.” 21 U.S.C. § 374(a)(1) (Supp.1986).
If the agency discovers a violation, the Act provides numerous remedies. For example, the FDA may seize the adulterated drugs. 21 U.S.C. § 334(a) (Supp.1986). The agency may also seek an injunction against any manufacturing practice that violates the Act. 21 U.S.C. § 332(a) (1972). Most importantly, producers of adulterated drugs are subject to possible criminal sanctions of up to three years imprisonment and a maximum fine of $10,000. 21 U.S.C. § 333(b) (1972).
In sum, the Food, Drug, and Cosmetic Act establishes a complex enforcement scheme. Under this scheme, Travenol is subject to unannounced agency inspections. The FDA may seize any impure or adulterated drugs, and may seek to enjoin any company practice in violation of the statute. Any Travenol employees who violate the statute by falsifying required records are subject to criminal sanctions.
According to Guy, this federal enforcement scheme is incomplete unless he is allowed to bring a wrongful discharge suit. Because, as we have noted, North Carolina has been reluctant to recognize such an action, Guy is essentially arguing that the state should be compelled to supplement the Act’s enforcement scheme by providing a wrongful discharge action. North Carolina, however, has no obligation to use its tort law system to supplement the enforcement of a federal statute. As the Supreme Court has noted, “the State’s interest in fashioning its own rule of tort law is paramount to any discernible federal interest....” Martinez v. California, 444 U.S. 277, 282, 100 S.Ct. 553, 557, 62 L.Ed.2d 481 (1980) (upholding state statute granting immunity to parole board employees for any injury resulting from their decision to release a prisoner).
Congress itself has declined to pass an anti-retaliation statute to protect employees who refuse to violate the Food, Drug, and Cosmetic Act. Congress was apparently aware of the potential risks faced by employees who refuse to cooperate with an employer’s violation of a statute. Several statutory schemes provide that, if an employee is fired for instituting or assisting an agency investigation of a suspected statutory violation, the employee must be reinstated with back pay. See, e.g., Federal Water Pollution Control Act, 33 U.S.C. § 1367 (1986); Federal Surface Mining Control and Reclaimation Act of 1977, 30 U.S.C. § 1293 (1986); Energy Reorganization Act of 1974, 42 U.S.C. § 5851.
Congress could have protected Guy by establishing a similar procedure by which drug company employees could notify the FDA of a violation without fear of retaliatory termination. If such a statute had been passed, Guy could have refused Travenol’s demand to violate the FDA regulations, reported the violation to the agency, and been protected from a retaliatory firing. Rather than provide this employee protection, Congress has decided to enforce the Food, Drug, and Cosmetic Act through a different statutory scheme. We are loathe to require the states to create a protective scheme in tort where Congress has declined to pass such legislation in furtherance of its own enactment.
The decision to create an additional measure of enforcement through a wrongful discharge action involves a choice between two competing state policies, a choice federal courts sitting in diversity cannot make. One policy, which has its academic champions, is the protection of employees against employer abuse. See Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum.L.Rev. 1404 (1967); Summers, Individual Protection Against Dismissal: Time for a Statute, 62 Va.L.Rev. 481 (1976). Recognizing the claim here might indeed have salutary consequences. It might protect those employees who follow FDA regulations, prevent unscrupulous employers from forcing employees to choose between holding their job or following federal law, and prevent the sale of impure drugs.
For all these possible benefits, however, a wrongful discharge action may also have undesirable effects. There is a risk that many employees who are properly terminated will try to claim the exception, particularly those in sensitive drug-related industries such as pharmacies, pharmaceutical companies, doctors’ offices, and hospitals. There is a danger that the always uncertain prospects of litigation will deter employers in these industries from legitimate personnel decisions, even with respect to those employees whose continued contact with drugs in the workplace poses a variety of public risks.
The balance between encouraging legitimate claims and discouraging spurious ones is for North Carolina to strike. So also is the balance between employee rights and employer perogatives. This is particularly true in tort and contract law, whose elements of recovery and damages lie at the heart of state, not federal, public policy. When confronted with a request to modify or create a state cause of action, a federal court must recall the Supreme Court’s admonition that “where in (diversity) cases one is barred from recovery in the state court, he should likewise be barred in the federal court.” Woods v. Interstate Realty Co., 337 U.S. 535, 538, 69 S.Ct. 1235, 1237, 93 L.Ed. 1524 (1949). The Erie doctrine “calls on us to apply state law, not, if we can be persuaded to doubt its soundness, to participate in an effort to change it.” Tarr v. Manchester Ins. Corp., 544 F.2d 14, 15 (1st Cir.1976).
The point is as simple as it is unavoidable: in diversity cases, when state law provides an answer, federal courts must abide by that law. North Carolina law does provide the answer in this case: outside of a few restricted limitations that do not apply, an employer may terminate an employee for any reason. Thus, Guy has no cause of action against Travenol. In applying state law, federal courts have always found the road straighter and the going smoother when, instead of blazing new paths, they restrict their travels to the pavement.
The judgment of the district court is
AFFIRMED.
Hogan does offer some slight support for Guy’s position because it characterized Sides as creating a cause of action for employees who refuse "to perform an act prohibited by law.” Hogan, 340 S.E.2d at 126. We do not, however, believe that single sentence to be dispositive. The Hogan court was not trying to provide the definitive interpretation of Sides or attempting to expand the Sides decision — the court was merely trying to show that the cause of action recognized in that case was something less than a broad public policy exception. In light of the nearly 100 years of employment at will in North Carolina, the language of Sides, and the holdings of the three later cases, including Hogan, a single sentence in dicta is not sufficient to create a new cause of action for Guy.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_r_state
|
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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Alvin Eugene BAKER, Appellant, v. UNITED STATES of America, Appellee.
No. 19073.
United States Court of Appeals Eighth Circuit.
June 5, 1968.
James L. Homire, Jr., St. Louis, Mo., for appellant.
Jim J. Shoemake, Asst. U. S. Atty., St. Louis, Mo., for appellee; Veryl L. Riddle, U. S. Atty., on the brief.
Before VOGEL, Senior Circuit Judge, and BLACKMUN and LAY, Circuit Judges.
VOGEL, Senior Circuit Judge.
Defendant-appellant herein was convicted by a jury of a violation of 18 U.S.C.A. § 2312 and thereafter sentenced to confinement for a period of two years. He appeals from the judgment of conviction and raises the sole issue of sufficiency of the evidence to support the verdict of guilty.
Viewing the evidence in the light most favorable to the government, it discloses that on the evening of August 8, 1967, a 1967 Buick automobile parked at 2415. Louisiana Street, Little Rock, Arkansas, was stolen. That same evening, the appellant testified that he entered the stolen car at Fourteenth and Chester in Little Rock. James Rideout and Kenneth Pippins were in the car when appellant entered it, and immediately upon entering the car appellant apparently learned that it was stolen. Appellant was 18 years of age and without any money at the time he entered the car. Appellant rode in the car as it was driven directly from Little Rock, Arkansas, to St. Louis, Missouri, where, six hours latér, he was. let out at his home at 4355 Maryland, in St. Louis.
Appellant further testified that he did not drive the car, he bought no gas for the car, and he paid no expenses for the trip. There is no suggestion that appellant stole or helped steal the car and there is no evidence or suggestion that appellant entered into a conspiracy with the two other occupants of the car to steal a car for transportation to St. Louis. Thus, the only evidence, as testified to by appellant and by an FBI Agent, against the appellant was his admission that he rode in the stolen car.
The trial court instructed the jury that it could infer transportation of the car by possession and further instructed the jury as to what constitutes active or constructive possession. The government argues that the ease may be affirmed under this theory. We disagree. There is no evidence suggesting even the barest elements of either actual or constructive possession of this car by appellant. As appropriately noted in another context in Barnes v. United States, 5 Cir., 1965, 341 F.2d 189, 191:
“ * * * The effect of the charge in the instant case was to shift the burden of proof to the defendant to overcome a prima facie inference of guilt from the fact of possession, when possession had not been clearly established by the evidence. There was no direct testimony that defendant Barnes ever had possession of the vehicle, but only circumstantial evidence from which the jury could draw the conclusion that the defendant had been in possession.”
It is obvious that here the jury would have to infer possession by appellant’s mere presence in the car. The constitutional infirmities of such an inference have already been suggested in United States v. Romano, 1965, 382 U.S. 136, 141, 86 S.Ct. 279, 15 L.Ed.2d 210. Even accepting the appropriateness of this initial inference, however, to further infer that appellant transported or caused to be transported this car from the inference of his possession of the car involves such obvious speculation as to be totally inconsistent with the requirements of due process. We agree, to this extent, with the holding in Julian v. United States, 9 Cir., February 28, 1968, 391 F.2d 279, that “where convicting presumptions are projected on possession, the evidence of possession ought to be very clear to satisfy the test of guilt beyond a reasonable doubt.” See, also, Wheeler v. United States, 10 Cir., 1967, 382 F.2d 998, 1000. (Appellants “correctly contend that being a mere passenger in a stolen automobile moving in interstate commerce does not prove requisite possession so as to give rise to the presumption of guilty knowledge.”)
The trial court also instructed the jury that they could return a guilty verdict if they found that appellant had aided and abetted in the transportation of this stolen car. These instructions properly required “participation” by the appellant in the crime because, as noted by Judge Learned Hand in discussing various definitions of aiding and abetting:
“It will be observed that all these definitions have nothing whatever to do with the probability that the forbidden result would follow upon the accessory’s conduct; and that they all demand that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used — even the most colorless, ‘abet’ — carry an implication of purposive attitude towards it.” United States v. Peoni, 2 Cir., 1938, 100 F.2d 401, 402.
Accord: Nye & Nissen v. United States, 1949, 336 U.S. 613, 619-620, 69 S.Ct. 766, 770, 93 L.Ed. 919 (aiding and abetting is “a rule of criminal responsibility for acts which one assists another in performing.”); Pereira v. United States, 1954, 347 U.S. 1, 10-11, 74 S.Ct. 358, 98 L.Ed. 435.
This court has had occasion to consider the question of sufficiency of the evidence to find a defendant guilty as a principal because he aided and abetted the criminal acts of another. In a case involving facts similar to the instant case, this court stated, in Johnson v. United States, 8 Cir, 1952, 195 F.2d 673, 675:
“ * *. * To be an aider and abetter it must appear that one so far participates in the commission of the crime charged as to be present, actually or constructively, for the purpose of assisting therein. * * * Generally speaking, to find one guilty as a principal on the ground that he was an aider and abetter it must be proven that he shared in the criminal intent of the principal and there must be a community of unlawful purpose at the time the act is committed. As the term ‘aiding and abetting’ implies, it assumes some participation in the criminal act in furtherance of the common design, either before or at the time the criminal act is committed. It implies some conduct of an affirmative nature and mere negative acquiescence is not sufficient.”
See, also, Mays v. United States, 8 Cir, 1958, 261 F.2d 662, 664; Mack v. United States, 8 Cir, 1964, 326 F.2d 481, 484-486. Mere association is not sufficient to establish aiding and abetting, Ramirez v. United States, 9 Cir, 1966, 363 F.2d 33, 34; presence by itself is not sufficient, Hicks v. United States, 1893, 150 U.S. 442, 450, 14 S.Ct. 144, 37 L.Ed. 1137; United States v. Williams, 1951, 341 U.S. 58, 64, n. 4, 71 S.Ct. 595, 95 L.Ed. 747; United States v. Minieri, 2 Cir, 1962, 303 F.2d 550, 557; and it is also established that knowledge that a crime was to be committed and presence at the scene of the crime are generally not sufficient. Ramirez v. United States, supra; United States v. Garguilo, 2 Cir, 1962, 310 F.2d 249, 253.
This review of the law convinces us that the government has not sustained its burden of proving participation in transporting a car in interstate commerce when it proves only that someone has ridden in a stolen car as it was being so transported.
The government argues that Lambert v. United States, 5 Cir, 1958, 261 F.2d 799, is sufficient authority for the government’s position here. There, the appellant waited at the corner of a parking lot as his friend entered the lot and stole a car in New Orleans. The two then drove to Birmingham, Alabama, where a service station operator testified that appellant was still a passenger in the car when the occupants thereof had the gasoline tank filled and drove off without paying. The crucial distinction in that case is that there appellant actually participated in the stealing of the car, possibly by acting as a lookout for his companion, or that the appellant there had formed a conspiracy with his companion to steal the ear. Moreover, the appellant was still with his companion in the car the next day and remained in the car even after his companion had left a filling station without paying for the car’s service. Thus Lambert involved not only association, but also evidence of participation in the illegal act. Here there is no evidence of participation.
Neither does the government’s reliance on Garrison v. United States, 10 Cir, 1965, 353 F.2d 94, impress us because much more circumstantial evidence suggesting possession was presented in that case than is present here. In Garrison, defendant attempted to sell a tire from the car, defendant bought gasoline for the car, defendant directed his partner to drive the car when they left a motel, and defendant was later found in the front seat of the car while his partner was in the back seat. As the court there noted, this evidence “certainly shows some control by Garrison over the recently stolen car and was sufficient for the jury to infer that Garrison was at least an aider and abettor in the transportation of the car and, as such, had possession of it as his codefendant did.” No such circumstantial evidence of control is present in the instant case.
A recent case in which the facts most closely parallel the facts here is Allison v. United States, 10 Cir, 1965, 348 F.2d 152. In Allison, a car was stolen in Springfield, Missouri, the night of July 11th. The morning of July 13th Allison was identified as occupying the right-hand front seat of the car which was parked in a field near Elk City, Kansas. This car was abandoned near Elk City and on the afternoon of July 13th another car was stolen in Elk City and found the next day in Pawhuska, Oklahoma. Allison and another were arrested several blocks from that car and one of them had a jumper cable in his pocket. The court found this evidence insufficient to sustain the Dyer Act conviction of Allison because, “Neither the fingerprint nor the presence in the ear shows control, dominion, or authority over the car.” 348 F.2d at 154.
We find that the government has failed to present sufficient evidence to prove that appellant transported or caused to be transported the stolen car in interstate commerce so that appellant’s motion for directed verdict should have been granted.
Reversed.
. “Possession in one state of property recently stolen in another state, if not satisfactorily explained, is a circumstance from which the jury might reasonably draw the inference and find, in the light of surrounding circumstances, that the person in possession not only knew it to be stolen property, but also transported or caused it to be transported in interstate commerce.”
. “The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is then in actual possession of it.
“A person who, although not in actual possession, knowingly has the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.
“The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, their possession is joint.
“If you find from the evidence beyond a reasonable doubt that the accused either alone or jointly with others had. actual or constructive possession of the automobile described in the indictment, then you may find that such automobile was in the possession of the accused within the meaning of the word ‘possession’ as used in these instructions.”
. “Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal.
“Every person who thus willfully participates in the commission of a crime may be found to be guilty of an offense. Participation is willful if done voluntarily and purposely and with specific intent to do some act the law forbids, or with specific intent to fail to do some act the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.”
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_counsel1
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
In re LLOYD, CARR AND COMPANY, Bankrupt (two cases). Appeal of Alan H. ABRAHAMS. Appeal of UNITED STATES of America.
Nos. 79-1511, 80-1045.
United States Court of Appeals, First Circuit.
Argued Jan. 22, 1980.
Decided Feb. 1, 1980.
Terry Philip Segal, Boston, Mass., for Alan Abrahams et al. in case No. 80-1045.
Jacob Rabinowitz, New York City, with whom Daniel D. Abramtsov, New York City, was on brief, for Alan Abrahams, etc., in case No. 79-1511.
Charles W. Morse, Jr., Boston, Mass., with whom Sullivan & Worcester, Boston, Mass., was on brief, for appellee, New England Tel. and Tel. Co.
Robert E. McLaughlin, Boston, Mass., with whom Sandra C. Steele and Gilman, McLaughlin & Hanrahan, Boston, Mass., were on brief, for appellee, Walter H. McLaughlin, Sr., Boston, Mass., Receiver.
Joan I. Oppenheimer, Atty., U. S. Dept. of Justice, Washington, D. C., with whom M. Carr Ferguson, Asst. Atty. Gen., Washington, D. C., Edward F. Harrington, U. S. Atty., Boston, Mass., Gilbert E. Andrews, Gerald C. Miller, and Crombie J. D. Garrett, Attys., U. S. Dept. of Justice, Washington, D. C., were on briefs, for United States.
Before LEVIN H. CAMPBELL, Circuit Judge, JULIAN, Senior District Judge, and SKINNER,* District Judge.
Of the District of Massachusetts, sitting by designation.
LEVIN H. CAMPBELL, Circuit Judge.
The following two opinions concern separate actions taken by the district court in a bankruptcy receivership proceeding. While we fully recognize that each must rise or fall on its own distinct facts, we find it convenient to announce both opinions together since they share a common background and are, to some degree at least, interrelated.
No. 79-1511.
The question in this appeal is whether the district court abused its discretion in denying applications by the alleged bankrupt, Alan H. Abrahams, to use for his personal benefit certain funds held by the bankruptcy receiver. As we believe the district court was neither obliged to entertain, nor authorized to grant, such applications, we affirm the order of the district court.
The order under appeal was entered June 26, 1979 by the district court, sitting as a court of bankruptcy, reconfirming the court’s earlier decision to deny Abrahams’ requests for legal fees in his pending criminal prosecution and for subsistence payments to his- family. The matter arose on an unusual set of facts. In February 1978, an involuntary bankruptcy proceeding was instituted against appellant Abrahams and Lloyd, Carr & Co., a Boston-based commodities option firm that had allegedly engaged in fraudulent options sales on a massive scale. A receiver in bankruptcy was appointed pursuant to Bankruptcy Rule 201, and charged with responsibility to marshal the assets of the alleged bankrupts. Learning that Abrahams and Lloyd, Carr maintained two large bank accounts in Bermuda, the receiver brought legal proceedings there seeking to have the money — rabout $1.75 million — transferred to the receiver’s control. This effort met considerable resistance in the Bermudian legal system, sparked by Abrahams’ personal refusal to authorize the transfer or cooperate in bringing it about.
On April 5, 1978, the receiver sought to have Abrahams held in contempt for failing to cooperate in having the Bermuda funds repatriated to the United States, as required by the Bankruptcy Act and by the district court’s injunctive order of February 3, 1978. An April 28, 1978 hearing on the contempt motion was adjourned to a lobby conference at which the district court judge, the receiver; Abrahams, and the United States attorney, among others, were present. No creditors, other than the United States, were represented at this conference. Abrahams and the receiver arrived at an agreement during the conference that Abrahams would authorize transfer of $1.5 million from Bermuda to the receiver, to be held in a segregated account in Boston. In exchange, the contempt motion would be dropped; the United States attorney promised not to use the settlement as evidence against Abrahams in criminal proceedings relating to his commodities option transactions; and the district judge indicated that he would be willing to “entertain” motions from Abrahams seeking to use part of the $1.5 million fund to maintain Abrahams’ family in their residence in Marblehead, Massachusetts, and to pay the counsel fees arising from Abrahams’ numerous legal difficulties.
Abrahams did in fact take the steps necessary to effect transfer of the $1.5 million from his Bermuda banks to the receiver in Massachusetts. The creditors, however, objected strenuously when their legal representatives were first apprised of the nature of the purported compromise entered into by the receiver and the district court. After much discussion, a new and considerably narrower compromise was reached in July 1978 whereby the creditors agreed to permit $20,000 of the $1.5 million to be used as a retainer for Abrahams’ bankruptcy counsel and also to permit Abrahams to transfer an additional $40,000 from Bermuda to be used for his criminal defense and for support of his family. This compromise, unlike the earlier arrangement, was carefully spelled out in writing. It was approved by all principal creditors except the United States, which appealed to this court from the district court’s approval of the compromise over its objection. After a single judge of this court had refused to issue a stay pending appeal, the United States withdrew the appeal. This court thus never had occasion to pass on any issues concerning the compromise.
During the months that followed, Abra-hams made repeated requests for further allocations of money from the $1.5 million fund, in line with his asserted understanding of the agreement of April 28. None were granted. On May 7,1979, Abra-hams’ new counsel moved for a release of funds,, for legal fees and family support, claiming that his client was entitled, at the least, to have such a motion “entertained” by the district court. After a hearing, this motion was denied by order dated May 29. A reapplication by way of a memorandum of law was unsuccessful, and the district court reconfirmed its order on June 26.
Appellant’s first argument, simply stated, is that the district court entered into a contract with him at the April 28 lobby conference whereby the court agreed to grant appellant’s reasonable requests for funds in consideration for appellant’s cooperation in having the $1.5 million brought up from Bermuda. There is no merit to this contention. The objects for which use of the funds was sought do not fall within any category expressly sanctioned in the Bankruptcy Act. A bankruptcy court ordinarily has no power to authorize payment of funds from the bankruptcy estate for the personal use of the alleged bankrupt. See Randolph v. Scruggs, 190 U.S. 533, 539, 23 S.Ct. 710, 712, 47 L.Ed.2d 1165 (1903) (Holmes, J.); In re Orbit Liquor Store, 439 F.2d 1351, 1354 (5th Cir. 1971); compare 11 U.S.C. § 102(a)(1). Even if the facts here would support a construction of the April 28 agreement as a contract between appellant and the district court, a matter we do not decide, any such contract would be void to the extent it purported to authorize judicial acts beyond the scope of the court’s power.
If not as an enforceable contract, appellant urges us to uphold the April 28 understanding as a species of compromise of the receiver’s pending claim to the funds in Bermuda. Section 27 of the former Bankruptcy Act, 11 U.S.C. § 50, provides that:
“The receiver or trustee may, with the approval of the court, compromise any ■ controversy arising in the administration of the estate upon such terms as he may deem for the best interest of the estate.”
The April 28 understanding, however, is not enforceable as a Section 27 compromise. Among other reasons for nonenforceability is the fact that the notice requirements of the Bankruptcy Rules were not met. Rule 919(a) provides:
“On application by the trustee or receiver and after hearing on notice to the creditors as provided in Rule 203(a). the court may approve a compromise or settlement.”
Although Rule 203(a) provides that the court may, “for cause shown,” dispense with the required ten-day notice in the case of a hearing on approval of a compromise, the court here made no such order, nor was cause shown to dispense with the notice requirements, and other formalities, contemplated by Rule 919(a). See also 11 U.S.C. § 94(a)(6). Particularly where principal creditors had been given no opportunity to consider or respond to it, the April 28 agreement, whatever it may have been, was not a valid compromise pursuant to Section 27. When brought to the creditors’ attention, they not only did not ratify the undertaking but instead objected vigorously, with the result that a different and far narrower arrangement was entered into.
Finally, appellant argues that the July 14, 1978 written stipulation, pursuant to which $60,000 was made available to Abrahams’ family and attorneys, constituted an open-ended commitment by the creditors to permit Abrahams to have access to the remainder of the $1.5 million. This argument is frivolous. The July 14 stipulation was painstakingly drafted, as the record makes clear. By its terms, it was limited to authorizing payment of $60,000, two-thirds of which was to be brought in from Bermuda. The parties specifically stated that
“it is understood by all parties to this transaction that the willingness of Petitioning Creditors to allow funds of Abra-hams in this amount to be disbursed in this manner. is not precedent which will govern future applications of this type, all of which Petitioning Creditors shall be free to oppose if they see fit.”
Abrahams’ counsel signed this document on his behalf. Nowhere does it indicate that the district court is authorized or empowered to make further payments to Abra-hams, nor is there any indication that the creditors waived their rights with respect to this matter. Moreover, we find nothing in the July 21 order of the district court approving this compromise that indicates it was intended in any way to constitute a continuing commitment to provide funds to Abrahams.
Accordingly, the district court not only did not abuse its discretion in refusing to authorize payment of the funds sought, but we know of no basis upon which the district court could have been authorized to grant the requests Abrahams made in May 1979. The district court’s refusal to grant these requests was therefore indisputably correct, and we affirm the court’s order in No. 79-1511.
No. 80-1045.
This appeal was taken by the United States from an order of the district court entered January 17, 1980 which, in essence, (1) directs Abrahams to take all necessary steps to transfer all funds presently held in Butterfield Bank, Bermuda, Account No. 544-7-04620, to the receiver or his agent; (2) directs Abrahams to sign all documents necessary for the receiver to obtain a full transcript of that account, certain other described accounts at the Butterfield Bank, and any other account on which the alleged bankrupt is signatory; and (3) orders the receiver, upon receipt of the funds, to post bail in the sum of $100,000 on Abrahams’ behalf in a criminal case pending against him before Judge Conner in the Southern District of New York, and to deposit the balance in the receiver’s segregated interest-bearing account at a Boston bank.
This order was entered following a district court hearing held on January 10,1980 attended by counsel for Abrahams; for the receiver; for the Tax Division, Department of Justice; for petitioning creditors New England Telephone, et ah; and for plaintiffs in a reclamation action being brought on behalf of customers allegedly defrauded by the alleged bankrupts. See In re Lloyd, Carr & Co., 614 F.2d 17 (1st Cir. 1980). As already indicated, see note 2 supra, the United States, appellant herein, appears to be the principal creditor of the alleged bankrupts, with tax claims amounting to about $5.6 million, although the reclamation proceeding, if successful, might give rise to an even greater liability. The telephone companies have claims of just under $1 million and there are other trade creditors. While all of the latter were not represented at the January 10 hearing, it seems to be generally agreed that all major creditors and potential creditors having an interest in the bankruptcy estate were present.
Abrahams was then, as now, facing trial on a 50-count indictment for mail and wire fraud in connection with allegedly fraudulent sales of commodity options made by Lloyd, Carr & Co. employees on a national scale. Venue in this case had been transferred from Boston to Arizona, and eventually to the Southern District of New York to avoid the possible impact of prejudicial pretrial publicity. At the time of the January 10 hearing, Judge Conner in New York had apparently indicated some willingness to free Abrahams on $100,000 bail, although it was not until later that bail was' actually set in this amount.
Abrahams, through his counsel, proposed to the district "court in Boston that he be permitted to transfer what he represented to be all his remaining funds in Bermuda— about $207,000 — to this country, with half to go to the receiver outright and the other half to be posted for bail in New York. With some qualifications, the receiver endorsed the proposal, pointing out practical and legal difficulties he had encountered in securing a transfer to himself of the alleged bankrupts’ assets in Bermuda. The receiver asserted that a “compromise” of the estate’s claim against the Bermuda assets was desirable in order to avoid the expense and delay of further litigation as well as the risk that such litigation would be unsuccessful.
As recounted by the receiver, his difficulties stemmed from Abrahams’ refusal to cooperate by personally authorizing the depository bank to transfer his funds to the receiver. As a result the receiver was obliged to bring legal proceedings in the Bermuda courts, and after almost two years these were still pending. Initially an order restraining Abrahams from transferring the funds had been obtained, but the issuing court had been persuaded to discontinue the injunction. The injunction was only reinstated after appeal, and then only by a divided court. The merits of the receiver’s claim to the funds were yet to be tried. The receiver pointed out the difficulty he had experienced in finding competent members of the small Bermuda bar to represent him in opposition to the local banks. One attorney had already been discharged for inadequate performance. Both because of the further legal expense that would be required to secure the funds without Abra-hams’ cooperation, and the uncertainty of success, the receiver felt that Abrahams’ proposal was in the best interests of the estate.
The receiver’s endorsement of Abrahams’ proposal was qualified in two respects. First, he insisted that Abrahams be required to provide a full accounting of all monies in Bermuda over which he exercised any control, so that the receiver could assure himself that no assets of the estate were still remaining there. Second, the receiver insisted that all of the money brought in from Bermuda be placed in the receiver’s custody prior to any bail arrangement, so that Abrahams would have,no opportunity to abscond with the funds in the event he appeared for trial and bail was refunded. Addressing the issue of what risk existed that the estate would lose the bail money due to a default by Abrahams, the receiver stated that it was his opinion, based on considerable personal contact with Abrahams, that he would not default. According to the receiver, Abrahams was convinced he would be acquitted at his New York fraud trial; the sole reason Abrahams desired bail was to assist in organizing his defense. The receiver also maintained he felt there was a significant possibility that,' even if Abrahams defaulted, part of the $100,000 would be salvaged for eventual refund to the estate by the district court in New York.
No representative of any creditor spoke in support of the proposal at the January 10 hearing. The proposal was vigorously opposed by the United States in its status as tax creditor. The government emphasized the risk that Abrahams would default on his bail. The proposal was also opposed by the petitioning creditors, who relied on a written submission. Counsel for plaintiffs in the reclamation action focused his attention on ensuring that Abrahams, at a minimum, be required to provide records of his bank accounts in Bermuda, but also opposed the proposed arrangement generally as not in the best interest of claimants against the estate.
A written stipulation memorializing the compromise proposal outlined by the receiver was filed with the district court on January 16, 1980, and was approved by order of the court entered January 17. The United States immediately moved for a stay of this order pending appeal, and a temporary stay was subsequently granted. In the meantime, pursuant to the written stipulation, Abrahams effected a transfer of the $207,-000 to the control of the receiver, who placed the funds in a segregated account previously established for the $1.5 million brought to Boston in early 1978.
On this expedited appeal, the district court’s order approving the compromise is challenged by the United States, by the petitioning creditors, and by the Commodity Futures Trading Commission as amicus. Subsequent to oral argument, we requested that the receiver file additional material concerning the status of the litigation in Bermuda prior to the January 10 hearing, and such material was duly filed. From this material, principally judicial opinions of the Bermudian courts and papers filed in the Bermuda litigation, it appears that the principal barriers to recovery in Bermuda were created by the Bermudian courts’ uncertainty as to the status of an American bankruptcy receiver, and a misapprehension on the part of those courts that the receiver was more concerned with enforcement of criminal sanctions against Abrahams than with the recovery of the bankruptcy assets. The receiver gave as his opinion, based on consultation with counsel in Bermuda, that the chances for success had the matter been litigated to final judgment were no better than 50 percent. Both the United States, as tax creditor, and the petitioning creditors have since filed responses to the receiver’s materials, arguing on the basis of those materials (which were not presented in the district court), that the legal posture of the receiver’s Bermuda case was more hopeful than represented, and restating their opposition to the compromise. Counsel for the creditors asserts that an eventual adjudication of bankruptcy by the district court here — an event which he claims to be inevitable and feels has been unnecessarily delayed — would have greatly improved the chances for success in Bermuda.
I.
While there is some initial plausibility in the district court’s order, which secures Abrahams’ cooperation in disclosing and turning over the proceeds in the Bermuda bank accounts in exchange for the receiver’s posting of $100,000 bail in Abrahams’ federal criminal case in New York, we do not believe the order can be upheld.
First, we state the obvious: no section of the Bankruptcy Act authorizes the payment of bail for an alleged bankrupt, and, as observed in the previous case, it is well settled that payments designed to benefit the bankrupt personally may not be made out of the bankruptcy estate. Considerations as to Abrahams’ alleged constitutional and statutory rights to bail in the Southern District of New York are, of course, irrelevant in the bankruptcy proceeding. The presiding judge in the criminal case, Judge Conner, has exclusive responsibility with respect to bail, subject to appropriate appellate review in the Second Circuit. It is up to Judge Conner to determine the conditions of release, and he may, of course, adjust any bail order to defendant’s available means. A bankruptcy court has no duty to provide the bankrupt with the means for release on bail; to the contrary its duty is to marshal and conserve the assets. The only relevance to the present bankruptcy proceeding of Abrahams’ bail proceeding in New York is the extent to which the possibility of his flight might jeopardize the $100,000 security the receiver has been ordered to post. In that regard, we agree with appellants that the economic danger, while obviously impossible to calculate precisely, has to be regarded as substantial in Abrahams’ case. See United States v. Abrahams, 575 F.2d 3 (1st Cir.), cert. denied, 439 U.S. 821, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978) (Abrahams’ unique history and circumstances held to justify his pretrial detention without bail).
Since there is no direct authority for using bankruptcy funds for bail, the district court’s authority here, if any, must come from the compromise provision, quoted in our opinion in No. 79-1511, namely Section 27 of the Bankruptcy Act, 11 U.S.C. § 50. Pointing to the difficulties Abrahams’ lack of cooperation has created in Bermuda, and the danger, said to be as high as 50 percent, that the receiver might ultimately not prevail in litigation designed to extract Abra-hams’ $207,000 from local banks, the receiver takes the position that the quid pro quo obtained in return for risking $100,000 of estate funds to secure Abrahams’ bail reflects a fair compromise. Not only has the estate now secured the $207,000 — it has also received, with Abrahams’ cooperation, the transcripts of his financial dealings with certain Bermuda banks. This information will assist the receiver in closing out his responsibilities to determine and collect assets in Bermuda, and it may also assist the reclamation plaintiffs in tracing funds in their pending action against the bankrupts.
There are two principal factors, however, which militate against acceptance of the arrangement as a valid Section 27 compromise. First, we have found no precedent for judicial approval of a compromise founded simply on the alleged bankrupt’s willingness — by way of supposed compromise — to do only what the Bankruptcy Act requires him to do. Second, we have found no precedent for a compromise of this nature actively opposed by the major creditors and affirmatively approved by none.
II.
We first address the enforceability of a purported compromise based on the bankrupt’s agreeing to cease obstructionist tactics that violate the Bankruptcy Act. Section 7(a) of the Bankruptcy Act, 11 U.S.C. § 25(a) states in part,
“The bankrupt shall... (2) comply with all lawful orders of the court;. (5) execute and deliver to his trustee [in this case, receiver] transfers of all his properties in foreign countries.”
The district court, on February 3, 1978, in ordering the receiver to take custody of all the property of the bankrupts, wherever situated, restrained all persons from interfering with the bankrupts’ property — an order which would control the bankrupts as well as others.
The well-settled rule in the field of contracts has long been that performance of a pre-existing legal duty that is neither. doubtful nor subject to honest and reasonable dispute is not valid consideration where the duty is owed to the promisor, or to the public at large. Restatement of Contracts § 76(a) (1932); Pittsburgh Testing Laboratory v. Farnsworth & Chambers Co., 251 F.2d 77 (10th Cir. 1958); United States v. Westmoreland Manganese Corp., 134 F.Supp. 898, 910 (E.D.Ark.1955), aff’d, 246 F.2d 351 (8th Cir. 1957); 1A Corbin on Contracts § 175 (1963); see United States v. Bridgeman, 173 U.S.App.D.C. 150, 161, 523 F.2d 1099, 1110 (D.C.Cir.1975), cert. denied, 425 U.S. 961, 96 S.Ct. 1743, 48 L.Ed.2d 206 (1976); Morrison Flying Service v. Deming National Bank, 404 F.2d 856, 860 (10th Cir. 1968), cert. denied, 393 U.S. 1020, 89 S.Ct. 628, 21 L.Ed.2d 565 (1969). The policy underlying this rule is to discourage parties under such a duty from using the threat of nonperformance to extort greater compensation for doing only that which they were already obligated to do. See Corbin, supra, § 183. Certain exceptions are recognized to the general rule in cases where the circumstances indicate that the policy of deterring extortion is not applicable, such as the case of the contractor who encounters “extraordinary and unforeseen difficulties in the performance of the subsisting contract.” Pittsburgh Testing Laboratory v. Farnsworth, 251 F.2d at 79. See also Restatement of Contracts § 76, ill. 8. In such cases, the promise to pay a larger sum for performance of the existing contract will often be enforced. Id.
Abrahams is in no position to claim the benefit of any such exception. He cannot argue that his duty under the Bankruptcy Act to remit all funds under his control is “doubtful” or that there is an “honest and reasonable dispute” regarding this duty. Neither is there any circumstance rendering performance of his duty difficult or impossible; Bermuda law erects no obstacle to Abrahams’ directing the funds to be sent to the receiver. Abrahams’ affirmative obligations are governed by United States law, not Bermuda law.
Approval of this compromise could have much the same effect as would recognition of a contract based on performance of a pre-existing legal duty. It places the bankrupt in the position of being rewarded for contravening the bankruptcy laws of the United States. All other cases we have found where bankruptcy compromises were approved have involved some colorable claim by the bankrupt, or someone else, to the property involved. See, e. g., In re Goldman, 241 F. 385 (E.D.Pa.1917); In re Kranich, 174 F. 908 (E.D.Pa.1909). While courts have often sanctioned compromises which confer pragmatic benefits, they have drawn the line at increasing the assets of the estate by means of agreements thought to encourage unfair or criminal methods. See, e. g., In re Rosenblatt, 153 F. 335 (E.D.Pa.1907), aff’d sub nom. Mulford v. Fourth Street National Bank, 157 F. 897 (3d Cir. 1907). The present compromise may encourage bankrupts situated as is Abrahams to refuse to comply with their legal duties. While we do not say that compromises of the present nature may never be approved, whatever the advantage to the estate, we think they are heavily disfavored on grounds of public policy, and should be approved only upon a showing of clear benefit to the estate and the absence of any realistic available alternatives.
A showing of this type was not made here. At the hearing in the district court, the receiver’s files concerning the Bermuda litigation were not tendered. Now that they are in our possession, we do not think they reflect such heavy burdens upon the receiver or such signal dangers to the estate as to indicate that continued litigation in Bermuda was an unrealistic alternative. Bermuda law would apparently recognize the right of a trustee in bankruptcy to take title to the bank accounts; the problem there stemmed from the fact that the receiver in bankruptcy was originally an equity receiver appointed because of the bankrupts’ alleged fraudulent practices. The Bermuda courts balked at transferring title to one thought to have been appointed to enforce the penal laws of the United States. They failed to recognize, partly through the fault of the receiver’s original Bermuda counsel, that what had started as an equity receivership had been transformed into a bankruptcy proceeding, conducted solely on bankruptcy grounds.
In so saying we do not necessarily question the receiver’s judgment that, on balance, the compromise offered more to the estate than it would cost. Most experienced lawyers would agree that a bird in the hand is worth an ongoing- — or as the receiver said, “endless” — law suit. But where as here a settlement rewards a bankrupt for his contumacious refusal to comply with the Bankruptcy Act itself, more is required than a simple showing of marginal benefit. Public policy forbids a settlement of this character without, at least, a powerful showing of such potential detriment to the estate that no other course is reasonably available. See In re Van Camp Products Co., 95 F.2d 206, 209 (7th Cir.), cert. denied, 305 U.S. 605, 59 S.Ct. 65, 83 L.Ed. 384-(1938).
III.
We are also concerned by the absence of creditors’ support — and by the strength of creditor opposition. A much quoted statement of the standards by which a proposed compromise is to be judged is found in Drexel v. Loomis, 35 F.2d 800 (8th Cir. 1929). See, e. g., 2A Collier’s on Bankruptcy ¶ 27.04 at 1092; 2 Remington on Bankruptcy § 1161. Along with factors such as probability of success, the difficulties of collection, the complexity of the litigation involved and the inconvenience and expense attending it, emphasis is placed upon
“d. the paramount interest of the creditors and a proper deference to their reasonable views in the premises.”
The views of creditors are, of course, not controlling upon the receiver. See 2A Collier’s, supra, ¶ 27.03 at 1090. No case has come to our attention, however, where a compromise has been imposed without the support of a single creditor and over the active opposition of the major creditors.
Appellees argue that the United States has divided loyalties — that while it represents itself as a civil tax claimant, it cannot divest itself of its sometime role as criminal prosecutor. According to this argument, the United States is simply trying to prevent Abrahams from being freed on bail. But this explanation does not make it clear why the petitioning creditors have opposed the compromise, nor why the reclamation plaintiffs have opposed it, nor why no creditor whatever has expressed support for the compromise. If the compromise was manifestly in the best interest of the estate, we think this would be apparent to at least some of the creditors and their counsel.
To be sure, some of the lack of support may be due to the suddenness with which the matter was brought forward. No change of heart, however, has since come to our attention. We recognize the reclamation plaintiffs were not vociferous in their denunciation of the proposal, nor did they appeal the court’s order approving it. And the petitioning creditors did not appeal, though they have filed briefs registering vigorous support for the United States’ opposing position and strong opposition to the receiver’s position. Whatever can be discerned from the foregoing, however, it is plain that were we to approve the district court’s order, we would be endorsing an arrangement, highly questionable in terms of public policy, without any affirmative indication in the record that a single creditor was persuaded that it was in the best interest of the bankruptcy estate. Under the circumstances we believe the district court’s order to be in excess of its authority.
Our action leaves the $207,000 in the hands of the receiver, where, under the bankruptcy law, it belongs (and of course must stay, at least pending adjudication of the bankruptcy petition). In remitting the funds, the bankrupt did no more than the law required; while he did so after entry of the district court’s order, he was represented by counsel and was well aware that interested parties had up to 60 days within which to appeal to this court, with the possibility that the order might be reversed. We see no moral obligation, much less legal authority, for disturbing the present custody or status of the funds in whole or in part.
The order of the district court in No. 80-1045 is hereby vacated except insofar as it is to be construed as directing the receiver to retain all funds received from any of the listed Bermuda accounts as a part of the assets being held in the bankruptcy receivership.
So ordered.
. We disagree with appellees’ contention that Abrahams’ notice of appeal was untimely filed. Under Fed.R.App.P. 4(a), a party has 30 days in which to file a civil appeal, unless the United States is a party to the proceeding, in which case the time limit is 60 days. Here, Abrahams filed his notice of appeal July 31, 1979, more than 30 days but less than 60 days after the June 26 order from which he appealed. While it is true that the United States did not file an opposition to appellant’s memorandum seeking to alter the district court’s earlier May 29 denial of funds, the United States has been involved in this particular controversy from the outset, and is a present party to this appeal. While the mere fact that the United States was a tax creditor in a civil bankruptcy proceeding would not, by itself, assure that the 60-day limit would be appropriate, see 9 Moore’s Federal Practice ¶ 204.10 at 926, the government’s participation here was sufficiently active for Abrahams to invoke the 60-day limit of Rule 4(a). Appellees also argue that the critical order was that issued May 29 rather than June 26 and that Abrahams should have taken his appeal from the former. While the issue is close, we are inclined to read the earlier order, which was entered without prejudice, and was expressly made subject to modification after receipt of memoranda from the parties, as nondispositive (or at least is not so obviously dis-positive as to have necessitated an appeal at that time in order to preserve the issue now before us).
. The receiver, Walter McLaughlin, Sr., had previously been appointed equity receiver in a proceeding to enjoin Lloyd, Carr from various alleged fraudulent practices. Commodity Futures Trading Commission v. Carr, No. 77-371-T (D.Mass.). Abrahams, using the name James Carr, was alleged to be a principal in Lloyd, Carr’s activities.
McLaughlin’s appointment as bankruptcy receiver, pursuant to Section 2a(3) of the Act, 11 U.S.C. § 11(a)(3) and Bankruptcy Rule 201, would seem to have superseded his status as equity receiver. As bankruptcy receiver, his principal duty is to preserve the estate and protect the interest of creditors pending adjudication of the petitions in bankruptcy. Id.
The petitions for involuntary bankruptcy filed against Lloyd, Carr and Abrahams on February 1, 1978 alleged various acts of bankruptcy as defined under the Act, including the earlier placing of the firm into receivership by the district court, and the transfer of a large sum of money to Bermuda for the purpose of disadvantaging creditors. We are informed that creditors’ claims against the alleged bankrupts now include some $5.6 million claimed by the United States for unpaid taxes, and at least $2.8 million sought by other creditors. In addition, a class of allegedly defrauded customers of Lloyd, Carr are seeking $25 million from the estate by way of a reclamation suit. The receiver, commendably, has so far recovered about $5 million in assets of the estate. For reasons which do not clearly appear, the adjudication proceeding has yet to take place; this delay is a major source of complaint by the petitioning creditors, principally a group of telephone companies claiming some $973,000.
. Reference has mistakenly been made in the current proceedings to the brief unpublished opinion issued by a judge of this court declining a stay as if it were a final pronouncement of the Court of Appeals. This it was not. The court’s focus when acting on a stay petition is necessarily hurried, tentative and incomplete. Often, only one judge, not three, is involved.
. Although the Bankruptcy Act of 1898 has been superseded, we apply to these transactions the law as it existed at the time they occurred, Pub.L.No. 95-598, § 403(a), 92 Stat. 2549 (1978), and all citations are to the then-existing statutes.
. We recognize that concern has been expressed throughout this controversy that failure to award funds to Abrahams, or else to rescind the transaction and return the $1.5 million to Bermuda, would be “unfair” to Abra-hams, since he acted in “reliance” upon the April 28 arrangement. Abrahams, however, at no time took, or agreed to take, any action which he was not already obliged by law to perform. At all times, he has been under an absolute duty to assist the receiver in marshall-ing the assets properly includable in the bankruptcy estate, wherever they were located. See 11 U.S.C. § 25(a)(2), (5). Because Abrahams was already in jail, and as a practical matter immune to fines, he may have felt he could afford to flout the usual contempt remedies available to the district court. Only because of certain technical aspects of Bermudian law was he able to resist the receiver’s efforts to have funds transferred from that jurisdiction by legal process. Abrahams cannot complain of having
Question: What is the nature of the counsel for the appellant?
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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sc_caseorigin
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100
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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.
McLAUGHLIN, SECRETARY OF LABOR v. RICHLAND SHOE CO.
No. 86-1520.
Argued February 24, 1988
Decided May 16, 1988
Stevens J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’ConnoR, Scalia, and Kennedy, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and Blackmun, JJ., joined, post, p. 135.
Deputy Solicitor General Ayer argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Richard G. Taranto, George R. Salem, Allen H. Feldman, and Mary-Helen Mautner.
Leon Ehrlich argued the cause and filed a brief for respondent.
Robert E. Williams, Douglas S. McDowell, and Garen E. Dodge filed a brief for the Equal Employment Advisory Council as amicus curiae urging affirmance.
Justice Stevens
delivered the opinion of the Court.
The question presented concerns the meaning of the word “willful” as used in the statute of limitations applicable to civil actions to enforce the Fair Labor Standards Act (FLSA). The statute provides that such actions must be commenced within two years “except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.” 61 Stat. 88, 29 U. S. C. § 255(a).
I
Respondent, a manufacturer of shoes and boots, employed seven mechanics to maintain and repair its equipment. In 1984, the Secretary of Labor (Secretary) filed a complaint alleging that “in many work weeks” respondent had failed to pay those employees the overtime compensation required by the FLSA. As an affirmative defense, respondent pleaded the 2-year statute of limitations. The District Court found, however, that the 3-year exception applied because respondent’s violations were willful, and entered judgment requiring respondent to pay a total of $11,084.26, plus interest, to the seven employees. Donovan v. Richland Shoe Co., 623 F. Supp. 667 (ED Pa. 1985).
In resolving the question of willfulness, the District Court followed Fifth Circuit decisions that had developed the so-called Jiffy June standard. The District Court explained:
“The Fifth Circuit has held that an action is willful when ‘there is substantial evidence in the record to support a finding that the employer knew or suspected that his actions might violate the FLSA. Stated most simply, we think the test should be: Did the employer know the FLSA was in the picture?’ Coleman v. Jiffy June Farms, Inc., 458 F. 2d 1139, 1142 (5th Cir.)[, cert. denied, 409 U. S. 948 (1972)].
“This standard requires nothing more than that the employer has an awareness of the possible application of the FLSA. Id.; Castillo v. Givens, 704 F. 2d 181, 193 (5th Cir.)[, cert. denied, 464 U. S. 850 (1983)]. ‘An employer acts willfully and subjects himself to the three year liability if he knows, or has reason to know, that his conduct is governed by the FLSA.’ Brennan v. Heard, 491 F. 2d 1, 3 (5th Cir. 1974) (emphasis in original). See also Donovan v. Sabine Irrigation Co., Inc., 695 F. 2d 190, 196 (5th Cir.)[, cert. denied, 463 U. S. 1207 (1983)].” 623 F. Supp., at 670-671.
On appeal respondent persuaded the Court of Appeals for the Third Circuit “that the Jiffy June standard is wrong because it is contrary to the plain meaning of the FLSA.” Brock v. Richland Shoe Co., 799 F. 2d 80, 82 (1986). Adopting the same test that we employed in Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 125-130 (1985), the Court of Appeals held that respondent had not committed a willful violation unless “it knew or showed reckless disregard for the matter of whether its conduct was prohibited by the FLSA.” 799 F. 2d, at 83 (emphasis in original). Accordingly, it vacated the District Court’s judgment and remanded the case for reconsideration under the proper standard.
The Secretary filed a petition for certiorari asking us to resolve the post -Thurston conflict among the Circuits concerning the meaning of the word “willful” in this statute. The petition noted that the statute applies not only to actions to enforce the overtime and recordkeeping provisions of the FLSA, but also to the Equal Pay Act, the Davis-Bacon Act, the Walsh-Healey Act, and the Age Discrimination in Employment Act (ADEA). Somewhat surprisingly, the petition did not endorse the Jiffy June standard that the Secretary had relied on in the District Court and the Court of Appeals, but instead invited us to adopt an intermediate standard. We granted certiorari, 484 U. S. 813 (1987), and now affirm.
II
Because no limitations period was provided in the original 1938 enactment of the FLSA, civil actions brought thereunder were governed by state statutes of limitations. In the Portal-to-Portal Act of 1947, 61 Stat. 84, 29 U. S. C. §§216, 251-262, however, as part of its response to this Court’s expansive reading of the FLSA, Congress enacted the 2-year statute to place a limit on employers’ exposure to unanticipated contingent liabilities. As originally enacted, the 2-year limitations period drew no distinction between willful and nonwillful violations.
In 1965, the Secretary proposed a number of amendments to expand the coverage of the FLSA, including a proposal to replace the 2-year statute of limitations with a 3-year statute. The proposal was not adopted, but in 1966, for reasons that are not explained in the legislative history, Congress enacted the 3-year exception for willful violations.
The fact that Congress did not simply extend the limitations period to three years, but instead adopted a two-tiered statute of limitations, makes it obvious that Congress intended to draw a significant distinction between ordinary violations and willful violations. It is equally obvious to us that the Jiffy June standard of willfulness — a standard that merely requires that an employer knew that the FLSA “was in the picture” — virtually obliterates any distinction between willful and nonwillful violations. As we said in Trans World Airlines, Inc. v. Thurston, 469 U. S., at 128, “it would be virtually impossible for an employer to show that he was unaware of the Act and its potential applicability.” Under the Jiffy June standard, the normal 2-year statute of limitations would seem to apply only to ignorant employers, surely not a state of affairs intended by Congress.
In common usage the word “willful” is considered synonymous with such words as “voluntary,” “deliberate,” and “intentional.” See Roget’s International Thesaurus §622.7, p. 479; §653.9, p. 501 (4th ed. 1977). The word “willful” is widely used in the law, and, although it has not by any means been given a perfectly consistent interpretation, it is generally understood to refer to conduct that is not merely negligent. The standard of willfulness that was adopted in Thurston — that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute — is surely a fair reading of the plain language of the Act.
The strongest argument supporting the Jiffy June standard is that it was widely used for a number of years. The standard was not, however, consistently followed in all Circuits. In view of the fact that even the Secretary now shares our opinion that it is not supported by the plain language of the statute, we readily reject it.
We also reject the intermediate alternative espoused by the Secretary for the first time in this Court. Relying on the opinion of the Court of Appeals for the District of Columbia Circuit in Laffey v. Northwest Airlines, Inc., 185 U. S. App. D. C. 322, 352-354, 567 F. 2d 429, 461-462 (1976), cert. denied, 434 U. S. 1086 (1978), she argues that we should announce a two-step standard that would deem an FLSA violation willful “if the employer, recognizing it might be covered by the FLSA, acted without a reasonable basis for believing that it was complying with the statute. ” Brief for Petitioner 41. This proposal differs from Jiffy June because it would apparently make the issue in most cases turn on whether the employer sought legal advice concerning its pay practices. It would, however, permit a finding of willfulness to be based on nothing more than negligence, or, perhaps, on a completely good-faith but incorrect assumption that a pay plan complied with the FLSA in all respects. We believe the Secretary’s new proposal, like the discredited Jiffy June standard, fails to give effect to the plain language of the statute of limitations.
Ordinary violations of the FLSA are subject to the general 2-year statute of limitations. To obtain the benefit of the 3-year exception, the Secretary must prove that the employer’s conduct was willful as that term is defined in both Thurston and this opinion.
The judgment of the Court of Appeals is
Affirmed.
Compare Russo v. Trifari, Krussman & Fishel, Inc., 837 F. 2d 40, 45 (CA2 1988) (applying Thurston standard); Peters v. Shreveport, 818 F. 2d 1148, 1167-1168 (CA5 1987) (overruling Jiffy June, applying Thurston), cert. dism’d, 485 U. S. 930 (1988); and Walton v. United Consumers Club, Inc., 786 F. 2d 303, 308-311 (CA7 1986) (applying Thurston), with Brock v. Shirk, 833 F. 2d 1326, 1329 (CA9 1987) (adhering to Jiffy June); Crenshaw v. Quarles Drilling Corp., 798 F. 2d 1345, 1349-1350 (CA10 1986) (adhering to Jiffy June); Donovan v. Bel-Loc Diner, Inc., 780 F. 2d 1113, 1117 (CA4 1985) (adhering to Jiffy June); Secretary of Labor v. Daylight Dairy Products, Inc., 779 F. 2d 784, 789 (CA1 1985) (adhering to Jiffy June); and Brock v. Georgia Southwestern College, 765 F. 2d 1026, 1038-1039 (CA11 1985) (adhering to Jiffy June; no mention of Thurston).
See 52 Stat. 1062, as amended, 29 U. S. C. § 206(d)(3).
46 Stat. 1494, as amended, 40 U. S. C. § 276(a) et seq.
49 Stat. 2036, as amended, 41 U. S. C. §35 et seq. (1982 ed. and Supp. IV).
See 81 Stat. 604, as amended, 29 U. S. C. § 626(e)(1).
See Lorillard v. Pons, 434 U. S. 575, 581, n. 8 (1978).
The Portal-to-Portal Act also made the award of liquidated damages discretionary rather than mandatory and authorized exemptions for certain types of wage plans. In this case, respondent contended that one of those exemptions — the exemption for “Belo” plans, see 29 U. S. C. § 207(f) — was applicable.
Petitioner directs us to a memorandum placed in the Congressional Record by Senator Taft during a 1974 debate over amendments to the FLSA that did not alter the language at issue here. See Brief for Petitioner 32. The memorandum described the Jiffy June standard as the then-prevailing interpretation of § 255(a). See 120 Cong. Rec. 4710 (1974). Petitioner concludes that “[notwithstanding that explicit focus on the judicial construction of willfulness, Congress amended Section 255 without addressing the ‘willful violation’ standard of Section 255(a).” Brief for Petitioner 33. This passing reference to the then-prevailing standard is too slender a reed, we think, to support the inference petitioner would have us draw, namely, that Congress approved the Jiffy June standard in enacting the 1974 amendments by mentioning it as the current interpretation and failing to amend that reading.
The ease with which the Jiffy June standard can be met is exemplified in this case. As the District Court wrote:
“[T]he vice president and general manager of the defendant was aware that the FLSA existed and that it governed overtime systems such as that used for the Richland mechanics. . .« Thus, although Isenberg did not state that he thought that the system used was contrary to the provisions of the FLSA, he did state that he knew that the FLSA applied. I believe that this admission is sufficient to satisfy the liberal willfulness requirement of the FLSA.” Donovan v. Richland Shoe Co., 623 F. Supp. 667, 671 (ED Pa. 1985).
See, e. g., Coleman v. Jiffy June Farms, Inc., 458 F. 2d 1139, 1142 (CA5 1971), cert. denied, 409 U. S. 948 (1972); Brennan v. Heard, 491 F. 2d 1, 3 (CA5 1974); Marshall v. Union Pacific Motor Freight Co., 650 F. 2d 1085, 1091-1093 (CA9 1981); Marshall v. Erin Food Services, Inc., 672 F. 2d 229, 231 (CA1 1982); Donovan v. Carls Drug Co., Inc., 703 F. 2d 650, 652-653 (CA2 1983); EEOC v. Central Kansas Medical Center, 705 F. 2d 1270, 1274-1275 (CA10 1983).
See, e. g., Hodgson v. Cactus Craft of Arizona, 481 F. 2d 464, 467 (CA9 1973) (willful violation after two prior warnings and unkept promises of compliance); Laffey v. Northwest Airlines, Inc., 186 U. S. App. D. C. 322, 352-355, 567 F. 2d 429, 459-462 (1976) (intermediate standard; see text following this footnote), cert. denied, 434 U. S. 1086 (1978); Donovan v. KFC National Management Co., 682 F. 2d 603, 605 (CA6 1982) (voluntary conduct that employer knows might violate Act is willful).
The Secretary’s present opinion of the Jiffy June standard is expressed in her brief:
“As this Court found in Thurston (469 U. S. at 128), the ‘in the picture’ standard seems to give too little effect to Congress’s express intent to create two tiers of liability in the FLSA limitations provision. Among employers eventually found to have violated the FLSA, it would seem that there are not many who did not know that the Act was ‘in the picture.’ It may be ‘virtually impossible for an employer to show that he was unaware of the Act and its potential applicability’ (ibid.). In addition, the Jiffy June standard would impose a third year of liability even on those employers who firmly and reasonably (albeit wrongly) believe that their pay practices are lawful, a result that seems counter to the concerns expressed in the legislative process during the 89th Congress.” Brief for Petitioner 39-40 (footnote omitted).
We recognize that there is some language in Trans World Airlines v. Thurston, 469 U. S. 111 (1985), not necessary to our holding, that would seem to permit a finding of unreasonableness to suffice as proof of knowing or reckless disregard, and thus that would render petitioner’s standard an appropriate statement of the law. See id., at 126. Our decision today should clarify this point: If an employer acts reasonably in determining its legal obligation, its action cannot be deemed willful under either petitioner’s test or under the standard we set forth. If an employer acts unreasonably, but not recklessly, in determining its legal obligation, then, although its action would be considered willful under petitioner’s test, it should not be so considered under Thurston or the identical standard we approve today.
Of course, we express no view as to whether, under the proper standard, respondent’s violation was “willful.” That determination is for the District Court to make on remand from the Court of Appeals.
Question: What is the court in which the case originated?
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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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