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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
WHALEN v. UNITED STATES
No. 78-5471.
Argued November 27, 28, 1979
Decided April 16, 1980
Stewart, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Stevens, JJ., joined. White, J., filed an opinion concurring in part and concurring in the judgment, post, p. 695. BlacKmun, J., filed an opinion concurring in the judgment, post, p. 696. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 699.
Silas J. Wasserstrom argued the cause for petitioner. With him on the briefs were William J. Mertens and W. Gary Kohlman.
Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Allan A. Ryan, Jr., Jerome M. Feit, and Elliott Schulder.
Mr. Justice Stewart
delivered the opinion of the Court.
After a jury trial, the petitioner was convicted in the Superior Court of the District of Columbia of rape, and of killing the same victim in the perpetration of rape. He was sentenced to consecutive terms of imprisonment of 20 years to life for first-degree murder, and of 15 years to fife for rape. The District of Columbia Court of Appeals affirmed the convictions and the sentences. 379 A. 2d 1152. We brought the case here to consider the contention that the imposition of cumulative punishments for the two offenses was contrary to federal statutory and constitutional law. 441 U. S. 904.
I
Under the laws enacted by Congress for the governance of the District of Columbia, rape and killing a human being in the course of any of six specified felonies, including rape, are separate statutory offenses. The latter is a species of first-degree murder, but, as is typical of such “felony murder” offenses, the statute does not require proof of an intent to kill. D. C. Code § 22-2401 (1973). It does require proof of a killing and of the commission or attempted commission of rape or of one of five other specified felonies, in the course of which the killing occurred. Ibid. A conviction of first-degree murder is punishable in the District of Columbia by imprisonment for a term of 20 years to life. § 22-2404. Forcible rape of a female is punishable by imprisonment for any term of years or for life. § 22-2801.
It is the petitioner’s position that his sentence for the offense of rape must be vacated because that offense merged for purposes of punishment with the felony-murder offense, just as, for example, simple assault is ordinarily held to merge into the offense of assault with a dangerous weapon. See Waller v. United States, 389 A. 2d 801, 808 (D. C. 1978). The District of Columbia Court of Appeals disagreed, finding that “the societal interests which Congress sought to protect by enactment [of the two statutes] are separate and distinct,” and that “nothing in th[e] legislation . . . suggests] that Congress intended” the two offenses to merge. 379 A. 2d, at 1159. That construction of the legislation, the petitioner argues, is mistaken, and he further argues that, so construed, the pertinent statutes impose on him multiple punishments for the same offense in violation of the Double Jeopardy-Clause of the Fifth Amendment. Cf. North Carolina v. Pearce, 395 U.S. 711.
If this case had come here from a United States court of appeals, we would as a matter of course first decide the petitioner’s statutory claim, and, only if that claim were rejected, would we reach the constitutional issue. See Simpson v. United States, 435 U. S. 6, 11-12. But this case comes from the District of Columbia Court of Appeals, and the statutes in controversy are Acts of Congress applicable only within the District of Columbia. In such cases it has been the practice of the Court to defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern. See Pernell v. Southall Realty, 416 U. S. 363, 366; see also Griffin v. United States, 336 U. S. 704, 717-718; Fisher v. United States, 328 U. S. 463, 476. This practice has stemmed from the fact that Congress, in creating the courts of the District of Columbia and prescribing their jurisdiction, “contemplate [d] that the decisions of the District of Columbia Court of Appeals on matters of local law — both common law and statutory law — will be treated by this Court in a manner similar to the way in which we treat decisions of the highest court of a State on questions of state law.” Pernell v. Southall Realty, 416 U. S., at 368 (footnote omitted).
But it is clear that the approach described in the Pernell opinion is a matter of judicial policy, not a matter of judicial power. Acts of Congress affecting only the District, like other federal laws, certainly come within this Court’s Art. Ill jurisdiction, and thus we are not prevented from reviewing the decisions of the District of Columbia Court of Appeals interpreting those Acts in the same jurisdictional sense that we are barred from reviewing a state court’s interpretation of a state statute. Ibid. Cf. Mullaney v. Wilbur, 421 U. S. 684, 691; Scripto, Inc. v. Carson, 362 U. S. 207, 210; Murdock v. Memphis, 20 Wall. 590, 632-633.
In this case we have concluded that the customary deference to the District of Columbia Court of Appeals’ construction of local federal legislation is inappropriate with respect to the statutes involved, for the reason that the petitioner’s claim under the Double Jeopardy Clause cannot be separated entirely from a resolution of the question of statutory construction. The Fifth Amendment guarantee against double jeopardy protects not only against a second trial for the same offense, but also “against multiple punishments for the same offense,” North Carolina v. Pearce, supra, at 717 (footnote omitted). But the question whether punishments imposed by a court after a defendant’s conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized. See Gore v. United States, 357 U. S. 386, 390; id., at 394 (Warren, C. J., dissenting on statutory grounds); Bell v. United States, 349 U. S. 81, 82; Ex parte Lange, 18 Wall. 163, 176; see also Brown v. Ohio, 432 U. S. 161, 165; United States v. Universal C. I. T. Credit Corp., 344 U. S. 218; Blockburger v. United States, 284 U. S. 299; Ebeling v. Morgan, 237 U. S. 625.
It is not at all uncommon, for example, for Congress or a state legislature to provide that a single criminal offense may be punished both by a monetary fine and by a term of imprisonment. In that situation, it could not be seriously argued that the imposition of both a fine and a prison sentence in accordance with such a provision constituted an impermissible punishment. But if a penal statute instead provided for a fine or a term of imprisonment upon conviction, a court could not impose both punishments without running afoul of the double jeopardy guarantee of the Constitution. See Ex parte Lange, supra, at 176. Cf. Bozza v. United States, 330 U. S. 160, 167. In the present case, therefore, if Congress has not authorized cumulative punishments for rape and for an unintentional killing committed in the course of the rape, contrary to what the Court of Appeals believed, the petitioner has been imper-missibly sentenced. The dispositive question, therefore, is whether Congress did so provide.
The Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so. The Fifth Amendment guarantee against double jeopardy embodies in this respect simply one aspect of the basic principle that within our federal constitutional framework the legislative power, including the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them, resides wholly with the Congress. See United States v. Wiltberger, 5 Wheat. 76, 95; United States v. Hudson & Goodwin, 7 Cranch 32, 34. If a federal court exceeds its own authority by imposing multiple punishments not authorized by Congress, it violates not only the specific guarantee against double jeopardy, but also the constitutional principle of separation of powers in a manner that trenches particularly harshly on individual liberty.
Because we have concluded that the District of Columbia Court of Appeals was mistaken in believing that Congress authorized consecutive sentences in the circumstances of this case,, and because that error denied the petitioner his constitutional right to be deprived of liberty as punishment for criminal conduct only to the extent authorized by Congress, we reverse the judgment of the Court of Appeals.
II
As has already been noted, rape and the killing of a person in the course of rape in the District of Columbia are separate statutory offenses for which punishments are separately provided. Neither statute, however, indicates whether Congress authorized consecutive sentences where both statutes have been offended in a single criminal episode. Moreover, the legislative history of those specific penal provisions sheds no light on that question. The issue is resolved, however, by another statute, enacted iii 1970. That statute is § 23-112 of the District of Columbia Code (1973), and it provides as follows:
“A sentence imposed on a person for conviction of an offense shall, unless the court imposing such sentence expressly provides otherwise, run' consecutively to any other sentence imposed on such person for conviction of an offense, whether or not the offense (1) arises out of another transaction, or (2) arises out of the same transaction and requires proof of a fact which the other does not.” (Emphasis added.)
Although the phrasing of the statute is less than felicitous, the message of the italicized clause, we think, is that multiple punishments cannot be imposed for two offenses arising out of the same criminal transaction unless each offense “requires proof of a fact which the other does not.” The clause refers, of course, to a rüle of statutory construction stated by this Court in Blockburger v. United States, 284 U. S. 299, and consistently relied on ever since to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively. The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the “same offense,” they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent. In the Blockburger case the .Court held that “[t]he 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 304. See also Brown v. Ohio, 432 U. S., at 166; Iannelli v. United States, 420 U. S. 770; Gore v. United States, 357 U. S. 386.
The legislative history rather clearly confirms that Congress intended the federal courts to adhere strictly to the Block-burger test when construing the penal provisions of the District of Columbia Code. The House Committee Report expressly disapproved several decisions of the United States Court of Appeals for the District of Columbia Circuit that had not allowed consecutive sentences notwithstanding the fact that the offenses were different under the Blockburger test. See H. R. Rep. No. 91-907, p. 114 (1970). The Report restated the general principle that “whether or not consecutive sentences may be imposed depends on the intent of Congress.” Ibid. But “[s]ince Congress in enacting legislation rarely specifies its intent on this matter, the courts have long adhered to the rule that Congress did intend to permit consecutive sentences . . . when each offense “ 'requires proof of a fact which the other does not,'” ibid., citing Blockburger v. United States, supra, and Gore v. United States, supra. The Committee Report observed that the United States Court of Appeals had “retreated from this settled principle of law” by requiring specific evidence of congressional intent to allow cumulative punishments, H. R. Rep. No. 91-907, at 114, and the Report concluded as follows:
“To obviate the need for the courts to search for legislative intent, section 23-112 clearly states the rule for sentencing on offenses arising from the same transaction. For example, a person Convicted of entering a house with intent to steal and stealing therefrom shall be sentenced consecutively on the crimes of burglary and larceny unless the judge provides to the contrary.”
We think that the only correct way to read § 23-112, in the light of its history and its evident purpose, is to read it as embodying the Blockburger rule for construing the penal provisions of the District of Columbia Code. Accordingly, where two statutory offenses are not the same under the Blockburger test, the sentences imposed “shall, unless the court expressly provides otherwise, run consecutively.” And where the offenses are the same under that test, cumulative sentences are not permitted, unless elsewhere specially authorized by Congress.
In this case, resort to the Blockburger rule leads to the conclusion that Congress did not authorize consecutive sentences for rape and for a killing committed in the course of the rape, since it is plainly not the case that “each provision requires proof of a fact which the other does not.” A conviction for killing in the course of a rape cannot be had without proving all the elements of the offense of rape. See United States v. Greene, 160 U. S. App. D. C. 21, 34, 489 F. 2d 1145, 1158 (1973). Cf. Harris v. Oklahoma, 433 U. S. 682, 682-683. The Government contends that felony murder and rápe are not the “same” offense under Blockburger, since the former offense does not in all cases require proof of a rape; that is, D. C. Code § 22-2401 (1973) proscribes the killing of another person in the course of committing rape or robbery or kidnap-ing or arson, etc. Where the offense to be proved does not include proof of a rape — for example, where the offense is a killing in the perpetration of a robbery — the offense is of course different from the offense of rape, and the Government is correct in believing that cumulative punishments for the felony murder and for a rape would be permitted under Blockburger. In the present case, however, proof of rape is a necessary element of proof of the felony murder, and we are unpersuaded that this case should be treated differently from other cases in which one criminal offense requires proof of every element of another offense. There would be no question in this regard if Congress, instead of listing the six lesser included offenses in the alternative, had separately proscribed the six different species of felony murder under six statutory provisions. It is doubtful that Congress could have imagined that so formal a difference in drafting had any practical significance, and we ascribe none to it. To the extent that the Government’s argument persuades us that the matter is not entirely free of doubt, the doubt must be resolved in favor of lenity. See Simpson v. United States, 435 U. S. 6, 14-15; see also n. 10, infra.
Congress is clearly free to fashion exceptions to the rule it chose to enact in § 23-112. A court, just as clearly, is not. Accordingly, notwithstanding the arguments advanced by the Government in favor of imposing consecutive sentences for felony murder and for the underlying felony, we do not speculate about whether Congress, had it considered the matter, might have agreed. It is sufficient for present purposes to observe that a congressional intention to change the general rule of § 23-112 for the circumstances here presented nowhere clearly appears. It would seriously offend the principle of the separation of governmental powers embodied in the Double Jeopardy Clause of the Fifth Amendment if this Court were to fashion a contrary rule with no more to go on than this case provides.
For the foregoing reasons, the judgment of. the District of Columbia. Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
The jury also convicted the petitioner of other felonies, but these convictions were set aside by the District of Columbia Court of Appeals, except for a second-degree murder conviction upon which the petitioner had received a concurrent sentence. The sentence itself was vacated by the appellate court.
The statute also provides for a sentence of death upon conviction for first-degree murder, but that provision has been held to be unconstitutional. See United States v. Stokes, 365 A. 2d 615, 616, n. 4 (D. C. 1976); United States v. Lee, 160 U. S. App. D. C. 118, 123, 489 F. 2d 1242, 1247 (1973).
This is not to say that there are not constitutional limitations upon this power. See, e. g., Coker v. Georgia, 433 U. S. 584; Roe v. Wade, 410 U. S. 113, 164; Stanley v. Georgia, 394 U. S. 557, 568; Loving v. Virginia, 388 U. S. 1, 12; Robinson v. California, 370 U. S. 660, 666-667.
Although the courts of the District of Columbia were created by Congress pursuant to its plenary Art. I power to legislate for the District, see Art. I, § 8, cl. 17; D. C. Code § 11-101 (2) (1973), and are not affected by the salary and tenure provisions of Art. III, those courts, no less than other federal courts, may constitutionally impose only such punishments as Congress has seen fit to authorize.
The Court has held that the doctrine of separation of powers embodied in the Federal Constitution is not mandatory on the States. Dreyer v. Illinois, 187 U. S. 71, 84. See Mayor of Philadelphia v. Educational Equality League, 415 U. S. 605, 615, and n. 13; Sweezy v. New Hampshire, 354 U. S. 234, 255; id., at 255, 256-257 (Frankfurter, J., concurring in result). It is possible, therefore, that the Double Jeopardy Clause does not, through the Fourteenth Amendment, circumscribe the penal authority of state courts in the same manner that it limits the power of federal courts. The Due Process Clause of the Fourteenth Amendment, however, would presumably prohibit state courts from depriving persons of liberty or property as punishment for criminal conduct except to the extent authorized by state law.
Before 1962, conviction of first-degree murder in the District of Columbia led to a mandatory sentence of death by hanging. See Act of Mar. 3, 1901, § 801, 31 Stat. 1321. Accordingly, the question did not arise whether the sentence for another felony could run consecutively to that for first-degree murder. In 1962 Congress replaced the mandatory death penalty with the present language of D. C. Code § 22-2404 (1973), which allows, as an alternative to a penalty of death, a sentence of 20 years to life imprisonment. Pub. L. 87-423, 76 Stat. 46. Congress did not, however, address the matter of consecutive sentences in this amendatory legislation.
The parties in the present case are in agreement that Congress intended a person convicted of felony murder to be subject to the same penalty as a person convicted of premeditated murder, see, e. g., 108 Cong. Rec. 4128-4129 (1962) (remarks of Sen. Hartke), and subject to more severe punishment than persons convicted of second-degree murder, see S. Rep. No. 373, 87th Cong., 1st Sess., 2 (1961); H. R. Rep. No. 677, 87th Cong., 1st Sess., 2 (1961). The parties disagree as to whether the consecutive sentences in this case are in accord with that congressional intent. The petitioner argues that if a consecutive sentence for rape were permitted, he would be punished more severely than if he had committed premeditated murder. The Government counters that the relevant comparison is with the sentences permitted for premeditated murder plus rape, which can be consecutive. Likewise, the Government argues that since consecutive sentences would be permissible for second-degree murder and rape, such sentences should be permitted here to avoid punishing felony murder and rape less harshly. In our view of this case, this controversy need not now be resolved.
The Government would read D. C. Code § 23-112 to mean that courts may ignore the Blockburger rule and freely impose consecutive sentences “whether or not” the statutory offenses are different under the rule. While this may be a permissible literal reading of the statute, it would lead to holding that the statute authorizes consecutive sentences for all greater and lesser included offenses — an extraordinary view that the Government itself disavows. Such an improbable construction of the statute would, moreover, be at odds with the evident congressional intention of requiring federal courts to adhere to the Blockburger rule in construing the penal provisions of the District of Columbia Code. See infra, this page and 693.
There may be instances in which Congress has not intended cumulative punishments even for offenses that are different under the general provision contained in § 23-112. For example, in this case the District of Columbia Court of Appeals vacated the petitioner’s sentence for second-degree murder, for the reason that, in the court’s view, second-degree murder is a lesser included offense of first-degree felony murder, notwithstanding the fact that each .offense requires proof of an element that the other does not. The correctness of the Court of Appeals’ ruling in this regard is not an issue in this case.
Contrary to the view of the dissenting opinion, we do not in this case apply the Blockburger rule to the facts alleged in a particular indictment. Post, at 708-712. We have simply concluded that, for purposes of imposing cumulative sentences under D. C. Code § 23-112, Congress intended rape to be considered a lesser offense included within the offense of a killing in the course of rape.
See n. 5, supra.
This view is consistent with the settled rule that “ ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,’ ” United States v. Bass, 404 U. S. 336, 347, quoting Rewis v. United States, 401 U. S. 808, 812. See Simpson v. United States, 435 U. S. 6; Ladner v. United States, 358 U. S. 169; Bell v. United States, 349 U. S. 81. As the Court said in the Ladner opinion: “This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” 358 U. S., at 178.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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songer_r_bus
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0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of 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.
Solomon P. ROSENBLOOM, Also Known as Sol Rosenbloom, Appellant, v. UNITED STATES of America, Appellee.
No. 15842.
United States Court of Appeals Eighth Circuit.
Oct. 15, 1958.
Israel Treiman, St. Louis, Mo. (Shifrin, Treiman, Agatstein & Schermer, St. Louis, Mo., on the brief with him), for appellant.
W. Francis Murrell, Asst. U. S. Atty., St. Louis, Mo. (Harry Richards, U. S. Atty., Wayne H. Bigler, Jr., and John A. Newton, Asst. U. S. Attys., St. Louis, Mo., on the brief), for appellee.
Before GARDNER, Chief Judge, and VOGEL and MATTHES, Circuit Judges.
GARDNER, Chief Judge.
Appellant was indicted, tried and convicted on an indictment charging him with violation of the Internal Revenue Act. The indictment under which he was convicted contained six counts. In Counts I and II the indictment charged appellant with filing fraudulent joint income tax returns for himself and his wife for the calendar years 1950 and 1951. Counts III and IV charged appellant with filing false partnership returns for the Rosen-bloom Monument Company for the same two years and Counts V and VI charged him with filing false joint returns for his brother and wife for the same two years. We shall hereinafter refer to appellant as defendant.
Defendant, his brother, his two sons and his brother’s son constituted a family partnership and at the times here involved were engaged in the sale of headstones and markers for burial plots and were operating under the trade name of Rosenbloom Monument Company. Defendant and his brother had been operating the business for some thirty-five years and in the years in question were assisted by defendant’s two sons and his brother’s one son. The five were treated as equal partners on the partnership income tax returns. Defendant ran the office, supervised the bookkeeping and made out the partnership and personal income tax returns for the years 1950 and 1951. He had taken a nine months business college course which included elementary bookkeeping. The chief source of income of the members of this family partnership and their wives was from the Rosenbloom Monument Company.
The books of the company, kept under the supervision and direction of defendant, indicated that for the years involved the partnership realized no net income. However, the income tax returns for those years as prepared by the defendant showed a taxable net income of $25,-534.83 in 1950 and $26,750.21 in 1951. The evidence of the government showed that the taxable income for these years was $49,294.88 in 1950 and $53,082 in 1951. There is no material conflict in the evidence as to these primary facts. The discrepancy between the amounts shown as taxable income and the actual taxable income is largely accounted for by the fact that defendant siphoned off the income of the company by paying the sum of $51,665.00 in 1950 to the five partners and charging it to “selling expense”, and in 1951 paying the sum of $53,000 to the partners and likewise charging it to “selling expense”. Defendant admitted that in preparing the partnership tax returns he padded and enlarged legitimate items of company expense to the extent of almost $25,000 in each of the two years involved. The evidence will be further developed during the course of this opinion.
At the close of the government’s evidence in chief defendant moved for judgment of acquittal, which motion was denied. He then introduced evidence on his own behalf, following which the Court submitted the case to the jury on instructions to which defendant made no objections and saved no exceptions. The jury found the defendant guilty on all counts of the indictment and the Court, pursuant to the' verdict of guilty, sentenced defendant to imprisonment for eighteen months on each count contained in the indictment, sentences to run concurrently, and imposed a fine of $2,500. He seeks reversal on substantially the following grounds: (1) the government’s own testimony refuted the charge that the partnership returns were false and fraudulent, (2) there was not sufficient evidence of specific intent involving bad purpose and evil motive to sustain the verdict of the jury as to any of the counts and therefore the District Court erred in not sustaining the motion for new trial and for judgment of acquittal notwithstanding the verdict, and (3) the District Court committed prejudicial error in its instruction to the jury on presumption of specific intent.
It is contended by defendant that, the evidence was insufficient to sustain, the verdict of guilty, particularly as to> the charges contained in Counts III and IV, and hence he urges that the Court erred in overruling his motion for acquittal interposed at the close of the. government’s case and in overruling his-motion for judgment of acquittal notwithstanding the verdict. It is observed, however, that no motion for acquittal was.. interposed by defendant' at the close of' all the evidence. It is also to be noted that he introduced evidence in his own-defense. The question of the sufficiency of the evidence to sustain the verdict is. not before us because that question was-not made a question of law by presenting to the trial court a motion for acquittal at the close of all the evidence. Picciurro v. United States, 8 Cir., 250 F.2d 585, 589. In Picciurro v. United States, supra, we said:
“In order to entitle defendant to question the sufficiency of the evidence he must first have presented the question to the trial court by motion for judgment of acquittal interposed at the close of all the testimony, thus raising a question of' law which this court will consider on appeal, and it is well settled that absent such motion this court will not review the evidence.”
See, also, Seventh Amendment, U. S. Constitution; McDonough v. United States, 8 Cir., 248 F.2d 725; Kreinbring v. United States, 8 Cir., 216 F.2d 671; Mitchell v. United States, 8 Cir., 208 F.2d 854; Leeby v. United States, 8 Cir., 192 F.2d 331; Meier & Pohlmann Furniture Co. v. Troeger, 8 Cir., 195 F.2d 193.
It is next contended that there was-not sufficient evidence of specific intent to sustain the verdict. As above noted; the question of the sufficiency of the evidence has not been preserved and is not before us.
It is urged that the Court erred in its instruction to the jury on the question of specific intent. It is conceded that defendant interposed no objection to the instruction now complained of before the jury retired, as required by Rule 30, Federal Rules of Criminal Procedure, 18 U.S.C.A. This precludes consideration of this contention on appeal. Kreinbring v. United States, supra; Nicholson v. United States, 8 Cir., 221 F.2d 281; Gicinto v. United States, 8 Cir., 212 F.2d 8; Davis v. United States, 8 Cir., 229 F.2d 181; Schuermann v. United States, 8 Cir., 174 F.2d 397. Rule 30, Federal Rules of Criminal Procedure, provides that:
“No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”
The rule if complied with gives the trial court an opportunity to correct by modification or otherwise the instruction objected to and thus cure the error, if any. In Kreinbring v. United States, supra [216 F.2d 673], where this question was in issue, we said:
“In the absence of a request for or exceptions to instructions there is nothing to review.”
In Nicholson v. United States, supra [221 F.2d 283], it is said:
“There was no exception to this part of the charge, which precludes consideration of the complaint on appeal.”
If this were not the rule counsel for defendant, by failing to object to an erroneous instruction, might entrap the Court by thus, in effect, laying foundation for reversal in the event of conviction. The rule is certainly a very salutary one. The part of the instruction now complained of reads as follows:
“The attempt to evade and defeat the tax must be a willful attempt, that is to say, intentionally done, with the intent that the government should be defrauded of the income tax due from the defendant, by keeping from the government a tax imposed by the income tax laws, which it was the duty of the defendant to pay to the government. The presumption is that a person intends the natural consequences of his act, and the natural presumption would be that if a person knowingly or intentionally did not report all of his income and thereby the government was cheated or defrauded of taxes, that he intended to defeat the tax on the unreported income.”
The objection now urged is that specific intent may not be presumed but must be proven, and we are asked to consider the alleged error under Rule 52(b), Federal Rules of Criminal Procedure, which provides that:
“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
The instructions must be considered as a whole. Here the Court specifically instructed as to the necessity for proof of specific intent and the Court in great detail instructed as to the necessity of the jury’s finding intent to evade the particular taxes involved beyond a reasonable doubt before it could convict. Thus the Court instructed that:
“So, when intent is sought to be shown by the actions of the person in question, and the surrounding circumstances, there must be proof of facts by or from which the specific intent can be inferred and determined with certainty — that is, such proof of intent must establish this element of the charge beyond a reasonable doubt.”
We need not approve of the exact wording of the instruction here now objected to. Certainly many cases hold that it is not improper to instruct that one is presumed to intend the natural consequences of his acts where the issue of intent is clearly presented to the jury in the charge as a whole. Agnew v. United States, 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed. 624; Grayson v. United States, 8 Cir., 107 F.2d 367; Bateman v. United States, 9 Cir., 212 F.2d 61; Legatos v. United States, 9 Cir., 222 F.2d 678. In Agnew v. United States, supra [165 U.S. 36, 17 S.Ct. 242], it was urged that the Court erred in giving the following instruction:
“The law presumes that every man intends the legitimate consequence of his own acts.”
In disposing of this contention the court said:
“In our opinion there was evidence tending to establish a state of case justifying the giving of this instruction, which was unexceptionable as matter of law.”
In the instant case, while the question of the sufficiency of the evidence to sustain the verdict is not properly presented, we have examined the record with great care and think there is abundant evidence warranting the jury in finding specific intent to defeat the tax on the unreported income. In Gray-son v. United States, supra [107 F.2d 370], the trial court had instructed the jury that defendant was presumed to intend the natural consequences of her acts. It was urged that this invaded the province of the jury in that it raised a conclusive presumption of intent. Answering this contention this court said:
“There is, of course, no presumption of law to that effect. (Citing cases.) The use of the words ‘presume’ or ‘presumption’ in this connection is not to be approved. No doubt inferences as to intent may be gathered from subsequent acts and conduct, but no presumption of law follows to invade and restrict the province of the jury. However, we do not think the language employed had that effect in the instant case. The question of the particular intent was not treated as a question of law, but as a matter to be submitted to and resolved by the jury. The charge as a whole must be considered. In this same paragraph the jurors are admonished that they would be justified in finding the intent only from all the evidence in the case.”
Bateman v. United States, supra [212 F.2d 69], was a tax evasion case in which the trial court had among other things said in its instructions:
“ ‘the law presumes that every man intends the natural and probable consequences of his own voluntary acts,’ ”
This was urged as error. In response to this contention the Court said:
“Under Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., failure to except to an instruction on the ground urged on appeal forecloses review of the question. Berenbeim v. United States, 10 Cir. 1947, 164 F.2d 679.
“Although we would be justified in placing our determination of this question on the failure of appellants to comply with Rule 30, we deem it advisable to point out that the trial court correctly instructed on the element of intent.
“As often occurs counsel had singled out one instruction in claiming error without regard to the instructions considered as a whole. The instructions on intent, given by the Court, correctly stated the law, were plain and understandable, and left no room for doubt in the minds of the jurors.”
In the instant case we rest our decision upon the ground that defendant failed to object to the instructions as given by the lower court, but we think that the instructions taken as a whole clearly required the jury to find specific intent to defeat the tax on the unre' ported income. We do not think this case presents a situation warranting us to review the alleged error under Rule 52(b), Federal Rules of Criminal Procedure as we are of the view that the instructions considered as a whole were not prejudicial and that there has been no miscarriage of justice in this case.
We have considered all other contentions urged by the defendant but think them without merit. The judgment appealed from 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_casetyp1_1-3-1
|
R
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
GRANT v. HUNTER.
No. 3579.
Circuit Court of Appeals, Tenth Circuit.
March 5, 1948.
James B. Radetsky, of Denver, Colo., for appellant.
Eugene W. Davis, of Topeka, Kan., Asst. U. S. Atty., for appellee.
Before PHILLIPS, HUXMAN and MURRAH, Circuit Judges.
HUXMAN, Circuit Judge.
Petitioner, Cliff Grant, has appealed from an order of the United States District Court for the District of Kansas discharging a writ of habeas corpus.
On' September 13, 1935, petitioner was sentenced by the United States District Court for the District of New Mexico to a term of two years for violation of 18 U.S. C.A. § 88, and to a term of five years for violation of 18 U.S.C.A. § 347. The two sentences were made to run consecutively. He was committed to the United States Penitentiary at Leavenworth, Kansas. With the allowance for good time, he was conditionally released on April 8, 1940. On' June 11, 1940-, he committed an offense against federal law for which he was convicted by the United States District Court for the Western District of Michigan, and was sentenced to a term of seven years. After the allowance for statutory good time under this sentence, he was discharged on September 24, 1945. On that day, he was recommitted to serve the good time allowed under the previous two-year and five-year sentences.
Pursuant to 18 U.S.C.A. § 710, petitioner was allowed 887 days of good time deduction from the two-year and five-year sentences imposed by the District Court sentencing him in those cases. This good time was computed on the basis of the aggregate of the twO' sentences.
Petitioner maintains that 225 days of the total accumulated good time of 887 days were allowed on the two-year sentence and the balance on the five-year sentence. His argument is that the two sentences were separate and distinct from each other and that, therefore, when he began serving the five-year sentence, the 225 days of the total accumulated good time had fully completed the two-year sentence and that when thereafter he was recommitted, he could be compelled to serve only what remained of the five-year sentence.
There is no merit to this contention. Aside from the statutory provision to that effect, defendant is entitled to no good time deduction. In the absence of such a statute, a prisoner would be compelled to serve the full period of the sentence. We must, therefore, look to the statute to ascertain the amount of good time deduction to which a prisoner is entitled, as well as to to the method and manner in which good time is computed and applied. 18 U.S.C.A. § 710 provides for the allowance of good time. Among other things, it provides for the method of computing and allowing good time where one is serving two or more sentences. That portion of the statute dealing with this question is as follows: “When a prisoner has two or more sentences, the aggregate of his several sentences shall be the basis upon which his deduction shall be estimated.”
It is well settled that the imprisonment of one serving consecutive sentences is considered a single term, consisting of the aggregate of such sentences for the purpose of computing good time allowance. Under this construction of the statute, the credit for good time for good conduct does not accrue until such credit has been completely earned. Any good time deduction is contingent upon good conduct for the entire period of imprisonment until its allowance will end imprisonment. It follows, therefore, that all possible deduction for good time accredited to a prisoner serving consecutive sentences is destroyed by bad conduct even though such conduct occurs after one or more of the successive sentences has been served.
Petitioner remained a ward of the court when he was conditionally released, and when he breached the terms of his conditional release, he was subject to return to the penitentiary to serve the full remaining portion of the term of his sentence without credit for the allowance of any good time.
Affirmed.
Ebeling v. Biddle, 10 Cir., 291 F. 567; Mills v. Aderhold, 10 Cir., 110 F.2d 765; Eori v. Aderhold, 5 Cir., 53 F.2d 840; United States v. Greenhaus, 2 Cir., 89 F.2d 634; Carroll v. Zerbst, 10 Cir., 76 F.2d 961; Pagliaro v. Cox, 8 Cir., 143 F.2d 900.
Ebeling v. Biddle, 10 Cir., 291 F. 567; Carroll v. Zerbst, 10 Cir., 76 F.2d 961; Pagliaro v. Cox, 8 Cir., 143 F.2d 900; Morgan v. Aderhold, 5 Cir., 73 F. 2d 171.
Ebeling v. Biddle, 10 Cir., 291 F. 567; Carroll v. Zerbst, 10 Cir., 76 F.2d 961; Aderhold v. Hudson, 5 Cir., 84 F.2d 559; Aderhold v. Perry, 5 Cir., 59 F.2d 379; United States v. Nicholson, 4 Cir., 78 F.2d 468.
Gray v. Swope, D.C., 28 F.Supp. 822; Carroll v. Zerbst, 10 Cir., 76 F.2d 961; Aderhold v. Hudson, 5 Cir., 84 F.2d 559; Aderhold v. Perry, 5 Cir., 59 F.2d 379; Ebeling v. Biddle, 10 Cir., 291 F. 567.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
songer_numresp
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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.
SAMMONS et al. v. COLONIAL PRESS, Inc., et al. COLONIAL PRESS, Inc., v. SAMMONS et al.
Nos. 3735, 3736.
Circuit Court of Appeals, First Circuit.
Feb. 20, 1942.
Rehearing Denied March 12, 1942.
Robert V. Jones, of Chicago, Ill. (Arthur Thad Smith, of Boston, Mass., on the brief), for Sammons and others.
Stanley G. Barker, of Worcester, Mass. (Thayer, Smith & Gaskill, of Worcester, Mass., on the brief), for Colonial Press, Inc.
No appearance or argument for other appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAGRUDER, Circuit Judge.
These are cross-appeals in a suit for copyright infringement.
The main question is whether under § 25(b) of the Copyright Act of 1909, 35 Stat. 1081, 17 U.S.C.A. § 25(b), a contract printer is jointly liable with the infringing publisher for the profits which the latter made from sales of the infringing book, the plaintiffs having offered no evidence of actual damages from the infringement. We think the district court correctly answered this question in the negative.
One Larkin got up a book called “Who’s Who in Massachusetts.” Through reference and introduction by the University Press, Larkin got in touch with the Colonial Press, Inc., and on May 8, 1939, a contract was made between them whereby Colonial Press agreed to print 3,000 copies of the book, of which 1,000 copies were to be bound, for a total price of $7,500. Colonial Press obligated itself to pay to University Press a commission of $994 for forwarding the job.
Colonial Press is a book manufacturer. It does the actual mechanical work' involved in producing books — the printing, electrotyping, stitching and binding — after receiving manuscripts from publishers. It is not engaged in the publication of books.
Larkin began furnishing manuscript in May, 1939. Colonial Press made its first delivery of books to Larkin on December 6 of that year.' On February 8, 1940, the plaintiffs (a partnership doing business' as the A. N. Marquis Co.) gave written notice to Colonial Press. that the book “Who’s Who in Massachusetts” ■ constituted an infringement of the plaintiffs’ copyrighted book “Who’s Who in New England.” Printing was stopped by Colonial Press on February 26. In the period between February 26 and April 12,1940, when deliveries ceased, Colonial Press delivered to Larkin between 1,500 and 2,000 books. In all, 2,-812 books were delivered. Larkin sold 2,-280 volumes of his work for $18,795.
The plaintiffs’ complaint, filed in the court below, j oined Larkin and the Colonial Press, Inc., as co-defendants, and after setting forth the ownership by plaintiffs of the copyright of the book “Who’s Who in New England,” charged that “the defendants infringed said copyright by printing, publishing, selling and placing upon the market a book entitled ‘Who’s Who in Massachusetts.’ ” A second count for trademark infringement and unfair competition by the defendants acting jointly and for their mutual profit was dismissed by the court with prejudice, upon motion by the plaintiffs.
The district court made findings that the accused book infringed the plaintiffs’ copyright ; that Larkin made a net profit of $7,-236.50 from sales of the book; that Colonial Press realized no net profit out of its printing contract. It ruled that Colonial Press, though it acted in good faith and was not a conscious and deliberate infringer, was nevertheless liable for infringement, along with the publisher Larkin, because it was “the combined effort of Colonial and Lar-kin that placed the infringing book upon the market.” However, the district court ruled that the Press was not jointly accountable with Larkin for the profits Larkin made.
, On the basis of the foregoing, the court permanently enjoined the two defendants from further infringement, gave judgment against Larkin for his profits of $7,236.50, •together with costs, including $1,500 for attorney’s fee, and gave judgment against Colonial Press ’ for $250 and. costs. The sum assessed against the Press was “in lieu-of actual damages and profits” and was the minimum amount permissible under § 25(b).
’ The plaintiffs and the defendant Colonial Press each took an appeal from this judgment'. Larkin did not’ appeal. The correctness of the finding of infringement- is not now challenged, nor is any issue raised as.to the amount of Larkin’s profits.
The chief contention of the plaintiffs in their appeal is that the court below should have held Colonial Press jointly liable for the profits madé by Larkin.
Under § 25(b) any person infringing copyright is liable “to pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the fringement, as well as all the profits which the infringer shall have made from such infringement * * In lieu of actual damages 'and profits such damages shall be assessed “as to the court shall appear to be just,” within prescribed maximum and minimum limits.
Damages ■ and profits are distinct items of recovery, and are awarded upon quite different legal principles.
In a case like the present, the measure of damages is the profits which the plaintiffs would have made upon additional sales of its copyrighted book, had not the infringing book been competing in the market. Gross v. Van Dyk Gravure Co., 2 Cir., 1916, 230 F. 412, 414. It is often difficult, for obvious reasons, to make satisfactory proof of such damages, and the plaintiffs did not attempt to do so in the case at bar. Where the copyright owner can show as damages his probable losses resulting from an infringement, it is clear, on familiar principles of tort liability, that all persons who unite in the infringement are jointly and severally liable for the damages resulting therefrom. Gross v. Van Dyk Gravure Co., 2 Cir., 1916, 230 F. 412.
On the other hand, accountability of an infringer for the profits he has made had its origin in equity. Stevens v. Gladding, 1854, 17 How. 447, 455, 15 L.Ed. 155. “Prior to the Copyright Act of 1909 * * * there had been no statutory provision for the recovery of profits, but that recovery had been allowed in equity both in copyright and patent cases as appropriate equitable relief incident to a decree for an injunction.” Sheldon v. Metro-Goldwyn Pictures Corp., 1940, 309 U.S. 390, 399, 60 S.Ct. 681, 684, 84 L.Ed. 825. The theory was that it was unconscionable for an infringer to retain a benefit which he had received by the appropriation and use of the plaintiff’s property right; and to prevent unjust enrichment the infringer was treated as a trustee ex maleficio of his ill gotten gains. As 'fhé court pointed out in L. P. Larson, Jr., Co. v. Wm. Wrigley, Jr., Co., 1928, 277 U.S. 97, 99, 100, 48 S.Ct. 449, 72 L.Ed. 800: “To call the infringer an agent or trustee is not to state a fact but merely to indicate a mode of approach and an imperfect analogy by which the wrongdoer will be made to hand over the proceeds of his wrong.” Accountability for profits is therefore peculiarly personal, as equity acts on the conscience of the infringer. The presupposition is that the infringer has gotten something which it is unconscionable for him to keep; and hence'it logically follows that the infringer is accountable only for the profits he received, not for the profits which may have been received by a co-infringer. Of course, when the infringement is by a partnership, the partners are jointly accountable for the whole profit made by the partnership on ordinary principles of partnership law. Callaghan v. Myers, 1888, 128 U.S. 617, 9 S.Ct. 177, 32 L.Ed. 547.
Liability of an infringer for profits is thus not by way of rough and ready reparation to the plaintiff for the damages which he is presumed to have suffered from the infringement. The profits which were made by the infringer may bear no relation to the damages suffered by the copyright proprietor. Thus the latter may have made no effort to exploit his copyright, in which case it would be apparent that he had not been deprived of a gain he otherwise would have made but for the infringement. Dam v. Kirk La Shelle Co., 2 Cir., 1910, 175 F. 902, 908, 41 L.R.A., N.S., 1002, 20 Ann.Cas. 1173. Again, if the copyrighted book is in an expensive de luxe edition and the infringing work a cheap edition, the profits from infringement might well come from sales in a market which the plaintiff would not have tapped anyway. Huebsch v. Arthur H. Crist Co., D.C.N.D.N.Y.1914, 209 F. 885, 894. And even where the two books are competing at the same market level, there may be substantial differences in the respective costs of the copyright proprietor and the infringer, in the effectiveness of their respective sales organizations and advertising, and in many other factors, all of which would render the profits made by the infringer wholly unreliable as an indication of the proprietor’s damages, that is, the profits which he would have made but for the infringement. See Weil, Copyright Law (1917) pp. 471-73.
The basic fallacy in the plaintiffs’ argument lies in their confusion of profits with damages. This is apparent from their brief: “The infringer or infringers, having preempted the position of the copyright owner and having sold or exploited the copyrighted material, should restore to the' copyright owner the profits he was so prevented from making for himself. For this purpose of reparation it makes no difference how the infringers (if there be more than one) may have divided the profits among themselves; the crux of the matter is not that they, the infringers, have receiyed profits but that they have wrongfully deprived someone else of profits which rightfully should have been his. The test of liability, that is, is not the extent of benefit received, but the extent of wrong done. The total profits resulting from the wrongful appropriation is a measure of the wrong done; admittedly it is not an entirely accurate measure, but an entirely accurate measure is impossible from the nature of the situation; * *
It must be conceded that expressions in some of the earlier Supreme Court cases lend countenance to the plaintiffs’ argument. Thus, in Dean v. Mason, 1857, 20 How. 198, 203, 15 L.Ed. 876, the court said:
“The rule in such a case is, the amount of profits received by the unlawful use of the machines, as this, in general, is the damage done to the owner of the patent.” Again, in Mowry v. Whitney, 1871, 14 Wall. 620, 653, 20 L.Ed. 860, the court said: “The profits which are recoverable against an infringer of a patent are in fact a compensation for the injury the patentee has sustained from the invasion of his right. They are the measure of his damages. Though called profits, they are really damages, and unliquidated until the decree is made.” Similarly, in Littlefield v. Perry, 1874, 21 Wall. 205, 230, 22 L.Ed. 577, it was said: “Profits actually realized are usually, in a case like this, the measure of unliquidated damages.”-
On the other hand, the more recent cases, and the better considered of the older cases, recognize clearly enough the divergent principles upon which recovery is had for damages and for profits. In Rubber Co. v. Goodyear, 1869, 9 Wall. 788, 804, 19 L.Ed. 566, the court explained the accountability of an infringer for profits as follows: “It makes the wrong-doer liable for actual, not possible, gains. The controlling consideration is, that he shall not profit by his wrong.” In Packet Co. v. Sickles, 1873, 19 Wall. 611, 617, 22 L.Ed. 203, Mr. Justice Miller, after referring to the measure of damages for infringement in an action at law, said: “The rule in suits in equity, of ascertaining by a reference to a master the profits which the defendant has made by the use of the plaintiff’s invention, stands on a different principle. It is that of converting the infringer into a trustee for the patentee as regards the profits thus made; * * *.” Again, in Burdell v. Denig, 1875, 92 U.S. 716, 720, 23 L.Ed. 764, Mr. Justice Miller stated: “Profits are not the primary or true criterion of damages for infringement in an action at law. That rule applies eminently and mainly to cases in equity, and is based upon the idea that the infringer shall be converted into a trustee, as to those profits, for the owner of the patent which he infringes, * * And see, to the same effect, a much quoted passage from the opinion of Mr. Justice Gray in Tilghman v. Proctor, 1888, 125 U.S. 136, 145, 146, 8 S.Ct. 894, 31 L.Ed. 664. In Duplate Corp. v. Triplex Safety Glass Co., 1936, 298 U.S. 448, 457, 56 S.Ct. 792, 796, 80 L.Ed. 1274, the court said: “The wrongdoer must yield the gains begotten of his wrong.” Without unduly multiplying citations, we may refer finally to the opinion of Chief Justice Hughes in Sheldon v. Metro-Goldwyn Pictures Corp., 1940, 309 U.S. 390, 399, 60 S. Ct. 681, 684, 84 L.Ed. 825, where he states that the remedy of accountability for profits “had been given in accordance with the principles governing equity jurisdiction, not to inflict punishment but to prevent an unjust enrichment * *
In patent cases it is well settled that co-infringers, unless they are partners, are severally accountable only for the profits each has received. Elizabeth v. Pavement Co., 1877, 97 U.S. 126, 24 L.Ed. 1000; Belknap v. Schild, 1896, 161 U.S. 10, 25, 26, 16 S.Ct. 443, 40 L.Ed. 599; Covert v. Sargent, C.C.S.D.N.Y.1889, 38 F. 237; Kissinger-Ison Co. v. Bradford Belting Co., 6 Cir., 1903, 123 F. 91, 93; Dowagiac Mfg. Co. v. Deere & Webber Co., 8 Cir., 1922, 284 F. 331, 337, 338; International Radio Telegraph Co. v. Atlantic Communication Co., 2 Cir., 1923, 290 F. 698, 703. See 3 Walker on Patents (Deller’s ed., 1937) § 841. In Belknap v. Schild, supra, the court said (pages 25, 26 of 161 U.S., page 448 of 16 S. Ct., 40 L.Ed. 599) : “In a suit in equity for the infringement of a patent, the ground upon which profits are recovered is that they are the benefits which have accrued to the defendants from their wrongful use of the plaintiff’s invention, and for which they are liable, ex ssquo et bono, to the like extent as a trustee would be who had used the trust property for his own advantage. The defendants, in any such suit, are therefore liable to account for such profits only as have accrued to themselves from the use of the invention, and not for those which have accrued to another, and in which they have no participation.”
We see no reason why the same rule should not apply in the case of copyright infringement. Accountability of an in-fringer for profits was enforced in equity, both in patent and copyright cases, on the same equitable principles, even before the patent and copyright laws specifically authorized this relief. When, by amendment, these laws did so authorize the recovery of profits, there was no change in the principle upon which such relief had theretofore been granted by courts of equity. See Sheldon v. Metro-Goldwyn Pictures Corp., 1940, 309 U.S. 390, 399, 400, 60 S.Ct. 681, 84 L.Ed. 825. In that case the court, though not having before it the particular point now in question, recognized (at page 400 of 309 U.S., at page 684 of 60 S.Ct., 84 L.Ed. 825) the similarity of the remedies provided in patent and copyright cases: “In passing the Copyright Act, the apparent intention of Congress was to assimilate the remedy with respect to the recovery of profits to that already recognized in patent cases. Not only is there no suggestion that Congress intended that the award of profits should be governed by a different principle in copyright cases but the contrary is clearly indicated by the committee reports on the bill.”
There could be no question about this, were it not for the decision of the Supreme Court in Belford v. Scribner, 1892, 144 U.S. 488, 12 S.Ct. 734, 36 L.Ed. 514, upon which the plaintiffs chiefly rely. The facts there were strikingly similar to those in the case at bar. The infringing publisher procured his book to be manufactured under contract with a printer. In a suit for infringement, brought against the publisher and printer jointly, it appeared that the publisher had made a net profit of $1,092. No proof was offered as to the profit, if any, made by the printer in the performance of his printing contract. The lower court decreed that the two defendants were jointly liable for the profits made by the publisher. Upon appeal it was contended by the printing firm (Donohue & Henneberry) that no decree for the payment of any profits could lawfully be entered against them in the absence of proof that they had made any profits. The Supreme Court in affirming the decree below said (pages 507, 508 of 144 U.S., at page 740 of 12 S.Ct., 36 L.Ed. 514) : “To this view it is replied by the plaintiff that, as the defendants Donohue & Henneberry printed the books by contract with the corporation defendant, and as, under the copyright law (Rev.St. § 4964), both the printer and the publisher are equally liable to the owner of the copyright for an infringement, and as it is to be inferred that Donohue & Henneberry made a profit from printing the piratical books, they were therefore sharers in the profits realized from the sale of the books, and were participes criminis with the defendant corporation in the infringement; that the two sets of defendants together printed and published the books, and were practically partners in doing it, — the corporation doing one part, and the other defendants the other part, of the printing and publishing; and that all the parties concerned ought to be held to an account to the owner of the copyright in respect to the profits derived from the printing, publishing, and selling, without all of which combined there could have been no infringement. We think these views are sound.”
It is to be noted that the court based its opinion upon the ground that the printer and the publisher were “practically partners” in putting the infringing book on the market, a conclusion hardly justified by the facts of the case. However, the case was distinguished on this ground in Dowagiac Mfg. Co. v. Deere & Webber Co., 8 Cir., 1922, 284 F. 331, 340, and by the court below in the case at bar. If Belford v. Scribner cannot fairly be distinguished on this ground we thin-k it is irreconcilable with the long line of cases, of which the latest is Sheldon v. Metro-Goldwyn Pictures Corp., supra, explaining the true equitable principles upon which an infringer is accountable for profits; hence we cannot accept Belford v. Scribner as a controlling authority in the instant case. But see, contra, Amdur, Copyright Law and Practice (1936) pp. 1158— 1162; Caplan, The Measure of Recovery in Actions for the Infringement of Copyright (1939) 37 Mich.L.Rev. 564, 571. Colonial Press was in no proper sense a partner with Larkin in marketing the infringing book and sharing profits from the sales thereof. Its relationship to Larkin was that of an independent contractor, manufacturing the book for a fixed contract price, which was payable whether or not Larkin made any profit from the sales of the book.
So far as we can find, no case since Bel-ford v. Scribner, involving either patent or copyright infringement, has held that co-infringers who are not partners are accountable for anything more than the profits which each infringer has individually received as a result of the infringement. In Gross v. Van Dyk Gravure Co., 2 Cir., 1916, 230 F. 412, 414, a copyright case, there was a dictum that one co-infringer “should not be charged with any part of the profits the other infringers made.” We do not find that anything to the contrary was held in Haas v. Leo Feist, Inc., D.C.S.D.N.Y.1916, 234 F. 105. In that case the defendant Leo Feist, Inc., was a publishing house which employed the defendant Piantadosi as a composer of melodies. Piantadosi composed a song which was held to be an infringement of the plaintiff’s' copyright. The infringing song was published by the corporate defendant. A decree for an accounting of profits went against both defendants. There is, however, nothing in the opinion to indicate that the individual defendant was to be held accountable for the net profits made by the publishing house; for all that appears, he was accountable only for what he received for the song from the corporate defendant. Nor does it appear that the corporate defendant was denied a deduction, as part of its costs, of what it paid to the individual defendant for the song. For an early case of copyright infringement in which it was recognized that each co-infringer was accountable only for the profits he received, see Stevens v. Gladding, C.C.R.I.1856, Fed. Cas.No. 13,399, 2 Curt. 608.
If the plaintiffs’ theory of joint accountability were correct, then in Sheldon v. Metro-Goldwyn Pictures Corp., 1940, 309 U.S. 390, 60 S.Ct. 681, 84 L.Ed. 825, Metro-Goldwyn would have been accountable not only for the profits it received but also for profits made by independent exhibitors to whom it rented the infringing picture. In the district court, 26 F.Supp. 134, 144, 145, it was ruled as follows:
“The question has been raised as to the liability of the several defendants for the profits made by their codefendants. Section 25 of the Copyright Act requires each infringer to account for the profits it received. The statute gives the complainant the right to recover those profits from that infringer, but no other infringer is jointly liable therefor. As to the damages sustained by a complainant through the infringement of his copyright, infringers who are joint tort feasors are jointly liable. * * *
“Loew’s, Inc. [an independent exhibitor], will not be held liable for the profits of the other defendants. The Pictures Corporation will not be held for the profits of Loew’s.”
The effort of the complainants to have each infringer charged with the aggregate profits made by all the infringers was apparently abandoned on appeal, for neither in the opinion of the circuit court of appeals (2 Cir., 106 F.2d 45) nor in that óf the Supreme Court was the point further alluded to.
We conclude, therefore, that the district court rightly refused to charge Colonial Press with the profits made by Larkin.
Plaintiffs challenge the finding of the district court that Colonial Press made no net profit on the printing contract. This point turns on the correctness of the court’s allowance of a deduction of $2,936.-25 for “overhead expenses.”
Colonial’s net bill to Larkin amounted to $8,091.93. Deducted from this was an item of $2,836.96 for direct labor cost in manufacturing the infringing book, an item of $1,588.24 for materials used, and an item of $994 which Colonial is obligated to pay University Press as commission for forwarding the job. Up to this point and disregarding any allowance for overhead expenses, Colonial shows an apparent profit of $2,672.73.
It might be suggested, with some force, that the profits for which an infringer is accountable should be calculated without any deduction of a fractional part of the fixed general overhead expenses which presumably would have been borne by him even had he not participated in the infringement complained of. Manufacturers are frequently glad to make a contract at a price which yields no net profit on a strict cost accounting basis but which does yield sufficient profit to carry a portion of the inescapable overhead. In such a case it would be difficult to deny that the infringer has reaped a benefit in dollars and cents from the infringement, for which he ought to be accountable. Possibly a deduction for overhead should be allowed in such a case when the infringement is innocent and denied when the infringement is conscious and deliberate. Cf. L. P. Larson, Jr., Co. v. Wm. Wrigley, Jr., Co., 1928, 277 U.S. 97, 48 S.Ct. 449, 72 L.Ed. 800; Sheldon v. Moredall Realty Corp., D.C.S.D.N.Y.1939, 29 F.Supp. 729, 730, 731.
We do not pursue this point because in the present case the plaintiffs say in their brief: “It is not contended that an in-fringer is barred from claiming credit for a particular expense which may be incurred in connection with the production of an infringing work simply because that expense is of a type included within ‘overhead expense.’ ” Furthermore, the cases seem to assume, without much discussion, that the infringer is entitled to a deduction of that portion of the overhead expense properly allocable to the particular job. Rubber Co. v. Goodyear, 1869, 9 Wall. 788, 804, 19 L.Ed. 566: “The calculation is to be made as a manufacturer calculates the profits of his business”; Myers v. Callaghan, C.C.N.D.Ill.1885, 24 F. 636, 638, 639, same case on appeal, sub nom. Callaghan v. Myers, 1888, 128 U.S. 617, 9 S.Ct. 177, 32 L.Ed. 547; Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 1939, 106 F.2d 45, 52, 53; Id., 1940, 309 U.S. 390, 409, 60 S.Ct. 681, 84 L.Ed. 825; Levin Bros. v. Davis Mfg. Co., 8 Cir., 1934, 72 F.2d 163; Ruth v. Stearns-Roger Mfg. Co., D.C.D. Colo.1935, 13 F.Supp. 697; Sheldon v. Moredall Realty Corp., D.C.S.D.N.Y.1939, 29 F.Supp. 729, 730, 731.
We assume that in a case like the present a deduction for overhead is allowable if properly established by proof. As stated in Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 1939, 106 F.2d 45, 54: “ ‘Overhead’ which does not assist in the production of the infringement should not be credited to the infringer; that which does, should be; it is a question of fact in all cases.” Section 25(b) provides that “in proving profits the plaintiff shall be required to prove sales only and the defendánt shall be required to prove every element of cost which he claims * * *.” The burden thus cast upon the defendant requires him to give evidence of more than a blanket undifferentiated item of “overhead”; he must give satisfactory evidence of each item of general expense or overhead, show that each item assisted in the production of the infringement, and offer a reasonably acceptable formula for allocating a portion of the general overhead to the particular job. A theoretically perfect allocation is impossible, but there must be a rough approximation within the limits of practicality.
The evidence offered by Colonial Press in respect to overhead did not, we 'think, meet its statutory burden of proof. Its only witness on this matter was the president of the corporation. He gave the figure of $278,382.82 as the total amount paid out for “productive labor” during 1939. $288,142.19 was the total amount of general overhead expenses for that year. Overhead for 1939 thus bore a relation of 103.5% to expenditures for productive labor. Taking 103.5% of $2,836.96 — the total direct labor cost of the job of printing the infringing book — the witness testified that $2,936.25 should be allocated as the overhead expense for the particular job. The above item of $288,142.19 for overhead was computed as follows: $365,128.71 (described as “cost of sales” less costs of material, paper and direct labor), plus a lump figure of $94,296.93 for “administrative costs”, less a lump figure of $171,283.45 for “house credits,” undefined. It was stated that “costs of sales” embraced “merchandise, non-productive labor, supplies, rent, depreciation, repairs, light and power, heat, insurance, house errors and other expenses.” The detailed breakdown of these items was not given, except for the sum of $24,200 as rent for the premises occupied by Colonial Press. “Administrative costs” were described as including “salaries;, clerical and executive, selling expense and provision for bad debts.” Here, again, there was no breakdown of the individual items, except that the witness testified that the “selling expenses” amounted to $24,600. No further specific figures were given. There seems to have been one duplication. Colonial was allowed to allocate to the particular job a portion of the 1939 “selling expenses” of $24,600. It was also allowed to deduct a specific item of $994 as commission payable to the University Press for forwarding the same job.
The foregoing evidence — unsatisfactory in its generality — is an insufficient basis for a finding as to which specific items of overhead expense assisted in the production of the infringement and which did not. See Kissinger-Ison Co. v. Bradford Belting Co., 6 Cir., 1903, 123 F. 91, 94, 95; Ruth v. Stearns-Roger Mfg. Co., D.C.D.Colo. 1935, 13 F.Supp. 697, 706. It is, for instance, not apparent how the items for “house errors” and “provision for bad debts” assisted in the manufacture of the infringing book. The amount and character of “other expenses” are left wholly to speculation. It is clear that it is impossible to tell on the present record whether the relationship of 103.5% is a reasonable basis for making the allocation of overhead. Therefore, the case will have to go back to the district court for further proof on the items of overhead as they may affect the computation of the net profit or loss made by Colonial Press on the printing job.
Counsel for the plaintiffs strenuously objected to the presentation of the evidence offered by Colonial Press on overhead, because of its indefiniteness. The district court suggested in its opinion that plaintiffs “could have asked for Colonial’s books and examined them in detail in order to disprove the defendant’s contentions. This they did not attempt to do.” [38 F.Supp. 649, 654.] We think they had no need to do so, until Colonial Press had made out a case for the claimed deduction.
One matter that may affect the calculation of Colonial’s net profit or loss is the fact that though Colonial’s net hill to Larkin amounted to $8,091.93, it has actually received from Larkin only $6,517.01, leaving a balance owing to it of $1,574.92. If this amount of $1,574.92 is uncollectible, as may well be the case in view of the district court’s finding that “Larkin was no financial colossus,” Colonial will be entitled to a deduction therefor in computing its net profits. However, in the absence of evidence that this account receivable is uncollectible, no deduction will be allowed. See Ruth v. Stearns-Roger Mfg. Co., D.C.D.Colo.1935, 13 F.Supp. 697, 707.
The district court committed no abuse of discretion, so far as we can see, in allowing $1500 attorney’s fee as part of the costs against Larkin only and not against Colonial Press. See § 40 of the Copyright Act, 17 U.S.C.A. § 40; S. E. Hendricks Co., Inc., v. Thomas Pub. Co., 2 Cir., 1917, 242 F. 37, 42; Buck v. Crescent Gardens Operating Co., D.C.D.Mass.1939, 28 F.Supp. 576, 578.
No evidence of actual damages having been given, if Colonial Press made no profits for which it is accountable the assessment by the district court under § 25 (b) of statutory damages against Colonial in the minimum amount of $250 cannot be reviewed upon appeal. Douglas v. Cunningham, 1935, 294 U.S. 207, 210, 55 S.Ct. 365, 79 L.Ed. 862; Hartfield v. Peterson, 2 Cir., 1937, 91 F.2d 998, 1001. However, if the district court finds after further hearing upon remand that Colonial Press made profits for which it must account, the amount of such profits will be the measure of recovery, and it will no longer be permissible to decree statutory damages “in lieu of actual
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
O. V. OYLER, Appellant, v. Douglas McKAY, Secretary of the Department of Interior, a United States Government Agency; and Lewis L. Strauss, H. D. Smith, Joseph Campbell, Dr. Henry D. Smyth, Thomas E. Murray and Eugene M. Zuchert, Atomic Energy Commission, a United States Government Agency, Appellees.
No. 5151.
United States Court of Appeals Tenth Circuit.
Oct. 27, 1955.
Richard J. Hogan, Salt Lake City, Utah, for appellant.
Fred W. Smith, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., A. Pratt Kesler, U. S. Atty., Salt Lake City, Utah, Roger P. Marquis, Atty., Department of Justice, Washington, D. C., were with him on the brief), for appellees.
Before BRATTON, MURRAH, and PICKETT, Circuit Judges.
PICKETT, Circuit Judge.
The appellant and three others brought this suit against Douglas McKay, Secretary of the Department of Interior, a United States Government Agency, and Lewis L. Strauss, H. D. Smith, Joseph Campbell, Dr. Henry D. Smyth, Thomas E. Murray, and Eugene M. Zuchert, Atomic Energy Commission, a United States Government Agency, to set aside and declare an order and judgment of the Secretary of the Department of Interior fraudulent and void; and for a decree that 'the plaintiffs’ location of a mining claim was a good, valid and subsisting mineral location; that the plaintiffs be adjudged the right of possession thereof including the right to develop, explore, mine, remove and sell the ore therein; and that the defendants be restrained from interfering with the plaintiffs’ possession of said mining claim. The trial court entered a judgment in favor of the defendants and against the plaintiffs upon the ground that the United States was an indispensable party and had not consented to be sued.
The complaint alleges that Douglas McKay is the Secretary of Interior, a Government Agency of the United States, and that the remaining defendants compose the Atomic Energy Commission, a Government Agency of the United States; that on or about May 26, 1937, the plaintiffs entered upon the unreserved, unoccupied public domain of the United States in an unknown mining district situated in the “Grand Wash Canyon” in Utah, and in accordance with the law, located a mining claim containing a vein of valuable mineral; and that the plaintiffs caused the notice of the location of this mining claim to be duly recorded in the office of the County Recorder of Wayne County, Utah.
It is alleged that on or about August 2, 1937, the President of the United States by proclamation withdrew and set apart the area embracing the “Grand Wash Canyon” as a national monument in accordance with the authority granted him by statute; that on November 25, 1941, pursuant to the statute relating to the control and management of public lands, the Secretary of the Interior through his subordinate, the Commissioner of the General Land Office, filed an action in the District Land Office to adverse the rights of the locators of the claim on the grounds that the lands embraced within the claim were nonmineral in character, and that minerals had not been found within the limits of the claim in sufficient quantities to constitute a valid discovery ; and that all of the plaintiffs, except the appellant Oyler, through ignorance, inadvertence and mistake appeared at the local land office of the register prior to the default date thereof, made an oral protest thereto, and asserted the validity of their claim. Oyler was never served with notice of the adverse proceedings.
The complaint further alleges that on or about October 7, 1942, the then Secretary of the Department of Interior, through the Commissioner of the General Land Office, arbitrarily and fraudulently and contrary to the United States Constitution caused to be entered in the adverse proceedings a default judgment against the plaintiffs voiding and vacating the mining claim location, on the grounds that the claim was nonmineral, and that minerals in sufficient quantities to constitute a valid discovery had not been found within the limits of the claim; that plaintiffs appealed from that decision, and on March 7, 1950, the Secretary of the Department of Interior through the Solicitor of the Department of Interior, affirmed the decision.
The plaintiffs then allege that on or about April, 1952, the Secretary of the Interior transferred the mineral properties to the Atomic Energy Commission, the members of which are named as defendants in the instant action.
The trial court denied a motion to quash the service of summons and to dismiss the complaint on the grounds that the action was in personam; that the defendants were inhabitants of the District of Columbia; and that the court could not make valid service upon or acquire jurisdiction of the defendants. The defendants answered and alleged, inter alia, that the action was in effect a suit against the United States, since its property and property rights and interests were directly involved, and that it should be dismissed because the United States had not consented to be sued. A motion for summary judgment was denied.
The case was tried and the trial court found that the United States was a necessary party defendant to the suit; that the United States could not be made a party defendant because it had not given its consent to be sued in' an action of this nature; and concluded that the defendants were entitled to a judgment in their favor.
This court has recently had occasion to pass upon the precise question in issue in State of New Mexico v. Backer, 10 Cir., 199 F.2d 426, wherein it was held that the enjoining of the construction engineer and certain employees of the Bureau of Reclamation from reducing the water level of a reservoir operated by government employees interfered with the management and control of property of the United States and raised questions of law and fact upon which the United States would have to be heard.
In that case, this court relied upon Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628, wherein the Supreme Court reviewed the many cases involving the question of when an action against a government officer is in fact one against the United States. The court concluded that the two types of cases in which an action may be maintained against Government officers are where the officer is acting beyond his delegated power and when the statutes or order conferring power upon the officer to act is unconstitutional or invalid. The test is whether by obtaining relief against the officer, relief will not, in effect, be obtained against the sovereign.
In this case, Oyler sought to set aside the order of the Secretary of the Department of Interior, have his location of a mining claim decreed to be valid, and be adjudged the right to develop, explore, mine, remove, and sell the ore therein. The very purpose of the action is to determine whether Oyler’s mining claim was sufficient to entitle him to possession and to take ore from land which is admittedly a part of the public domain and now a national monument. The action attempts to restrain government officials from exercising valid governmental authority by virtue of their respective offices over lands belonging to the United States. No contention is made that the officers acted beyond their statutory authority, or that the law or orders under which they acted were unconstitutional. The relief sought will affect land and ore belonging to the United States, and the latter has not consented to be sued. In the absence of such consent, the suit must fail. Larson v. Domestic & Foreign Commerce Corp., supra; United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058; United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; Morrison v. Work, 266 U.S. 481, 45 S.Ct. 149, 69 L.Ed. 394; Goldberg v. Daniels, 231 U.S. 218, 34 S.Ct. 84, 58 L.Ed. 191; State of New Mexico v. Backer, supra.
Affirmed.
. 16 U.S.C.A. § 431.
. In the Backer case we said that it is “well settled that whether an action is one against the sovereign is determined not by the party named as defendant, but by the result of the judgment or decree which may be entered.” [199 F.2d 427.]
. In Morrison v. Work, supra, the Supreme Court said [266 U.S. 481, 45 S. Ct. 151]: “The claim of the United States .is at least a substantial one. To interfere with its management and disposition of the lands or the funds by enjoining its officials, would interfere with the performance of governmental functions and vitally affect interests of the United States. It is therefore an indepensable party to this suit. It was not joined as defendant. Nor could it have been, as Congress has not consented that it be sued. The bill so far as it complains of acts done pursuant to the later legislation, was properly dismissed for this reason, among others.” (Footnotes omitted.)
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_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.
UNITED STATES of America, Plaintiff-Appellee, v. Robert D. GOLUB, Defendant-Appellant.
No. 79-1577.
United States Court of Appeals, Tenth Circuit.
Dec. 1, 1982.
Rehearing Denied Feb. 25, 1983.
Linda Surbaugh, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., with her on brief), Denver, Colo., for plaintiff-appellee.
Thomas A. Wallace, Denver, Colo., for defendant-appellant.
Before BARRETT, DOYLE and McKAY, Circuit Judges.
BARRETT, Circuit Judge.
This case is before us following a partial remand to the district court, pursuant to our en banc order. A brief recitation of the litigative history will facilitate our review.
Robert H. Golub (Golub) was charged in an eight count indictment on February 24, 1979, with mail fraud and with transportation of money obtained by fraud in violation of 18 U.S.C.A. §§ 1341 and 2314. Golub was arraigned on February 24,1979, and on March 7,1979, the cause was set for trial on April 16, 1979.
On March 30, 1979, Daniel Smith, retained counsel for Golub, moved to withdraw. During a hearing on the motion on April 9, 1979, the district court questioned Golub relative to his plans for obtaining counsel:
THE COURT: I gather the defendant is here. What are your plans as to getting a lawyer?
THE DEFENDANT: Sir?
THE COURT: What are your plans as to getting a lawyer, what do you plan to do?
THE DEFENDANT: I’ve contacted my family and we are in the process of doing that, Your Honor.
THE COURT: Well, do you oppose this motion to withdraw?
THE DEFENDANT: No, sir.
THE COURT: And do you understand that the case is set for trial and it’s going to trial—
THE DEFENDANT: Yes, sir.
THE COURT: —as scheduled?
THE DEFENDANT: Yes, sir.
[Original R., Vol. VII at p 2].
The Court thereafter granted Smith’s motion to withdraw and ordered the case to go to trial as scheduled on April 16, 1979.
Smith testified during the course of our partial remand that he had moved to withdraw as counsel because Golub was a very uncooperative client; Golub failed to keep appointments; Golub failed, aside from one request, to respond to his inquiries or to supply him with information concerning the Government’s case. Smith also stated that Golub’s case was not complex at all, and that with a cooperative client, one week was sufficient time to prepare for trial.
On cross-examination Smith reiterated that he moved to withdraw because Golub was uncooperative, and not because Golub failed to pay his initial fee of $5,000.00, adding, “I know of no law that would allow me to withdraw as a defense attorney from a criminal case for lack of being paid a fee.”
Four days prior to the April 9, 1979 motion hearing, Golub had discussed his case with his uncle, Sheldon Emeson (Emeson), a practicing attorney. After the district court granted attorney Smith’s unchallenged motion to withdraw, and ordered that the case proceed to trial as scheduled, Emeson made a long distance telephone call to the judge, in which he requested a continuance for Golub’s trial. When the district court indicated that the ease would go to trial as scheduled, Emeson agreed to defend Golub. Emeson subsequently rearranged his schedule between April 9 and April 16, 1979, and prepared Golub’s defense.
During the course of Golub’s two-day trial, the Government dismissed two of the counts, and Golub was found guilty on the remaining six. Golub was sentenced to five years in prison on each of the six counts, the sentences to run concurrently.
On appeal we held that Golub was denied adequate counsel in view of the limited time available for Emeson to prepare for trial. We, accordingly, reversed, with “direction to the trial court to see to it that defendant is adequately represented by counsel at a new trial.” (638 F.2d at p. 190). This opinion was filed on November 17, 1980.
On December 24, 1980, the United States petitioned for rehearing with suggestion for rehearing en banc. Included with the material supportive of the United States’ motion for rehearing was an affidavit of the trial court which stated in part:
On April 9, 1979, it was, and it now is my belief that defendant was utilizing a ploy to obtain a continuance, and I advised him that I intended to try the case on the date it was set for trial. He voiced no objection to that. [Indeed, the then scheduled trial date was within a week or ten days of the latest trial date permitted under the Speedy Trial Act.] Because of defendant’s acquiescence in Mr. Smith’s motion to withdraw, I granted it, but had defendant objected, I would have denied the motion. I have no doubt that with client cooperation, Mr. Smith would have been ready to try the case.
Shortly after April 9,1979,1 received a long distance telephone call from Sheldon Emeson, Esq., saying that he was related to the defendant and that he would represent him. He orally asked for a continuance, but the only reason he advanced in support of his request was that he had some county court cases set for trial and that those trials would conflict with the long standing setting of the federal court case. I told Mr. Emeson that that was not reason for a continuance and that under no circumstances would I act on a telephonic motion for a continuance made by a lawyer who had not entered an appearance in the case. I told him about the history of the case, and that I thought the defendant was trying to manipulate the court. I am sure that I was not optimistic as to his chances for a continuance. However, I at no time told him that I would not consider a written motion for a continuance setting forth adequate grounds to justify the last minute delay. He replied that he could and would be ready for trial, and he was.
No written motion for a continuance was ever filed, and when the trial started on April 17, 1979, instead of moving for continuance, Mr. Emeson affirmatively stated on the record that he and his client were ready for trial. An audit of the clerk’s minutes shows that the taking of testimony in the case took a total of eight hours; that the defendant testified at some length and that two other defense witnesses were called. Mr. Emeson is a former state public defender and he is a former elected district attorney. He has had long experience in the trial of criminal cases in the state courts, and the Colorado Rules of Criminal Procedure do not differ much from the Federal Rules. The defendant had constructively fired one of the best criminal trial lawyers in the state, and, knowing his ethics, I am confident he would not have walked out on the defendant just because he hadn’t been paid. The jury convicted the defendant on evidence I thought was more than sufficient, but it did so after a trial which was well handled on both sides.
Following the trial, [I am unsure whether the visit was on the day of the jury verdict or on the day of sentencing.] Mr. Emeson came to my chambers, and he explained that he had defended the case only because of the relationship between him and the defendant. He explained that he wasn’t being paid, and he thanked me for that which he said he thought had been a fair trial. He did not hint that he needed more time to prepare, and he didn’t suggest prejudice to the defendant because of lack of preparation time.
[Affidavit, pp. 2-3].
Emeson also filed an affidavit which stated in part:
On April 10, 1979, I placed a long distance phone call from Lamar, CO. to Judge Fred M. Winter [sic] of the United States District Court in Denver, CO. Lamar, CO. is 220 miles Southeast of Denver, CO. The conversation lasted four minutes (see attached photocopy of phone bill).
I advised Judge Winter that I was related to Robert D. Golub and that I was attempting to help him. I stated that I would try to obtain a trial attorney for him. I stated that I did not feel qualified due to the relationship and because of my limited experience in Federal Court.
Judge Winter then advised me that the case was a simple mail fraud and that his order for trial would stand. I then informed Judge Winter that I would see what I could do in the time available.
My purpose in making this call was to explain Golub’s dilemma and that if given some time, I would personally arrange for Golub to have trial counsel.
After the call, I was convinced that the filing of his motion to continue would have been a useless and time consuming gesture.
[Emeson affidavit].
In addition thereto, counsel for Golub provided this court with the names of eleven witnesses that Golub would call at a retrial.
On April 9, 1981, sitting en banc we ordered:
The captioned appeal is partially remanded to the United States District Court for the District of Colorado, pursuant to 28 U.S.C. § 2106, for that court’s further proceedings, if necessary, for a determination as to whether or not a new trial should have been granted to appellant because of inadequacy of counsel, or because of the inability of counsel to make adequate preparation under the circumstances.
This Court retains jurisdiction of all other issues in the appeal....
Upon completion of its further proceedings, the trial court shall enter its findings and conclusions and order and, after supplementation of the record, the appeal shall be remanded to this Court for further consideration.
[En Banc Order, April 9, 1981, page 2].
In accordance with our partial remand, an evidentiary hearing was held on May 26-27,1981. Golub was represented by appointed counsel. Both Golub and the United States presented expert testimony as to the adequacy of Emeson’s representation of Golub. Emeson also testified, relating that financial problems had precluded his calling witnesses during the trial. However, Emeson did not explain how a continuance would have aided in his defense of Golub. Significantly, Emeson at no time represented to the court that Golub had requested that any of the eleven witnesses Golub later indicated he would call at a retrial be called at the trial proper.
On May 27, 1981, at the conclusion of the hearing, the court set the matter for an additional two-day hearing on July 27,1981. The court advised the parties that any subpoenas which defense counsel might request “to bring before the court anyone who could present testimony designed to show prejudice to” Golub would be authorized. When Golub’s requests for subpoenas were not filed until July 16, 1981, the court continued the July 27, 1981 hearing to August 3, 1981.
At the August 3, 1981 hearing, only four of the eleven witnesses whom Golub had indicated to this court on his appeal would appear at a retrial, appeared and testified in response to Golub’s subpoenas. After these witnesses testified, counsel for Golub stated that there were additional witnesses who could demonstrate how Golub was prejudiced by failure to receive a continuance, but that the four-month period between the remand and the August 3, 1981 hearing date was too short a time to locate all of the essential witnesses. The district court, again in a most accommodating manner, scheduled a final evidentiary hearing for December 17, 1981. This, of course, afforded Golub a second opportunity to subpoena additional witnesses of his choice. The time frame accorded Golub was approximately four and one-half months.
On December 17, 1981, counsel appeared and stated that no additional witnesses were available. The court again accommodated Golub by setting January 5,1982 as a final hearing date at which additional witnesses could testify. No additional witnesses testified on January 5, 1982.
On January 14,1982, the court entered its memorandum opinion in accordance with our partial remand. Within its opinion the court first considered whether a new trial should be granted because of inadequacy of counsel. The court stated in part:
I am directed to first make a finding as to whether a new trial should have been granted because of inadequacy of counsel. Before I get to that, I mention that this case presents a golden opportunity to receive some advice from an appellate court which will be of help to all trial judges. The advice I solicit is what a trial judge does when a judge worries about the competency of a retained lawyer. It’s a dilemma. A defendant’s Sixth Amendment rights are violated if he isn’t competently represented, but they are violated if there is interference with his freedom of choice of counsel. Certainly, Sheldon Emeson has more trial experience than do 95% of the lawyers who appear in this court, and if trial judges are supposed to step in to say that lawyers with his background aren’t qualified, a Pandora’s box is opened. Mr. Emeson has been trying lawsuits for 29 years. He has been a Public Defender. He was elected District Attorney. Twenty-five percent of his time as of the time of this trial was spent on criminal cases. In this case, he spent eight hours looking over the discovery the government voluntarily supplied and he talked to the defendant and worked on the case another two days. He invested more time in research. He testified on May 26, 1981, as to the defenses he planned for defendant, and I don’t know what more he could have done had he been given a six months delay. He called witnesses to testify for Mr. Golub, and the defendant himself testified at length. He took advantage of the opportunity afforded to interview government witnesses during recesses in the trial called especially for that purpose. Nine of the eleven witnesses listed in the filing with the Court of Appeals were mentioned in Golub’s testimony, and Mr. Emeson could recall several of those names. Mr. Emeson was well prepared.
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Mr. Emeson’s experience was far, far greater than the suggested trial experience required under any certification of trial lawyers program .... I don’t think it reasonable to argue that Mr. Emeson should have been told before the trial started that he wasn’t qualified to try the case. I just wish more lawyers we appoint possessed his experience and skill .... Based on my observation of the trial, the defendant was well represented .... In my judgment, Mr. Emeson’s representation of Mr. Golub was not just adequate; it was above average.
[R. Remand Supplemental, Yol. II at pp. 00065-00066],
Within its memorandum opinion, the court also considered whether a new trial should be granted in view of the limited time' Emeson had to prepare for trial. In considering this question the court stated, in part:
With a time space from April 10, 1981, to January 5, 1982, and with government funds available to produce witnesses, I have listened to only four of the disinterested witnesses named in the Court of Appeals, and I heard nothing which convinces me that defendant was prejudiced by my failure to grant a continuance. The telephonic request was for a continuance until some county court eases were tried by Mr. Emeson, and I don’t know how he could have located witnesses appointed counsel working with government funds has been unable to find or has elected not to call after nine months.
I have reviewed the record; I have listened to the arguments of defense counsel; I have heard the testimony of every witness defendant called and I have issued every subpoena asked for by defendant. I don’t think that any prejudice has been shown and I do think that the Government has established that there was no prejudice resulting to defendant from the refusal to act on a telephonic request for continuance. I don’t challenge the good faith of counsel’s representations to the Court of Appeals, but with funds available to investigate that which counsel had been told by the defendant, the helpful testimony just isn’t there. In a nutshell, I think that counsel of limited experience in criminal cases bought a bill of goods glibly sold to him by his client, and that he thereafter innocently resold it to the Court of Appeals. Sheldon Emeson operating with long criminal trial experience didn’t buy the bill. If he had, he would have filed the required written motion and he would have listed in the motion the supposed helpful witnesses who haven’t helped even by this late date.
[R. Remand Supplemental, Vol. II at pp. 00070-00071],
The record thus developed by the district court in accordance with our partial remand is now before us. Our review is directed to the district court’s ruling that Golub was not denied effective assistance of counsel because of inadequacy of counsel or because of the inability of counsel to make adequate preparation under the circumstances.
ADEQUACY OF COUNSEL
In accordance with our partial remand, the district court undertook additional evidentiary hearings to determine “whether or not a new trial should have been granted to appellant because of inadequacy of counsel”. In so doing, the district court considered, inter alia, the testimony of expert witnesses called both by Golub and the United States on the adequacy of Emeson’s performance as Golub’s defense counsel, the testimony of Emeson personally, and the court’s personal observation of the trial.
Golub’s expert, Leonard Chesler, an attorney, testified he had been a member of the Colorado State Bar for thirteen years and was admitted to practice in the federal district court of Colorado and the Tenth Circuit Court of Appeals. Chesler’s past employment included five years as a prosecuting attorney with the Second Judicial District of the State of Colorado; two and one-half years in a firm, and approximately five years in his own practice. In addition thereto, Chesler had lectured to the National College of District Attorneys, at the Bates College of Law, served on the trial tactics panel at Northwestern University, and “give[n] 13 to 15 lectures in this State and other states each year in the field of criminal law”. Chesler had also published over twenty-four articles utilized by the College of Prosecuting Lawyers and the National College of Defense Lawyers. Chesler reviewed the entire file herein prior to testifying.
Chesler testified, inter alia: Golub was not afforded effective assistance of counsel; a lawyer can be competent in state court and not competent in federal court; Golub’s case was reasonably complex; Emeson should have made a conditional entry of appearance predicated upon a continuance; and that Emeson should not have allowed himself to represent Golub “in a matter that so important and in such a short period of time”. Chesler did observe, however, that “I should also tell you that I have no fault with the skill or technique utilized in the trial itself. As a matter of fact, I thought an admirable job was done, I thought that appropriate evidentiary objections were raised during the trial, I thought skillful questioning was utilized” [R. Remand Supplemental, Vol. II at p. 18].
On cross-examination Chesler stated that in his personal opinion Emeson was an excellent litigator; Golub never indicated he was dissatisfied with Emeson; it was reasonable for the court to rely on Emeson’s statement that he was ready for trial.
Emeson testified during the hearing, inter alia, that: he discussed the counts and potential witnesses with Golub; he tried to determine what the witnesses would say and “what were their strong or weak points insofar as the defense side of the case” [R. Remand Supplemental, Vol. Ill at p. 44]; he could not develop a “single capable line of defense” but his defense was “to sit back and try and potshot at the prosecution” [Id.]
On cross-examination Emeson acknowledged that the discovery material made available to him included written statements of the Government’s witnesses; he spent considerable time with Golub the week before the trial discussing the facts of the case and defenses; he never related to the court at pretrial or during trial that he felt prejudiced because of insufficient time to prepare; the first time he alleged prejudice by no continuance was after trial; nothing in the record indicates he was having a problem getting defense witnesses; he reviewed the Government’s discovery “five or six times”; he and Golub did discuss the eleven potential defense witnesses, i.e., “But we did discuss these people as potential witnesses ... we would discuss their involvement in each transaction to determine in my mind whether or not they could add or shed some light to the defense side of the case” [R. Remand Supplemental, Vol. Ill at p. 78],
The Government’s expert, Edward Nottingham, a former Assistant United States Attorney, testified, after reviewing the entire file, that Golub’s case was a relatively simple one and could be prepared in a week’s time; that Emeson was competent counsel; that Golub’s predicament in preparing for trial one week in advance with Emeson was attributable to Golub’s failure to cooperate with his first attorney; and that one can not fault the attorney for “something that the defendant failed to do”.
Based on this evidence, and the trial judge’s personal observations, the district court held that Emeson’s representation of Golub “was not just adequate, it was above average”.
In Dyer v. Crisp, 613 F.2d 275 (10th Cir.1980), cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980), we set forth the standard of review in this circuit when ineffective assistance of counsel is alleged. We reiterated our Dyer holding in United States v. Crouthers, 669 F.2d 635 (10th Cir.1982), wherein we stated:
The standard of review when ineffective assistance of counsel is alleged is whether the trial counsel exercised the “skill, judgment and diligence of a reasonably competent defense attorney.” Dyer v. Crisp, 613 F.2d 275 (10th Cir.1980), cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980). It is clear that “[e]ffective assistance does not demand that every possible motion be filed, but only those having a solid foundation.” United States v. Hines, 470 F.2d 225 (3d Cir.1972), cert. denied, 410 U.S. 968, 93 S.Ct. 1452, 35 L.Ed.2d 703 (1973). Nor does the Sixth Amendment require an errorless defense. Dyer v. Crisp, supra. 669 F.2d at p. 643.
Applying this standard to the facts herein, we hold that the district court did not err in finding that Golub was not denied effective assistance of counsel.
Nothing in the record, other than his failure to move for a continuance, indicates that Emeson exercised less than the skill, judgment and diligence of a reasonably competent defense attorney. The fact that Emeson opted not to move for a continuance does not render his representation incompetent, based on the facts herein. ' Even Golub’s own expert witness, after stating that he felt Emeson was ineffective, acknowledged that he could not fault Erneson’s skill or technique and that he thought an admirable job was done. Furthermore, Emeson fully discussed with Golub what the potential witnesses Golub called to his attention would testify to. Emeson listened to determine whether they would cast “some light to the defense side of the case”. It would seem that Emeson determined that they would not because he concluded that his best approach was to “sit back and try and potshot at the prosecution”. Erneson’s apparent determination in this regard is further buttressed by the fact that the four witnesses eventually called on behalf of Golub were not helpful.
The district court’s finding that Emeson served as adequate counsel is further buttressed by the uncontested fact that Golub was not a cooperative client. Along these lines, we deem Mr. Smith’s and Mr. Nottingham’s observations, which were not rebutted, to be most pertinent. Mr. Nottingham, testifying as an expert, stated:
In considering how that fact bears on the issue of effective assistance of counsel, however, it seems to me that you have to try to separate what part of Mr. Golub’s predicament was due to problems with his attorney or attorneys and what part of his predicament was due solely to something that he was responsible for.
Mr. Golub had counsel from the date that he was indicted: Mr. Smith. One would normally expect from a cooperative defendant or a defendant who was determined to prove his innocence that he would jump at every opportunity to confer with his defense attorney, that he would keep appointments with his defense attorney and that he would in every way try to make available to the defense attorney the names, every address he knew, the work telephone number, the home telephone number, every possible piece of information as to witnesses who might be favorable to his defense.
Now, it is true that Mr. Emeson only had seven days to prepare for trial, and to the extent that you can’t get subpoenas out in seven days and to the extent that witnesses’ schedules cannot be adjusted within seven days, or to the extent that you even have trouble getting in touch with witnesses, i.e., making telephone contact in seven days, it seems to me that’s a problem that is attributable not to Mr. Smith and not to Mr. Emeson, it is attributable to the fact that Mr. Golub failed to cooperate with Mr. Smith in keeping appointments.
I don’t see how, when you’re discussing the issue of whether somebody was effectively represented by an attorney, you can fault the attorney or attorneys for something that the defendant failed or omitted to do.
[R. Remand Supplemental, Vol. Ill at pp. 162-163], [Emphasis supplied].
ADEQUACY OF TIME TO PREPARE
In accordance with our partial remand, the district court also addressed our question of whether Golub should have been granted a new trial because of the inability of counsel to make adequate preparation under the circumstances.
In United States v. King, 664 F.2d 1171 (10th Cir.1981), quoting United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981), we addressed the necessity of affording defense counsel adequate time to prepare. In King, supra, we stated:
The asserted interference with one’s right to counsel will warrant reversal so long as it “had or threatened] some adverse effect upon the effectiveness of counsel’s representation .... ” United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981).
Inadequate case preparation can jeopardize an accused’s right to effective assistance of counsel. See Powell v. Alabama, 287 U.S. [45] at 71, 53 S.Ct. at [55] 65 [77 L.Ed. 158]. Although frequently the result of a slothful lawyer, inadequate preparation can also be caused by unreasonable time constraints imposed by a trial court. Golub, 638 F.2d at 189; United States v. Olivas, 558 F.2d 1366, 1367 (10th Cir.1977), cert. denied, 434 U.S. 866, 98 S.Ct. 203, 54 L.Ed.2d 142 (1978).
Whether court-induced lack of preparation deprives a defendant of Sixth Amendment rights turns on the circumstances underlying his particular case. Rastrom v. Robbins, 440 F.2d 1251 (1st Cir.), cert. denied, 404 U.S. 863, 92 S.Ct. 53, 30 L.Ed.2d 107 (1971). The factors that must be analyzed to determine whether the given preparation time was sufficient to permit the attorney to effectively assist his client include: “(1) the time afforded for investigation and preparation; (2) the experience of counsel; (3) the gravity of the charge; (4) the complexity of possible defenses; and (5) the accessibility of witnesses to counsel.” Golub, 638 F.2d at 189.
664 F.2d at p. 1173.
We emphasized our King, supra, holding in United States v. Cronic, 675 F.2d 1126 (10th Cir.1982). We there observed:
There is no conflict between the rule of King and Golub and the Supreme Court’s opinion in United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). In Morrison the Court held that pretrial “interference” with the right to counsel did not warrant the most drastic remedy of dismissing an indictment “absent demonstrable prejudice, or substantial threat thereof”. Id. at 365, 101 S.Ct. at 667. Nothing in Morrison suggests that “a substantial threat of prejudice” may not be inferred from the circumstances of pretrial and trial representation. Nothing in Morrison suggests that reversal of a conviction may not be “relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial”. Id. at 365, 101 S.Ct. at 667.
675 F.2d at p. 1128.
Under our holdings in King and Cronic we must consider: (1) the time afforded for investigation and preparation; (2) the experience of counsel; (3) the gravity of the charge; (4) the complexity of possible defenses; and (5) the accessibility of witnesses to counsel.
As set forth, supra, in conjunction with our remand, Golub had nine months, between April 10, 1981, and January 5, 1982, with government funds available, to produce witnesses, to procure additional witnesses, to present any evidence, and to establish that he had inadequate time to prepare his defense and that he was actually prejudiced by the district court’s failure to grant Emeson’s oral request for a continuance.
Nothing in the record negates the district court’s finding that Emeson was afforded adequate time to prepare Golub’s defense. Emeson, an experienced attorney, was afforded a week to prepare what Smith and Nottingham characterized as a relatively simple case. Even were we to assume, arguendo, that the week available to Emeson to prepare was inadequate, the efficacy of the contention that inadequate time to prepare existed is vitiated when, as here, Golub was unable to demonstrate how he was prejudiced notwithstanding the fact that he was accorded the nine month period following our remand to do so. Golub was afforded every opportunity by the district court during the course of our partial remand to come forward with additional witnesses and to develop additional defenses tending to establish that the one week period afforded Emeson was indeed inadequate time within which to effectively prepare a defense. This simply was not done. Thus, no prejudice has been established or demonstrated.
During this time frame, Golub produced only four of the eleven witnesses that he indicated to this court he would call at a retrial. The district court found, and we concur, that the absence of the testimony of two of the witnesses called was not prejudicial to Golub, inasmuch as Golub’s testimony was more exculpatory than that of those witnesses. Similarly, the testimony of the other two witnesses called did not benefit Golub. One testified that he had never heard of Golub and did not know him when the case was tried. One testified that he had visited with Golub prior to the trial at which time Golub stated that it (the trial) amounted to nothing. This witness also testified that Golub did not request that he testify at his (Golub’s) trial.
Furthermore, Golub’s case was far removed from the complexities of King and Cronic. Golub’s trial consumed a period of two days; the testimony of witnesses required only eight hours. The Government presented seven witnesses and introduced approximately twenty exhibits. Golub presented three witnesses, including himself, and introduced seventeen exhibits. The attorney in King appeared twenty-seven days before trial. The King trial lasted eight days and involved approximately 200 witnesses and 5,000 exhibits. Similarly, in Cronic, court appointed counsel who specialized in real estate law and was appearing in his first criminal case, was afforded twenty-five days to prepare Cronic’s defense, after he had requested a minimum of thirty days to prepare. The Government had developed its case over a four and one-half year period. The Government’s proof consisted of over fifty exhibits and the testimony of seventeen witnesses from four states. Golub’s case was simply not as complex as King and Cronic.
We thus hold the district court did not err in finding that Emeson had adequate time to prepare Golub’s defense. Although every opportunity was afforded him, Golub failed to establish during the course of the remand that his defense at trial was impaired due to inadequate pretrial time. We deem it noteworthy that Golub did not present any witnesses at the last two hearings specially scheduled by the court for the specific purpose of affording Golub additional opportunities to present evidence. Golub completely failed to come forward with any demonstrable prejudice.
Our prior opinion, United States v. Golub, 638 F.2d 185 (10th Cir.1980) is hereby reversed and vacated insofar as it conflicts with our holdings herein.
WE AFFIRM.
. United States v. Golub, 638 F.2d 185 (10th Cir.1980).
. On remand, the defendant’s own expert witness testified that “I have no fault with the skill or technique utilized in the trial itself. As a matter of fact, I thought an admirable job was done ...Record, vol. 2, at 18 (record on remand).
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:
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songer_geniss
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G
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellee, v. Anthony MATERIA, Defendant-Appellant.
No. 66, Docket 84-6043.
United States Court of Appeals, Second Circuit.
Argued Aug. 29, 1984.
Decided Oct. 1, 1984.
Martin H. Kaplan, Gusrae, Kaplan & Bruno, New York City (Mark J. Astarita, New York City, on brief), for defendant-appellant.
Daniel L. Goelzer, Jacob H. Stillman, Rosalind C. Cohen, Robert Mills, Elizabeth E. Ashcraft, S.E.C., Washington, D.C. (Paul Gonson, Washington, D.C., of counsel), for plaintiff-appellee.
Before KAUFMAN, MESKILL and PIERCE, Circuit Judges.
IRVING R. KAUFMAN, Circuit Judge.
Our era aptly has been styled, and well may be remembered as, the “age of information.” Francis Bacon recognized nearly 400 years ago that “knowledge is power,” but only in the last generation has it risen to the equivalent of the coin of the realm. Nowhere is this commodity more valuable or volatile than in the world of high finance, where facts worth fortunes while secret may be rendered worthless once revealed.
At a certain point, amorphous data must toe translated into the written word. In the financial field, this transmogrification requires masses of information — much of it highly sensitive — to be channeled through the financial printing firms that service our great commercial centers. It was in one such firm that Anthony Materia worked. Materia stole information to which he was privy in his work, and traded on that information to his pecuniary advantage. The Securities and Exchange Commission (“SEC” or “Commission”) sought — and the district court granted — an injunction against Materia, restraining him from such activities in the future and requiring him to disgorge his ill-gotten gains. In light of the broad prophylactic coverage of the anti-fraud provisions of the securities laws, particularly where they are sought to be enforced by the SEC, we affirm the decision below, and hold that Materia’s misappropriation of material nonpublic information, and his subsequent trading on that information, violate Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934. Recognizing the complexity attendant to an examination of Section 10(b) and Rule 10b-5, we find it necessary to set forth the facts in this dispute.
I.
Anthony Materia was employed by Bowne of New York City, Inc. (Bowne), a firm specializing in the printing of financial documents, including many used by its corporate clients in connection with proposed tender offers. Because even a hint of an upcoming tender offer may send the price of the target company’s stock soaring, information regarding the identity of a target is extremely sensitive and zealously guarded. It is customary, therefore, for offerors (or their law firms, which ordinarily draft such documents) to omit information that might tend to identify a target company until the last possible moment. Code names are used, blanks are left to be filled in on the eve of publication, and occasionally misinformation is even included in early drafts. In sum, a quick reading of preliminary versions of these sensitive papers would not reveal the information sought to be guarded.
Anthony Materia did not read such material quickly. In his job as a “copyholder,” Materia read clients’ drafts aloud to a proofreader, who in turn checked to make certain that page proofs conformed to the copy received from the client. If copyhold-ing was Materia’s vocation, the stock market appears to have been equally consuming. Notwithstanding scrupulous efforts by Bowne and its clients to keep confidential information confidential, Materia was able to divine the identities of at least four tender offer targets in the period between December 1980 and September 1982. Within hours of each discovery, he purchased stock, and within days — after the offer had been made public — he sold his holdings at substantial gains.
Soon after Materia completed his purchase and sale of securities in the fourth target company, the Securities and Exchange Commission filed an enforcement action, charging that he had violated and was about to violate Sections 10(b) and 14(e) of the Securities Exchange Act of 1934, 48 Stat. 881, as amended, 15 U.S.C. §§ 78j(b), 78n(e) (1982), and Rules 10b-5 and 14e-3, 17 C.F.R. §§ 240.10b-5, 240.-14e-3 (1983). The basis of its complaint was Materia’s trading in securities on the basis of material nonpublic information he had misappropriated from his employer and its clients.
Following a fourteen-day nonjury trial, Judge Brieant delivered an opinion and order from the bench. He found that Mate-ria had, in fact, traded on the basis of confidential data stolen from Bowne and the offerors. Moreover, he explicitly found that Materia had breached a fiduciary duty to his employer and its clients to maintain their confidences. Finally, he concluded that Materia had actual knowledge of this duty, and thus had acted with scienter. Accordingly, Judge Brieant held that Mate-ria had violated Sections 10(b) and 14(e), and Rules 10b-5 and 14e-3. The court issued a permanent injunction, restraining him from continuing violations. In addition, Materia was ordered to disgorge his illegally obtained profits of $99,862.50. Final judgment was entered on Judge Brieant’s order, and Materia timely filed this appeal.
II.
At the outset, the nature and procedural posture of this action bear description, for they delineate the parameters of our inquiry. This suit was brought, not by an investor injured as a result of Materia’s connivances, but by the Securities and Exchange Commission — the governmental body charged by law with the protection of our financial markets.
The sweeping mandate manifest in the securities laws would be all but meaningless were it not for the broad investigatory and enforcement powers created under the statutory scheme. Our inquiry today is directed to Section 21(d) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78u(d) (1982), which empowers the Commission to seek a “temporary or permanent injunction” against “any person [who] is engaged or is about to engage in acts or practices constituting a violation” of the securities laws. A trial judge is vested with considerable discretion in granting injunctive relief pursuant to this section. There need be only a reasonable likelihood that the activity complained of will be repeated. See SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1102 (2d Cir.1972). Moreover, once the equity jurisdiction of the district court properly has been invoked, the court has power to order all equitable relief necessary under the circumstances. See Chris-Craft Industries, Inc. v. Piper Aircraft Corp., 480 F.2d 341, 390 (2d Cir.), cert, denied, 414 U.S. 910, 94 S.Ct. 231, 38 L.Ed.2d 148 (1973). Such discretion in fashioning appropriate remedies is a necessary (if unspoken) concomitant of the legislative grant of power to enforce the laws. The Supreme Court has written:
When Congress entrusts to an equity court the enforcement of prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief in light of the statutory purposes.
Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 291-92, 80 S.Ct. 332, 334-35, 4 L.Ed.2d 323 (1960).
Mindful of this principle, we cannot read Section 21(d) as restricting the remedies the SEC may pursue solely to injunctive relief. See SEC v. Texas Gulf Sulphur Co., 446 F.2d 1301, 1307-08, cert, denied, 404 U.S. 1005, 92 S.Ct. 561, 30 L.Ed.2d 558 (1971). On the contrary, any form of ancillary relief may be granted where necessary and proper to effectuate the purposes of the statutory scheme. Id. at 1308; see J.I. Case Co. v. Borak, 377 U.S. 426, 433-34, 84 S.Ct. 1555, 1560-61, 12 L.Ed.2d 423 (1964). Given the federal courts’ broad equitable powers, such noninjunctive relief may take a variety of forms. See Farrand, Ancillary Remedies in SEC Civil Enforcement Actions, 89 Harv.L.Rev. 1779 (1976). In the past, the Commission has sought and obtained the appointment of a receiver for a corporation the affairs of which were in disarray as the result of past violations, see Manor Nursing Centers, supra, impoundment of assets, see International Controls Corp. v. Vesco, 490 F.2d 1334 (2d Cir.), cert, denied, 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 236 (1974), and the installation of Commission approved directors on the board of a defendant corporation, see id. Disgorgement of illegally obtained profits is by no means a new addition to this catalogue of permissible equitable remedies. Indeed, in Texas Gulf Sulphur, supra, this court affirmed a district court order requiring individual defendants to pay over the profits realized from trading on insider information. And in Manor Nursing Centers, supra, we upheld an order requiring disgorgement of proceeds from a stock offering found to have violated the securities laws.
Accordingly, the forms of relief granted by Judge Brieant — a permanent injunction against future violations, and the disgorgement of profits resulting from Materia’s past activities — were appropriate once it was determined that Materia’s actions were proscribed by law. It is to that ultimate question we now turn.
III.
Materia does not contest the district court’s finding that he misappropriated confidential information and traded on it to his advantage. His sole argument is that such activity does not contravene Section 10(b) and Rule 10b-5. In light of this court’s holding in United States v. Newman, 664 F.2d 12 (2d Cir.1981), affd after remand, 722 F.2d 729 (2d Cir.1983) (unpublished order), cert, denied, — U.S. —, 104 S.Ct. 193, 78 L.Ed.2d 170 (1983), we hold that such actions do, indeed, lie within the proscriptive purview of the antifraud provisions of the securities laws.
Newman addressed the criminal liability under Section 10(b) and Rule 10b-5 of an individual defendant charged with participating in a scheme to misappropriate confidential information regarding upcoming tender offers. Along with his co-conspirators, employees of two investment banking firms, Newman surreptitiously gathered and traded on this nonpublic data. The court held that Newman’s “conduct ... could be found to constitute a criminal violation of Section 10(b) and Rule 10b-5 ____” Newman, supra, at 16. The facts in the instant appeal are sufficiently similar to those in Newman for us to affirm on the authority of that precedent alone. To delineate the contours of what may still be perceived as a novel theory of liability under the antifraud provisions, we choose, however, to elucidate the bases for our holding.
a.
Rule 10b-5, promulgated in 1942 pursuant to the Commission’s rulemaking power under Section 10(b), makes it “unlawful for any person ... [t]o engage in any act ... which operates ... as a fraud or deceit upon any person, in connection with the purchase or sale of securities.” 17 C.F.R. § 240.10b-5 (1984). As in Newman, “we need spend little time on the issue of fraud and deceit.” Newman, supra, at 17. Materia “misappropriated— stole to put it bluntly — valuable nonpublic information entrusted to him in the utmost confidence.” United States v. Chiarella, 445 U.S. 222, 245, 100 S.Ct. 1108, 1123, 63 L.Ed.2d 348 (1980) (Burger, C.J., dissenting). We hold that such activity falls ■squarely within the “fraud or deceit” language of the Rule. Legislative history to the Securities Exchange Act of 1934 makes clear that the antifraud provision was intended to be broad in scope, encompassing all “manipulative and deceptive practices which have been demonstrated to fulfill no useful function.” S.Rep. No. 792, 73d Cong., 2d Sess., 6 (1934). This language negates the suggestion that the provision was aimed solely at the eradication of fraudulent trading by corporate insiders. Against this expansive construction of “fraud or deceit,” Materia’s theft of information was indeed as fraudulent as if he had converted corporate funds for his personal benefit. See Newman, supra, at 17; cf. Texas Gulf Sulphur, supra, at 1308; Diamond v. Oreamuno, 24 N.Y.2d 494, 499, 301 N.Y.S.2d 78, 248 N.E.2d 910 (1969).
In an effort to circumvent this conclusion, Materia attempts to argue that he could not have defrauded his employer, since he was unaware of the confidential nature of the information he handled in the course of his work. Judge Brieant explicitly found that Bowne’s diligent efforts to communicate the need for secrecy vitiated this claim, and the record contains ample support for such a finding. We find similarly unavailing Materia’s argument that Bowne was not injured as a result of his misappropriation of client information. Among a financial printer’s most valuable assets is its reputation as a safe repository for client secrets. By purloining and trading on confidences entrusted to Bowne, it cannot be gainsaid that Materia undermined his employer’s integrity. See Newman, supra, at 17. Accordingly, we are driven to the conclusion that, by his misappropriation of material nonpublic information, Materia perpetrated a fraud upon Bowne.
Such a determination, however, merely begins a tripartite inquiry. We turn next to Materia’s contention that the only fraud properly giving rise to an action under 10(b) and 10b-5 is one premised upon a duty to disclose.
b.
With the barrage of private civil actions, it is “easy to forget that Section 10(b) was written as both a regulatory and criminal piece of legislation.” Newman, supra, at 16; see 15 U.S.C. §§ 78u, 78ff (1982). The private right of action under that section is a judicial, rather than a legislative creation. Nowhere in the Securities Exchange Act of 1934 can be found an express private civil remedy for the violation of its terms. Indeed, a perusal of the legislative history surrounding the promulgation of Section 10(b) fails to reveal any indication that Congress contemplated a private right of action. See, S.Rep. No. 792, 73d Cong., 2d Sess., 5-6 (1934); Note, Implied Liability Under the Securities Exchange Act, 61 Harv.L.Rev. 858, 861 (1948). Moreover, in adopting Rule 10b-5 in 1942, the Commission did not address, and in fact did not consider, the question of private civil remedies under the provision. See SEC Securities Exchange Act Release No. 3230 (1942). Only by fashioning the private right with which we are by now so familiar, were courts forced to deal with ancillary issues such as standing, see Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), and whether a defendant has breached a duty to a particular plaintiff, see Moss v. Morgan Stanley, Inc., supra. Indeed, these issues are germane only in the context of private civil litigation. In reviewing an enforcement action such as this, our concern “must be with the scope of the Rule,” Newman, supra, at 17, rather than the precise direction in which a duty may have been owed. For this reason, Materia’s attempted reliance on Chiar-ella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980), is misplaced.
Chiarella, like Materia, was an employee of a financial printing firm. He, too, divined the identities of tender offer targets from confidential documents and traded on that information for his personal gain. Affirming his criminal conviction under Section 10(b), this court held that Chiarella had breached an affirmative duty to disclose material nonpublic information to those from whom he purchased securities. See United States v. Chiarella, 588 F.2d 1358, 1364-69 (2d Cir.1978). Additionally, we ruled that liability could be premised upon his having misappropriated the information from his employer and its clients. Id. at 1368 n. 14. Although the Supreme Court explicitly reversed on the first theory, holding that the mere possession of confidential information is insufficient to create a duty to disclose that information to those on the other side of the market, see Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980), it did not similarly disavow the misappropriation theory. Rather, a majority held that the theory could not support Chiarella’s conviction because it had not been submitted to the jury. See id. at 235-37, 100 S.Ct. at 1118-19. Accordingly, “resolution of this issue [was left] for another day.” Id. at 238, 100 S.Ct. at 1119 (Stevens, J., concurring).
As Judge Pierce made clear at oral argument, in this circuit that day arrived in October 1981, with the filing of the Newman decision. We announced then, and reiterate now, that one who misappropriates nonpublic information in breach of a fiduciary duty and trades on that information to his own advantage violates Section 10(b) and Rule 10b-5.
Moss v. Morgan Stanley Co., supra, relied on by Materia, does not suggest otherwise. That case, arising out of the same facts as Newman, was a private action brought by shareholders who unwittingly sold stock to Newman and his cohorts. This court affirmed the dismissal of the action on the same limited grounds announced by the Supreme Court in Chiarel-la. The defendants owed no duty to the plaintiffs. At the risk of repetition, we stress that such analysis bears only on the type of question raised in a private suit for damages; it is not relevant to an inquiry into whether the Rule was or was not contravened.
c.
Having decided that Materia’s actions were fraudulent within the meaning of the securities laws, and having found that the misappropriation of his employer’s property satisfies the “upon any person” language of 10b-5, we are left with Mate-ria’s spurious argument that his fraud was not “in connection with” the purchase or sale of securities. Indeed, such a suggestion is inimical to the letter and spirit of the expansive scheme created to combat fraud in the securities markets. The information Materia stole has no value whatsoever except “in connection with” his subsequent purchase of securities. The fraud perpetrated on his employer was part and parcel of a larger design, the sole purpose of which was to reap instant no-risk profits in the stock market. Whatever limitations have been read into the “in connection with” language in the past, see generally Blue Chip Stamps v. Manor Drug Stores, supra, 421 U.S. at 731-33, 95 S.Ct. at 1923-24 (in private civil action under Section 10(b), “in connection with” language limits standing to a purchaser or seller of securities), it is clear that the requirement is satisfied by the self-evident nexus presented in this case.
IV.
For all intents and purposes, the question of Anthony Materia’s liability was settled fifty years ago. Determined to combat fraud in the securities marketplace, Congress chose to enact a comprehensive yet open-ended statutory scheme, capable of ongoing adaptation and refinement. In recent years, developments in capital formation and novel means of effecting corporate combinations have spawned a new genre of confidential information. Courts are increasingly called upon to address a myriad of issues regarding the proprietorship and exploitation of such data. Nevertheless, the lodestar of our analysis must be the meaning gleaned from a thorough inquiry into legislative purpose. We do not believe the drafters of the Securities Exchange Act of 1934 — envisaging as they did an open and honest market — would have countenanced the activities engaged in by Anthony Materia.
Accordingly, the decision of the district court is affirmed.
. Not wishing to rely solely on the difficulties inherent in deciphering codes and filling in blanks, Bowne had a policy explicitly forbidding its employees from trading on information they might come across in the course of their work. Written statements of this prohibition were posted conspicuously in Bowne’s plant, and copies were distributed to all employees.
. Although the names of the target companies were deleted from the preliminary drafts to which Materia had access, sufficient data were included to permit an avid market watcher such as Materia to deduce their identities. For example, in the case of one offering document, the target’s state of incorporation, number of outstanding shares and dates and amounts of recent dividends were included in early versions.
. In its first amended complaint, the Commission also alleged that Materia conveyed information regarding at least three of the tender offer targets to his wife, who in turn purchased securities in those companies. The district court found there had been no showing that Mrs. Materia knew or should have known that the information conveyed to her was confidential, and denied the Commission’s request for relief against her.
. It is axiomatic that
an agent is subject to a duty to the principal not to use or communicate information confidentially given to him by the principal or acquired by him during the course of or on account of his agency____
Restatement (Second) of Agency § 359 (1958).
. Materia argues that, if his activities are not found to violate Section 10(b) or Rule 10b-5, they cannot give rise to an action under Rule 14e-3. We need not address his theories regarding a limited grant of rulemaking powers, however, for we have already held that his actions contravene 10(b) and 10b-5.
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_r_bus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ROYAL STANDARD INSURANCE COMPANY, Appellant, v. Robert S. McNAMARA, Secretary of Defense, United States of America, Appellee.
No. 17751.
United States Court of Appeals Eighth Circuit.
April 22, 1965.
Charles W. Stubbs of Stubbs, Maynard & Nixon, Oklahoma City, Okl., Welcome D. Pierson, Oklahoma City, Okl., James O. Garner, Fort Smith, Ark., John G. Holland, Fort Smith, Ark., and Lawrence S. Rosenstrauch, Columbus, Ga., for appellant.
Martin Jacobs, Attorney, Dept, of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., Morton Hollander, Attorney, Dept, of Justice, Washington, D. C., and Charles M. Conway, U. S. Atty., Fort Smith, Ark., for appellee.
Before VOGEL, RIDGE and MEHAFFY, Circuit Judges.
VOGEL, Circuit Judge.
Royal Standard Insurance Company, appellant herein, instituted this action to obtain a preliminary and permanent injunction restraining the Secretary of Defense, appellee, from placing into effect and enforcing a Department of Defense directive. The directive upon which attack is made was issued April 15, 1964, to become effective July 1, 1964.
The purpose of the directive at issue was to establish “uniform requirements” (1) “for motor vehicle liability insurance coverage for all military and civilian personnel extended driving and parking privileges on military installations within the United States” and (2) “for the accreditation of insurers for the solicitation and sale on military installations of motor vehicle liability insurance”.
With respect to its first purpose, the regulations contained in the directive provide that “to secure and retain driving and parking privileges on military installations, all military and civilian personnel must possess motor vehicle liability insurance which meets the requirements” of the regulations. A motor vehicle liability insurance policy meets the requirments if it: (1) Complies with all statutory and regulatory requirements of the state in which the installation is located and has policy amounts not lower than the minimum limits prescribed in the financial responsibility or compulsory insurance law of that state; (2) states clearly the name and full address of the insurer; (3) provides bodily injury and property damage liability coverage for all drivers authorized by the named insured to drive the vehicle, “military endorsements excluding persons other than the named insured whether in the military or not are not acceptable”; and (4) does not contain unusual limitations or restrictions including, but not limited to (a) territorial limitations, except that if the installation is located within the United States, the standard limitation limiting coverage to the United States and Canada is acceptable;, and (b) coverage limitations which exclude liability for bodily injury to passengers and guests if such liability exists as a matter of law.
There are other provisions as well as numerous exceptions to the directive's requirements, both for defense personnel and insurers, which we find of insufficient pertinence to detail here.
On May 30,1964, the appellant filed its complaint, alleging that it is an Arkansas corporation engaged in the business of writing automobile liability insurance for military personnel; that the Secretary of Defense lacked authority to issue the April 15, 1964, directive and that if such directive is put into effect it, the appellant, will have to cease doing business. Appellant requested that the Secretary be permanently enjoined from carrying out and enforcing the directive. Appellant also sought a “temporary injunction” restraining enforcement of the directive and requiring the Secretary to issue a new directive canceling the old.
In response to an order to show cause why a preliminary injunction should not be granted, the Secretary of Defense moved for dismissal of the complaint and denial of a preliminary injunction on the following grounds, among others, that (1) appellant lacked standing to sue, (2) appellant had not exhausted its administrative remedies, (3) the action is an unconsented suit, (4) the appellant’s pleadings fail to show acts constituting irreparable injury, and (5) the Secretary acted within his authority in promulgating the regulations complained of and they are reasonable regulations. On June 10, 1964, the District Court denied the appellant’s request for a preliminary injunction and the case proceeded to trial.
Testimony of appellant’s witnesses may be briefly summarized as follows: The appellant has 27 employees. The major share of its business (79%) comes from insuring military personnel who are under 25 years of age. Servicemen in that age group are generally undesirable insurance risks and can usually get insurance coverage only through an “assigned risk pool or plan” at a rate considerably higher than that charged by the appellant. All of the appellant’s insurance policies for servicemen have the essentials of a restrictive endorsement known as a ‘‘military restriction” which provides that when the insured automobile is driven off a military installation, only the named insured and the members of his family are covered. A major shareholder of the appellant and its general manager expressed the opinion that, “It is not humanly possible” for the appellant to comply with the 1964 directive’s requirements.
Testimony for the Secretary indicated that the directive was promulgated, after consultation with the National Association of State Insurance Commissioners, the insurance industry generally, and the military departments, as a result of the Defense Department’s files containing numerous cases of unsatisfied claims and judgments against servicemen who thought they had adequate insurance. The problem resulted from insurance companies issuing endorsements limiting their liability and of companies being unsound financially, leaving the military man with either inadequate insurance or none at all. The policy reasons for adopting the state licensing provisions for insurance companies desiring on-base solicitation privileges were stated to be the lack of expertise on the part of the Defense Department in evaluating insurance companies and the fact that it was felt that military personnel residing within a state were entitled to the equal protection of state insurance laws coextensive with citizens of that state. A factor taken into consideration was that when a company is accorded on-base solicitation privileges it carries — at least to some buyers — the tacit approval of the Department of Defense that the insurance it sells is satisfactory.
At the conclusion of the trial, June 26, 1964, the trial court held: That the court has jurisdiction of the parties and that the Secretary of Defense has authority to issue directives for the use of facilities of the Department of Defense pertaining to the use of such facilities for driving and parking and also for solicitation of insurance; that neither directive is contrary to the McCarran-Ferguson Act, 15 U.S.C.A. §§ 1011-1015, and that the directive of the Secretary of Defense did not abridge the right to contract of third parties; that the exercise of powers authorized in Article I, Section 8, of the Constitution of the United States delegated by Congress to the Secretary of Defense does not violate the Ninth or Tenth Amendments of said Constitution, and that the regulations contained in the directive of the Secretary of Defense are neither arbitrary nor capricious; that the courts will not review managerial acts, not clearly arbitrary, of executive officials performed within the scope of their authority and will not substitute their judgment in such matters for that of the officials; that the directive of the Secretary of Defense was within his discretion and the court is without jurisdiction to review his actions. The court thereupon entered judgment dismissing appellant’s complaint. Subsequently appellant applied to this court for a stay pending disposition of this appeal. After oral argument, appellant’s application therefor was denied on July 28,1964.
We think the District Court was entirely correct in granting judgment of dismissal against the appellant herein. The directive had for its purpose the establishment of uniform requirements as to automobile liability insurance for military and civilian personnel who were granted driving and parking privileges on military installations within the United States and for the accreditation of insurers for the solicitation and sale on military installations of motor vehicle liability insurance. No attempt was made by the directive to regulate insurance written elsewhere or used elsewhere. It did nothing more or less than to provide that those who wished to drive or park on military establishments or to solicit insurance there had to abide by the conditions set forth.
5 U.S.C.A. § 22 provides as follows:
“ § 22. Departmental regulations. The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.”
As to the Secretary of Defense, Congress has specifically provided, 10 U.S. C.A. § 133:
“Secretary of Defense: appointment; powers and duties; delegation by
“(a) There is a Secretary of Defense, who is the head of the Department of Defense, appointed from civilian life by the President, by and with the advice and consent of the Senate. * * *
“(b) The Secretary is the principal assistant to the President in all matters relating to the Department of Defense. Subject to the direction of the President and to this title and section 401 of title 50, he has authority, direction, and control over the Department of Defense.”
With the foregoing sections as a base, the Secretary of Defense has promulgated the directive in question. We think he had a perfect right to do so. 10 U.S.C.A. § 133(b), supra, gives him the “authority, direction, and control over the Department of Defense”. 5 U.S.C.A. § 22 gives the Secretary, as the head of a department, the power to prescribe regulations, not inconsistent with law, for the government of his department. In Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 1961, 367 U.S. 886, 890, 81 S.Ct. 1743, 1746, 6 L.Ed.2d 1230, the Supreme Court said:
“ * * * The control of access to a military base is clearly within the constitutional powers granted to both Congress and the President. Article I, § 8, of the Constitution gives Congress the power to ‘provide and maintain a navyto ‘make rules for the government and regulation of the land and naval forces;’ to ‘exercise exclusive legislation * * 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;’ and to ‘make all laws which shall be necessary and proper for carrying into execution the foregoing powers * * *.’ Broad power in this same area is also vested in the President by Article II, § 2, which makes him the Commander in Chief of the Armed Forces.” (Emphasis supplied.)
“Congress has provided that the Secretary of the Navy ‘shall administer the Department of the Navy’ and shall have ‘custody and charge of all * * * property of the Department.’ 10 U.S.C. § 5031(a) and (c). In administering his Department, the Secretary has been given statutory power to ‘prescribe regulations, not inconsistent with law, for the government of his department, * * * and the custody, use, and preservation of the * * * property appertaining to it.’ 5 U.S.C. § 22.”
And at page 893 of 367 U.S., 81 S.Ct. at page 1747:
“This power [to remove persons from military installations] has been expressly recognized many times. ‘The power of a military commandant over a reservation is necessarily extensive and practically exclusive, forbidding entrance and controlling residence as the public interest may demand.’ 26 Op.Atty.Gen. 91, 92. ‘[I]t is well settled that a post commander can, in his discretion, exclude all persons other than those belonging to his post from post and reservation grounds.’ JA-GA 1904/16272, 6 May 1904. ‘It is well settled that a Post Commander can, under the authority conferred on him by statutes and regulations, in his discretion, exclude private persons and property therefrom, or admit them under such restrictions as he may prescribe in the interest of good order and military discipline (1918 Dig.Op.J.A.G. 267 and cases cited).’ JAGA 1925/680.44, 6 October 1925.” (Emphasis supplied.)
By the challenged directive the Secretary of Defense has exercised his authority to designate who shall be allowed to park and to drive on military reservations and who shall be allowed to solicit automobile liability insurance on reservations. To obtain these rights and privileges, the provisions of the directive must be complied with. This is nothing more than an internal affair of the Department of Defense. As was said by this court in Duba v. Schuetzle, 8 Cir., 1962, 303 F.2d 570, 576:
“The courts have refused to interfere with ordinary ministerial and discretionary decisions and conduct peculiarly within the internal workings of an executive department.”
See, also, Perkins v. Lukens Steel Co., 1940, 310 U.S 113, 131-132, 60 S.Ct. 869, 84 L.Ed. 1108; Massachusetts v. Mellon, 1923, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078.
While recognizing the express statutory authority given to the Secretary of Defense by 5 U.S.C.A. § 22 and 10 U.S.C.A. § 133(b), the appellant nevertheless maintains that the Secretary lacked the authority to attach conditions to the privileges given defense and civilian personnel of driving and parking their automobiles on government-owned military installations and the power to specify conditions precedent to the exercise of the privilege of soliciting automobile liability insurance on military estabIshments. Appellant argues that such provisions run contrary to the McCarranFerguson Act. That Act, 59 Stat. 33, as amended, 15 U.S.C.A. §§ 1011-1014, provides, insofar- as it may possibly be pertinent to the issue herein, as follows-:
Ҥ 1011. Declaration of policy
“Congress declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.
“ § 1012. Regulation by State law; Federal law relating specifically to insurance; applicability of certain Federal laws after June SO, 1948
“(a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.
“(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended, shall be applicable to the business of insurance to the extent that such business is not regulated by State law.” -
Congressional intent in passing the Mc-Carran-Ferguson Act was stated by the Supreme Court in F. T. C. v. Travelers Health Ass’n, 1960, 362 U.S. 293, 299, 80 S.Ct. 717, 721, 4 L.Ed.2d 724:
“The MeCarran-Ferguson Act was passed in 1945. Its basic purpose was to allay doubts, thought to have been raised by this Court’s decision of the previous year in United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, [64 S.Ct. 1162, 88 L.Ed. 1440], as to the continuing power of the States to tax and regulate the business of insurance. See Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 429-433 [66 S.Ct. 1142, 90 L.Ed. 1342]; Maryland Casualty Co. v. Cushing, 347 U.S. 409, 413 [74 S.Ct. 608, 98 L.Ed. 806]; Securities & Exchange Comm. v. Variable Annuity Life Ins. Co., 359 U.S. 65, 99 [79 S.Ct. 618, 3 L.Ed.2d 640] (dissenting opinion).”
The Act does not confer any right upon insurance companies, including the appellant. It is merely a direction to the courts not to construe, with certain specified exceptions, any statute enacted by Congress as invalidating, impairing or superseding any state law regulating the business of insurance or imposing a tax or fee on such business. Congress by the MeCarran-Ferguson Act created no statutory rights which could possibly provide a basis for the instant suit on the part of the appellant herein.
The Administrative Procedure Act, 5 U.S.C.A. § 1009, precludes from judicial review “agency action [which] is by law committed to agency discretion”. We think that by 5 U.S.C.A. § 22, supra, and 10 U.S.C.A. § 133, supra, Congress clearly committed to the discretion of the Secretary of Defense the right to determine, by directives, the conditions upon which vehicles may be parked or driven on military installations and to determine the conditions upon which anyone should be allowed to solicit automobile liability insurance on military installations. This constituted a commitment to “agency discretion”. See Panama Canal Co. v. Grace Line, Inc., 1958, 356 U.S. 309, 317, 78 S.Ct. 752, 2 L.Ed.2d 788. Additionally, we are quite in accord with the District Court’s finding that the directive here was neither “ * * * arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;” 5 U.S.C.A. § 1009(e).
The judgment of dismissal is affirmed.
. Appellant also sought to enjoin the enforcement of a directive issued on January 19, 1961. That directive is no longer in force and was superseded by the one adopted April 15, 1964.
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:
|
sc_casesource
|
051
|
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.
FORTSON, SECRETARY OF STATE OF GEORGIA v. MORRIS et al.
No. 800.
Argued December 5, 1966.
Decided December 12, 1966.
Harold N. Hill, Jr., Assistant Attorney General of Georgia, argued the cause for appellant. With him on the briefs were Arthur K. Bolton, Attorney General, G. Ernest Tidwell, Executive Assistant Attorney General, Coy R. Johnson, Assistant Attorney General, and Gerald H. Cohen and Alexander Cocalis, Deputy Assistant Attorneys General.
Charles Morgan, Jr., argued the cause for appellees Morris et al. With him on the briefs were Morris Brown and Melvin L. Wulf. Emmet J. Bondurant II argued the cause for appellees Justice et al. With him on the briefs were Francis Shackelford and Randolph W. Thrower.
Mr. Justice Black
delivered the opinion of the Court.
Since 1824 a provision of the Constitution of the State of Georgia, now Art. V, § I, ¶ IV, has provided that its Governor shall be selected (1) by a majority of votes cast in a general election, and (2) if no candidate receives a majority of votes at such election, then a majority of the members of the Georgia General Assembly shall elect the Governor “from the two persons having the highest number of votes . ...” At the State's general election, held Tuesday, November 8, 1966, no single candidate received a majority of the votes cast. A Georgia three-judge federal district court has in this case enjoined the State Assembly from electing one of the two highest candidates as Governor on the ground that this method of election, required by Article V of the Georgia Constitution, would deny Georgia voters equal protection of the laws in violation of the Fourteenth Amendment. We uphold the constitutionality of Article V of the State Constitution, for so long as this provision is applied as it is written, we perceive no conflict with the Equal Protection Clause. We reverse the District Court’s judgment.
The District Court erroneously relied on Gray v. Sanders, 372 U. S. 368, to strike down Article V of the State’s Constitution. The Gray case held that it had been demonstrated that Georgia voters were denied equal protection of the laws by the operation of a county-unit system under which state officials were elected by a majority of counties voting as units instead of by a majority of individual voters. The result was that the number of votes of persons living in large counties was given no more weight in electing state officers than was given to a far fewer number of votes of persons residing in small counties. ' This discrimination against large county voters was held to deny them the equal protection of the laws. That case, as was emphasized, had to do with the equal right of “all who participate in the election,” 372 U. S., at 379, to vote and have their votes counted without impairment or dilution. But as the Court said, 372 U. S., at 378, the case was “only a voting case.” Not a word in the Court’s opinion indicated that it was intended to compel a State to elect its governors or any other state officers or agents through elections of the people rather than through selections by appointment or elections by the State Assembly. It is wrongly cited as having either expressly or impliedly decided that a State cannot, if it wishes, permit its legislative body to elect its Governor.
The language of Article V of the State Constitution struck down by the District Court has been a part of Georgia’s State Constitution since 1824 and was readopted by the people in 1945. It set up two ways to select the Governor. The first, and preferred one, was election by a majority of the people; the second, and alternative one, was election by the State Assembly if any one candidate failed to receive a majority of the popular vote. Under the second method, in the legislative election the votes of the people were not to be disregarded but the State Assembly was to consider them as, in effect, nominating votes and to limit itself to choosing between the two persons on whom the people had bestowed the highest number of votes. There is no provision of the United States Constitution or any of its amendments which either expressly or impliedly dictates the method a State must use to select its Governor. A method which would be valid if initially employed is equally valid when employed as an alternative. It would be surprising to conclude that, after a State has already held two primaries and one general election to try to elect by a majority, the United States Constitution compels it to continue to hold elections in a futile effort to obtain a majority for some particular candidate. Statewide elections cost time and money and it is not strange that Georgia’s people decided to avoid repeated elections. The method they chose for this purpose was not unique, but was well known and frequently utilized before and since the Revolutionary War. Georgia Governors were selected by the State Legislature, not the people, until 1824. At that time a new constitution provided for popular election, but with the provision that upon the failure of any one candidate to receive a majority, the General Assembly should elect.
Two States, Mississippi and Vermont, that provide for majority voting also provide for state legislative election of their governors in case of no majority in the general election. Thirty-eight States of the Union which today provide for election of their governors by a plurality also provide that in case of a tie vote the State Legislatures shall elect.
It thus turns out that Georgia, clearly acting within its rights as a State, has decided that, any one candidate failing to obtain a majority in a general election, its General Assembly will elect its Governor. Its clear choice has remained in its constitution for 142 years. The District Court below treated Article V of the Georgia Constitution as the valid law of the State except as it thought itself compelled to strike it down because of Gray v. Sanders, supra. The Gray case, however, did no more than to require the State to eliminate the county-unit machinery from its election system. The State did this in an election that resulted in the election of no candidate. Its duty now, under Article V of its Constitution, is to proceed to have the General Assembly elect its Governor from the two highest candidates in the election, unless, as some of the parties contend, the entire legislative body is incapable of performing its responsibility of electing a Governor because it is malapportioned. But this is not correct. In Toombs v. Fortson, 384 U. S. 210, affirming 241 F. Supp. 65, we held that with certain exceptions, not here material, the Georgia Assembly could continue to function until May 1, 1968. Consequently the Georgia Assembly is not disqualified to elect a Governor as required by Article V of the State’s Constitution. Neither is it disqualified by the fact that its Democratic members had obligated themselves to support the Democratic nominee in the general election on November 8, 1966. That election is over, and with it terminated any promises by the Democratic legislators to support the Democratic nominee.
Article V of Georgia's Constitution provides a method for selecting the Governor which is as old as the Nation itself. Georgia does not violate the Equal Protection Clause by following this article as it was written.
Reversed.
Article V, § I, ¶ IV (Ga. Code Ann. § 2-3004). “How returns published. — The members of each branch of the General Assembly shall convene in the Representative Hall, and the President of the Senate and Speaker of the House of Representatives shall open and publish the returns in the presence and under the direction of the General Assembly; and the person having the majority of the whole number of votes, shall be declared duly elected Governor of this State; but, if no person shall have such majority, then from the two persons having the highest number of votes, who shall be in life, and shall not decline an election at the time appointed for the General Assembly to elect, the General Assembly shall immediately, elect a Governor viva voce; and in all cases of election of a Governor by the General Assembly, a majority of the members present shall be necessary to a choice.”
Miss. Const., Art. 5, §§140, 141; Vt. Const., c. II, §39.
This is by statutory provision in North Carolina and by constitutional provision in Alabama, Arizona, Arkansas, Colorado, Connecticut, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_respond1_1_2
|
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 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".
SIGURJONSSON et al. v. TRANS-AMERICAN TRADERS, Inc. THE GATITO.
No. 13380.
United States Court of Appeals Fifth Circuit
May 8, 1951.
Rehearing Denied May 24, 1951.
Carroll Dunscombe, Stuart, Fla., for appellant.
Walter Humkey, Miami, Fla., for appellee.
Before HOLMES, BORAH and STRUM, Circuit Judges.
STRUM, Circuit Judge.
This is an appeal from a decree in admiralty dismissing a libel for seamen’s wages, return transportation to their shipping port, and for certain statutory penalties.
During late January and early February, 1950, at the port of New York, the owner of the motorship “Gatito” by oral agreement employed libellants aboard said vessel at a specific rate of pay, to assemble traps and prepare the vessel for a fishing voyage on which libellants would constitute the crew, and would engage in fishing on shares, 50% to the owner, and 50% to be divided amongst the crew according to ratings. The vessel was licensed for fishing only. On February 13, 1950, the oral agreement still being in effect, the vessel sailed on a fishing voyage off the coast of Long Island, New York, but returned to port within twenty-four hours because of bad weather, remaining in port for that reason until February 22, 1950. On that date the vessel sailed for Florida coastal waters, where weather and fishing were expected to be better, to continue the fishing venture.
Before sailing for Florida, the crew executed written articles of employment, which reduced to writing the existing oral agreement, and which contained, inter alia, the provisions set out below.
It is abundantly clear that libellants were not, as they claim, merchant seamen entitled to seamen’s wages under 46 U.S.C.A. § 594, nor to any of the penalties prescribed by 46 U.S.C.A. §§ 596 and 665. Beginning February 13, 1950, libellants were specifically employed to fish on shares, no compensation being due them until the earnings of the vessel were ascertained and liquidated. They were participants in a joint venture, their earnings being contingent upon the outcome. No contract of employment which contemplated the payment of wages, as such, was made by the parties. Libellants were merely to have a share of the proceeds from the sale of fish to be caught by their own labor. In these circumstances, libellants are not entitled to seamen’s wages, as such. Williams v. The Sylph, 29 Fed.Cas. No. 17,740, page 1407; Old Point Fish Co. v. Haywood, 4 Cir., 109 F.2d 703, 706. Cf. note to Fritts v. Quinton, 40 A.L.R. 34. Fishing vessels are expressly excluded from the penalty provisions of 46 U.S.C.A. §§ 596 and 665.
The fishing venture was commenced on February 13, 1950, when the vessel put to sea off Long Island. The run to Florida was not, as contended by libellants, an ordinary coasting voyage for which they would be entitled to wages as merchant seamen. It was simply a move from one fishing ground to another in furtherance of the fishing enterprise.
Nor is there any substantial evidence to support libellants’ contention that the vessel’s owner wrongfully abandoned the enterprise, so as to entitle libellants to recover either quantum meruit as at common law, or within the admiralty rule that a contract of employment will be enforced in behalf of seamen, notwithstanding the failure of the voyage, when the failure is occasioned by the wrongful act of the master or owner.
The evidence shows that the voyage to Florida was beset with many vicissitudes, as a result of which libellants became dissatisfied and threatened to abandon the ship unless they were paid wages for the time already elapsed since they signed on. A few days later, while the owner was seeking legal advice as to his liability to the crew, the libel was filed. This effectually terminated the enterprise. No fish were caught, consequently nothing ever became due to libellants under the fishing contract, and the evidence does not support the charge that the owner wrongfully abandoned the enterprise.
The owner paid the crew in full for their services prior to February 13, 1950, except the sum of $29.75 still due libellant Jorgen Jorgensen, and $1.00 still due libellant Peter Neilson, which sums they are entitled to recover as wages. The final decree is hereby modified to award them these recoveries, with interest at 6% from February 13, 1950, to secure which they are entitled to a maritime lien. As so modified, the decree is affirmed.
It appears that an intervening libel was filed by Nally Cromer, trading as Cromer’s Market, to recover $86.08 for food furnished the vessel while at Stuart, Florida, but neither the intervening libel, nor the disposition thereof, if any, is shown by the record now before us. The affirmance herein is without prejudice to a consideration and final disposition of said intervening libel, on the merits. There will be no change in the present taxation of costs on the original libel.
Modified and affirmed.
. “It is hereby agreed that all crew members who are signed on, are not guaranteed any salaries or disbursements for their time or labors. It is also agreed that all crew members and personnel are signed on with shares as agreed further in this agreement according to rating. * *
“All members who sign on, do so for a period of six months during which time their (sic) are no disbursements of traveling or any other allowance, should a crew member jump ship, or leave in any other way, of their own accord. If transportation to their home port of New York is at any time allowed, Media of Transportation is held at the discretion of the owners.
“The catch of any trip shall be sold in the market at the highest price available. Furthermore the expenses of the trip itemized in the following. 1. Fuel Oil. 2. Food. 3. Pilot fees. 4. Breakdown parts underway for the engines or ship. Principally the first two above are the first breakdown from any incomes derived from the sale of the catch after these two are deducted, 50% of the remainder goes to the ships complement, the other 50% goes to the owners of the Gatito.”
. Hazen v. Cobb, 96 Fla. 151, 117 So. 853, 858. Cf. note to Fritts v. Quinton, 40 A.L.R. 34.
. The Avenger, 5 Cir., 251 F. 19; The Bayamo, 5 Cir., 171 F. 65; Johnson v. The Frank S. Hall, D.C., 38 F. 258; Folkes v. Proceeds, Remnants and Surplus of The General Geo. W. Goethals, D.C., 27 F.2d 183; Williams v. The Sylph, 29 Fed.Cas.No.17,740, page 1407; 7 C.J.S., Action of Assumpsit, § 9, pages 117,118.
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:
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songer_two_issues
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there 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.
LEA et al. v. VASCO PRODUCTS, Inc.
No. 8523.
Circuit Court of Appeals, Fifth Circuit.
Feb. 19, 1938.
Edwin R. Dickenson and Maynard Ramsey, both of Tampa, Fla., for appellants.
Wm. M. Taliaferro, of Tampa, Fla., and George E. Edelin, of Washington, D. C., for appellee.
Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.
HUTCHESON, Circuit Judge.
The suit was for specific performance of, and for an injunction as to, a written lease to appellee for 99 years of the sole and exclusive rights the world over to sell and distribute “Lea’s Never-Failing Hair Tonic,” the product of a supposed secret formula. The claim was that though plaintiff had in good faith complied, and was complying with its terms, as the parties to it had interpreted them, the defendants were refusing to do so, and in violation and breach of its terms, had declared the lease contract terminated and at an end, and were interfering with and preventing plaintiffs from proceeding under it; that both the terms of the lease contract and defendant’s conduct entitled plaintiffs to a decree.
The defense was that the contract specifically required plaintiff to sell during the years 1930, 1931, and each year thereafter, 1,250 gallons of the tonic, and that by clause 11 thereof it was provided that, should plaintiff in any year fail to sell that amount, the contract should become null and void. That plaintiff failed in the contract year ending in April, 1935, to sell 1,250 gallons as required, and that defendants had because thereof, and in accordance with its provisions, terminated the contract. It was further alleged that plaintiff was not proceeding in good faith to comply with the contract, but had deliberately ceased advertising and pushing the sale of the product.
Plaintiff i'h reply denied that the contract required the sale of any particular gallonage. Alleging that it required only good-faith efforts to sell, it explained the cessation of its advertising as the result of a Federal Trade Commission proceeding begun in 1932, and terminating in 1935, in a cease and desist order; that the preliminary proceedings and the final order had greatly limited, and would in future greatly limit, the scope and effect of the advertising, in that it had been prevented thereby from making most of the claims defendants had made for the product, and particularly from advertising it at all as a tonic; that notwithstanding these difficulties, including the defense of the proceeding at its own cost, it had in good faith done, and would in future do, all that it could to promote and further sales.
The District Judge granted an interlocutory injunction, preserving the status quo until the merits could be tried. This order was affirmed, on defendant’s appeal, as not an abuse of discretion. 5 Cir., 81 F.2d 1011.
At the conclusion of the trial on the merits the District Judge, agreeing with plaintiff that the contract by its terms, and particularly as it had been interpreted by the parties to it, did not require the annual sale of any specific quantity, but only a good faith effort to sell, and the payment of the stipulated monthly royalty, so found. He found, too, that plaintiff had acted throughout in good faith; and that the agreement was in full force and effect. He further found that if, strictly construed, the contract could be interpreted as providing that, unless a specific amount of gallonage should be sold, the lease would come to an end, the facts in evidence show such conduct of defendants as constitutes a waiver of such a construction, and an acquiescence in the one plaintiff contends for, and raises an estoppel against them to now claim a forfeiture. Awarding plaintiff the full relief it asked, the decree ordered defendants to specifically perform their part of the contract, and enjoined them from selling or distributing the product, and from interfering with plaintiff’s doing so.
Defendants have appealed. This is the record.
In 1926, after the Leas had been for twelve or fourteen years engaged in making and selling the product under the name and claim the name carries, the plaintiff Vasco made with them the written agreement which underlies this suit. The agreement, in form a leasing and letting for 99 years, of the sole and exclusive world-wide right, privilege, and authority to sell and distribute the product of the Leas’ secret formula, provided: That the formula, as well as the process for making the product, would be deposited in escrow in a sealed package; that the Leas would not disclose the formula, would protect the name and trade-mark, and would not, during the continuance of this agreement, sell or distribute any other hair tonic; and that Vasco, during the life of the agreement, would not manufacture, distribute, or sell any other medical preparation or product under any similar name.
The clauses which have particular bearing on this controversy are the ninth, tenth, and eleventh. The ninth clause provided that within 30 days thereafter, Vasco would order not less than 300 gallons of the hair tonic, and that it would “thereafter use its best efforts to promote the sale and distribution of the product to the end that there may be ordered, sold and distributed” during the second, third, and fourth 12 months’ periods after the agreement date, not less than 500, 750, and 1,000 gallons, respectively, and “during the fifth twelve months’ period and annually thereafter, not less than 1,250 gallons of said product.”
By the tenth paragraph Vasco agreed to pay on all the product ordered by it, certain costs of manufacture and freight, and on the 20th day of each month for the first, second, third and fourth twelve months’ periods $100, $125, $150, and $175, respectively, and for the fifth 12 months’ perjod, a!nd for each year thereafter, $200 per month, and in addition, at the end of each 1'2 months’ period, $1 per gallon for each gallon in excess of the minimum for that period, up to 1,500 gallons, and for all over 1,500 gallons, 75 cents per gallon.
The eleventh paragraph provided that if Vasco “should fail to order, sell, and distribute in any twelve months’ period the minimum gallonage agreed upon, or should fail to pay royalty when due,” or fail in other respects set out in the agreement, “ * * * this agreement shall become and be thereafter null and void,” and that, “in the event this agreement shall be so terminated,” all rights of Vasco to sell or in any way deal with the product shall cease.
After the execution of the contract plaintiff put on a vigorous advertising campaign to sell the product, which finally came to represent 80 per cent, of its business, with steadily increasing sales as the advertising increased. This campaign culminated in the expenditure for the year ending April, 1930, of $51,606, April, 1931, of $44,179, and April, 1932, of $23,791.77, in all more than $120,000 for the three years. As the result of this advertising plaintiff sold in the contract years ending in 1930, 1931, 1932, 2034, 1,770% and 1,320 gallons, respectively. In the contract years 1933, 1934, and 1935, in which substantially no advertising was done, the gallonage sold was, respectively, 992%, 910, 750%.
Appellants’ claim, that the failure to advertise in these years was deliberate, because appellee had found that it could make more for itself, though less for appellants, by not advertising, is not sustained by the record. The reason appellee stopped advertising was, that on April 6, 1932, the Federal Trade Commission, on charges that the statements in the advertising that the preparation was a tonic, that it could restore hair to its original color, and other like claims, were false and misleading, instituted a proceeding against Vasco Products, doing business under the name of Leas Tonic Company. This proceeding, which began with the April 6 notice to Vasco, was followed by a presentation in 1933 to the Vasco Company and the Leas, of a stipulation to be signed by them, admitting that the statements in their advertising were untrue and misleading, and agreeing to cease and desist from representing, in advertisements or otherwise, that by the use of the product gray hair could be restored to its natural color, youthful hair be regained, dandruff be banished, and gray hair and scalp troubles gotten rid of.
Both Vasco and the Leas refused to enter into the stipulation. In September, 1933, the Federal Trade Commission filed a formal complaint against both of them, charging them with false and misleading advertisements as to the efficacy and effect of the compound, and fixing a hearing date upon the complaint. After some considerable period of taking testimony, this proceeding, in which Vasco represented the Leas under power of attorney, came to an end in a cease and desist order, based on findings of fact and conclusions sustaining the charges in the complaint; that the compound was not a secret or new discovery, but the ingredients of it had been known even in ancient times; that it would not restore the natural color of, and had no tonic effect on, the hair; in fact was not a tonic, but a dye; and that both respondents had been making false and misleading claims for the product. The cease and desist order, among other things, required Vasco to desist from representing that by the use of the compound “youthful hair could be regained,” “its previous color could be restored to gray hair,” that “the use of the compound would banish dandruff,” and finally, from using the name “tonic” at all in advertising the product.
On the trial of this case plaintiff’s witnesses testified, and the record bears them out, that because of and after the commencement of the Federal Trade Commission proceedings, Vasco had to cease advertising, but that it has faithfully endeavored to push sales in other ways, and that now that the Commission proceeding is over, it would proceed again to advertise, but within the limitations of the “cease and desist” order.
In August, 1934, while the Commission proceeding was pending, and after plaintiff had written them, calling attention to the difficulties they were having, and the falling off of sales, and urging them to consider accepting less royalties, defendants undertook to invoke the provisions of paragraph 11, arid by letter notified plaintiff that because of its failure to sell 1,250 gallons in the years ending in April, 1933, and April, 1934, the lease-was at an end. Thereafter, defendants agreed that their receipt of royalties during the contract years ending in April, 1933 and 1934, with knowledge of the failure to sell the minimum gallonage in both of those years, was a waiver of the right to bring the contract to an end for the failure in those years, and in October, 1934, defendants advised plaintiff orally and by letter, that the letter of cancellation was withdrawn,'and no further action would be taken with regard to it. In the conferences which preceded the withdrawal of this letter, nothing was said about holding plaintiff to the strict terms of the contract for that current year, though defendants then knew that the sales had greatly fallen off, and that the defendant had not sold, and would not be able to sell, the minimum plaintiff had set, of 1,250 gallons in the current year. When, however, on April 19, 1935, plaintiff made its annual report showing that for that lease year it had again failed to sell the minimum quantity, and had sold only 750 gallons, defendants, on April 21 again invoked paragraph 11 of the contract, denounced the contract.as at an end, gave notice that they would refuse to comply further, and began to manufacture, advertise, and distribute the product for thémselves. Plaintiff, however, insisted on holding to the contract, and securing the temporary injunction above referred to, continued under it as before. *
We think the evidence, particularly that in regard to the Trade Commission’s action, fully supports the finding that plaintiff was, when the suit was filed, in good faith, and under greatly adverse circumstances, in large part the fault of defendants in over-claiming for the product, endeavoring to sell and distribute it If then, as the District Judge thought, plaintiff’s only obligation under the lease was in good faith to use its best efforts to sell the stipulated quantity, the decree was right. But the use of good faith, while undoubtedly a part of, by no means satisfied the obligation of, the lease. This, by its express terms, could be satisfied only by the sale in each year of the minimum quantity stipulated for. By its express terms failure in any year to sell and distribute the minimum stipulated quantity rendered the agreement null and void.
Nothing in the express terms of the lease, nothing in the nature of the enterprise it was entered into to foster, nothing in the circumstances under which it was executed, or its execution entered upon, nothing in the conduct of the parties, gives rise or lends support to the view appellee prevailed upon below, that the principal apparent purpose of the parties in entering into the lease contract, Cocke v. Vacuum Oil Co., 5 Cir., 63 F.2d 406, was not to require the sale annually of the stipulated minimum, but to secure for defendants the stipulated royalty and the obligation of plaintiff merely to use good faith in pushing the. sale of the product. Every provision of the lease, including that in the ninth paragraph on which plaintiff mainly relies, that “it will use its best efforts to promote the sale, etc.,” is of an exactly contrary purport. That provision, which continues, “to the end that there may be ordered, sold and distributed” during the second, third, fourth, and fifth periods and annually thereafter, not less than 500, 750,1,000, and 1,250 gallons, respectively, of said compound, as every other provision of the lease does, shows the end and object of its making and its principal apparent purpose. That purpose was to stimulate and secure an ever-increasing use oí, an ever-widening market, for the product, to the end that the lessors, and those in privity with them, during the continuance of the lease, should enjoy an ever-increasing royalty, and that upon its termination, either before or at its natural end, they should receive back a built-up business in a widely distributed product
The parties then having thus expressly provided that upon failure in any year to sell the minimum stipulated amount,’ the lease should become null and void, and be at an end, and plaintiff having failed to sell that amount, the defendants were within their legal rights in declaring it terminated for failure to sell the required quantity, Fenn v. Pickwick Corporation, 117 Cal.App. 236, 4 P.2d 215, 16 R.C.L. 1116; Summers Oil and Gas, § 146, p. 471, and a court of equity will not interfere with or prevent their doing so, Meier Dental Mfg. Co. v. Smith, 8 Cir., 237 F. 563, unless the breach is due to the fault of the lessor, Summers Oil and Gas, § 160, p. 503; Morgan v. Houston Oil Co., Tex.Civ.App., 84 S.W.2d 312; Brewster v. Lanyon Zinc Co., 8 Cir., 140 F. 801; Sauder v. Mid-Continent Petroleum Corporation, 292 U.S. 272, 54 S.Ct. 671, 78 L.Ed. 1255, 93 A.L.R. 454, or under all the circumstances, particularly the conduct of lessors, it appears that a strict forfeiture is inequitable as imposing an undue hardship on the lessee, and equity can relieve against it, while at the same time protecting lessors from damage or injury. 16 R.C.L. 1119, 1146 to 1151, incl; South Penn Oil Co. v. Edgell, 48 W.Va. 348, 37 S.E. 596, 86 Am. St.Rep. 43, 69 L.R.A. 858; Dunklee v. Adams, 20 Vt. 415, 50 Am.Dec. 44; Hemphill v. Pesat, 98 Fla. 124, 123 So. 561.
In the lease contract the lessors guaranteed that lessee should “at all times have full and exclusive enjoyment and use of the trade mark ‘Leas Never-failing Hair Tonic’ free of loss or molestation * * * by the order of any civil or military authority or otherwise.” In connection with the advertising, lessors procured testimonials and made claims which are largely the cause of plaintiff’s difficulties with the Trade Commission, as a result of which the advertising was stopped, and the marketing of the product cut down in the years ending 1933, 1934, and 1935. For it may not be doubted that the parties to the contract contemplated that the product was to be advertised and sold under the claims the Leas made for it, and that plaintiff, until its activities were stopped by the action of the Federal Trade Commission, had not only faithfully, but effectively, carried out its agreement to push the product, spending large sums of money to do so. Neither may it be doubted that when the Trade Commission trouble began, both Vasco and the Leas were in agreement that until this trouble was cleared away, the product could not be advertised and pushed as before. It is this trouble which accounts for the failure to advertise, and the dropping off of sales. It is this trouble which accounts for the effort of the Leas in 1933 and 1934 to cancel the contract, when Vasco suggested that because of the difficulties they should consider a reduction of the royalties. It was the existence and continuance of this proceeding, and the idea Lea apparently had, that by canceling the lease with Vasco, he could somehow get rid of the pending Trade Commission proceeding, and not the mere failure of Vasco to sell the stipulated amount, which caused the Leas, in 1935, to again give notice of forfeiture.
But the troubles with the Trade Commission, by defendants overclaiming for its product is not the only fault of defendants to which plaintiff’s failure to sell the minimum quantity in the fiscal year ending in 1935 can be traced.
In- the middle of that fiscal year defendants wrongfully interfered with plaintiff’s sales by giving notice that the lease was terminated, and it was some months later before they admitted that their action in this respect was wrongful. Further, when they withdrew the notice of termination, they did so without giving any notice or intimation that they would attempt to claim forfeiture at the end of the fiscal year, though they knew then that their overclaiming for the product and their notice of cancellation had brought about conditions under which it would be impossible for plaintiff in that year to sell the required quantity.
When all these circumstances are considered, in connection with the further facts; that the lease had been in force for nearly ten years; that plaintiff had, until the Commission proceeding stopped them, spent large sums of money to market and distribute the product; had on the whole, though not year by year, sold considerably more of the product than the minimum quantity the lease contract required, and had in each year faithfully paid the stipulated royalty, we think it plain that the forfeiture should have been relieved by a properly conditioned decree. C/f Amerada Petroleum Co. v. Doering, 5 Cir., 93 F.2d 540.
As far as the record shows, the failure was only temporary and due to a temporary condition, the pendency of the Trade Commission proceeding, and the acts of the defendants in wrongfully terminating the contract- The Trade Commission proceeding out of the way, there was a strong expectation that the lessee would be in a position in the future to faithfully perform the'provisions of the lease. Though the decree appealed from was entered in March, 1937, no inquiry was made, no evidence taken as to the result of plaintiff’s operations for the fiscal year ending in 1936, neither, of course, was there any evidence in the record as to sales for the year ending in 1937, or up to the present time in 1938, nor any as to the probability in the future of plaintiff’s performing the covenants of the lease as it had agreed to do.
We are therefore in no position to frame a decree, but must remand the qause to the District Court, with directions for a hearing upon whether there is or is not a strong expectation and probability that plaintiff will, in the future, be able to comply with the peremptory terms of the lease, and for the framing of a decree accordingly. If such a showing is made, an analogous decree to that entered in the Amerada Petroleum Co. Case, supra, should be framed, awarding plaintiff an injunction against the termination of the lease, conditioned that within a reasonable time, not exceeding one year, it is able to demonstrate that it can perform the peremptory terms of the lease. If the hearing fails to show a strong expectation, and a reasonable probability that plaintiff can in the future comply with the peremptory requirements of the lease, the bill should be dismissed for want of equity.
Reversed and remanded, with directions.
“Mr. George E. Edelin,
“1518 K St. N W
‘'“Washington, D. G.
“Dear Mir. Edelin: As you know, the contract of the Leas Tonic Company has been cancelled with Vasco Products, Inc. and this automatically ends the case of the Federal Trade Commission against Vasco Products, Inc.
“No doubt we will have trouble with the Trade Commission and wondered if at such time you would be interested in the case. '
“Thanking you, I am,
“Tours very truly, W. M. Lea.”
Question: Are there two issues in the case?
A. no
B. yes
Answer:
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songer_majvotes
|
2
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
Johnny JAMES, Petitioner-Appellant, v. Felix RODRIGUEZ, Respondent-Appellee.
No. 76-1047.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted March 3, 1977.
Decided April 12, 1977.
Rehearing Denied April 29, 1977.
W. Michael Celestre, Window Rock, Ariz. (Robert Ericson, Window Rock, Ariz., on the brief), for petitioner-appellant.
Andrea R. Buzzard, Asst. Atty. Gen., Santa Fe, N. M. (Toney Anaya, Atty. Gen., Santa Fe, N. M., on the brief), for respondent-appellee.
Before MeWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
The United States District Court for the District of New Mexico denied relief on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. Section 2254. The dismissal was without prejudice, the basis for it being that the prosecutor had no discretion in invoking the Habitual Criminal Act, that application of the Act did not constitute cruel and unusual punishment, and that the defendant had failed to exhaust his state remedies as to his claim that the Act was applied to him in an arbitrary and discriminatory manner. The alleged invalidity of the sentence imposed by the District Court of McKinley County, New Mexico has given rise to the instant habeas corpus proceeding and the appeal.
Concurrent sentences of not less than one year nor more than five years were originally imposed. On appeal the New Mexico Court of Appeals reversed and remanded for a new trial. There followed a conviction on the original charges at the second trial at which time the appellent was sentenced to two terms of confinement of not less than one year and not more than five years, the sentences to run consecutively.
Only after this imposition of sentence did the district attorney proceed to file a new information alleging that the petitioner was a habitual offender under NMSA Sections 40A-29-5 and 40A-29-6. The court determined that the defendant had been convicted in accordance with this additional charge and proceeded to impose a sentence of life imprisonment. Post conviction relief from the state court was pursued and on appeal the argument of appellant was that the legislative intent required that the Habitual Offender Act be applied one step at a time, that the prosecutor’s act had the appearance of retaliation, and that the application of the Habitual Offender Act constitutes cruel and unusual punishment. The New Mexico Court of Appeals rejected these arguments.
As we have noted above, there were two trials and in each instance the sentence was one year to five years, the first sentence was to run concurrently, the second consecutively. It was not until after the reversal of the first conviction and the sentence on the occasion of the second conviction that the district attorney proceeded under the Habitual Offender Act, whereby his sentence to life imprisonment was imposed.
The contention of appellant is that the filing of the habitual criminal charge subsequent to the appellant’s retrial and reconviction, thereby bringing about a sentence to life imprisonment, was contrary to North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The Pearce case is not unlike the case at bar. Pearce was first convicted in a North Carolina court of assault with intent to commit rape. He was sentenced to a term of 12 to 15 years in prison. Some time later he initiated a post-conviction proceeding in state court which resulted in reversal of this conviction by the Supreme Court of North Carolina. This was brought about because of the receipt in evidence of an involuntary confession. He was retried, was again convicted and was sentenced, this time to eight years in prison, a sentence which resulted in his serving more time than he would have had he not appealed. It increased his sentence in the net amount of three years. Pearce instituted habeas corpus proceedings in the United States District Court for the Eastern District of North Carolina. That court ruled that the longer sentence was unconstitutional and void. When the state court neglected to resentence Pearce within 60 days, the federal court ordered his release, an order which was affirmed by the United States Court of Appeals for the Fourth Circuit.
In a companion case to Pearce, that of Simpson v. Rice, an Alabama court sentenced the accused following pleas of guilty to four charges of second degree burglary. The sentence was to prison terms aggregating ten years. Two and one-half years later the judgments were set aside for failure to provide Rice with counsel. He was then retried and convicted and sentenced to prison terms aggregating 25 years, no credit having been given for the time spent in prison under the original judgments. He also brought habeas corpus proceedings in the United States District Court for the Middle District of Alabama, contending that the trial court had acted invalidly in failing to give him credit. The district court agreed with this noting that justification for the harsher sentence was not shown in the record.
The Supreme Court ruled that it was a violation of due process to compel a man to serve the same sentence twice because of having appealed. The Court then went on to say that the cases from the Supreme Court and other courts have uniformly held that if a man appeals and succeeds in getting the judgment reversed that the imposition of a heavier sentence on the second conviction is not per se unconstitutional, and that neither the double jeopardy provision of the Fifth-Fourteenth Amendments nor the equal protection clause of the Fourteenth Amendment creates an absolute bar to a more severe sentence following reconviction. The evil arises, according to the opinion of Mr. Justice Stewart, where the more severe sentence is related to the fact that the defendant appealed; the imposition of a punishment for exercising a constitutional right is “patently unconstitutional.”
The objection to the heavy sentence is that it interferes with the free exercise of the right of appeal. Thus it is potentially a misuse of power where it is done vindictively. To avoid this it was held that the reasons for the more severe sentence must be set forth and must include objective information.
In the Rice case there was no attempt to justify the increased punishment. In the Pearce case also it did not appear that there was any justification apart from the naked power to impose it. On that basis the holding was that the sentences were invalid. In the instant case, there was also no attempt to justify the increased punishment.
Blackledge v. Perry, supra, was not dissimilar. A North Carolina inmate had an altercation with another prisoner, and was charged with and convicted of assault with a deadly weapon in state district court. He appealed to the higher court where he would have been entitled to a trial de novo, but upon the exercise of this right of appeal the district attorney filed a more serious charge, the felony of assault with a deadly weapon with intent to kill and inflict serious bodily injury. Defendant entered a plea of guilty to that charge. Thereafter, he applied for a writ of habeas corpus in federal court claiming that the new charge deprived him of due process. The district court granted the writ and the court of appeals affirmed. The Supreme Court agreed with the contention that the filing of the felony charge constituted a violation of due process since the defendant had a right to pursue his de novo appeal without fear of a more serious charge being filed against him.
In the Perry case there was an additional problem not present at bar growing out of the fact that Perry had entered a plea of guilty to the felony count. The Supreme Court’s answer to this was that it was invalid to file a felony charge and, therefore, his plea of guilty was incapable of validating that proceeding. The essence of the Court’s holding was that the refiling was vindictive, there having been nothing in the record to disprove this, and where there is a realistic likelihood of vindictiveness the due process clause is violated.
The district attorney, it is pointed out, has a stake in discouraging appeals and he has the ability at hand to prevent them. Neither bad faith nor motive is necessary. Rather, the emphasis is on the right of the person convicted to pursue his right to trial de novo or appeal without fear that he will suffer a more serious charge. On that ground it was held to be a violation of the Constitution for the state to respond to the appeal of Perry by filing a more serious charge against him.
Judging the case at bar by the standards set forth in Pearce and Perry, we must conclude that in the absence of evidence to the contrary, the filing of the habitual criminal charge was not unrelated to his having appealed. The fact that there was a gross increase in the sentence supports this conclusion. Thus one who appeals a one to five year sentence ought not to have to anticipate that he will end up being sent to prison for life.
It is argued by the government that the district attorney was not exercising discretion because the habitual criminal statute, Section 40A-29-6 NMSA (1953 Comp.), provides that where the defendant has a criminal record the filing of the habitual criminal statute is mandatory. It is true that the statute contains mandatory language. The courts of New Mexico have construed the statute as being mandatory. See State v. Gonzales, 84 N.M. 275, 502 P.2d 300 (App. 1972); State v. Sedillo, 82 N.M. 287, 480 P.2d 401 (App.1971); and State v. McCraw, 59 N.M. 348, 284 P.2d 670 (1955). But see State v. Baldonado, 79 N.M. 175, 441 P.2d 215 (App.1968).
In State v. Gonzales, supra, for example, defendant was convicted in November 1971 and was sentenced to two to ten years. On December 22, 1971, the district attorney filed a habitual criminal information based on an earlier conviction plus the November 1971 conviction. The result of this was that an amended sentence of five to twenty years was imposed.
In State v. Baldonado, supra, the New Mexico Court of Appeals upheld an individual’s conviction under the Habitual Criminal Act and overruled his contention that his rights under the equal protection clause of the Fourteenth Amendment were violated because of the uneven application of the habitual criminal statute. In its opinion the New Mexico Court of Appeals recognized that district attorneys do not file an information under the Habitual Criminal Act in each instance in which it is possible to do so. The court recognized that a reason for failing to prosecute defendant subject to the Act, such as inability to prove the prior conviction or procedures necessary to obtain the presence of witnesses from out of state, was not available. The court went on to say that selective application of the Act will be a ground for relief only when it is shown to be intentional or personal discrimination or arbitrary action amounting to an unjust and illegal discrimination between persons in similar circumstances. From a reading of this opinion it is apparent that the Act is not always used.
In State v. McCraw, supra, it was held that where an information which charged the defendant with being a habitual criminal was filed a month after his last conviction, there was good and sufficient reason for the delay.
In the case at bar no effort has been made by the State of New Mexico to furnish an explanation as required by the Supreme Court’s opinions in North Carolina v. Pearce, supra, and Blackledge v. Perry, supra. The State simply points to the mandatory terms of the statute. We, however, do not consider this a sufficient answer to the charge that the habitual criminal statute was employed in a manipulative way. On the other hand, we find it significant that the habitual criminal charge was not brought in until after the appeal and reversal of the first conviction.
Another reason why the mandatory nature of the Habitual Criminal Act is not a conclusive answer to the unexplained filing of the habitual criminal charge after appeal and reversal is that the district attorney, and he alone, is empowered to file informations. He also has authority to not file informations. The fact that a state court might be able to force him to file under the Habitual Criminal Act where such a charge would lie does not mean that he does not or cannot file a charge or withhold the charge as he sees fit. In the case at bar he chose to withhold the filing of it at the time of the first conviction, and it was only after the appeal, reversal and trial resulting in conviction on the charge in the second proceeding that he came forward with the habitual criminal charge. In our opinion what appears to be a tactical filing under the Habitual Criminal Act constitutes an interference with the right of appeal and it is thus a violation of the due process clause of the Fourteenth Amendment.
Accordingly, we conclude that the judgment of the district court must be reversed. The cause is remanded to the district court with instructions to grant the relief requested, which is the vacating of the aggravating life imprisonment sentence. The district court is further directed to order the State District Court for the New Mexico Eleventh Judicial District to reinstate the two one to five year sentences to run consecutively. Upon resentencing of the defendant the sentencing court should be directed to credit the defendant with time which he has served on this particular charge. It is so ordered.
. NMSA Section 40A-29-6 provides that:
If at any time, either after sentence or conviction, it shall appear that a person convicted of a felony has previously been convicted of a crime amounting to a felony in this state
. it shall be the duty of the district attorney of the district in which such subsequent conviction was had, to file an information charging the person as a habitual offender.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
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sc_decisiondirection
|
A
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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.
JENKINS v. ANDERSON, WARDEN
No. 78-6809.
Argued January 8, 1980
Decided June 10, 1980
Powell, J., delivered the opinion of the Court, in which BüRger, C. J., and White, Blacklmun, and RehNQuist, JJ., joined; and in all but Part II of which Stewart, J., joined. Stewart, J., filed a statement concurring in part and concurring in the judgment, post, p. 241. Stevens, J., filed an opinion concurring in the judgment, in Part I of which Stewart, J., joined, post, p. 241. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 245.
Carl Ziemba, by appointment of the Court, 444 U. S. 914, argued the cause and filed a brief for petitioner.
Robert A. Derengoski, Solicitor General of Michigan, argued the cause for respondent. With him on the brief were Frank J. Kelley, Attorney General, and Thomas L. Casey, Assistant Attorney General.
Mr. Justice Powell
delivered the opinion of the Court.
The question in this case is whether the use of prearrest silence to impeach a defendant’s credibility violates either the Fifth or the Fourteenth Amendment to the Constitution.
I
On August 13, 1974, the petitioner stabbed and killed Doyle Redding. The petitioner was not apprehended until he turned himself in to governmental authorities about two weeks later. At his state trial for first-degree murder, the petitioner contended that the killing was in self-defense.
The petitioner testified that his sister and her boyfriend were robbed by Redding and another man during the evening of August 12, 1974. The petitioner, who was nearby when the robbery occurred, followed the thieves a short distance and reported their whereabouts to the police. According to the petitioner’s testimony, the next day he encountered Red-ding, who accused him of informing the police of the robbery. The petitioner stated that Redding attacked him with a knife, that the two men struggled briefly, and that the petitioner broke away. On cross-examination, the petitioner admitted that during the struggle he had tried “[t]o push that knife in [Redding] as far as [I] could,” App. 36, but maintained that he had acted solely in self-defense.
During the cross-examination, the prosecutor questioned the petitioner about his actions after the stabbing:
“Q. And I suppose you waited for the Police to tell them what happened?
“A. No, I didn’t.
“Q. You didn’t?
“A. No.
“Q. I see.
“And how long was it after this day that you were arrested, or that you were taken into custody?” Id., at 33.
After some discussion of the date on which petitioner surrendered, the prosecutor continued:
“Q. When was the first time that you reported the things that you have told us in Court today to anybody? “A. Two days after it happened.
“Q. And who did you report it to?
“A. To my probation officer.
“Q. Well, apart from him?
“A. No one.
“Q. Who?
“A. No one but my—
“Q. (Interposing) Did you ever go to a Police Officer or to anyone else?
“A. No, I didn’t.
“Q. As a matter of fact, it was two weeks later, wasn’t it?
“A. Yes.” Id., at 34.
In closing argument to the jury, the prosecutor again referred to the petitioner’s prearrest silence. The prosecutor noted that petitioner had “waited two weeks, according to the testimony — at least two weeks before he did anything about surrendering himself or reporting [the stabbing] to anybody.” Id., at 43. The prosecutor contended that the petitioner had committed murder in retaliation for the robbery the night before.
The petitioner was convicted of manslaughter and sentenced to 10 to 15 years’ imprisonment in state prison. The Michigan Court of Appeals affirmed the conviction, and the Michigan Supreme Court denied leave to appeal. The petitioner then sought a writ of habeas corpus from the Federal District Court for the Eastern District of Michigan, contending that his constitutional rights were violated when the prosecutor questioned him concerning prearrest silence. A Federal Magistrate concluded that the petition for habeas corpus relief should be denied. The District Court adopted the Magistrate’s recommendation. The United States Court of Appeals for the Sixth Circuit affirmed. 599 F. 2d 1055. This Court granted a writ of certiorari. 444 U. S. 824 (1979). We now affirm.
II
At trial the prosecutor attempted to impeach the petitioner’s credibility by suggesting that the petitioner would have spoken out if he had killed in self-defense. The petitioner contends that the prosecutor’s actions violated thb Fifth Amendment as applied to the States through the Fourteenth Amendment. The Fifth Amendment guarantees an accused the right to remain silent during his criminal trial, and prevents the prosecution from commenting on the silence of a defendant who asserts the right. Griffin v. California, 380 U. S. 609, 614 (1965). In this case, of course, the petitioner did not remain silent throughout the criminal proceedings. Instead, he voluntarily took the witness stand in his own defense.
This Court’s decision in Raffel v. United States, 271 U. S. 494 (1926), recognized that the Fifth Amendment is not violated when a defendant who testifies in his own defense is impeached with his prior silence. The defendant in Raffel was tried twice. At the first trial, a Government agent testified that Raffel earlier had made an inculpatory statement. The defendant did not testify. After the first trial ended in deadlock the agent repeated his testimony at the second trial, and Raffel took the stand to deny making such a statement. Cross-examination revealed that Raffel had not testified at the first trial. Id., at 495, n. The Court held that inquiry into prior silence was proper because “[t]he immunity from giving testimony is one which the defendant may waive by offering himself as a witness. . . . When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined. . . .” Id., at 496-497. Thus, the Raffel Court concluded that the defendant was “subject to cross-examination impeaching his credibility just like any other witness.” Grunewald v. United States, 353 U. S. 391, 420 (1957).
It can be argued that a person facing arrest will not remain silent if his failure to speak later can be used to impeach him. But the Constitution does not forbid “every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.” Chaffin v. Stynchcombe, 412 U. S. 17, 30 (1973). See Corbitt v. New Jersey, 439 U. S. 212, 218, and n. 8 (1978). The “ 'threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.’ ” Chaffin v. Stynchcombe, supra, at 32, quoting Crampton v. Ohio, decided with McGautha v. California, 402 U. S. 183, 213 (1971). The Raff el Court explicitly rejected the contention that the possibility of impeachment by prior silence is an impermissible burden upon the exercise of Fifth Amendment rights. “We are unable to see that the rule that [an accused who] testifies . . . must testify fully, adds in any substantial manner to the inescapable embarrassment which the accused must experience in determining whether he shall testify or not.” 271 U. S., at 499.
This Court similarly defined the scope of the Fifth Amendment protection in Harris v. New York, 401 U. S. 222 (1971). There the Court held that a statement taken in violation of Miranda v. Arizona, 384 U. S. 436 (1966), may be used to impeach a defendant’s credibility. Rejecting the contention that such impeachment violates the Fifth Amendment, the Court said:
“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. . . . Haying voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.” 401 U. S., at 225.
See also Oregon v. Hass, 420 U. S. 714, 721-723 (1975); Walder v. United States, 347 U. S. 62, 65 (1954).
In determining whether a constitutional right has been burdened impermissibly, it also is appropriate to consider the legitimacy of the challenged governmental practice. See Chaffin v. Stynchcombe, supra, at 32, and n. 20. Attempted impeachment on cross-examination of a defendant, the practice at issue here, may enhance the reliability of the criminal process. Use of such impeachment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and acts. A defendant may decide not to take the witness stand because of the risk of cross-examination. But this is a choice of litigation tactics. Once a defendant decides to testify, “[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.” Brown v. United States, 356 U. S. 148, 156 (1958).
Thus, impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. We conclude that the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant’s credibility.
Ill
The petitioner also contends that use of prearrest silence to impeach his credibility denied him the fundamental fairness guaranteed by the Fourteenth Amendment. We do not agree. Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence § 1042, p. 1056 (Chadboum rev. 1970). Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative. For example, this Court has exercised its supervisory powers over federal courts to hold that prior silence cannot be used for impeachment where silence is not probative of a defendant’s credibility and where prejudice to the defendant might result. See United States v. Hale, 422 U. S. 171, 180-181 (1975); Stewart v. United States, 366 U. S. 1, 5 (1961); Grunewald v. United States, 353 U. S., at 424.
Only in Doyle v. Ohio, 426 U. S. 610 (1976), did we find that impeachment by silence violated the Constitution. In that case, a defendant received the warnings required by Miranda v. Arizona, supra, at 467-473, when he was arrested for selling marihuana. At that time, he made no statements to the police. During his subsequent trial, the defendant testified that he had been framed. The prosecutor impeached the defendant’s credibility on cross-examination by revealing that the defendant remained silent after his arrest. The State argued that the prosecutor’s actions were permissible, but we concluded that “the Miranda decision compels rejection of the State’s position.” 426 U. S., at 617. Miranda warnings inform a person that he has the right to remain silent and assure him, at least implicitly, that his subsequent decision to remain silent cannot be used against him. Accordingly, “ ‘it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.’ ” Id., at 619, quoting United States v. Hale, supra, at 182-183 (White, J., concurring in judgment).
In this case, no governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings. Consequently, the fundamental unfairness present in Doyle is not present in this case. We hold that impeachment by use of prearrest silence does not violate the Fourteenth Amendment.
IV
Our decision today does not force any state court to allow impeachment through the use of prearrest silence. Each jurisdiction remains free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial. We merely conclude that the use of prearrest silence to impeach a defendant’s credibility does not violate the Constitution. The judgment of the Court of Appeals is
Affirmed.
Mr. Justice Stewart concurs in the judgment, agreeing with all but Part II of the opinion of the Court, and with Part I of the opinion of Mr. Justice Stevens concurring in the judgment.
The petitioner did not raise his constitutional claims during his state-court trial. Thus, the respondent argues that the rule of Wainwright v. Sykes, 433 U. S. 72 (1977), bars consideration of the petitioner’s habeas petition. But the respondent failed to raise the Sykes question in either the District Court or the Court of Appeals. Ordinarily, we will not consider a claim that was not presented to the courts below. See Dorszynski v. United States, 418 U. S. 424, 431, n. 7 (1974). Considerations of judicial efficiency demand that a Sykes claim be presented before a case reaches this Court. The applicability of the Sykes “cause”-and-“prejudice” test may turn on an interpretation of state law. See Rummel v. Estelle, 445 U. S. 263, 267, n. 7 (1980). This Court’s resolution of such a state-law question would be aided significantly by the views of other federal courts that may possess greater familiarity with Michigan law. Furthermore, application of the “cause”-and-“prejudiee” standard may tum on factual findings that should be made by a district court. Accordingly, we do not consider the Sykes issue in this case.
In Raff el, the defendant’s decision not to testify at his first trial was an invocation of his right to remain silent protected by the Fifth Amendment. In this case, the petitioner remained silent before arrest, but chose to testify at his trial. Our decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment. We simply do not reach that issue because the rule of Raff el clearly permits impeachment even if the prearrest silence were held to be an invocation of the Fifth Amendment right to remain silent.
In Crampton v. Ohio, the Court considered a claim that a murder defendant’s right to remain silent was burdened unconstitutionally because he could not argue for mitigation of punishment without risking incrimination on the question of guilt. The Court recognized that a defendant who speaks in his own defense cannot avoid testifying fully.
“It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. See, e. g., Brown v. Walker, 161 U. S. 591, 597-598 (1896); Fitzpatrick v. United States, 178 U. S. 304, 314-316 (1900); Brown v. United States, 356 U. S. 148 (1958). It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like. See Spencer v. Texas, 385 U. S. [554, 561 (1967)]; cf. Michelson v. United States, 335 U. S. 469 (1948); but cf. Luck v. United States, 121 U. S. App. D. C. 151, 348 F. 2d 763 (1965); United States v. Palumbo, 401 F. 2d 270 (CA2 1968).” 402 U. S., at 215.
The Court concluded that “the policies of the privilege against compelled self-incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt.” Id., at 217. Subsequently, a petition for rehearing in Crampton was granted and the underlying state-court decision was vacated on Eighth Amendment grounds. 408 U. S. 941 (1972).
Both MR. Justice Stevens, post, at 241-242, n. 2, and Mr. Justice Marshall, post, at 252, suggest that the constitutional rule of Raffel was limited by later decisions of the Court. In fact, no Court opinion decided since Raffel has challenged its holding that the Fifth Amendment is not violated when a defendant is impeached on the basis of his prior silence. In United States v. Hale, 422 U. S. 171, 175, n. 4 (1975), the Court expressly declined to consider the constitutional question. The decision in Stewart v. United States, 366 U. S. 1 (1961), was based on federal evidentiary grounds, not on the Fifth Amendment. The Court in Grunewald v. United States, 353 U. S. 391, 421 (1957), stated that it was not required to re-examine Raffel. In all three cases, the Court merely considered the question whether, as a matter of federal evidentiary law, prior silence was sufficiently inconsistent with present statements as to be admissible. See also n. 5, infra.
Mr. Justice Marshall contends that the petitioner’s prearrest silence is not probative of his credibility. Post, at 248-250. In this case, that is a question of state evidentiary law. In a federal criminal proceeding the relevance of such silence, of course, would be a matter of federal law. See United States v. Hale, supra, at 181. Mr. Justice Marshall’s further conclusion that introduction of the evidence in this trial violated due process relies upon the Court’s reasoning in Doyle v. Ohio, 426 U. S. 610 (1976), and United States v. Hale. Post, at 246-250. But the Court’s decision in Hale rested upon noneonstitutional grounds, see n. 4, supra, and Doyle is otherwise distinguishable, see infra, at 240.
The Court reached a similar result in Johnson v. United States, 318 U. S. 189 (1943). A trial judge mistakenly told a defendant that he could claim the privilege against self-incrimination. After the defendant invoked the privilege, the prosecutor commented on the defendant’s refusal to speak. Under its supervisory power, this Court held that the prosecutor’s comments constituted error because the trial court had assured the defendant that he might claim the protections of the Fifth Amendment. The Court stated that “[e]lementary fairness requires that an accused should not be misled on that score.” Id., at 197; see Doyle v. Ohio, supra, at 618, n. 9. See also Raley v. Ohio, 360 U. S. 423, 437-438 (1959).
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Kay CORREA-NEGRON, Defendant-Appellant.
No. 71-2588.
United States Court of Appeals, Ninth Circuit.
June 15, 1972.
Rehearing Denied July 24, 1972.
Martha Goldin (argued), Alan Saltz-man, Hollywood, Cal., for defendant-appellant.
Shelby R. Gott, Asst. U. S. Atty. (argued), Stephen G. Nelson, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.
Before MERRILL and GOODWIN, Circuit Judges, and WHELAN, District Judge.
The Honorable Francis C. Whelan, United States District Judge for the Central District of California, sitting by designation.
PER CURIAM:
Appellant’s contention that the trial court should have dismissed the action because the government placed material witnesses out of the reach of appellant’s subpoena power is not supported by the record. First, appellant did not move the trial court for an order dismissing the indictment herein. Second, there is no showing whatsoever that the government ever found any of the other aliens who accompanied Mr. and Mrs. Juarez across the international boundary line.
Appellant’s contention that the judgment must be vacated and the cause remanded in order to afford appellant a competency hearing is likewise without merit. There is nothing in the record to suggest that appellant was mentally incompetent. Nor did the trial court abuse its discretion in the sentencing of appellant.
Appellant’s contention that there was no evidence of conspiracy is frivolous. The evidence of the prosecution established a conspiracy between defendant, one Huero, and others. The overt acts charged in the indictment were committed in the United States; and the conspiracy charged had for its object crime in the United States although carried on partly in and partly out of the United States. Thus, the conspiracy was within the jurisdiction of the United States. Ford v. United States, 273 U.S. 593, 624, 47 S.Ct. 531, 71 L.Ed. 793.
The contention of appellant that there is insufficient evidence to convict appellant of encouraging and inducing the illegal entry of aliens is likewise frivolous. The evidence establishes that the defendant met with Mr. and Mrs. Juarez in Mexico, told them he would get them into the United States, and introduced them to Huero, telling them in effect that Huero would provide the method for their illegal entry. This Huero did. Also defendant told the Juarez’s that he would meet them in San Diego to assist them in travel to Los Angeles. The fact that these acts and conversations took place in Mexico does not make the defendant any less guilty. Claramont v. United States, 26 F.2d 797 (5th Cir.)
The contention that there is insufficient evidence to support appellant’s conviction of harboring aliens is likewise frivolous. The defendant met the Juarez’s again at a San Diego hotel where the Juarez’s had been taken by Huero’s helper. From San Diego the aliens traveled north in an automobile supplied by defendant; he told them to wait until instructed by him that it was safe to proceed through the area on the highway where searches of automobiles for aliens are intermittently maintained. Such evidence is clearly sufficient to support the verdict of guilt.
The judgment is affirmed.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_timely
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" 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".
Charles Quenn BLACKWELL, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 29376
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
July 7, 1970.
Charles Q. Blackwell, Jr., pro se.
U. S. Atty., Walker P. Johnson, Jr., Macon, Ga., for respondent-appellee.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
PER CURIAM:
Charles Quenn Blackwell, Jr. appeals pro se from the denial of his motion to vacate sentence under 28 U.S. C. § 2255. The District Court denied Blackwell’s motion without a hearing. We conclude that a hearing was not necessary to the disposition of Blackwell’s claims and affirm the judgment of the District Court.
In 1967, Blackwell was convicted in two separate cases (Nos. 3060 and 3061) in the District Court for the Middle District of Georgia. In No. 3060, he was convicted on five counts of an indictment. Count one charged him with conspiring to commit mail fraud in violation of 18 U.S.C. § 1341 and to travel in interstate commerce to carry on the unlawful activity of arson in violation of 18 U.S.C. § 1952. The other four counts charged violations of sections 1341 and 1952. Blackwell was sentenced to a five-year term of imprisonment on each count, the sentences to run concurrently. In No. 3061, Blackwell was convicted of violating section 1341. On this conviction he was sentenced to a two-and-one-half-year term of imprisonment, this sentence to run concurrently with the sentences imposed in No. 3060. Both convictions were affirmed on Blackwell’s direct appeal to this Court. Blackwell V. United States, 5 Cir., 1969, 405 F. 2d 625.
In his section 2255 motion, Blackwell alleges: (1) that he never entered into a conspiracy; (2) that he never was a party to an agreement to perform the unlawful acts charged; (3) that the evidence was insufficient to support his convictions; (4) that he was placed twice in jeopardy by being tried for three offenses that, in actuality, were but one offense; (5) that he was forced to present evidence incriminating him to the grand jury under compulsion of subpoena; and (6) that an FBI agent testified at trial regarding a coerced oral confession made by Blackwell, in the absence of a prior judicial determination of the voluntariness of that confession.
Blackwell’s first five allegations were raised by him on his direct appeal, were considered by this Court, and were decided adversely to petitioner. Having carefully reviewed the records in this case, we conclude that to permit Blackwell to initiate a collateral attack on grounds already rejected by this Court would merely result in the purposeless duplication of the review process. We hold, therefore, that the District Court did not err in refusing to redetermine these five issues. E. g., Hayes v. United States, 5 Cir., 1969, 416 F.2d 23. See also Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Houston v. United States, 5 Cir., 1969, 419 F.2d 30, 32.
In his final allegation, Blackwell claims that he was coerced into making an oral confession in that an FBI agent continued to question him after petitioner refused to sign a Miranda warning-and-waiver form. Section 2255 requires the District Court to grant a hearing on a petitioner’s motion “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” E. g., Aeby v. United States, 5 Cir., 1970, 425 F.2d 717. Nowhere in the records of either No. 3060 or No. 3061 is mention made of any confession given by Blackwell to an FBI agent. In No. 3060, no FBI agent testified at all. In No. 3061, the only FBI agent who did testify not once referred to Blackwell or any statements made by Blackwell. Petitioner, therefore, has no basis for contending that his constitutional rights were violated by the introduction as evidence of a coerced confession. His motion and the files and records of this case show conclusively that he was not entitled to relief in the District Court. An evidentiary hearing on his motion, therefore, was not required. E. g., Gill v. United States, 5 Cir., 1970, 421 F.2d 1353, 1355; Holland v. United States, 5 Cir., 1969, 406 F.2d 213. We have fully considered Blackwell’s other contentions on this appeal and find them to be without merit.
Affirmed.
. We have concluded on the merits that this case is of the character that does not justify oral argument. Therefore, we have directed the Clerk to place the case on the Summary Calendar and to notify the parties of this action in writing. 5 Cir. R. 18.
Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_decuncon
|
I
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the court declared any statute or administrative action unconstitutional. Only explicit statements in the opinion that some provision is unconstitutional should be used. Procedural violations of the constitution in the courts below are not counted as judicial review (e.g., if the trial court threw out evidence obtained in a search and seizure because of a 4th Amendment violation, the action would not count as judicial review).
Gary WELSH, Petitioner-Appellant, v. Larry MIZELL, Warden, Vienna Correctional Center, Vienna, Illinois, and Tyrone C. Fahner, Attorney General of the State of Illinois, Respondents-Appellees.
No. 80-1862.
United States Court of Appeals, Seventh Circuit..
Argued Sept. 18, 1981.
Decided Jan. 12, 1982.
Rehearing and Rehearing En Banc Denied Feb. 10, 1982.
Jerold S. Solovy, Laura A. Kaster, Brigitte Schmidt Bell, Jenner & Block, Chicago, 111., for petitioner-appellant.
Ronald Lee Bell, Asst. Atty. Gen., Tyrone C. Fahner, Atty. Gen., Chicago, 111., for respondents-appellees.
Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and BAUER, Circuit Judge.
William J. Scott, one of the original defendants, was succeeded by Tyrone C. Fahner. See Rule 25(d) of the Federal Rules of Civil Procedure.
CUMMINGS, Chief Judge.
Gary Welsh is a prisoner at the Illinois Correctional Center in Vienna, Illinois. The murder of which he was convicted was committed in 1962, but Welsh was not competent to stand trial until 1973. At that time he was sentenced in the Circuit Court of McHenry County to a prison term of sixty to one hundred years. His direct appeal was denied, People v. Welsh, 30 Ill.App.3d 887, 333 N.E.2d 572 (2d Dist. 1975). He has served his minimum sentence, with allowance for statutory good time, in several state mental hospitals and in prison. He has been denied parole nine times.
In March 1980 Welsh filed a pro se petition for a writ of habeas corpus. He contended that Illinois’ statutory and regulatory parole criteria had changed significantly between 1962, when he committed his crime, and 1973, when new legislation took effect. In 1962 the emphasis had been on preventing further crimes by the particular candidate for parole (special deterrence). The 1973 criteria reflected instead a philosophy of general deterrence — that a prisoner should not be paroled so long as his incarceration might deter other potential offenders. The application of the new parole criteria to him, Welsh argued, contravened the ex post facto clause of, the United States Constitution.
The district court dismissed Welsh’s petition on the motion of the Attorney General of Illinois. Judge Beatty reasoned that the changes in parole criteria were procedural and that procedural changes do not violate the ex post facto clause when they “operate only in a limited and unsubstantial manner to [the petitioner’s] disadvantage.” May 22, 1980 order, p. 2 (quoting Beazell v. Ohio, 269 U.S. 167, 170, 46 S.Ct. 68, 69, 70 L.Ed. 216). He assumed that the Parole and Pardon Board (now the Illinois Prisoner Review Board) had always had broad discretion to grant or deny parole and that Welsh therefore could not show how the changed provisions caused him cognizable harm. Id. at 3. This appeal followed. For the reasons set out below, we reverse and remand to the Illinois Prisoner Review Board, with instructions to give prompt consideration to Welsh’s parole application under the statute and regulations applicable in 1962.
The Doctrine of Exhaustion of Remedies Is Inapplicable.
We are met at the threshold by a jurisdictional question. The state has argued, although the point was not pressed on appeal, that Welsh’s petition should be dismissed for failure to exhaust state remedies. There are two reasons for not requiring exhaustion. First, the state has expressly waived it. In urging this Court to deny Welsh’s motion for a stay, the state claimed to have shown by its original motion to dismiss that “although petitioner had not gone to the state courts for relief * * * it would have been futile for him to do so” (emphasis added). Second, even without the state’s waiver, sending Welsh back to the state courts would be an exercise in futility, which federal habeas procedure allows us to pretermit. An Illinois appellate court has recently rejected a challenge identical to Welsh’s, Harris v. Irving, 90 Ill.App.3d 56, 45 Ill.Dec. 394, 412 N.E.2d 976 (5th Dist. 1980), and the Illinois Supreme Court denied leave to appeal that decision on January 30, 1981. Thus “there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner,” 28 U.S.C. § 2254(b).
The Ex Post Facto Clause Was Violated.
In its most recent explication of the ex post facto clause, the Supreme Court has said:
The ex post facto prohibition forbids * * * the States to enact any law “which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed.” * * * [T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. Weaver v. Graham, 450 U.S. 24, 28, 29, 101 S.Ct. 960, 963, 964, 67 L.Ed.2d 17 (citations and footnotes omitted)
We begin our inquiry therefore by looking at the criteria for parole in effect in September 1962, when Welsh committed the crime for which he was sentenced. They were contained in Sections 6 and 7b of the Parole Law Ill.Rev.Stat.1961, ch. 38 §§ 806, 808a. Cf. Ill.Rev.Stat.1961, ch. 127 § 55b. Section 6 required the sentencing judge and the State’s Attorney to transmit to the Parole Board an official statement of all “facts or circumstances which may tend to throw light on the question as to whether such prisoner * * * is capable again of becoming a law-abiding citizen.” Section 7b required the Parole Board to give “due consideration and weight * * * to the record of the prisoner’s conduct kept by the superintendent or warden.”
The regulations issued by the Parole Board sounded similar themes. For example,
12. If the members of the Parole and Pardon Board in conference determine that a prisoner serving an indeterminate sentence is entitled to parole, they shall enter an order for parole. If they determine that a prisoner is not a fit person to serve his sentence outside the penitentiary, parole shall be denied, and such further order entered as in the judgment of the members is warranted.
»f: sfc sf; s}: s{s !}:
14. In its consideration of the question of whether a prisoner should be paroled, the Parole and Pardon Board shall evaluate all the factors in each case, including the prisoner’s conduct record, and grant or deny release on parole in accordance with its judgment.
Thus the focus of the Parole Board’s inquiry was on the prisoner himself, as observed by the prosecuting and sentencing authorities and by prison officials. The purpose of incarceration had been served— and parole was appropriate — when the individual prisoner was deterred from engaging in further criminal activity and his conduct demonstrated his rehabilitation. The severity of the offense committed and society’s concern with sufficient punishment did not enter directly into the Parole Board’s decision. Those factors had already determined the minimum and maximum prison terms imposed by the sentencing judge. The minimum sentence was intended to satisfy society’s desire for adequate punishment; the maximum sentence was a rough indicator of when rehabilitation could be presumed. The function of parole was to mediate between the two extremes. People v. Moore, 133 Ill.App.2d 827, 829, 272 N.E.2d 270, 271 (5th Dist. 1971); People v. Lillie, 79 Ill. App.2d 174, 178, 223 N.E.2d 716, 718-719 (5th Dist. 1967).
In 1972 the Illinois legislature enacted new parole criteria based on the Model Penal Code. These criteria, which took effect on January 1,1973, provide for the denial of parole if:
(1) there is substantial risk that [the prisoner] will not conform to reasonable conditions of parole; or
(2) his release at that time would deprecate the seriousness of his offense or promote disrespect for the law; or
(3) his release would have a substantially adverse effect on institutional discipline. Ill.Rev.Stat.1973, ch. 38 § 1003-3-5(c) (Ill.Rev.Stat.1979, id.)
Criteria (1) and (3) invite the Parole Board to look at many of the same factors as under previous law. Criterion (2), however, is a marked departure, importing for the first time into the parole decision considerations of retributive justice (the relationship between time served and the nature of the offense) and general deterrence (incarceration as a means of promoting general respect for law). Furthermore, the statute allows any one of the criteria to serve as a basis for parole denial. Not only is criterion (2) new, therefore, but it can also be determinative. The district court failed to recognize that Welsh’s petition presented exactly that ease: the Parole Board gave only the second of the three factors as its reason for denying parole, and that factor could not have had decisive weight under the Board’s 1962 procedures.
It thus appears that the change in law has worked á substantial harm to Welsh. At the time of his offense, exemplary conduct during his imprisonment might well have resulted in parole. Under the later enactment, no evidence of satisfactory rehabilitation can overcome a finding that the nature of his crime makes him a socially undesirable candidate for parole. This change satisfies both prongs of the Weaver test: it is retrospective and it disadvantages Welsh. It would also satisfy older, more restrictive formulations of the test for an ex post facto violation, which require a direct, after-the-fact enhancement of punishment. Section 1 of the Parole Law in effect at the time Welsh committed his crime stated:
It shall be deemed and taken as part of every sentence, as fully as though written therein, that the Parole and Pardon Board, by and with the approval of the Governor in the nature of a release' or commutation of sentence * * * may terminate the term of such imprisonment * * * earlier than the maximum fixed by the court * * *. Ill.Rev.Stat.1961 ch. 38 § 801 (as amended by H.B.No.343, 1961, Ill.Laws) (emphasis added)
The Supreme Court has also' warned that a “repealer of parole eligibility” may amount to a “greater or more severe punishment than was prescribed by the law at the time of the * * * offense.” Sounding a pragmatic note, Justice Brennan wrote, “[Ojnly an unusual prisoner could be expected to think that he was not suffering a penalty when he was denied eligibility for parole.” Warden v. Marrero, 417 U.S. 653, 662-663, 94 S.Ct. 2532, 2537-2538, 41 L.Ed.2d 383 (emphasis in original; citations omitted). Accord, Rodriguez v. United States Parole Commission, 594 F.2d 170, 176 (7th Cir. 1979).
We find considerable support for our holding that the change from special deterrence criteria to general deterrence criteria is substantial and that the retrospective application of the general deterrence criteria violates the ex post facto clause. In Weaver v. Graham, supra, 450 U.S. 24, 101 S.Ct. 960, a Florida statute that changed the computation of “gain time credits” violated the ex post facto clause. In Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182, legislation that amended a discretionary fifteen-year sentence to a mandatory fifteen-year term could not be given retrospective effect. In Greenfield v. Scafati, 277 F.Supp. 644 (D.Mass.1967) (3-judge court), affirmed, 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250, legislation that made “good conduct deductions” forfeit if parole conditions were violated could only be constitutionally applied to prisoners whose crimes were committed after the statute was enacted.
In addition, several courts of appeals have held that federal parole criteria, amended in 1976 to include depreciation of the seriousness of the offense, tendency to promote disrespect for the law, and jeopardy to the public welfare, could not be applied to youthful offenders whose crimes were committed before that date. The Youth Corrections Act had, until the 1976 amendments, focused on “a mental and physical examination to ascertain [the youthful offender’s] personal traits, his capabilities, pertinent circumstances of his family life, any previous delinquency or criminal experience, and any mental or physical defect or other factor contributing to his delinquency.” Shepard v. Taylor, 556 F.2d 648, 653 (2d Cir. 1977) (summarizing 18 U.S.C. § 5014). Accord, Marshall v. Garrison, 659 F.2d 440, 444-446 (4th Cir. 1981); De Peralta v. Garrison, 575 F.2d 749 (9th Cir. 1978). While Youth Corrections Act precedents are not automatically transferrable to parole challenges by adult offenders, the changes wrought by the Illinois legislature are of a sufficient magnitude to render these cases apposite. The shift in criteria is, for example, more marked than was true in Ruip v. United States, 555 F.2d 1331 (6th Cir. 1977), where no ex post facto violation was found.
There are decisions in which ex post facto challenges virtually identical to Welsh’s have been made but without success. See, e.g., United States ex rel. McCalvin v. Irving, No. 80 C 1522 (N.D.Ill.1981); United States ex rel. Overall v. Director, No. 74 C 2541 (N.D.Ill.1974), affirmed without opinion, 513 F.2d 634 (7th Cir. 1975); and People v. Harper, 27 Ill.App.3d 406, 327 N.E.2d 91 (5th Dist. 1975) (abstract).
We think the reasoning in these cases is flawed, as Judge Beatty’s was here, by two misconceptions. First, the prisoner does not have to show that he had a vested right to be paroled. That showing would be necessary for a contract clause or due process challenge, but it is not relevant to an ex post facto claim. Weaver v. Graham, supra, 450 U.S. at 29-30, 101 S.Ct. at 964-965, is now dispositive on that point. Second, it is not an answer to an ex post facto challenge to say that parole is a matter of “legislative grace.” As Judge Aldrich noted in Greenfield v. Scafati, supra, 277 F.Supp. 644, 646:
It is true that parole is commonly spoken of as a matter of grace, and not of right. * * * It would be more accurate, however, to say that a prisoner’s entitlement to parole lies in the discretion of the parole board. It would not. follow because a prisoner might not receive parole that it would not be an unlawful ex post facto burden to deprive him altogether of the right to be found qualified.
Even discretionary decisions are made under some constraints. We hold only that the constraints on the Parole Board’s discretion in Welsh’s case must be those contained in the statute and regulations that were in effect in 1962, not those subsequently enacted.
Remand to the Illinois Prisoner Review Board Is the Appropriate Remedy.
Welsh has argued that we should either order his immediate release, since the only ground for the most recent denial of his parole was constitutionally inapplicable, or remand his case to the Prisoner Review Board for reconsideration under the relevant guidelines. A remand is clearly the appropriate relief. See Weaver v. Graham, supra, 450 U.S. at 36-37, 101 S.Ct. at 968-969, and People ex rel. Jones v. Brantley, 45 Ill.2d 335, 337, 259 N.E.2d 33, 34 (1970). If the Board denies parole yet again, it must— as the state acknowledges (Br. 6) — give its reasons in order to satisfy the due process requirements of Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 15, 16, 99 S.Ct. 2100, 2107-2108, 60 L.Ed.2d 668.
Reversed and remanded for further proceedings consistent herewith.
. “No State shall * * * pass any * * * ex post facto Law.” U.S.Const., Art. I, § 10, cl. 1. A similar clause applies to the federal government. Art. I, § 9, cl. 3. The Illinois Constitution contains a like provision in Art. 1, § 16.
. January 30, 1981, response to Petitioner-Appellant’s Motion for Stay.
. This shift is illustrated by the comments of Theodore P. Fields, chairman of the Parole and Pardon Board from January 1971 to August 1972, in 62 Ill.B.J. 20, 22 (1973):
The second statutory ground for denial breaks down into two categories of principles that exist in our system of criminal justice: “His release at that time would deprecate the seriousness of his offense” means simply, under our present standards, has the man who committed a certain crime served a reasonable enough time considering the nature of the crime. * * * The second category is that “his release at that time would ... promote disrespect for the law.” This relates to the principle of deterrence. If an offender is released at too early a date as compared with the nature of the crime committed, others would feel there is no reason they should worry about committing such crimes because there wouldn’t be much of a penalty to be suffered. * * * Also, for a viable system of criminal justice, it is necessary for the public to have confidence in and respect for the law. * * * The length of time served for particular offenses is currently one of the elements that does have an overall effect on the public in its respect for the law.
. Exhibit 1 to petition for writ of habeas corpus.
. In Ruip, the prisoner was challenging the 1973 federal parole guidelines. Under those guidelines the United States Parole Commission identified nine personal characteristics and six categories of offense severity. It assigned the prisoner scores for each characteristic and a rating for offense severity, and granted or denied parole based on both factors.
Question: Did the court declare any statute or administrative action unconstitutional?
A. no declarations of unconstitutionality
B. act of Congress declared unconstitutional (facial invalidity)
C. interpretation/application of federal law invalid
D. federal administrative action or regulation unconstitutional on its face
E. interpretation/application of administrative regs unconstitutional
F. state constitution declared unconstitutional on its face
G. interpretation/application of state constitution unconstitutional
H. state law or regulation unconstitutional on its face
I. interpretation/application of state law/regulation unconstitutional
J. substate law or regulation unconstitutional on its face
K. interpretation/application of substate law/regulation unconstitutional
Answer:
|
songer_usc1sect
|
4246
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
William R. KELLAR, Appellant, v. Dr. P. J. CICCONE, Appellee.
No. 20540.
United States Court of Appeals, Eighth Circuit.
May 6, 1971.
William R. Kellar, pro se.
Bert C. Hurn, U. S. Atty., and Frederick O. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., on brief, for appellee.
Before ALDRICH LAY and BRIGHT, Circuit Judges.
Of the First Circuit, sitting by designation.
PER CURIAM.
This case presents us with facts and circumstances nearly identical to those we considered in Henry v. Ciecone, 440 F.2d 1052 (8th Cir. 1971). For the reasons enunciated in that case, we dismiss this appeal.
Kellar, an unconvictéd person, was assigned on April 23, 1968, to the Federal Medical Center at Springfield, Missouri, for treatment until found to be mentally competent, pursuant to the provisions of 18 U.S.C. § 4246. In his habeas petition, he'alleged that the Medical Center had failed to provide him with proper treatment for his “incurable” mental illness. He requested that he be released from the Medical Center and placed in a state hospital where he might receive adequate psychiatric treatment. Upon the district court’s denial of his petition, Kellar brought this in forma pauperis appeal.
Here, as in the Henry case, the record discloses that after petitioner’s habeas corpus application was denied, the Federal Medical Center determined that he had regained his competency and was capable of standing trial. On about July 15, 1970, fifteen days after the district court denied Kellar’s petition, the Medical Center recommended that Kellar be returned to his committing court. Despite this determination, however, as in Henry, petitioner was not immediately transferred to his committing court, but remained incarcerated at the Medical Center pending appeal. It was not until January 8, 1971, that the United States Attorney for the Western District of Missouri filed a motion with this court requesting permission to transfer Kellar to his committing court in Indiana. Acting as promptly as possible, we granted the government’s motion shortly thereafter.
The government confesses that its delay has been “regrettable”. In the government’s brief, the United ' States Attorney for the Western District of Missouri informs us that his office has initiated procedures to avoid such delays in the future. A patient’s transfer pursuant to those procedures shall not, by the fact of the transfer alone, prejudice any appeal rights. See Fed.R.App.P. rule 23(a). We are gratified that the United States Attorney for the Western District of Missouri, in cooperation with the administration of the Federal Medical Center and the United States Bureau of Prisons, has responded to our admonition in Henry, that
[i]t is intolerable that one who is presumed innocent and who has been found competent to stand, trial is detained at the F.M.C. for inordinate and indefensible periods of time. [440 F.2d at 1052]
Since Kellar has been transferred to his committing court to stand trial on the charges brought against him, his appeal presents no actual issue requiring our attention.
Appeal dismissed.
. The appropriateness of the procedures are not now before us, and, therefore, we make no comment on their substance.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer:
|
songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Nels LARIVE, Plaintiff, v. UNITED STATES of America, Appellee, Jerry Lindstrom, d/b/a Lindstrom Construction Company, Appellant.
No. 20731.
United States Court of Appeals, Eighth Circuit.
Oct. 14, 1971.
Rehearing Denied Dec. 3, 1971.
Albert T. Reddish, Alliance, Neb., for appellant.
Robert E. Kopp, Atty., U. S. Dept. of Justice, Washington, D. C., for appellee.
Before MATTHES, Chief Judge, and BRIGHT and STEPHENSON, Circuit Judges.
BRIGHT, Circuit Judge.
Plaintiff Neis Larive sustained severe electrical burns and related bodily injuries when he accidently came in contact with a live electrical conductor. The accident occurred when Larive, then employed by the contractor, Jerry Lind-strom, d/b/a Lindstrom Construction Company, was performing electrical construction work on behalf of his employer, for the United States Department of Interior, Bureau of Reclamation, at an electric power substation at Alliance, Nebraska. Larive, prior to the accident, thought that the electrical conductor with which he came in contact was de-energized.
Larive brought an action for damages against the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b) and 2674, and joined his employer, Lindstrom, because of the latter’s interest in the claim arising from the payment of workmen’s compensation benefits to Larive under the Nebraska law. The United States cross-claimed for indemnity against contractor Lind-strom contending that Lindstrom should be held Hable for the accident and the consequent damages sustained by Larive in the event that the plaintiff should recover in the principal action.
During the trial, the United States settled with Larive for $301,000 and, in addition, paid Larive’s wife the further sum of $50,000 on her separate suit brought against the government for loss of consortium. Thereafter, the government pressed its cross-claim for indemnity to conclusion. The trial court awarded the United States a judgment of $175,000 plus interest on the cross-claim for indemnity, this figure representing fifty per cent of the amounts which the United States had paid to Larive and Larive’s wife. Lindstrom prosecutes this timely appeal from the judgment granting the government indemnity. The trial court’s opinion is reported at 318 F.Supp. 119 (D.S.D.1970).
The trial court found that the failure of Larive’s employer to notify Larive of the actual hazards on the job, as well as misrepresentations made to Larive by the Bureau of Reclamation representative, contributed to causing plaintiff’s injuries, and the court determined the relative fault of each to be fifty per cent. Upon our review, we find that substantial evidence supports these crucial findings. Appellant has failed to demonstrate them to be clearly erroneous.
The United States, however, concedes that the award should be reduced by $25,000 since the trial court took into consideration the settlement for $50,000 which the United States paid to Mrs. Larive on her separate action. This separate action was not involved in the cross-claim for indemnity and the trial court erred in awarding any indemnity in this proceeding on account of the government’s settlement with Larive’s wife.
Appellant takes further exception to the district court’s order that interest on the judgment be computed from June 26, 1968, the date of the settlement between the United States and Larive. This exception is not well taken. The government’s recovery here is ' based on indemnification by Lindstrom in proportion to his fault in causing Larive’s injuries. See United States v. Seckinger, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970). In the usual indemnity case the indemnitor becomes immediately liable, upon the expenditure by the indemnitee, for that portion of the expenditure covered by the indemnification agreement, even though a judicial determination is required to determine the amount of that liability. Because we have affirmed the finding that Lindstrom was liable at the time the government settled with Larive, for that portion of the settlement attributable to Lindstrom’s negligence, the government, in making settlement with Larive, expended funds on behalf of Lindstrom, its indemnitor. In this posture the district court was justified in awarding interest on the government’s recovery from June 26, 1968, the date of settlement with Larive. See Kincade v. C & L Rural Electric Cooperative Corp., 299 S.W.2d 67, 73 (Ark.1957); cf. Terminal R. Ass’n of St. Louis v. United States, 182 F.2d 149, 151 (8th Cir. 1950). The appellants have failed to demonstrate any error of the trial court by citing appropriate authority suggesting a contrary result. We therefore affirm the district court view that interest should be allowed from the date of settlement with the claimant Larive.
The judgment is modified by reducing the same in the amount of $25,000. As modified, the judgment is affirmed. No costs shall be taxed by either party.
. The original settlement was for $306,000, which amount included $5,000 earmarked for an anticipated surgical operation. Following Larive’s decision not to undergo the operation, the amount of his final settlement was reduced to $301,000.
. Lindstrom agreed to be “responsible for all damages to persons or property that occur [red] as a result of his fault or negligence.” Under this contractual obligation, the extent of a contractor’s liability to indemnify the United States will be premised on the basis of comparative negligence “to the full extent that [his] negligence, if any, contributed to the injuries” sustained by the employee. United States v. Seckinger, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970).
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
|
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.
Glenn Roy MILLER, Appellant, v. R. L. EKLUND, etc., et al., Appellee.
No. 20365.
United States Court of Appeals Ninth Circuit.
Aug. 8, 1966.
Glenn Roy Miller, in pro. per.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., James E. Kline, Deputy Atty. Gen., Los Angeles, Cal., for respondent.
Before CHAMBERS, MERRILL and DUNIWAY, Circuit Judges.
DUNIWAY, Circuit Judge:
On March 6, 1960, Miller was sentenced, following his conviction by a jury in California Superior Court, on two counts of armed robbery (Calif.Pen.Code § 211). He seeks habeas corpus. The trial court denied the writ without issuing an order to show cause and without a hearing.
I.
Unlawful arrest. Miller says that he was arrested without a warrant and without probable cause. “The arresting officer was basing his probable cause on informer information.” It appears that a preliminary hearing was held, at which he was represented by counsel, that the magistrate found probable cause, and that he was held for trial. Standing alone, these allegations do not support a claim for federal habeas corpus. Fernandez v. Klinger, 9 Cir., 1965, 346 F.2d 210, 211-212; Latimer v. Cranor, 9 Cir., 1954, 214 F.2d 926, 928; Hampson v. Smith, 9 Cir., 1946, 153 F.2d 417, 418.
II.
Unlawful search. Miller asserts that the unlawful arrest was followed by an unlawful search of his home. He says that at the preliminary hearing two items of clothing, a brown cap and a gray plaid jacket, “that was taken from the defendant during a secret interrogation” and were the fruits of the unlawful arrest, were introduced. He does not allege that these or any items were taken from his home during the search. He does allege that when he was arrested, he was wearing the jacket. Just where or when the police obtained his cap is not stated. It would appear, in view of the language we have quoted, that he probably wore the cap when taken to jail. He also says that the victims of the robbery identified the cap and jacket in a one man lineup during secret pre-trial investigation, and testified about them at the preliminary examination. So far as appears from the petition, neither item was used against him at the trial.
The use, as evidence, of items of clothing worn by the accused when arrested does not, in our opinion, violate any of his federal constitutional rights. His clothing was no more the “fruit” of an unlawful arrest than he was.
At the trial, fingerprints taken from Miller when he was booked at the jail were used against him. This did not deprive him of any federal constitutional right. Cf. Schmerber v. State of California, 1966, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908.
III.
Interrogation. Miller says that, after his arrest, he was interrogated without counsel, not advised of his right to counsel, and was denied counsel although he asked to call his lawyer. He states that when arrested at his home, he was “pistol-whipped,” handcuffed, kicked in the stomach and “knocked down and out” because he would not sign an incriminating statement, and that he was later interrogated repeatedly. It does not appear, however, that he ever gave an incriminating statement,. or that, if he did, it was used against him. Assuming the truth of these charges, they do not entitle him to relief in federal habeas corpus. Misconduct by the police, however reprehensible, is not a ground for federal habeas corpus if it does not contribute to a conviction.
IV.
Lack of counsel. Miller says that he had no counsel when brought before a magistrate. However, all that he alleges is that bail was set and he was bound over to preliminary examination. He did have counsel at that examination. He pleaded not guilty. These facts do not entitle him to federal habeas corpus. Wilson v. Harris, 9 Cir., 1965, 351 F.2d 840, 844-845; Marcella v. United States, 9 Cir., 1965, 344 F.2d 876, 881-882.
He then discharged his counsel — the public defender — and proceeded to trial in pro. per. This was done with the permission of the court. There is no allegation that the court did not then determine that his decision was voluntary within the rule in Johnson v. Zerbst, 1938, 304 U.S. 458, 468-469, 58 S.Ct. 1019, 82 L.Ed. 1461. The Los Angeles County Superior Court, where Miller was tried, operates on the master calendar system. Miller first moved to dismiss his counsel before Judge Drucker, who denied the motion. He again made the same motion before Judge Wheatcraft, which was granted. He came to trial before Judge Beck, who accepted without further inquiry Miller's decision to represent himself. This was proper; absent some motion on Miller’s part, or other facts indicating to the contrary, Judge Beck was entitled to assume, as he evidently did, that Judge Wheat-craft, in granting the motion, had fully performed his constitutional duty.
Miller had a right to act as his own counsel if he chose to do so. So far as his allegations of fact are concerned, all that they show is that he did so choose. These allegations do not, without more, raise a federal question.
V.
Confrontation. Miller says that the arresting officer and an alleged confederate were not called as witnesses by the prosecution. He does not allege that he did not know of their existence or that he asked to call them, much less that any such request was denied. The prosecution is not obliged to call every known witness. Moreover, Miller does not allege that the testimony of either of the witnesses would have been of any assistance to him. His only claim is that he had no chance to cross-examine them. This is a far cry from Pointer v. State of Texas, 1965, 380 U.S. 400, 85 S.Ct. 1065,13 L.Ed.2d 923, on which Miller relies.
VI.
Self-incrimination. Miller took the stand in his own behalf. He says that he “testified to facts that was treated as a confession by the prosecution and the Trial Court.” The contention apparently is that this violated his privilege against self-incrimination. The claim is frivolous.
Affirmed.
. His conviction was affirmed on appeal, People v. Miller, D.C.A.Cal.1961, 190 Cal.App.2d 361, 11 Cal.Rptr. 920. His conviction became final 90 days thereafter, or on August 14, 1961 (see People v. Polk, Cal.1965, 63 Cal.2d 443, 47 Cal.Rptr. 1, 406 P.2d 641.) His conviction thus became final after the decision in Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. See Linkletter v. Walker, 1965, 381 U.S. 618, 622 n. 5, 85 S.Ct. 1731, 14 L.Ed.2d 601.
. We are not to be understood to hold that a mere conclusionary statement that the arrest was unlawful, or without probable cause, is a sufficient allegation to require the habeas corpus court to act upon it. We do not reach that question.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_othadmis
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" 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 the Matter of Grand Jury Witness Charles Joseph BATTAGLIA. Charles Joseph BATTAGLIA, Witness, Appellant, v. UNITED STATES of America, Appellee.
No. 81-5339.
United States Court of Appeals, Ninth Circuit.
Submitted May 18, 1981.
Decided August 20, 1981.
Rehearing Denied Oct. 5,1981.
Hirsh & Bayles, Tuscon, Ariz., for appellant.
Paul Corradini, Phoenix, Ariz., for appellee.
Before GOODWIN, ANDERSON and FERGUSON, Circuit Judges.
GOODWIN, Circuit Judge.
Charles Joseph Battaglia appeals a judgment of civil contempt. He was adjudged a recalcitrant witness for failing to answer certain questions before the grand jury, despite his claim that he was unable to remember the events in question.
In October 1978 Battaglia was indicted for mail fraud, conspiracy, and several drug-related offenses. In January 1979 he entered into a plea bargain pursuant to which he pleaded guilty to one count, the other counts were dismissed, and he agreed to testify as to the “involvement of Joseph Rae in the events underpinning the indictment.”
The government first sought Battaglia’s testimony in July 1979 when he was incarcerated at the United States Medical Center for Federal Prisoners at Springfield, Missouri. His testimony was postponed at the request of the prison officials because Battaglia was suffering from heart disease. During the summer and fall of 1979 the prison authorities continued to recommend that Battaglia not be required to testify.
After his release on parole, Battaglia was served with a subpoena to appear in May 1980 before the grand jury. He moved to quash the subpoena on the ground that the strain of testifying would endanger his life. Battaglia was examined by a government physician who agreed that there was a significant health risk. Consequently, although the district court refused to quash the subpoena, it ordered that Battaglia’s physician be permitted to stand outside the grand jury room door and that the proceeding be halted at Battaglia’s request.
Upon appearing before the grand jury on October 21, 1980, Battaglia stated that his memory was impaired by the drugs he had been taking for his heart condition, but he would try to answer the questions to the best of his ability. After a few minutes, Battaglia’s physician informed the United States Attorney that it was unsafe for Battaglia to continue, and the proceeding was halted.
On December 4, 1980, Battaglia was ordered to submit written answers to questions propounded by the government in lieu of a personal appearance before the grand jury. The government propounded a set of 55 questions relating to Rae’s involvement in a criminal scheme. In his written responses, Battaglia gave answers that failed to satisfy the government attorneys and they applied for an order to show cause why Battaglia should not be declared a recalcitrant witness under 28 U.S.C. § 1826.
At the hearing before the district court on the order to show cause, Battaglia argued that he had not been given notice of the answers which the government deemed insufficient. The court agreed and ordered the government to specify the answers with which it was not satisfied. Battaglia’s supplemental answers stated in slightly greater detail his inability to remember. Battaglia also pointed out that an FBI report of an interview with him concerning the scheme was inconsistent with the transcript of surreptitiously recorded conversations of his also concerning the scheme. Because of the inconsistency, he stated it was difficult for him to remember what had actually transpired.
At a second hearing on the order to show cause the government argued that Battaglia had the burden of proving that his answers were truthful. The court apparently adopted the government’s view of the burden of proof. In an attempt to comply with the court’s Understanding of the burden of proof, Battaglia presented testimony by a clinical psychologist and a clinical pharmacologist.
The psychologist, who had given Battaglia a battery of tests that morning, concluded that there was evidence of short-term memory impairment. He also found that Battaglia’s overall mental capabilities had “substantially” slipped from his native ability. The psychologist did not find gross indications of remote memory loss, but testified that Battaglia did not do well on one portion of an examination which would indicate remote memory loss. The psychologist testified that he did not believe that Battaglia was malingering because an untrained person would not know which answers to which questions would produce a desired result.
The pharmacologist testified on the possible effects of the drugs Battaglia was taking, Inderal and Demerol. He testified that there is some indication that Inderal causes short-term memory loss. He also testified that the drug causes depression, a symptom of which is memory impairment. He specifically testified that there is a possibility, although not a probability, that Inderal will cause long-term memory loss.
The pharmacologist testified that Demerol is a narcotic that depresses the central nervous system. A depressant adversely affects the memory function of a person under its influence. Moreover, the witness said animal experiments had shown that Inderal and Demerol, when taken together, will have a greater effect than one would expect from the simple addition of their individual effects.
Subsequently, the court found Battaglia to be a recalcitrant witness pursuant to 28 U.S.C. § 1826 and ordered him confined until such time as he answered the questions in a nonevasive manner. The court concluded that Battaglia’s claim of loss of memory was made in bad faith. It based its conclusion on the following facts: (1) Battaglia’s personal physician did not testify as to memory loss; (2) Battaglia presented no evidence from family or friends that he was suffering from memory loss; (3) the expert testimony related only to short-term memory loss and the possibility, not probability, of long-term memory loss; (4) Battaglia did not stress the alleged memory problems until he was ordered to answer the written questions; (5) Battaglia had no problem answering nonincriminating questions; and (6) Battaglia’s demeanor on the stand was evasive.
I. Applicability of the Statute
“Whenever a witness in any proceeding before ... [a] grand jury of the United States refuses without just cause shown to comply with an order of the court to testify . . . the court . . . may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony . . . .” 28 U.S.C. § 1826.
Battaglia contends that a witness’ false assertion that he does not remember does not constitute a refusal to testify within the meaning of the statute, but is an act of perjury. As perjury, Battaglia argues, it can be punished as contempt only upon a showing, not made here, that the perjury obstructed the performance of the court’s duties. See Ex Parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656 (1919); Collins v. United States, 269 F.2d 745, 750 (9th Cir. 1959), cert. denied, 362 U.S. 912, 80 S.Ct. 662, 4 L.Ed.2d 620 (1960).
A witness who testified that he does not remember an event can be convicted of perjury if it can be proven beyond a reasonable doubt that he does, in fact, remember the event. United States v. Ponticelli, 622 F.2d 985 (9th Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1980). Battaglia assumes that this ends the inquiry. It does not. Wrongful conduct can be proscribed by more than one statute. Hence the real question is whether a false assertion of a lapse of memory constitutes a refusal to testify, in addition to setting the stage for a possible perjury prosecution.
The government cites no case that expressly holds that either general evasiveness or a false assertion of memory loss constitutes a refusal to testify within the meaning of 28 U.S.C. § 1826. In Martin-Trigona v. Gouletas, 634 F.2d 354 (7th Cir. 1980), the Seventh Circuit affirmed a district court order finding appellant to be a recalcitrant witness upon a finding that the asserted memory loss was false. The issue in that case, however, appears to be whether the district court’s finding of falsity was clearly erroneous, not whether the behavior was proscribed by 28 U.S.C. § 1826. Id. at 357. Nevertheless, we are satisfied that a false assertion of memory loss does constitute a refusal to testify.
Although 28 U.S.C. § 1826 is a relatively new statute, it was intended to codify the common law of civil contempt. Gelbard v. United States, 408 U.S. 41, 42 n. 1, 92 S.Ct. 2357, 2358, n.1, 33 L.Ed.2d 179 (1972); United States v. Alter, 482 F.2d 1016, 1022 (9th Cir. 1973). There are many cases predating the enactment of § 1826 that treat a false assertion of inability to answer as a refusal to answer. See, e. g., Richardson v. United States, 273 F.2d 144, 147 (8th Cir. 1959) (“Courts have recognized that testimony false and evasive on its face is the equivalent of refusing to testify at all.”) Life Music, Inc. v. Broadcast Music, Inc., 41 F.R.D. 16, 24 (S.D.N.Y.1966) (“A court ought not to be put off by transparent sham, and the mere fact that the witness gives some answer cannot be an absolute test.” (quoting from United States v. Appell, 211 F. 495 (S.D.N.Y.1913)).)
Three important policy considerations argue for this construction of the statute. First, if an evasive answer were not equated with a refusal to answer, even the most transparently false assertion of “I don’t remember” would be sufficient to avoid the recalcitrant witness statute. Second, even when a perjury prosecution would be appropriate, the government may be more interested in producing truthful testimony by use of § 1826 than in obtaining a criminal conviction for perjury. Third, the public, through our justice system, has a right to every person’s evidence in our search for the truth. See United States v. Nixon, 418 U.S. 683, 709-710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974). A concocted evasive or false “I don’t remember” answer would provide an easy avenue for the reluctant witness to escape this high obligation with impunity.
II. Sufficiency of the Evidence
Battaglia also contends that the evidence was insufficient to support the finding that he falsely asserted that he did not remember. We do not reach this question because the allocation of the burden of proof to Battaglia instead of to the government requires a remand.
In a civil contempt proceeding, the contempt must be proved by clear and convincing evidence. United States v. Powers, 629 F.2d 619, 626 n.6 (9th Cir. 1980). The standard appears to be higher than the preponderance of the evidence standard, applicable to most civil cases, but lower than the beyond a reasonable doubt standard, applicable to criminal contempt proceedings. Id.
A civil contempt proceeding on a witness’ asserted memory loss requires a three-step analysis that shifts the burden of production to the witness, but always leaves the burden of proof with the government. First, the government must make a prima facie showing of contempt; i. e., that it made an authorized request for information, that the information was relevant to the proceedings, that the information was not already in the possession of the government, and that the witness did not comply. See, e. g., United States v. Hankins, 565 F.2d 1344, 1351 (5th Cir. 1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979).
Second, once the government has presented its prima facie case, the witness must provide some explanation on the record for his failure to comply. See United States v. O’Henry’s Film Works, Inc., 598 F.2d 313, 318 (2nd Cir. 1979). If the witness fails to meet this “burden of producing evidence,” the government’s prima facie case is sufficient to meet its burden of proof for a finding of contempt. See, N.L.R.B. v. Trans Ocean Export Packing, Inc., 473 F.2d 612, 617-18 (9th Cir. 1973). The witness may meet his burden, however, where, as here, he testifies that he does not remember the events in question.
Finally, if the witness meets his burden of production by claiming a loss of memory, the government must carry its burden of proof for a finding of contempt by demonstrating that the witness in fact did remember the events in question, thereby establishing a willful failure to comply. See, United States v. Hansen Niederhauser Co., Inc., 522 F.2d 1037, 1040 (10th Cir. 1975); United States v. Rizzo, 539 F.2d 458, 465-66 (5th Cir. 1976); United States v. Silvio, 333 F.Supp. 264, 266-67 (W.D.Mo.1971); see generally, Mullaney v. Wilbur, 421 U.S. 684, 703 n.31, 95 S.Ct. 1881, 1892, n.31, 44 L.Ed.2d 508 (1975).
In N.L.R.B. v. Trans Ocean Export Packing, Inc., supra, at 616, we said:
“[Although inability to comply with a judicial decree constitutes a defense to a charge of civil contempt, . . . the federal rule is that one petitioning for an adjudication of civil contempt does not have the burden of showing that the respondent has the capacity to comply.... The contrary burden is upon the respondent. To satisfy this burden the respondent must show ‘categorically and in detail’ why he is unable to comply. . . . Since the Board did not have the burden of proof as to respondents’ ability to comply, it was under no obligation to allege such ability in its petitions to this court.”
Trans Ocean can be distinguished, however, because the respondent in Trans Ocean presented no proof of his inability to comply with the order. Consequently, the Trans Ocean court may have been referring to the burden of production rather than the burden of persuasion. By contrast, Battaglia has explained why he cannot comply. The quoted passage from Trans Ocean was in response to respondent’s erroneous contention that the government bore the burden of pleading and proving in its prima facie case that respondent possessed the ability to comply with the order. Battaglia makes no such contention here.
Other courts have held that in a contempt proceeding, where the defendant introduces evidence of inability to comply, the government has the burden of proving ability to comply. See, e. g., United States v. Rizzo, 539 F.2d 458 (5th Cir. 1976); United States v. Silvio, 333 F.Supp. 264, 267 (W.D.Mo. 1971) . See also United States v. Hankins, 565 F.2d 1344, 1351-52 (5th Cir. 1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979) (dictum). These cases are consonant with the analogous principle of criminal law that although the government does not have the burden of disproving the existence of every conceivable affirmative defense, it does have the burden of disproving the existence of affirmative defenses actually raised. See, e. g., United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977); cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Carrasco, 537 F.2d 372 (9th Cir. 1976).
The government may satisfy its burden of proof by establishing by clear and convincing evidence that the witness’ claimed inability to remember is not credible. Apparently, the government introduced no affirmative evidence that Battaglia recently had told anyone about the scheme, or that his medications do not, in fact, affect long-term memory. Cf. United States v. Cooper, 465 F.2d 451 (9th Cir. 1972) (by analogy, the government has the burden of persuasion with regard to an insanity defense and must introduce affirmative evidence attacking the defendant’s case).
The district court based its judgment almost exclusively on the gaps in Battaglia’s proof; i. e., on the failure of family, friends, or Battaglia’s personal physician to testify, on the expert witnesses’ failure extensively to testify with regard to long-term memory loss, and on Battaglia’s evasive demeanor. These are all legitimate considerations for a trier of fact, but the location of the burden of proof emphasizes their importance. We do not, however, disparage the trial judge’s power to decide all issues of credibility.
By placing the burden of persuasion on Battaglia, the district court made the gaps in Battaglia’s proof more damaging than the gaps in the government’s proof. This was error.
The cause is remanded for further proceedings in the district court with the burden of proving contempt remaining at all 'times upon the government.
Vacated and remanded.
. The manner by which a witness may meet his burden of production will depend upon the reason given for his inability to comply. For example, a witness who claims that he cannot recall a particular fact or event may explain his inability to comply “categorically and in detail” by testifying on the record that he does not remember. The witness has then offered as clear and detailed an explanation as possible for his inability to comply without exceeding the limits of faulty memory.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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sc_petitioner
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152
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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.
EPTON v. NEW YORK.
No. 502,
Misc.
Decided January 22, 1968
Eleanor Jackson Piel for petitioner in No. 502, Mise., and for appellant in No. 771, Mise.
Frank S. Hogan, H. Richard Uviller and Michael Juviler for respondent in No. 502, Mise., and for appellee in No. 771, Mise.
Together with No. 771, Misc., Epton v. New York, on appeal from the same court.
Per Curiam.
The petition for a writ of certiorari is denied in No. 502, Mise. The motion to dismiss is granted in No. 771, Mise., and the appeal is dismissed for want of a substantial federal question.
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_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
NATIONAL RAILROAD PASSENGER CORPORATION, Plaintiff-Appellee, v. Robert W. BLANCHETTE et al., Defendants-Appellants.
No. 76-1829.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 29, 1976.
Decided Feb. 15, 1977.
Carl Helmetag, Jr., Philadelphia, Pa., for defendants-appellants.
Andrew J. Valentine, Washington, D. C., Karl J. Stipher, Charles T. Richardson, Indianapolis, Ind., for plaintiff-appellee.
Before HASTINGS and MOORE, Senior Circuit Judges, and SPRECHER, Circuit Judge.
The Honorable Leonard P. Moore, Senior United States Circuit Judge of the United States Court of Appeals for the Second Circuit, is sitting by designation.
HASTINGS, Senior Circuit Judge.
We are concerned here with various issues arising out of an order by the district court, entered on March 24, 1976, confirming an arbitration award compelling the restoration of certain tracks by Penn Central Transportation Company (Penn Central); and also with the judgment entry and memorandum order by the district court entered on June 25, 1976, granting the motion of the National Railroad Passenger Corporation (Amtrak) for summary judgment in a declaratory judgment action, thereby enforcing the district court’s previous order of confirmation. Penn Central has appealed.
I
For purposes of clarity we first mention three relevant substantive legislative enactments of the Congress:
1. The Bankruptcy Act of 1898, which was amended in 1933 by adding Section 77 thereto, which provided for the reorganization of railroads. Section 77 furnished the structural framework by which Penn Central commenced its reorganization proceedings before the United States District Court for the Eastern District of Pennsylvania (Reorganization Court). Bankruptcy Act of 1898, as amended, 11 U.S.C. § 205; Reorganization of Railroads.
2. The Rail Passenger Service Act of 1970, 45 U.S.C. § 501, et seq., which created the National Railroad Passenger Corporation, a for-profit corporation, pursuant to the District of Columbia Business Corporation Act, to provide intercity rail passenger service over a designated basic national rail passenger system, as a private enterprise, but with federal financial assistance. The need for such a corporation arose from the specific Congressional finding that a modern, efficient, intercity railroad passenger service was a necessary part of a balanced transportation system and was in the national interest. The National Railroad Passenger Corporation (Amtrak) was authorized to contract with each railroad operating passenger trains in a basic system, for use by Amtrak of railroad tracks, facilities and services “on such terms and conditions as the parties may agree.” See 45 U.S.C. § 562(a). Subsequent amendments to 45 U.S.C. § 501, et seq., have merely supplemented the basic legislation. See Amtrak Improvement Act of 1974 (Public Law 93— 496, October 28, 1974, 88 Stat. 1527). The Amtrak Improvement Act of 1974, supra, amended the name of the Railroad Passenger Service Act of 1970 to become the Rail Passenger Service Act. See Section 12 of the 1974 amendment. The Act is referred to by the parties and will herein be referred to simply as the “Amtrak Act.”
3. The Regional Rail Reorganization Act of 1973, 45 U.S.C. § 701, et seq. (Public Law 93 — 236, January 2, 1974, 87 Stat. 986), referred to by the parties and by our court as the “Rail Act,” provided for the establishment of the United States Railway Association and the Consolidated Rail Corporation (ConRail), both with enumerated powers and duties. The United States Railway Association was created as a Government corporation, incorporated under the District of Columbia Nonprofit Corporation Act, and was empowered to prepare and implement a Final System Plan. ConRail was created as a for-profit corporation, incorporated under the laws of a state, with its principal office in Philadelphia, Pennsylvania. Pursuant to Section 742, ConRail was to acquire, operate, rehabilitate and maintain efficient rail service over the rail lines designated in the Final System Plan.
Amtrak brought the instant declaratory judgment action on May 5, 1976, pursuant to 28 U.S.C. §§ 2201 and 2202, alleging both diversity of citizenship and federal question jurisdiction. The relief sought was an order to show cause upon Penn Central why a quarterly work schedule for the restoration of 360 miles of Penn Central tracks had not been submitted to Amtrak on May 3, 1976, as required by the order of confirmation and the arbitration award referred to earlier. This declaratory action was brought in the United States District Court for the Southern District of Indiana, Indianapolis Division.
Amtrak initiated arbitration proceedings on August 18, 1972, in the Reorganization Court, pursuant to a broad arbitration clause entered into by the parties in The National Railroad Passenger Corporation Agreement of April 16, 1971. This agreement is referred to by the parties as the “Basic Agreement,” and was mandated by Section 561(a) of the Amtrak Act, 45 U.S.C. § 501, et seq., whereby Amtrak was directed to contract with the railroad “to relieve the railroad of its entire responsibility for the provision of intercity rail passenger service” under “such terms and conditions as necessary to permit the Corporation [Amtrak] to undertake passenger service on a timely basis.”
Under the terms of the Basic Agreement, Amtrak undertook to assume the intercity rail passenger responsibilities of the Trustees of Penn Central and all other contracting railroads, and Penn Central undertook to render certain services to Amtrak and to maintain its rail lines used by Amtrak at an agreed upon “level of utility.”
Under Article Six of the Basic Agreement any “claim or controversy” between Amtrak and Penn Central was to be resolved by binding arbitration in accordance with the provisions of The National Railroad Passenger Corporation Arbitration Agreement separately contracted to by the parties on April 16, 1971. Referred to by the parties as the “Arbitration Agreement,” Section 4.2 provides:
“* * * [A]ny arbitration award hereunder made by a majority of the members of any .Arbitration Panel shall be binding upon the parties thereto. Any arbitration award hereunder shall declare the rights of the parties thereto and may make awards of money, or enjoin or otherwise operate in such a way as to require specific performance by a party of any act or obligation.” (Emphasis added.)
Section 4.3 of the Arbitration Agreement further provides:
“Judgment may be entered upon any arbitration award hereunder * * * in any United States District Court.”
A dispute arose between Amtrak and Penn Central concerning the “level of utility” of about 360 miles of certain rail lines of Penn Central connecting Kankakee, Illinois, with Louisville, Kentucky, and Cincinnati, Ohio, via Indianapolis, Indiana, under the Basic Agreement of 1971. Amtrak’s . claim that Penn Central had defaulted in its obligation to maintain the track was duly submitted to the National Arbitration Panel.
After the parties submitted extensive written memoranda and oral testimony was heard, the arbitration was interrupted by an “Emergency Order”- of the Federal Railroad Administration on August 1, 1974. This emergency order terminated Amtrak’s service on the above-mentioned Penn Central line because the track had been found to be “in an unsafe condition,” creating “an emergency situation involving a hazard of death or injury to persons affected by the use thereof.”
Without objection from Penn .Central and in accordance with its rules, the Panel began additional hearings, accepted a revised request for an award from Amtrak, and received additional evidence on September 11, September 24, September 29 and December 16, 1975, and January 20, 1976. Thereafter, on February 3, 1976, the National Arbitration Panel issued a written award in NAP Case No. 11, In Re: Level of Utility, with the following declarations and awards:
First, the Panel declared that Amtrak had a contract right to have the Penn Central rail lines connecting Kankakee with Cincinnati and with Louisville via Indianapolis kept “at no less than the level of utility” which existed on May 1, 1971.
Second, the Trustees of Penn Central had defaulted in keeping this bargain.
Third, the Trustees were ordered to “cause” the restoration of these lines to their proper condition by January 1,1978, in accordance with a “Panel Program,” which provided, inter alia, for a detailed work schedule to be submitted to Amtrak within ninety days of this award.
The estimates of the cost of these repairs ranged from 22 million dollars, based upon independent evaluation, to 11 million dollars, estimated by Penn Central using its own employees. Costs were estimated in terms of October 1975. The Panel’s award further provided that Penn Central would bear the entire financial burden of the repairs.
A dissenting opinion was handed down by Panel Member Johnson, recommending the denial of Amtrak’s claim for specific performance. He noted that in 1971 the rail lines were already in a state of deterioration and that the present award would upgrade the lines beyond the May 1, 1971, level at the total expense of Penn Central. Although conceding that Penn Central had in fact defaulted by permitting the lines to deteriorate generally since 1971, Arbitrator Johnson stated that, upon the record, the issue of what constituted maintenance on the one hand and rehabilitation on the other, had not been answered. Johnson, therefore, concluded that the inequity of ordering Penn Central to pay the entire cost of the “Panel Program” was an arbitrary interpretation of Section 4.2, supra, and suggested that the expense of the program be shared equally.
On February 4,1976, pursuant to 9 U.S.C. § 9, United States Arbitration Act, and Section 4.3 of the Arbitration Agreement, supra, Amtrak petitioned the United States District Court for the Southern District of Indiana, Indianapolis Division, for confirmation of the arbitration award. However, on February 17, 1976, Penn Central petitioned the Reorganization Court in the Eastern District of Pennsylvania for an order requiring Amtrak to show cause “why it should not be required * * * to comply with the provisions of Order No. 238 and, pending the filing of said petition, why it should not be enjoined from proceeding further in the [Confirmation Proceeding].”
In authorizing the Trustees of Penn Central to enter into the Basic Agreement with Amtrak, the Reorganization Court in Order No. 238, in pertinent parts, stated:
“1. The Trustees are authorized to execute a contract with Amtrak in substantially the form submitted to the Court at the hearing, PROVIDED, however, * * (b) that whenever any matter is resolved by arbitration pursuant to the Main Agreement or the Arbitration Agreement, the decision shall be submitted to this court for review and approval before becoming finally binding upon the Trustees or the Debtor, during the pendency of these reorganization proceedings.
# * # 9ft * *
“4. The Court reserves jurisdiction over said contract for the purpose of directing such actions and granting such further relief as may be necessary to protect the interests of the Debtor’s Estate.”
The Reorganization Court, however, never ruled on Penn Central's February 17, 1976, petition to show cause, because the Trustees of Penn Central subsequently consented to the entry of a judgment in the Indiana Court. The consent of the Trustees, and by implication that of the Reorganization Court, was induced by the assurances of counsel for Amtrak that it was only attempting to liquidate its claim in the Indiana court, and that Amtrak was well aware of and, in fact, accepted the primary jurisdiction of the Reorganization Court.
Language from Amtrak’s memorandum, as it appears in the record in the Reorganization Court, reads:
“any judgment entered by the Indianapolis District Court upon Amtrak’s Petition to Confirm will not serve to make the award of the National Arbitration Panel finally binding upon the Trustees. To become finally binding, execution on the judgment would be necessary. Yet execution in any court other than this Reorganization Court would so manifestly interfere with the Court’s exclusive jurisdiction to control the administration of the estate that it would be impossible to support in law or fact. Therefore, in order for Amtrak to make the award finally binding upon the Trustees, the entire matter will eventually have to be submitted in the bankruptcy proceedings * * * The mere fact that the arbitration claim has been reduced to a judgment will not prevent this Court from making an inquiry since the merger of a claim into a judgment does not change its nature as far as provability is concerned.”
Thereafter, the Trustees consented to the entry of judgment in the Confirmation Proceedings in Indiana, based upon the above assertions in the Reorganization Court, that the Indiana Court would review the arbitration proceedings “to see that the award was a proper award and that the arbitrators acted honestly and did not exceed their powers.” Thereafter, the Indiana Court entered an Order of Confirmation on March 24, 1976.
On April 9, 1976, Amtrak petitioned the Reorganization Court for enforcement of the now confirmed Arbitration Award. Penn Central, thereafter, filed an answer to the petition for enforcement, asserting that the award could not be enforced against Penn Central because the rail tracks in question had been conveyed to ConRail pursuant to the Rail Act, and therefore, Penn Central’s obligation to restore the tracks was terminated. Amtrak secured an indefinite postponement of its petition in the Reorganization Court, returned to the Indiana Court and filed its instant declaratory judgment action in Indiana.
During the arbitration proceedings between the litigants, Congress supplemented Section 77 of the Bankruptcy Act with the Rail Act, as herein earlier set out. The Rail Act, like the Amtrak Act, was designed to revitalize the nation’s rail system, and the rail lines in issue here were designated for transfer to ConRail. Penn Central contends that such a transfer to ConRail relieved it of the responsibility to restore the 360 miles of track, and that, in any event, the issue was one in the exclusive jurisdiction of the Reorganization Court pursuant to its Order 238, supra.
At the center of this controversy is the Indiana Court’s conclusion of law that:
“5. The judgment upon the arbitration award of the National Arbitration Panel entered by this Court on March 24, 1976, is res judicata concerning and is a conclusive bar against any further legal claims which may be made by the Trustees that:
(a) the award of the National Arbitration Panel and judgment of this Court entered thereon is invalid and nonenforceable because of the provisions of the Regional Rail Reorganizar tion Act of 1973; or
(b) the rehabilitation of the rail lines which are the subject of this controversy at the sole cost of the Trustee is unreasonable or inequitable in view of the April 1,1976, transfer of these lines to ConRail; or
(c) the judgment should not be carried out because of any facts, circumstances or legal defenses which could have been or ought to have been asserted during the confirmation proceedings as a ground for vacating the award under the provisions of Section 10 of the Federal Arbitration Act or for modifying or correcting this award under Section 11 of the Federal Arbitration Act, 9 U.S.C. §§ 10 and 11.”
It is quite clear to us that the Indiana Court intended to and did set up its judgment upon the arbitration award as a final and conclusive judgment, holding that it was res judicata concerning the arbitration award and a complete bar to further consideration of the claims set out in- subparagraphs (a), (b) and (c) above.
At this point it appears relevant to report a late happening. On September 30, 1976, Judge Fullam of the Reorganization Court entered Order No. 2569 which denied Amtrak’s petition for an order authorizing, instructing and directing the Trustees of Penn Central to carry out the judgment of the Indiana District Court to restore or cause to be restored certain rail lines in Indiana. Judge Fullam further enjoined Amtrak, pursuant to Order 238, supra, as follows:
“The Petitioner, National Rail Passenger Corporation (‘Amtrak’), is enjoined from instituting or furthering any legal proceeding for the assertion or enforcement against the Trustees or the estate of the Debtor of any alleged obligation or liability for track maintenance or improvement, in any jurisdiction or before any tribunal except this Court, (or, if appropriate, in the Special Court), or as otherwise ordered by this Court. Nothing in this order shall be deemed to apply to the appeal now pending in the Circuit Court of Appeals of the Seventh Circuit, nor to any appeal from this or any other Order of this Court.” (Emphasis added).
On October 1,1976, Judge Fullam handed down a Memorandum and Order with respect to his Order No. 2569. This appears in Appendix F of Amtrak’s brief filed here in the instant appeal. Judge Fullam, inter alia, gave an analysis of the procedural history of this proceeding with respect to the Indiana Court. He fully considered the effect of the Rail Act as it related to Con-Rail. He paid his respects to Amtrak’s intentions, absent the injunctive restrictions hereinabove set out, to return to the Indiana Court, or perhaps other courts in an attempt to obtain a further expansion of the confirmed arbitrator’s award, or perhaps in some other fashion to obtain “reparations.” Judge Fullam, stating that he was unable to fully understand the legal theory or basis for Amtrak’s attempts, held that the injunction should remain in effect.
II
We first consider whether the Indiana Court had jurisdiction by declaratory judgment or any other judicial means to circumscribe the jurisdiction of the Pennsylvania Reorganization Court, as to the enforcement of an arbitration award which was subsequently confirmed by the Indiana Court.
At the outset it seems quite clear to us that in a railroad reorganization, the power to resolve all disputes involving the estate and to determine the enforceability and status of all claims is vested exclusively in the Reorganization Court. See the injunctive powers in Section 77(j) of the Bankruptcy Act, 11 U.S.C. § 205(j). Baker v. Gold Seal Liquors, 417 U.S. 467, 477, 94 S.Ct. 2504, 41 L.Ed.2d 243 (1974), Mr. Justice Stewart concurring. Baker was a Penn Central reorganization case in which the Seventh Circuit was reversed. In the New Haven Inclusion Gases, 399 U.S. 392, 90 S.Ct. 2054, 26 L.Ed.2d 691 (1970), a similar question was presented concerning a railroad reorganization under Section 77. Two groups of creditors sought relief in different tribunals. The two courts reached different decisions as to the proper compensation. The Supreme Court on review of the proceedings, first addressed itself to the conflict of jurisdiction and found that it rested exclusively in the Reorganization Court. New Haven Cases, 399 U.S. at 426, 428-429, 90 S.Ct. 2054.
We find that the plenary and exclusive jurisdiction of the Reorganization Court to determine issues that directly affect and concern the reorganization, including the enforcement of the Arbitration Award, is exemplified by In Re New York, New Haven and Hartford Railroad Co., 2 Cir., 457 F.2d 683 (1972), cert. denied, Smith v. Baker, 409 U.S. 890,93 S.Ct. 106, 34 L.Ed.2d 147, reh. denied, 409 U.S. 1019, 93 S.Ct. 430, 34 L.Ed.2d 311 (1972). The court there was presented with the “conflict of jurisdiction between two federal courts each claiming jurisdiction to affect interests in certain property over which, under a literal reading of § 77(a), one federal court has ‘exclusive jurisdiction.’ ” 457 F.2d at 687.
The court held that the New Haven Railroad Reorganization Court was without jurisdiction to establish a lien against the Penn Central properties in favor of the New Haven. The court further held that the exclusive jurisdiction to determine how claims or rights should be enforced in the Penn Central reorganization rested solely in the Penn Central Reorganization Court. The court was careful to stress the Congressional purpose behind the enactment of Section 77 in general and the necessity to award the overlapping jurisdiction of numerous courts. To hold otherwise “would tend greatly to foment conflicts between coordinate courts * * 457 F.2d at 688-689. (Citations omitted.)
This is not to say that the Reorganization Court may not delegate to other forums the resolution of factual disputes while retaining jurisdiction in itself over the enforcement of factual determinations made elsewhere. In its Order No. 771, the Reorganization Court recognized that the merits of a contractual dispute are clearly severable from the reorganization proceeding itself, so long as that court retains to itself the jurisdiction to decide at a later stage, if necessary, all issues concerning the implementation of any relief which may be granted in the state court action. In the New Haven Inclusion Cases, 399 U.S. at 433-34, 90 S.Ct. 2054, the Supreme Court gave its imprimatur to such a practice.
This practice is further evidenced by the Reorganization Court’s authorization to the Trustees to enter into the Basic Agreement with Amtrak, which contained a provision for the arbitration of disputes arising from the interpretation of the Agreement, and retaining to itself jurisdiction over the enforcement of any arbitration awards (Order No. 238).
In support of their motion for summary judgment in the Indiana Court, Amtrak relied upon The Hartbridge, 2 Cir., 57 F.2d 672, 673 (1932), cert. denied, Munson S. S. Line v. North of England S. S. Co., Ltd., 288 U.S. 601, 53 S.Ct. 320, 77 L.Ed. 977 (1933), to support their position that because the Trustees have had their “day in court,” they could not then seek review in the Reorganization Court of matters previously litigated. The Hartbridge, however, only goes so far as to say that where a party to an arbitration award has not opposed a proceeding to confirm it, that party cannot later move to vacate the award. Here the Trustees did not seek to have the award vacated. The Trustees say they were satisfied that the arbitrators acted properly in confining their inquiry to the determination of the Trustees’ obligations under the agreement, leaving to the Reorganization Court the enforcement of the award. The analogy drawn between the decision of the court in Hartbridge and the instant case is misplaced.
Of direct interest here is Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1040). Kalb arose under the provisions of Section 75 of the Bankruptcy Act, 11 U.S.C. § 203 (the Frazier-Lemke Act). Kalb, a farmer, filed a petition for the composition and extension of time to pay his debts. Two mortgagees began foreclosure proceedings against Kalb’s Wisconsin farm while the petition was pending. Kalb’s land was sold by the sheriff under a judgment of foreclosure. Kalb took no steps to stay the foreclosure or the action to enforce it. On appeal from the judgment of the Supreme Court of Wisconsin in favor of the mortgagees, the jurisdiction of the Wisconsin Supreme Court to proceed as it did was presented to the Supreme Court of the United States. Id. at 436, 60 S.Ct. 343.
Speaking for the Court in Kalb, Mr. Justice Black wrote, inter alia, “The Constitution grants Congress exclusive power to regulate bankruptcy and under this power Congress can limit the jurisdiction which courts, state or federal, can exercise over the person and property of a debtor who duly invokes the bankruptcy law. * * * We think the language and broad policy of the Frazier-Lemke Act conclusively demonstrate that Congress intended to, and did deprive the Wisconsin County Court of the power and jurisdiction to continue or maintain in any manner the foreclosure proceedings * * * without the consent after hearing of the bankruptcy court in which the farmer’s petition was then pending.” Id. 308 U.S. at 439-440, 60 S.Ct. at 346.
It seems quite clear to us that the Indiana Court was without jurisdiction by declaratory judgment, or other judicial means, to circumscribe the jurisdiction of the Pennsylvania Reorganization Court as to the enforcement of an arbitration award which was subsequently confirmed by the Indiana Court, and we now so hold.
III
Penn Central questions whether the Indiana Court had before it a “controversy” which would give it jurisdiction under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, to determine the effect of its earlier order. In short, Penn Central contends that the declaratory judgment here is an advisory opinion and a nullity under the Declaratory Judgment Act.
In view of opr disposition of this appeal we shall assume that there was a “controversy” before the Indiana Court which enabled it to proceed. Whether the actions it took were proper is quite another question.
IV
We next proceed to the question of whether the Indiana Court was correct in holding that its earlier confirmation order was res judicata in the proceedings which earlier had been commenced in the Reorganization Court to enforce the confirmed order.
As hereinabove indicated in Part I of this opinion, the Indiana Court expressly held that its judgment of March 24, 1976, upon the arbitration award was a final and conclusive judgment and was res judicata concerning and was a conclusive bar against any further legal claims which may be made by the Trustees and explicitly set out the nature of the claims so barred.
Amtrak’s complaint sought a declaratory judgment from the Indiana Court as to whether issues raised in the Trustees’ answer to Amtrak’s petition in the enforcement proceedings were barred by res judicata.
We are unable to find any precedent, and none has been cited to us, for referring back to the court of first adjudication (the Indiana Court) the question of whether its judgment is res judicata in another court, here, the Reorganization Court. The law is to the contrary. That is, in this case the Reorganization Court has the responsibility to decide whether the issues before it are barred by the prior adjudication in the Indiana Court. Cf. Donovan v. City of Dallas, 377 U.S. 408, 412, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964), citing Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922).
The Trustees left no doubt as to their position and the record clearly shows that the Confirmation Proceeding had the limited purpose to review the arbitration proceedings “to see that the award was a proper award and that the arbitrators acted honestly and did not exceed their powers.” To that limited extent only the Indiana Court acted within its powers. See 9 U.S.C. §§ 9, 10 and 11.
We find nothing in the Act of Congress that expresses any intent that the Reorganization Court was to be divested of its plenary powers in preference to the declaratory judgment power of the Indiana Court.
In passing, we note here that the Arbitration Panel held that it was without jurisdiction to decide the ConRail issue. The issue was not raised before the Indiana Court. Yet, Amtrak urged and the Indiana Court held that the Trustees could not raise the issue of the transfer of the subject rail lines to ConRail.
We are therefore compelled to the conclusion that the Indiana Court erred in finding that the enumerated bars against the Trustees were res judicata of the matters set out in its Conclusion of Law No. 5, supra, and we so hold.
IN SUMMARY
In view of the foregoing, we hold that the Declaratory Judgment of the Indiana Court was an improper exercise of its limited jurisdiction and was wrong on the merits. Accordingly, the judgment of the Indiana Court is reversed. This case is remanded to the Indiana Court with directions to vacate its declaratory judgment.
The issues hereinabove discussed are within the exclusive jurisdiction of the Pennsylvania Reorganization Court and it may now proceed therewith.
REVERSED.
REMANDED WITH DIRECTIONS.
This opinion was written and approved by the panel and sent to Midwest Law Printing Co., Inc., for printing prior to Judge Hastings’ death on February 7, 1977.
. United States District Court for the Southern District of Indiana, Indianapolis Division, the Honorable William E. Steckler, Chief Judge, presiding.
. The National Arbitration Panel is a special arbitration panel created in Article One of the Arbitration Agreement of April 16, 1971. The panel is composed of three arbitrators representing both railroad and Amtrak interests, and convenes in Washington, D. C. The jurisdiction of the panel is limited to “claims or controversies” that may arise under the Basic Agreement.
. As the Supreme Court recognized in the Regional Rail Reorganization Act Cases, 419 U.S. 102, 153, 95 S.Ct. 335, 363, 42 L.Ed.2d 320 (1974):
“Congress, in enacting those provisions, clearly intended to legislate pursuant to the
bankruptcy power. The Rail Act, like § 77 of the Bankruptcy Act, which the Rail Act supplements, merely ‘advances another step in the direction of liberalizing the law on the subject of bankruptcies,’ . . . (Citations omitted.)
. Amtrak has in fact appealed from Judge Fullam’s Order No. 2569, as we were advised by counsel during oral argument. This appeal is now pending before the Court of Appeals for the Third Circuit.
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_opinstat
|
A
|
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.
CROWN INDUSTRIES, INC., Plaintiff-Appellant, v. BOYERTOWN BURIAL CASKET COMPANY, Defendant-Appellee.
No. 14619.
United States Court of Appeals Sixth Circuit.
March 30, 1962.
Irving Harris, Cincinnati, Ohio, Charles F. Hartsock, Cincinnati, Ohio, on brief; Cors, Hair & Hartsock, Cincinnati, Ohio, of counsel, for appellant.
Robert T. Keeler, Cincinnati, Ohio, Charles D. Lindberg, Cincinnati, Ohio, on brief; Taft, Stettinius & Hollister, Cincinnati, Ohio, of counsel, for appellee.
Before MILLER, Chief Judge, and McALLISTER and O’SULLIVAN, Circuit Judges.
O’SULLIVAN, Circuit Judge.
Defendant-appellee, Boyertown Burial Casket Company (hereinafter referred to as Boyertown) agreed to buy, and plaintiff-appellant, Crown Industries, Inc., formerly the Cincinnati Coffin Company, (hereinafter referred to as Cincinnati) agreed to sell to Boyertown, substantially all of the assets of Cincinnati. On September 16, 1957, the date of closing, all of the assets sold were transferred to Boyertown. At that time, Boyertown paid Cincinnati $315,590.00. Of that amount $200,000.00 was paid as an estimated minimum price for Cincinnati’s inventory of finished and partly finished goods, and other materials on hand. Paragraph 4 of the agreement, entitled “Closing,” deals with the price to be paid for such inventory. The price therefor was to be determined by taking the inventory and valuing the items thereof at the lower of cost or market. If the parties themselves were unable to agree upon the valuation, such disagreement was to be resolved by an arbitrator named in the agreement.
It was further provided that if final inventory figures were not available at closing, an estimated minimum amount of inventory would be agreed upon, which amount was to be paid by Boyertown, “subject to additional payment by, or refund to, it when final figures become available.” (All italics used herein are provided.) The receipt for such estimated minimum payment, given to Boyertown by Cincinnati at closing, contained a recital that should the purchase price of the inventory, “determined as provided in the agreement,” total more than said minimum figure, Boyertown “will promptly pay * * * the amount by which such purchase price so determined is more than” the aforesaid minimum figure.
Cincinnati and Boyertown were unable to agree upon final figures for the inventory, and Cincinnati brought this suit against Boyertown for $159,452.08, the amount it claimed was the proper excess over the estimated minimum. The District Judge, pursuant to the purchase and sale agreement, appointed an arbitrator to determine the correct amount payable. A final figure of $78,157.87 was fixed by the arbitrator as the excess of the inventory value over the minimum amount paid on September 16, 1957, by Boyer-town to Cincinnati. Twenty-one days after the arbitrator’s award, Boyertown paid such amount. The District Judge allowed interest on it from the date of the award, December 2, 1960, to the date of payment, December 23, 1960. Appellant claims that it should receive interest on the award from September 16, 1957, to December 23, 1960.
Jurisdiction in this case is based upon diversity of citizenship. The contract here involved was made and performed in Ohio. Consequently, Ohio law is controlling. Under Ohio law, interest, unless otherwise contracted for, is recoverable, “* * * when money becomes due and payable upon any * * instrument of writing upon any book account, or settlement between parties * * * at the rate of six per cent per annum, and no more.” Page’s Ohio Revised Code Annotated, § 1309.03. Whether interest is allowable in this case from the date of the closing depends on when the money became due and payable under the terms of the contract. O’Neill v. German, 154 Ohio St. 565, 97 N.E.2d 8, 25 A.L.R.2d 945. The contract provided that Boyertown “will make payment at the closing on the basis of such estimate, subject to additional payment by * * it when final figures become available.” That this clause of the contract meant that the amount of the excess was not payable until finally determined is confirmed by Cincinnati’s receipt given for the amount paid to it at the closing. The receipt stated that if the inventory value “determined as provided in the agreement” (in this case, by the arbitrator’s award) totalled more than the estimate, Boyertown “will promptly pay” such excess. Thus, no part of the excess amount was payable until after the arbitrator’s determination and no interest, under Ohio law, began to accrue until that time.
We do not think that the fact that on September 17, 1957, Boyertown took possession of the goods constituting the inventory, requires a holding that interest then began accruing on that part of its purchase price as yet undetermined. There was no breach of contract by Boyertown, nor is any claimed. It complied strictly with the terms of the contract, which did not call for the payment of interest. It did not wrongfully detain or withhold the payment of money.
“The law allows interest only on the ground of a contract express or implied for its payment, or as damages for the detention of money, or for the breach of some contract, or the violation of some duty, or where it is provided for by statute; and the courts have authority to determine, in accordance with legal rules and principles, whether or not interest should be directed to be paid.” 47 C.J.S. “Interest” § 3, p. 13.
In Herrmann v. Gleason, 126 F.2d 936 (C.A.6, 1942), relied upon by Judge Mc-Allister in his dissenting opinion, a long term lease provided that the stipulated monthly rental should be payable “quarterly in advance.” It further provided that for each ten year period after the initial ten year period, the rental should be agreed upon and, in case the parties failed to agree, it should be determined by referees. Because the parties were unable to agree upon the rental for the third ten year period, referees were appointed to determine the rental to be paid. Twenty months after the last payment of the theretofore agreed upon rentals, the referee’s award determined that the fair rental for the period beginning April 1, 1937, and ending March 31, 1947, was “$725.00 per month, payable quarterly in advance.” On those facts, we held that the landlord was entitled to interest on the unpaid installments of rent during the period involved, from the dates on which they were payable, both by the lease and the referee’s award; that is, “quarterly in advance.” We think that our holding in the Herrmann case is not inconsistent with our holding in the ease at bar. Such holding did no more than allow interest on unpaid installments of rent from the dates on which such installments were made payable by contract. In the instant case, the District Judge allowed interest from the date when the excess amount became payable by contract, the date of the arbitrator’s award.
We find no reason, on the facts presented here, to imply a promise by Boyer-town to pay interest between the time of transfer of possession and the time of the arbitrator’s award. Cincinnati contracted that, as to a portion of the purchase price, it was not entitled to reeeive that money until “final figures become available.” If appellant desired to receive interest on such money prior to the time it was due and payable, “the place [was] in the instrument to so stipulate.” O’Neill v. German, 154 Ohio St. 565, 570, 97 N.E.2d 8, 25 A.L.R.2d 945. The fact that possession of the goods took place prior to the arbitrator’s determination is not germane here. O’Neill v. German, supra, at 572.
Other cases relied upon by appellant are inapposite. A review of these cases —Crescent Mining Co. v. Wasatch Mining Co., 151 U.S. 317, 14 S.Ct. 348, 38 L.Ed. 177; Hettler Lumber Co. v. Olds, 242 F.2d 456 (C.A.6, 1957); Chicago Railway Equipment Co. v. Superior Charcoal Iron Co., 12 F.2d 235 (C.A.6, 1926), discloses factual situations where money was unpaid after a time at which it became due or payable, or where interest was allowed on damages for breach of contract. These are not the facts before us. Young v. Potts, 161 F.2d 597 (C.A.6, 1947), dealt with the power of equity to make a discretionary grant of interest.
Judgment affirmed,
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:
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songer_applfrom
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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 type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Joseph RODONICH, Alex Chotowicky, Wasyl Lawro, and Harry Diduck, Plaintiffs-Appellants, Cross-Appellees, v. HOUSE WRECKERS UNION LOCAL 95 OF LABORERS’ INTERNATIONAL UNION, Laborers’ International Union of North America, John Senyshyn, individually and as President, and John Roschetski, individually and as Secretary-Treasurer of House Wreckers Union Local 95 of Laborers’ International Union of North America, Stephean McNair, Joseph Sherman, Andrew Klebetz, Albert Bender, William Nahay, Phil Chillak, Joseph Pastroski, Samuel Adams, Harold Spellman, Peter Jones, John Slan, Earl Dupree, and John Chillak, Defendants-Appellees, Cross-Appellants.
Nos. 440, 476 and 477, Dockets 86-7314, 86-7540, and 86-7542.
United States Court of Appeals, Second Circuit.
Argued Oct. 31, 1986.
Decided April 28, 1987.
See also, D.C., 627 F.Supp. 176.
Wendy E. Sloan, New York City (Burton H. Hall, Hall & Sloan, New York City, of counsel), for plaintiffs-appellants, cross-appellees.
Orrin Baird, Washington, D.C. (Robert J. Connerton, Theodore Green, Connerton, Bernstein & Katz, Washington, D.C., of counsel), for defendant-appellee, cross-appellant Laborers’ Intern. Union.
Richard Dorn, Sipser, Weinstock, Harper & Dorn, on the brief, for defendants-appellees, cross-appellants, Local 95 and individual defendants.
Before MANSFIELD, MESKILL and MINER, Circuit Judges.
Judge Mansfield died on January 7, 1987. Judges Meskill and Miner have decided this appeal in accordance with § 0.14(b) of the Rules of this Court.
MESKILL, Circuit Judge:
Four plaintiffs in this action, Joseph Rodonich, Alex Chotowieky, Wasyl Lawro and Harry Diduck, all members of defendant House Wreckers Union Local 95 (Local 95), appeal from a judgment of the United States District Court for the Southern District of New York, Cannella, J., entering a verdict after a jury trial against Local 95 and dismissing plaintiffs’ claims against Laborers’ International Union of North America (LIUNA). LIUNA, Local 95 and the individual defendants cross-appeal from the judgment.
In their complaint, plaintiffs alleged that defendants engaged in a scheme to suppress dissent within Local 95 and unlawfully disciplined them in violation of sections 101(a)(1), (2), (5), 609 and 610 of the Labor Management Reporting and Disclosure Act, 29 U.S.C. §§ 411(a)(1), (2), (5), 529, 530 (1982) (LMRDA), section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1982) (LMRA), the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 (1982) (RICO), and LIUNA’s constitution.
Before trial, the district court dismissed the state law contract claim as preempted by federal labor law and granted LIUNA summary judgment on plaintiffs’ claim that LIUNA breached its constitution in violation of section 301(a) of the LMRA. See Rodonich v. House Wreckers Union Local 95 of Laborers’ International Union of North America, 624 F.Supp. 678 (S.D.N.Y.1985). The court refused, however, to grant summary judgment on the remaining counts. After a jury trial, a verdict was returned in favor of plaintiffs Rodonich, Chotowicky and Lawro against Local 95. The district court entered final judgment dismissing plaintiffs’ remaining claims against LIUNA and dismissing all claims of plaintiff Diduck. Judgment was entered in favor of plaintiffs Rodonich, Chotowicky and Lawro against Local 95 in accordance with the verdict.
We affirm the dismissal of all claims against LIUNA except those asserted by Diduck. As to Diduck’s claims, we reverse the district court’s dismissal of the complaint, hold LIUNA liable to Diduck and remand the case for further proceedings on the issue of damages. Plaintiffs do not appeal the dismissal of their RICO claims against LIUNA.
BACKGROUND
This case arises out of a political struggle between two warring union factions for control of Local 95. Plaintiffs Rodonich, Chotowicky and Lawro comprised the “Rodonich faction,” which in 1981 held three of the seven seats on Local 95’s Executive Board. Rodonich occupied the position of Secretary-Treasurer, Chotowicky was Vice President and Lawro was Recording Secretary. Plaintiff Diduck did not hold office in Local 95, but actively supported the Rodonich faction. The Rodonich faction shared power on the Executive Board with members of their rival faction, known as the “Senyshyn faction,” including several of the named individual defendants to this suit, most notably John Senyshyn, who was President of Local 95 in April 1980.
In April 1981, Local 95’s Business Manager and Chief Executive Officer, Michael Novack, resigned from office. The bitter schism that precipitated Novack’s resignation left Local 95’s Executive Board evenly balanced between the two factions. As a consequence of this resignation, political disruption within the union intensified. Acts of violence were reported. Rodonich claimed that he was assaulted by defendant Samuel Adams and several other men. In a letter dated May 25, 1981, and addressed to Senyshyn with copies to LIUNA officials, Harry Diduck reported that he was threatened by Adams. Diduck’s letter also accused Senyshyn of being responsible for a certain contractor’s paying below union scale wages and of delaying charges against Novack stemming from an earlier stabbing of a Local 95 member.
Shortly thereafter, Adams filed charges of slander against Diduck based on Di-duck’s letter to LIUNA. Adams also filed charges against Rodonich for calling him a “nigger.” Other charges against Rodonich alleged that he had failed to pay the salary of the Business Manager, the validity of whose recent election to the Executive Board Rodonich disputed. Rodonich and Chotowicky were both charged with “dishonesty” and “fraud” because Chotowicky, who believed that he was rightfully the acting President while Senyshyn temporarily occupied the position of Business Manager, had performed the President’s job of co-signing (with the Secretary-Treasurer, Rodonich) union checks. Lawro was charged with “negligence,” “incompetence” and “dishonesty” for failing to take the minutes of a union meeting.
Local 95’s charges against plaintiffs were brought before a panel of union members selected by Senyshyn. After trials held on August 24, 1981, plaintiffs were found guilty. As a result, Rodonich, Chotowicky and Lawro were removed from Local 95’s Executive Board. Diduck was fined $500 and warned that his membership in Local 95 would be revoked if he committed further offenses. Diduck’s fine was stayed pending appeal and has never been collected.
Pursuant to Article 12 of the Uniform Local Union Constitution, plaintiffs appealed to LIUNA. Plaintiffs wrote numerous letters to LIUNA officials detailing the history of the factional dispute that led to their being disciplined and alleging that they had “been disciplined for the exercise of [their] rights, as union members.” See Letter from J. Rodonich to A.E. Coia, General Secretary-Treasurer, LIUNA (Oct. 12, 1981), J.App. at 241. On January 13, 1982, LIUNA’s Eastern Hearings Panel heard plaintiffs’ appeals — first Diduck’s appeal and then those of Rodonich, Chotowicky and Lawro. All four plaintiffs were represented by counsel at these hearings. Di-duck’s counsel stressed that Diduck had been fined for statements he made in a letter to LIUNA and argued that such a fine violated the union constitution as well as Diduck’s right of free speech. Counsel for Rodonich, Chotowicky and Lawro stressed that the charges arose out of a factional dispute and involved a pattern of violence.
The decision of LIUNA’s Hearings Panel reported that “the charges are amply supported by the evidence.” This decision was approved and adopted by LIUNA’s General Executive Board on February 23, 1982. Plaintiffs filed their complaint in the Southern District of New York on August 23, 1983.
The trial in the district court was conducted in three separate phases and the jury returned three separate verdicts: (1) determining liability on LMRDA and LMRA claims, (2) determining liability on RICO claims, and (3) determining damages. After the first phase, the jury found liability on the part of Local 95, John Senyshyn, Joseph Sherman and Albert Bender on the LMRDA and LMRA claims in favor of Rodonich, Chotowicky and Lawro. It found no liability on the part of LIUNA to anyone.
After the second phase, the jury found that two of the individual defendants, Joseph Sherman and Stephean McNair, had participated in Local 95’s affairs through a pattern of racketeering activity in violation of RICO.
After a third phase, the jury awarded Rodonich, Chotowicky and Lawro compensatory damages in the amount of salary each had lost as a result of his unjust removal from office and awarded Rodonich and Lawro punitive damages against certain of the defendants on their LMRDA claims. The jury also awarded three dollars each to Rodonich, Chotowicky and Lawro on their RICO claims against Sherman and McNair.
On March 14, 1986, the court entered judgment in accordance with these verdicts and dismissed the contract claim and LMRA claim against LIUNA pursuant to its pretrial order. Shortly thereafter, Di-duck brought a motion for, judgment notwithstanding the verdict, which was denied on May 21, 1986. These appeals and cross-appeals followed.
DISCUSSION
Plaintiffs Rodonich, Chotowicky and Lawro argue that Judge Cannella improperly instructed the jury regarding LIUNA’s liability for the wrongful acts of Local 95 and the evidence needed to support an award of damages for emotional distress. Plaintiffs also argue that LIUNA is liable as a matter of law on all claims. Plaintiff Diduck argues that the district court erred in denying his motion for judgment notwithstanding the verdict. Cross-appellants argue that plaintiffs’ LMRA and LMRDA claims are barred by a six month statute of limitations. We consider each claim in turn.
A. LIUNA ’s Liability
The primary issue presented by this appeal concerns the liability of an international union when, in the course of carrying out its internal appellate function, it affirms the imposition of unlawful discipline by one of its locals upon a union member. Plaintiffs advance several legal theories to support their claim that LIUNA is liable for affirming discipline imposed on them by Local 95. First, plaintiffs contend, under common law principles of agency, that an international union is liable when it ratifies the acts of its agent, the Local, with full knowledge of those acts. Second, again under common law agency principles, plaintiffs argue that LIUNA is vicariously liable for the acts of the Local as its principal, regardless of ratification. Third, plaintiffs claim that LIUNA is directly liable as a coparticipant in the scheme to suppress dissent within Local 95. Finally, based on contract theory, plaintiffs contend that LI-UNA is liable for breaching a duty imposed by its constitution to decide all appeals fairly. We disagree and affirm the part of the judgment that so held.
1. Ratification
The success of plaintiffs’ LMRDA claims depends on proof that their retaliatory discharge from office was part of an overall scheme to suppress dissent within the union. See Cotter v. Owens, 753 F.2d 223, 230 (2d Cir.1985). Appellants hope to establish LIUNA’s liability through the common law agency theory of ratification. In response, LIUNA argues that it cannot be held liable for mere affirmance of discipline absent a showing of bad faith or fraud. See International Brotherhood of Electrical Workers v. NLRB, 487 F.2d 1113, 1129 (D.C.Cir.1972), cert. denied, 418 U.S. 904-05, 94 S.Ct. 3194, 41 L.Ed.2d 1152 (1974).
It is far from settled whether common law agency principles govern an international union’s LMRDA liability for acts of a union local. A plain reading of LMRDA’s liability and enforcement provisions reveals that Congress did not distinguish between international and local labor organizations with regard to their liability under the Act. See 29 U.S.C. §§ 412, 529 (1982).
Agency principles frequently have been applied to federal labor law generally. For example, in NLRB v. Local Union No. 46, Metallic Lathers & Reinforcing Iron Workers, 727 F.2d 234, 237 (2d Cir.1984), we found an international union liable under the National Labor Relations Act (NLRA) for ratifying the imposition of unlawful discipline through its internal appellate process. Liability under an agency theory also applies to “violation[s] of contracts... between any... labor organizations” under the LMRA. See 29 U.S.C. § 185(b); Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212, 216-17, 100 S.Ct. 410, 413-14, 62 L.Ed.2d 394 (1979). In Aguirre v. Automotive Teamsters, 633 F.2d 168, 170-74 (9th Cir.1980), the Ninth Circuit specifically applied agency theory to LMRDA claims to hold a union liable for the acts of its officers who infringed voting rights of union members. Finally, a union may be held liable under the Norris-LaGuardia Act “for the unlawful acts of... agents” provided that there exists “clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.” 29 U.S.C. § 106 (1982).
Our Metallic Lathers decision applied common law principles of agency to an unfair labor practice claim in a fact situation similar to this one — the liability of an international union for having affirmed, through the intraunion appellate process, the imposition of unlawful discipline on union members by a union local. Because such a claim can either be brought as an unfair labor practice claim under the NLRA or as a free standing LMRDA claim, see, e.g., Doty v. Sewall, 784 F.2d 1, 7 (1st Cir.1986) (recognizing an overlap between section 8(b)(1)(A) of the NLRA and sections 411 and 412 of the LMRDA); Grand Lodge of International Association of Machinists v. King, 335 F.2d 340, 346-47 (9th Cir.), cert. denied, 379 U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d 334 (1964); cf. 29 U.S.C. § 523(a) (1982), and because the policies underlying the NLRA closely parallel those underlying the LMRDA, we are persuaded that the same standards of agency should govern both types of claims.
We next consider the standard of ratification that should be applied in this case. Under general principles of common law, “ratification can only occur when the principal, having knowledge of the material facts involved in a transaction, evidences an intention to ratify it.” Breen Air Freight, Ltd. v. Air Cargo, Inc., 470 F.2d 767, 773 (2d Cir.1972), cert. denied, 411 U.S. 932, 93 S.Ct. 1901, 36 L.Ed.2d 392 (1973); see also Restatement of Agency 2d ¶¶ 91, 93-100. Plaintiffs in the instant case were required to prove by clear and convincing evidence that Local 95 engaged in a purposeful and deliberate attempt to suppress dissent within the union. See Newman v. Local 1101, 570 F.2d 439, 445-46 (2d Cir.1978); Schonfeld v. Penza, 477 F.2d 899, 904 (2d Cir.1973). Therefore, we hold that ratification would occur if LIUNA affirmed the discipline imposed on plaintiffs with full knowledge that it was part of an overall scheme to suppress dissent in violation of the LMRDA.
Plaintiffs contend that, based on the facts of this case, LIUNA must be held liable as a matter of law for ratifying the discipline imposed by Local 95’s trial board. We disagree. Rodonich, Chotowicky and Lawro each were disciplined for failure to fulfill their duties as union officials. Nothing on the face of these charges suggested a scheme to suppress dissent within Local 95. Instead, discipline was based on concrete violations of official duties. LIUNA’s review board was also faced with.evidence of a bitter factional dispute within Local 95. Certainly, LIUNA was not required to accept either party’s version of the events as true. We, therefore, conclude that plaintiffs’ mere allegations of unlawful discipline were insufficient to establish LIUNA's full knowledge of Local 95’s conduct as a matter of law.
Plaintiffs next attack the district court’s instruction on the issue of ratification. Objections were made at trial to the following portion of the jury charge:
The mere fact that the International had oral or written statements or letters from plaintiffs and others regarding the events occurring in Local 95 does not establish full knowledge of the International of the facts asserted in those statements and letters. These statements and letters were merely allegations of fact.
. J.App. at 612.
Plaintiffs argue that, under this instruction, because LIUNA could not be deemed to obtain knowledge of the scheme from plaintiffs’ only evidence, i.e., the oral and written statements and letters, only an outright admission by LIUNA that they knew of the scheme would suffice to establish full knowledge. Plaintiffs, therefore, complain that this instruction had the effect of directing a verdict against them. We do not agree. Judge Cannella did not. instruct the jury to discredit plaintiffs' evidence. The district court merely admonished the jury not to accept plaintiffs’ allegations at face value in determining whether LIUNA possessed full knowledge of a scheme to suppress dissent. As we have already noted, LIUNA was not required to credit any party’s version of the events when reviewing Local 95’s disciplinary action. The jury, however, remained free to consider whether the probative worth of plaintiffs’ evidence was sufficient to create an inference of fuli knowledge on the part of LIUNA. Therefore, we find no error in this portion of the district court’s charge.
Plaintiffs also objected at trial to a portion of the jury charge that insulates LIUNA from any obligation to correct wrongdoing by the Local:
The International has no affirmative obligation to act to correct the unlawful acts of its affiliated local union such as Local 95 or their officers, even though LIUNA, or the International, may have had knowledge of those unlawful acts.
You may find the International liable for the removal of the plaintiffs Rodonich, Chotowicky and Lawro if you find that the International denied plaintiffs Rodonich[,] Chotowicky and Lawro internal union appeals with full knowledge of the overall scheme to suppress the dissent in Local 95 or that the International acted and participated in such scheme.
J.App. at 611-12. We find no fault with this instruction. Judge Cannella’s charge simply makes clear that LIUNA has no independent duty to intervene in the affairs of Local 95. This is established law, see Carbon Fuel, 444 U.S. at 218-19, 100 S.Ct. at 414-15; United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 395, 42 S.Ct. 570, 577, 66 L.Ed. 975 (1922), and was correctly relayed to the jury.
2. Vicarious Liability
Plaintiffs next argue that LIUNA should be held vicariously liable as a principal for the acts of its agent, Local 95. The district court considered plaintiffs’ argument and specifically rejected it, J.App. at 56, finding that Local 95 alone had the power to impose discipline. According to the district court, Local 95 could not be considered LIUNA’s agent for purposes of imposing discipline on union members because the Local acted in its own behalf, not LIUNA’s.
In response to Judge Cannella’s ruling, plaintiffs now argue that LIUNA had exclusive power to interpret constitutional provisions that authorize discipline. LIUNA argues that plaintiffs also exercised sufficient supervisory power to render Local 95 an agent of LIUNA.
Plaintiffs’ arguments are unpersuasive. First, it is well settled that the mere exercise of supervisory powers is insufficient to render the affiliate union an agent of the international. Coronado Coal Co. v. United Mine Workers, 268 U.S. 295, 300-01, 45 S.Ct. 551, 552-53, 69 L.Ed. 963 (1925); Shimman v. Frank, 625 F.2d 80, 97-99 (6th Cir.1980); Barefoot v. International Brotherhood of Teamsters, 424 F.2d 1001, 1004 (10th Cir.), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 257 (1970); United Brotherhood of Carpenters v. NLRB, 286 F.2d 533 (D.C.Cir.1960). Second, there was no specific agency relationship between the two unions for purposes of imposing discipline as alleged. Although it is true that LIUNA has power to interpret its constitution, the power to impose discipline rests with the Local. Uniform Local Union Constitution, Arts. Ill, XII as amended Sept. 14-18, 1981; J.App. at 73. It is the Local, not LIUNA, that has power to initiate and decide disciplinary matters. Any member may bring charges against another member by filing those charges with Local 95. After a hearing before the Local Union Trial Board, a recommendation is made to the members who vote to approve or reject the recommendation. Only after membership action may an appeal be taken to LIU-NA. On appeal, LIUNA merely reviews the Local Union Trial Board’s decision without conducting a trial de novo. Because Local 95 does not act at the direction of LIUNA at any stage in the proceedings prior to appellate review, there exists no basis for finding that Local 95 was LIUNA’s agent in this disciplinary matter.
3. Co-participant Liability
Plaintiffs argued in the district court that LIUNA should be liable as a co-participant in the scheme to suppress dissent within Local 95. The jury rejected plaintiffs’ argument. On appeal, plaintiffs contend that the district court failed to instruct the jury on this theory of liability.
Judge Cannella’s charge, however, adequately presented the theory of co-participant liability to the jury.
The International may be held liable with respect to a particular claim if you find that it instigated, supported, ratified, encouraged or otherwise participated in any act committed by Local 95 or the individual defendants.
J.App. at 606 (emphasis added). The court gave a similar instruction in another portion of its charge as well. See J.App. at 612-13. Clearly, the jury was instructed that it could find LIUNA liable if LIUNA had participated in unlawful discipline. Plaintiffs’ claims to the contrary are merit-less. Likewise, plaintiffs’ argument that no reasonable jury could find that LIUNA did not participate in the scheme is without support in the record. No evidence was presented that LIUNA instigated or in any way became directly involved in a scheme to suppress dissent. We, therefore, reject plaintiffs’ claims regarding co-participant liability.
4. Breach of Union Constitution
Plaintiffs assert that, under section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, LIUNA is liable for having breached its constitution by failing to afford plaintiffs a fair hearing. In dismissing plaintiffs’ claim, Judge Cannella decided that he could not act as a “superreview board” because plaintiffs cited no specific constitutional provision alleged to have been violated. On appeal, plaintiffs now allege specific constitutional violations.
Local 95’s constitution provides that “[t]he hearing and trial shall be conducted in an orderly, fair and impartial manner and should assure the full presentation of all facts to the Trial Board____” Uniform Local Union Constitution, Art. XII, § 4; J.App. at 73. LIUNA’s constitution adopts these procedures for trials conducted by local unions. Plaintiffs argue that “LIUNA breached [its constitution] when it knowingly affirmed appellants’ discipline, imposed without a fair hearing.” Br. of Plaintiffs at 16. We reject this claim for the same reason that we reject plaintiffs’ ratification theory. There is simply no evidence to support a finding that LIUNA acted with full knowledge of any impropriety in the proceedings conducted by Local 95. Plaintiffs’ section 301 claims, therefore, must fail.
B. Plaintiff Diduck’s Claims
Diduck claims that Judge Cannella erred in his charge to the jury regarding discipline imposed by Local 95. The charges filed against Diduck stated that he had “wilfully slandered” defendant Adams in a letter addressed to Senyshyn with copies to LIUNA. According to the letter, Adams threatened Diduck with bodily harm on one occasion. Diduck also heavily criticized Senyshyn’s union activities, including Senyshyn’s failure to take action against union members who stormed Rodonich’s office.
There is no question that discipline of a union member for even libelous speech is a violation of the LMRDA. Salzhandler v. Caputo, 316 F.2d 445, 446 (2d Cir.), cert. denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275 (1963); see Petramale v. Local No. 17 of Laborers International Union, 736 F.2d 13, 18 (2d Cir.), cert. denied, 469 U.S. 1087, 105 S.Ct. 593, 83 L.Ed.2d 702 (1984). The only question presented here is whether Local 95 actually disciplined Di-duck. After a trial, Local 95 found Diduck “guilty” of the charges, fined him $500 and issued a “warning” that Diduck’s union membership would be revoked if he committed further misconduct. No effort was made to collect the fine.
The district court instructed the jury regarding discipline as follows:
You must determine whether this fine was enforced against Diduck. If not, he has suffered no discipline unless you find that the disciplinary proceedings were brought in bad faith and Diduck suffered injury to his free speech as a result of these proceedings.
J.App. at 614. Objections to the charge were timely made. J.App. at 630-31. Because Diduck conceded that he did not pay the fine, he argues that the instruction was tantamount to directing a verdict against him. We agree. Lack of enforcement of the fine is irrelevant. Clearly, Diduck was penalized for the assertion of protected rights. Once Local 95 rendered its decision, Diduck became a debtor of the Local. Failure to pay the fine presumably would result in further sanctions, including the possibility of expulsion from the union. Moreover, the language in Judge Cannella's instruction permitting the jury to find discipline if the proceedings were brought in bad faith and if Diduck suffered injury to his free speech did not remedy this error. Diduck should have been permitted to prove that he was disciplined merely by showing that the fine was imposed. The alternative elements of bad faith and injury to free speech are more difficult to prove and, therefore, do nothing to alleviate the prejudicial impact of the charge.
Because the imposition of a fine constituted discipline in violation of Diduck’s rights under the LMRDA, a directed verdict should be entered on remand in favor of Diduck on the.issue of liability both as against Local 95 and LIUNA. LIUNA is liable for having ratified Local 95’s action with full knowledge of its unlawful character because the charges of slander were violative of the LMRDA on their face. On remand, Diduck may seek damages for Local 95’s imposition of unlawful discipline.
C. Other Claims
In its cross-appeal, LIUNA argues that plaintiffs’ claims are time barred by a six month statute of limitations found in section 10(b) of the NLRA. LIUNA contends that DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), provides support for “borrowing” a limitations period from federal law, rather than state law, for claims brought under the LMRDA, which contains no statute of limitations. The district court rejected LIUNA’s argument and adopted a three year state statute of limitations applicable in federal civil rights actions. We agree with that decision.
In DelCostello, the Supreme Court held that the six month federal statute of limita.tions found in section 10(b) of the NLRA was the most appropriate for claims asserted under the LMRA. In so holding, the Court departed sharply from the traditional practice of borrowing limitations periods for federal statutes from state law. This departure was justified, according to the Court, “[i]n... circumstances [where] state statutes of limitations [are] unsatisfactory vehicles for the enforcement of federal law.” 462 U.S. at 161, 103 S.Ct..at 2289. A six year state limitations period applicable to contract actions was rejected in DelCostello. The Court reasoned that the disruptive nature of a hybrid action brought.under section 301 of the LMRA against an employer, together with a fair representation claim brought against a union, impacted directly on the finality of private settlements under the collective bargaining system. This disruption justified the adoption of the six month statute found under section 10(b) of the NLRA, which Congress established to promote stable bargaining relationships.
We have previously held that DelCostello’s reasoning should be narrowly construed. “The particularized circumstances of the hybrid section 301/duty of fair representation suit, which inevitably involve an immediate and direct impact on labor-management relations, demarcate the limits of DelCostello’s reach.” Monarch Long Beach Corp. v. Soft Drink Workers, 762 F.2d 228, 231 (2d Cir.1985), cert. denied, _ U.S. _, 106 S.Ct. 569, 88 L.Ed.2d 554 (1985). In this case, no immediate and direct impact on labor-management relations exists. The concerns for protecting the finality of private settlements are not implicated in a suit alleging infringement of union members’ rights under the LMRDA. Union democracy claims do not attack the compromise reached between a union and an employer. See Doty, 784 F.2d at 7. Such a suit does not implicate the collective bargaining process. Instead, LMRDA claims are asserted only against the union and concern disruption of internal union democracy. Any impact felt upon the collective bargaining process is, at most, tangential and certainly not of the direct nature found controlling in DelCostello. We adhere to DelCostello’s admonition, therefore, that its holding “should not be taken as a departure from prior practice in borrowing limitations periods for federal causes of action” and that it should not be interpreted “to suggest that federal courts should eschew use of state limitations periods anytime state law fails to provide a perfect analogy.” 462 U.S. at 171, 103 S.Ct. at 2294.
Plaintiffs urge the adoption of the three year statute of limitations governing personal injury actions in New York, C.P.L.R. § 214(5), for suits arising under the LMRDA. Although personal injury actions provide a less than perfect analogy to LMRDA claims, state limitations periods for personal injury claims have been applied to federal civil rights laws, E.g., Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985). Civil rights violations bear a strong resemblance to claims asserted under the LMRDA, such as free speech, freedom of assembly and right to vote claims. The same concerns prompting the use of a three year limitations period for civil rights claims are also present in LMRDA suits. For instance, a plaintiff must be given sufficient time to discover defendant’s wrongdoing, but not so much time as to allow witnesses to disappear, memories to fade or to otherwise impair the ability of the defendant to mount a defense. We, therefore, deem New York’s personal injury statute of limitations to be the most appropriate state limitations period to govern federal LMRDA claims. Accordingly, we agree with the district court’s conclusion that plaintiffs’ suit was timely filed.
The final issue on this appeal concerns the district court’s instruction on mental distress. The court instructed the jury as follows:
Moreover, you must find that the plaintiff you are considering has proven a basis for such damages by the fair preponderance of credible evidence. The mere fact that a plaintiff may assert that he has suffered emotional or mental distress or loss of reputation is an inadequate basis as a matter of law for awarding such damages. You may not presume that the plaintiff suffered mental or emotional distress simply because their [sic] rights were violated. Rather, you must find such mental or emotional distress based upon the particular plaintiff’s physical condition or medical evidence. You are limited by the testimony as it was given during the course of the trial.
J.App. at 639-40. Objections to the charge were noted by the district court. Id. at 641-42. Plaintiffs argue that this instruction was erroneous because it prohibited an award of damages for emotional distress or injury to reputation without a finding of physical injury. While we agree that this may be the fair import of the instruction, we cannot agree that the charge was erroneous.
The qualification that claims of emotional distress be supported by a physical manifestation of injury is an appropriate safeguard against the award of excessive and speculative damages against unions. “Such awards could deplete union treasuries, thereby impairing the effectiveness of unions as collective-bargaining agents.” International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 50-51, 99 S.Ct. 2121, 2127, 60 L.Ed.2d 698 (1979) (punitive damages not recoverable in fair representation suits against a union). We do not suggest that damage awards for emotional distress are inappropriate in LMRDA suits. Such awards are proper forms of compensatory relief for actual injury. However, we deem it advisable, in light of the significant impact on union coffers, to require a physical manifestation of emotional distress before permitting an award. We, therefore, find ourselves in agreement with the rule in the Ninth Circuit that damages for emotional distress are not recoverable under the LMRDA absent a showing of physical injury. See, e.g., Bloom v. International Brotherhood of Teamsters, 752 F.2d 1312, 1315 (9th Cir.1984) (noting rule that actual injury must be demonstrated); Bise v. International Brotherhood of Electrical Workers, 618 F.2d 1299, 1305 (9th Cir.1979) (jury’s award of damages for emotional distress vacated where evidence failed to show actual harm), cert. denied, 449 U.S. 904, 101 S.Ct. 279, 66 L.Ed.2d 136 (1980); International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers v. Rafferty, 348 F.2d 307, 315 (9th Cir.1965) (emotional distress, standing alone, is not a basis for awarding damages under LMRDA).
CONCLUSION
We affirm the decision of the district court as to all claims against LIUNA except those of plaintiff Diduck. Regarding Did
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_usc2sect
|
1601
|
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 43. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
C. BURGLIN, et al., Plaintiffs-Appellants, v. Rogers C. B. MORTON, as the Secretary of the Interior of the United States, et al., Defendants-Appellees.
No. 74-2761.
United States Court of Appeals, Ninth Circuit.
Dec. 19, 1975.
Rehearing Denied Jan. 27, 1976.
William Robert Hickman (argued), Reed, McClure, Moceri & Thonn, Seattle, Wash., for plaintiffs-appellants.
Carl Strass (argued), U. S. Dept, of Justice, Washington, D.C., for defendants-appellees.
OPINION
Before DUNIWAY, TRASK and. SNEED, Circuit Judges.
SNEED, Circuit Judge:
Plaintiffs filed four lawsuits charging that the Secretary of the Interior had wrongfully rejected their several offers for noncompetitive oil and gas leases. The district court consolidated the cases, and granted summary judgment in favor of the government defendants. Plaintiffs appeal from that decision. We find that there is no genuine issue of material fact with respect to any properly justiciable issue, and affirm the district court’s dismissal as a matter of law.
During the latter half of 1968 four small groups of individual plaintiffs (plaintiff Burglin being a member of each group) made several offers for oil and gas leases in the State of Alaska. Each of the offers, made pursuant to Section 17 of the Mineral Lands Leasing Act, as amended, 30 U.S.C. § 226, was rejected by the Bureau of Land Management on the ground that one of the lease offerors (Burglin in each case) could not be identified on the offer form due to an illegible signature. Each of the rejections was appealed to the Interior Board of Land Appeals, which affirmed in each case.
Although the signature defects were cured subsequent to the date of original filing, in the interim the lands had been withdrawn from oil and gas entry under Public Land Order 4582 (January 17, 1969). The lands have remained withdrawn under the Alaska Native Claims Settlement Act, 43 U.S.C. § 1601 et seq. (December 18, 1971), and Public Land Order 5179 (March 9, 1972). Since the land was withdrawn prior to the date on which plaintiffs’ cured offers became effective, the Bureau of Land Management again rejected plaintiffs’ offers and the Board affirmed. Plaintiffs then sought judicial review.
Plaintiffs first urge that 30 U.S.C. § 226(c) required the Secretary to issue the leases to them. The offers were made pursuant to the Mineral Leasing Act of 1920, 30 U.S.C. § 181 et seq. Section 226 of Title 30 provides in pertinent part:
§ 226. Lease of oil and gas lands— Authority of Secretary.
(a) All lands subject to disposition under this chapter which are known or believed to contain oil or gas deposits may be leased by the Secretary.
Lands not within geologic structure of a producing oil or gas field; first qualified applicant.
(c) If the lands to be leased are not within any known geological structure of a producing oil or gas field, the person first making application for the lease who is qualified to hold a lease under this chapter shall be entitled to a lease of such lands without competitive bidding. Such leases shall be conditioned upon the payment by the lessee of a royalty of 12V2 per centum in amount or value of the production removed or sold from the lease.
The permissive word “may” in Section 226(a) allows the Secretary to lease such lands, but does not require him to do so. Although Section 226(c) requires the Secretary to issue the lease to the first qualified applicant if the land is leased, the Secretary has discretion to refuse to issue any lease at all on a given tract. Udall v. Tallman, 380 U.S. 1, 4, 85 S.Ct. 792, 13 L.Ed. 616 (1965). As this Court found in Pease v. Udall, 332 F.2d 62 (9th Cir. 1964):
“ . . . [T]he Mineral Leasing Act has consistently been construed as leaving to the Secretary, within his discretion, a determination as to what lands are to be leased thereunder.” Id. at 63.
Given the Secretary’s discretion whether to lease the lands at all, plaintiffs’ offer to lease could not, in and of itself, vest plaintiffs with any right to a lease, and plaintiffs’ contention that Section 226(c) required the Secretary to issue the leases was properly dismissed as a matter of law.
Plaintiffs further allege a cause of action grounded upon abuse of discretion or arbitrary and capricious conduct by the Secretary in exercising his discretionary authority. Actually, plaintiffs allege two different types of abuse of discretion. One relates to the initial rejection of plaintiffs’ offers due to the illegible signature, the other to the subsequent withdrawal of the lands by the Secretary and the Congress.
With respect to the withdrawal of the lands, plaintiffs’ complaints portray a grandiose scheme perpetrated by high officials of the Department of Interior malevolently to restrict Alaskan oil production. The complaints, couched only in the most conclusory and broad terms, allege that the Secretary’s policies are arbitrary, capricious, and done “to evade and circumvent the will of the people of the United States, as expressed in the 1920 Mineral Leasing Act.”
There is absolutely no evidence in the record to suggest the existence of the sinister scheme alleged by plaintiffs. But plaintiffs urge that summary judgment under Fed.R.Civ.P. 56 was not appropriate since defendants did not come forward with facts to disprove the conspiracy, and since plaintiffs were not given access to defendants’ files in order to obtain evidence with which to prove the conspiracy. The Government by affidavit could not set forth all the specific evidence needed to demonstrate the absence of the alleged conspiracy. To do so would entail the recitation of the long history of the Government’s many actions affecting the petroleum resources of this nation. The Government’s only practical response is to deny the conspiracy in terms no less broad and general than those used in the complaints. Perhaps strict adherence to the dictates of summary judgment would require this formality, but for reasons discussed below, we need not reach this issue. Furthermore, we find little merit in plaintiffs’ argument that they cannot adduce any factual basis for their allegations without discovery. Plaintiffs cannot even describe the facts for which they hope to find support. As Professor Moore states:
“The mere averment of exclusive knowledge or control of the facts by the moving party is not adequate: the opposing party must show to the best of his ability what facts are within the movant’s exclusive knowledge or control; what steps have been taken to obtain the desired information pursuant to the discovery procedures under the Rules; and that he is desirous of taking advantage of these discovery procedures.” 6 J. Moore, Federal Practice 156.24 at 2876 (2d ed. 1948).
However, the crucial difficulty with plaintiffs’ position lies far from the technical confines of Rule 56. The action of the Secretary in withdrawing lands was mandated by Congress, 43 U.S.C. § 1616(d)(2)(A); the selection of the lands to be withdrawn was an exercise of discretion, rather than an abuse of discretion. We do not doubt that Congress’ withdrawal of huge amounts of Alaskan land from lease entry perhaps restricted oil production in the United States at a time, as plaintiffs allege, of a “strong and pressing need for and a great shortage of domestically produced oil and gas.” However, it is the proper function of Congress and the Executive to set and implement the national energy policy. It is not the function of the judiciary generally to investigate and review the wisdom of this policy. We are a court, not a committee of Congress or department of the Executive. Plaintiffs’ complaints, couched in broad terms of public policy, simply do not allege a justiciable cause of action. The gravamen of this aspect of plaintiffs’ complaints is a policy determination for which judicially manageable standards are lacking. See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
The only remaining aspect of plaintiffs’ complaints concerns the alleged abuse and arbitrariness with respect to the initial rejection of the offers due to the illegible signature. Although we have shown that the Secretary has discretion to lease the lands, the initial rejection of plaintiffs’ offers must not have been arbitrary and capricious, thereby precluding plaintiffs from obtaining leases before withdrawal of the lands.
The applicable regulations require that “[e]ach offer must be filled in by typewriter or printed plainly in ink and signed in ink by the offeror . . . 43 C.F.R. § 3111.1-1. The Bureau of Land Management and the Interior Board of Land Appeals have interpreted this to require more than a legally binding signature. See cases cited in footnote 1, supra. The signatures must be plainly legible or accompanied by a clear identification of all persons whose signatures appear thereon.
When courts are called upon to review the Secretary’s interpretation of regulations made by him, his interpretation is entitled to deference. Harvey v. Udall, 384 F.2d 883, 885 (10th Cir. 1967). In the words of the United States Supreme Court:
“The Secretary’s interpretation may not be the only one permitted by the language of the orders, but it is quite clearly a reasonable interpretation; courts must therefore respect it.” Udall v. Tallman, supra, 380 U.S. at 4, 85 S.Ct. at 795.
The plaintiffs have not made a tender of evidence sufficient to overcome the presumption of validity of administrative action. This Court “does not presume to substitute its discretion for that of the Secretary.” Duesing v. Udall, supra at 752. We hold that there was no abuse of discretion in the initial rejection of the applications.
This conclusion is not altered even if it be true that certain employees in the Anchorage Land Office knew plaintiff Burglin’s signature. Ordinarily no duty exists on the part of such employees to inform offerors of their failure to comply with the Secretary’s regulations. Compliance with such regulations is the offerors’ responsibility. Even if such employees in this case wrongfully misled the plaintiff Burglin we reject the conclusion that the Secretary is estopped to reject the offers. The alleged improprieties of the employees in the Land Office simply cannot be used to compel the Government to accept a lease offer that it had statutory discretion to reject. None of the conduct alleged herein approaches the magnitude necessary for us to consider whether that conduct would be sufficient to estop the Government from either requiring proper applications or rejecting completed applications.
Since we have determined from the record that there are no material issues of triable fact relevant to any cognizable cause of action, we need not discuss the sufficiency of, or rely upon, the Government’s affidavit. We express no opinion as to the existence of a claim for damages against either the United States or the employees of the Anchorage Land Office due to any alleged improper conduct of the employees with respect to the signature issue. Nor do we wish to intimate under what circumstances there exists federal jurisdiction to hear such claims.
Affirmed.
. R. C. Bailey, et al., 7 IBLA 266 (1972); Helen S. Bailey, 8 IBLA 145 (1972); William D. Sexton, et al., 9 IBLA 316 (1973); Earnest and Dora A. Carter, et al, 12 IBLA 181 (1973).
. Plaintiffs also allege that the withdrawal of land pursuant to Public Land Order 4582 was a constitutionally infirm taking of plaintiffs’ property without due process of law. Since the filing of the applications did not vest in the plaintiffs any right to leases, or generate any legal interest similar to a property right, Duesing v. Udall, 121 U.S.App.D.C. 370, 350 F.2d 748, 750-51 (1965), there could be no taking, and this contention is without merit.
. Cf. INS v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973) (at the minimum, affirmative misconduct necessary to estop Government with respect to time deadline to file naturalization applications.) See also Santiago v. INS, 526 F.2d 488 (9th Cir. 1975).
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 43? Answer with a number.
Answer:
|
songer_procedur
|
A
|
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.
Harry S. STARK and National Bank of Detroit, Co-Executors of the Estate of Louise Tuller Miller, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
No. 15940.
United States Court of Appeals Sixth Circuit.
Sept. 24, 1965.
Willard M. Reagan, Detroit, Mich., Kramer, Morris, Stark, Rowland & Re-gan, Detroit, Mich., on brief, for appellants.
Fred R. Becker, Dept, of Justice, Washington, D. C., Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Rufus E. Stetson, Jr., Attys., Dept, of Justice, Washington, D. C., on brief; Lawrence Gubow, U. S. Atty., Robert F. Ritzen-hein, Asst. U. S. Atty., Detroit, Mich., of counsel, for appellee.
Before WEICK, Chief Judge, and O’SULLIVAN and EDWARDS, Circuit Judges.
O’SULLIVAN, Circuit Judge.
Plaintiff-appellants are co-executors of the Estate of Louise Tuller Miller. Involved on this appeal is the District Court’s dismissal of their suit for refund of federal income taxes assessed against Louise Tuller as a single person for the calendar years of 1957, 1958 and 1959. Determinative of the appellants’ lawsuit is the question whether a Probate Court order finding that Finley P. Miller and Louise Tuller had become husband and wife in a common-law marriage prior to 1957 was, by itself, conclusive of such issue in this suit for refund. The return for the year 1957 had been made out in 1958 and the tax paid by Louise Tuller as a single person. Finley P. Miller died May 28,1960. After his death, Louise Tuller filed a peti-tition for the probate of his estate, therein describing herself as Louise Tuller Miller, his widow. Upon this petition she was represented by appellant Harry S. Stark who had been Louise Tuller’s attorney for many years, knew her as a single woman and had so handled her affairs. The National Bank of Detroit was appointed Special Administrator of Finley P. Miller on June 9, 1960. Thereafter, joint income tax returns for the years 1958 and 1959 were prepared on behalf of Louise Tuller Miller and National Bank of Detroit, as widow and administrator of the deceased Finley P. Miller. An amended return of like import was also filed for the year 1957. The original return for 1957 disclosed a tax liability of Louise Tuller of $10,677.-74. By claiming the advantages of a joint return for the years 1957, 1958 and 1959, deductions of some $45,000 of medical expense, for the care of Finley P. Miller during several years of his last illness, and by taking credits for overpayment of taxes in previous years by such allegedly married couple, all income tax liability for the years. 1958 and 1959 was claimed to be satisfied. Upon review of these returns, the Commissioner assessed deficiencies in the amount of $22,238.11 against the Estate of Louise Tuller Miller, who died in September, 1960.
The assessment was paid by the co-executors of Louise Tuller Miller and this suit for refund followed. The complaint alleged that Louise Tuller Miller and Finley P. Miller were husband and wife in the years involved. The defendant denied such allegation and upon the issue thus drawn the case came on for trial before the District Judge without a jury. Plaintiffs produced no evidence to support the claim of marriage other than an order of the Probate Court of Wayne County, Michigan, determining that the deceased Louise Tuller had been the widow and sole heir at law of Finley P. Miller. They also offered a transcript of the evidence taken in the Probate Court hearing. This transcript was not received as substantive proof but merely as explanatory of what had occurred at the Probate Court hearing. The effect of other testimony given by appellant Harry S. Stark is set out in the District Court’s opinion. Whatever relevancy it had as background, it was clearly hearsay upon the issue of marriage and was correctly treated as such by the District Judge. At the conclusion of plaintiffs’ proof, the District Judge dismissed the complaint. His opinion on such dismissal is reported as Stark v. United States, 228 F.Supp. 203 (E.D.Mich. 1964). We affirm that decision.
We believe that the District Judge’s opinion adequately discusses the facts and law involved, and we supplement it only with the following recital of some additional facts and the procedure followed in the Probate Court. On April 11, 1960, about a month prior to the death of Finley P. Miller, appellant Stark drafted a will for Louise Tuller in which she was identified as a single woman and Finley P. Miller was described as her friend. In none of the proceedings in the Probate Court was the United States or its Commissioner of Internal Revenue sought to be made a party or included in those who were served with notice of the hearings thereon. These proceedings included the petitions for appointment of a general and a special administrator of the Finley P. Miller Estate; the petition for the allowance of appellants’ claim for some $70,-000 for medical bills of Finley P. Miller paid by Louise, the allowance of which wiped out the $23,000 residue of Finley’s estate; and the petition to determine heirs which resulted in the order now relied upon as a finding, binding upon the District Court, adjudicating “as a fact” that Louise and Finley had been husband and wife. The probate record also indicates that notice of the taking of the depositions of various witnesses for use in the Probate Court hearing on the petition to determine heirs was not served on the United States. The transcript of the Probate Court hearing discloses that at one session a representative of the Internal Revenue Department was present and that the Probate Judge advised that he was welcome to take part in the pending hearing. We do not know whether such representative was a government lawyer or whether he had anything more than the status of an interested spectator. He did not appear at a continued hearing of the matter. We do not consider that the presence of the Internal Revenue representative at one of the hearings made the United States a party to such proceeding.
Plaintiff-Appellants contend that the judgment of the Probate Court thus arrived at concludes further dispute of Louise Miller’s marital status in the present suit. Reliance is placed on Blair v. Commissioner of Internal Revenue, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465 (1937); Freuler v. Helvering, 291 U.S. 35, 54 S.Ct. 308, 78 L.Ed. 634 (1934); Cadden v. Welch, 298 F.2d 343 (CA 6, 1962); Goodwin’s Estate v. Commissioner of Internal Revenue, 201 F.2d 576 (CA 6, 1953); and Nashville Trust Co. v. Commissioner of Internal Revenue, 136 F.2d 148 (CA 6, 1943). The District Judge’s detailed analysis of those cases discloses that the state court orders there found to be binding on the United States were all entered in proceedings which called for state court determinations of state law essential to fixing or characterizing property rights of the persons in interest. The complaint here asserts that the Probate Judge “found as a fact” the needed marriage relationship and the Probate Judge was specific in saying that “The Court finds as a fact” that Louise and Finley were married in at least a common-law relationship prior to January 1, 1957, the date after which no marriage could come into existence under Michigan law except one solemnized by ceremony and pursuant to license.
We do not think that the interesting procedures employed first to obtain for the Estate of Louise the entire residue of the Estate of Finley, and then to obtain an order declaring Louise his widow, were comparable to the procedures involved in the above-mentioned authorities relied on by appellants. We do not believe that the government is bound in this proceeding by the resolution of fact questions in a state court proceeding to which it was not a party.
We affirm the judgment of the District Judge and approve his opinion.
. While not of controlling importance, it may be interesting to summarize some of the evidence offered in the Probate Court to support its finding of marriage. It presents a bizarre story. Louise and Finley Miller both led highly secretive lives, and Finley at least was known as a “character” by many in downtown Detroit. No claim was made of a valid ceremonial marriage between them. Each lived alone in a different hotel while in Detroit, and Louise held all her property and conducted all her affairs under her maiden name. They were known as man and wife, however, by their chauffeur, their doctor, personnel at Finley’s hotel, and Finley’s tailor and automobile dealer. It was shown that they visited each other daily and annually made prolonged trips to Florida where they did occupy the same hotel suite. Louise and Finley had each listed the other as spouse and next-of-kin on hospital records. Finley was approximately 95 years old at his death.
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_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Bernard HIATT, Appellant, v. Emil A. SCHLECHT, E. B. Weber, Norman L. Buckner, Robert J. Caley, Carl M. Halvorson, Eric Hoffman, J. M. Steinmuller, Jr., and Ralph Pierson, as Trustees for the Oregon-Washington Carpenters-Employers Health and Welfare Trust Fund and as Trustees for the Oregon-Washington Carpenters-Employers Pension Trust Fund, Appellees.
No. 21825.
United States Court of Appeals Ninth Circuit.
Aug. 13, 1968.
Henry Camarot (argued), Sanders, Lively, Camarot & Wiswall, Springfield, Or., for appellant.
Paul T. Bailey (argued), Bailey, Swink & Haas, Portland, Or., for ap-pellees.
Before HAMLEY and ELY, Circuit Judges, and VON DER HEYDT, District Judge.
Hon. James A. von der Heydt, United States District Judge, Anchorage, Alaska, sitting by designation.
OPINION
VON DER HEYDT, District Judge:
This is an appeal from a judgment entered by the District Court for plaintiffs. Plaintiffs, appellees herein, are trustees of the Oregon-Washington Carpenters-Employers Pension, and Health and Welfare, Funds. They filed a complaint seeking specific performance of certain trust agreements which they alleged were incorporated by reference into a labor agreement signed by defendant. Defendant, appellant herein, is a small building contractor. He contends, inter alia, that the District Court did not have jurisdiction because he is neither “in commerce” nor engaged in an “industry affecting commerce” as required by Section 301 of the Labor Management Relations Act. We consider here only the issue of the District Court’s jurisdiction.
In support of his contention that the District Court lacked jurisdiction, appellant urges that he purchased all of his supplies and performed all of his contracts during the period in question in Oregon, and did no work for any company engaged in interstate commerce.
The record notably lacks adequate evidence on behalf of appellees in support of the District Court’s jurisdictional requirement. We find this evidence to be insufficient. We glean from the record in this regard only that the plumbing fixtures which appellant used in 1963, 1964, and 1965 were manufactured outside Oregon, that cost of these items totalled, for both labor and materials, some $5,600 to $8,000 for the years in question, and that appellant’s annual gross income averaged about $150,000.
The District Court determined that it had jurisdiction.
The terms “in commerce” or “industry affecting commerce” are broadly defined. Many authorities require a direct purchase of materials from another state, usually in comparatively substantial quantities, to find jurisdiction. The size of a particular business or the actual dollar value of commerce conducted alone is not determinative of the question.
The record establishes the following with regard to appellant’s activities: He did not
1) construct outside Oregon;
2) subcontract with contractors engaged in business outside Oregon;
3) purchase materials or supplies from persons outside Oregon;
4) contract with subcontractors outside Oregon;
5) do any business with any firm or company in any other states;
6) work on any federal, state, or political subdivision projects;
7) ever work on any defense projects;
8) perform work on a facility directly utilized for the purpose of interstate commerce.
This manifest lack of interstate contact, considered with the significant insufficiency of appellees’ affirmative evidence upon the jurisdictional question, distinguishes this case from those relied upon by appellees.
Clearly, the evidence is insufficient to establish that appellant engaged in interstate commerce or in industry affecting commerce. We find the District Court lacked jurisdiction. . Because of this conclusion, it is unnecessary to reach the remaining issues raised by this appeal.
Reversed and remanded with instructions to the District Court to vacate judgment and dismiss appellees’ complaint for want of jurisdiction.
. 29 U.S.C. § 185(a) (1964).
. There was actually no evidence as to this, but the District Court took judicial notice of the ‘fact.’ In the light of our conclusion, we need not discuss the propriety of its having done so.
. The record suggests that the electric fixtures which appellant used may also be included in this computation.
. See, e.g., Liner v. Jafco, 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964); NLRB v. Inglewood Park Cemetery Ass’n, 355 F.2d 448 (9th Cir.), cert, denied, First Congregational Church of Los Angeles v. NLRB, 384 U.S. 951, 86 S.Ct. 1572, 16 L.Ed.2d 548 (1966).
. Plumbers and Steamfitters Union, Local No. 598 v. Dillion, 255 F.2d 820 (9th Cir. 1958).
. NLRB v. Fainblatt, 306 U.S. 601, 307 U.S. 609, 59 S.Ct. 668, 83 L.Ed. 1014 (1939).
. NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S. Ct. 943, 95 L.Ed. 1284 (1951) (over $55,-000 worth of raw materials purchased outside state; products shipped out of state); Plumbers & Steamfitters Union, Local 598 v. Dillion, note 5 supra (subcontractor on Atomic Energy Commission project site; pipe unloaded from interstate railroad car); NLRB v. Reed, 206 F.2d 184 (9th Cir. 1953) (over $50,000 worth of business for public utilities and related establishments). See also, NLRB v. Inglewood Park Cemetery Ass’n, note 4 supra, where materials were purchased directly from out of state; Safeway Stores, Inc. v. FTC, 366 F.2d 795 (9th Cir. 1966), cert, denied, 386 U.S. 932, 87 S.Ct. 954, 17 L.Ed.2d 805 (1967), where direct interstate sales were involved, and Wirtz v. Intravaia, 375 F.2d 62 (9th Cir. 1967), where there was construction work done on highways and airport runways used by interstate transporters.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_issue_7
|
B
|
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.
NATIONAL WOODWORK MANUFACTURERS ASSOCIATION et al. v. NATIONAL LABOR RELATIONS BOARD.
No. 110.
Argued January 18 and 19, 1967.
Decided April 17, 1967.
Charles B. Mahin argued the cause and filed briefs for petitioners in No. 110 and for respondents in No. 111.
Dominick L. Manoli argued the cause for respondent in No. 110 and for petitioner in No. 111. With him on the briefs were Solicitor General Marshall; Arnold Ordman and Norton J. Come.
Briefs of amici curiae were filed by William B. Barton and Harry J. Lambeth for the Associated Builders & Contractors, Inc.; by Gerard D. Reilly and Winthrop A. Johns for the Associated' General Contractors of America et al.; by Kenneth C. McGuiness and Stanley R. Strauss for the American Boiler Manufacturers Association; and by /. Albert Woll, Robert C. Mayer, Laurence Gold and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations.
Together with No. Ill, National Labor Relations Board v. National Woodwork Manufacturers Association’ et al., also on certiorari to the same court!
Mr. Justice Brennan
delivered the opinion of the Court.
Under the Landrum-Griffin Act amendments enacted in 1959, 73 Stat. 542, § 8 (b)(4)(A) of the National Labor Relations Act, 61 Stat. 141, became § 8 (b) (4) (B) and § 8 (e) was added. The questions here are whether, in the circumstances of these cases, the Metropolitan District Council of Philadelphia and Vicinity of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (hereafter the Union), committed the unfair labor practices prohibited by §§8(e) and 8(b)(4)(B).
Frouge Corporation, a Bridgeport, Connecticut, concern, was the general contractor on a housing project in Philadelphia. Frouge had a collective bargaining agreement with the Carpenters’ International Union under which Frouge agreed to be bound by the rules and regulations agreed upon by local unions with' contractors in areas in which Frouge had jobs. Frouge was therefore subject to the provisions of a collective bargaining agreement between the Union and an organization of Phila-' delphia contractors, the General Building Contractors Association, Inc. A sentence in a provision of that agreement entitled Rule 17 provides that “... No member of this District Council will handle... any doors... which have been fitted prior to being furnished on the job....” Frouge’s Philadelphia project called for 3,600 doors. Customarily, before the doors could be hung on such projects, “blank” or “blind” doors would be mortised for the knob, routed for the hinges, and beveled to make them fit between jambs. These are tasks traditionally performed' in the Philadelphia area by the carpenters employed on the jobsite. However, precut and prefitted doors ready to hang may be purchased from door manufacturers. Although Frouge’s contract and job specifications did not call for premachined doors, and “blank” or “blind” doors could have been ordered, Frouge contracted for the purchase of premachined doors from, a Pennsylvania door manufacturer which is a member of the National Woodwork Manufacturers Association, petitioner in No. 110 and respondent in No. 111. The Union ordered its carpenter members not to hang the doors when they arrived at the jobsite; Frouge thereupon withdrew the prefabricated doors and substituted “blank” doors which were fitted and cut by its carpenters on the jobsite.
The National Woodwork Manufacturers Association and another filed charges with the National Labor Relations Board against the Union alleging that by including the “will not handle” sentence of Rule 17 in the collective bargaining agreement the Union committed the unfair labor practice under § 8 (e) of entering into an “agreement... whereby [the] employer... agrees to cease or refrain from handling... any of the products of any other employer. '..,” and alleging further that in enforcing the sentence against Frouge, the Union committed the unfair labor practice under § 8 (b) (4) (B) of “forcing or requiring any person to cease using.., the products of any other... manufacturer....” The National Labor Relations Board dismissed the charges, 149 N. L. R. B. 646. The Board adopted the findings of the Trial Examiner that the “will not handle" sen- ■ tence in Rule 17 was language used by the parties to protect and preserve cutting out and fitting as unit work to be performed by the jobsite carpenters. The Board also adopted the holding of the Trial Examiner that both the sentence of Rule 17 itself and its maintenance against Frouge were therefore “primary” activity outside the prohibitions of §§ 8 (e) and 8 (b)(4)(B). The following statement of the Trial Examiner was adopted by the Board:
“I am convinced and find that, the tasks of cutting out and fitting millwork, including doors, has, at least customarily, been performed by the carpenters employed -on the jobsite. ■ Certainly, this provision of rule 17 is not concerned with the nature of the employer with whom the contractor does business nor with the employment conditions of other employers or employees, nor does it attempt to control such other employers or employees. The provision guards against encroachments on the cutting out and fitting work of the contract unit employees who have performed that work in the past. Its purpose is plainly to regulate the relations between the general contractor and his Qwn employees and to protect a legitimate economic interest of the employees by preserving their unit work. Merely because it incidentally also affects other parties is no basis for invalidating this provision.
“I find that,.. [the provision] is a lawful work-protection or work-preservation provision and that Respondents have not violated Section 8 (e) of the Act by entering into agreements containing this provision and by thereafter maintaining and enforcing this provision.” 149 N. L. R. B., at 657.
The Court of Appeals for the Seventh Circuit reversed the Board in this respect. 354 F. 2d 594, 599. The court held that the “will not handle” agreement violated § 8 (e) without regard to any “primary” or “secondary” objective, and remanded to the Board with instructions to enter an order accordingly. In the court’s view, the sentence was designed to effect a product boycott like the one condemned in Allen Bradley Co. v. Local Union No. 3, 325 U. S. 797, and Congress meant, in enacting § 8 (e) and §8 (b)(4)(B), to prohibit such agreements and conduct forcing employers to enter into them.
The Court of Appeals sustained, however, the dismissal of the- § 8 (b)(4)(B)* charge. The court agreed with the Board that the Union’s conduct as to Frouge involved only a primary dispute with it and held that the conduct was therefore not prohibited by that section but expressly protected by the proviso “ft]hat nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing....” 354 F. 2d, at 597.
We granted certiorari on the petition of the Woodwork Manufacturers Association in No. 110 and on the petition of the Board in No. 111. 384 U. S. 968. We affirm in No. 110 and reverse in No. 111.
I.
Even on the doubtful premise that the words of § 8 (e) unambiguously embrace the sentence of Rule 17, this does not end inquiry into Congress’ purpose in enacting the section. It is a “familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Holy Trinity Church v. United States, 143 U. S. 457, 459. That principle has particular application in the construction of labor legislation which is “to a marked degree, the result of conflict and compromise between strong contending forces and deeply held views on the role of organized labor in the free economic life of the Nation and the appropriate balance to be struck between the uncontrolled power of management and labor to further their respective interests.” Local 1976, United Brotherhood of Carpenters v. Labor Board (Sand Door), 357 U. S. 93, 99-100. See, e. g., Labor Board v. Fruit & Vegetable Packers, 377 U. S. 58; Labor Board v. Servette, Inc., 377 U. S. 46; Labor Board v. Drivers Local Union, 362 U. S. 274; Mastro Plastics Corp. v. Labor Board, 350 U. S. 270; Labor Board v. Lion Oil Co., 352 U. S. 282; Labor Board v. International Rice Milling Co., 341 U. S. 665; Local 761, Electrical Workers v. Labor Board, 366 U. S. 667.
Strongly held opposing views have invariably marked controversy over labor's use of the boycott to further its aims by involving an employer in disputes not his own. But congressional action to deal with such conduct has.stopped short of proscribing identical activity having the object of pressuring the employer for agreements regulat- ■ ing relations between him and his own employees. That Congress meant §§ 8 (e) and 8(b)(4)(B) to prohibit only “secondary” objectives clearly appears from an examination of the history of congressional action on the subject; we may, by such an examination, “recon.-'stitute the gamut of values current at the time when the words were uttered.”
The history begins with judicial application of the Sherman Act (26 Stat. 209) to labor activities. Federal court injunctions freely issued against all manner of strikes and boycotts under rulings that condemned virtually every collective activity of labor as an unlawful restraint of trade. The first congressional response to vehement labor protests came with § 20 of the Clayton Act in 1914. That section purported drastically to limit the injunction power of federal courts in controversies “involving, or growing out of, a dispute concerning terms.or conditions of employment.” In terms, it prohibited restraining any person from “ceasing to perform any work or labor” or “from ceasing to patronize or to employ any party to such dispute, or from recommending, advising, or persuading others by peaceful and lawful means so to do.” 38 Stat. 738. Labor hailed the law as a charter immunizing its activities from the antitrust laws. This expectation was disappointed when Duplex Printing Press Co. v. Deering, 254 U. S. 443, and Bedford Cut Stone Co. v. Journeymen Stone Cutters’ Assn., 274 U. S. 37, held that § 20 immunized only trade union activities directed against an employer by his own employees. In Duplex, the union carried on an elaborate scheme to coerce and restrain neutral customers of the complainant manufacturer from dealing with it, with the object of using these customers as an economic lever to bring the nonunion manufacturer to terms. The Court there stated:
“The substance of the matters here complained of is an interference with complainant’s interstate trade, intended to have coercive effect upon complainant, and produced by what is commonly known as a ‘secondary boycott,’ that is, a combination not merely to refrain from dealing with complainant, or to advise, or by peaceful means persuade complainant’s customers to refrain (‘primary boycott’), but to exercise coercive pressure upon such customers, actual or prospective, in order to cause them to withhold or withdraw patronage from complainant through fear of loss or damage to themselves should they deal with it.” Duplex Printing Press Co. v. Peering, supra, at 466.
Thus “primary” but" not “secondary” pressures were excepted from the antitrust laws. Truax v. Corrigan, 257 U. S. 312, 330, defined “secondary boycott” as one “where many combine to injure one in his business by coercing third persons against their will to cease patronizing him by threats of similar injury.'... The question in such cases is whether the moral - coercion exercised over a stranger to the original controversy by steps in themselves legal becomes a legal wrong.” See 1 Teller, Labor Disputes and Collective Bargaining § 1.45 (1940). Commentators of the day, while noting the ambiguity which lurked in the definition, discerned its core concept: union pressure directed at a neutral employer the object of which was to induce or coerce him to cease doing business with an employer with whom the union was engaged in a labor dispute.
In 1932 Congress enacted the Norris-LaGuardia Act and tipped the scales the other way. Its provisions “established that the allowable area of union activity was not to be restricted, as it had been in the Duplex case, to an immediate employer-employee relation.” United States v. Hutcheson, 312 U. S. 219, 231. Congress abolished, for purposes of labor immunity, the distinction ■ between primary activity between the “immediate disputants” and secondary activity in which the employer disputants and the members of the union do not stand “in the proximate relation of employer and employee....” H. R. Rep. No. 669, 72d Cong., 1st Sess., 8 (1932). Thus, in Hutcheson, supra, the Court held that the Norris--LaGuardia Act immunized a jurisdictional strike trapping a neutral employer in the middle of an “internecine struggle between two unions seeking the favor of the same employer,” supra, at 232. Commentators of the post-Norris-LaGuardia era, as those before, while continuing to deplore the chameleon-like qualities of the term “secondary boycott,” agreed upon its central aspect: pressure tactically directed toward a neutral employer in a labor dispute not his own.
Labor abuses of the broad immunity granted by the Norris-LaGuardia Act resulted in the Taft-Hartley Act prohibitions against secondary activities enacted in §8 (b)(4)(A), which, as amended in 1969, is now § 8 (b)(4)(B). As will appear, the basic thrust of the accommodation there effected by Congress was not expanded by the Landrum-Griitin amendments. The congressional design in enacting. § 8 (b)(4)(A) is therefore crucial to the determination of the scope of §§ 8 (e) and 8 (b)(4)(B). Senator Taft said of its purpose:
“This provision- makes it unlawful to resort to a secondary boycott to injure the business of a third ;person who is wholly unconcerned in the disagreement between an employer and his employees-.... [UJnder the provisions of the Norris-LaGuardia Act, it became impossible to stop a secondary boycott or any other kind of a strike, no matter how unlawful it may have been at common law. All this provision of the bill does is to reverse the effect of the law as to secondary boycotts.” (Emphasis supplied.)
Senator Taft and others frequently sounded this note that § 8 (b)(4)(A) was designed to eliminate the “secondary boycott,” and its proponents uniformly cited examples of union conduct which evidenced labor efforts to draw in neutral employers through pressure calculated to induce them to cease doing business with the primary employer. And the Senate Committee Report carefully characterized the conduct prohibited by §8 (b)(4) (A) in the same terms:
“Thus, it would not be lawful for a union to engage in a strike against employer A for the purpose of forcing that employer to cease doing business with employer B; nor would it be lawful for a union to boycott employer A because employer A uses or otherwise deals in the goods of or does business with, employer B (with whom the union has a dispute).” S. Rep. No. 105, 80th Cong., 1st Sess., 22,1 1947 Leg. Hist. 428.
The other subsections of § 8 (b) (4) of the Act were similarly limited to protecting employers in the position' of neutrals between contending parties. The prohibition of subsection (B) against a noncertified union’s forcing recognition from an employer was designed to protect the employer trapped between the union and his employees, a majority of whom may not desire to choose the union as their representative. The prohibition of subsection (C) against a demand for recognition when another union has been certified protects the employer trapped between the noncertified and the certified unions. The prohibition of subsection (D) against coercion to force an employer to assign certain work to one of two unions contesting for it protects the employer trapped between the two claims. The central theme pervading these provisions of protection for the neutral employer confirms the assurances of those sponsoring the section that in subsection (A) Congress likewise meant to protect the employer only from union pressures designed to involve him in disputes not his own.
Judicial decisions interpreting the broad language of § 8 (b)(4)(A) of the Act uniformly limited its’application to such “secondary” situations. This limitation was in “conformity with the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their Own.” Labor Board v. Denver Bldg. Trades Council, 341 U. S. 675, 692. This Court accordingly refused to read? 8 (b) (4) (A) to ban traditional primary strikes and picketing having an impact on neutral employers even though the activity fell within its sweeping terms; Labor Board v. International Rice Milling Co., 341 U. S. 665; see Local 761, Electrical Workers v. Labor Board, 366 U. S. 667. Thus, however severe the impact of primary activity on neutral employers; it was not thereby transformed into activity with a secondary objective.
The literal terms.of § 8 (b)(4)(A) also were not applied in the so-calléd “ally doctrine” cases, in which'the union’s pressure was aimed toward employers performing the work.of the primary employer’s striking employees. The rationale, again, was the inapplicability of the provision’s central theme, the protection of neutrals against secondary pressure, where the secondary employer against whom the union’s pressure is directed has entangled himself in the vortex of the primary dispute. “[T]he union was not extending its activity to a front remote from the immediate dispute but to one intimately’ añd indeed inextricably united to it.” Douds v. Metropolitan Federation of Architects, 75 F. Supp. 672, 677 (D. C. S. D. N. Y. 1948); see Labor Board v. Business Machine & Office Appliance Mechanics, 228 F. 2d 553 (C. A. 2d Cir. 1955). We summarized our reading of §8 (b)(4)(A) just a year before enactment'of § 8 (e):
“It aimed to restrict the area of industrial conflict. insofar as this could be achieved by prohibiting the most obvious, widespread, and, as Congress evidently judged, dangerous practice' of unions to widen that conflict: the coercion of neutral employers, themselves not concerned with a primary labor dispute, through the inducement of their employees to engage in strikes or concerted refusals to handle goods.” Local 1976, United Brotherhood of Carpenters v. Labor Board (Sand Door), 357 U. S. 93, 100.
Despite this virtually overwhelming support for the limited reading of § 8 (b)(4)(A), the Woodwork Manufacturers Association relies on Allen Bradley Co. v. Local Union No. 3, 325 U. S. 797, as requiring that the successor section, § 8 (b)(4)(B), be read-as proscribing the District Council’s conduct in enforcing the “will not handle” sentence of Rule 17 against Frouge. The Association points to the references to Allen Bradley in the legislative debates leading to the enactment of the predecessor § 8 (b) (4) (A). We think that this is an erroneous reading of the legislative history. Allen Bradley held violative of the antitrust laws a combination between Local 3 of the International Brotherhood of Electrical Workers and both electrical contractors and manufacturers of electrical fixtures in New York City to restrain the bringing in of such equipment from outside the city. The contractors obligated themselves to confine their purchases to local manufacturers, who in turn obligated themselves to confine their New York City sales to contractors employing members of the local, and this scheme was supported by threat of boycott by the contractors’ employees. While recognizing that the union might have had an immunity for its contribution to-the trade boycott had it acted alone, citing Hutcheson, supra, the Court held immunity was not intended by the. Clayton or Norris-LaGuardia Acts in cases in which the union’s activity was part of a larger conspiracy to abet contractors and manufacturers to create a monopoly.
The argument that the references to Allen Bradley in the debates over § 8 (b)(4)(A) have broader significance in the determination of the reach of that section is that there was no intent on Local 3’s part to influence the internal labor policies of the boycotted out-of-state manufacturers of electrical equipment. There are three answers to this argument: First, the boycott 6f out-of-state electrical equipment by the electrical contractors’ employees was not in pursuance of any objective relating to pressuring their employers in the matter of their wages, hours, and working conditions; there was no work preservation or other primary objective rjelated to. the union employees’ relations with their contractor employers. On the contrary, the object of the boycott was to secure benefits for the New York City electrical manufacturers and their employees. “This is a secondary object because the cessation of business was being used tactically, with an eye to its effect on conditions elsewhere.”. Second, and of even greater significance on the question of the inferences to be drawn from the references to Allen Bradley, Senator Taft regarded the Local 3 boycott as in effect saying, “We will not permit any material made by any other union or. by any nonunion workers to come into New York City and be put into- any building in New York City.” 93 Cong. Rec. 4199, II 1947 Leg. Hist. 1107. This clearly shows that the Senator viewed the pressures applied by Local 3 on the employers of its members as having solely a secondary objective. The Senate Committee Report échoes the same view:
'“[It is] an unfair labor practice for. a union to engage in the type of secondary boycott that has been conducted in New York City by local No. 3 of the IBEW, whereby electricians have refused to install electrical products of manufacturers employing electricians who are members of some labor organization other than local No. 8.” S. Rep. No.'105, 80th Cong., 1st Sess., 22, I 1947 Leg. Hist. 428. (Emphasis supplied.)
Other statements on the floor of Congress repeat the same refrain. Third, even on the • premise that Congress meant to prohibit boycotts such as that in Allen Bradley without regard to whether they were carried on to affect labor conditions elsewhere, the fact is that the boycott in Allen Bradley was carried on, not as a shield to preserve the jobs of Local 3 members, traditionally a primary labor activity, but as a sword, to reach out and monopolize all the manufacturing job tasks for Local 3 members. It is arguable that Congress may have viewed the use of the boycott as a sword as different from labor’s traditional concerns with wages, hours, and working conditions. But the boycott in the present cases was not used as a sword; it was a shield carried solely to preserve the members’ jobs. We therefore have no occasion today to decide the questions which might arise where the workers carry on a boycott to reach out to monopolize jobs or acquire new job tasks when their own jobs are not threatened by the boycotted product.
It is true that the House bill proposed to amend the Clayton Act to narrow labor’s immunity from the antitrust laws. H. R. 3020, § 301 (b), I 1947 Leg. Hist. 220. This was omitted from the Conference agreement. It is suggested that this history evidences that Congress meant § 8 (b) (4) (A) to reach all product boycotts with work preservation motives. The argument is premised on a statement by the House Managers in the House Conference Report that “[sjincethe matters dealt with in this section have to a large measure been effectuated through the use of boycotts, and since the conference agreement contains effective provisions directly dealing with boycotts themselves, this provision is omitted from the conference agreement.” H. R. Conf. Rep, No. 510, 80th Cong., 1st Sess., 65, I 1947 Leg. Hist. 569. The statement is hardly probative that § 8 (b) (4) (A) enacted a broad prohibition in face of the overwhelming evidence that' its Senate sponsors intended the narrower reach. Actually the statement at best reflects that the House may have receded from a broader position and accepted that of the Senate. For §8 (b)(4)(A) constituted the “effective provisions” referred to and the House Managers’, understanding of and agreement with the reach of the section as intended by its Senate sponsors is expressed at page 43 of-the same Report, I 1947 Leg. Hist. 547:
“Under clause (A) strikes or boycotts, or attempts to induce or encourage such action, were made unfair. labor practices if the purpose was to force an employer or other person to cease using,. selling, handling, transporting, or otherwise dealing in the products of another, or to cease doing business with any other person. Thus it was made an unfair labor practice for a union to engage in a strike against employer A for the purpose of forcing that employer to cease doing business with employer B. Similarly it would not be lawful for a union to boycott employer A because employer A uses or otherwise deals in the goods of, or does business with, employer B.”
In effect Congress, in enacting §8 (b)(4) (A) of the Act, returned to the regime of Duplex Printing Press Co. and Bedford Cut Stone Co., supra, and barred as a secondary boycott union activity directed against a neutral employer, including the immediate employer when in fact the activity directed against him was carried on for its effect elsewhere.
Indeed, Congress in rewriting §8 (b)(4) (A) as §8 (b)(4)(B) took pains to confirm the limited application of the section to such “secondary” conduct. The word “concerted” in former §8 (b)(4) was deleted to reach secondary conduct directed to only one individual. This was in response to the Court’s holding in Labor Board v. International Rice Milling Co,, 341 U. S. 665, that “concerted” required proof, of inducement of two or more employees. But to make clear that the deletion was not. to be read; as ^supporting a construction of the statute as prohibiting the incidental effects of traditional primary activity, Congress added the proviso that nothing in the amended section “shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.” Many statements and examples proffered in the 1959 debates confirm this congressional acceptance of the distinction between primary and secondary activity.
II.
The Landrum-Griffin Act amendments in 1959 were adopted only to close various loopholes in the application of § 8 (b)(4)(A) which had been exposed in Board and court decisions. We discussed some of these loopholes, and the particular amendments adopted to close them, in Labor Board v. Servette, Inc., 377 U. S. 46, 51-54. We need not repeat that discussion, here, except to emphasize, as we there said, that “these changes did not expand the type of conduct which §.8 (b)(4)(A) condemned, that is, union pressures calculated to induce the employees of a secondary employer to withhold their services in order to force their employer to cease dealing with the primary employer.” Id., at 52-53.
. Section 8 (e) simply closed still another loophole. In Local 1976, United Brotherhood of Carpenters v. Labor Board (Sand Door), 357 U. S. 93, the Court held that it was no defense to an unfair labor practice.charge under § 8 (b) (4) (A) that the struck employer had agreed, in a contract with the union, not to handle nonunion material.' However, the Court emphasized that the mere execution of such a contract provision (known as a “hot cargo” clause because of its prevalence in Teamsters Union contracts), or its voluntary observance by the employer, was not unlawful under- § 8 (b)(4).(A). Section 8 (e) was designed to plug this gap in the legislation by making the “hot cargo” clause itself unlawful. The Sand Door decision was believed by Congress not only to create the possibility of damage actions against employers for breaches of “hot cargo” clauses, but also'to create a situation in which such clauses might be employed to exert subtle pressures upon employers to engage in “voluntary” boycotts. Hearings in late 1958 before the Senate Select Committee explored seven cases of “hot cargo” clauses in Teamsters Union contracts, the use of which the Committee found conscripted neutral employers in Teamsters organizational campaigns.
This loophole-closing measure likewise did not expand the type of conduct which §8 (b)(4) (A) condemned. Although the language of § 8 (e) is sweeping, it closely tracks that of § 8 (b)(4)(A), and just as the latter and its successor §8 (b)(4)(B) did not reach employees’ activity to pressure their employer to preserve for themselves work traditionally done by them, § 8 (e) does not prohibit agreements made and maintained for that purpose.
The legislative history of § 8 (e) confirms this con-clúsion. The Kennedy-Ervin bill as originally reported proposed no remedy for abuses of the “hot cargo” clauses revealed at the hearings of the Select Committee. Senators Goldwater and Dirksen filed a minority report urging that a prohibition against “hot cargo” clauses should be enacted to close that loophole. Their statement expressly acknowledged their acceptance of the reading of §8 (b)(4) (A) as applicable only “to protect genuinely neutral employers and their employees, not themselves involved in a labor dispute, against economic coercion designed to give a labor union victory in a dispute with some other' employer.” They argued that a prohibition against “hot cargo” clauses was necessary to further that objective. They were joined by Senator McClellan, Chairman of the Select Committee, in their proposal to add such a provision. Their statements in support consistently defined the evil to be prevented in terms of agreements which obligated neutral employers not to do business with other employers involved in labor disputes with the union. Senator Gore initially proposed, and the Senate first passed, a “hot cargo” amendment to the Kenn'edy-Ervin bill which outlawed such agreements only for “common carriers subject to Part II of the Interstate Commerce Act.” This reflected the testimony at the Select Committee hearings which, attributed abuses of such clauses primarily to the Teamsters Union. Significantly, such alleged abuses by the Teamsters invariably involved uses of the clause, to pressure neutral trucking employers not to handle goods of other employers involved in disputes with the Teamsters Union.
The House Labor Committee first reported out a bill containing a provision substantially identical to the Gore amendment. The House Report expressly noted that since that proposal tracked the language of § 8 (b) (4) (A) “it preserved the established distinction between primary activities and secondary boycotts.” The substitute Landrum-Griffin bill, however, expanded the proposal to cover all industry and not common carriers alone. H. R. 8400, § 705 (b)(1) in I 1959 Leg. Hist. 683. Representative Landrum stated, “I submit if such contracts are bad in one segment of our economy, they are undesirable in all segments.” 105 Cong. Rec. 14343, II 1959 Leg. Hist. 1518. In describing the substitute bill, Representative Landrum pointedly spoke of the situation “where the union, in a dispute with one employer, puts pressure upon another employer or his employees, in order to force the second employer or his employees, to- stop doing business with the first employer, and ‘bend his knee to' the union’s will.’ ” Ibid. An analysis of the shbstitute bill submitted by Representative Griffin referred to the need to plug the various loopholes in the “secondary boycott” provisions, one of which is the “hot cargo” agreement. In Conference Committee, the Landrum-Griffin application to all industry, and not just to common carriers, was adopted.
However, provisos were added to § 8 (e) to preserve the status quo in the construction industry, and exempt the garment industry from the prohibitions of §§ 8 (e) and 8 (bX4)(B). This action of the Congress is strong confirmation that Congress meant that, both.§§ 8 (e) and 8 (b)(4)(B) reach only secondary pressures. If the body of § 8 (e) applies only to secondary activity, the garment industry proviso, is a justifiable exception which allows what the legislative history shows it was designed to allow, secondary pressures to counteract the effects of' sweatshop conditions in an industry with a highly integrated process of production between jobbers, manufacturers, contractors and subcontractor^. First, this motivation for the proviso sheds light on the central theme of the body of § 8 (e), to which the proviso is an exception. Second, if the body of that provision and § 8 (b) (4) (B) were construed to prohibit primary agreements and their maintenance, such as those concerning work preservation, the proviso would have the highly unlikely effect, unjustified in any of the statute’s history, of" permitting garmient workers, but garment workers only, to preserve their jobs against subcontracting or prefabrication by such agreements and by strikes and boycotts to.enforce them. Similarly, the construction industry proviso, which permits “hot cargo” agreements only for jobsite work, would have the curious and unsupported result of allowing the construction worker to make agreements preserving his traditional tasks against jobsite prefabrication and subcontracting, but not against nonjobsite prefabrication and subcontracting. On the other hand, if the heart of § 8 (e) is construed to be directed only to secondary activities, the construction proviso becomes; as it was intended to be, a measure designed to allow agreements pertaining to certain- secondary activities on the construction site because of the close community of interests there, but to ban secondary-objective agreements concerning nonjob-site work, in which respect the construction industry is no different from any other. The provisos are therefore substantial probative support that primary work preservation agreements were not to be within the ban of § 8 (e).
The only mention of a broader reach for § 8 (e) appears in isolated statements by opponents of that provision, expressing fears that work preservation agreements would be banned. These statements have scant probative value against the backdrop of the strong evidence to the contrary. Too, “we have often cautioned against the danger, when interpreting a statute, of reliance upon the views of its legislative opponents. In their zeal to defeat a bill, they understandably tend to overstate its reach.” Labor Board v. Fruit & Vegetable Packers, 377 U. S. 58, 66. “It is the sponsors that we 'look to when the meaning, of the statutory words is in doubt.” Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 394-395. See Mastro Plastics Corp. v. Labor Board, 350 U. S. 270, 288.
In addition to all else, “[t]he silence of the sponsors of [the] amendments is pregnant with significance....” Labor Board v. Fruit & Vegetable Packers, supra, at 66. Before we may say that Congress meant to strike from workers'.hands the economic weapons traditionally used against their employers’ efforts to abolish their jobs, that meaning should plainly appear. • “[I]n this era of automation and onrushing technological change; no problems in the domestic economy are of greater concern, than those involving job security and employment stability. ■ Because of the potentially cruel impact upon the lives and fortunes of the working men and
Question: What is the issue of the decision?
A. arbitration (in the context of labor-management or employer-employee relations) (cf. arbitration)
B. union antitrust: legality of anticompetitive union activity
C. union or closed shop: includes agency shop litigation
D. Fair Labor Standards Act
E. Occupational Safety and Health Act
F. union-union member dispute (except as pertains to union or closed shop)
G. labor-management disputes: bargaining
H. labor-management disputes: employee discharge
I. labor-management disputes: distribution of union literature
J. labor-management disputes: representative election
K. labor-management disputes: antistrike injunction
L. labor-management disputes: jurisdictional dispute
M. labor-management disputes: right to organize
N. labor-management disputes: picketing
O. labor-management disputes: secondary activity
P. labor-management disputes: no-strike clause
Q. labor-management disputes: union representatives
R. labor-management disputes: union trust funds (cf. ERISA)
S. labor-management disputes: working conditions
T. labor-management disputes: miscellaneous dispute
U. miscellaneous union
Answer:
|
songer_procedur
|
C
|
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.
CHANDLER LEASING DIVISION, PEPSICO SERVICE INDUSTRIES LEASING CORPORATION, Plaintiff-Appellant-Cross-Appellee, v. FLORIDA-VANDERBILT DEVELOPMENT CORPORATION, formerly known as Florida Realty Co., and Harold J. Baker, individually, Defendants-Appellees-Cross-Appellants.
No. 72-1383
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
July 18, 1972.
Rehearing Denied Aug. 22, 1972.
John L. Britton, Miami, Fla., for plaintiff-appellant-cross-appellee.
William E. Sadowski, Thomas B. DeWolf, Miami, Fla., for defendants-appellees-cross-appellants.
Before BELL, DYER and CLARK, Circuit Judges.
Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N.Y., 431 F.2d 409, Part I (5th Cir. 1970).
CLARK, Circuit Judge:
This appeal by plaintiff, Chandler Leasing Division of Pepsico Service Industries Leasing Corporation (Chandler), and cross-appeal by defendant, Florida-Vanderbilt Development Corporation (Florida-Vanderbilt), involves the validity of the defense of breach of warranty of seaworthiness and the proper measure of damages for an admitted breach of a written lease agreement covering a 55 foot yacht. The facts are not in dispute, but the admiralty and Florida legal conclusions to be derived therefrom are contested.
On January 23, 1970, Chandler leased to Florida-Vanderbilt a 1970 Chris Craft Cruiser for a nine-year term. On September 1, Florida-Vanderbilt ceased remitting payments and on October 30 wrote to Chandler terminating the lease because of acute electrolysis problems. Pursuant to a judgment of replevin issued by a Florida state court, Chandler repossessed the vessel on February 11, 1971, proceeded to hold a public sale of the vessel (which is not attacked procedurally) and purchased the vessel at that sale for 100,000 dollars.
Chandler filed this suit seeking a recovery of damages in accordance with the provisions of the lease contract which essentially consisted of the discounted value of all future rent payments less the purchase price of 100,000 dollars. Florida-Vanderbilt defended by claiming a breach of the warranty of seaworthiness. The district court refused to recognize the seaworthiness defense but entered summary judgment which limited Chandler’s recovery to the accrued rental in default as of February 11.
Florida-Vanderbilt cross-appeals from the district court’s disallowance of its affirmative defense that Chandler breached its warranty of seaworthiness. Florida-Vanderbilt argues that a warranty of seaworthiness attached to the lease agreement despite the existence of a general, but universal, disclaimer clause. It contends that the disclaimer in order to be efficacious against a warranty of seaworthiness, must specifically state that the warranty is abjured. The facts in the case at bar make this defense wholly inapplicable. Chandler was not a boat owner offering to lease a vessel. The lease makes it transparently clear that Florida-Vanderbilt chose the exact yacht and equipment it wanted and even selected the boat company from which it wanted the yacht to be acquired. The very first term of the lease provided:
“EQUIPMENT; ACCEPTANCE. Lessee hereby leases from lessor, and lessor leaves to lessee, the personal property described above and in any schedule made a part hereof by the parties hereto (herein called ‘equipment’). Lessee has chosen and requested equipment of the type and quantity specified herein and has selected the supplier named above. Lessor agrees to order such equipment from said supplier, but shall not be liable in any event for specific performance of this lease or for damages of any type, if, with or without excuse, the supplier delays or fails to fill the order or delivery of the equipment is otherwise delayed or not made. Any delay in such delivery shall not affect the validity of this lease. Lessee shall accept such equipment if delivered in good repair, and hereby authorizes lessor to insert herein the serial number of each item of equipment so delivered. Unless lessee gives lessor written notice of each defect or other proper objection to any item of equipment within five (5) business days after receipt thereof, it shall be conclusively presumed, as between lessee and lessor, that the item was delivered in good repair and that lessee accepts it as an item of equipment described herein.”
No principle of the maritime doctrine of warranty of seaworthiness, which applies to demise charters and related vessel leases, proscribes Chandler from contracting with Florida-Vanderbilt that a part of the consideration for the lease of a vessel Florida-Vanderbilt selected and caused Chandler to purchase should include a waiver of any warranty from Chandler. In substance, Chandler was not a demise charterer but rather was a financing agent. Under the facts here, the general disclaimer clause effectively remitted any claim arising from the leased vessel’s physical condition to such claim as could be exerted against the manufacturer’s warranties. The district court correctly struck the affirmative defense of breach of warranty of seaworthiness.
Florida-Vanderbilt attempts to also cast its defense in a failure of consideration mold. We similarly reject this attempt to reach the same result via a substitute route. The leased vessel it picked out was accepted and used, and rentals were remitted for many months. The obligations of the lease were fully assumed and cannot be negated in derogation of the document’s plain terms.
Chandler argues that according to Subsection (A) of Section 14 of the lease agreement it is entitled to: (i) 15% of the actual cost of the vessel, + (ii) the balance of the rent for the unexpired term of the lease from the date of termination minus the 100,000 dollars received from the sale, both adjusted by the required discounts or added interest, + (iii) expenses and attorneys’ fees. Florida-Vanderbilt relies upon Cutler Gate Building Corp. v. United States Leasing Corp., 165 So.2d 207 (Fla.Dist.Ct. of Appeal, 3d Dist. 1964); Monsalvatge & Co. of Miami v. Ryder Leasing, Inc., 151 So.2d 453 (Fla.Dist.Ct. of Appeal, 3d Dist. 1963) to uphold the district court’s judgment that such recovery would be inequitable and unjust.
Except for one particular — the requirement of an arbitrary payment of 15% of actual cost — the provisions of the present lease are distinguishable from Cutler Gate and Monsalvatge. The contractual clauses involved in both of those cases provided for damage in the amount of the unaccrued rents for the remainder of the lease term and in addition, the lessor was allowed the use and benefit of the leased property. The Florida courts held that it would be unjust and inequitable to allow the lessor this much compensation because in effect the lessor was afforded a double remedy. See also Geiger Mutual Agency, Inc. v. Wright, 233 So.2d 444 (Fla.Dist.Ct. of Appeal, 4th Dist. 1970). Instead, the recovery was limited to the rentals in default at the time of the termination of the lease.
These cases cannot be interpreted to lay down the per se rule that irrespective of whatever contractual damage provision the parties may have agreed upon, only rentals in default could be recovered. Such a rule would not only conflict with the right of contracting parties to obligate themselves as they wish, but it would also be inconsonant with sound reason. Under so absolute a rule, lessees could breach lease agreements with impunity knowing that they would be liable only for the payments in default, and lessors on the other hand would never know when the property would be returned and in what condition. Such intolerable conditions would so seriously impair the commercial viability and efficacy of lease transactions that they would forestall or inhibit the negotiation of commercially valuable lease agreements.
However, the absolute requirement of Section 14 that a defaulting lessee pay 15% of the actual cost of the equipment leased can, in the context of the other damage covenants, only amount to an unenforceable attempt to contract for a penalty in excess of actual damages. It is not a liquidated damage clause. The damages were certainly capable of accurate estimation, if by no other means, then by the contractual process of selling the property let, applying sale proceeds to reduce the anticipated rental income and providing for the reimbursement of all retaking and selling expense. The percentage remained inflexible throughout the years of the lease and in no part served as a reasonable forecast of just compensation, which is the hallmark for legal damages under Florida law. Pembroke v. Caudill, 160 Fla. 948, 37 So.2d 538, 6 A.L.R.2d 1395 (1948); Hungerford Const. Co. v. Florida Citrus Exposition, 410 F.2d 1229 (5 Cir.), cert. denied 396 U.S. 928, 90 S.Ct. 263, 24 L.Ed.2d 226 (1969); 1 Restatement of Contracts § 339(1) (1932). For example, consider how unconscionable such a flat exaction would be in the latter months of the lease.
Florida follows the universal rule that parties sui juris may negotiate any contract not violative of law or public policy. See e. g., International Ass’n of Machinists v. State ex rel. Watson, 153 Fla. 672, 15 So.2d 485 (en banc 1943); Troup v. Meyer, 116 So.2d 467 (Fla.Dist.Ct. of Appeal, 3d Dist. 1959); 17 C.J.S. Contracts § 1(2) (1963). Except for the flat 15% of cost proviso, the present contractual method of damage calculation is not violative of any law or public policy. It does not provide for a double recovery as did the contracts in Cutler Gate and Monsalvatge. With the 15% penalty deleted, it is a reasonable damage provision that competent contracting parties were completely free to negotiate about and accept or reject.
We recognize that under the Florida case law there are three remedies available to lessors when their lessees breach a lease agreement. However, these remedies are not established as the sole remedies which may be provided for lease breaches, but are intended to supply remedies when none are provided in the lease or when broader contractual lease remedies violate public policy. Since we conclude that without the 15% penalty Section 14 neither provides the lessor with a double remedy nor violates any announced public policy of the State of Florida, it is controlling on the question of damages. Therefore the district court erred in refusing to apply the remedy of that subsection to the breach admitted here.
Under Section 14 the termination date is crucial to the computation of damages. We construe that date to be February 11, 1971, the date the lessor first took an affirmative act indicating its choice of remedies under the provisions of the contract.
In view of our disposition of this case, we pretermit discussion on Florida-Vanderbilt’s final point. The cause is remanded to the district court for a calculation of damages due Chandler under Section 14.
Affirmed in part, reversed in part, and remanded with directions.
. “3: WARRANTY. Lessor, without assuming responsibility for compliance by supplier, will request the supplier to authorize lessee to enforce in lessee’s own name all warranties, agreements, or representations, if any, which may be made by the supplier to lessee (or lessor). LESSOR ITSELF MAKES NO EXPRESSED OR IMPLIED WARRANTIES OR REPRESENTATIONS AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATIONS, THE CONDITION OF EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. In no event shall any defect in or unfitness of the equipment relieve lessee of the ob-litigation hereunder, once the item has been accepted, or presumed accepted under Paragraph 1 hereof, by lessee.”
. 14. DEFAULT. If lessee, fails to pay any rent or other amount herein provided within ten (10) days after the same is due and payable. . . . lessor at 'its option may from time to time sue, at law or in equity, to enforce performance of this lease or to recover damages for breach thereof, or, may by notice in writing to the lessee terminate this lease as to any or all items of equipment; .... In the event of such notice of termination from the lessor, this lease shall terminate in accordance therewith as to the equipment specified (“terminated equipment”) but the lessee shall nevertheless remain liable for all rents therefor and additional sums thereon accrued and unpaid at the time of termination and additionally shall be liable to lessor as hereinafter provided. In such event lessee shall remain liable for the return of the terminated equipment to lessor, ns provided in paragraph 7 hereof, but lessor may take possession of any or all of said equipment, wherever it may be located without demand or notice, without any court order of process of law, and without incurring any liability to lessee for any damages occasioned by such taking of possession. Lessor shall make such efforts as are reasonable in the circumstances, at its option either to sell any or all of the terminated equipment at public or private cash or credit sale, or to re-let the same. In the event of such termination, lessee shall also be liable to lessor for a further sum, computed . . . : (A) As to any terminated equipment sold by lessor before the expiration of the initial term, the sum of (1) an amount equal to fifteen per cent of the actual cost to the lessor of such equipment, plus (2) the “balance of rent”, being the unpaid balance (if any) of the total rent reserved herein attributable to such equipment for the portion of the initial term unexpired at the time of such termination (“unexpired term”), less (3) the net proceeds of such sale. Since pursuant to the foregoing lessor may receive payment of such balance of rent at a time or times earlier or later than the same would have fallen due in the absence of termination, such balance of rent is to be adjusted by subtracting discount therefrom or adding interest thereto accordingly, at the rate of 6% per annum, and for the purposes of computing such adjustments, the aforesaid proceeds of sale or re-letting and any sums received from lessee in respect of said termination and of all costs and expenses incurred by lessor hereinbelow mentioned, and thereafter, to the payment of the balance of rent. In addition to the foregoing, lessor may recover from lessee all costs and expenses, including without limitation, reasonable attorneys’ fees and fees of collection agencies, incurred by lessor in exercising any of the rights or remedies, such costs and expenses to include, without limitation, in case of termination any and all incurred in taking or receiving possession, removal, storing, selling or re-letting the terminated equipment in reconditioning the same for selling or re-letting, and in repairing and restoring the same to the conditions stated in paragraph 7 hereof.
. The three remedies are:
“(a) he may treat the lease as terminated and resume possession of the premises, thereafter using the same exclusively as his own for his own purposes ; or
“(b) he may retake possession of the jiremises for the account of the tenant, holding the tenant in general damages for the difference between the rentals stipulated to be paid and what, in good faith, the landlord is able to recover from a reletting ; or
“(c) lie may stand by and do nothing, and sue the lessee as each installment of rent matures, or for the whole when it becomes due.” 4 Adkins, Florida Real Estate Law and Procedure § 106.-04 at p. 1970 (1960). See also Kanter v. Safran, Fla.1953, 68 So.2d 553, 557-558; Diehl v. Gibbs, Fla.App.1965, 173 So.2d 719, 720.
Jimmy Hall’s Morningside Inc. v. Blackburn & Peck Enterprises Inc., 235 So.2d 344 (Fla.Dist.Ct. of Appeal, 2d Dist. 1970). See also Hyman v. Cohen, 73 So.2d 393 (Fla. en banc 1954).
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
LEE ART THEATRE, INC. v. VIRGINIA.
No. 997.
Decided June 17, 1968.
Plato Cacheri-s for petitioner.
James B. Wilkinson for respondent.
Per Curiam.
The petition for a writ of certiorari is granted. Petitioner, operator of a motion picture theatre in Richmond, Virginia, was convicted in the Hustings Court of Richmond of possessing and exhibiting lewd and obscene motion pictures in violation of Title 18.1-228 of the Code of Virginia. The Supreme Court of Appeals of Virginia refused a writ of error.
The films in question were admitted in evidence over objection that they had been unconstitutionally seized. The seizure was under the authority of a warrant issued by a justice of the peace on the basis of an affidavit of a police officer which stated only the titles of the motion pictures and that the officer had determined from personal observation of them and of the billboard in front of the theatre that the films were obscene.
The admission of the films in evidence requires reversal of petitioner’s conviction. A seizure of allegedly obscene books on the authority of a warrant “issued on the strength of the conclusory assertions of a single police officer, without any scrutiny by the judge of any materials considered . . . obscene,” was held to be an unconstitutional seizure in Marcus v. Search Warrant, 367 U. S. 717, 731-732. It is true that a judge may read a copy of a book in courtroom or chambers but not as easily arrange to see a motion picture there. However, we need not decide in this case whether the justice of the peace should have viewed the motion picture before issuing the warrant. The procedure under which the warrant issued solely upon the conclusory assertions of the police officer without any inquiry by the justice of the peace into the factual basis for the officer’s conclusions was not a procedure “designed to focus searchingly on the question of obscenity,” id., at 732, and therefore fell short of constitutional requirements demanding necessary sensitivity to freedom of expression. See Freedman v. Maryland, 380 U. S. 51, 58-59.
The judgment of the Supreme Court of Appeals of Virginia is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Stewart base their concurrence in the judgment of reversal upon Redrup v. New York, 386 U. S. 767.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Clare R. BRUFFETT, Appellant, v. WARNER COMMUNICATIONS, INC.
No. 82-1200.
United States Court of Appeals, Third Circuit.
Argued Sept. 16, 1982.
Decided Nov. 8, 1982.
Frank B. Baldwin, III (argued), Gary L. Bragg, Philadelphia, Pa., for appellant.
Jerome A. Hoffman (argued), John M. Coleman, Dechert, Price & Rhoads, Philadelphia, Pa., for appellee.
Before GIBBONS, WEIS and SLOVI-TER, Circuit Judges.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Appellant Clare Bruffett seeks damages in this diversity action on a variety of tort and contract theories because his employer, the Franklin Mint Corporation (Franklin), a subsidiary of defendant Warner Communications, Inc., terminated his temporary employment and failed to offer him permanent employment. The district court dismissed the complaint. For the reasons which follow, we will affirm the judgment of the district court in all respects.
I.
According to the allegations of the complaint, which on review of a dismissal under Fed.R.Civ.P. 12(b)(6) must be taken as true, Bruffett responded in October 1978 to an advertisement placed in a Philadelphia newspaper by Franklin Mint inviting applications for employment as an advertising designer. Following an interview, Bruffett was hired for a two-week trial period in November 1978. By letter dated November 30, Bruffett was offered permanent employment contingent on “the successful completion of both [Franklin’s] medical and security examinations.” Following the initial medical examination conducted on the Franklin Mint premises, Bruffett was requested to undergo additional medical tests by outside physicians. The complaint alleges that these examinations were “successfully completed”, but that notwithstanding this fact “Franklin unreasonably and without cause took the position that Plaintiff had not successfully completed the medical examination and so informed Plaintiff orally on or about January 12, 1979.” Pending consideration of Bruffett’s request that he be given permanent employment in exchange for “a waiver and release from Franklin’s medical insurance coverage for any matters disclosed in the medical examinations”, Bruffett was continued on a “full-time free lance” basis. On or about April 16, 1979, “Franklin unreasonably and without cause refused to employ Plaintiff in full-time permanent status in the position which Franklin had offered employment and ordered him to leave the premises by May 11, 1979.”
The complaint asserted four causes of action: Count I asserted breach of contract to hire Bruffett as a permanent employee as offered in the letter of November 30, 1978. Count II asserted intentional infliction of emotional distress, in that Franklin Mint “through its agents and employees did require Plaintiff to undergo serious medical examination procedures, including without limitation a kidney x-ray and a kidney biopsy, to which Plaintiff rightfully refused to submit” and “communicated to Plaintiff a risk of future, serious kidney failure which was not justified in view of the results of the medical examination which Plaintiff did undergo.” Count III alleged the discharge violated the “clear mandate of public policy set forth in the Pennsylvania Human Relations Act and the Federal Rehabilitation Act of 1978,” which prohibit discrimination in employment on the basis of handicap or disability. Count IV alleged “termination of Plaintiffs employment in full-time, free lance status and the refusal to hire Plaintiff in full-time permanent status” without cause or justification, and in violation of “the implied contractual covenant of good faith and fair dealing.”
Defendant Warner moved for summary judgment on the ground that each count of the complaint was barred by this court’s opinion in Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978), “otherwise fails to state a claim upon which relief can be granted, or is barred by the applicable statute of limitations.” Warner attached the affidavit of Dr. Marvin.L. Lewbart, a staff physician at Franklin Mint, who stated, inter alia, that “Mr. Bruffett was rejected on medical grounds, based on the totality of the evidence available, because of my professional opinion of the significant probability of major future medical complications associated with Mr. Bruffett’s heavy proteinuria.”
In opposition to Warner’s motion for summary judgment, Bruffett filed an affidavit stating, inter alia, that he has “had diabetes since approximately 1950 which has been under control continuously since that date by use of insulin and diet measures; ” that this diabetic condition “has not affected [his] ability to perform as an advertising designer, and during the period of [his] employment by Franklin Mint Corporation [his] performance as an advertising designer was not affected by [his] diabetic condition; ” that “[a]s a result of the failure of Franklin Mint Corporation to honor its obligation to employ [him], [he has] suffered damages... consisting of lost wages and benefits since May 11, 1979; ” and, finally, that as a result of Franklin Mint’s wrongful conduct, he has suffered damages including “loss of sleep, hypertension, and other pain and suffering,” which symptoms first manifested themselves after December 16, 1979. Bruffett also moved pursuant to Fed.R.Civ.P. 56(e)-(f) to permit the Lewbart affidavit to be further opposed by defendant’s forthcoming answers to interrogatories and by granting plaintiff the opportunity to take Lewbart’s deposition.
The district court treated defendant’s motion for summary judgment as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and granted the motion to dismiss the complaint. Bruffett v. Warner Communications, Inc., 534 F.Supp. 375 (E.D.Pa.1982). The court viewed Counts I and IV as stating essentially the same claim, and held that they failed to state a common law cause of action, relying on this court’s decision in Bonham v. Dresser Industries, Inc., supra. The court held that Count III, which alleged a violation of public policy, must also be dismissed since “to the extent that [it] is intended to state a claim for direct violation of a provision of the [Pennsylvania Human Relations] Act, it is barred because of plaintiff’s failure to file a complaint with the Pennsylvania Human Relations Commission within 90 days of the discriminatory act as required by the statute,” and to the extent that it attempted to state a separate claim for relief, it must be dismissed for the same reasons as Counts I and IV. Finally, the court held that Count II which alleged intentional infliction of emotional distress was time-barred. In light of the fact that it had treated the motion for summary judgment as a motion to dismiss and had consequently not relied on the Lewbart affidavit, the court denied as moot Bruffett’s motion for further discovery.
II.
A.
We consider..first plaintiff’s contention. that the court erred in dismissing his claim f.or,common4aw4)reaeh~of--ex-press -contracts Plaintiff argues that because he properly alleged a written offer of employment, fulfillment of all conditions precedent therein and breach by the employer, this claim should not have been dismissed for failure to state a claim. The complaint, however, expressly pleads that the offer of employment, upon which the alleged contract was based, was contingent on the “successful completion of both [Franklin’s] medical and security examinations”, App. at 6a (emphasis added), and a copy of the offer so stating was attached as Exhibit B to the complaint. Exhibit C to the complaint included the report of one of the examining physicians - as follows:
I have reviewed the records of Clare Bruffett and saw him on 12/19/78 in my office. As you know he has long standing diabetes and apparently has the new appearance of heavy proteinuria without the full nephrotic syndrome. His renal function is very good as is his blood pressure. I don’t think there is any more to do diagnostically and I believe the proteinuria is secondary to his diabetes. There is a lot we can do for any edema problems that may arise if he should develope [sic] the nephrotic syndrome in the future.
App. at 16a.
Plaintiff does not, and in light of this medical report could not, contend that no serious medical conditions were disclosed by the medical examination. Instead his claim appears to be that we must read the condition of “successful completion” contained in the offer to mean completion of a medical examination which did not uncover any medical conditions which might substantially interfere with his ability to perform the essential functions of the employment. Jil£nnsyNania.J).as,stated..that-iL.a.dheres to the subleclive..standard„.iiL.inter^preting contracts.which require performance to the “satisfaction” of the employer. See Kramer v. Philadelphia Leather Goods Corp. 364 Pa. 531. 533. 73 A.2d 385. 386 (1950). However, even if Franklin’s offer were construed, as plaintiff suggests, bv, incorporating an implied covenant of fair dealing and good-faith into. Ahp_ccmdit.ion..... requiring “successful completion” of the medical examination, see Restatement (Second) of Contracts § 228 comment a (1981), plaintiff’s breach of contract claim must fail unless some modification of Pennsylvania’s adherence to the discharge at will doctrine could be predicted, since it would be to no avail to plaintiff to claim breach of an express contract of employment which would have been terminable immediately thereafter at the option of the employer.
The complaint does not allege that the contract for employment.contained either an express or implied_pTOwsjQJi_tliat_.theemployment would be for a specific term. This would ordinarily mean that the employment was terminable at the option of either party. See Yaindl v. Ingersoll-Rand Co. Standard Pump-Aldrich Division, 281 Pa.Super. 560, 570-71, 422 A.2d 611, 616 (1980). Therefore, the district court did not err in considering the breach of contract claim in conjunction with plaintiff’s challenge to the discharge at will doctrine.
The only authority cited by plaintiff with regard to his breach of express contract claim, Wagner v. Sperry Univac. 458 F.Supp. 505 (E.D.Pa.1978), aff’d mem., 624 F.2d 1092 (3d Cir.1980), is not helpful to his position. In that case, the employee was able to withstand summary judgment on his claim of breach of contract because he alleged that as a result of his long service with the employer, he could be discharged only in accordance with the employer’s personnel policy to use seniority as the “governing factor” in such discharge. No limitation of the alleged employment contract is applicable here distinct from the issue raised by Counts III and IV as to the continuing validity of the common law employment at will doctrine.
B.
‘ Before considering that issue, we take up plaintiff’s contention that the district court erred in dismissing Count II of the complaint alleging intentional infliction of emotional distress. Plaintiff does not dispute the applicability of the two-year limitations period for “action[s] to recover damages for injuries to the person”, 42 Pa.Cons.Stat. § 5524(2) (1980). That period is computed “from the time the cause of action accrued.” 42 Pa.Cons.Stat. § 5502(a) (1980). The Pennsylvania Supreme Court has stated that “[a] tort cause of action generally accrues on the date of the accident or injury.” Gibson v. Commonwealth, 490 Pa. 156, 162, 415 A.2d 80, 83 (1980) (citations omitted).
The gravamen of plaintiff’s intentional tort charge is the emotional distress resulting from Franklin’s action in unjustifiably communicating to him “a risk of future, serious kidney failure.” The district court found that Bruffett’s “cause of action could not conceivably have accrued later than January 12, 1979” when Franklin informed him that he had not successfully completed the medical examination and of the basis for that decision. Bruffett v. Warner Communications, Inc., 534 F.Supp. at 377. Since the complaint was not filed until December 16, 1981, more than two years thereafter, the district court held that Count II was time-barred. Id.
Bruffett argues that he is entitled to the benefit of Pennsylvania’s “discovery rule”, under which a plaintiff’s ignorance of his injury or of the causative relationship between the injury and the defendant’s conduct may delay the running of the statute of limitations. See O’Brien v. Eli Lilly & Co., 668 F.2d 704, 705-06 (3d Cir.1981). Plaintiff points to his affidavit stating that he has experienced “loss of sleep, hypertension, and other pain and suffering” as a result of defendant’s wrongful conduct, and that “[t]he first awareness [he] had that such damages were caused by the actions of Franklin Mint Corporation was after December 16, 1979, at which time [he] began experiencing the physical symptoms described above.” He argues that since the physical symptoms did not fully manifest themselves until after December 16, 1979, two years prior to the filing of the complaint, he should not be charged with knowledge of his cause of action until that date.
Plaintiff cites no authority to show that Pennsylvania would apply its discovery rule to the tort which he alleges or even that it has been applied to any intentional tort. An action for intentional infliction of emotional distress requires four elements: “(1) the conduct must be extreme and outrageous; (2) the conduct must be intentional or reckless; (3) it must cause emotional distress; and (4) the distress must be severe.” Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir.1979) (en banc). Bruffett does not contend that he experienced no emotional distress at the time he received the communications on which he bases his claim. He focuses only on the date he alleges he began experiencing the physical symptoms. Under the Restatement, which we have held “may be applied as the basis in Pennsylvania law for the tort of intentional infliction of emotional distress”, id. at 1274, bodily harm is not an essential element of the tort of intentional infliction of emotional distress. See Restatement (Second) of Torts § 46 & comment k (1965). Bruffett’s cause of action was therefore complete before he experienced any physical symptoms.
This is not one of those comparatively rare cases where the claimant does not and in the exercise of reasonable diligence could not have become aware of the intentional tort until after the statute of limitations has run. See, e.g., Lewey v. H.C. Fricke Coke Co., 166 Pa. 536, 31 A. 261 (1895) (trespass to subterranean property); Sears, Roebuck & Co. v. Ulman, 287 Md. 397, 412 A.2d 1240 (1980) (Maryland statute of limitations in defamation action runs not from date of defamatory act but from date plaintiff learned of it). Bruffett does not dispute that he knew of the conduct complained of and of the identity of the alleged wrongdoer more than two years prior to the filing of his complaint. Since plaintiff “was aware of all of the operative facts of his injury” at that time, Getz v. Bruch, 400 F.Supp. 1033, 1037 (E.D.Pa.1975), the “discovery rule” may not be invoked to toll the statute of limitations. See also Kaletha v. Bortz Elevator Co., Inc., 383 N.E.2d 1071, 1075 (Ind.Ct.App.1978) (under Indiana law, statute of limitations on cause of action for intentional infliction of emotional distress began to run from date letter alleged to have caused distress received by third party, even though not communicated to plaintiff until later).
C.
We turn then to plaintiff’s principal contention that the district court erred in relying on our decision in Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978), when it dismissed Counts I, III and IV of the complaint. In Bonham a former employee suing under the Federal Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., asserted that his dismissal on the basis of age also gave rise to a claim for breach of contract cognizable under Pennsylvania law. After holding that Pennsylvania public policy against arbitrary age discrimination was manifested by the Pennsylvania Human Relations Act, Pa.Stat.Ann. tit. 43, §§ 951 et seq. (Purdon 1964 & Supp.1982) (sometimes hereinafter PHRA), we nevertheless affirmed summary judgment for the defendant on the breach of contract claim. We stated:
We conclude that the Pennsylvania courts would not hold that termination of an at-will employee on the basis of age gives rise to an independent common law cause of action for breach of contract in addition to those statutory remedies. We do not believe that the courts of Pennsylvania would hold that the mere passage of the Human Relations Act created a separate common law claim where none had existed before, and where that void had been filled by that very legislation. Judicial reluctance to create such a remedy is evident in Geary [456 Pa. 171, 319 A.2d 174], and we believe that the courts of Pennsylvania, if directly confronted with the issue, would hold that the Pennsylvania Human Relations Act and the procedures established therein provide the exclusive state remedy for vindication of the right to be free from discrimination based on age.
Bonham v. Dresser Industries, Inc., 569 F.2d at 195 (footnote omitted).
Bruffett argues that the Bonham court erred in predicting that there would be no independent common law cause of action recognized in Pennsylvania for breach of contract in addition to the statutory remedies provided in the PHRA. In support of this claim, he refers to the subsequent decision in Fye v. Central Transportation, Inc., 487 Pa. 137, 409 A.2d 2 (1979). The action in Fye was filed by an employee who alleged that she had been unlawfully discriminated against on the basis of her sex when her employer refused to re-employ her after pregnancy and related illness. Before she instituted her common law action, she had filed a complaint with the Pennsylvania Human Relations Commission which was terminated at her request. The Supreme Court of Pennsylvania affirmed the dismissal of her common law action, holding that under section 12(b) of the Pennsylvania Human Relations Act, Pa. StatAnn. tit. 43, § 962(b) (Purdon Supp. 1982), the remedies provided by that Act are exclusive for those who invoke it. Having once invoked the PHRA procedures, that exclusivity barred the Fye plaintiff from making any other claim.
Bruffett focuses on the language of the Fye opinion which states that the statute “provided an election for the complaining person to opt for relief under the provisions of PHRA or the right to seek redress by other remedies that might be available.” 487 Pa. at 140-41, 409 A.2d at 4. Bruffett argues that since he, unlike the plaintiff in Fye, did not invoke the procedures of the PHRA, the exclusivity provision of section 12 of that Act is not applicable to him. This is a reasonable construction of the Fye opinion. To the extent there may be language in Bonham to the contrary, it must be considered modified by the subsequent and controlling interpretation by Pennsylvania of its own statute. As the Fye court stated, the option open to aggrieved employees is either to opt for relief under the provisions of the Pennsylvania statute or “to seek redress by other remedies that might be available.” In order to avoid dismissal, therefore, Bruffett must show that there are “other remedies that might be available” to him.
The Fye court did not elucidate what was encompassed by its reference to “other remedies” to which a potential PHRA claimant could resort. However, Fye cited to Daly v. Darby Township School District, 434 Pa. 286, 252 A.2d 638 (1969), where the court held that the exclusivity provision of the PHRA did not bar a plaintiff who had not invoked its procedures from filing an action alleging that a racial classification violated the Pennsylvania Public School Code and plaintiff’s constitutional rights. Thus, where a separate statute provides a remedy for the same claim, the employee is free to select that alternative. Similarly, the PHRA could hardly be considered exclusive of an employee’s right to vindicate a constitutional violation by an independent action. Although not mentioned in Fye, we are confident that a plaintiff could elect to proceed through resort to grievance and arbitration under a collective bargaining agreement. Similarly, we read the Fye language to signify that if the employee were to have a cognizable common law action, s/he would be free to elect to file that action in lieu of invoking the PHRA remedy. Thus, Bruffett must show that Pennsylvania would recognize a common law cause of action for an employee discharged and/or not employed on the basis of a disability or handicap, the reasons alleged in his complaint.
Under the “employment at will” doctrine which prevailed at common law, the employment relationship was terminable at will in the absence of a contract to the contrary. Consequently, even employees who performed faithful service over a long period of time could be terminated for no reason or insufficient reason. Some protection from wrongful discharge has been afforded by the growth of labor unions which negotiated for collective bargaining contracts conditioning dismissal on just cause and establishing a grievance and arbitration procedure. Other avenues of protection for employees now available are provided by federal statutes in which Congress has limited employers’ rights to discharge at will because of certain overriding national policies. Predominant among these are provisions of Title VII prohibiting discharge based on race, color, religion, sex, or national origin as well as in reprisal for the exercise of Title VII rights, 42 U.S.C. §§ 2000e-2, 2000e-3(a) (1976 & Supp. IV 1980), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 623, 631, 633a (1976 & Supp. IV 1980), prohibiting discharge based on age. Other federal statutes limit discharge for discrete reasons, such as for union activity, see National Labor Relations Act §§ 8(a)(1), (3), (4), 29 U.S.C. §§ 158(a)(1), (3), (4) (1976 & Supp. IV 1980), or in reprisal for the employees’ exercise of statutory rights or privileges, see, e.g., Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(c) (1976); Employment Retirement Income Security Act of 1974, 29 U.S.C. §§ 1140, 1141 (1976); Federal Railroad Safety Authorization Act of 1980, 45 U.S.C. § 441(a) (Supp. IV 1980). State statutes also protect the employment relationship under certain circumstances, most notably by prohibiting discharge based on race, color, religion, national origin, or sex. Often the statute protecting employees against discharge for a prohibited reason establishes a procedure which must be followed by the employee seeking to benefit from the remedies provided. The procedure usually entails exhaustion of administrative remedies and a limited period in which the claim or suit must be filed.
Public employees have statutory protection against arbitrary discharge. See 5 U.S.C. § 7513 (Supp. IV 1980) (“an agency may take an action... against an employee only for such cause as will promote the efficiency of the service”); Pa.Stat.Ann. tit. 71, § 741.807 (Purdon Supp.1982) (“No regular employe in the classified service shall be removed except for just cause”). In contrast, employees in the unorganized private sector in the main have no effective protection against unjust dismissal, and their status is a cause for justifiable concern. See, e.g., Summers, Individual Protection Against Unjust Dismissal: Time for a Statute, 62 Va.L.Rev. 481 (1976); Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum.L.Rev. 1404 (1967); Note, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 Harv.L. Rev. 1816 (1980).
Recently some state courts have begun to engraft onto the common law rule exceptions to the employer’s formerly unlimited prerogative to discharge at will. Illustrative of this trend is the decision in Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977), where the Massachusetts Supreme Court implied into the employment at will relationship a requirement of good faith. Pursuant thereto, it affirmed judgment for the employee based on the jury’s finding that his termination after 25 years of employment as a salesman was motivated by the employer’s bad faith desire to avoid payment of certain bonuses to the salesman. As plaintiff concedes, there is no Pennsylvania case adopting the Massachusetts Supreme Court’s approach. He argues, however, that the Pennsylvania Supreme Court decision in Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974), and the district court decision in Wagner v. Sperry Univac, supra, impose limitations upon the employer’s “formerly unfettered right” and that “the trend in Pennsylvania law is to enhance the position of an employee at-will.” Appellant’s Brief at 25-26. As we have previously noted, the decision in Wagner does not support plaintiff’s position. Therefore, we turn to the decision in Geary to determine if in fact it signifies such a trend in Pennsylvania law.
In Geary, an employee of U.S. Steel was allegedly dismissed in retaliation for pointing out to his superiors the inadequate testing of and serious danger created by one of the company’s new products, which his employer subsequently withdrew from the market. The employee alleged his discharge under these circumstances was wrongful, malicious and abusive. The Pennsylvania Supreme Court rejected the claim that the discharge was actionable. It stated, “No court in this Commonwealth has ever recognized a non-statutory cause of action for an employer’s termination of an at-will employment relationship.” Geary, 456 Pa. at 174, 319 A.2d at 175. It continued, “What scant authority there is on the subject points the other way.” Id., 319 A.2d at 175. Bruffett, however, claims that “the Pennsylvania Supreme Court in Geary... has signalled its alteration of the traditional common law at-will rule, and in particular held that the discharge of an employee at-will would not be excused unless there was a legitimate and plausible reason therefor.” Appellant’s Brief at 24. The language in Geary which he believes supports his view is as follows:
It may be granted that there are areas of an employee’s life in which his employer has no legitimate interest. An intrusion into one of these areas by virtue of the employer’s power of discharge might plausibly give rise to a cause of action, particularly where some recognized facet of public policy is threatened. The notion that substantive due process elevates an employer’s privilege of hiring and discharging his employees to an absolute constitutional right has long since been discredited. But this case does not require us to define in comprehensive fashion the perimeters of this privilege, and we decline to do so. We hold only that where the complaint itself discloses a plausible and legitimate reason for terminating an at-will employment relationship and no clear mandate of public policy is violated thereby, an employee at will has no right of action against his employer for wrongful discharge.
456 Pa. at 184-85, 319 A.2d at 180 (footnote omitted).
This language does not support plaintiff’s exaggerated claim that the employer must hereafter offer “a legitimate and plausible reason” for discharge. On the other hand, we believe that the Pennsylvania Supreme Court has signaled its receptivity to the approach taken by other courts that “public policy reasons” might warrant imposing a limitation on the employer’s right to discharge.
Like the Geary court we also decline “to define... the perimeters” of such a public policy exception in Pennsylvania. Before us is only the limited question of whether Pennsylvania would recognize an employee’s common law action for discharge on the basis of handicap or disability which could qualify as an “other remed[y]” as that term was used in Fye. Plaintiff argues that the public policy declared in the PHRA (“It is hereby declared to be the public policy of this Commonwealth to foster the employment of all individuals in accordance with their fullest capacities regardless of... handicap or disability....” Pa.Stat.Ann. tit. 43, § 952(b) (Purdon Supp.1982)) gives rise to a common law action for wrongful discharge.
Because we are sitting in diversity, we are not free to follow our own inclinations as to the manner in which the common law should develop or to decide whether creation of a common law remedy for discrimination on the basis of handicap or disability would be a wise and progressive social policy. We are instead constrained by the requirement that in diversity cases, “a federal court must be sensitive to the doctrinal trends of the state whose law it applies, and the policies which inform the prior adjudications by the state courts.” Becker v. Interstate Properties, 569 F.2d 1203, 1206 (3d Cir.1977) (footnote omitted), cert. denied, 436 U.S. 906, 98 S.Ct. 2237, 56 L.Ed.2d 404 (1978). In Bonham, we predicted that the Pennsylvania courts would not hold that termination of an at-will employee on the basis of age gives rise to an independent common law cause of action for breach of contract additional to the statutory remedies provided by the PHRA. The Bonham court was aware of the public policy exception articulated in Geary and did not read it as applicable when the asserted common law claim was based entirely on the PHRA. As a subsequent panel, we are not free to modify that prediction unless the Pennsylvania Supreme Court’s later Fye decision indicates a common law remedy would be implied. It does not.
Nonetheless, because the Bonham court may have been influenced by its belief that the PHRA remedies were exclusive, we set forth our reasons for reaching the independent conclusion that Pennsylvania would not recognize the common law right of action alleged by Bruffett. In the first place, the holding in Geary itself signals a narrow rather than an expansive interpretation of the public policy exception. See generally Boresen v. Rohm & Haas, Inc., 526 F.Supp. 1230, 1235-37 (E.D. Pa. 1981). Other states have held that retaliatory discharge gives rise to a cause of action by the employee, see Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974); Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981). In contrast, over a strong dissent by one of its members, the Geary court rejected a cause of action by an employee allegedly discharged in retaliation, placing Pennsylvania with those states which have viewed the public policy exception in a more constricted fashion. See e.g., Ivy v. Army Times Publishing Co., 428 A.2d 831 (D.C.1981) (per curiam) (four judges dissenting); Campbell v. Eli Lilly and Co., 413 N.E.2d 1054 (Ind.Ct.App.1980), petition to transfer denied mem., 421 N.E.2d 1099 (Ind.1981) (one judge dissenting); Martin v. Platt, 386 N.E.2d 1026 (Ind.Ct.App.1979); DeMarco v. Publix Super Markets, Inc., 360 So.2d 134 (Fla.Dist.Ct.App.1978), aff’d per curiam, 384 So.2d 1253 (Fla.1980) (two judges dissenting).
Second, the Pennsylvania courts have frequently stated that the procedures legislatively mandated in the PHRA must be strictly followed. See, e.g., Fye, 487 Pa. at 141-42, 409 A.2d at 5. If a common law action for the same claims were recognized, it would give the claimant an opportunity to circumvent the carefully drafted legislative procedures. We recognize that Pennsylvania’s neighbor, New Jersey, has affirmed a common law right of action for wrongful discharge attributable to the employee’s filing of a worker’s compensation claim even though a statutory remedy was provided. See Lally v. Copygraphics, 85 N.J. 668, 428 A.2d 1317 (N.J.1981) (per curiam). But see Green v. Amerada-Hess Corp., 612 F.2d 212 (5th Cir.) (interpreting Mississippi law), cert. denied, 449 U.S. 952, 101 S.Ct. 356, 66 L.Ed.2d 216 (1980). Unlike the New Jersey worker’s compensation situation, the PH
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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songer_treat
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I
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
PUBLIC SERVICE COMMISSION FOR the STATE OF NEW YORK, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. MOBIL OIL CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. GULF OIL CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. SOHIO PETROLEUM COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, The California Company, Intervenor. CONTINENTAL OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, The California Company, Intervenor. BLANCO OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. HUMBLE OIL & REFINING COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Continental Oil Company et al., Intervenors. SHELL OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, The California Company, Intervenor. The SUPERIOR OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, The California Company, Cities Service Oil Company, Intervenors. The CALIFORNIA COMPANY, a Division of Chevron Oil Company, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. TEXACO, INC., Petitioner, v. FEDERAL POWER COMMISSION, Respondent. AMOCO PRODUCTION COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. AMERADA HESS CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. PHILLIPS PETROLEUM COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. HUNT OIL COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent.
Nos. 71-1828, 71-1836, 71-1911, 71-1913, 71-1930, 71-1970, 71-1988 to 71-1991, 71- 2015, 71-2020, 71-2025, 71-2055 and 72-1071.
United States Court of Appeals, District of Columbia Circuit.
May 26, 1972.
Messrs. John R. Rebman, Bartlesville, Okl., Martin N. Erck and Kirby Ellis were on the motion to transfer for Humble Oil & Refining Co. and others.
Messrs. Tom P. Hamill and Robert D. Haworth, Houston, Tex., Carroll L. Gilliam and Philip R. Ehrenkranz, Washington, D. C., were on the opposition to the motion to transfer for Mobil Oil Corp., in No. 71-1836.
Mr. Michael H. Rosenbloom, Washington, D. C., was on the opposition to the motion to transfer for Public Service Comm, for the State of New York, in No. 71-1828.
Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges.
Chief Judge Bazelon did not participate in the consideration or disposition of these cases.
PER CURIAM:
These cases involve review of the Federal Power Commission’s opinion and Order Nos. 595 and 595-A, in its Docket Nos. AR 64-2 et al., E, Texas Gulf Coast Area Rate Proceeding. It is unquestioned that the first petition to review was filed in this court by the Public Service Commission of New York, No. 71-1828, and that this court has jurisdiction.
A motion to transfer the review proceedings to the Fifth Circuit has been filed by Humble Oil & Refining Co., and other producers, who filed petitions to review in that circuit which have been transferred to this court. They have apparently been joined by producers who have not filed a separate petition to review but have filed petitions for leave to intervene.
The theory underlying the motion is that the Commission’s opinions and orders under review in the instant proceedings “are in many material decisional respects related to its findings and conclusions” in other proceedings which either have been reviewed in the Fifth Circuit or are slated for review there, and raise “common questions of law, closely related questions of fact, and attempts to comply with the specific criteria set forth” by the Fifth Circuit in Austral, see note 1.
Movants say, inter alia, that the cases should be transferred to the Fifth Circuit “where the Judges are familiar with the myriad complex issues involved” and add that the members of the panel which decided Austral remain on the court and are presumably available for assignment to this case.
We think denial of the motion is in furtherance of the statutory scheme that appeal responsibility be determined by the filing of the first petition to review. 28 U.S.C. § 2112(a).
That statutory command is subject to certain limited exceptions, none of which is applicable here,—
(1) For a case where the first petition to review is filed by a party who is not substantially aggrieved, in effect undercutting the assumption of a good faith petition to review.
(2) For a case of virtually instantaneous filings in two or more circuits.
(8) For a case where the same or inter-related proceeding was previously under review in a court of appeals, and is now brought for review of an order entered after remand, or in a follow-on phase, where continuance of the same appellate tribunal is necessary “to maintain continuity in the total proceeding.” The need for this doctrine is underscored by the consideration that an appellate court may retain exclusive jurisdiction, by remanding the record rather than the case, and it is inappropriate that jurisdiction for unified review depend on such particularities.
This motion goes beyond these limited exceptions and implicitly invokes a theory of specialization of tribunals. That is not what Congress has provided. The contention based on specialization of particular judges is even more debatable. The Judicial Council for this cir-euit, at least, has adopted a system of selection of judges by lot that eschews any concept of specialized appellate judges, and contemplates broadening of judicial exposure in meeting common problems. It provides for retention of the same panel that handled an earlier appeal in the same case, i. e., a situation like that identified in (3), but not for reference to a panel that handled a different ease on the basis of similarity of underlying questions.
In Municipal Distributors Group, cited supra note 2, ordering transfer to the Fifth Circuit of the petition to review the FPC order in Southern Louisiana II, we noted that the Fifth Circuit had already considered Southern Louisiana I (see note 1). We need not consider whether that was, strictly, a different phase of the same or inter-related proceeding. The pleadings represented to this court that the petition to review had been time-stamped two seconds earlier in the Fifth Circuit. We declined to consider whether the principle of the exception identified in (1) might be applicable, since even if the matter were doubtful, or indeterminable, the Fifth Circuit’s earlier exposure in Southern Louisiana I reenforced review in that circuit of the later proceeding which involved, inter alia, the FPC’s authority to reconsider retrospectively certain determinations made in Southern Louisiana I.
Assignment to the Fifth Circuit may not be predicated on a conception that the case is solely one of local concern. The entire Nation is interested in natural gas rates, though for other purposes it may be convenient to refer to certain states as primarily producing areas, and others as consuming areas. Such issues, of national concern, have arisen — and may arise again — in a number of circuits, including the Third, Fifth, Ninth and Tenth, as well as our own. While uniformity of approach is important, in the last analysis it is provided under our system by the Supreme Court. An additional focus at the intermediate level on an issue of national consequence “is not necessarily an evil but may, on the contrary, serve like a stereopticon to enhance depth perception.
Motion denied,
. See Southern Louisiana Area Rate Proceeding, FPC Docket AR 61-2, reviewed in Southern Louisiana Area Rate Cases, Austral Oil Co. et al. v. FPC, 428 F.2d 407 (5th Cir. 1970), cert. denied sub nom. Municipal Distributor Group v. FPC, 400 U.S. 950, 91 S.Ct. 241, 27 L.Ed. 2d 241 (1970). Southern Louisiana II, FPC, Docket AR 69-1, under review in Placid Oil Co. et al. v. FPC, No. 71-2761, 5th Cir., filed Sept. 9, 1971. Other Southwest Area, FPC opinion and order No. 607 and 607-A, review pending, Shell Oil Co. v. FPC, No. 72-1114, 5th Cir., filed Jan. 17, 1972.
. See Municipal Distributors Group v. FPC, 148 U.S.App.D.C. 343, 459 F.2d 1367 (1972) : “This court has recognized that sound doctrine resists ‘forum shopping’ in a ease of mere technical aggrievement, see [Insurance Workers] International Union et al. v. NLRB, 126 U.S. App.D.C. 11, 373 F.2d 671 (1967).” 459 F.2d at 1369.
In International Union, United Auto etc. Workers v. NLRB [Preston Products Co. Inc.] 126 U.S.App.D.C. 12, 373 F.2d 671 (1967), the court reconsidered an order transferring cases to the Sixth Circuit, noted that the Union had not received all the relief requested at the Board stage, and stated: “We think 28 U.S.C. § 2112(a) requires respect for the forum where the Union fiied its petition for review, since that was the first petition for review filed, and we cannot say either that the Union’s claim is frivolous or that it is not genuinely aggrieved.” It limited transfer for lack of genuine aggrievement to the case where the party filing the first petition “has received substantially all the relief contemplated, * * * the special case where the ‘inconsequential’ character of the deficiency in findings or relief is established by the petitioner’s own stipulation, as in Insurance Workers, supra, or other pleading or representation.” 126 U.S.App.D.C. at 13-14, 373 F.2d at 673.
. Int’l Union of Electrical, R. & M. Workers v. NLRB, 120 U.S.App.D.C. 45, 343 F.2d 327 (1965) (Board unable to determine whether employer filed first petition to review, in the Seventh Circuit where it does business, or Union filed first petition in the District of Columbia Circuit. Board proposed to file petition for enforcement in the Second Circuit, as place where unfair labor practice occurred. Mandamus denied.)
. See Pacific Gas & Elec. Co. v. FPC, 106 U.S.App.D.C. 281, 282, 272 F.2d 510, 511 (1958) ; Eastern Air Lines v. CAB, 122 U.S.App.D.C. 375, 378, 354 F.2d 507, 510 (1965). As to Eastern’s use of “same or interrelated” proceeding, the “interrelated” term refers to an organic relation, in what may fairly be called a single “total proceeding” and not merely similarity of legal issues.
. NLRB v. Wilder Manufacturing Co., 147 U.S.App.D.C. 152, 454 F.2d 995 (1971) ; Greater Boston TV Corp. v. FCC, 118 U.S.App.D.C. 162, 334 F.2d 552 (1964).
. Brotherhood of Railroad Trainmen v. Akron B. & B.R. Co., 128 U.S.App.D.C. 59, 83, n. 53, 385 F.2d 581, 605, n. 53 (1967) cert. denied, 390 U.S. 923, 88 S.Ct. 851, 19 L.Ed.2d 983 (1968).
. Dellinger v. Mitchell, 143 U.S.App.D.C. 60, 66, 442 F.2d 782, 788 (1971).
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_discover
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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 interpretation of rules relating to discovery or other issues related to obtaining evidence favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellee, v. STEARNS COAL AND LUMBER COMPANY, Defendant-Appellant.
No. 86-5560.
United States Court of Appeals, Sixth Circuit.
Argued March 13, 1987.
Decided April 21, 1987.
Rehearing Denied June 2, 1987.
Louis DeFalaise, U.S. Atty., Lexington, Ky., Jane E. Graham (argued), for plaintiffappellee.
Winfrey P. Blackburn, Jr., Bruce F. Clark (argued), Stites and Harbison, Frankfort, Ky., for defendant-appellant.
Before ENGEL, KRUPANSKY and GUY, Circuit Judges.
ENGEL, Circuit Judge.
The issue for decision is whether under Kentucky law Stearns Coal and Lumber Company, under a reservation of mineral rights in a deed of surface land to the United States, may engage in strip mining when the deed reserving its mineral rights is silent on the subject. The district court held that Stearns could not strip mine without first securing permission of the surface owner, the United States. We affirm.
In 1937, Stearns conveyed by deed to the United States the surface rights in 46,842.4 acres in Wayne and McCreary Counties, Kentucky, reserving certain mineral rights. The purchase price was $135,500.84, or $2.85 per acre. The government purchased the land for inclusion in a national forest under the Weeks Act of 1911, 36 Stat. 961, ch. 186, as amended by the Clarke-McNary Act of 1924, 43 Stat. 653, ch. 348. Stearns had not conducted strip mining on this property at that time, nor did it seek to do so until 1954, when it applied to the Secretary of Agriculture under its mineral rights reserved in the deed. When the Secretary denied permission, Steams did not again seek to strip mine until 1976, when it desired to strip mine a 19-acre tract partially within the Daniel Boone National Forest. The Forest Service denied approval on the grounds that (1) Stearns did not have a legal right to strip mine under the mineral reservation contained in the deed; and (2) the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201 et eq., prohibited this activity on national forest land. After receiving a state permit to mine coal, Stearns brought this suit in May 1978 seeking, inter alia, declaratory relief giving it the right to strip mine coal within the national forest under its mineral reservation. Afterwards, in the same year, the United States brought suit against Stearns for declaratory relief to prevent Stearns from strip mining coal under the property despite Stearns’ reservation of mineral rights.
The actions were consolidated, and, by agreement of the parties, the district court limited its decision to the deed construction issue, and did not consider any federal statutory questions. Following a bench trial, the district court, in an opinion published at 595 F.Supp. 808 (E.D.Ky.1984), held that the reservation did not preserve Stearns’ right to strip mine. Its decision rested upon Kentucky case law, and not on KRS 381.940, discussed infra. In the alternative, the court decided that the statute, if applicable, would require the same result. The court stayed entry of judgment, based on pending litigation concerning federal and state law questions. In 1986, the court entered final judgment after determining that there was no longer any reason to continue to stay. This appeal followed.
The parties and the district court agree that the deed is unambiguous and it therefore will be construed according to its terms without reference to any extrinsic evidence of the circumstances surrounding the deed, such as other deeds the government entered into or minutes from meetings of the National Forest Reservation Commission. The parties also agree that the law of Kentucky is controlling. The portions of the deed which form the basis of our decision follow:
RESERVING, however, from the operation of this conveyance, unto the party of the first part [Stearns], its successors or assigns, the unrestricted use and control for all legal purposes until same are abandonded or surrendered by vendor, or its assigns, of approximately forty (40) acres, ... at the mouth of each of the following mines: # 1, # 4, # 11, # 15 and # 16, Cooperative, Fidelity and Grassy Fork. These reserved areas include mine openings, tipples, trucks, bridges, substation and shops.
# * % * * #
There is, also, RESERVED, the right to the use of all existing or necessary rights-of-way over the land conveyed herein for the removal of timber hereinafter reserved, and the right to use existing rights-of-way, and other rights-of-way as approved by the Forest Officer, over the land herein conveyed for the removal of any timber now or hereafter owned by the Stearns Coal and Lumber Company.
# * # * # *
There is, also, RESERVED, all metaliferous minerals, coal, oil, gas and limestone in, upon and under the described tracts of land; PROVIDED, however, that all operations from mining and removing same same (sic) shall be done and carried on in accordance with the following rules and regulations prescribed by the Secretary of Agriculture, viz:
(2) In prospecting for, and in mining and removing minerals, oil, or gas, and in manufacturing the products, thereof, only so much of the surface shall be occupied, used or disturbed as in (sic) reasonable and, according to recognized good practice, necessary for the purpose.
(3) In underground operations all reasonable and usual provisions shall be made for the support of the surface, and to that end the tunnels, shafts, and other workings shall at all reasonable times be open to inspection and examination by the forest officers and mining experts or inspectors of the United States.
(5) The method commonly known as “Hydraulic Mining” is positively prohibited.
(6) Payment at the usual rates charged in the locality for sales of National Forest timber, and timber products of the same kind or species, shall be made to the United States for all timber, undergrowth or young growth, cut, destroyed, or damaged in prospecting, mining, drilling, or removing minerals, oil, or gas, or in manufacturing products therefrom, and in the location and construction of buildings or works of any kind for use in construction therewith____ No timber, undergrowth, or reproduction shall be unnecessarily cut, destroyed, or damaged.
The deed also provides that buildings and other structures and improvements may be built upon the land if a forest officer approves their locations. They must be removed after completion of the mining.
The language of this deed varies from many “broad form deeds” entered into in Kentucky during the early part of this century. In those deeds, under which the mineral owner could mine virtually without limitation, the surface estate has been held subservient to the dominant estate of the mineral holder. Buchanan v. Watson, 290 S.W.2d 40 (Ky.1956). In Buchanan, the Kentucky Court of Appeals held that since the mining company had the right to remove “all the coal” “in ... on, and under” the land, the deed did not preclude the company from engaging in the only feasible process of extracting the coal. Buchanan remains good law as to the interpretation of broad form deeds. Martin v. Kentucky Oak Mining Co., 429 S.W.2d 395, 399 (Ky.1968).
However, while Kentucky courts have sometimes permitted strip mining under deeds that grant overwhelming mining rights but are narrower than broad form deeds, they have not construed Buchanan as controlling for deeds such as the one in question. For a time, the determinative question for deeds similar to the present one was whether the parties contemplated that strip mining would be permitted according to the particular language of the deed. For example, in Croley v. Round Mountain Coal Co., 374 S.W.2d 852 (Ky. 1964), the court allowed the mineral estate owner to strip mine based on a deed containing certain clauses virtually identical to ones present in this deed. The Croley deed reserved all coal, oil, gas, stone, and water, “in, on, or under” the land. The court held that since all coal could not be removed through underground mining, and since the removal of stone normally would require substantial surface destruction, the parties must have intended that the minerals could be removed by any recognized method. Id. at 853. As in Buchanan, the purpose of the conveyance was to allow the mineral estate owner to remove coal from below the surface, and denying that right by foreclosing the only feasible removal process would defeat the purpose of the deed. Id. Stearns relies heavily upon Croley, and were it the final word on the subject, we would agree that Stearns’ reservation of mineral rights would permit it to strip mine these acres without the necessity of securing the approval of the United States. However, we believe that the law of Kentucky on this subject has changed substantially since Croley.
That change is reflected in the case that we consider dispositive, Peabody Coal Co. v. Pasco, 452 F.2d 1126 (6th Cir.1971). In that case, this court had to determine whether strip mining was permissible under two different deeds. The court noted that since Croley, the Kentucky Court of Appeals had decided Martin v. Kentucky Oak Mining Co., 429 S.W.2d 395 (1968), which shifted the analysis from whether the parties contemplated strip mining to whether the “parties to the deed intended that the mineral owner’s right to use the surface in removal of minerals would be superior to any competing right of the surface owner.” 452 F.2d at 1132 (emphasis added). This court found that Martin did not rely either on the deed’s “all coal” language, or “in, on and under” phrasing, contrary to Croley. This court’s holding in the companion case, Peabody Coal Co. v. Erwin, 453 F.2d 398, 399 (6th Cir.1971) (per curiam), which reversed the district court because it “placed undue emphasis on Croley ...” indicates a clear rejection of the same talismanic argument advanced by Stearns in this case. The subsequent decision in Commerce Union Bank v. Kinkade, 540 S.W.2d 861, 864 (Ky.1976) (per curiam), confirms our belief that this court in Pasco and Erwin properly recognized a change in Kentucky law.
“Realizing the potential fact that no two grants of mining rights may be identical, it is necessary that a proper construction of such rights be confined to a deed-to-deed interpretation of clauses in a mineral deed which grant or modify mining rights.” Id. at 863-64. We believe that the clauses in this deed do not indicate that the parties “intended that the mineral owner’s rights to use the surface in removal of the minerals would be superior to any competing right of the surface owner.” Martin, 429 S.W.2d at 397; Pasco, 452 F.2d at 1132. The second regulation contained in the deed demands that the mineral owner only disturb so much of the surface as is reasonable. The third regulation requires that in underground mining operations, Stearns make all reasonable and usual provisions for surface support, and open its tunnels for inspection and examination by forest officers or government inspectors. Finally, the fifth regulation prohibits the employment of hydraulic mining, and the sixth places limitations on the destruction of timber.
We disagree that permitting the company to disturb so much of the surface as is reasonable mandates subordination of the surface estate to the mineral estate. Under the provisions of this deed, strip mining would not be a reasonable use of the surface because the surface restrictions imposed upon Stearns indicate that the parties did not contemplate that Stearns could totally destroy the surface. Since some rights were preserved in the surface owner, it follows a fortiori that Stearns as owner of the mineral estate did not retain rights superior to any conveyed to the United States as surface owner.
Furthermore, although the third regulation refers only to underground mining, the surface owner’s rights to support and inspection would be meaningless if Stearns could destroy the surface. The fifth and sixth regulations prohibiting hydraulic mining and limiting timber destruction also reflect the parties’ intent that the surface not be destroyed. As in Erwin, the deed in the instant case “grants rights impliedly incident to underground mining, but ... does not indicate the intention of the parties that the mineral owner bought the right to destroy the surface, or that it was intended that the mineral owner’s rights to use the surface would be superior to any competing right of the surface owner.” Erwin, 453 F.2d at 399; Commerce Union Bank, 540 S.W.2d at 864. Accordingly, Stearns may not, as the owner of the subservient estate, commence strip mining operations without the permission of the owner of the dominant estate, the United States.
We are aware that Kentucky has enacted a statute, KRS 381.940, which, if constitutional, bears upon the question before us. That statute provides:
In any instrument heretofore or hereafter executed purporting to sever the surface and mineral estates or to grant a mineral estate or to grant a right to extract minerals, which fails to state or describe in express and specific terms the method of coal extraction to be employed, or where said instrument contains language subordinating the surface estate to the mineral estate, it shall be held, in the absence of clear and convincing evidence to the contrary, that the intention of the parties to the instrument was that the coal be extracted only by the method or methods of commercial coal extraction commonly known to be in use in Kentucky in the area affected at the time the instrument was executed, and that the mineral estate be dominant to the surface estate only for the purposes of coal extraction by the method or methods of commercial coal extraction commonly known to be in use in Kentucky in the area affected at the time the instrument was executed.
The constitutionality of this statute has been argued before the Kentucky Supreme Court in Akers v. Baldwin, Docket No. 85-SC-392-CL, but at this time remains undecided. The statute’s constitutionality was challenged on the grounds of due process, equal protection, and the contract clause. The Kentucky Court of Appeals had declared a precursor to KRS 381.940 unconstitutional in Department for Natural Resources and Environmental Protection v. No. 8 Limited of Virginia, 528 S.W.2d 684 (Ky.1975).
If KRS 381.940 is unconstitutional, we adhere to our holding affirming the district court based upon the common law of Kentucky. Judge Siler, however, also recognized that the statute might be applicable and constitutional, and wisely took evidence on the question whether strip mining was commonly known to be used in this area in 1937, when the deed was signed. He found that Stearns sold the surface rights to this land after incurring losses in its timber and underground coal mining operations during the depression. At the time of the conveyance, Stearns’ timbering potential on this land had been virtually exhausted, and the company was ceasing its mining operations at several sites. Although strip mining had been conducted in McCreary County many years before this conveyance, no surface mining operations were active in 1937. In fact, the strip mining methods that had earlier been used in McCreary County were not technologically feasible for use on this land because of its steep slopes and overburden. We accept as not clearly erroneous these factual findings, and hold that in the event KRS 381.940 is constitutional, the judgment of the district court may be affirmed on its alternative statutory ground that strip mining was not known to be commonly in use in this area of Kentucky when the deed was executed.
. Jurisdiction was predicated upon 28 U.S.C. § 1345.
Question: Did the court's interpretation of rules relating to discovery or other issues related to obtaining evidence 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. Edward TERRY, Defendant-Appellant.
No. 89-10121.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 16, 1989.
Decided Aug. 14, 1990.
As Amended Nov. 9, 1990.
Alan P. Caplan, San Francisco, Cal., for defendant-appellant.
Robert M. Twiss, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.
Before SCHROEDER, NELSON and WIGGINS, Circuit Judges.
NELSON, Circuit Judge:
Defendant/Appellant Edward Terry was convicted for being a felon in possession of a firearm. He had been indicted on two drug related counts as well as the firearm count. There was a mistrial on the drug counts.
Terry appeals his conviction on four grounds. He argues that 1) the search of his residence where the gun was discovered was invalid; 2) the drug and firearm counts were misjoined; 3) there was not sufficient evidence to support his conviction; and 4) the trial judge erred by issuing a new instruction which redefined “constructive possession” without first affording counsel an opportunity to evaluate that instruction, formulate objections to it or to suggest a different response.
We find that there was sufficient evidence to convict and that the affidavit underlying the search warrant provided probable cause for the search. However, it was error for the district court to join all three counts and to instruct the jury in the midst of deliberations on a different and incorrect definition of constructive possession. Therefore, we reverse the conviction and remand for retrial.
FACTUAL AND PROCEDURAL BACKGROUND
On June 9, 1989, Terry intended to meet his wife and daughter at her parents’ home in Pittsburg, California. That morning, however, his son David was arrested for possession of methamphetamine. After posting bond for his son, Terry took David to Terry’s home. Shortly thereafter, two or three friends of David’s arrived, stood in the driveway near Terry’s pickup truck whose bed was covered, and spoke with David. Terry and a friend went into the house. After 15-20 minutes Terry came out and drove to Pittsburg.
Approximately 40 miles away from his residence, Terry was stopped by CHP Officer Paul Vacarezza. As he was driving behind Terry’s truck, Vacarezza smelled a strong “chemical type” odor, which he suspected was methamphetamine. After following Terry’s vehicle for awhile Vacarez-za noticed a brownish liquid leaking from the bed of the vehicle. Vacarezza pulled the truck over.
Vacarezza and another officer first searched the cargo area of the truck under the cover. They found a gallon-size plastic milk container in a brown paper bag. Under the driver’s side of the seat the police found plastic baggies containing a white powdery substance and $10,000 in U.S. currency bundled in mixed bills. The white powdery substance tested positive for methamphetamine. The brown liquid tested positive as Phenyl-2-Propanone (P-2P), a precursor chemical for the manufacture of methamphetamine, which is itself a controlled substance under federal law. Terry was arrested and booked.
Eight days after Terry’s arrest, Agent Wertman applied for a warrant to search Terry’s home. Wertman’s accompanying affidavit stated that in his experience methamphetamine traffickers usually keep currency and money derived from drug sales along with paraphernalia and records related to the sale of methamphetamine on their persons, in their residences or in attached structures. On the basis of this affidavit, a search warrant was issued.
Five days later, Agent Wertman and others searched Terry’s home looking for methamphetamine and dangerous drugs, paraphernalia, records, articles of personal property showing the identity of persons in control of the premises, and currency. During the search the agents found nothing listed in the search warrant. However, Officer Stephen Harris found a shotgun on a shelf just inside the closet in the master bedroom.
Terry was subsequently indicted for possession of methamphetamine, distribution and possession of P-2-P with intent to manufacture methamphetamine, and being a felon in possession of a firearm. Because Terry had sustained three previous felony convictions between 1959 and 1973 the government included notice that it would seek sentence enhancement under the Armed Career Criminal Act. Before trial, Terry filed a Motion for Severance of Counts seeking to have the drug offenses tried separately from the firearm offense. The motion was denied.
At trial Agent Wertman and Officer Harris testified as to the actual seizure of the shotgun from the Terrys’ bedroom closet noting that the gun was found on a shelf containing only the shotgun and men’s boots. Wertman testified that the other side of the closet held only women’s clothing. In addition to this testimony, the jury was read a stipulation that defendant had been convicted of a crime for which the maximum punishment included imprisonment in excess of one year and that the seized shotgun had been manufactured outside of the State of California.
One of Terry’s witnesses, Mulcahy, testified that defendant had informed Mulcahy that he was not allowed to possess firearms because he was a felon. Paula Terry, appellant’s wife, testified that the gun was given to her by her cousin for the purposes of protecting her family and that she knew her husband was not allowed to have guns. Paula also testified that she kept the shotgun on the shelf in the only closet which they shared. It was located on this shelf in order to minimize their daughter’s awareness of its presence and her ability to reach it. Paula Terry’s cousin testified that he had given Paula the same shotgun that the government had seized.
At the end of the trial the district court agreed to use the jury instruction that both Terry and the government proposed. When the jury later expressed confusion over the language of the instruction, the judge submitted a new instruction to the jury using language substantially different from that of the first instruction. Defense counsel objected to the second set of jury instructions on constructive possession because its terms had not been defined to the jury and counsel had not been allowed to argue to the jury about how to evaluate the evidence in light of this instruction.
The jury delivered a verdict of “guilty” as to Count Three, the firearms charge, and were 8-4 in favor of acquittal on the drug charges. The Court declared a mistrial as to those counts.
Terry filed a motion opposing the imposition of an enhanced sentence pursuant to 18 U.S.C. § 924(e), which was denied. Terry was sentenced to the mandatory minimum term of imprisonment of 15 years without parole, a fine of $1000 and a 5-year term of supervised release. On March 9,1989 Terry timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1291.
DISCUSSION
I. Probable Cause to Issue Search Warrant
A. Standard of Review
A magistrate’s determination of probable cause to issue a search warrant is accorded great deference and is reversed only if that determination is clearly erroneous. United States v. Espinosa, 827 F.2d 604, 610 (9th Cir.1987), cert. denied 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988). “[T]he traditional standard for review of an issuing magistrate’s probable cause determination has been that so long as the magistrate had a ‘substantial basis for ... concluding]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1982) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)); United States v. Fannin, 817 F.2d 1379, 1381 (9th Cir.1987). “In borderline cases, preference will be accorded to warrants and to the decision of the magistrate issuing it.” United States v. Martinez, 588 F.2d 1227, 1234 (9th Cir.1987).
B. Legality of the Warrant
The warrant in this case was based on the Wertman affidavit. The affidavit contained two bases for probable cause: 1) the results of the search of Terry’s truck; and 2) Agent Wertman’s past experience that methamphetamine drug traffickers keep drugs, paraphernalia, records and money in their homes or adjoining structures.
A magistrate is permitted to draw reasonable inferences about where evidence is likely to be kept based on the nature of the evidence and the type of offense. United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986); United States v. Hendricks, 743 F.2d 653, 655 (9th Cir.1984), cert. denied 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 382 (1985). He “need not determine that the evidence sought is in fact on the premises to be searched ... or that the evidence is more likely than not to be found where the search takes place.... The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit.” United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.) (citations omitted), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985). Moreover, “a magistrate may rely on the conclusions of experienced law enforcement officers regarding where evidence of a crime is likely to be found.” Fannin, 817 F.2d at 1382.
The Ninth Circuit has recognized that “[i]n the case of drug dealers, evidence is likely to be found where the dealers live.” Angulo-Lopez, 791 F.2d at 1399. Under the law of this circuit, then, Agent Wert-man’s first hand knowledge of Terry’s possession of methamphetamine and his experience with other drug dealers provided the magistrate with “a reasonable ground to believe” that contraband might be found in Terry’s residence. United States v. Damitz, 495 F.2d 50, 55 (9th Cir.1974). We find, therefore, that the magistrate had a substantial basis for finding probable cause and issuing the warrant to search Terry’s home.
II. Joinder of the Drug Charges with the Firearm Charge
A. Standard of Review
Misjoinder of charges is a question of law reviewed de novo. United States v. Whitworth, 856 F.2d 1268, 1277 (9th Cir. 1988), cert. denied, — U.S.-, 109 S.Ct. 1541, 103 L.Ed.2d 846 (1989); United States v. Sanchez-Lopez, 879 F.2d 541, 550 (9th Cir.1989).
B. Misjoinder under Rule 8(a)
Before trial, Terry filed a Motion for Relief from Improper Joinder of Counts alleging that the drug charges (counts one and two) had been misjoined with the firearm charge (count three) in violation of Rule 8(a). It was denied. On appeal the government argues that the charges were not misjoined and that Terry waived appellate review by failing to renew the motion to sever at the close of the evidence.
Two offenses may be joined in the indictment under Rule 8(a) “only ‘if the offenses charged ... are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.’ ” United States v. Smith, 795 F.2d 841, 850 (9th Cir.1986) (quoting Fed.R.Crim.P. 8(a)), cert. denied, 481 U.S. 1032, 107 S.Ct. 1964, 95 L.Ed.2d 535 (1987). The term “transaction” is to be interpreted flexibly and “may comprehend a series of related occurrences.” United States v. Kinslow, 860 F.2d 963, 966 (9th Cir.1988), cert. denied, — U.S. -, 110 S.Ct. 96, 107 L.Ed.2d 60 (1989).
Because Rule 8 is concerned with the propriety of joining offenses in the indictment, the validity of the joinder is determined solely by the allegations in the indictment. See Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960); United States v. Lane, 474 U.S. 438, 447, 106 S.Ct. 725, 731, 88 L.Ed.2d 814 (1986); United States v. Kaufman, 858 F.2d 994, 1003 (5th Cir.1988). The indictment in the case at bar clearly fails to allege any commonality between the first two counts and count III. Count I and II describe an event occurring on June 9,1988 in San Joaquin County. Count III describes an event occurring on June 22, 1988 in another city and county. The drug crimes referred to in Counts I and II are wholly different from the possession of a firearm charge in Count III. No effort is made in the indictment even to suggest that the offenses are of the same or similar character or that they are part of the same transaction or parts of a common scheme.
In addition, the evidence necessary to prove Count III did not overlap with the evidence required to prove Counts I and II. Compare Schaffer, 362 U.S. at 514-15, 80 S.Ct. at 947-48 (finding that when the indictment invites joint proof, the prima facie validity of joinder is shown); United States v. Portac Inc., 869 F.2d 1288, 1294 (9th Cir.1989) (“Joinder is proper when the same facts must be adduced to prove each of the joined offenses.”); United States v. Montes-Cardenas, 746 F.2d 771, 776 (11th Cir.1984) (“Two crimes are connected together if the proof of one crime constitutes a substantial portion of the proof of another.”). When, as in this case, joined offenses are not connected and are not provable by the same evidence, joinder is improper. United States v. Barney, 568 F.2d 134, 136 (9th Cir.1978).
A violation of Rule 8 “requires reversal only if the misjoinder results in actual prejudice because it ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986). Terry argues that he was prejudiced because his association with drugs would necessarily be highly inflammatory in the minds of jurors. We agree. A juror would inevitably be more disturbed about the idea of a “drug dealer” with a gun than a citizen who previously had committed some unknown crime. It is highly probable that this inculpatory characterization of Terry as a drug dealer influenced the jury in determining its verdict.
Finally, the government argues that the issue of impermissible joinder has been waived because the defendant’s “Motion for Relief from Improper Joinder of Counts for Trial Under Federal Rule of Criminal Procedure 8(a)” was not renewed at the end of the trial. While it is clear that a Rule 14 motion to sever must be renewed at the close of the evidence or it is waived, United States v. Burgess, 791 F.2d 676, 678 (9th Cir.1986), there is no such requirement for a Rule 8 motion.
The rationale behind the renewal requirement in the Rule 14 context is inapplicable to Rule 8. A Rule 14 motion must be renewed in order to allow the trial court to assess whether the joinder was prejudicial and to prevent a defendant from deliberately failing to make a meritorious motion and waiting to see what verdict the jury returns. United States v. Free, 841 F.2d 321, 324 (9th Cir.), cert. denied, 486 U.S. 1046, 108 S.Ct. 2042, 100 L.Ed.2d 626 (1988).
A Rule 8 motion, in contrast to Rule 14, disputes the propriety of joining charges in the indictment. Rather than being decided at the discretion of the lower court judge it permits joinder only under certain specific circumstances. With Rule 8, unlike Rule 14, it is not necessary for the “trial court to assess whether a joinder is prejudicial at a time when the evidence is fully developed, the parties are best prepared and the witnesses’ recollections freshest” because the issue is whether the indictment was improperly joined. Free, 841 F.2d at 324. Because the propriety of a Rule 8 joinder is determined solely by the initial allegations of the indictment, there is no need to assess what actually happened in the trial. In addition, there is a requirement that in order to preserve the issue for appeal a Rule 8 motion must be made before jury deliberations. See Smith, 795 F.2d at 850. Thus, there is no opportunity for a defendant to “deliberately fail to make a meritorious motion.” Free, 841 F.2d at 324. For the foregoing reasons, it is unnecessary to renew a Rule 8 misjoinder objection to preserve it for appeal.
III. Sufficiency of the Evidence
A. Standard of Review
“In reviewing the sufficiency of the evidence, we determine whether any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. The test is whether the evidence and all reasonable inferences which may be drawn from it, when viewed in the light most favorable to the government, sustain the verdict.” United States v. Soto, 779 F.2d 558, 560 (9th Cir.1986), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 70 (1987).
B. Proof Required for Constructive Possession
To prove constructive possession, the government must prove “a sufficient connection between the defendant and the contraband to support the inference that the defendant exercised dominion and control over the substance.” United States v. Disla, 805 F.2d 1340, 1350 (9th Cir.1986). It is not the same as merely knowing the weapon is nearby. “The circumstances of each case must be examined to determine if there is ‘such a nexus or relationship between the defendant and the goods that it is reasonable to treat the extent of the defendant’s dominion and control as if it were actual possession.’ ” United States v. Cousins, 427 F.2d 382, 384 (9th Cir.1970) (quoting United States v. Casalinuovo, 350 F.2d 207, 209-11 (2nd Cir.1965)).
There are various ways to prove that a defendant has dominion and control. For example, “[i]f the defendant has exclusive control over the premises where contraband is found, then knowledge and control may be inferred.” United States v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir.1985). In the more difficult situation where the premises are shared by more than one person, the Ninth Circuit has found that if a party has knowledge of the weapon and both the power and the intention to exercise dominion and control over it, then he has constructive possession. Cousins, 427 F.2d at 384; see also United States v. Rhodes, 713 F.2d 463, 470 (9th Cir.), cert. denied, 464 U.S. 1012, 104 S.Ct. 535, 78 L.Ed.2d 715 (1983); United States v. Espinosa, 827 F.2d 604, 614 n. 6 (9th Cir.1987), cert. denied, 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988).
Although the issue is close, we find that under the highly deferential standard of review there was sufficient evidence to sustain the verdict. The evidence against Terry centered on the fact that the firearm was found in the closet of his bedroom. Terry and his wife are the owners of the house and sole occupants of the bedroom where the firearm was found. Only Terry’s wife prevented Terry from accessing the gun. Terry was the only person present when the home was searched. The gun was found on the shelf in the closet where both Terry and his wife kept their clothes. The shelf also held men’s boots. Men’s clothing was on the same side of the closet.
Terry provided evidence that the firearm had been given to his wife for her protection and that the only shelves in the closet were on the same side as the men’s clothing. There was no evidence that he had ever touched the gun.
On the basis of this evidence, a rational trier of fact could find that Terry’s knowledge of the gun’s location and his unhindered access to it whenever his wife was not observing gave him constructive possession of the weapon.
IV. Jury Instruction
A. Standard of Review
We review whether a jury instruction was an accurate statement of the law de novo. See United States v. Spillone, 879 F.2d 514 (9th Cir.1989) (“[Wjhether a jury instruction misstated elements of a statutory crime is a question of law and is reviewed de novo.”); United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) (questions of law reviewed de novo), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The de novo standard of review is appropriate, where, as in this case, an objection was raised below to the jury instruction. Where no objection is made below, the appropriate standard of review is plain error. Fed.R.Crim.P. 30; United States v. Kelm, 827 F.2d 1319, 1324 (9th Cir.1987). We “ ‘determine whether, viewing the instructions as a whole, the court gave adequate instruction on each element of the case to ensure that the jury fully understood the issues,’ and to determine ‘whether the instruction is misleading or states the law incorrectly to the prejudice of the objecting party.’ ” Espinosa, 827 F.2d at 614 (quoting Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340 (9th Cir.1986)).
B. Accuracy of the Constructive Possession Instruction
Both the government and Terry agreed to the first instruction given to the jury:
A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or person, is then in constructive possession of it.
In the midst of jury deliberations, the foreman requested clarification of the term “intention at a given time”. The court elected to give a broad “on or about instruction”, a reminder that the instructions should be considered as a whole, and a rereading of the “constructive possession” instruction. The Court then asked the jurors if that answered their question. In response to the Court’s inquiry, the foreman said:
At a given time, whether that did vary. The word ‘intention’ in that, there was no evidence that we could find that showed that an intention existed to use the weapon and therefore, maybe that would reduce the constructive — or eliminate the constructive possession in the mind of this one individual.
The court asked to be brought the Ninth Circuit Pattern Instruction Book. The Court then told the jury:
Let me now say having given that instruction I don’t like it because you focused in on a problem in that instruction and it’s use of the word ‘intention.’ Let me see if I have another instruction here that might help.
The court read to the jury a new definition of constructive possession:
Possession means having physical control of a thing. That control may be direct, as by actually holding the thing or indirect by having the power to control the thing while someone else may actually be holding it. The jury may find possession where one person alone has possession or where that person shares control with other persons.
The Court then told the jury, “See, that doesn’t use that other — the intention aspect of that other instruction.” The jury was then excused and a copy of the new instruction was delivered to the jury room.
The first constructive possession instruction given to the jury was “a correct statement of the law.” Espinosa, 827 F.2d at 614, n. 6. The second instruction, however, would allow a jury to convict without finding all the necessary components of constructive possession. “While the term ‘constructive possession’ is not free from ambiguity”, United States v. Cousins, 427 F.2d 382, 384 (9th Cir.1970), none of this court’s definitions of the term comport with the second instruction submitted to the jury.
Constructive possession “has been generally defined as knowingly having both the power and intention at a given time to exercise dominion or control over the property.” Id.; Rhodes, 713 F.2d at 471. To sustain a conviction on the basis of constructive possession, “the Government was required to prove that [the defendant] had dominion and control of the [contraband] and knowledge of their existence.... ‘Mere proximity to contraband, presence on property where it is found and association with a person or persons having control of it are all insufficient to establish constructive possession.’ ” United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir.1988) (quoting United States v. Rodgriguez, 761 F.2d 1339, 1341 (9th Cir.1985)); United States v. Hernandez, 876 F.2d 774, 778 (9th Cir.), cert. denied, — U.S.-, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989). Other constructive possession definitions are similar. “A person may not be convicted of illegal possession unless he knows contraband is present and is capable of exercising dominion and control over the contraband.” United States v. Penagos, 823 F.2d 346, 350 (9th Cir.1987); Rodriguez, 761 F.2d at 1341; United States v. Behanna, 814 F.2d 1318, 1319 (9th Cir.1987). The government “must produce evidence showing ownership, dominion, or control over the contraband itself or the premises or vehicle in which contraband is concealed.” United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir.1989); Soto, 779 F.2d at 560.
All Ninth Circuit case law requires that the defendant have knowledge of the presence of the contraband as an element of constructive possession. The cases also add some element that distinguishes possession from mere presence or accessibility. It is not enough that a person has the power to control the contraband, in the sense that he simply is in the presence of the contraband and could reach out and take it. Compare United States v. Behanna, 814 F.2d 1318, 1320 (9th Cir.1987) (holding that the government must do more than show that the defendant was present as a passenger in the vehicle and within reach of the weapon.).
The 1985 Ninth Circuit Pattern Instruction given in this case by the lower court judge simply required that a person “hav[e] the power to control the thing”. It would allow a conviction based on mere accessibility without knowledge or actual dominion or control. This error has been corrected in the 1989 Pattern Instructions which provide that “[a] person has possession of something if the person knows of its presence and has physical control of it, or has the power and intention to control it.” Manual of Model Criminal Jury Instructions for the Ninth Circuit § 3.16 (1989).
Although the first instruction was accurate, its combination with the erroneous supplementary instruction misled the jury. After the judge read the second instruction, the jury was given a written copy of it. The judge also emphasized to the jury that “I don’t like” the first instruction. The court was clearly suggesting to the jury that the second instruction, which would allow conviction on a basis not permitted under the law, was the one they were to follow. Thus, we conclude that the constructive possession instruction given to the jury was improper and we reverse the conviction. See United States v. Bagby, 451 F.2d 920, 927 (9th Cir.1971) (“[A] conviction should not rest on ambiguous and equivocal instructions to the jury on a basic issue”).
CONCLUSION
The judgment is REVERSED and the case is REMANDED for retrial.
. At the trial, none of the evidence was applicable to both counts and none of the witnesses testified as to both counts.
. The government argues that the charges can be joined because a gun found at a residence is integrally related to drug trafficking. They cite to numerous cases none of which allowed the joinder of a drug charge with a firearm charge when the gun was not discovered at the same time and place as the drugs. All the cases cited by the government in support either involve firearms found in defendants’ possession at the time of their arrests, see U.S. v. Mason, 658 F.2d 1263 (9th Cir.1981); U.S. v. Moore, 580 F.2d 360 (9th Cir.) cert. denied, 439 U.S. 970, 99 S.Ct. 463, 58 L.Ed.2d 430 (1978), or guns and ammunition found during the same search or arrest which uncovered the drugs. See U.S. v. Montes-Cardenos, 746 F.2d 771 (11th Cir.1984); U.S. v. Weiner, 534 F.2d 15 (2nd Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976); U.S. v. Romero, 692 F.2d 699 (10th Cir.1982); U.S. v. Mareno, 658 F.2d 1120 (6th Cir.1981); U.S. v. Cannon, 472 F.2d 144 (9th Cir.1972). We never have held that, as a matter of law, a gun offense always can be joined with a drug offense.
. The government suggests that the improper joinder was harmless error because the jury’s split verdict indicated that they could separate the issues in their mind. A mixed verdict alone, however, it not dispositive. As five members of a divided en banc panel of the Eighth Circuit said, we cannot say that ‘the spillover effect of the joinder ... did not taint the jury’s deliberation.... [A]bsent the prejudicial joinder the jury might have acquitted on more counts....’ U.S. v. Grey Bear, 863 F.2d 572, 579 (8th Cir.1988) (opinion of group of five judges who found joinder improper. Note that the district court’s order finding joinder proper was affirmed by an equally divided vote of the court sitting en banc).
. The government cites three cases in support of the proposition that a defendant waives appellant review if he fails to renew a Rule 8 motion. Two of the cases, United States v. Free, 841 F.2d 321, 324 (9th Cir.), cert. denied, 486 U.S. 1046, 108 S.Ct. 2042, 100 L.Ed.2d 626 (1988) and United States v. Burgess, 791 F.2d 676 (9th Cir.1986), discuss Rule 14 motions only. In the third, United States v. Loya, 807 F.2d 1483, 1494 (9th Cir.1987), the court required renewal of a pretrial motion that relied on both Rule 14 and Rule 8. The Loya court cited Burgess, 791 F.2d 676, suggesting that it was referring to the requirements of a Rule 14 motion. There was no discussion of the renewal requirements for a Rule 8 motion.
. The government has asserted incorrectly that they need only prove that Terry had the ability to exercise dominion and control. To prove constructive possession the government must produce evidence showing that a defendant did exercise ownership, dominion or control over the contraband itself or the premises or vehicle in which the contraband is concealed. U.S. v. Shirley, 884 F.2d 1130 (9th Cir.1989).
. In addition appellant argues that his sentence was improperly enhanced on the basis of a prior burglary conviction. Because we are reversing the judgment against Terry it is unnecessary for us to reach the question of a proper sentence.
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_r_fiduc
|
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 "fiduciaries". 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.
Robert H. HERNDON, Plaintiff-Appellant, v. The CITY OF MASSILLON et al., Defendants-Appellees.
No. 79-3458.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 19, 1980.
Decided Jan. 26, 1981.
Rehearing Denied Feb. 27, 1981.
Robert H. Herndon, pro se.
Michael F. Vaccaro, Massillon, Ohio, Gene Barnhart, Randolph L. Snow, Black, McCuskey, Sauers & Arbaugh, Dale T. Evans, Asst. Prosecuting Atty., Canton, Ohio, Lawrence J. Whitney, Akron, Ohio, Sanders J. Mestel, Canton, Ohio, for different defendants-appellees.
Before JONES, Circuit Judge, PECK, Senior Circuit Judge, and NIXON , District Judge.
Honorable John T. Nixon, United States District Court for the Middle District of Tennessee, sitting by designation.
PER CURIAM.
Plaintiff Robert H. Herndon brought an action under 42 U.S.C. § 1983, alleging that defendants, acting under color of state law, knowingly submitted false information to the Common Pleas Court of Stark County, Ohio, for the purpose of obtaining a search warrant of Herndon’s place of business. After a verdict was directed in favor of two of the defendants, the case against defendant Bruce A. Wilson was submitted to a jury.
During the course of deliberations, the jury asked the court to repeat its instructions to the jury. The court reporter was apparently unable to reproduce the original instructions, at least at that time. Therefore, with the consent of the parties, or at least without objection of either party, the district judge gave the jury new instructions. Unknown to both the court and the parties, this second set of instructions was not recorded by the court reporter.
Herndon filed a notice of appeal with this Court, but did not avail himself of Fed.R. App.Pro. 10(c), whereby he might have prepared and submitted a statement of the unrecorded proceedings to the district court for settlement and inclusion in the record on appeal. The district court, noting that the plaintiff had failed to act under Rule 10(c), prepared a statement of the charges given to the jury the second time, based on the judge’s recollection. This statement was then certified to this Court.
On appeal, Herndon makes two assignments of error, each directed at the state of the record concerning the second jury instruction. He alleges no specific error in the instructions as they were given to the jury, either initially or upon the jury’s request for a repetition of the instructions. Herndon’s first argument is that his right to appeal is made illusory where there is no record sufficient to permit an examination for error. He concludes that the absence of a record so insulates errors that a new trial is required to insure the proper administration of justice.
In Illinois Central Railroad Co. v. Riley, 392 F.2d 787 (6th Cir. 1968), this Court addressed the question of the proper relief where a trial court’s jury instructions were unrecorded. In that case, plaintiffs failed to submit a statement reconstructing the unrecorded instructions, as they were permitted to do under Fed.R.Civ.Pro. 75(c), the predecessor to Fed.R.App.Pro. 10(c). We affirmed the judgment against those plaintiffs, holding that their failure to avail themselves of the procedure designed to reconstruct unrecorded proceedings left them with no objection based on the missing record. This general proposition has been affirmed by other Circuit Courts. E. g., United States v. Mills, 597 F.2d 693 (9th Cir. 1979); Stout v. Jefferson County Bd. of Educ., 489 F.2d 97 (5th Cir. 1974); Hydramotive Manufacturing Corp. v. SEC, 355 F.2d 179 (10th Cir. 1966); Murphy v. St. Paul Fire & Marine Insurance Co., 314 F.2d 30 (5th Cir.), cert. denied, 375 U.S. 906, 84 S.Ct. 197, 11 L.Ed.2d 146 (1963). The clear lesson of these cases is that a party may not seek a new trial simply because matters occurring in the district court are not reflected in the transcript. Rather, that party must at least attempt to cure the defect by reconstructing the record as provided by Fed.R.App.Pro. 10(c). In certain cases this effort may unavoidably fall short of the precision necessary for a record amenable to review, and a new trial may be necessary. E. g., United States v. Knox, 456 F.2d 1024 (8th Cir. 1972). However, a new trial is not appropriate where the lack of a record is the only error charged and where the appellant made no effort to reconstruct the missing record nor to give any cause for that failing. Accordingly, Herndon’s first assignment of error must fail.
Herndon’s second argument is that it was error for the district court to certify its version of the unrecorded proceedings to this Court. Herndon argues that this version of the instructions serves only to further prejudice his rights on appeal by substituting a carefully considered set of instructions, created expressly for review on appeal, for the instructions as they were actually given.
Whether the district judge’s recollection of the unrecorded jury instructions could be properly considered on appeal in the absence of any Rule 10(c) statement of proceedings by Herndon is an issue that we need not reach. That question has no relevance to our conclusion that the fact that the jury instructions were not recorded does not in and of itself constitute reversible error. Furthermore, Herndon has not alleged any error, or indeed insufficiency of any kind, in the instructions given to the jury. Therefore, we have no occasion to consider the trial judge’s reconstruction of the second jury instruction.
For the reasons set forth above, the judgment of the district court is affirmed.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
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.
BLAIR, Commissioner of Internal Revenue, v. CURRAN.
Circuit Court of Appeals, First Circuit.
February 4, 1928.
No. 2172.
1. internal revenue t§^>25 — Decision of Board of Tax Appeals on evidence introduced and arguments presented before enactment of 1926 Revenue Act held not reviewable; “hearing” (Revenue Act 1924, § 274 [a], being'26 USCA § 1048; Revenue Act 1926, § 283 [j], being 26 USCA § 1064 [j]).
After imposition, of income or profits tax under Revenue Act 1924, taxpayer appealed under section 274 (a) of that act (26 USCA § 1048; Comp. St. 6336%zz [1]) to Board of Tax Appeals. Before decision, Revenue Act 1926 was enacted, section 283 (j) of which (26 USCA § 1064 [j]) provides that, in cases within subdivision (b), where hearing has been had before board before enactment of the act, and decision is rendered thereafter, such decision shall be final. The ease was conceded to he within subdivision (b). Held, that the taxpayer having presented evidence and made oral argument, had had a “hearing” within the meaning of the act, and the Circuit Court of Appeals was without jurisdiction to review the decision of the board, notwithstanding briefs were not filed until after hearing was concluded.
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Hearing-]
2. Internal revenue (©=>25 — Review of decision of Board of Tax Appeals is limifed to questions of law (Revenue Act 1924, §§ 274 [bj, 900 [g], being 26 USCA §§ 1049, 1218; Act 1924, § 907 [a] as added by Act 1926, § 1000, being 26 USCA § 1219 [a]; Revenue Act 1926, §§ 283 [j], 284 [d], 1001 [b], and 1003, being 26 USCA §§ 1064 [j], 1065 [d], 1224 [b], 1226).
Revenue Act of 1926, giving Circuit Court of Appeals exclusive jurisdiction to review decisions of Board of Tax Appeals, under sections 283 (5), 284 (d), 1001 (b), 1003 (26 USCA §§ 1064 [j], 1065 [d], 1224 [b], 1226), and section 907 (a) of Act 1924 as added by section 1000 of Act 1926 (26 USCA § 1219 [a]), and taking away right to trial de novo given under Revenue Act 1924, | 274 (b), being 26 USCA § 1049 (Comp. St. § 6336%zz[l]), and 900 (g), being 26 USCA § 1218 (Comp. St. § 6371%b [g]), limits right of review of board’s decision to questions of law only.
Appeal from the Board of Tax Appeals.
David H. Blair, Commissioner of Internal Revenue, assessed an additional tax as an income or profits tax against Maurice J. Cur-ran, from which Curran, as taxpayer, appealed to the United States Board of Tax Appeals. A decision of the Board of Tax Appeals adverse to the Commissioner was entered, and he petitions to review.
Proceedings dismissed for want of jurisdiction..
Thomas P. Dudley, Jr., of Washington, D. C. (Mabel Walker Willebrandt, Asst. Atty. Gen., and C. M. Charest, General Counsel Bureau of Internal Revenue, of Washington, D. C., on the brief), for petitioner.
George E. Cleary, of New York City (Root, Clark, Buckner, Howland & Ballantine, of New York City, on the brief), for Curran.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
BINGHAM, Circuit Judge.
The Commissioner of Internal Revenue on October 22, 1924, assessed an additional tax for1 the calendar year 1917, in the sum of $152,261.48, as an income or profits tax, against Maurice J. Curran, under the provisions of section 274 of the Revenue Act of 1924 (26 USCA §•§ 1048-1054; Comp. St. § 6336%zz [1], pars, [a] to [g]). November 24,1924, Cur-ran appealed to the United States Board of Tax Appeals. Thereafter on the 16th day of February, 1926, the ease came on for hearing before the Board of Tax Appeals, the parties being represented by counsel. At this time the evidence in the case, all of which related to the merits of the controversy, was introduced and such arguments were made as counsel saw fit. The hearing was then closed, permission being given to the respective parties to submit written briefs by March 15, 1926, which was done. On October 26, 1926, the Board made findings of fact and rendered an opinion, in which it held that none of the profits involved were taxable at the rates prescribed for the year 1917, and on February 5, 1927, it entered an order or decision that Curran’s deficiency tax for 1917 was $135,001.16. It is this order or decision that the Commissioner seeks to have reviewed by this writ of error.
The errors assigned go to the merits of the controversy, the Commissioner’s contention being that the distribution of earnings or profits, declared by the directors of the Gillette Safety Razor Company December 12, 1916, and paid to Curran January 15, 1917, were distributions of earnings or profits of that company for the year 1917, and not for the year 1916, as decided by the Board, and were subject to the rates prescribed for the year 1917. We are met, however’, at the outset, with the objection that this court is without jurisdiction over the ease. Our jurisdiction is challenged on the ground that when the provisions of section 283 (j) of the Revenue Act of February 26, 1926 (44 Stat. 65 [26 USCA § 1064 (j)]), are properly construed and applied to the facts in this case, no right of review exists.
Section 1001 (a) of the Revenue Act of 1926 (26 USCA § 1224 [a]) provides:
“See. 1001 (a). The decision of the Board rendered after the enactment of this act (except as provided in subdivision (j) of section 283 * * *) ■ may be reviewed by a Circuit Court of Appeals, or the Court of Appeals of the District of Columbia, as hereinafter provided, if a petition for such review is filed by either the Commissioner or the taxpayer within six months after the decision is rendered.”
Section 283 (j) reads as follows:
“In eases within the scope of subdivision (b) * * * of this section where any hearing before the Board has been held before the enactment of this act and the decision is rendered after the enactment of this act, such decision shall, for the purposes of this title, be considered to have become final upon the date when it is rendered and neither party shall have any right to petition for a review of the decision. The Commissioner may, within one year from the time the decision is rendered, begin a proceeding in court for the collection of any part of the amount disallowed by the Board, unless the statutory period of limitations properly applicable thereto has expired before the appeal was taken to the Board. * * ~ In any such proceeding by the Commisisoner or in any suit by the taxpayer for a refund, the findings of the Board shall be prima facie evidence of the facts therein stated.”
It is conceded that the present case falls within the scope of subdivision (b) of section 283 (26 USCA § 1064 [d]), to wit: That before the enactment of the Act of 1926, Curran "appealed to the Board of Tax Appeals under subdivision (a) of section 274 of the Revenue Act of 1924 and that his appeal was pending before the Board at the time of the enactment of the Act of 1926. The question, therefore, is whether the decision of the Board of Tax Appeals was final and non-reviewable, and left the Commissioner to bring a suit and be heard de novo as to his right to recover any part of the amount disallowed by the Board, subject to the findings of the Board being used against him as prima facie evidence of the facts so found; or is open to review before this court because, before the passage of the Revenue Act of 1926, the hearing contemplated by section 283 (j) had not been had before the Board of Tax Appeals.
Our attention has been called to the case of Chicago Ry. Equipment Co. v. Blair (C. C. A.) 20 F.(2d) 10, in which the construction and application of section 283 (j) was under consideration. It appeared in that case that evidence had been taken before the Board on February 2 and 3, 1926, and 45 days given in which to file briefs and submit proposed findings of fact; and that this was done in March and within the time limited. It does not appear that all the evidence had been submitted, oral arguments made, and the hearing closed on February 3d as in this case, with permission to file briefs thereafter, if the parties saw fit. For all that appears the ease may have been left open and not intended to be closed until the expiration of the 45 days within which the briefs and proposed findings were to be submitted. It was there conceded that the word “hearing” as used in the statute was not meant to embrace the whole proceeding including the “decision,” for the language of the act clearly indicated that the “decision” was no part of the “hearing.” It was held, however, that unless it appeared that “the whole proceeding was concluded before the passage of the act [February 26, 1926], so that it only remained to make the decision,” a review in the Court of Appeals could be had. The court took jurisdiction of the ease and thereby, inferentially held that, on the facts before it, the hearing had not been concluded before the passage of the act, even if a “decision” is not a constituent part of the hearing. With the facts in that case and the deduction from them we are not concerned. It seems to us that on the facts in the instant case the proceeding was concluded on the afternoon of February 16, 1926, when the record states the hearing was closed. At that time all the evidence had been introduced, oral arguments made and the ease submitted, with permission, if the parties saw fit, to thereafter file written briefs.
In its technical legal sense the word hearing includes the introduction of evidence, the arguments of counsel and the decree of the court (Joseph Dry Goods Co. v. Hecht [C. C. A.] 120 F. 760; 2 Bouv. Law Dictionary, 1429; 10 Enc. pp. 1, 8), but it must be conceded that the word was not used in that sense in section 283 (j) for there it manifestly does not include the “decision” of the case. As commonly accepted it is understood to mean a proceeding before a tribunal where evidence is presented and oral arguments made, presenting the respective contentions of the parties. We think that this is its meaning here and the one Congress had in mind in enacting the section. Light is thrown on this question by considering the situation presented to Congress at the time of the passage of the Aet of 1926. The Board of Tax Appeals then existed. It was created by the Aet of 1924 to decide tax appeals. Revenue Aet 1924, § 900 (a), being 26 USCA § 1211; Comp. St. § 6371%b (a). It was authorized to establish its own rules of evidence and procedure. Revenue Act 1924, § 900 (h), being 26 USCA § 1219; Comp. St. § 6371%b (h). Consequently it was not restricted by legal rules of evidence, but could receive such evidence as seemed to it worthy of credit, though not measuring up to the-legal standard. No appeal from or right of review of the Board’s decision was provided. The parties, therefore, did not contemplate an appeal, and there was no occasion for their saving their rights by way of exceptions to evidence and requests for findings and rulings, to be preserved in a record on appeal. Tbe bearing before the Board was at that time little more than a preliminary skirmish, a run for luck. For either party, if dissatisfied with the decision, could bring a court action and try tbe matter de novo (Revenue Aet 1924, §§ 274 (b), 900 (g), being 26 USCA § 1218; Comp. St. § 6371%b (g), tbe Board’s findings of fact being prima facie evidence against the losing party. Section 900 (9). A trial de novo is what Congress saved to the parties by section 283 (j) of the Aet of 1926, where a tax controversy had arisen under the Aet of 1924, and a hearing before the Board, under the provisions of that aet, had been held before tbe passage of tbe Act of 1926, and the decision of tbe Board was rendered after its passage.
Tbe Revenue Act of 1926 radically changed the situation from what it had previously been. By it the Circuit Courts of Appeals were given exclusive jurisdiction to review the decision of the Board (section 1003 [26 USCA § 1226]), except as to the class of cases provided for in section 283 (j). In furtherance of this the Circuit Courts of Appeals were authorized to adopt rules for the preparation of the record for review (section 1001 [b]); the hearings before the Board were to be stenographieally reported; and defined rules .of evidence were prescribed. 44 Stat. p. 107, § 907 (a), of Act 1924, as added by section 1000 (26 USCA § 1219 [a]). It took away the right of a party aggrieved by a decision of the Board to bring a court action and have a trial de novo on issues of fact and law (section 284 [d], being 26 USCA § 1065 [d]), and limited his right.to a review of the Board’s decision in the Circuit Courts of Appeals on questions of law only. Avery v. Commissioner of Internal Revenue (C. C. A.) 22 F.(2d) 6; Brown v. Commissioner of Internal Revenue, 22 F.(2d) 797 (C. C. A., 5th Circ., Dec. 2, 1927); section 1003 [b].
It is beyond question that Congress had in mind the situation which this change would produce, and recognized the injustice of substituting an appeal on questions of law only, for a new trial on questions of fact and law, in any ease where the parties had already presented their proofs before tbe Board, relying upon their right, if aggrieved by the decision, to bring a court action and more thoroughly present their case; and recognized that the parties, in eases already tried before the Board under the old act, had no occasion to request rulings and take exceptions to their refusal and to the admission or rejection of evidence, which they would have done had they then been aware of the right of appeal provided by the new aet and the deprivation of their right to a new trial. To hold that no hearing was held before February 26, 1926, where briefs were filed subsequent to that date, would defeat the intention of Congress in enacting section 283 (j). The mere filing of briefs after that date did not alter tbe state of the record. Whether briefs were filed before or after February 26, 1926, the mischief which Congress was providing against in section 283 (j) existed.
The proceeding is dismissed for want of jurisdiction.
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_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.
Russell MEANS et al., Appellants., v. Dick WILSON et al., Appellees.
No. 74-1841.
United States Court of Appeals, Eighth Circuit.
Submitted May 12, 1975.
Decided Aug. 5, 1975.
Steven J. Trecker, Sausalito, Cal., for appellants.
Dennis H. Hill, Rapid City, for appellee.
Before LAY, ROSS and WEBSTER, Circuit Judges.
ROSS, Circuit Judge.
This is an appeal from the dismissal of a complaint which grew out of an Indian election dispute in the District of South Dakota. The facts are set out fully in the district court opinion. Means v. Wilson, 383 F.Supp. 378 (D.S.D.1974). Appellants, who were plaintiffs below, are Russell Means, an unsuccessful candidate for president of the Oglala Sioux Tribal Council in the February, 1974 election, and a group of his political supporters. They are all enrolled members of the Oglala Sioux Tribe residing on the Pine Ridge Indian Reservation in South Dakota. The appellees are Richard “Dick” Wilson, who was elected president of the Council in the aforementioned election, a number of tribe members who supported him, the Tribal Council and certain members thereof and the Tribal Election Board. Some of the appellants are sued individually and in their capacities as officials of the Tribe. They are also enrolled Oglala Sioux, residents of Pine Ridge Reservation.
The action was brought under 28 U.S.C. § 1343, the Indian Civil Rights Act (25 U.S.C. §§ 1301-1303) and 42 U.S.C. §§ 1985(3), 1986 and 1988. The district court found that there was no jurisdiction given by either 42 U.S.C. § 1985 or 25 U.S.C. § 1302, but rested its decision on the section 1302 claim on the determination that no claim was alleged under that section. We agree with the court below except in certain respects mentioned herein, and affirm in part and reverse in part.
I. Exhaustion of Tribal Remedies.
Although the trial court did not rely on its conclusion that the Means supporters failed to exhaust tribal remedies in dismissing their complaint, it found that there was such a failure and that this also would have barred plaintiffs from maintaining an action under 25 U.S.C. § 1302 for lack of jurisdiction. We express no view of whether exhaustion of tribal remedies is a prerequisite to federal relief under the Indian Civil Rights Act or 42 U.S.C. § 1985(3) in this particular case, because we find that the plaintiffs made every reasonable attempt to exhaust their tribal remedies.
Plaintiffs originally filed suit on February 11, 1974. On February 19, 1974, plaintiffs moved for a continuance in order to allow them to pursue a formal election contest filed on February 15 in accordance with Tribal Ordinance 85G. Section 12 of the ordinance provides that election contests shall be filed with the election board within three days of certification of the election. The election was certified on February 13, 1974, and one of the plaintiffs, on behalf of Means and all other tribe members, filed a formal contest with a member of the election board at 8:00 p. m. on February 15. The election board is required to act on the contest and make recommendations thereon to the Tribal Council within five days after the contest is filed. Apparently the board denied relief oh February 20, 1974. Within five days after the election board has made its determination, Ordinance 85G requires the Tribal Council to render a decision on the contest. The ordinance provides that: “The decision of the Council on a contest shall 'be final.” However, the Council did not issue a decision on the plaintiffs’ election contest within five days and has still not .ruled on the contest. Plaintiffs waited for a final decision on the contest until March 29, 1974, before filing their amended complaint, over a month after the Tribal Council, headed by defendant Wilson, had failed to meet the five day deadline imposed by Tribal Ordinance 85G. We find that plaintiffs have done all they could to exhaust tribal remedies in this case, but their tribal right to appeal the election has been frustrated by inaction of the Tribal Council. “The plaintiffs sought relief [through tribal channels] and were denied an effective timely remedy.” Brown v. United States, 486 F.2d 658, 661 (8th Cir. 1973).
II. 42 U.S.C. § 1985(3)
In considering the Means faction’s section 1985(3) claim, the district-court first held that that section did not affect the Oglala Sioux Tribe’s historic immunity from suit. With this we agree. Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529, 531-532 (8th Cir. 1967); Native American Church v. Navajo Tribal Council, 272 F.2d 131, 134-135 (10th Cir. 1959). But the district court erred in concluding that this same reasoning applied to suits against individual Indians. Tribal immunity is based on the sovereignty of the tribe, Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559, 8 L.Ed. 483 (1832), and does not protect a tribal subject from suit. Seneca Constitutional Rights Organization v. George, 348 F.Supp. 48, 49 (W.D.N.Y.1972). Therefore we must look further than the tribal immunity doctrine to determine whether there is jurisdiction over individual defendants under 42 U.S.C. § 1985(3) and 28 U.S.C. § 1343(4).
■ In Griffin v. Breckenridge, 403 U.S. 88, 101-102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), the Court held that 42 U.S.C. § 1985(3) provided a cause of action against private conspiracies, i. e. those not involving state action, to deprive citizens of equal protection of the law or of equal privileges and immunities. In each section 1985 case it must be determined whether there is a constitutional source of congressional power to reach the private conspiracy alleged in the complaint. Griffin v. Breckenridge, supra, 403 U.S. at 104, 91 S.Ct. 1790; Action v. Gannon, 450 F.2d 1227, 1233 (8th Cir. 1971). In Griffin the Supreme Court identified two such sources of congressional power; the thirteenth amendment and the right of interstate travel. Supra, 403 U.S. at 105-106, 91 S.Ct. 1790. This latter right was characterized as one of the rights of national citizenship which Congress has the power to protect by appropriate legislation. Supra, 403 U.S. at 106, 91 S.Ct. 1790. In this context several cases were cited as exemplary of other “rights of national citizenship;” among them were United States v. Classic, 313 U.S. 299, 314-315, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941) and Ex Parte Yarbrough, 110 U.S. 651, 658-662, 4 S.Ct. 152, 28 L.Ed. 274 (1884). ..Classic and Yarbrough were both prosecutions under criminal statutes analogous to 42 U.S.C. § 1985(3), based on alleged interference with voting rights in national elections. It is thus apparent that the right to vote in federal elections is a right of national citizenship protected from conspiratorial interference by 42 U.S.C. § 1985(3). Griffin v. Breckenridge, supra, 403 U.S. at 106, 91 S.Ct. 1790. The Sixth Circuit has held, and we agree, that the right to cast a ballot in a state election is also protected from interference from private conspiracies by the federal Constitution. Cameron v. Brock, 473 F.2d 608, 610 (6th Cir. 1973); see also Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Smith v. Cherry, 489 F.2d 1098, 1100-1101 (7th Cir. 1973).
The right to vote is fundamental to representative government. As a right of national citizenship, it is a source of constitutional power, and Congress has the power to guarantee that right by statute. Griffin v. Breckenridge, supra, 403 U.S. at 106, 91 S.Ct. 1790. We have previously held that Congress has guaranteed the right to vote in tribal elections against interference from Indian tribes by enactment of the Indian Civil Rights Act, 25 U.S.C. § 1301 et seq. Brown v. United States, 486 F.2d 658, 661 (8th Cir. 1973); Daly v. United States, 483 F.2d 700, 704-705 (8th Cir. 1973); White Eagle v. One Feather, 478 F.2d 1311, 1314 (8th Cir. 1973). These cases established that where Indian tribes have adopted Anglo-Saxon democratic processes for selection of tribal representatives, equal protection concepts applicable to the tribes by virtue of the Indian Civil Rights Act required adherence to the one man one vote principle as a necessary concomitant of the election process. White Eagle v. One Feather, supra, 478 F.2d at 1314. Today we hold that 42 U.S.C. § 1985(3) protects the right to vote in tribal elections against interference from private conspiracies as well.
Under the Indian Commerce Clause Congress has plenary authority over Indians. Worcester v. Georgia, supra, 31 U.S. (6 Pet.) at 559. Although the clause speaks of “Indian Tribes” the authority to legislate concerning individual Indians is necessarily included within the sweeping grant of congressional power. United States Department of the Interior, Federal Indian Law 22, n. 6 (1958) (hereinafter, Federal Indian Law). In 1924, Congress granted citizenship to all American Indians who had not previously enjoyed that status, including many Oglala Sioux. Act of June 2, 1924, ch. 233, 43 Stat. 253; Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89, 97 (8th Cir. 1956). At that time certainly, if not before, Indians became endowed with the fundamental rights of national citizenship, including the right to vote. Federal Indian Law, 530.
The Pine Ridge Reservation, the tribal constitution which sets forth election procedures and the organization of the Oglala Sioux Tribe all exist pursuant to federal law, Act of Mar. 2, 1889; ch. 405, § 1, 25 Stat. 888; 25 U.S.C. §§ 476, 477; see Iron Crow v. Ogallala Sioux Tribe, 129 F.Supp. 15, 18-20 (D.S.D.1955), aff’d, 231 F.2d 89 (8th Cir. 1956). The Oglala Sioux have established their system of representative government under the authority of these statutes, which in turn were enacted by Congress under the authority contained in the Indian Commerce Clause. In this way Congress has encouraged the development of democratic processes for the self-government of the Oglala Sioux, and extended to them the benefits of national citizenship. Since the right to vote in a system of representative government is one of the essential trappings of citizenship protected by the Constitution, we hold that Congress has necessarily granted it to the plaintiffs, and in a proper case, interference with the right to vote in a tribal election may be vindicated under 42 U.S.C. § 1985(3) as a deprivation of equal protection of the laws or equal privileges and immunities under the law.
The plaintiffs in this case have thus alleged facts to bring this case and some of the defendants within the jurisdiction of the federal courts. The complaint states that defendants conspired and did overt acts in furtherance of a conspiracy to deprive the plaintiffs of their right to vote because they were supporters of plaintiff Means and members of the American Indian Movement. In Griffin the court emphasized that in order to show a deprivation of equal protection or equal privileges and immunities which may be redressed under 42 U.S.C. § 1985(3), it must be shown that the conspirators were motivated by an invidiously discriminatory animus toward a racial group or perhaps another type of class. Supra, 403 U.S. at 102, 91 S.Ct. 1790. In interpreting this class-based discrimination test the Fifth Circuit has said:
There need not necessarily be an organizational structure of adherents, but there must exist an identifiable body with which the particular plaintiff associated himself by some affirmative act. It need not be an oath of fealty; it need not be an initiation rite; but at least it must have an intellectual nexus which has somehow been communicated to, among and by the members of the group.
Westberry v. Gilman Paper Co., 507 F.2d 206, 215 (5th Cir. 1975). This opinion was later withdrawn by the Fifth Circuit sitting en banc and the cause remanded with directions to dismiss it as moot, “so that it will spawn no legal precedents.” Supra, 507 F.2d at 216. However, in our' opinion, the reasoning above quoted was and is valid in the light of Griffin. The group of plaintiffs in this case, by their affirmative acts of supporting plaintiff Means and the American Indian Movement and attempting to oust Wilson as their Council President, were a class against whom, according to the allegations of their complaint, the defendants discriminated because of their class membership This brings their complaint within the ambit of 42 U.S.C. § 1985(3). Cameron v. Brock, 473 F.2d 608, 610 (6th Cir. 1973). We must now examine the complaint more closely to determine whether it states a claim under the statute as to any of the named defendants.
Under Fed.R.Civ.P. 8, technical niceties of pleading are not required. Rather, a short and plain summary of the facts sufficient to give fair notice of the claim asserted is sufficient. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Many of the plaintiffs’ allegations fail to meet this test. At a minimum, the complaint must state some way in which the named defendants participated in the alleged conspiracy to take away the election rights of the plaintiffs. Smallwood v. United States, 358 F.Supp. 398, 408 (E.D.Mo.), aff’d mem., 486 F.2d 1407 (8th Cir. 1973); see Ellingburg v. King, 490 F.2d 1270, 1271 (8th Cir. 1974). In addition a complaint under 42 U.S.C. § 1985(3) must allege facts to show that intentional or invidious discrimination was the object of the conspiracy. Griffin v. Breckenridge, supra, 403 U.S. at 102-103, 91 S.Ct. 1790; Snowden v. Hughes, 321 U.S. 1, 7, 10, 64 S.Ct. 397, 88 L.Ed. 497 (1944).
Most of the allegations against defendants as individuals either fail to identify any of the named defendants as a conspirator or fail to allege the required animus. The only possible adequate allegation of a conspiracy under 42 U.S.C. § 1985(3) which appears in the complaint is that defendant Wilson conspired with private individuals to insure his reelection by illegal means, and in furtherance of this conspiracy a private, unauthorized police force known as the “Goon Squad”, was maintained by Wilson which harassed and threatened those who opposed the Wilson administration. Defendant Glenn Three Stars is identified as leader of the force and another defendant, Bennie “Tote” Richards, is alleged to be a member. As to these two defendants and defendant Richard “Dick” Wilson we hold that the complaint very inartfully states a claim under 42 U.S.C. § 1985(3).
III. The Indian Civil Rights Act.
We agree with the district court’s conclusion that 25 U.S.C. § 1302 provides rights only against the tribe and governmental subdivisions thereof, and not against tribe members acting in their individual capacities. Spotted Eagle v. Blackfeet Tribe, 301 F.Supp. 85, 89-90 (D.Mont.1969). The statute provides that: “No Indian tribe in exercising powers of self-government shall .” engage in the prohibited conduct. 25 U.S.C. § 1302. “Indian tribe” and “powers of self-government” are defined in 25 U.S.C. § 1301(1) and (2). When sections 1301 and 1302 are read together it is plain that only actions of the tribe and tribal bodies are constrained.
To some extent then, the historic immunity from suit has been abrogated by the Indian Civil Rights Act. Daly v. United States, 483 F.2d 700, 705 (8th Cir. 1973); Luxon v. Rosebud Sioux Tribe, 455 F.2d 698, 700 (8th Cir. 1972). Therefore, even though tribal immunity prevents suit against the tribe or its governmental arms under 42 U.S.C. § 1985(3), the Means supporters can still sue these bodies under 25 U.S.C. § 1302.
Subsection 8 of 25 U.S.C. § 1302 is modeled closely after the equal protection clause of the federal Constitution. Federal courts have refused to decide election contests based on equal protection arguments in the absence of allegations of intentional deprivation of the right to vote. See Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Smith v. Cherry, 489 F.2d 1098, 1102-1103 (7th Cir. 1974); Cameron v. Brock, 473 F.2d 608, 610 (6th Cir. 1973). Thus, in Pettengill v. Putnam County R-1 School District, 472 F.2d 121, 122 (8th Cir. 1973) we refused to decide a school bond election contest based on a contention that administrative errors had diluted plaintiffs’ votes.
The district court correctly concluded that the standard for setting aside a tribal election must be at least as restrictive as that applied in non-Indian local election cases under the Constitution. We agree that there are no allegations of fact in the complaint to show that the Oglala Sioux Tribe or the Tribal Council has intentionally deprived Means supporters of equal protection of the law, nor that they have attempted to do so.
We note, however, that a claim of intentional interference with plaintiffs’ voting rights is stated against the Tribal Election Board. Numerous election errors and irregularities allegedly affected the result of the election. In addition, the complaint states: “The three-person Election Board failed to provide proper instructions to election judges and clerks in a deliberate attempt to confuse the situation to insure the success of the illegal practices.” This is alleged to be part of a conspiracy between Wilson and “other tribal officers” to insure Wilson’s election. Although it seems to us that such an allegation would be difficult to prove, it would be sufficient to state a claim for denial of equal protection if this were alleged against a local government in a non-Indian case.
Additional considerations of the desirability of preservation of unique tribal cultures and continued vitality of tribal governments underlie the Indian Civil Rights Act, however, and these considerations counsel great caution in applying traditional constitutional principles to Indian tribal governments. O’Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140, 1144 (8th Cir. 1973); Note, The Indian Bill of Rights and the Constitutional Status of Tribal Governments, 82 Harv.L.Rev. 1343, 1368 (1969). In this case, the alleged interference with plaintiffs’ voting rights is not founded in tribal custom or governmental purpose which would justify modification of traditional equal protection concepts. Rather, the complaint alleges an intentional interference by the Election Board with tribal members’ rights to participate in their government, which are granted them by the Oglala Sioux Constitution. We believe this alleged violation falls witoin the protection of 25 U.S.C. § 1302(8)/Wd the Election Board is an “Indian tribe” exercising powers of self-government as defined by 25 U.S.C. § 1301(1) and (2). Therefore it was error to dismiss the complaint against the defendant, the Oglala Sioux Tribal Election Board.
The order of the district court is reversed with respect to dismissal of the complaint against Richard “Dick” Wilson, Glenn Three Stars, Bennie “Tote” Richards, and the Oglala Sioux Election Board; dismissal of the complaint against the other defendants is affirmed. The case is remanded to the district court for further proceedings consistent with this opinion.
. The original complaint named as additional defendants the U.S. Department of the Interi- or, the Bureau of Indian Affairs, the Commissioner of Indian Affairs and the Department of Justice. These defendants were deleted from the amended complaint, although plaintiffs allege participation by federal officers and agencies in the conspiracy which is the basis of their action.
. 28 U.S.C. § 1343 provides:
The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
(1) To recover damages for injury to Bis person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42;
(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.
Section 1343(4) gives the courts jurisdiction to redress violations of the substantive rights set forth in the Indian Bill of Rights, 25 U.S.C. § 1301 et seq. Luxon v. Rosebud Sioux Tribe, 455 F.2d 698, 700 (1972).
Since a violation of substantive law is a condition precedent to assumption of jurisdiction under section 1343(1) or (4), for the sake of brevity we will refer to the issue of whether there is jurisdiction under 42 U.S.C. § 1985(3) or 25 U.S.C. § 1302, even though 28 U.S.C. § 1343 is the statute which actually gives the court jurisdiction to redress violations of the substantive statutes named.
. 42 U.S.C. § 1985(3)
Depriving persons of rights or privileges (3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
. “The Congress shall have Power ... To regulate Commerce . with the Indian Tribes . . .” U.S.Const. art. I, § 8.
This case differs from those in which there was not a clearly defined class, e. g., Ward v. St. Anthony Hosp., 476 F.2d 671, 676 (10th Cir. 1973); Bricker v. Crane, 468 F.2d 1228, 1233 (1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973), or those in which there was a class, but the alleged conspiratorial discrimination was not motivated by plaintiffs’ class membership. E. g., Arnold v. Tiffany, 487 F.2d 216, 218 (9th Cir. 1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1578, 39 L.Ed.2d 881 (1974); Hughes v. Ranger Fuel Corp., 467 F.2d 6, 10 (4th Cir. 1972). 42 U.S.C. § 1985(3) does not reach every injury suffered by an individual; that would be tantamount to a general federal tort law, which Congress does not have the power to enact.
The constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law can be avoided . by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment. . . The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.
Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1798 (1971) (footnotes omitted). In this case, where the complaint alleges a conspiracy motivated by intent to deprive plaintiffs qua Means supporters of their right to vote, the “constitutional shoals” of interpreting the statute as a general federal tort law have been circumnavigated.
. The specific provision with which we are concerned here is 25 U.S.C. § 1302(8):
25 U.S.C. § 1302. Constitutional Rights No Indian tribe in exercising powers of self-government shall—
(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law .
. 25 U.S.C. § 1301. Definitions
For purpose of this subchapter, the term— (1) “Indian tribe” means any tribe, band, or other group of Indians subject to the jurisdiction of the United States and recognized as possessing powers of self-government;
(2) “powers of self-government” means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
sc_respondent
|
167
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
CALIFORNIA v. AMERICAN STORES CO. et al.
No. 89-258.
Argued January 16, 1990
Decided April 30, 1990
Stevens, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, post, p. 296.
H. Chester Horn, Jr., Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van de Karrvp, Attorney General, Andrea Sheridan Ordin, Chief Assistant Attorney General, Michael J. Strumwasser, Special Assistant Attorney General, Sanford N. Grushin, Assistant Attorney General, and Lawrence R. Tapper and Ernest Martinez, Deputy Attorneys General.
Rex E. Lee argued the cause for respondents. With him on the brief were Carter G. Phillips, Mark D. Hopson, Donald B. Holbrook, and Kent T. Anderson.
Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Jim Mattox, Attorney General of Texas, Mary F. Keller, First Assistant Attorney General, Lou McCreary, Executive Assistant Attorney General, Aliene D. Evans, Assistant Attorney General, and Donna L. Nelson, Assistant Attorney General, Don Siegelman, Attorney General of Alabama, and Walter S. Turner, Chief Assistant Attorney General, Douglas B. Baily, Attorney General of Alaska, and Thomas E. Wagner, Assistant Attorney General, John Steven Clark, Attorney General of Arkansas, Duane Woodard, Attorney General of Colorado, Clarine Nardi Riddle, Attorney General of Connecticut, and Robert M. Langer, Assistant Attorney General, Robert A. Butterworth, Attorney General of Florida, and Jerome W. Hoffman, Assistant Attorney General, Warren Price III, Attorney General of Hawaii, and Robert A. Marks and Ted Gamble Clause, Deputy Attorneys General, Jim Jones, Attorney General of Idaho, and Catherine K. Broad, Deputy Attorney General, Neil F. Hartigan, Attorney General of Illinois, Robert Ruiz, Solicitor General, and Christine H. Rosso, Senior Assistant Attorney General, Thomas J. Miller, Attorney General of Iowa, and John R. Perkins, Deputy Attorney General, Robert T. Stephan, Attorney General of Kansas, Frederic J. Cowan, Attorney General of Kentucky, and James M. Ringo, Assistant Attorney General, James E. Tierney, Attorney General of Maine, and Stephen L. Wessler, Deputy Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, and Michael F. Brockmeyer and R. Hartman Roemer, Assistant Attorneys General, James M. Shannon, Attorney General of Massachusetts, and George K. Weber and Thomas M. Alpert, Assistant Attorneys General, Hubert H. Humphrey III, Attorney General of Minnesota, Stephen P. Kilgriff Deputy Attorney General, Thomas F. Pursell, Assistant Attorney General, and James P. Spencer, Special Assistant Attorney General, Brian McKay, Attorney General of Nevada, and J. Kenneth Creighton, Deputy Attorney General, Peter N. Perretti, Jr., Attorney General of New Jersey, and Laurel A. Price, Deputy Attorney General, Robert Abrams, Attorney General of New York, O. Peter Shenvood, Solieitor General, and Lloyd E. Constantine, Assistant Attorney General, Lacy H. Thornburg, Attorney General of North Carolina, James C. Gulick, Special Deputy Attorney General, and K. D. Sturgis, Assistant Attorney General, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Dave Frohnmayer, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Eugene F. Waye, Chief Deputy Attorney General, and Carl S. Hisiro, Senior Deputy Attorney General, James E. O’Neil, Attorney General of Rhode Island, and Edmund F. Murray, Jr., Special Assistant Attorney General, Roger A. Tellinghuisen, Attorney General of South Dakota, and Jeffrey P. Hallem, Assistant Attorney General, Charles W. Bur son, Attorney General of Tennessee, and Perry Craft, Deputy Attorney General, Jeffrey L. Amestoy, Attorney General of Vermont, and Julie Brill, Assistant Attorney General, Mary Sue Terry, Attorney General of Virginia, Kenneth O. Eikenberry, Attorney General of Washington, and Carol A. Smith, Assistant Attorney General, Roger W. Tompkins, Attorney General of West Virginia, Daniel N. Huck, Deputy Attorney General, and Robert William Schulenberg III, Senior Assistant Attorney General, and Joseph B. Meyer, Attorney General of Wyoming; and for the Center for Public Interest Law by Robert C. Fellmeth.
Briefs of amici curiae urging affirmance were filed for the Business Roundtable by Thomas B. Leary and Janet L. McDavid; for the California Retailers Association et al. by Theodore B. Olson, James R. Martin, Phillip H. Rudolph, and Adrian A. Kragen; and for the United Food and Commercial Workers International Union et al. by George R. Murphy, Nicholas W. Clark, Robert W. Gilbert, Laurence D. Steinsapir, and D. William Heine.
Justice Stevens
delivered the opinion of the Court.
By merging with a major competitor, American Stores Co. (American) more than doubled the number of supermarkets that it owns in California. The State sued, claiming that the merger violates the federal antitrust laws and will harm consumers in 62 California cities. The complaint prayed for a preliminary injunction requiring American to operate the acquired stores separately until the case is decided, and then to divest itself of all of the acquired assets located in California. The District Court granted a preliminary injunction preventing American from integrating the operations of the two companies. The Court of Appeals for the Ninth Circuit agreed with the District Court’s conclusion that California had made an adequate showing of probable success on the merits, but held that the relief granted by the District Court exceeded its authority under § 16 of the Clayton Act, 38 Stat. 737, as amended, 15 U. S. C. § 26. In its view, the “injunctive relief... against threatened loss or damage” authorized by § 16 does not encompass divestiture, and therefore the “indirect divestiture” effected by the preliminary injunction was impermissible. 872 F. 2d 837 (1989). We granted certiorari to resolve a conflict in the Circuits over whether divestiture is a form of injunctive relief within the meaning of § 16. 493 U. S. 916 (1989). We conclude that it is.
I
American operates over 1,500 retail grocery stores in 40 States. Prior to the merger, its 252 stores in California made it the fourth largest supermarket chain in that State. Lucky Stores, Inc. (Lucky), which operated in seven Western and Midwestern States, was the largest, with 340 stores. The second and third largest, Von’s Companies and Safeway Stores, were merged in December 1987. 697 F. Supp. 1125, 1127 (CD Cal. 1988); Pet. for Cert. 3.
On March 21, 1988, American notified the Federal Trade Commission (FTC) that it intended to acquire all of Lucky’s outstanding stock for a price of $2.5 billion. The FTC conducted an investigation and negotiated a settlement with American. On May 31, it simultaneously filed both a complaint alleging that the merger violated § 7 of the Clayton Act and a proposed consent order disposing of the §7 charges subject to certain conditions. Among those conditions was a requirement that American comply with a “Hold Separate Agreement” preventing it from integrating the two companies’ assets and operations until after it had divested itself of several designated supermarkets. American accepted the terms of the FTC’s consent order. In early June, it acquired and paid for Lucky’s stock and consummated a Delaware “short form merger.” 872 F. 2d, at 840; Brief for Respondents 2. Thus, as a matter of legal form American and Lucky were merged into a single corporate entity on June 9, 1988, but as a matter of practical fact their business operations have not yet been combined.
On August 31, 1988, the FTC gave its final approval to the merger. The next day California filed this action in the United States District Court for the Central District of California. The complaint alleged that the merger violated § 1 of the Sherman Act, 15 U. S. C. § 1, and § 7 of the Clayton Act, 15 U. S. C. §18, and that the acquisition, “if consummated,” would cause considerable loss and damage to the State: Competition and potential competition “in many relevant geographic markets will be eliminated,” App. 61, and “the prices of food and non-food products might be increased.” Id., at 62. In its prayer for relief, California sought, inter alia, (1) a preliminary injunction “requiring American to hold and operate separately from American all of Lucky’s California assets and businesses pending final adjudication of the merits”; (2) “such injunctive relief, including rescission... as is necessary and appropriate to prevent the effects” alleged in the complaint; and (3) “an injunction requiring American to divest itself of all of Lucky’s assets and businesses in the State of California.” Id., at 65, 66-67.
The District Court granted California’s motion for a temporary restraining order and, after considering extensive statistical evidence, entered a preliminary injunction. Without reaching the Sherman Act claim, the court concluded that the State had proved a prima facie violation of § 7 of the Clayton Act. On the question of relief, the District Court found that the State had made an adequate showing “that Californians will be irreparably harmed if the proposed merger is completed,” 697 F. Supp., at 1134, and that the harm the State would suffer if the merger was not enjoined “far outweighs” the harm that American will suffer as the result of an injunction. Id., at 1135. The court also rejected American’s argument that the requested relief was foreclosed by a prior decision of the Court of Appeals for the Ninth Circuit holding that divestiture is not a remedy authorized by § 16 of the Clayton Act. American contended that the proposed injunction was “tantamount to divestiture” since the merger of the two companies had already been completed, but the District Court disagreed. It held that since the FTC’s Hold Separate Agreement was still in effect, the transaction was not a completed merger.
American filed an interlocutory appeal pursuant to 28 U. S. C. § 1292(a)(1). The Court of Appeals for the Ninth Circuit first held that the District Court had not abused its discretion in finding that California had proved a likelihood of success on the merits and the probability of irreparable harm. Nevertheless, on the authority of its earlier decision in International Telephone & Telegraph Corp. v. General Telephone & Electronics Corp., 518 F. 2d 913 (1975) (IT&T), it set aside the injunction. The Court of Appeals reasoned that its own prior decisions established both that “‘divestiture is not an available remedy in private actions under § 16 of the Clayton Act/” and that “section 16 does not permit indirect divestiture, that is, an injunction which on its face does not order divestiture but which has the same effect. IT&T, 518 F. 2d at 924.” 872 F. 2d, at 844. The Court of Appeals applied this rule to conclude that the injunction issued by the District Court was legally impermissible. Observing that under the injunction “these stores must operate as if Lucky had never been acquired by American Stores at all,” the Court of Appeals held that “[s]uch an injunction requires indirect divestiture.” Id., at 845. Finally, the Court of Appeals added that the District Court had “compounded its misapprehension of the law of divestiture” by misunderstanding “the legal status of the merger.” Specifically, the District Court erred by concluding that the “FTC’s consent order” undid “the legal effect of this merger” which “had already taken place” according to Delaware corporation law. Ibid.
On California’s application, Justice O’Connor entered a stay continuing the District Court’s injunction pending further review by this Court. 492 U. S. 1301 (1989). We then granted certiorari to resolve the conflict between this decision and the earlier holding of the Court of Appeals for the First Circuit in CIA. Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F. 2d 404 (1985). We now reverse.
II
In its IT&T opinion, the Court of Appeals for the Ninth Circuit reasoned that the term “injunctive relief” as used in § 16 is ambiguous and that it is necessary to review the statute’s legislative history to determine whether it includes divestiture. Then, based on its reading of a colloquy during a hearing before a subcommittee of the Judiciary Committee of the House of Representatives, it concluded that the draftsmen of the bill did not intend to authorize the remedies of “dissolution” or “divestiture” in actions brought by private litigants. 518 F. 2d, at 921-922. The Court of Appeals for the First Circuit has rejected that reasoning. It found instead that a fair reading of the statutory text, buttressed by recognized canons of construction, required a construction of the words “injunctive relief” broad enough to encompass divestiture. Moreover, it doubted whether the references to “dissolution” in the legislative history referred to “divestiture,” and did not consider this evidence sufficiently probative, in any event, to justify a restrictive reading of the Act that seemed inconsistent with its basic policy. 754 F. 2d, at 415-428.
American endorses the analysis of the Court of Appeals for the Ninth Circuit, but places greater reliance on two additional arguments. First, it argues that there is a significant difference between the text of § 15 of the Act, which authorizes equitable relief in actions brought by the United States, and the text of § 16, which applies to other parties. Specifically, it argues that the former is broad enough to encourage “structural relief” whereas the latter is limited to relief against anticompetitive “conduct.” Second, reading § 16 in its historical context, American argues that it reflects a well-accepted distinction between prohibitory injunctions (which are authorized) and mandatory injunctions (which, American argues, are not).
American’s argument directs us to two provisions in the statutory text, and that is the natural place to begin our analysis. Section 15 grants the federal district courts jurisdiction “to prevent and restrain violations of this Act” when United States attorneys “institute proceedings in equity to prevent and restrain such violations” through petitions “praying that such violation shall be enjoined or otherwise prohibited.” Section 16 entitles “[a]ny person, firm, corporation, or association... to sue for and have injunctive relief... against threatened loss or damage by a violation of the antitrust laws... 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.”
It is agreed that the general language of § 15, which provides that antitrust violations “shall be enjoined or otherwise prohibited,” is broad enough to authorize divestiture. Indeed, in Government actions divestiture is the preferred remedy for an illegal merger or acquisition. As we wrote in the Du Pont case:
“Divestiture or dissolution has traditionally been the remedy for Sherman Act violations whose heart is inter-corporate combination and control, and it is reasonable to think immediately of the same remedy when §7 of the Clayton Act, which particularizes the Sherman Act standard of illegality, is involved. Of the very few litigated §7 cases which have been reported, most decreed divestiture as a matter of course. Divestiture has been called the most important of antitrust remedies. It is simple, relatively easy to administer, and sure. It should always be in the forefront of a court’s mind when a violation of §7 has been found.” United States v. E. I. du Pont de Nemours & Co., 366 U. S. 316, 329-331 (1961) (footnotes omitted).
On its face, the simple grant of authority in § 16 to “have injunctive relief” would seem to encompass divestiture just as plainly as the comparable language in § 15. Certainly § 16’s reference to “injunctive relief... against threatened loss or damage” differs from § 15’s grant of jurisdiction to “prevent and restrain violations,” but it obviously does not follow that one grant encompasses remedies excluded from the other. Indeed, we think it could plausibly be argued that § 16’s terms are the more expansive. In any event, however, as the Court of Appeals for the First Circuit correctly observed, § 16 “states no restrictions or exceptions to the forms of injunctive relief a private plaintiff may seek, or that a court may order.... Rather, the statutory language indicates Congress’ intention that traditional principles of equity govern the grant of injunctive relief.” 754 F. 2d, at 416. We agree that the plain text of § 16 authorizes divestiture decrees to remedy § 7 violations.
American rests its contrary argument upon two phrases in § 16 that arguably narrow its scope. The entitlement “to sue for and have injunctive relief” affords relief “against threatened loss or damage by a violation of the antitrust laws.” Moreover, the right to such relief exists “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....”
In this case, however, the requirement of “threatened loss or damage” is unquestionably satisfied. The allegations of the complaint, the findings of the District Court, and the opinion of the Court of Appeals all assume that even if the merger is a completed violation of law, the threatened harm to California consumers persists. If divestiture is an appropriate means of preventing that harm, the statutory reference to “threatened loss or damage” surely does not negate the court’s power to grant such relief.
The second phrase, which refers to “threatened conduct that will cause loss or damage,” is not drafted as a limitation on the power to grant relief, but rather is a part of the general reference to the standards that should be applied in fashioning injunctive relief. It is surely not the equivalent of a directive stating that unlawful conduct may be prohibited but structural relief may not be mandated. Indeed, as the Ninth Circuit’s analysis of the issue demonstrates, the distinction between conduct and structure — or between prohibitory and mandatory relief — is illusory in a case of this kind. Thus, in the IT&T case the court recognized that an injunction prohibiting the parent company from voting the stock of the subsidiary should not be treated differently from a mandatory order of divestiture. And in this case the court treated the Hold Separate Agreement as a form of “indirect divestiture.” In both cases the injunctive relief would unquestionably prohibit “conduct” by the defendants. American’s textual arguments — which rely on a distinction between mandatory and prohibitive relief — do not explain why such remedies would not be appropriate.
If we assume that the merger violated the antitrust laws, and if we agree with the District Court’s finding that the conduct of the merged enterprise threatens economic harm to California consumers, the literal text of § 16 is plainly sufficient to authorize injunctive relief, including an order of divestiture, that will prohibit that conduct from causing that harm. This interpretation is consistent with our precedents, which have upheld injunctions issued pursuant to § 16 regardless of whether they were mandatory or prohibitory in character. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 129-133 (1969) (reinstating injunction that required defendants to withdraw from patent pools); see also Silver v. New York Stock Exchange, 373 U. S. 341, 345, 365 (1963) (reinstating judgment for defendants in suit to compel installation of wire services). We have recognized when construing § 16 that it was enacted “not merely to provide private relief, but... to serve as well the high purpose of enforcing the antitrust laws.” Zenith Radio Corp., 395 U. S., at 130-131. We have accordingly applied the section “with this purpose in mind, and with the knowledge that the remedy it affords, like other equitable remedies, is flexible and capable of nice ‘adjustment and reconciliation between the public interest and private needs as well as between competing private claims.’” Ibid., quoting Hecht Co. v. Bowles, 321 U. S. 321, 329-330 (1944).
Finally, by construing §16 to encompass divestiture decrees we are better able than is American to harmonize the section with its statutory context. The Act’s other provisions manifest a clear intent to encourage vigorous private litigation against anticompetitive mergers. Section 7 itself creates a relatively expansive definition of antitrust liability: To show that a merger is unlawful, a plaintiff need only prove that its effect “may be substantially to lessen competition.” Clayton Act § 7, 38 Stat. 731, 15 U. S. C. § 18 (emphasis supplied). See Brown Shoe Co. v. United States, 370 U. S. 294, 323 (1962). In addition, § 5 of the Act provided that during the pendency of a Government action, the statute of limitations for private actions would be tolled. The section also permitted plaintiffs to use the final judgment in a Government antitrust suit as prima facie evidence of liability in a later civil suit. Private enforcement of the Act was in no sense an afterthought; it was an integral part of the congressional plan for protecting competition. See Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co., 381 U. S. 311, 318 (1965). Congress also made express its view that divestiture was the most suitable remedy in a suit for relief from a § 7 violation: In § 11 of the Act, Congress directed the FTC to issue orders requiring that a violator of § 7 “cease and desist from the violation,” and, specifically, that the violator “divest itself of the stock held” in violation of the Act. Section 16, construed to authorize a private divestiture remedy when appropriate in light of equitable principles, fits well in a statutory scheme that favors private enforcement, subjects mergers to searching scrutiny, and regards divestiture as the remedy best suited to redress the ills of an anticompetitive merger.
Ill
Although we do not believe the statutory language is ambiguous, we nonetheless consider the legislative history that persuaded the Ninth Circuit to place a narrow construction on § 16. To understand that history, however, it is necessary to place the statute in its historical perspective.
The Sherman Act became law just a century ago. It matured some 15 years later, when, under the administation of Theodore Roosevelt, the Sherman Act “was finally
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_numresp
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4
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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.
William J. MERTENS; Alex W. Bandrowski; James E. Clarke; Russell Franz, Plaintiffs-Appellees, v. Charles H. BLACK; Gerald G. Ferro; Richard N. Gary; Charles S. Holmes; Patrick J. Hunt; Robert Merrick; George M. Perry; Monty H. Rial; M. Edward Steward; Miles G. Yeagley, Defendants-Appellants, and Kaiser Steel Retirement Plan, Defendant. William J. MERTENS, et al., Plaintiff-Appellee, v. KAISER STEEL RETIREMENT PLAN, et al., Defendant-Appellant. William J. MERTENS, et al., Plaintiff-Appellee, v. PENSION BENEFIT GUARANTY CORPORATION, Defendant-Appellant, and Kaiser Steel Retirement Plan, et al., Defendant.
Nos. 90-16359, 90-16437 and 90-16439.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Aug. 14, 1991.
Decided Nov. 4, 1991.
Julia A. Molander, Bronson, Bronson & McKinnon, San Francisco, Cal., for defendants-appellants.
Jean Marie Breen, Office of Gen. Counsel, Washington, D.C., for Pension Benefit Guar. Corp., defendant-appellant in No. 90-16439 and defendant-appellee in Nos. 90-16359 and 90-16437.
Alfred H. Sigman, Sigman & Lewis, Oakland, Cal., for plaintiffs-appellees.
Before NORRIS and THOMPSON, Circuit Judges, and KING, District Judge.
Hon. Samuel P. King, Senior United States District Court Judge for the District of Hawaii, sitting by designation.
PER CURIAM:
Participants in the Kaiser Steel Retirement Plan (“the Plan”) brought this action to restore to the Plan losses allegedly resulting from breaches of fiduciary duty by members of the Plan’s Investment Committee. Appellants, eleven individual members of the Plan’s Investment Committee, appeal from the district court’s denial of their motion for summary judgment. 744 F.Supp. 917. Appellants contend the prior judgment in Horan v. Kaiser Steel Retirement Plan, on appeal as Koch v. Kaiser Steel Retirement Plan, No. 89-56115 et seq., has preclusive effect here and bars relitigation of the ERISA fiduciary duty issues. We affirm the district court’s denial of the summary judgment motion, although for reasons different from those given by the district court.
Before applying either claim preclusion or issue preclusion, the moving party must demonstrate that the party against whom preclusion is sought was a party to the prior action, or in privity with a party to the prior action. Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948) (claim preclusion); United States v. ITT Rayonier, Inc., 627 F.2d 996, 1000 (9th Cir.1980) (claim preclusion); Robi v. Five Platters, Inc., 838 F.2d 318, 326-27 (9th Cir.1988) (issue preclusion). The district court concluded that the plaintiffs in Horan were in privity with the plaintiffs in Mertens because both purported to represent the Plan. See Cramer v. General Tel. & Electronics Corp., 582 F.2d 259, 267 (3d Cir.1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1048, 59 L.Ed.2d 90 (1979); see also Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 140, 105 S.Ct. 3085, 3089, 87 L.Ed.2d 96 (1985) (suits under ERISA for breach of fiduciary duty must be brought on behalf of the Plan); Sokol v. Bernstein, 803 F.2d 532, 536 (9th Cir.1986) (no right of action under section 409 for “beneficiary qua beneficiary.”).
The district court based its conclusion that the Horan plaintiffs represented the Plan on the premise that under Russell, they could not bring individual claims for individual remedies. Because they could not bring these individual claims, reasoned the district court, the claims they presented must have been asserted on behalf of the Plan.
We reject this analysis. As we held in Koch, (cite), the Horan plaintiffs did not purport to represent the Plan in asserting their claims, nor did they seek a recovery for the Plan. They sought a recovery from the fiduciaries which would provide them with individual annuities. Id.
The only reason suggested as to why we should reclassify the Horan plaintiffs claims into something they plainly are not is that if this is not done, the claims the Horan plaintiffs asserted could not be brought under Russell. We refuse to apply such bootstrap reasoning. In so doing, we reject the appellants’ contention that a fiduciary claim brought on behalf of an individual under ERISA must be classified as if brought on behalf of the Plan.
Because the plaintiffs in Horan did not purport to represent the Plan as a whole, the plaintiffs in Mertens cannot be held to be in privity with the plaintiffs in Horan. Thus, the Mertens plaintiffs cannot be barred from bringing this suit on behalf of the Plan or from relitigating fiduciary breach issues allegedly already litigated dispositively in Horan.
Finally, we hold that the district court did not err in dismissing the Plan as a defendant. Because recovery is sought for the benefit of the Plan, the Plan’s interests are not adverse to those of the plaintiffs. However, we do not read the district court’s dismissal of the Plan as a dismissal of the Pension Benefit Guaranty Corporation.
The district court’s denial of the summary judgment motion is AFFIRMED.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Leonard Thomas DIXON, Appellant, v. UNITED STATES of America, Appellee.
No. 16690.
United States Court of Appeals Eighth Circuit.
Oct. 25, 1961.
Thomas Hullverson, St. Louis, Mo., for appellant.
Clark A. Ridpath, Asst. U. S. Atty., Kansas City, Mo., F. Russell Millin, U. S. Atty., Kansas City, Mo., and Kenneth H.
Taylor, Asst. U. S. Atty., Kansas City, Mo., on the brief, for appellee.
Before SANBORN, MATTHES and RIDGE, Circuit Judges.
MATTHES, Circuit Judge.
In this Dyer Act case the defendant was found guilty by a jury and upon judgment being pronounced, was sentenced to imprisonment for a two-year term. The district court permitted notice of appeal to be filed without payment of fee but denied the defendant leave to perfect his appeal in forma pauperis on the ground that the appeal was “entirely without merit.” Upon consideration of the agreed statement of the ease and memoranda of trial counsel for defendant and the United States Attorney filed in connection with defendant’s challenge of the certificate of the trial court that defendant’s appeal was legally frivolous, we granted defendant leave to appeal as a poor person and appointed Mr. Thomas Hullverson, a member of the St. Louis Bar, to represent the defendant on appeal. We express to Mr. Hullverson our thanks for his services which proved of assistance in the disposition of the issue presented for determination.
The sole question here is whether portions of the court’s charge to the jury were prejudicially erroneous. A brief resume of the facts will assist in comprehending the basis for the claimed error.
On June 20, 1960, defendant went to the Jay Hawk Motor Company, a used car dealer in Salina, Kansas, for the express purpose of purchasing an automobile. Paul A. Loveland, a partner in the business, dealt with the defendant. With Loveland’s permission, the defendant drove two other used automobiles in addition to the Buick automobile which became the subject of the Dyer Act violation. Concerning the Buick, Loveland testified that defendant stated he wanted to show it to his wife, who was at their home in Salina, and permission was granted defendant to take the car for that purpose. The question of financing or paying for the automobile was also discussed. Loveland stated that defendant left with the Buick around 3:00 o’clock p. m. and when he had not returned by 8:00 o’clock that evening, he reported the matter to police officers. The automobile was recovered later at Platte City, Missouri, which is about 200 miles from Salina. From defendant’s testimony the jury could have found that his right to drive the Buick automobile was not limited to the Salina, Kansas area. Additionally, he testified that after obtaining possession of the automobile, he decided to drive to Abilene, Kansas, about 20 miles from Salina, for the purpose of seeing his friend Joe Kapaske, apparently with the hope of securing needed money to complete the purchase of the automobile. He stopped at a bar in Abilene, met a “couple of guys” and began drinking with them. He remembers nothing thereafter until he was struggling with two men who turned out to be Missouri police officers, and who found defendant lying unconscious or asleep near the highway about 25-30 yards from the Buick, which was out of gasoline. At the trial defendant claimed he had been robbed of about $200 and denied driving the automobile across the state line. In this factual setting the court instructed the jury on the presumption of innocence, reasonable doubt, credibility of witnesses, and other matters usually submitted in criminal prosecutions, and then gave this charge which constitutes the bone of contention on this appeal:
“Now, trying out an automobile ordinarily doesn’t mean taking it and keeping it for hours and going out of the community and running it for miles and miles. It doesn’t ordinarily mean that sort of thing. So, let’s assume that this defendant had no right to take the automobile. But that isn’t an offense. The particular offense is transporting it across the state line after he had taken it. We can say as a matter of law that he had no right to take it across the state line and bring it in the State of Missouri under the agreement that he had with the vendor of this car.
*#**-»*
“Now, members of the jury, I don’t know what happened. I don’t know whether he is guilty or whether he isn’t. I would say to you as a matter of the law, that if this man went out and got drunk and got in the automobile and drove it over to Missouri, then under the law he is guilty, whether he was suffering from a state of alcoholic amnesia or not, because drunkenness is not an excuse for the commission of a crime, unless it has existed to the extent that it affects the mentality of an individual.” (Emphasis supplied.)
Defendant recognizes that in federal jurisprudence a district judge has the right within limitations to comment upon the evidence. However, he strongly urges that that portion of the charge under attack does not constitute legitimate and proper comment on evidentiary matters but rather is an expression of an opinion upon an ultimate issue determinative of guilt or innocence.
The United States Attorney does not seriously contend that the portion of the charge under scrutiny standing alone is completely impervious to criticism. Rather, he relies on the principle that in considering the effect of a challenged portion of a court’s instruction, this court must view the charge in its entirety, and not piecemeal. Segal v. United States, 8 Cir., 246 F.2d 814, certiorari denied 355 U.S. 894, 78 S.Ct. 269, 2 L.Ed.2d 192; Stoneking v. United States, 8 Cir., 232 F.2d 385, 389, certiorari denied 352 U.S. 835, 77 S.Ct. 54, 1 L.Ed.2d 54; 354 U.S. 941, 77 S.Ct. 1406, 1 L.Ed. 2d 1540, rehearing denied 355 U.S. 852, 78 S.Ct. 78, 2 L.Ed.2d 61. On this premise it is strongly insisted that when the court’s charge in its entirety is accorded proper consideration in light of the facts and circumstances, the challenged portions thereof are not vulnerable to the claim of prejudicial error.
Besolution of the issue in light of the respective contentions of the parties requires consideration of the charge as a whole because obviously if the charge failed to lay down proper standards to guide and assist the jury in their deliberations, then the harm, if any, resulting from that portion of the charge under attack was not removed by the remaining portions thereof.
It is now firmly established that an offense may arise under the Act even though the defendant obtains possession of the automobile in the first instance by permission of the owner. This was conclusively settled by the Supreme Court in United States v. Turley, 352 U.S. 407, 417, 77 S.Ct. 397, 402, 1 L.Ed.2d 430, where the Court interpreted the word “stolen” as used in 18 U.S.C.A. § 2312 to include “all felonious takings of motor vehicles with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common law larceny.” Compare Brown v. United States, 8 Cir., 277 F.2d 201, 203, where the defendant obtained possession of the automobile by renting the same but later feloniously converted and transported it in interstate commerce. See also Miller v. United States, 4 Cir., 261 F.2d 546, 547; Lambert v. United States, 5 Cir., 261 F.2d 799, 801.
In Dyer Act prosecutions the Government is required to establish the existence of three essential elements. One, that the motor vehicle was stolen, that is, that possession thereof was obtained through larceny, or that there was a felonious conversion with intent to deprive the owner of the vehicle within the meaning of United States v. Turley, supra ; two, that the defendant transported the automobile in interstate commerce, and three, that when so transported the defendant knew the motor vehicle had been stolen. Here, both the first and second elements were in controversy and, of course, were fact questions which the jury was required to resolve. Certainly there was substantial competent evidence from which the jury, under proper instructions, reasonably could have found against the defendant on both issues, but we are persuaded to believe that the underlying question of whether the automobile had been feloniously converted by defendant was not submitted in clear and concise language. Indeed, the charge, insofar as it touched on this element of the offense, was so couched that, conceivably, it served to confuse rather than clarify the issue. Thus at the outset of the charge, the Court stated, “We are not concerned here with whether or not the man stole the car. It is a question of whether or not he transported it across the state line knowing it to have been stolen.” This statement was followed with: “It so happens in this case, of course, that if the man didn’t take the car wrongfully or within the meaning of the law he will not be guilty.” (Emphasis supplied.)
We are satisfied that the portion of the charge under scrutiny cannot be sustained as constituting legitimate and proper comment on the evidence. Sullivan v. United States, 85 U.S.App.D.C. 409, 178 F.2d 723. The challenged stats» ments not only invaded the province of the jury as to a material matter, but thereby the court prejudicially assumed, upon a finding that the automobile had been driven into Missouri, that the defendant had wrongfully and feloniously acquired possession thereof and converted the same with intent to deprive the owner of the benefits of ownership.
Since no portion of the charge, which we have considered as a whole, can properly be regarded as having submitted the element of felonious conversion of the automobile, it necessarily follows that the vice and ill effects of the portion under attack were not cured and rendered harmless by the remainder of the charge.
The judgment is reversed and the cause remanded for another trial.
. The indictment charged that defendant did unlawfully, wilfully, knowingly and feloniously transport in interstate commerce from Salina, Kansas, to a point approximately 5 miles east of Platte City, Missouri, a certain motor vehicle, knowing the same to have been stolen, in violation of Title 18 U.S.C.A. § 2312.
. The meaning which the Court attached to the italicized phrase is not clear to us.
Question: What is the total number of appellants in the case? Answer with a number.
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.
UNITED STATES of America, Appellee, v. Robert WALTERS, Appellant.
No. 77-1122.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 6, 1977.
Decided Oct. 31, 1977.
John McNally, Alexandria, Va. (Michael McGettigan, Murphy, McGettigan, McNally & West, Alexandria, Va., on brief), for appellant.
John Brennan, Third Year Law Student (William B. Cummings, U. S. Atty., Alexandria, Va., and Douglas Ross, Sp. Asst. U. S. Atty., on brief), for appellee.
Before WINTER, BUTZNER and HALL, Circuit Judges.
PER CURIAM:
Defendant was issued a violation notice at Washington National Airport charging him with a traffic violation. He was given the option of paying a fine of twenty-five dollars or appearing in court. Defendant elected to stand trial, and was tried by the district court. The judge, sitting without a jury, found the defendant guilty and imposed a fine of fifty dollars. Defendant appealed. We affirm.
Defendant complains that the imposition of the fifty-dollar fine, double the initial fine defendant could have paid if he had not stood trial, penalized him for exercising his right to a trial, and thus denied him his constitutional rights under the fifth and sixth amendments. We disagree.
In Colton v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), the Supreme Court upheld the two-tier lower judiciary system of Kentucky, even though a harsher sentence could be imposed after a trial de novo. We hold that the rationale of Colton applies to the case at bar, and that the imposition of a greater fine as a result of defendant’s trial did not violate his constitutional rights under either the fifth or sixth amendments.
AFFIRMED.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
sc_lcdisposition
|
C
|
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.
VERNONIA SCHOOL DISTRICT 47J v. ACTON et ux., guardians ad litem for ACTON
No. 94-590.
Argued March 28, 1995 —
Decided June 26, 1995
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Thomas, Ginsburg, and Breyer, JJ., joined. Ginsburg, J., filed a concurring opinion, post, p. 666. O’Connor, J., filed a dissenting opinion, in which Stevens and Souter, JJ., joined, post, p. 666.
Timothy R. Volpert argued the cause for petitioner. With him on the briefs was Claudia Larkins.
Richard H. Seamon argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, Leonard Schaitman, and Edward Himmelfarb.
Thomas M. Christ argued the cause for respondents. With him on the brief were John A. Wittmayer and Steven R. Shapiro.
Briefs of amici curiae urging reversal were filed for the American Alliance for Rights & Responsibilities by Steven P. Fulton and Robert Teir; for the California Interscholastic Federation by Andrew Patterson; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; for the Institute for a Drug-Free Workplace by Benjamin W. Hahn; for the National League of Cities et al. by Richard Ruda and Lee Fennell; for the National School Boards Association by Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A Shannon; for Paradise Valley Unified School District No. 69 by Thomas C. Horne; and for the Washington Legal Foundation et al. by Richard K. Willard, Daniel J. Popeo, and David A. Price.
Justice Scalia
delivered the opinion of the Court.
The Student Athlete Drug Policy adopted by School District 47J in the town of Vernonia, Oregon, authorizes random urinalysis drug testing of students who participate in the District’s school athletics programs. We granted certiorari to decide whether this violates the Fourth and Fourteenth Amendments to the United States Constitution.
I
A
Petitioner Vernonia School District 47J (District) operates one high school and three grade schools in the logging community of Vernonia, Oregon. As elsewhere in small-town America, school sports play a prominent role in the town’s life, and student athletes are admired in their schools and in the community.
Drugs had not been a major problem in Vernonia schools. In the mid-to-late 1980’s, however, teachers and administrators observed a sharp increase in drug use. Students began to speak out about their attraction to the drug culture, and to boast that there was nothing the school could do about it. Along with more drugs came more disciplinary problems. Between 1988 and 1989 the number of disciplinary referrals in Vernonia schools rose to more than twice the number reported in the early 1980’s, and several students were suspended. Students became increasingly rude during class; outbursts of profane language became common.
Not only were student athletes included among the drug users but, as the District Court found, athletes were the leaders of the drug culture. 796 F. Supp. 1354, 1357 (Ore. 1992). This caused the District’s administrators particular concern, since drug use increases the risk of sports-related injury. Expert testimony at the trial confirmed the deleterious effects of drugs on motivation, memory, judgment, reaction, coordination, and performance. The high school football and wrestling coach witnessed a severe sternum injury suffered by a wrestler, and various omissions of safety procedures and misexecutions by football players, all attributable in his belief to the effects of drug use.
Initially, the District responded to the drug problem by offering special classes, speakers, and presentations designed to deter drug use. It even brought in a specially trained dog to detect drugs, but the drug problem persisted. According to the District Court:
“[T]he administration was at its wits end and... a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion. Disciplinary actions had reached ‘epidemic proportions.’ The coincidence of an almost three-fold increase in classroom disruptions and disciplinary reports along with the staff’s direct observations of students using drugs or glamorizing drug and alcohol use led the administration to the inescapable conclusion that the rebellion was being fueled by alcohol and drug abuse as well as the student’s misperceptions about the drug culture.” Ibid.
At that point, District officials began considering a drug-testing program. They held a parent “input night” to discuss the proposed Student Athlete Drug Policy (Policy), and the parents in attendance gave their unanimous approval. The school board approved the Policy for implementation in the fall of 1989. Its expressed purpose is to prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs.
B
The Policy applies to all students participating in interscholastic athletics. Students wishing to play sports must sign a form consenting to the testing and must obtain the written consent of their parents. Athletes are tested at the beginning of the season for their sport. In addition, once each week of the season the names of the athletes are placed in a “pool” from which a student, with the supervision of two adults, blindly draws the names of 10% of the athletes for random testing. Those selected are notified and tested that same day, if possible.
The student to be tested completes a specimen control form which bears an assigned number. Prescription medications that the student is taking must be identified by providing a copy of the prescription or a doctor’s authorization. The student then enters an empty locker room accompanied by an adult monitor of the same sex. Each boy selected produces a sample at a urinal, remaining fully clothed with his back to the monitor, who stands approximately 12 to 15 feet behind the student. Monitors may (though do not always) watch the student while he produces the sample, and they listen for normal sounds of urination. Girls produce samples in an enclosed bathroom stall, so that they can be heard but not observed. After the sample is produced, it is given to the monitor, who checks it for temperature and tampering and then transfers it to a vial.
The samples are sent to an independent laboratory, which routinely tests them for amphetamines, cocaine, and marijuana. Other drugs, such as LSD, may be screened at the request of the District, but the identity of a particular student does not determine which drugs will be tested. The laboratory’s procedures are 99.94% accurate. The District follows strict procedures regarding the chain of custody and access to test results. The laboratory does not know the identity of the students whose samples it tests. It is authorized to mail written test reports only to the superintendent and to provide test results to District personnel by telephone only after the requesting official recites a code confirming his authority. Only the superintendent, principals, vice-principals, and athletic directors have access to test results, and the results are not kept for more than one year.
If a sample tests positive, a second test is administered as soon as possible to confirm the result. If the second test is negative, no further action is taken. If the second test is positive, the athlete’s parents are notified, and the school principal convenes a meeting with the student and his parents, at which the student is given the option of (1) participating for six weeks in an assistance program that includes weekly urinalysis, or (2) suffering suspension from athletics for the remainder of the current season and the next athletic season. The student is then retested prior to the start of the next athletic season for which he or she is eligible. The Policy states that a second offense results in automatic imposition of option (2); a third offense in suspension for the remainder of the current season and the next two athletic seasons.
C
In the fall of 1991, respondent James Acton, then a seventh grader, signed up to play football at one of the District’s grade schools. He was denied participation, however, because he and his parents refused to sign the testing consent forms. The Actons filed suit, seeking declaratory and in-junctive relief from enforcement of the Policy on the grounds that it violated the Fourth and Fourteenth Amendments to the United States Constitution and Article I, § 9, of the Oregon Constitution. After a bench trial, the District Court entered an order denying the claims on the merits and dismissing the action. 796 F. Supp., at 1355. The United States Court of Appeals for the Ninth Circuit reversed, holding that the Policy violated both the Fourth and Fourteenth Amendments and Article I, § 9, of the Oregon Constitution. 23 F. 3d 1514 (1994). We granted certiorari. 513 U. S. 1013 (1994).
II
The Fourth Amendment to the United States Constitution provides that the Federal Government shall not violate “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....” We have held that the Fourteenth Amendment extends this constitutional guarantee to searches and seizures by state officers, Elkins v. United States, 364 U. S. 206, 213 (1960), including public school officials, New Jersey v. T L. O., 469 U. S. 325, 336-337 (1985). In Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 617 (1989), we held that state-compelled collection and testing of urine, such as that required by the Policy, constitutes a “search” subject to the demands of the Fourth Amendment. See also Treasury Employees v. Von Raab, 489 U. S. 656, 665 (1989).
As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is “reasonableness.” At least in a case such as this, where there was no clear practice, either approving or disapproving the type of search at issue, at the time the constitutional provision was enacted, whether a particular search meets the reasonableness standard “ ‘is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’” Skinner, supra, at 619 (quoting Delaware v. Prouse, 440 U. S. 648, 654 (1979)). Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant, Skinner, supra, at 619. Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” Griffin v. Wisconsin, 488 U. S. 868, 873 (1987) (internal quotation marks omitted).
We have found such “special needs” to exist in the public school context. There, the warrant requirement “would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed,” and “strict adherence to the requirement that searches be based on probable cause” would undercut “the substantial need of teachers and administrators for freedom to maintain order in the schools.” T L. O., 469 U. S., at 340, 341. The school search we approved in T L. 0., while not based on probable cause, was based on individualized suspicion of wrongdoing. As we explicitly acknowledged, however, “‘the Fourth Amendment imposes no irreducible requirement of such suspicion,’ ” id., at 342, n. 8 (quoting United States v. Martinez-Fuerte, 428 U. S. 543, 560-561 (1976)). We have upheld sus-picionless searches and seizures to conduct drug testing of railroad personnel involved in train accidents, see Skinner, supra; to conduct random drug testing of federal customs officers who carry arms or are involved in drug interdiction, see Von Raab, supra; and to maintain automobile checkpoints looking for illegal immigrants and contraband, Martinez-Fuerte, supra, and drunk drivers, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990).
1 — 1 1 — 1
The first factor to be considered is the nature of the privacy interest upon which the search here at issue intrudes. The Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as “legitimate.” T L. O., 469 U. S., at 338. What expectations are legitimate varies, of course, with context, id., at 337, depending, for example, upon whether the individual asserting the privacy interest is at home, at work, in a car, or in a public park. In addition, the legitimacy of certain privacy expectations vis-a-vis the State may depend upon the individual’s legal relationship with the State. For example, in Griffin, supra, we held that, although a “probationer’s home, like anyone else’s, is protected by the Fourth Amendment,” the supervisory relationship between probationer and State justifies “a degree of impingement upon [a probationer’s] privacy that would not be constitutional if applied to the public at large.” 483 U. S., at 873, 875. Central, in our view, to the present case is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster.
Traditionally at common law, and still today, unemanci-pated minors lack some of the most fundamental rights of self-determination — including even the right of liberty in its narrow sense, i. e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians. See 59 Am. Jur. 2d, Parent and Child §10 (1987). When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them. In fact, the tutor or schoolmaster is the very prototype of that status. As Blackstone describes it, a parent “may... delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.” 1 W. Blackstone, Commentaries on the Laws of England 441 (1769).
In I L. O. we rejected the notion that public schools, like private schools, exercise only parental power over their students, which of course is not subject to constitutional constraints. 469 U. S., at 336. Such a view of things, we said, “is not entirely ‘consonant with compulsory education laws/ ” ibid. (quoting Ingraham v. Wright, 430 U. S. 651, 662 (1977)), and is inconsistent with our prior decisions treating school officials as state actors for purposes of the Due Process and Free Speech Clauses, T L. O., supra, at 336. But while denying that the State’s power over schoolchildren is formally no more than the delegated power of their parents, T. L. O. did not deny, but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults. “[A] proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult.” 469 U. S., at 339. While we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional “duty to protect,” see DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 200 (1989), we have acknowledged that for many purposes “school authorities ac[t] in loco parentis,” Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 684 (1986), with the power and indeed the duty to “inculcate the habits and manners of civility,” id., at 681 (internal quotation marks omitted). Thus, while children assuredly do not “shed their constitutional rights... at the schoolhouse gate,” Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506 (1969), the nature of those rights is what is appropriate for children in school. See, e. g., Goss v. Lopez, 419 U. S. 565, 581-582 (1975) (due process for a student challenging disciplinary suspension requires only that the teacher “informally discuss the alleged misconduct with the student minutes after it has occurred”); Fraser, supra, at 683 (“[I]t is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse”); Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 273 (1988) (public school authorities may censor school-sponsored publications, so long as the censorship is “reasonably related to legitimate pedagogical concerns”); Ingraham, supra, at 682 (“Imposing additional administrative safeguards [upon corporal punishment]... would... entail a significant intrusion into an area of primary educational responsibility”).
Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the “reasonableness” inquiry cannot disregard the schools’ custodial and tutelary responsibility for children. For their own good and that of their classmates, public school children are routinely required to submit to various physical examinations, and to be vaccinated against various diseases. According to the American Academy of Pediatrics, most public schools “provide vision and hearing screening and dental and dermatological checks.... Others also mandate scoliosis screening at appropriate grade levels.” Committee on School Health, American Academy of Pediatrics, School Health: A Guide for Health Professionals 2 (1987). In the 1991-1992 school year, all 50 States required public school students to be vaccinated against diphtheria, measles, rubella, and polio. U. S. Dept, of Health & Human Services, Public Health Service, Centers for Disease Control, State Immunization Requirements 1991-1992, p. 1. Particularly with regard to medical examinations and procedures, therefore, “students within the school environment have a lesser expectation of privacy than members of the population generally.” I L. O., supra, at 348 (Powell, J., concurring).
Legitimate privacy expectations are even less with regard to student athletes. School sports are not for the bashful. They require “suiting up” before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford. The locker rooms in Vernonia are typical: No individual dressing rooms are provided; shower heads are lined up along a wall, unseparated by any sort of partition or curtain; not even all the toilet stalls have doors. As the United States Court of Appeals for the Seventh Circuit has noted, there is “an element of ‘communal undress’ inherent in athletic participation,” Schaill by Kross v. Tippecanoe County School Corp., 864 F. 2d 1309, 1318 (1988).
There is an additional respect in which school athletes have a reduced expectation of privacy. By choosing to “go out for the team,” they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally. In Vernonia’s public schools, they must submit to a preseason physical exam (James testified that his included the giving of a urine sample, App. 17), they must acquire adequate insurance coverage or sign an insurance waiver, maintain a minimum grade point average, and comply with any “rules of conduct, dress, training hours and related matters as may be established for each sport by the head coach and athletic director with the principal’s approval.” Record, Exh. 2, p. 30, ¶ 8. Somewhat like adults who choose to participate in a “closely regulated industry,” students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy. See Skinner, 489 U. S., at 627; United States v. Biswell, 406 U. S. 311, 316 (1972).
>
Having considered the scope of the legitimate expectation of privacy at issue here, we turn next to the character of the intrusion that is complained of. We recognized in Skinner that collecting the samples for urinalysis intrudes upon “an excretory function traditionally shielded by great privacy.” 489 U. S., at 626. We noted, however, that the degree of intrusion depends upon the manner in which production of the urine sample is monitored. Ibid. Under the District’s Policy, male students produce samples at a urinal along a wall. They remain fully clothed and are only observed from behind, if at all. Female students produce samples in an enclosed stall, with a female monitor standing outside listening only for sounds of tampering. These conditions are nearly identical to those typically encountered in public restrooms, which men, women, and especially schoolchildren use daily. Under such conditions, the privacy interests compromised by the process of obtaining the urine sample are in our view negligible.
The other privacy-invasive aspect of urinalysis is, of course, the information it discloses concerning the state of the subject’s body, and the materials he has ingested. In this regard it is significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic. See id., at 617. Moreover, the drugs for which the samples are screened are standard, and do not vary according to the identity of the student. And finally, the results of the tests are disclosed only to a limited class of school personnel who have a need to know; and they are not turned over to law enforcement authorities or used for any internal disciplinary function. 796 F. Supp., at 1364; see also 23 F. 3d, at 1521.
Respondents argue, however, that the District’s Policy is in fact more intrusive than this suggests, because it requires the students, if they are to avoid sanctions for a falsely positive test, to identify in advance prescription medications they are taking. We agree that this raises some cause for concern. In Von Raab, we flagged as one of the salutary features of the Customs Service drug-testing program the fact that employees were not required to disclose medical information unless they tested positive, and, even then, the information was supplied to a licensed physician rather than to the Government employer. See Von Raab, 489 U. S., at 672-673, n. 2. On the other hand, we have never indicated that requiring advance disclosure of medications is per se unreasonable. Indeed, in Skinner we held that it was not “a significant invasion of privacy.” 489 U. S., at 626, n. 7. It can be argued that, in Skinner, the disclosure went only to the medical personnel taking the sample, and the Government personnel analyzing it, see id., at 609, but see id., at 610 (railroad personnel responsible for forwarding the sample, and presumably accompanying information, to the Government’s testing lab); and that disclosure to teachers and coaches — to persons who personally know the student — is a greater invasion of privacy. Assuming for the sake of argument that both those propositions are true, we do not believe they establish a difference that respondents are entitled to rely on here.
The General Authorization Form that respondents refused to sign, which refusal was the basis for James’s exclusion from the sports program, said only (in relevant part): “I... authorize the Vernonia School District to conduct a test on a urine specimen which I provide to test for drugs and/or alcohol use. I also authorize the release of information concerning the results of such a test to the Vernonia School District and to the parents and/or guardians of the student.” App. 10-11. While the practice of the District seems to have been to have a school official take medication information from the student at the time of the test, see id., at 29, 42, that practice is not set forth in, or required by, the Policy, which says simply: “Student athletes who... are or have been taking prescription medication must provide verification (either by a copy of the prescription or by doctor’s authorization) prior to being tested.” Id., at 8. It may well be that, if and when James was selected for random testing at a time that he was taking medication, the School District would have permitted him to provide the requested information in a confidential manner — for example, in a sealed envelope delivered to the testing lab. Nothing in the Policy contradicts that, and when respondents choose, in effect, to challenge the Policy on its face, we will not assume the worst. Accordingly, we reach the same conclusion as in Skinner: that the invasion of privacy was not significant.
V
Finally, we turn to consider the nature and immediacy of the governmental concern at issue here, and the efficacy of this means for meeting it. In both Skinner and Von Raab, we characterized the government interest motivating the search as “compelling.” Skinner, supra, at 628 (interest in preventing railway accidents); Von Raab, supra, at 670 (interest in ensuring fitness of customs officials to interdict drugs and handle firearms). Relying on these cases, the District Court held that because the District’s program also called for drug testing in the absence of individualized suspicion, the District “must demonstrate a ‘compelling need’ for the program.” 796 F. Supp., at 1368. The Court of Appeals appears to have agreed with this view. See 23 F. 3d, at 1526. It is a mistake, however, to think that the phrase “compelling state interest,” in the Fourth Amendment context, describes a fixed, minimum quantum of governmental concern, so that one can dispose of a case by answering in isolation the question: Is there a compelling state interest here? Rather, the phrase describes an interest that appears important enough to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy. Whether that relatively high degree of government concern is necessary in this case or not, we think it is met.
That the nature of the concern is important — indeed, perhaps compelling — can hardly be doubted. Deterring drug use by our Nation’s schoolchildren is at least as important as enhancing efficient enforcement of the Nation’s laws against the importation of drugs, which was the governmental concern in Von Raab, supra, at 668, or deterring drug use by engineers and trainmen, which was the governmental concern in Skinner, supra, at 628. School years are the time when the physical, psychological, and addictive effects of drugs are most severe. “Maturing nervous systems are more critically impaired by intoxicants than mature ones are; childhood losses in learning are lifelong and profound”; “children grow chemically dependent more quickly than adults, and their record of recovery is depressingly poor.” Hawley, The Bumpy Road to Drug-Free Schools, 72 Phi Delta Kap-pan 310, 314 (1990). See also Estroff, Schwartz, & Hoff-mann, Adolescent Cocaine Abuse: Addictive Potential, Behavioral and Psychiatric Effects, 28 Clinical Pediatrics 550 (Dec. 1989); Kandel, Davies, Karus, & Yamaguchi, The Consequences in Young Adulthood of Adolescent Drug Involvement, 43 Arch. Gen. Psychiatry 746 (Aug. 1986). And of course the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted. In the present case, moreover, the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction. Finally, it must not be lost sight of that this program is directed more narrowly to drug use by school athletes, where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high. Apart from psychological effects, which include impairment of judgment, slow reaction time, and a lessening of the perception of pain, the particular drugs screened by the District’s Policy have been demonstrated to pose substantial physical risks to athletes. Amphetamines produce an “artificially induced heart rate increase, [peripheral vasoconstriction, [b]lood pressure increase, and [mjasking of the normal fatigue response,” making them a “very dangerous drug when used during exercise of any type.” Hawkins, Drugs and Other Ingesta: Effects on Athletic Performance, in H. Appenzeller, Managing Sports and Risk Management Strategies 90, 90-91 (1993). Marijuana causes “[ijrregular blood pressure responses during changes in body position,” “[Reduction in the oxygen-carrying capacity of the blood,” and “[ijnhibition of the normal sweating responses resulting in increased body temperature.” Id., at 94. Cocaine produces “[vjasocon-striction[,] [e]levated blood pressure,” and “[possible coronary artery spasms and myocardial infarction.” Ibid.
As for the immediacy of the District’s concerns: We are not inclined to question — indeed, we could not possibly find clearly erroneous — the District Court’s conclusion that “a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion,” that “[disciplinary actions had reached ‘epidemic proportions/” and that “the rebellion was being fueled by alcohol and drug abuse as well as by the student’s mispercep-tions about the drug culture.” 796 F. Supp., at 1357. That is an immediate crisis of greater proportions than existed in Skinner, where we upheld the Government’s drug-testing program based on findings of drug use by railroad employees nationwide, without proof that a problem existed on the particular railroads whose employees were subject to the test. See Skinner, 489 U. S., at 607. And of much greater proportions than existed in Von Raab, where there was no documented history of drug use by any customs officials. See Von Raab, 489 U. S., at 673; id., at 683 (Scalia, J., dissenting).
As to the efficacy of this means for addressing the problem: It seems to us self-evident that a drug problem largely fueled by the “role model” effect of athletes’ drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs. Respondents argue that a “less intrusive means to the same end” was available, namely, “drug testing on suspicion of drug use.” Brief for Respondents 45-46. We have repeatedly refused to declare that only the “least intrusive” search practicable can be reasonable under the Fourth Amendment. Skinner, supra, at 629, n. 9 (collecting cases). Respondents’ alternative entails substantial difficulties — if it is indeed practicable at all. It may be impracticable, for one thing, simply because the parents who are willing to accept random drug testing for athletes are not willing to accept accusatory drug testing for all students, which transforms the process into a badge of shame. Respondents’ proposal brings the risk that teachers will impose testing arbitrarily upon troublesome but not drug-likely students. It generates the expense of defending lawsuits that charge such arbitrary imposition, or that simply demand greater process before accusatory drug
testing is imposed. And not least of all, it adds to the ever-expanding diversionary duties of schoolteachers the new function of spotting and bringing to account drug abuse, a task for which they are ill prepared, and which is not readily compatible with their vocation. Cf. Skinner, supra, at 628 (quoting 50 Fed. Reg. 31526 (1985)) (a drug impaired individual “will seldom display any outward ‘signs detectable by the lay person or, in many cases, even the physician’”); Goss, 419 U. S., at 594 (Powell, J., dissenting) (“There is an ongoing relationship, one in which the teacher must occupy many roles — educator, adviser, friend, and, at times, parent-substitute. It is rarely adversary in nature...”) (footnote omitted). In many respects, we think, testing based on “suspicion” of drug use would not be better, but worse.
>
Taking into account all the factors we have considered above — the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search — we conclude Vernonia’s Policy is reasonable and hence constitutional.
We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts. The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care. Just as when the government conducts a search in its capacity as employer (a warrantless search of an absent employee’s desk to obtain an urgently needed file, for example), the relevant question is whether that intrusion upon privacy is one that a reasonable employer might engage in, see O’Connor v. Ortega, 480 U. S. 709 (1987); so also when the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake. Given the findings of need made by the District Court, we conclude that in the present case it is.
We may note that the primary guardians of Vernonia’s schoolchildren appear to agree. The record shows no objection to this districtwide program by any parents other than the couple before us here — even though, as we have described, a public meeting was held to obtain parents’ views. We find insufficient basis to contradict the judgment of Ver-nonia’s parents, its school board, and the District Court, as to what was reasonably in the interest of these children under the circumstances.
* * *
The Ninth Circuit held that Vernonia’s Policy not only violated the Fourth Amendment, but also, by reason of that violation, contravened Article I, § 9, of the Oregon Constitution. Our conclusion that the former holding was in error means that the latter holding rested on a flawed premise. We therefore vacate the judgment, and remand the case to the Court of Appeals for further proceedings consistent with this opinion.
It is so ordered.
Not until 1852 did Massachusetts, the pioneer in the “common school” movement, enact a compulsory school-attendance law, and as late as the 1870’s only 14 States had such laws. R. Butts, Public Education in the United States From Revolution to Reform 102-103 (1978); 1 Children and Youth in America 467-468 (R. Bremner ed. 1970). The drug problem, and the technology of drug testing, are of course even more recent.
Despite the fact that, like routine school physicals and vaccinations— which the dissent apparently finds unobjectionable even though they “are both blanket searches of a sort,” post, at 682 — the search here is undertaken for prophylactic and distinctly wowpunitive purposes (protecting student athletes from injury, and deterring drug use in the student population), see 796 F. Supp., at 1363, the dissent would nonetheless lump this search together with “evidentiary” searches, which generally require probable cause, see supra, at 653, because, from the student’s perspective, the test may be “regarded” or “understood” as punishment, post, at 683-684. In light of the District Court’s findings regarding the purposes and consequences of the testing, any such perception is by
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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songer_genapel1
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G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Denver POWELL, Petitioner-Appellant, v. E. L. MAXWELL, Warden, Respondent-Appellee.
No, 16023.
United States Court of Appeals Sixth Circuit.
Aug. 31, 1965.
William Allen Ogden, Cincinnati, Ohio, for appellant.
Leo J. Conway, Columbus, Ohio (William B. Saxbe, Atty. Gen., Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, on the brief), for appellee.
Before MILLER and O’SULLIVAN, Circuit Judges, and MATHES, Senior District Judge.
William C. Mathes, Senior District Judge of the Southern District of California, sitting by designation.
MATHES, Senior District Judge.
This appeal is from a judgment entered May 5, 1964, denying appellant’s petition for The Writ of Habeas Corpus, after a hearing in the District Court following our remand in Powell v. Sacks, Warden, etc., 303 F.2d 808 (6th Cir. 1962).
Appellant was tried, and convicted by jury verdict of murder in the first degree, in the Court of Common Pleas of Hamilton County, Ohio, on March 22, 1957. The case has since had the attention of both the State and Federal courts on several occasions. [See: State of Ohio v. Powell, 105 Ohio App. 529, 148 N.E.2d 230 (1957), affirmed, 167 Ohio St. 319, 148 N.E.2d 232 (1958); cert. denied, 359 U.S. 964, 79 S.Ct. 882, 3 L.Ed.2d 843 (1959); Powell v. Sacks, Warden, etc., supra, 303 F.2d 808.]
The Federal constitutional question presented upon the habeas corpus hearing in the District Court, and now upon this appeal, is stated by appellant as follows: “Did the Court of Common Pleas of Hamilton County, Ohio, violate the appellant’s Constitutional Rights under the Fourteenth Amendment by admitting into evidence a confession obtained from the appellant involuntarily and under coercion?”
Although our remand to the District Court was for reconsideration in light of Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), the recent case of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), has introduced, since the District Court’s ruling on remand, a new problem relating to the procedure of the State court in disposing of appellant’s challenge to the admissibility of the confession. We are satisfied with the correctness of the District Court’s determination that “the trial court applied the correct standard as to, the voluntariness of the petitioner’s confession”. [Rogers v. Richmond, supra, 365 U.S. 534, 81 S.Ct. 735]; and are satisfied as well that the record before us is adequate to resolve, without remand or further hearing, the subsidiary questions raised by Jackson v. Denno, supra, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.
When the alleged confession was offered in evidence at the State-court trial, appellant’s attorney objected upon the ground that it was “involuntary, and obtained under duress”. The trial judge thereupon proceeded to hear evidence outside the presence of the jury on the issue raised as to the involuntary character of the alleged confession; and upon the conclusion of such hearing ruled, that the challenged evidence was admissible.
The State trial then proceeded, and the issue as to whether alleged extrajudicial admissions and confessions of appellant were voluntarily made was litigated before the jury, with the evidence on that issue in sharp conflict as between prosecution witnesses and the appellant.
Upon submitting the case for verdict, the Judge of the Court of Common Pleas instructed the jury, inter alia:
“There has been evidence here and there is introduced in evidence certain admissions or confessions alleged to have been made by this defendant in connection with the charges contained in this indictment. There is one here which is an exhibit purporting to be a written statement against interest, or a confession. There is other evidence introduced tending to establish some verbal or oral statements against interest, or confessions, allegedly made by the defendant in this case. Under our law such statements against interest, or as they are sometimes called, confessions, are permitted to be introduced into the evidence to be considered by the jury with all other evidence in the case in determining the issue which is to be determined and decided by the jury. In other words, confessions, or statements against interest, are competent evidence if such statements or admissions are the result of voluntary action on the part of the accused. Now a statement or confession is not voluntary under our law when it is made under duress or fear or threat of personal violence. It is not a voluntary statement or confession if it is made and induced by any promise of a reward. So that you must determine in this case as to these so-called statements against interest or confessions, whether verbal or written, you must determine whether or not they are voluntary in that sense. That does not necessarily mean that it must be shown that the accused who was alleged to have made such statements simply insisted upon making a statement, it means a statement must not be considered if it would not have been made by the accused except as a result of his fear, actual fear of physical violence, or except as his dependence upon a promise of a reward.
“If you find that any statements which may have been introduced in evidence, whether you believe them to be true or not, if you find that such statements were not voluntary under this definition or were involuntary, then you should not consider them at all in connection with your determination of the issues in the case. If you find that they were voluntarily made by the accused under the definitions which I have given you, then you should consider them together with all the other evidence in the case, giving them such weight and such credence as you find is merited under the evidence and circumstances and all of the case and then consider them, those statements, whether written or oral, together with all the other evidence in the case in reaching the conclusion or result or decision which you must reach of the facts in this case.”
Here, then, the Ohio court clearly followed “the Massachusetts procedure, under which the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused * * *.” [Jackson v. Denno, supra, 378 U.S. at 378, 84 S.Ct. at 1781; see also, id., at 378 n. 8, 390 n. 18, 395 n. 23, 397-398, 416; cf. Rogers v. Richmond, supra, 365 U.S. at 537, 542-544, 81 S.Ct. 735.
Here, too, the Ohio court gave appellant that “to which he is constitutionally entitled — an adequate evidentiary hearing [by the trial judge outside the presence of the jury] productive of reliable results concerning the voluntariness of his confession”. [Jackson v. Denno, supra, 378 U.S. at 393-394, 84 S.Ct. at 1790] Moreover, in the case at bar, the trial judge’s independent determination of voluntariness was made “prior to the admission of the confession to the jury which [was] adjudicating guilt or innocence”. [Id., at 395, 84 S.Ct., at 1791.]
Appellant now raises before us the further question “whether failure to provide funds to appellant’s court-appointed attorney for travel and subsistence from Cincinnati, Ohio, to Columbus, Ohio, while said attorney was representing appellant before the District Court in Columbus, Ohio, violated appellant’s constitutional rights”. While we could wish funds were available to reimburse and even compensate appellant’s court-appointed counsel, it does not appear that lack of such funds was any deterrent to the zeal and effectiveness of William Allen Ogden, Esq., who has represented appellant without reimbursement of expense and without compensation, both in the District Court and before this Court, all in keeping with the high ideals of his profession.
Appellant’s rights under the Fourteenth Amendment have been fully recognized and protected throughout.
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:
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sc_issue_2
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17
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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.
DeCOTEAU, NATURAL MOTHER AND NEXT FRIEND OF FEATHER et al. v. DISTRICT COUNTY COURT FOR THE TENTH JUDICIAL DISTRICT
No. 73-1148.
Argued December 16, 1974
Decided March 3, 1975
Bertram E. Hirsch argued the cause for petitioner in No. 73-1148. With him on the briefs was Arthur Lazarus, Jr. William F. Day, Jr., Special Assistant Attorney General of South Dakota, argued the cause for petitioner in No. 73-1500 and respondent in No. 73-1148. On the briefs were Kermit A. Sande, Attorney General, Walter W. Andre, Assistant Attorney General, and Tom D. Tobin, Special Assistant Attorney General. Larry R. Gustafson argued the cause and filed a brief for respondents in No. 73-1500.
Harry R. Sachse argued the cause for the United States as amicus curiae urging affirmance in No. 73-1500. With him on the brief were Solicitor General Bork, Assistant Attorney General Johnson, Louis F. Claiborne, and Edmund B. Clark.
Together with No. 73-1500, Erickson, Warden v. United States ex rel. Feather et al., on certiorari to the United States Court of Appeals for the Eighth Circuit.
Solicitor General Bork, Assistant Attorney General Johnson, Louis F. Claiborne, Harry R. Sachse, and Edmund B. Clark filed a brief for the United States as amicus curiae urging reversal in No. 73-1148.
Allen I. Olson, Attorney General, and Paul M. Sand, First Assistant Attorney General, filed a brief for the State of North Dakota as amicus curiae urging affirmance in No. 73-1148, joined by the Attorneys General for their respective States as follows: Evelle J. Younger of California, W. Anthony Park of Idaho, Richard C. Turner of Iowa, Robert L. Woodahl of Montana, Clarence A. H. Meyer of Nebraska, Robert List of Nevada, David L. Norvell of New Mexico, Larry D. Derryberry of Oklahoma, Slade Gorton of Washington, and Robert W. Warren of Wisconsin.
Briefs of amici curiae urging affirmance in No. 73-1500 were filed by Glen A. Wilkinson, Jerry C. Straus, and Richard A. Baenen for the Arapahoe Tribe of Wind River Reservation et al., and by the Sisseton-Wahpeton Sioux Tribe.
Mr. Justice Stewart
delivered the opinion of the Court.
These two cases, consolidated for decision, raise the single question whether the Lake Traverse Indian Reservation in South Dakota, created by an 1867 treaty between the United States and the Sisseton and Wahpeton bands of Sioux Indians, was terminated and returned to the public domain, by the Act of March 3, 1891, c. 543, 26 Stat. 1035. In each of the two cases, the South Dakota courts asserted jurisdiction over members of the Sisseton-Wahpeton Tribe for acts done on lands which, though within the 1867 reservation borders, have been owned and settled by non-Indians since the 1891 Act. The parties agree that the state courts did not have jurisdiction if these lands are “Indian country,” as defined in 18 U. S. C. § 1151, and that this question depends upon whether the lands retained reservation status after 1891. We hold, for the reasons that follow, that the 1891 Act terminated the Lake Traverse Reservation, and that consequently the state courts have jurisdiction over conduct on non-Indian lands within the 1867 reservation borders.
I
The 1867 boundaries of the Lake Traverse Reservation enclose approximately 918,000 acres of land. Within the 1867 boundaries, there reside about 3,000 tribal members and 30,000 non-Indians. About 15% of the land is in the form of “Indian trust allotments”; these are individual land tracts retained by members of the Sisseton-Wahpe-ton Tribe when the rest of the reservation lands were sold to the United States in 1891. The trust allotments are scattered in a random pattern throughout the 1867 reservation area. The remainder of the reservation land was purchased from the United States by non-Indian settlers after 1891, and is presently inhabited by non-Indians.
It is common ground here that Indian conduct occurring on the trust allotments is beyond the State's jurisdiction, being instead the proper concern of tribal or federal authorities. In the two cases before us, however, the State asserted jurisdiction over Indians based on conduct occurring on non-Indian, unallotted land within the 1867 reservation borders.
The petitioner in No. 73-1148, Cheryl Spider DeCo-teau, is the natural mother of Herbert John Spider and Robert Lee Feather; all are enrolled members of the Sis-seton-Wahpeton Tribe. Both children have been assigned to foster homes by order of the respondent District County Court for the Tenth Judicial District of South Dakota. The petitioner gave Robert up for adoption in March of 1971, and Herbert was later separated from her through neglect and dependency proceedings in the respondent court, initiated by the State Welfare Department. On August 31, 1972, the petitioner commenced a habeas corpus action in a State Circuit Court alleging that the respondent had lacked jurisdiction to order her children separated from her and asking that they be released from the custodial process of the respondent. After a hearing, the state court denied the writ, finding that the respondent had possessed jurisdiction because “the non-Indian patented land, upon which a portion of the acts or omissions giving rise to the Order of the District County Court occurred, is not within Indian Country.” While acknowledging that this non-Indian patented land is within the 1867 boundaries of the Lake Traverse Reservation, the court noted that the tribe “had sold or relinquished [the non-Indian land in question] to the United States under the terms of the agreement which was ratified by acts of Congress, March 3, 1891.” The South Dakota Supreme Court affirmed, upon the ground that the 1891 Act ratified an 1889 Agreement by which
“the Sisseton and Wahpeton Bands of Indians sold their unallotted lands, and the United States Government paid a sum certain for each and every acre purchased.... This, then, was an outright cession and sale of lands by the Indians to the United States. The land sold was separated from the reservation by Congress and became part of the public domain.”
The relators in No. 73-1500 are enrolled members of the tribe who were convicted in South Dakota courts of various violations of the State’s penal laws committed on non-Indian lands within the 1867 reservation boundaries. The relators, in the custody of a state penitentiary, separately petitioned for writs of habeas corpus in the United States District Court for the District of South Dakota, alleging that the state courts had lacked criminal jurisdiction over their conduct within the 1867 reservation boundaries. The District Court summarily denied the petitions, but the Court of Appeals for the Eighth Circuit reversed. In DeMarrias v. South Dakota, 319 F. 2d 845, that court had previously held that the 1891 Act had terminated the Lake Traverse Reservation, leaving only allotted Indian lands within tribal or federal jurisdiction. But in the present case the Court of Appeals overruled its DeMarrias decision, finding it inconsistent with the principles of statutory construction established by this Court in Mattz v. Arnett, 412 U. S. 481, and Seymour v. Superintendent, 368 U. S. 351. The Court of Appeals accordingly held that “[t]he boundaries of the Lake Traverse Indian reservation remain as they were established in 1867. The scene of the alleged crimes is, therefore, within Indian country. South Dakota had no jurisdiction to try appellants.” 489 F. 2d 99, 103.
We granted certiorari in the two eases, 417 U. S. 929, to resolve the conflict between the Supreme Court of South Dakota and the Court of Appeals for the Eighth Circuit as to the effect of the 1891 Act on South Dakota’s civil and criminal jurisdiction over unallotted lands within the 1867 reservation boundaries.
II
When the Sioux Nation rebelled against the United States in 1862, the Sisseton and Wahpeton bands of the Nation remained loyal to the Federal Government, many members serving as “scouts” for federal troops. This loyalty went unrecognized, however, when the Government confiscated the Sioux lands after the rebellion. In a belated act of gratitude, the United States entered into a treaty with the Sisseton-Wahpeton Tribe in 1867. The treaty granted the tribe a permanent reservation in the Lake Traverse area, and provided for tribal self-government under the supervision of federal agents.
But familiar forces soon began to work upon the Lake Traverse Reservation. A nearby and growing population of white farmers, merchants, and railroad men began urging authorities in Washington to open the reservation to general settlement. The Indians, suffering from disease and bad harvests, developed an increasing need for cash and direct assistance. Meanwhile, the Government had altered its general policy toward the Indian tribes. After 1871, the tribes were no longer regarded as sovereign nations, and the Government began to regulate their affairs through statute or through contractual agreements ratified by statute. In 1887, the General Allotment Act (or Dawes Act) was enacted in an attempt to reconcile the Government's responsibility for the Indians’ welfare with the desire of non-Indians to settle upon reservation lands. The Act empowered the President to allot portions of reservation land to tribal members and, with tribal consent, to sell the surplus lands to white settlers, with the proceeds of these sales being dedicated to the Indians’ benefit. See Mattz v. Arnett, 412 U. S., at 496-497.
Against this background, a series of negotiations took place in 1889 with the objective of opening the Lake Traverse Reservation to settlement. In April of that year, a South Dakota banker, D. W. Diggs, sent to the Secretary of the Interior a request on behalf of the local white community that reservation lands be made available for commerce, farming, and railroad development. In May, Diggs met with a council of tribal leaders, who told him that the tribe would consider selling the reserved lands if the Government would first pay a “loyal scout claim” which the tribe believed was owing as part of the 1867 Treaty. Spokesmen for the tribe were quoted in the local press that month as follows:
“We never thought to keep this reservation for our lifetime.
“... Now that South Dakota has come in as a state we have some one to go to, to right our wrongs. The Indians have taken their land in severalty. They are waiting for patents. The Indians are anxious to get patents. We are willing the surplus land should be sold. We don’t expect to keep reservation. We want to get the benefit of the sale. If the government will pay what they owe, we will be pleased with the opening. There will be left over allotments 880,000 acres. If the government pays what they owe, and pay what they agree per acre, we will be pleased with the opening. When the government asks me to do anything, I am always willing to do it. I hope you will try to get the government to do what is right.
“If the government will do this, it will benefit both the Indians and the whites [and illustrates by holding up half a dozen keys [in a] perpendicular position, separately], we all stand this way [and then, pressing them against each other], we will be as one key. When the reservation is open we meet as one body. We be as one.
“... If we get the money we will open up. Your committee needn’t be discouraged, we will open up.
“... We are anxious to become citizens and vote. We have laid before you all we have to say from our hearts....”
By summer, the Commissioner of Indian Affairs had apparently been won over, for in August 1889, he sent to the Secretary of the Interior a set of draft instructions for the guidance of a Commission to negotiate with the Sisseton and Wahpeton Indians for the sale of their surplus lands. The instructions noted that the negotiations would be pursuant to § 5 of the General Allotment Act, that the allotment of individual tracts of reservation land to tribal members was already “virtually... completed,” and that “the Indians desire to sell a portion at least of their surplus [i. e., unallotted] lands.”
While these proposed instructions suggested that sale of all the surplus lands might be “inadvisable,” the negotiations in fact proceeded toward such a total sale. The three Government representatives were appointed in November, and two weeks of meetings at the reservation promptly ensued. The proceedings at these meetings were transcribed, and the records show that the Indians wished to sell outright all of their unallotted lands, on three conditions: that each tribal member, regardless of age or sex, receive an allotment of 160 acres; that Congress appropriate moneys to make good on the tribe’s outstanding “loyal scout claim”; and that an adequate sales price per acre be arrived at for all of the unallotted land.
In December, an Agreement was reached and the contract was signed by the required majority of male adult tribal members. Its terms were accurately summarized by the Commissioner of Indian Affairs in his report to the Secretary of the Interior:
“By article 1, the Indians cede, sell, relinquish, and convey to the United States all the unallotted land within the reservation remaining after the allotments and additional allotments provided for in article 4 shall have been made.
“Article 2 provides that the United States will pay to the Indians $2.50 per acre for the lands ceded.
“Article 3 provides for the payment of back annuities, and continues the annuities of $18,400 until July 1, 1901.
“Article 4 provides for the equalization of allotments so that each person, including married women, shall have 160 acres.”
President Harrison immediately submitted the Agreement to Congress for legislative approval. While the subsequent legislative history is largely irrelevant to the issues before us, three aspects bear notice. First, the several committee reports which commented on the Agreement recognized that it effected a simple and unqualified cession of all of the unallotted lands to the United States for a sum certain. Second, the Congress recognized that the Agreement could not be altered, and therefore debate centered largely on the disposition to be made by the United States of the lands it had acquired under the Agreement; it was decided that these lands should be sold to settlers at $2.50 per acre under the homestead laws. Third, the Congress included the Sisseton-Wahpeton Agreement in a comprehensive Act which also ratified several other agreements providing for the outright cession of surplus reservation lands to the Government. The other agreements employed cession language virtually identical to that in the Sisseton-Wahpeton Agreement, but in these other cases the Indians sold only a described portion of their lands, rather than all “unallotted” portions, the result being merely a reduction in the size of the affected reservations. The intended effect of all of these ratification agreements was made clear by the sponsors of the comprehensive legislation:
“All the pending agreements or treaties for the purchase of Indian lands are ratified and confirmed by the provisions of this bill....
“The bill carries the largest appropriation ever carried by an Indian appropriation bill, but it extinguishes the Indian title to a great domain and opens it to settlement by the hardy and progessive pioneers....”
“We do not pretend to make any modification or amendment of the agreements themselves. We merely ratify those, and then we take the estate we have acquired in this way, and after providing for the payment of the money, or whatever it is we have agreed to pay these Indians, we take these landed estates and parcel and divide them out among the people in a fashion that we think is the most conducive to the occupancy of that country by an honest, laborious, earnest, and faithful set of people.”
“The remainder of the bill is made up of the other appropriations necessary to carry out the agreements that were made with Indians for the surrender of a large portion of their reservations to the public domain. In the main it has cost the United States between $1.25 and $1.50 an acre for some ten or eleven million acres of land. All this land is opened by this bill to settlement as part of the public domain upon the payment by the settler of $1.50 an acre, for all except that which was obtained from the Sisseton and Wahpeton reservation, which is open to settlement at $2.50 an acre, because the United States gave the Indians for the surrender $2.50 an acre.”
As passed by the Congress, the 1891 Act recited and ratified the 1889 Agreement with the tribe and appropriated $2,203,000 to pay the tribe for the ceded land and to make good the tribe’s “loyal scout” claim. § 27, 26 Stat. 1038. A portion of the moneys was made available for immediate distribution to tribal members, on a per capita basis, and the remaining funds were, as had been agreed, "placed in the Treasury of the United States, to the credit of said... Indians [at five percent interest]... for the education and civilization of said bands of Indians or members thereof.” § 27, 26 Stat. 1039. The Act further provided that the 160-acre allotments were to be effected “as soon as practicable,” pursuant to the terms of the General Allotment Act. § 29, 26 Stat. 1039. Finally, the Act provided that upon payment of the per capita purchase moneys to the tribe, and the completion of the enlarged allotment process, “the lands by said agreement ceded, sold, relinquished, and conveyed to the United States” shall be opened “only to entry and settlement [at $2.50 per acre] under the homestead and townsite laws of the United States, excepting the sixteenth and thirty-sixth sections of said lands, which shall be reserved for common school purposes, and be subject to the laws of the State wherein located,” § 30, 26 Stat. 1039.
On April 11, 1892, President Harrison declared open for settlement all “lands embraced in said reservation, saving and excepting the lands reserved for and allotted to said Indians.” The ceded lands were rapidly purchased and settled by non-Indians.
The jurisdictional history subsequent to the 1891 Act is not wholly clear, but it appears that state jurisdiction over the ceded (i. e., unallotted) lands went virtually unquestioned until the 1960’s. The Lake Traverse Reservation was eliminated from the maps published by the Commissioner of Indian Affairs until 1908; thereafter, some Government maps included the area as an “open” or “former” reservation, while more recent ones have characterized it simply as a “reservation.” Federal Indian agents have remained active in the area, and Congress has regularly appropriated funds for the tribe’s welfare; the allotted Indian tracts have retained their “trust” status pursuant to periodic Executive Orders. A tribal constitution did not appear until 1946, and tribal jurisdiction under it extended only to “Indian-owned lands lying in the territory within the original confines of the Sisseton-Wahpeton Lake Traverse Sioux Reservation.” In 1963, the Court of Appeals for the Eighth Circuit held that the 1891 Act had terminated the reservation; in the process, the court noted that “the highest court of that state [South Dakota] has repeatedly held that South Dakota has jurisdiction,” and that the Justice Department had taken a like position. DeMarrias v. South Dakota, 319 F. 2d, at 846.
But the Commissioner of Indian Affairs approved a new tribal constitution in 1966, which stated: “The jurisdiction of the Sisseton-Wahpeton Sioux Tribe shall extend to lands lying in the territory within the original confines of the Lake Traverse Reservation as described in Article III of the Treaty of February 19, 1867.” Apparently, however, no tribal court or legal code was established to exercise this jurisdiction. In 1972, a field solicitor for the Department of the Interior rendered an opinion that the 1891 Act had not extinguished tribal jurisdiction over the 1867 reservation lands. In 1973, the Court of Appeals overruled DeMarrias, in the decision here under review, and in early 1974, after several months of preparation, the tribe formally established a law court and a legal code to exercise civil and-criminal jurisdiction throughout the 1867 reservation lands.
Ill
This Court does not lightly conclude that an Indian reservation has been terminated. “ [ W] hen Congress has once established a reservation all tracts included within it remain a part of the reservation until separated therefrom by Congress.” United States v. Celestine, 215 U. S. 278, 285. The congressional intent must be clear, to overcome “the general rule that ‘[djoubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.’ ” McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 174, quoting Carpenter v. Shaw, 280 U. S. 363, 367. Accordingly, the Court requires that the “congressional determination to terminate... be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history.” Mattz v. Arnett, 412 U. S., at 505. See also Seymour v. Superintendent, 368 U. S. 351, and United States v. Nice, 241 U. S. 591. In particular, we have stressed that reservation status may survive the mere opening of a reservation to settlement, even when the moneys paid for the land by the settlers are placed in trust by the Government for the Indians’ benefit. Mattz v. Arnett, supra, and Seymour v. Superintendent, supra.
But in this case, “the face of the Act,” and its “surrounding circumstances” and “legislative history,” all point unmistakably to the conclusion that the Lake Traverse Reservation was terminated in 1891. The negotiations leading to the 1889 Agreement show plainly that the Indians were willing to convey to the Government, for a sum certain, all of their interest in all of their unallotted lands. See supra, at 432-437. The Agreement’s language, adopted by majority vote of the tribe, was precisely suited to this purpose:
“The Sisseton and Wahpeton bands of Dakota or Sioux Indians hereby cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation set apart to said bands of Indians as aforesaid remaining after the allotments and additional allotments provided for in article four of this agreement shall have been made.”
This language is virtually indistinguishable from that used in the other sum-certain, cession agreements ratified by Congress in the same 1891 Act. See nn. 21 and 22, supra. That the lands ceded in the other agreements were returned to the public domain, stripped of reservation status, can hardly be questioned, and every party here acknowledges as much. The sponsors of the legislation stated repeatedly that the ratified agreements would return the ceded lands to the “public domain.” See supra, at 440-441. Cf. Mattz v. Arnett, 412 U. S., at 504 n. 22.
It is true that the Sisseton-Wahpeton Agreement was unique in providing for cession of all, rather than simply a major portion of, the affected tribe’s unallotted lands. But, as the historical circumstances make clear, this was not because the tribe wished to retain its former reservation, undiminished, but rather because the tribe and the Government were satisfied that retention of allotments would provide an adequate fulcrum for tribal affairs. In such a situation, exclusive tribal and federal jurisdiction is limited to the retained allotments. 18 U. S. C. § 1151 (c). See United States v. Pelican, 232 U. S. 442. With the benefit of hindsight, it may be argued that the tribe and the Government would have been better advised to have carved out a diminished reservation, instead of or in addition to the retained allotments. But we cannot rewrite the 1889 Agreement and the 1891 statute. For the courts to reinstate the entire reservation, on the theory that retention of mere allotments was ill-advised, would carry us well beyond the rule by which legal ambiguities are resolved to the benefit of the Indians. We give this rule the broadest possible scope, but it remains at base a canon for construing the complex treaties, statutes, and contracts which define the status of Indian tribes. A canon of construction is not a license to disregard clear expressions of tribal and congressional intent.
The Court of Appeals thought that a finding of termination here would be inconsistent with Mattz and Seymour. This is not so. We adhere without qualification to both the holdings and the reasoning of those decisions. But the gross differences between the facts of those cases and the facts here cannot be ignored.
In Mattz, the Court held that an 1892 Act of Congress did not terminate the Klamath River Indian Reservation in northern California. That Act declared the reservation lands “subject to settlement, entry, and purchase” under the homestead laws of the United States, empowered the Secretary of the Interior to allot tracts to tribal members, and provided that any proceeds of land sales to settlers should be placed in a fund for the tribe’s benefit. The 1892 statute could be considered a termination provision only if continued reservation status were inconsistent with the mere opening of lands to settlement, and such is not the case. See 18 U. S. C. § 1151 (a). But the 1891 Act before us is a very different instrument. It is not a unilateral action by Congress but the ratification of a previously negotiated agreement, to which a tribal majority consented. The 1891 Act does not merely open lands to settlement; it also appropriates and vests in the tribe a sum certain — $2.50 per acre — in payment for the express cession and relinquishment of “all” of the tribe’s “claim, right, title and interest” in the unallotted lands. The statute in Matts, by contrast, benefited the tribe only indirectly, by establishing a fund dependent on uncertain future sales of its land to settlers. See also Ash Sheep Co. v. United States, 252 U. S. 159, 164 — 166. Furthermore, the circumstances surrounding congressional action in Matts militated persuasively against a finding of termination. That action represented a clear retreat from previous congressional attempts to vacate the Klamath River Reservation in express terms; and the Department of the Interior had consistently regarded the Klamath River Reservation as a continuing one, despite the 1892 legislation. Mattz v. Arnett, supra, at 503-505. In the present case, by contrast, the surrounding circumstances are fully consistent with an intent to terminate the reservation, and inconsistent with any other purpose.
In Seymour, the Court held that a 1906 Act of Congress did not terminate the southern portion of the Colville Indian Reservation in Washington. Like that in question in Matts, this Act was unilateral in character; like that in question in Mattz, it merely opened reservation land to settlement and provided that the uncertain future proceeds of settler purchases should be applied to the Indians’ benefit. The Seymour Court was not confronted with a straightforward agreement ceding lands to the Government for a sum certain. In Seymour, the Court sharply contrasted the 1906 Act, which provided only for non-Indian settlement, with an 1892 Act, which plainly “ 'vacated’ ” and restored “ 'to the public domain’ ” the northern portion of the Colville Reservation. Seymour v. Superintendent, 368 U. S., at 355. The 1891 Act before us here is analogous to that 1892 statute.
Thus, in finding a termination of the Lake Traverse Reservation, we are not departing from, but following and reaffirming, the guiding principles of Mattz and Seymour.
Until the Court of Appeals altered the status quo, South Dakota had exercised jurisdiction over the un-allotted lands of the former reservation for some 80 years. Counsel for the tribal members stated at oral argument that many of the Indians have resented state authority and suffered under it. Counsel for the State denied this and argued that an end to state jurisdiction would be calamitous for all the residents of the area, Indian and non-Indian alike. These competing pleas are not for us to adjudge, for our task here is a narrow one. In the 1889 Agreement and the 1891 Act ratifying it, Congress and the tribe spoke clearly. Some might wish they had spoken differently, but we cannot remake history.
The judgment in No. 73-1148 is affirmed, and that in No. 73-1500 is reversed.
It is so ordered.
APPENDIX A TO OPINION OF THE COURT
TREATY OF FEB. 19, 1867, 15 STAT. 505, AS AMENDED, 15 STAT. 509
Whereas it is understood that a portion of the Sissiton and Warpeton bands of Santee Sioux Indians, numbering from twelve hundred to fifteen hundred persons, not only preserved their obligations to the government of the United States, during and since the outbreak of the Medewakantons and other bands of Sioux in 1862, but freely perilled their lives during that outbreak to rescue the residents on the Sioux reservation, and to obtain possession of white women and children made captives by the hostile bands; and that another portion of said Sissiton.and Warpeton bands, numbering from one thousand to twelve hundred persons, who did not participate in the massacre of the whites in 1862, fearing the indiscriminate vengeance of the whites, fled to the great prairies of the northwest, where they still remain; and
Whereas Congress, in confiscating the Sioux annuities and reservations, made no provision for the support of these, the friendly portion of the Sissiton and Warpeton bands, and it is believed [that] they have been suffered to remain homeless wanderers, frequently subject to intense suffering from want of subsistence and clothing to protect them from the rigors of a high northern latitude, although at all times prompt in rendering service when called upon to repel hostile raids and to punish depredations committed by hostile Indians upon the persons and property of the whites; and
Whereas the several subdivisions of the friendly Sissi-tons and Warpeton bands ask, through their representatives, that their adherence to their former obligations of friendship to the government and people of the United States be recognized, and that provision be made to enable them to return to an agricultural life and be relieved from a dependence upon the chase for a precarious subsistence: therefore,
A treaty has been made and entered into, at Washington city, District of Columbia, this nineteenth day of February, A. D. 1867, by and between Lewis V. Bogy, Commissioner of Indian Affairs, and William H. Watson, commissioners, on the part of the United States, and the undersigned chiefs and headmen of the Sissiton and Warpeton bands of Dakota or Sioux Indians, as follows, to wit:
Article I. The Sissiton and Warpeton bands of Dakota Sioux Indians, represented in council, will continue their friendly relations with the government and people of the United States, and bind themselves individually and collectively to use their influence to the extent of their ability to prevent other bands of Dakota or other adjacent tribes from making hostile demonstrations against the government or people of the United States.
Article II. The said bands hereby cede to the United States the right to construct wagon roads, railroads, mail stations, telegraph lines, and such other public improvements as the interest of the government may require, over and across the lands claimed by said bands (including their reservation as hereinafter designated) over any route or routes that that may be selected by authority of the government, said lands so claimed being bounded on the south and east by the treaty line of 1851 and the Red river of the North to the mouth of Goose river, on the north by the Goose river and a line running from the source thereof by the most westerly point of Devil’s lake to the Chief’s Bluff at the head of James river, and on the west by the James river to the mouth of Mocasín river, and thence to Kampeska lake.
Article III. Por and in consideration of the cession above mentioned, and in consideration of the faithful and important services said to have been rendered by the friendly bands of Sissitons and Warpetons Sioux here represented, and also in consideration of the confiscation of all their annuities, reservations, and improvements, it is agreed that there shall be set apart for the members of said bands who have heretofore surrendered to the authorities of the government, and were not sent to the Crow Creek reservation, and for the members of said bands who were released from prison in 1866, the following described lands as a permanent reservation, viz.:
Beginning at the head of Lake Travers [e], and thence along the treaty line of the treaty of 1851 to Kampeska lake; thence in a direct line to Reipan or the northeast point of the Coteau des Prairie [s], and thence passing north of Skunk lake, on the most direct line to the foot of Lake Traverse, and thence along the treaty line of 1851 to the place of beginning.
Article IV. It is further agreed that a reservation be set apart for all other members of said bands who were not sent to the Crow Creek reservation, and also for the Cut head bands of Yanktonais Sioux, a reservation bounded as follows, viz.:
Beginning at the most easterly point of Devil’s lake; thence along the waters of said lake to the most westerly point of the same; thence on a direct line to the nearest point on the Cheyenne river; thence down said river to a point opposite the lower end of Aspen island, and thence on a direct line to the place of beginning.
Article V. The said reservations shall be apportioned in tracts of (160) one hundred and sixty acres to each head of a family, or single person over the age of (21) twenty-one years, belonging to said bands, and entitled to locate thereon, who may desire to locate permanently and cultivate the soil as a means of subsistence: each (160) one hundred and sixty acres so allotted to be made to conform to the legal subdivisions of the government surveys, when such surveys shall have been made; and every person to whom lands may be allotted under the provisions of this article who shall occupy and cultivate a portion thereof for five consecutive years shall thereafter be entitled to receive a patent for the same so soon as he shall have fifty acres of said tract fenced, ploughed, and in crop: Provided, [That] said patent shall not authorize any transfer of said lands, or portions thereof, except to the United States, but said lands and the improvements thereon shall descend to the proper heirs of the persons obtaining a patent.
Article VI.
Question: What is the issue of the decision?
01. voting
02. Voting Rights Act of 1965, plus amendments
03. ballot access (of candidates and political parties)
04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action)
05. desegregation, schools
06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions.
07. affirmative action
08. slavery or indenture
09. sit-in demonstrations (protests against racial discrimination in places of public accommodation)
10. reapportionment: other than plans governed by the Voting Rights Act
11. debtors' rights
12. deportation (cf. immigration and naturalization)
13. employability of aliens (cf. immigration and naturalization)
14. sex discrimination (excluding sex discrimination in employment)
15. sex discrimination in employment (cf. sex discrimination)
16. Indians (other than pertains to state jurisdiction over)
17. Indians, state jurisdiction over
18. juveniles (cf. rights of illegitimates)
19. poverty law, constitutional
20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision.
21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits
22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes
23. residency requirements: durational, plus discrimination against nonresidents
24. military: draftee, or person subject to induction
25. military: active duty
26. military: veteran
27. immigration and naturalization: permanent residence
28. immigration and naturalization: citizenship
29. immigration and naturalization: loss of citizenship, denaturalization
30. immigration and naturalization: access to public education
31. immigration and naturalization: welfare benefits
32. immigration and naturalization: miscellaneous
33. indigents: appointment of counsel (cf. right to counsel)
34. indigents: inadequate representation by counsel (cf. right to counsel)
35. indigents: payment of fine
36. indigents: costs or filing fees
37. indigents: U.S. Supreme Court docketing fee
38. indigents: transcript
39. indigents: assistance of psychiatrist
40. indigents: miscellaneous
41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty)
42. miscellaneous civil rights (cf. comity: civil rights)
Answer:
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songer_casetyp1_1-3-1
|
H
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
UNITED STATES of America, Appellee, v. Gad GILAN, Defendant-Appellant.
No. 1158, Dockets 91-1089, 91-1202.
United States Court of Appeals, Second Circuit.
Argued April 2, 1992.
Decided June 22, 1992.
Mark B. Gombiner, New York City (The Legal Aid Soc., Federal Defender Services Appeals Unit), for defendant-appellant.
Seth L. Marvin, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Andrew J. Malo-ney, U.S. Atty., E.D.N.Y., Peter A. Nor-ling, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.
Before KEARSE and MAHONEY, Circuit Judges, and RESTANI, Judge.
Honorable Jane A. Restani, of the United States Court of International Trade, sitting by designation.
RESTANI, Judge:
This is an appeal from a judgment of the United States District Court for the Eastern District of New York, McLaughlin, Circuit Judge, sitting by designation, dated January 17, 1991 after a jury trial, convicting Gad Gilan and Offer Cohen of conspiring to steal goods moved in interstate commerce and to defraud (18 U.S.C. §§ 659, 1343 (1988)) in violation of 18 U.S.C. § 371 (1988), and stealing goods moved in interstate commerce, 18 U.S.C. § 659 (1988). Appellant Gilan argues that his conviction should be reversed because the district court improperly admitted evidence of an earlier uncharged theft pursuant to Rule 404(b) of the Federal Rules of Evidence (evidence of “other crimes, wrongs, or acts” admissible to prove, inter alia, intent, knowledge, identity or absence of mistake) and the evidence, if relevant, was unfairly prejudicial and not admissible under Rule 403.
We find that the district court erred in admitting evidence of the uncharged act. Accordingly, this case is remanded for a new trial.
Background
Appellant was charged, together with Offer Cohen, of theft and conspiracy to defraud and to steal from Opportunities Plus (“OP”), a company that liquidates inventory, of over $300,000. The government charged that in October 1988 appellant obtained 16,309 pairs of shoes from OP by using false names and companies, together with a fraudulent certified check. Gilan was alleged to have delivered the fraudulent check, picked up shoes on four separate occasions over a two day period, and then transferred the shoes to a warehouse. Gilan’s defense was lack of knowledge and intent; he claimed he was the innocent dupe of an unindicted individual, Simone Asseraf.
1. The charged crime — the Ciao shoe theft
In July 1988, Jack Eleven, President of the Footwear Division of OP, learned that a company named Lifestyle International was interested in liquidating 24,000 pairs of Ciao brand men’s shoes. Eleven contacted Simone Asseraf, whom he had met through a prior uncompleted deal, to discuss the possibility of Asseraf’s purchase of the shoes. Eleven and Asseraf agreed that Asseraf would buy the shoes and resell them, splitting the profit with OP. Asseraf informed Eleven that he had buyers for 17,000 pairs at $20 per pair; the buyers were identified as Azor International, a company owned by an Al Azor, and Neli Shoe Corporation, a shoe company located on Coney Island Avenue, Brooklyn. Based on this agreement, Eleven made a successful bid for the shoes at $16 per pair.
In the late summer of 1988, two men rented space in a Garnerville, New York, warehouse. The men indicated that they wanted to lease storage space for some shoes. The manager of the warehouse, William Decker, stated that the men introduced themselves as “Offer Comen” and “Simone.” Decker identified Offer Cohen as “Offer Comen.” These men took out a lease in the name of Nicole Importing Company and obtained an insurance policy for the premises in the name of a company called Azor International Incorporated.
On September .15, 1988, Eleven, Asseraf and Victor Ringel, an OP principal, met at M. Stoff, a Manhattan business, to discuss the sale. At this meeting, Asseraf placed a telephone call to a man he identified as A1 Azor. Ringel spoke with Azor and told him that OP wanted payment by wire transfer. After further discussion, they agreed that payment would be by certified check.
Asseraf later told Eleven that Azor’s portion of the shipment would be purchased by someone named Sam Rubin. As-seraf told Eleven that Rubin wished to look at the shoes. Accordingly, on October 3, 1988, Eleven met Asseraf and Rubin at the Boston Airport. The men drove to the Lifestyle warehouse and inspected the shoes. The shoes were found to be satisfactory, and it was arranged that the shoes would be shipped the following day to Azor International at 1410 69th Street, Brooklyn, and to Neli at 1601 Coney Island Avenue, Brooklyn.
On October 5, Malcolm Levy, an OP partner, received a certified check for $320,000 from a man who identified himself as a messenger for Asseraf. The check was drawn on the account of a company called A & T Juvenile Incorporated and was signed by Albert Fox. Before trial, Levy had not identified-either of the defendants as the messenger. On the day before he testified, Levy observed Gilan in the courthouse. Levy testified that when he saw Gilan, he recognized him as the messenger.
On October 6, 1988, Levy deposited the check at the bank. He asked the bank to wire funds to Lifestyle so that the shoes could be released to Neli and Azor International Incorporated.
Immediately after OP received the check, the purchasers made attempts to get the shoes. At this time the shoes were being held by PIE, a trucking company. Mark Ross, a supervisor at the New York PIE facility, stated that on October 7, he received several calls from a man who stated that he was a representative of Azor and wanted to know when the shoes could be delivered. Ross was told that Azor was “hot” to have the shoes and that they should be delivered to 1601 Coney Island Avenue, rather than to the 69th Street address. Later that day, a man who Ross identified as Gilan came to Ross and said he wanted the shoes immediately. Although it was against company policy, Ross permitted Gilan to take the first load of shoes in the truck Gilan had brought with him. Gilan said that he urgently needed the goods for a Columbus Day sale. Later that day, Gilan returned and took the second load of shoes.
On October 11, Gilan returned to obtain the third load. He gave Ross an envelope containing two $100 bills and said “my boss wants you to have this.” Ross refused to accept the money and stated that the shoes would have to be delivered by PIE. Thereafter, Gilan called several times to confirm that the goods would be delivered to 1601 Coney Island Avenue and to inform PIE that he had men waiting for the delivery. The driver, unable to locate the address, saw Gilan on the street. Gilan waved him over, told him that his warehouse was “pretty jammed up” and had the driver unload the goods directly into a rented truck. Gilan signed receipts for this delivery in the name of “Gary Golden.” Gilan again called the dispatcher and asked to pick up the fourth load rather than wait for its delivery.
That same day, October 11, Ringel received a call from Levy informing him that the $320,000 check was fraudulent. Rin-gel immediately called both PIE and the FBI and informed them about the fraudulent check. Agent Conlin of the FBI went to the PIE terminal the next day and followed the delivery truck as it delivered the fourth and final load of shoes.
The PIE truck drove to the same Coney Island Avenue location as before; once again Gilan signalled the truck to stop and unload the shoes into a rented truck. Several people, including Offer Cohen, helped unload the PIE truck. Gilan signed the delivery receipt “Gary Golden.” Agent Conlin followed Gilan’s truck to First Avenue in Manhattan, where Gilan met with Cohen and another person. Gilan and Cohen made calls from a pay telephone and then drove north to Westchester County. Agent Conlin pulled the truck over and found the shoes in the back. Cohen was arrested.
On October 26, 1988, Agent Conlin went to the Garnerville warehouse and opened it with a key he had recovered from Cohen’s jacket pocket at the time of arrest. Inside the warehouse were 900 cartons of stolen Ciao shoes and 115 cartons of stolen Suba brand sneakers.
Gilan was arrested on November 4, 1988. At the time of his arrest, the police found, among other things, a Diner’s Club credit card and an AT & T card issued to the Pitaría Restaurant, a Manhattan restaurant, in Gilan’s name. Records showed that telephone calls to the Pitaría, Eleven, Asseraf, the Garnerville warehouse and OP had been charged to Gilan’s home number.
2. The uncharged crime — the Suba sneaker theft.
By a letter dated June 14, 1990, the government notified the district court that it planned to introduce evidence regarding the September 1988 theft of the sneakers, also recovered in the Garnerville warehouse. The government claimed that David Kim, president of Suba, sold 375 cases of shoes to a man named “Jack” for $69,000 and the certified check used to pay for the goods turned out to be false.
Specifically, Jack told Kim that he was from a company called Azor, which was located at 1410 69th Street, Brooklyn. Kim agreed to sell Jack 9,000 pairs of Suba sneakers for $130,000. Jack left a telephone number where he could be reached; the number was for the Pitaría Restaurant. On September 2, the Friday of Labor Day weekend, Kim attempted to deliver the first shipment of sneakers to 1410 69th Street, Brooklyn, the address of the consignee. When Kim arrived at number 1410 he was met by two men who helped him unload the merchandise into a facility at 1412 69th Street. At some point, a man identifying himself as Jack arrived. Kim was given a certified check for $69,000 drawn on the account of Bloomsbury Fashion, Incorporated. Kim was told that this company was the same as Azor. The men showed Kim a second check for $50,000 and told him that he would receive this check when the second shipment was delivered. At this time, Kim and Jack signed a modified agreement concerning the remaining merchandise.
Several days later, Kim returned to 1412 69th Street with the remainder of the shoes. At that time he discovered that the building located at 1412 was empty and locked; Kim was unable to deliver the sneakers. The certified check was later returned for insufficient funds.
3. The Rule 404(b) Motion and Ruling.
The government’s June 14, 1990 letter outlined the basis for its contention that the Suba theft should be admitted as a similar act pursuant to Federal Rule of Evidence 404(b). The government stated that it intended to prove the following similarities between the Ciao shoe theft and the Suba sneaker theft: 1) the same address for the purported consignee (1410 69th Street, Brooklyn); 2) use of the Pita-ría restaurant as a contact point for discussions (Gilan had a Pitaría credit card, Decker of the Garnerville warehouse had been given this number as a contact location, and Kim had phoned “Jack” there many times); 3) companies named Azore International and Arzare were involved in both transactions; 4) Gilan and Cohen attempted to sell both shoes and sneakers to a fellow tenant at the warehouse facility; 5) recovery of both the Ciao shoes and the Suba sneakers in the same warehouse at the same time; and 6) payment was made with a false check drawn on a defunct company.
After substantial discussion, the court found the following similarities between the two crimes: 1) theft of sneakers and shoes both involved use of a fraudulent check; 2) the purchaser of the Suba sneakers gave the telephone number of the Pita-ría as a contact point and Cohen gave the same contact point to Decker (the manager of the Garnerville warehouse); 3) both the shoes and sneakers were recovered from the Garnerville warehouse at the same time; and 4) in both cases, 1410 69th Street, Brooklyn, was given as an address. The court stated that “[t]hose points of similarity are sufficiently startling to persuade me that a reasonable jury could find by a preponderance that the same people who took the sneakers took the shoes.” Transcript at 322. Accordingly, the trial court ruled that the evidence of the Suba sneaker theft was admissible to prove various elements of the case, including knowledge on Gilan’s part. The court noted that defendants could request a limiting instruction.
Discussion
The trial judge is given broad discretion in making its rulings under Rules 403 and 404(b). On appeal, a ruling involving similar act evidence will be overturned only for a clear abuse of discretion. United States v. Sappe, 898 F.2d 878, 880 (2d Cir.1990).
In Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the Supreme Court outlined the test for admission of other acts evidence under Rule 404(b). First, the evidence must be introduced for a proper purpose, such as proof of knowledge or identity. See id. at 691, 108 S.Ct. at 1502. Second, the offered evidence must be relevant to an issue in the case pursuant to Rule 402, as enforced through Rule 104(b). Id. Third, the evidence must satisfy the probative-prejudice balancing test of Rule 403. Id. Fourth, if the evidence of other acts is admitted, the district court must, if requested, provide a limiting instruction for the jury. Id. at 691-92, 108 S.Ct. at 1502. The Court held that the standard of proof under Rule 404(b) was whether the jury could “reasonably conclude that the act occurred and that the defendant was the actor.” Id. at 689, 108 S.Ct. at 1501. The standard applied by the district court is preponderance of the evidence. See United States v. Ramirez, 894 F.2d 565, 569 (2d Cir.1990) (similar act evidence not relevant unless court determines that a jury “could reasonably find by a preponderance of the evidence that the act occurred and that the defendant committed the act”).
In this case, the first prong of the Hud-dleston test is undeniably satisfied; a proper purpose for admitting similar acts is to show a defendant’s identity or knowledge.
The crux of appellant’s argument is that the district court misapplied the second prong of the Huddleston test. Appellant maintains that there was no evidence which would support a finding by the jury that appellant committed the similar act. The government argues that the district court’s mention of the four similarities between the crimes suffices to connect the uncharged crime to appellant. Essentially the government’s argument is that “[ojnce the jury concluded that Gilan’s undisputed acts in the Ciao events made it likely that he was involved in the Suva [sic] theft, it could then consider the impact of his acts in both thefts as bearing upon his knowledge in the charged offense.” Gov’t Brief at 20.
The problem with the government’s analysis is that there is no evidence tying appellant to the Suba theft. The two crimes might very well be linked because of their striking similarities; however, nothing indicates that Gilan forms any part of that link. See United States v. Gonzalez-Lira, 936 F.2d 184, 189-90 (5th Cir. 1991) (“the Government must at least provide some evidence that the defendant committed the prior bad act”). In both cases relied on by the government, Huddle-ston and United States v. Oshatz, 912 F.2d 534, 542 (2d Cir.1990), cert, denied, — U.S. -, 111 S.Ct. 1695, 114 L.Ed.2d 89 (1991), there was testimony which linked the defendant to the uncharged crime.
In the case before the court, there is nothing which would provide the proper link. Although the circumstances of the thefts are quite similar — a fraudulent certified check was used to purchase both types of footware, the deliveries took place in preparation for a holiday weekend, the 1410 69th Street address was provided as a delivery point, the merchandise was found in the same warehouse at the same time, and the Pitaría phone number was given as a contact point — absent from the equation is any evidence that Gilan was involved in the Suba theft. There was no credible evidence that Kim had ever seen or spoken with Gilan. The phone records did not link Gilan to either Suba or Kim. It is also important to note that in the Ciao shoe theft, Gilan’s role extended to delivering the check, urging rapid delivery of the merchandise, and then picking up several deliveries of the goods. The Ciao deal was set up by Asseraf, who was in close contact with Kleven in his role as negotiator. In the Suba sneaker theft “Jack,” whom the government argues is Gilan, set up the entire purchase, was present when Kim delivered the sneakers, and produced the fraudulent check. Thus, the role played by Gilan in the Ciao shoe theft differs from Jack’s role in the Suba sneaker theft; Gilan became involved in the Ciao theft only as a deliveryman ■ whereas Jack’s role extended to the negotiation stage. While the jury might reasonably conclude that the two crimes were planned and arranged by the same person, there was no evidence that Gilan was that person or that he played any particular role in the uncharged crime.
In Gonzalez-Lira, 936 F.2d at 190, the court noted that even using the generous standard of Huddleston, the government did not establish a proper basis for admission of testimony concerning a prior smuggling attempt. The court noted that there was no evidence at all that it was defendant who committed the earlier offense. The court then stated that: “Because there was no showing that the prior acts to be laid before the jury were the acts of Gonzalez, the evidence was not shown to meet the threshold relevancy requirements of Rule 404(b).” Id. Moreover, in United States v. Peterson, 808 F.2d 969 (2d Cir.1987), we indicated that there must be some link between the defendant and the uncharged crime. Id. at 975.
In this case, the district court apparently admitted the evidence of the uncharged crime because it was relevant to proving Gilan’s knowledge or identity in the charged crime. See supra, n. 7. Later in the trial, however, in explaining what type of limiting instruction he would give if asked, the judge stated: “I think I would charge that it’s admissible solely on the question of identity. That is, attempting to prove the identity of the persons who stole the sneakers and the shoes.” Transcript at 444. As to Gilan, however, knowledge was clearly the issue and the uncharged crime was not probative on the issue of identity as to the charged crime. That element was undisputed. The confusion regarding the purpose of the evidence is exacerbated by the absence of an expressed application of a balancing test between the probative value. and the prejudicial impact of the evidence. Although the district court “need not mechanically recite the Rule 403 formula as a prerequisite to admission,” Ramirez, 894 F.2d at 569, as to Gilan the possible prejudicial effect of the Suba theft does not appear to have been weighed against its probative value in a useful way.
The lack of evidence linking Gilan to the Ciao shoe theft and the absence of a proper Rule 403 balancing test necessitates reversal. Clearly the error here was not harmless. There was no direct evidence of Gilan’s knowledge. Knowledge might be inferred from the totality of his actions, but the admission of the evidence of the prior theft would certainly have figured prominently in the jury’s consideration of this issue.
Conclusion
Accordingly, we hold that the Rule 404(b) evidence should not have been admitted because there was no link between appellant and the Suba sneaker theft. The absence of this link means that in spite of the similarities of the crimes, the jury could not infer appellant’s knowledge and intent based on the Suba theft. This case is remanded for a new trial.
. The check for the insurance premium was later returned for insufficient funds, and the address of the company was found to be the address of an unconnected insurance company.
. The address was later shown to be nonexistent.
. A & T Juvenile turned out to be a defunct company. The former owner testified that his checkbook had been stolen and the check fraudulently certified.
. Apparently in both the shoe and sneaker thefts the company was Azor International.
. Gilan had other connections with the Pitaría: at the time of his arrest, he had a credit card bearing the name Pitaría and the FBI had observed him at the restaurant on several occasions.
.The government informed the court that although it had originally indicated otherwise, it would not offer any evidence that Gilan and Cohen had approached a warehouse tenant and attempted to sell him a quantity of shoes and sneakers.
. The court stated that while the evidence was clearly admissible against Cohen, it was not quite so clear with respect to Gilan. The ultimate conclusion, however, was that "[t]here has been enough evidence thus far in the record to support a finding of substantial evidence pointing towards the defendant! 1 Gilan's guilt of the shoe theft to support the inference that he was also hooked in to the sneaker theft.” Transcript at 317.
. A limiting instruction was not requested and this is not an issue on appeal.
.In Huddleston, defendant argued that the district court erred in admitting testimony that he had sold televisions because the government did not prove that the televisions were in fact stolen. The Court found that the district court must simply examine all the evidence in the case and decide whether the jury could reasonably find that the televisions were stolen by a preponderance of the evidence. Testimony existed which tied defendant into the earlier sale of televisions; the issue was whether the televisions were stolen.
Likewise, in Oshatz the defendants contended that the government had failed to show that they had participated in earlier fraudulent tax schemes with the knowledge and intent to defraud. Thus, the issue was not whether defendants had indeed participated in these similar acts, but whether they had participated with the knowledge that they were fraudulent.
. After testifying at trial, Kim told Agent Con-lin that Gilan was Jack. The trial court summarily precluded this last-minute “identification" testimony and the government does not challenge this ruling on appeal.
. At oral argument before this court, the government advised the court that an important link between Gilan and Suba was a series of four phone calls made on September 1, 1988 from (or billed to) Gilan’s home phone to the Pitaría, and a phone call seventy-two minutes later from (or billed to) the Pitaría to the Suba office. The government argued that this series of phone calls tended to show that Gilan was involved with the Suba theft. Shortly after oral argument, the court was informed that the four calls to the Pitaría were made more than six hours after the call from the Pitaría to Suba. The court is not convinced that a flurry of telephone calls to the Pitaría over six hours after a call from the Pitaría to Suba connects Gilan with the sneaker theft. Moreover, this connection was argued by the government only at oral argument; the government did not list it as a significant link before the district court or before this court prior to oral argument.
. Gilan’s attorney argued that “Jack" could have easily been Asseraf because of AsseraPs role as telephone negotiator in the Ciao crime. Moreover, on September 1, 1988, a phone call was made to Suba from M. Stoff, a place in which Asseraf was known to have conducted business.
. In Peterson, defendant appealed from a conviction for possessing a check stolen from the United States mail knowing it to have been stolen. The evidence showed that a check had been mailed to a Mr. Azapian. The check was deposited in a bank account belonging to defendant and her common-law husband, Mr. Whit-ted. No permission was ever given to defendant which would enable her to possess or deposit the check.
A post-office document analyst testified that the writing on the check endorsement was that of defendant. Whitted testified that he had received the check from a woman for whom he had done some auto repairs and that defendant had never seen the check. The government introduced evidence that on another occasion defendant had forged the endorsement of a Ms. Williams on an earlier check. The support for admitting this prior similar act was first, the actual Williams check (the physical exhibit), and second, the testimony of the document analyst that the endorsement was that of defendant. Although the government told the district judge that it had information that Ms. Williams had never received the check, no evidence was offered to that effect. Moreover, no evidence was offered that defendant had not been given authority to possess or endorse the check.
We concluded that the Williams check should not have been admitted because its "very slight probative value as evidence of knowledge that the Azapian check was stolen was so far outweighed by its potential for undue prejudice that its admission was an abuse of discretion." Id. at 973, 975-76. Although we rejected the evidence under the third prong of the Huddle-ston test, the logic is equally applicable to the case before us today.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
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songer_appel1_1_3
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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.
WHITLOCK & ASSOCIATES, INC., and L. E. Whitlock, Appellants, v. George AARON, Jack Miller, Houston B. Hill, J. D. Kennedy and Frank C. Ryburn, Appellees.
No. 8688.
United States Court of Appeals Tenth Circuit.
Aug. 30, 1967.
Rehearing Denied Oct. 18, 1967.
Emmet A. Blaes, of Jochems, Sargent & Blaes, Wichita, Kan. (James A. Kilgore, of Kilgore & Kilgore, Dallas, Tex., and Bruce W. Zuercher, Wichita, Kan., with him on the brief), for appellants.
Harold Hoffman, of Wynne, Jaffe & Tinsley, Dallas, Tex. (Robert C. Foulston and Malcolm Miller, of Foulston, Siefkin, Powers, Smith & Eberhardt, Wichita, Kan., and Morris I. Jaffe, Dallas, Tex., with him on the brief), for appellees.
Before MURRAH, Chief Judge, and PICKETT and BREITENSTEIN, Circuit Judges.
PICKETT, Circuit Judge.
This action arose out of an alleged breach of a Texas contract wherein appellants agreed to purchase from the appellees 1513 acres of land known as the “Jenkins tract”, together with an option held by the sellers to acquire an additional 1320 acres referred to as the “Schenkel tract”, all located near and annexed to the city of Dallas, Texas. The property was principally suitable for the production of sand and gravel. Prior to the production of sand and gravel from the property, it was necessary that a permit from the city of Dallas be obtained, and the contract of purchase contained this provision :
“That with respect to the respective tracts, Jenkins Tract Sellers and Schenkel Option Sellers agree to obtain the necessary governmental permits allowing licensing and permitting Purchasers to mine, develop and exploit the gravel, sand, dirt and other minerals in said tracts, it being expressly understood that Purchasers will need said permits at least 30 days prior to the closing of this transaction in order to obtain the financing for said purchase. In the event the obtaining of such permits is delayed for any reason, all parties hereto agree that the closing date of this transaction as hereinafter set forth shall be extended until such permits are obtained, but not beyond an extension of sixty (60) days.”
The contract was executed on March 22, 1963, and by agreement the parties fixed July 21, 1963 as the closing date. The expiration date of the Schenkel option was midnight July 15, 1963. During the afternoon of July 15, Whitlock, who was President of appellant Whitlock & Associates, Inc., notified the sellers that the purchasers were rescinding the contract for the reason that the required mining permit had not been obtained. At approximately the same time on July 15, the Dallas City Council adopted a resolution directing the issuance of the permit, with certain limitations. The trial court held that the sellers had complied with the contract provisions and that the purchasers’ refusal to perform was a breach of the contract, which entitled sellers to a judgment for the full amount of their damages, although it was contended that the agreement contained a provision for liquidated damages. Judgment was entered accordingly.
On appeal it is contended that the sellers had failed to comply with the contract in a number of respects, but the record discloses that the primary reason for the withdrawal was the failure to obtain a mining permit satisfactory to those who were to finance the purchasers. At no time prior to the purchasers’ withdrawal from the contract had any objection been made to the property title, and the evidence was without conflict that the sellers could have delivered a good and marketable title to the property. The written notices gave only the lack of an acceptable sand and gravel permit on the Sehenkel tract as reason for the abandonment of the contract. No question is raised as to compliance or non-compliance with the contract provisions insofar as they pertain to the Jenkins tract. Whitlock testified that “Even though the contract provided we should have the permit, if we could have arranged the proper financing, we would have gone ahead with the deal right up to the last day.”
The trial developed an extensive record, but the facts relating to the application to the Dallas authorities for a mining permit on the Sehenkel tract are uncomplicated and not in material dispute. In 1962, after the sellers had acquired the Sehenkel option, an application was made to the Dallas City Council for a mining permit on a portion of that property. The council was favorably disposed to approve the application until objections were raised by residents of a nearby area. It was feared that the gravel removal would adversely affect the underground water supply of this area. After numerous meetings with residents of the area in question and with city authorities, it was indicated that the permit would be granted only upon a deposit with the city of $42,000 by the applicants, which was to be used to pay the cost of installing pipe lines for the delivery of city water to the complainants. Action on the application was delayed while unsuccessful attempts were made to avoid the cash deposit requirement. Whitlock was fully aware of this difficulty and testified that he had offered the services of his attorney to assist in arriving at a solution. On July 8, 1963, the City Council approved the application for a special permit and referred the matter to the City Attorney with instructions to prepare the necessary resolution.
When the expiration date of the Sehenkel option was near, the sellers were concerned as to whether the purchasers intended to consummate the transaction. Whitlock, on numerous occasions, advised them that he had arranged for the financing and was ready to close prior to the expiration of the Sehenkel option. All the interested parties, including representatives of those who were to finance the purchasers, were in Dallas on July 15. All of them knew that the Schenkel option would expire at midnight on that date. All of them knew that the entire deal would collapse if the option were not exercised. The contract required the purchasers to “exercise their right of purchase of the Schenkel Tract under the option to so purchase. * * * ” Between 9 and 10 A.M. on July 15, the purchasers advised the sellers to notify Schenkel that the option would be exercised on that day. There was no indication that the purchasers did not intend to perform until mid-afternoon of that day, when notice of withdrawal was served on the sellers, giving as a reason the failure to obtain a satisfactory mining permit. The resolution which had been adopted by the Dallas City Council directed that upon the deposit of $42,-000.00 a 5-year permit be issued with the right of renewal in the discretion of the council. The resolution further provided :
“Section 6. At the cessation of the mining operation or as soon thereafter as is reasonably practicable, the applicants agree that the excavations that shall have been made by reason of the mining operations will be refilled with 'sanitary fill' to conform with the standard specifications as certified by the Public Works Director of the City of Dallas. If for any reason the sanitary fill cannot be negotiated with the City, then the applicants or their assigns shall fill or cause to be filled the excavations with residual overburden, so as to restore the property as near as possible to its original status and condition.”
The uncontradicted testimony is that the sellers were ready and able to pay the $42,000.00 deposit on July 15, 1963, and were prepared to furnish the required title insurance.
The Connecticut Mutual Life Insurance Company had committed itself to finance the purchasers, provided that the production contract between the purchasers and Texas Industries, Inc. were executed. The record is clear that on the final day it was Texas Industries which became dissatisfied with the terms of the permit and determined not to enter into the production contract under a 5-year permit without the right to automatically renew it and without a separate contract for the City of Dallas to refill the excavations with sanitary fill.
The contract did not provide that the permit should be for any particular time, or that sellers would acquire a contract with the City of Dallas to fill the excavations created by the removal of the gravel with sanitary fill, or that the permit would not require such excavations to be refilled by the permittee or its assigns. We agree with the trial court that the 5-year permit with the discretionary right of renewal is a governmental permit as contemplated by the contract. While the permit is for the purpose of mining only sand and gravel from the property, with no reference to “dirt or other minerals” as stated in the contract, there is no evidence that the permittee could not remove dirt and other minerals if any were found on the property. In any event, objection on this ground is raised for the first time on appeal, and comes too late.
The purchasers attempted to establish that during negotiations to obtain the necessary financing after the execution of the contract, Aaron, one of the sellers, had stated that he could obtain a 10-year permit from the city and that the city would be desirous of giving the purchasers a sanitary fill contract for the Schenkel tract. Aaron denied making these statements. In any event, the contract contains no such requirements, and under Texas law “A contract must be interpreted according to the intention of the parties at the time it was made and not in the light of events occurring thereafter.” McCain v. Giersch, 5 Cir., 112 F. 2d 70, 72; see also Davidson v. Von Lingen, 113 U.S. 40, 5 S.Ct. 346, 28 L.Ed. 885; Portland Gasoline Co. v. Superior Marketing Co., 150 Tex. 533, 243 S.W. 2d 823; Burtis v. Butler Bros., Tex.Civ. App., 228 S.W.2d 938; Zephyr Oil Co. v. Cockburn, Tex.Civ.App., 215 S.W.2d 647; Gardner v. Smith, Tex.Civ.App., 168 S.W.2d 278.
There was evidence that after the signing of the contract, the purchasers would have been satisfied with a 5-year permit, and it was not until Texas Industries, at the very last moment, concluded that it could not live with such a short period, that the 10-year provision was demanded. We agree with the trial court’s determination that the term “permit”, as used in the contract, should not be construed as requiring a permit term of not less than 10 years. Nor are the purchasers in a position seriously to assert as grounds for their withdrawal the contract provision relating to the need of a permit 30 days prior to the closing date. The trial court concluded, and we agree, that the purchasers, by representing their willingness to proceed with the deal until a few hours before the expiration of the option, waived any rights they may have had relative to the 30-day provision.
The contract provided:
“* * * Should the Purchasers fail to consummate this Contract as specified for any reason, except title defects, [or failure of the sellers to comply with the requirements herein stated,] Sellers shall have the right to retain the earnest money payments made to them as liquidated damages for the breach of this contract and may pursue their rights for specific performance, [it being understood that said Fifty Thousand Dollars ($50,000.00) would be a credit against any suit for specific performance of said contract.]
The court awarded damages in the sum of $215,610.00. It is contended that the foregoing provision limited the recovery to the $50,000.00 earnest money payment in case of a breach by the purchasers. The trial court found that the $50,000.00 provision was not a reasonable forecast of the damages to be expected from a breach by the purchasers and was therefore not enforceable under Texas law. A contract provision for liquidated damages will be enforced in Texas only if there is a reasonable approximation between the stipulated sums and the actual loss. Stewart v. Basey, Tex.Civ.App., 241 S.W.2d 353, aff’d 150 Tex. 666, 245 S.W.2d 484; Kelly v. Cochran County, Tex.Civ.App., 50 S.W.2d 848, rev’d on other grounds, 125 Tex. 424, 82 S.W.2d 641; Kelsey v. Blackman, Tex.Civ.App., 293 S.W. 199. “Notwithstanding a sum mentioned in a contract be called liquidated damages, the courts will not so treat it, unless it bears such proportion to the actual damages that it may reasonably be presumed to have been arrived at upon a fair estimate by the parties of the compensation to be paid for the prospective loss.” Kelsey v. Blackman, supra at 202. In determining whether to enforce a contract provision for liquidated damages the courts are to consider “the nature of the contract, its terms, the consequences that would arise from its breach and the circumstances of the transaction.” Stewart v. Basey, supra, 241 S.W. 2d at 356. See also, Palestine Ice, Fuel & Gin Co. v. Walter Connally & Co., Tex. Civ.App., 148 S.W. 1109. The contract price for the Schenkel option was $354,-920.00. The court determined that it was essentially worthless at the time of the breach due to the short time remaining for the sellers to take advantage of. it. The contract price for the Jenkins tract was $1,286,050.00. The court determined that this property was worth $1,210,400.00 at the time of the breach. We cannot say that the court’s finding that as a result of the breach the sellers were damaged in the net sum of $164,-960.00 for loss of the Schenkel option, and $50,650.00 for the failure to purchase the Jenkins tract, is clearly erroneous ; nor can we say that under the circumstances the court’s finding that the $50,000.00 provision for stipulated damages was not a reasonable forecast of the actual damages suffered was clearly erroneous.
Although the purchasers claim that the sellers were in default of other requirements of the contract which justified the rescission, the case was tried primarily on the issue of the sufficiency of the mining permit granted for the Schenkel tract. The trial court, in its “Conclusions of Fact and Law” stated:
"IV. As a matter of fact and law, defendant Whitlock, in withdrawing from the contract, relied solely on his opinion that plaintiffs had not furnished a permit on the Schenkel Tract. Defendants waived all other possible justifications for withdrawing from the contract. And we note in passing that defendants with admirable candor do not seriously assert any other ground for withdrawing.”
We have given consideration to these contentions and have found them to be without merit.
Affirmed.
. The appellants are referred to herein as “purchasers”; the appellees as “sellers.’
. The terms and provisions of such permits were not standard, but were ordinarily “tailored to the particular situation presented by the location of the property.” They were usually referred to in city proceedings as “Occupation Certificates.”
. Referring to a telephone conversation he had with Whitlock on July 11, Hill, one of the sellers, testified:
“Then I asked him, I said, ‘Now, Mr. Whitlock, I want to be sure that you are going to be able to close on that date because, you know, the option on the Sehenkel tract expires on midnight, July 15th 1963. And if you don’t go through with it we would have no way of protecting ourselves and no way of taking care of it and should I have anybody trying to stand by as a last resort? He said, ‘You need not be concerned about that. We have this all worked out. All you' have to do is just be down here for the closing.’ This was on July 11, approximately four days before the date that the option was due to expire. It was approximately ten days before the closing date as was extended in writing in the telegram that is an exhibit in this case. At that time Mr. Whitlock did not say anything to the effect that ‘you haven’t got us a gravel permit on the Schenkel tract within thirty days prior to closing and you are required to do that, so just forget about it, the deal is off.’ Prior to that conversation, I tentatively explored the possibilities of having someone stand by in case the Whitlocks didn’t go forward with this thing to the extent that we had inquired of Leonard Whit-lock and his Associates if they were going to be able to go through with it. They had assured us all the way that they already had their financing but that they were trying to get a cheaper financing on the acquisition of this money. It wasn’t a problem of getting the financing on it; it was a problem of getting cheaper financing. After that conversation on July 11, 1963, I did not make any effort to have anyone stand by to exercise the Schenkel Option in case this deal fell through. I was lulled into the feeling of security that everything was all right.”
. In a letter written by an attorney for the purchasers on July 15, after relating objectionable features of the action taken by the City of Dallas in authorizing a mining permit on the Schenkel tract, it was stated: “These facts, which were discovered for the first time at approximately 10:30 A.M. today, so increased the burdens of the mining operation as to make it unattractive to Texas Industries, Inc., and they withdrew a proposed contract which would have been most favorable to Whitlock Associates.”
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_othappth
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? (e.g., the case became moot after the original 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".
Albert E. NASSER, et al., Petitioners, v. FEDERAL HOME LOAN BANK BOARD, etc., Respondent.
No. 83-7064.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 6, 1983.
Decided Jan. 20, 1984.
Albert E. Nasser, Irvine, Cal., for petitioners.
Peter R. Taft, Munger, Tolies & Rickershauser, Los Angeles, Cal., for respondent.
Before SKOPIL, FERGUSON and CANBY, Circuit Judges.
FERGUSON, Circuit Judge:
Plaintiffs, formerly 0.11% minority shareholders of Household Federal Savings and Loan Association (HFS & LA), bring this appeal to set aside two resolutions of the Federal Home Loan Bank Board (Bank Board) which approved a reorganization of HFS & LA. The several-step reorganization involved the transfer of ownership to a newly formed corporation, HFC Corp., and a merger with a specially chartered interim, or “phantom,” savings and loan institution. See 47 Fed.Reg. 17797 (1982). As a result of these transactions, the plaintiffs lost their 0.11% interest in HFS & LA and received a pro rata interest in HFC Corp.
Nasser brought this action under 12 U.S.C. § 1730a(k), which provides in part that “[a]ny party aggrieved by an order of the [Federal Savings and Loan Insurance] Corporation under this section may obtain a review of such order by filing in the court of appeals of the United States for the circuit in which the principal office of such party is located.” Because Nasser did not appeal an order of the Federal Savings and Loan Insurance Corporation [FSLIC] under 12 U.S.C. § 1730a, this court lacks jurisdiction and the appeal is dismissed.
DISCUSSION
The actions challenged in this case are two resolutions of the Bank Board: (1) chartering the interim federal association in which HFC Corp. would be the sole depositor, and (2) approving the merger of the HFS & LA into this interim federal association. By these resolutions the Bank Board approved the transfer of ownership of HFS & LA from its previous stockholders, plaintiffs and Household Finance Corporation, which owned 99.89% of the stock, to HFC Corp.
As an acquisition of a federal savings and loan association by a new holding company, this transaction would ordinarily require prior approval by the FSLIC under 12 U.S.C. § 1730a(e)(l) and 12 C.F.R. § 584.4. However, this transaction fell within an exception to that general rule, which provides that no such approval is required
in connection with the control of an insured institution ... (ii) acquired in connection with a reorganization in which a person or group of persons, having had control of an insured institution for more than three years, vests control of that institution in a newly formed holding company subject to the control of the same person or group of persons.
12 U.S.C. § 1730a(e)(1)(B). See also 12 C.F.R. § 584.4(b)(2).
HFS & LA submitted an Information Statement concerning the proposed reorganization, as required by 12 C.F.R. § 584.4^-1, and received the agreement of the Supervisory Agent of the Federal Home Loan Bank of San Francisco on August 9,1982 that the proposed reorganization would fit within the exception and would not require pre-approval. Accordingly, no approval of the acquisition was sought from, or issued by, the FSLIC. However, Bank Board approval was required and obtained.
This case is distinguishable from Fort Worth National Corp. v. FSLIC, 469 F.2d 47 (5th Cir.1972) in which an order of the Bank Board was construed to be an order of the FSLIC within the meaning of section 1730a(k). In Fort Worth, the FSLIC action challenged was its disapproval of an acquisition under 12 U.S.C. § 1730a(e). Id. at 50-51. Coincidentally, the Bank Board, “because of its responsibility for direction of the Corporation,” id. at 51, issued the appropriate order. The authority to approve or disapprove the questioned action was defined in section 1730a, and the order appealed was thus an order of the FSLIC. In this case the transaction was exempt from approval under section 1730a by virtue of section 1730a(e)(l)(B)(ii), and so the resolutions of the Bank Board cannot be construed as orders of the FSLIC under that section.
This appeal raises objections only to the Bank Board’s approval of the chartering of the interim institution under 12 C.F.R. § 543.5 and the combination of the interim institution with HFS & LA under 12 C.F.R. § 552.13. Both of these actions involve regulatory standards and procedures different from those applied by the FSLIC to acquisitions by federal savings and loan holding companies under 12 U.S.C. § 1730a. Compare 12 C.F.R. §§ 552 (combinations) and 543 (charter) with 12 C.F.R. § 584.4 (acquisition). The petition therefore cannot reasonably be read as a challenge to action taken under section 1730a. The challenged action did not fall within the authority of the FSLIC, and cannot be appealed under 12 U.S.C. § 1730a(k). Nasser has moved to amend his petition to name the FSLIC as respondent. The addition of the FSLIC, however, would not cure the jurisdictional defect because no action of that agency is implicated in this case. Consequently, Nasser’s motion to amend is denied.
Nasser also asserts jurisdiction under the fifth amendment to the United States Constitution and the federal Administrative Procedures Act, 5 U.S.C. § 702. Jurisdiction is not proper on either of these bases because both such actions would have to originate in the district court. 28 U.S.C. § 1331. See Federal Home Loan Bank Board v. Elliott, 386 F.2d 42, 50-51 (9th Cir.1967), cert. denied, 390 U.S. 1011, 88 S.Ct. 1260, 20 L.Ed.2d 161 (1968) (review of Bank Board orders under 12 U.S.C. § 1464 in the district court).
This appeal therefore is DISMISSED.
Question: Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_r_natpr
|
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 "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Juan A. MORALES MORALES, Plaintiff, Appellee, v. Luis Rafael ARIAS, etc., Defendant, Appellant.
No. 87-1376.
United States Court of Appeals, First Circuit.
Heard Oct. 7, 1987.
Decided Dec. 7, 1987.
Jose L. Gonzalez-Castaner with whom Marcos A. Ramirez-Irrizarry, Ramirez & Ramirez, Hector Rivera Cruz, Secretary of Justice, and Rafael Ortiz-Carrion, Sol. Gen., were on brief for defendant, appellant.
Pedro J. Salicrup and Rafael Vazquez-Colon on brief for Public Buildings Authority, amicus curiae.
Pedro Miranda-Corrada with whom Hector Urgell-Cuebas and Jose Roberto Feijoo were on brief for plaintiff, appellee.
Before BOWNES, Circuit Judge, TIMBERS, Senior Circuit Judge, and BREYER, Circuit Judge.
Of the Second Circuit, sitting by designation.
BREYER, Circuit Judge.
This case is one of many “political discharge” suits brought by Puerto Rican agency officials whom new agency chiefs dismissed after a new administration took office following the 1984 election. See, e.g., Nunez v. Izquierdo-Mora, 834 F.2d 19 (1st Cir.1987); Juarbe-Angueira v. Arias, 831 F.2d 11 (1st Cir.1987); Zayas-Rodriguez v. Hernandez, 830 F.2d 1 (1st Cir. 1987); Mendez- Palou v. Rohena-Betancourt, 813 F.2d 1255 (1st Cir.1987); Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236 (1st Cir. 1986). In this instance, the dismissed official, the Director of the Internal Audit Office of the Puerto Rico Public Buildings Authority, sued the Executive Director of the Authority, claiming that the discharge violated his right to freedom of political association and seeking both damages and reinstatement. As in Juarbe-An-gueira, Zayas-Rodriguez, Mendez-Palou and other cases, the defendant said he possessed a “qualified immunity” protecting him from any liability for damages, and he moved for summary judgment on that issue. See, e.g., Juarbe-Angueira, 831 F.2d at 12-13. The district court denied the defendant’s motion for summary judgment. The district court then went on to grant summary judgment in the plaintiff’s favor on the damages and reinstatement claims (even though the plaintiff had not asked for summary judgment on the merits). 656 F.Supp. 973. The defendant appeals, arguing that both district court decisions were legally erroneous.
The “qualified immunity” appeal raises legal questions almost identical to those we had before us in Juarbe-Angueira, Zayas-Rodriguez, and Mendez-Palou, and we refer the reader to those opinions for discussion of the relevant legal standards. In fact, the position at issue here, Director of the Internal Audit Office of the Puerto Rico Public Building Authority, is similar to one of the positions at issue in Zayas-Rodriguez, where the plaintiff was the Director of the Internal Audit Office of the Puerto Rico Highway Authority. See also Nunez, at 22-23 (plaintiff was Auxiliary Director of Fiscal Resources at Puerto Rico’s Health Facilities and Services Administration). In Zayas-Rodriguez, we found “qualified immunity” in respect to the position because the law, as of 1985, did not “clearly” forbid dismissal. The same is true here.
The relevant job descriptions show a few differences between the two jobs. For example, the Zayas-Rodriguez Audit Director “ ‘counsels the Executive Director’ ” and other agency officials about rules and regulations and their policy implications. Zayas-Rodriguez, 830 F.2d at 3 (quoting job classification questionnaire). The Audit Director here “advise[s] other area Directors and offices in administrative and operational matters.” (Quotation is from job description.) But both job descriptions are alike in ways we believe are more important. Both emphasize the high level managerial and discretionary nature of the jobs. The Auditor in Zayas-Rodriguez “supervise^] auditors and established] ‘general rules to follow in the audits for the consultants.’ ” Zayas-Rodriguez, 830 F.2d at 3 (quoting job classification questionnaire). The Auditor here “supervise[s] the personnel adscribed [sic] to the Internal Audit Office;” “oversee[s] the [agency’s] financial, administrative, and operational activities;” “preparefs] the annual work program;” “personally interv[enes] in ... audits which are ... complex or delicate;” and “execute[s] any [sjpecial projects ... assigned ... by the Executive Director.” (Quotations are from classification questionnaire.) Further, as in Zayas-Rodriguez, the position here is classified as “confidential” or “trust” by the Puerto Rican personnel office. See Juarbe-Angueira, 831 F.2d at 14.
Thus, for reasons set out in Zayas-Rodriguez, the position is at a high enough level, in our view, and the duties described in the classification questionnaire are not so purely technical, as to make dismissal “clearly ” unlawful under the law as it was in 1985, or to transform what we described in Zayas-Rodriguez as a job that “potentially” involves some “matters of partisan political interest” into a job that does not. Zayas-Rodriguez, 830 F.2d at 2. Following Zayas-Rodriguez, we conclude that the district court ought to have granted defendant’s motion for summary judgment on the question of qualified immunity.
The district court’s award of an overall summary judgment in the plaintiff’s favor is also erroneous. The record makes clear that the defendant did not concede that plaintiff’s dismissal flowed from purely political considerations, nor did he concede that the classification questionnaire adequately described the extent to which the job in fact embodies politically relevant responsibilities. Plaintiff had not moved for summary judgment, and the record does not provide any basis for concluding that the defendant had submitted all of its evidence on these points. The plaintiff does not now dispute this aspect of the defendant’s appeal.
The judgment of the district court in respect to the denial of qualified immunity is
Reversed.
The summary judgment entered in plaintiff’s favor is vacated and the case is remanded for proceedings consistent with this opinion.
So ordered.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_appel1_3_3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant.
UNITED STATES v. NELSON. SAME v. GIBBS. SAME v. SCHWARTZ.
Nos. 410-412.
Circuit Court of Appeals, Second Circuit.
June 30, 1944.
Jay T. Barnsdall, Jr., of Buffalo, N. Y., for appellants. •
George L. Grobe, U. S. Atty., of Buffalo, N. Y. (Austin J. Donovan, Asst. U. S. Atty., of Rochester, N. Y., and Eugene J. Donnelly, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for appellee.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
SWAN, Circuit Judge.
These three appeals were argued together and may be disposed of in a single opinion. Each appellant was convicted under the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 311, of wilfully failing to perform a duty required of him under the Act and the rules and regulations promulgated pursuant thereto. With respect to Nelson and Schwartz the specific charge was failure to report for final type physical examination; in the case of Gibbs it was failure to report for induction for work of national importance.
The facts are very simple. Each appellant duly registered with his local board. From the classification given him by the local board he appealed to an appeal board which reclassified him in 4 E as a conscientious objector. He claims to have been entitled to 4 D classification as a minister of religion. Thereafter a notice was mailed to the registrant directing him to report at a stated time and place for physical examination in the case of Nelson and of Schwartz, and for induction in the case of Gibbs. Each registrant failed to obey the order, was reported as a delinquent, and subsequently was brought to trial upon the indictment under which he was convicted. Nelson received a penitentiary sentence of 3% years; Gibbs and Schwartz one of three years each.
Relying upon a statement in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63.S.Ct. 1178, 1187, 87 L.Ed. 1628, 147 A.L.R. 674, to the effect that “no official, high or petty, can prescribe what shall be orthodox in * * * religion, or other matters of opinion,” the appellants argue that no board in the Selective Service System had authority to pass upon the appellants’ claim to be ministers of religion; and consequently the orders directing them to report for examination or induction were void. But the case is governed by Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, which holds that the correctness of a board’s classification cannot be questioned in a criminal prosecution for wilful violation of an order of the board.
The only other point urged for reversal is failure to prove beyond a reasonable doubt that each appellant was legally notified to report. The record contradicts this contention. In the case of Nelson, an assistant clerk of the local board testified that the notice to report for physical examination on March 11, 1943 was mailed to him oh February 26th; and Nelson himself admitted on the stand that he received the notice and told the draft board that he was not going to obey it. Similarly in the case of Gibbs the chief clerk testified that on August 3, 1943 Gibbs was ordered to report for work of national importance. Gibbs testified: “My reason for not reporting for work of national importance was that it would remove me from the service which God has placed me in.” Nowhere did he suggest that he had not received the notice. In the case 6f Schwartz the proof was not quite so definite, but it was adequate. A clerk of the local board testified that on September 3, 1943 Schwartz “was ordered to report for a final type physical dxamination”, and she produced a copy of the order which was sent to him. Schwartz did not take the witness stand, but he did cross examine the board’s clerk. In such cross examination he did not ask anything about the mailing of the notice nor suggest in any way that he had not received it.
Finding no error in any of the three trials, we affirm the judgments.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant?
A. Department of Agriculture
B. Department of Commerce
C. Department of Defense (includes War Department and Navy Department)
D. Department of Education
E. Department of Energy
F. Department of Health, Education and Welfare
G. Department of Health & Human Services
H. Department of Housing and Urban Development
I. Department of Interior
J. Department of Justice (does not include FBI or parole boards; does include US Attorneys)
K. Department of Labor (except OSHA)
L. Post Office Department
M. Department of State
N. Department of Transportation, National Transportation Safety Board
O. Department of the Treasury (except IRS)
P. Department of Veterans Affairs
Answer:
|
songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
PANDOLFO v. ACHESON, Secretary of State of United States.
No. 147, Docket 22547.
United States Court of Appeals Second Circuit.
Argued Jan. 12, 1953.
Decided Feb. 13, 1953.
Myles J. Lane, U. S. Atty., and Benjamin F. Nolan, Asst. U. S. Atty., New York City, of counsel, for appellant.
Casper & Nehrbas, New York City, Montague Casper, New York City, of counsel, for appellee.
Before SWAN, Chief Judge, and AUGUSTUS N. HAND and CHASE, Circuit Judges.
SWAN, Chief Judge.
Vincenzo Pandolfo was horn in the United States in 1912. Two years later his parents, who were Italian nationals, went hack to Italy, taking their infant son with them. There he remained until 1949 when he obtained a certificate of identity enabling him to return to the United States to prosecute the present action under section 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903, for a judgment declaring him to be a national of the United States. The defense of the action was that under section 2 of the Act of March 2, 1907, the plaintiff lost his American citizenship by serving in the Italian Army and taking an oath of allegiance to the King of Italy in 1933. The trial court found that his oath was taken under duress, and gave judgment for the plaintiff. The defendant has appealed.
The relevant provisions of the statute upon which the Government relies are printed in the margin. Concededly the oath of allegiance taken by the plaintiff would operate to expatriate him if taken voluntarily, but would not if taken under duress. Consequently the question presented by the appeal is whether the ruling that his oath was taken under duress is supportable on the facts developed at the trial.
There is no dispute as to the facts. The only testimony was given by the plaintiff; the other evidence was documentary, for the most part consisting of the plaintiff’s Italian military service record. Because of his birth in the United States, his Italian parentage, and his residence in Italy from early childhood, he possessed dual nationality and citizenship. As ari Italian national he was subject to be called up'for military service, and he registered for it as required by Italian law. On February 24, 1933 he became 21 years old. Shortly before November 1933 he received a card directing him to report for military service on November 3. He reported as directed but he testified “I didn’t do this of ,my. own free will. I was forced to go for military duty.” He said that if he had not reported, he would have been picked up by the Italian police the next morning. He was then sent' to. the. induction station at Siracusa, Italy. The appellant stresses the fact that, plaintiff did not protest to any United States consulate that he was being forced to enter Italian military service under duress. But in view of his very limited schooling and the distance he would have had to travel to reach an American consulate such failure to protest should not be taken as conclusive proof that his induction was .voluntary. Moreover, he testified that he told the officer in charge at Siracusa that he was an American citizen and “should not be obligated to serve in the Italian Army.” During the period in question an oath of allegiance was required and was administered “en masse” to all recruits. Plaintiff took such oath together with his fellow recruits on December 10, 1933. He .was discharged from the Italian Army on December 1, 1935. Thereafter on November 1, 1939 he was recalled to active military duty and served until 1943. The appellant does not rely on this second service as a ground of expatriation. On August 18, 1944 plaintiff made a formal application for an American passport and registered under the United States Selectivé Service Act at Palermo', Italy.
It was also brought out at the trial that plaintiff could have returned to the United States before he was inducted into the Italian Army. On May 5, 1930 he applied to the United States Consulate at Messina, Italy, for a determination of his claim to American citizenship. On November 21, 1930 the issuance to him of a United States passport was authorized. At the same time a passport was authorized for his sister. She came to the United States in September 1931 but he did nothing to obtain the passport authorized for him. The trial court’s opinion states that he gave no “credible explanation for his failure to leave Italy and return to the United States, before he was required to serve in the Italian Army under his dual citizenship."
We agree with the Government’s contention as to burden of proof' in a suit of this character. The plaintiff has the burden of proving that he is a United States citizen. He made a prima facie case by alleging and proving his birth in New York. The Government then had the burden of showing that he had expatriated himself. This it did by proof of his oath of allegiance to the King of Italy. Presumptively • this oath was voluntarily taken. He then had the burden of going forward with evidence to establish that it was taken under duress. The trial court found that this was the fact. The appellant contends that the court should not have accepted the plaintiff’s uncorroborated testimony, and particularly since other portions of his testimony were found incredible. But it is elementary that the trier of facts need not discredit all the testimony of a witness because part of it is not believed. There is no legal requirement that testimony of duress be corroborated by documentary or other proof. The trial judge saw the witness and believed his testimony that induction into military service and the oath thereafter taken was done under duress. We cannot say that the finding of duress was “clearly erroneous,” as we must to reverse the finding.
The appellant also argues that plaintiff’s failure to remove himself from the jurisdiction of the Italian authorities before he was called for military service in 1933 was the proximate cause of his induction and therefore the oath was taken voluntarily. But the recent decision of the Supreme Court in Mandoli v. Acheson, 344 U.S. 133, 73 S.Ct. 135, establishes that continued residence abroad after a minor citizen comes of age does not forfeit citizenship. Since the 1907 Act does not impose any duty to make an election to return to the United States when the minor comes of age, we cannot accept the argument that whatever he does thereafter in the foreign country is done voluntarily.
Nor do we find any merit in the contention that his failure to take conclusive steps to leave Italy during the four years he enjoyed civilian status in Italy between the two periods of his military service operated as a ratification by subsequent conduct of his “expatriating act.” If the 1933 oath was taken voluntarily, it needs no ratification as an expatriating act. If it was done under duress, subsequent conduct cannot make it voluntary.
In our view the appeal presents a very narrow issue. The trial court found that the plaintiff acted under duress as he testified and as may reasonably be ¡believed under the circumstances, since Italy regarded him as an Italian citizen, subject to military service. We cannot hold that the finding was clearly erroneous. Cf. Attorney General of United States v. Ricketts, 9 Cir., 165 F.2d 193, 195.
Judgment affirmed.
. Section 2 of the Act of March 2, 1907, 34 Stat. 1228, provides:
“That any American citizen shall be deemed to have expatriated himself * * * when he has taken an oath of allegiance to any foreign state.”
This provision was preserved as § 401 (b) of the Nationality Act of 1940, 8 U. S.C.A. § 801(b).
. Dos Reis ex rel. Camara v. Nicolls, 1 Cir., 161 F.2d 860; Podea v. Acheson, 2 Cir., 179 F.2d 306; Doreau v. Marshall, 3 Cir., 170 F.2d 721; cf. Revedin v. Acheson, 2 Cir., 194 F.2d 482, certiorari denied, 344 U.S. 820, 73 S.Ct. 17.
. As to this service the appellant’s brief .says:
“Under provisions of Section 401(c) of the Nationality Act of 1940, the military service, itself, was sufficient basis to support additional grounds for expatriation. Under this Section the taking of the oath of allegiance to the foreign state is not a prerequisite. However, the Government has not urged this additional ground of expatriation against plaintiff consistent with the views expressed by the Attorney General of the United States in Matter of A-, No. 56158/416, 2 I. & N. Dec. 304, 1945, to the effect that where such service could not be terminated on or before January 13, 1941, the effective date of the Nationality Act of 1940, the service performed after the effective date should be regarded as involuntary on the theory that it was unlikely that such a soldier who entered service in 1939 could have had any voice in terminating his military service on or before January 13, 1941. This second period of military service will, however, be offered by the Government, herein, under Point V, as evidence tending to show that plaintiff ratified his expatriating act of 1933 by making himself available for and entering this second period of Italian military service without protest.”
. Bauer v. Clark, 7 Cir., 161 F.2d 397, 400, certiorari denied 332 U.S. 839, 68 S.Ct. 210, 92 L.Ed. 411, rehearing denied 332 U.S. 849, 68 S.Ct. 342, 92 L.Ed. 419.
. See In re Gogal, D.C.Pa., 75 F.Supp. 268.
. Had the trial court found the oath to have been the plaintiff’s voluntary act, ■wo would not have reversed such finding as clearly erroneous. See Kondo v. Acheson, D.C.Cal., 98 F.Supp. 884, 888; Hamamoto v. Acheson, D.C.Cal., 98 F.Supp. 904, 908; Zimmer v. Acheson, D.C.Kan., 91 F.Supp. 313, affirmed 10 Cir., 191 F.2d 209.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_casetyp1_6-3
|
J
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "labor relations".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MASTER SLACK and/or Master Trousers Corp., et al., Respondents.
No. 77-1641.
United States Court of Appeals, Sixth Circuit.
March 20, 1980.
Elliott Moore, Deputy Associate General Counsel, N. L. R. B., Jay Shanklin, Mary Schuette, Washington, D. C., Raymond A. Jacobson, Director Region 26, N. L. R. B., Memphis, Tenn., for petitioner.
Yelverton Cowherd, W. Kirby Bowling, Bowling & Jackson, Memphis, Tenn., for respondents.
Before KENNEDY, MARTIN and JONES, Circuit Judges.
ORDER
The National Labor Relations Board (NLRB) petitions for enforcement of its decision and order, which found violations of Sections 8(a)(1), (3) and (5) of the National Labor Relations Act and which granted injunctive and affirmative relief.
The Amalgamated Clothing Workers of America (ACWA) won a representation election at respondent Hardeman Garment Corporation (Hardeman), a clothing manufacturer in Bolivar, Tennessee. Hardeman is a subsidiary of respondent Master Slack and/or Master Trousers Corp., as are respondents Morehouse Garment Corp., Lauderdale Garment Corp., and Lobelville Garment Corp. All the alleged unfair labor practices occurred at Hardeman. After the election, Hardeman filed objections contesting its validity. The Regional Director investigated the objections and recommended denying them in total. Hardeman filed exceptions to the Regional Director’s report; however, the NLRB adopted the Regional Director’s report and certified ACWA. Hardeman’s motion to reopen the record in the representation proceeding and to revoke certification was denied. Thereafter Hardeman refused to bargain with ACWA and unilaterally changed some conditions of employment. By its refusal to bargain, Hardeman seeks to obtain judicial review of the validity of the election. Hardeman also challenges several NLRB procedures as violating due process.
Hardeman challenges the representation election on four grounds: 1) union-created atmosphere of fear and coercion; 2) material misrepresentations by a union representative; 3) unlawful union promise of a waiver of initiation fees; and 4) racial and sex discrimination by the union in its membership and officers. As to the first two grounds, we hold that the NLRB correctly ruled that Hardeman had not met its burden of proof. NLRB v. Bostik Division, USM Corp., 517 F.2d 971 (6th Cir. 1975). Though Hardeman raises a valid objection with respect to the union’s promise of a waiver of initiation fees, NLRB v. Savair Mfg. Co., 470 F.2d 305 (6th Cir. 1972), aff’d 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973), the NLRB refused to reopen the record of the representation proceedings in order to hear this objection. Because Hardeman was very delinquent in making this objection and because the law at least in this circuit on such a promise was clear at the time of the representation hearing, we hold that the NLRB did not abuse its discretion in refusing to reopen the record. Finally, Hardeman completely failed to meet its burden of proof on racial and sex discrimination by the union. NLRB v. Sumter Plywood Corp., 535 F.2d 917 (5th Cir. 1976), cert. den., 429 U.S. 1092, 97 S.Ct. 1105, 51 L.Ed.2d 538 (1977).
We have fully considered Hardeman’s due process arguments and find them meritless. A hearing was not required on Hardeman’s exceptions to the Regional Director’s report on the election, because Hardeman did not raise substantial and material factual issues. NLRB v. Basic Wire Products, Inc., 516 F.2d 261 (6th Cir. 1975). The NLRB correctly refused at the unfair labor practice hearing to hear evidence of Hardeman’s objections to the election, because Hardeman did not offer any newly discovered evidence. NLRB v. Brush-Moore Newspapers, Inc., 413 F.2d 809 (6th Cir. 1969), cert. den., 396 U.S. 1002, 90 S.Ct. 555, 24 L.Ed.2d 495 (1970). Finally, Hardeman had no right to see the affidavits of the NLRB’s witnesses until after direct examination. NLRB v. Automotive Textile Products, 422 F.2d 1255 (6th Cir. 1970).
Hardeman contests the NLRB’s finding that it violated Section 8(aX3) by laying off the entire night shift in the pressing department three days before the election and by discharging eight employees within three months after the election through a new policy of strictly enforcing the rules on tardiness and absenteeism. Upon review of the entire record, we find that substantial evidence supports the NLRB’s decision and order on these violations.
Respondents appeal the NLRB’s joining of Master Slack, the parent corporation, and three other subsidiaries, all clothing manufacturers, as defendants for purposes of the back pay awards only. Such joinder is appropriate where the NLRB meets the “single enterprise” test, that is, shows common ownership and control, a centralized labor policy, common management, and interrelated operations of the companies. NLRB v. Winn-Dixie Stores, Inc., 341 F.2d 750 (6th Cir. 1965), cert. den., 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74 (1965). Substantial evidence justifies the NLRB’s findings and order of joinder.
Accordingly, the order of the NLRB is enforced.
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer:
|
songer_r_natpr
|
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 "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Peter A. KOKARAS and Diane Kokaras, Plaintiffs, Appellants, v. UNITED STATES of America, Appellee.
No. 92-1616.
United States Court of Appeals, First Circuit.
Heard Oct. 9, 1992.
Decided Nov. 23, 1992.
David C. Engel with whom Engel and Gearreald, Exeter, N.H., were on brief, for appellants.
Elaine Marzetta Lacy, Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S. Atty., Concord, N.H., was on brief, for appellee.
Before TORRUELLA, Circuit Judge, BROWN, Senior Circuit Judge, BOWNES, Senior Circuit Judge.
Of the Fifth Circuit, sitting by designation.
BOWNES, Senior Circuit Judge.
This is an appeal by plaintiffs-appellants Peter A. Kokaras and Diane Kokaras, spouses, from a dismissal of their complaint, brought under the Federal Torts Claims Act (FTCA) for lack of subject matter jurisdiction because of the failure to file a sum-certain claim within the prescribed statutory period. 791 F.Supp. 35.
I
On May 8, 1987, plaintiffs sustained personal injury to themselves and damage to their automobile when it was struck in the rear by a United States mail truck. On June 2, 1987, plaintiffs filed a Standard Form (SF) 95 with the Postmaster at the United States Post Office in Hampton, New Hampshire. On line 10, entitled “Amount of Claim (in Dollars),” the figure $2,906.61 was inserted in box A, entitled, “Property Damage”; in box B, entitled, “Personal Injury,” the words “to be determined” were written. Box C entitled, “Total,” was left blank. Line 15, entitled, “Signature of Claimant,” was signed only by Peter Kokaras. Plaintiffs were not represented by counsel at the time the SF 95 was executed and filed.
In the spring of 1988, plaintiffs retained Attorney Alfred J. Cirome to represent them. This was well within the two-year statutory period for filing a tort claim with the Postal Service. 28 U.S.C. § 2401(b). No amended SF 95 was filed within the two-year period. Attorney Cirome entered into discussions, both in person and on the telephone, with agents of the Postal Service in an effort to settle plaintiffs’ claim. The settlement negotiations were not fruitful. During the course of the settlement discussions, Attorney Cirome turned over to the Postal Service’s agents medical bills incurred by the plaintiffs along with medical diagnoses and prognoses concerning plaintiffs’ injuries. Based on the record, it appears that no sum-certain demand was made either orally or in writing by Attorney Cirome.
New counsel was obtained by plaintiffs, and on April 26, 1990, suit was brought against the United States under the Federal Torts Claims Act. 28 U.S.C. §§ 2671-2680. The Postal Service denied plaintiffs’ claim on August 2, 1990, on the ground that it was invalid, stating that “it does not inform us to [sic] any dollar amount being claimed.” Three weeks prior to the Postal Service’s denial of plaintiffs’ claim, the United States had filed a motion to dismiss for lack of subject matter jurisdiction. The motion was predicated on the well-established rule that a timely-filed sum-certain claim is a prerequisite for jurisdiction of a tort action against the United States. The district court initially denied the motion to dismiss. The district judge, however, changed his mind after our decision in Corte-Real v. United States, 949 F.2d 484 (1st Cir.1991).
II
We start our legal analysis with Corte-Real. In that case we held that the administrative claim stated a sum certain even though the personal injury box, section 10B of the SF 95, was filled out as follows: “$100,000 plus because still treating and out of work.” Id. at 486. Plaintiff had completed the “Total” box, section 10D, by writing in the figure “$100,000,” without qualification. Id. at 485. We held that “[w]here as here a claim clearly states a specific sum and meets the sum certain requirement in all respects but for concern over the possible detraction of improper surplusage of this insubstantial variety, we see no reason not to strike the surplusage rather than the claim itself.” Id. at 487. The following language reflects our reasoning:
We agree fully with the Government as to the importance and absolute necessity of adherence to the sum certain requirement. We disagree, however, that plaintiffs SF95, as submitted, was so deficient as to fall outside the parameters of that requirement. The SF95 did, in fact, specify a sum certain — $100,-000 — in both boxes, and this figure was unqualified in the box stating the total amount of the claim. To be sure, when the $100,000 appeared in Section 10(B) it was unfortunately accompanied by language suggesting the possibility of a higher claim. The Government was entitled and indeed required, if it was to proceed with the claim, to disregard this. We think it should have done so. To throw out the claim entirely, as other than one for a sum certain, was, on these facts, bureaucratic overkill.
Id. at 486.
With respect to the personal injury claim, however, the case before us is not one of “bureaucratic overkill.” Nowhere on form SF 95 is a sum certain for the personal injuries stated. Moreover, we agree with the district court that any documentation of personal injury submitted was “disorganized and confusing.” Some of the bills submitted are duplicates, others are incomplete, and others reflect the balance due after insurance payments. This presentation did not lend itself to determination of a sum certain or even an approximate total of damages claimed.
Although negotiations ensued between plaintiffs’ attorney and agents of the Postal Service, there is no evidence in the record that a sum certain was ever stated orally or in writing by plaintiffs’ attorney. Moreover, the affidavits of Attorney Ci-rome and Postal Agent Dumont are in conflict. Cirome states that Dumont represented to him on more than one occasion, including on May 5, 1989, at which time Cirome attests he submitted medical re-po&s and bills, that the plaintiffs’ claims had been satisfactorily presented. Postal Service Agent Dumont states, by contrast, that he never advised the plaintiffs or their representative that the claims were satisfactorily presented. More importantly, Agent Dumont attests:
Plaintiffs’ August 7, 1990 submission to the court includes numerous documents which the plaintiffs never submitted to the Postal Service with their administrative claim. These new documents were provided to the Postal Service for the first time on August 29, 1990.
Because the accident happened on May 8, 1987, any bills submitted to the Postal Service in 1990 would be well beyond the two-year limit for filing administrative claims.
This court has consistently held that a timely-presented claim stating a sum certain is necessary for a court to have jurisdiction to entertain a suit against the United States under the FTCA. Corte-Real v. United States, 949 F.2d at 485-86; Gonzalez-Bernal v. United States, 907 F.2d 246, 248 (1st Cir.1990); Lopez v. United States, 758 F.2d 806, 809 (1st Cir.1985). The rule is the same in other circuits. Cizek v. United States, 953 F.2d 1232, 1234 (10th Cir.1992); Adkins v. United States, 896 F.2d 1324, 1325 (11th Cir.1990); Montoya v. United States, 841 F.2d 102, 105 (5th Cir.1988); GAF Corp. v. United States, 818 F.2d 901, 919 (D.C.Cir.1987); Erxleben v. United States, 668 F.2d 268, 272 (7th Cir.1981); Caton v. United States, 495 F.2d 635, 638 (9th Cir.1974); Bialowas v. United States, 443 F.2d 1047, 1049 (3rd Cir.1971).
The Fifth Circuit has taken a broad view as to what constitutes the statement of a sum certain. In Molinar v. United States, 515 F.2d 246, 249 (5th Cir.1975), it held that the total bills submitted fulfilled the sum-certain requirement. And in Williams v. United States, 693 F.2d 555, 558 (5th Cir.1982), it held that the itemized claim for damages as set forth in the state court complaint would be taken together with the administrative claim form to meet the notice requirements of the FTCA. But even if we followed the lead of the Fifth Circuit in regard to the personal injuries claim, not enough medical information was timely submitted to come anywhere near meeting the sum-certain jurisdictional requirement. The personal injuries claims submitted by plaintiffs can be characterized as the Tenth Circuit did in Cizek v. United States, in which the plaintiff/appellant
did not present a claim containing a statement of a sum certain of the damages sought, which would have allowed the government to make even a reasonable estimate of the value of [his] claim, until after the limitations period had run.
953 F.2d at 1234. We hold that the district court did not have jurisdiction to entertain the plaintiffs’ personal injury claims.
It does not necessarily follow, however, that the extinguishment of the personal injury claims also erases the property damage claim. We believe that the plaintiffs’ property damage claim is severable and that plaintiffs satisfactorily presented a sum certain with respect to their property damage claim. At the time they originally filed their SF 95, plaintiffs set forth the specific sum of $2,906.61 in the box entitled, “Property Damage.” Accompanying the SF 95 was a corroborating repair estimate. Although the repair estimate was somewhat lower than the sum certain stated, it included the name and address of the company which made the estimate. This information was sufficient for purposes of investigation. Unlike the personal injury claim, the government had the information it needed to assess plaintiffs’ property claim from the date plaintiffs filed their SF 95 form. Moreover, we note that prior to the district court’s issuance of its opinion, the government had moved “to reduce the ad damnum claimed in this action from $500,000 to the amount set forth in the administrative claim of $2,906.61.” This was a tacit admission by the government that the property damage claim met the sum-certain jurisdictional requirement.
We believe that the district court went too far in discarding the property damage claim along with the personal injury claim. Our decision in Corte-Real supports saving a claim that is flawed, where the government’s investigatory needs are satisfied. Indeed, dismissing plaintiffs’ certain and unwavering claim for property damages would be indulging the same type of “bureaucratic overkill” that we criticized in Corte-Real. Because the sum-certain requirement was met for the property damage claim, we hold that plaintiffs are entitled to proceed on that claim. The limit on recovery, if there is one, is the amount stated, $2,906.61.
Affirmed in part, reversed in part. Remanded for further proceedings consistent with this opinion.
No costs to either party.
. Box C, entitled, "Wrongful death" was also left blank. It appears that plaintiffs submitted property damage documentation and some medical documentation with the original form.
. Attorney David C. Engel represented plaintiffs below and on appeal.
. The Federal Code of Regulations provides in pertinent part:
§ 14.2 Administrative claim; when presented.
(a) For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident; ....
28 C.F.R. § 14.2 (1991) (emphasis added).
Question: What is the total number of respondents in the case that fall into the category "natural persons"? 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.
UNITED STATES v. JOHNSON (two cases). SAME v. MEMOLO. SAME v. GREENES.
Nos. 9377-9380.
Circuit Court of Appeals, Third Circuit.
Argued June 16, 1947.
Decided Aug. 21, 1947.
Rehearing Denied Sept. 29, 1947.
Writ of Certiorari Denied Jan. 12, 1948.
See 68 S.Ct. 355.
Chas. J. Margiotti, of Pittsburgh, Pa. (Raymond P. Campbell, of Scranton, Pa., and Samuel Goldstein, and V. J. Rich, both of Pittsburgh, Pa., on the brief), for appellants Miller A. Johnson and Donald M. Johnson.
John Memolo and Stanley F. Coar, both of Scranton, Pa., for appellant John Memolo.
Thomas D. Caldwell of Harrisburg, Pa., and J. M. Gronfine, of Scranton, Pa. (Caldwell, Fox & Stoner, of Harrisburg, Pa., on the brief), for appellant Greenes.
Max H. Goldschein, Val Hammack, and John J. O’Brien, Sp. Assts. to Atty. Gen. (Theron L. Caudle, Asst. Atty. Gen., and William L. Caraway, Atty., Department of Justice, on the brief), for the United States.
Before MARIS, GOODRICH, and KALODNER, Circuit Judges.
GOODRICH, Circuit Judge.
Ten defendants were indicted on the charge of a conspiracy to obstruct the administration of justice. .The indictment was dismissed as to two of the defendants; one died prior to trial; one was granted a severance because of illness; two were found not guilty; the remaining four were convicted, sentenced, and-have appealed to this Court. While a separate appeal is docketed for each appellant • the majority oí the points raised are common to the cases of all and this opinion will dispose of all four appeals.
The theory of the Government’s case was that all the defendants were engaged in a continuing general conspiracy to debase the administration of justice. The conspiracy allegedly operated over a number of years and the prosecution sought to prove that the conspiracy existed by a showing of misconduct by the defendants with reference to specific pieces of litigation in the Middle District of Pennsylvania. The prosecution is not against any defendant for misconduct in a particular case however, nor is it for conspiring to do something illegal in an individual case. The theory is that a general conspiracy existed, which lasted over a period of time, and which is shown by what the parties did regarding the individual lawsuits. In some instances more than one of these cases was in the Court at one time. In others, only one such case was pending and sometimes there was a period during which the record is silent as to activities of the alleged conspirators.
We think there was sufficient evidence to support the Government’s contention of a continuing conspiracy. The statute of limitations, therefore, runs only from the time of the last overt act. United States v. Kissel, 1910, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168; Brown v. Elliott, 1912, 225 U.S. 392, 32 S.Ct. 812, 56 L.Ed. 1136; Culp v. United States, 8 Cir., 1942, 131 F.2d 93. The period of limitations for the prosecution on a conspiracy charge is three years. The indictment in this case was returned on September 11, 1945. The conspiracy existed over a period of fourteen years. Some of the acts necessarily occurred earlier than September 11, 1942, but these acts could be proved to show the existence and continuance of the conspiracy even though there could have been no prosecution for any substantive offense charged as an overt act. Shaw v. United States, 5 Cir., 1930, 41 F 2d 26. Appellants concede that this is correct but say that there are no overt acts proved which occurred within the period of the statute of limitations. If this is true, the point is of decisive importance. But an examination reveals certain acts which were committed after the crucial date. One was the sending of the $350.00 check by the defendant Greenes’ brother, at Greenes’ direction, to Donald Johnson. This occurred in October, 1942. Another was the filing by one Michael of the final account in the Central Forging case on July 9, 1943.
In this connection it is to be borne in mind that it is not necessary that an overt act in furtherance of conspiracy necessarily be a criminal act. Indeed, an innocent act by a third party, if caused by previous act or contact on the part of one of the conspirators, would be enough. Therefore, the filing of the trustee’s report above referred to, while itself a perfectly legal act, may be an overt act in furtherance of a conspiracy if such filing is part of the general plan of the conspirators with regard to the subject-matter in which the report is filed. Since Donald Johnson is to have the benefit of the Trial Judge’s instruction that nothing which occurred that was connected in any way with the Central Forging case should be considered in determining his guilt, Michael’s filing in the Central Forging case cannot be used against Donald Johnson. But the $350.00 check transaction is certainly evidence admissible against Donald Johnson and it was within the jury’s province to believe that such transaction had as its purpose the covering up of an illegal transaction rather than a payment of an attorney’s fee as Johnson testified. The Koppleman and Kizis incidents were overt acts which also occurred after September 11, 1942. These incidents, proved only by the admissions of Greenes and Memolo before the Grand Jury, are, of course, limited to those two defendants. But as to them they tend to show that the conspiracy still existed and do constitute overt acts.
The other major question involved in this appeal is whether there was sufficient evidence to sustain the verdict. The verdict necessarily involved a finding that the charge of a general continuing conspiracy was upheld and that the defendants found guilty were involved in it. The first point the appellants make in this connection is that the prosecution’s whole case falls to the ground because the person alleged to have been the most important figure in the conspiracy and to whom all the acts of the other defendants headed, was acquitted. This defendant was a former District Judge. At the trial the presiding Judge pointed out to the jury that “the heart and core of the indictment in this charge” is that this Judge entered into an understanding with others that he would be influenced in his administration of the law by other considerations than the law and the facts brought before him. Nevertheless, the jury, thus apprized of the importance of this one figure in the alleged conspiracy, acquitted him, but convicted others who are said by the defendants to be of lesser importance.
There are two answers to the argument that the fact of this acquittal causes the whole case to collapse. One is that the jury could reasonably have found that persons around the Judge were conspiring to obtain illegal advantages, but that it did not necessarily follow that the Judge, himself, was concerned in the transactions. Cf. Joyce v. United States, 8 Cir., 1946, 153 F.2d 364. Appellants’ contention that only court officials are capable of corruptly administering justice and that, therefore, persons cannot be guilty of a conspiracy to procure its corrupt administration unless the court official is corrupt is untenable. Cf. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. The second point is that the action of the jury in convicting some alleged conspirators and acquitting others is not required to be consistent in order to be legal. If the defendants had been tried separately and separate juries had convicted some and acquitted others, the argument the defendants make on this point would be deprived of practically all its force. We know that one jury does not have to reach a result consistent with what some other jury has reached. Nor is the same jury required to be consistent in order to be effective. As Judge Learned Hand pointed out; “ * * * the appellants have no vested right in the punishment of their fellows, however guilty. * * * we have nothing to do with the rational enmeshing of the two findings; * * * each need only bear its own defects.” United States v. Austin-Bagley Corporation, 2 Cir., 1929, 31 F.2d 229, 233, certiorari denied 1929, 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 1002. The case as to each one of the convicted defendants, therefore, must stand or fall according to its own strength or weakness, not because of what the jury did to some other defendant.
The case was complicated for the jury and for us by the fact that a great deal of important testimony, due to the various exclusionary rules of evidence, was not available against all of the defendants. Thus, some very damaging testimony of previous statements to a Grand Jury was available only as against defendants Memolo and Greenes. Again, defendant Donald Johnson had previously been acquitted of charges growing out of one of the particular incidents which was part of the Government’s case. He was entitled to such protection as the law gives him by the fact of that acquittal. His claim that he did not receive this protection will be considered later in the course of this opinion. The jury had to consider the testimony given in the course of a long trial and its different bearing upon different defendants. In this it was aided by the charge of the Trial Judge which, in this respect, was so clear that it has escaped criticism on the part of the appellants.
No desirable function is served by reiteration of testimony with regard to those defendants as to whom we conclude the evidence was sufficient to bring them into the general conspiracy charge. As to the appellants, Memolo and Greenes, the evidence is not only clear, but overwhelming. There is sufficient evidence in the record to per-mit the introduction of their admissions made before thfe Grand Jury; once these admissions are considered we virtually have a confession of guilt. As to the defendant Donald Johnson, there is not so strong a case because the damaging Grand Jury admissions were available only against those who made them, that is, the defendants Memolo and Greenes. Nevertheless, we think there is sufficient testimony so that the jury could have found, as they did, that the defendant Donald Johnson was included in the conspiracy.
With regard to the defendant Miller Johnson the case is much more difficult. There was testimony that indicated participation in one transaction among those charged to involve irregularities. It was to the effect that Miller Johnson approached one Townsend, who had been appointed co-receiver of the Williamsport Wire Rope Company and asked Townsend to pay half his monthly fees to Albert Johnson, Jr., and that the payments were so made. There are only two other incidents which appeared iii the evidence. One was told by Judge Johnson’s Secretary, to the effect that Miller Johnson came into the Judge’s office while the latter was examining a financial statement which the Secretary had prepared for the Judge. The latter is alleged to have said to his son that “We would have to account in some way for this money.” The third piece of testimony is to the effect that Miller Johnson and his .brother, Donald Johnson, had dinner with one Michael in May, 1944, On this occasion they were alleged to have told Michael that they had been subpoenaed and were being investigated and asked Michael whether he had been.
This is all which a careful combing of the record by Government counsel has produced concerning Miller Johnson. We very much desire to refrain from invading the province of a jury, whose business it is to find facts. Nevertheless, in this case, it is our obligation to state that the conclusion of-guilty in Miller Johnson’s case is not warranted by the testimony taken in the most favorable light for the Government. The participtaion in the Williamsport Wire Rope case, if the allegations were believed, has substance. But Miller Johnson was not being prosecuted for anything irregular he may have done in that case. He was being prosecuted for participation in a continuing conspiracy to obstruct justice and the learned Trial Judge told the jury that the fact that a defendant participated in one incident was not enough to prove him an actor in the play as a whole.
The second two incidents seem to us completely trivial and not to prove anything. This is a conclusion and not a reason. But if the conclusion is not supported by the recital of the incidents set out above, we do not think adding words as argument in support of our conclusion will give it any more weight.
The result of the above discussion is that we decide that the evidence was insufficient to ■ establish Miller Johnson’s participation in the conspiracy charged. Therefore, as to him, there must be a reversal with directions to enter a judgment of acquittal in his favor. Other reasons alleged by him as grounds for a new trial need not, in his case, be considered.
A number of other points have been raised as grounds for a new trial because the learned Trial Judge, it is argued, committed error. It is no criticism of counsel that we characterize some of them as trivial. It is counsel’s business to bring before the Court all points that can be made on behalf of his client and the Court’s business to consider them. We shall dispose of the various points briefly.
1. Several of the appellants complain about the charge of the Trial Judge concerning character evidence. On this point the Judge charged as follows: “The evidence of the good reputation of a defendant for honesty and being a law-abiding citizen is admissible in this case. It is substantive evidence and is entitled to weight in your determination. The Government is bound to prove the charge as against any defendant beyond a reasonable doubt, based on all the evidence. If you find that the charge has so been proved as against any defendant, giving weight to the substantive evidence of good reputation, you may find him guilty.
“In this connection, you may consider that persons who may have the best reputations in their communities have heretofore been known to have committed crime. While, therefore, it is your duty to weigh and consider such evidence, you are not bound to find the defendant innocent simply because he possessed a good reputation before indictment. If after considering all the evidence, including the evidence of good reputation, there is reasonable doubt as to the guilt of the'defendant existing in your minds, you may acquit him.”
We think this charge was correct and within the decision of this Court in United States v. Quick, 3 Cir., 1942, 128 F.2d 832 and the later reiteration of the doctrine of that case in United States v. Frischling, 3 Cir., 1947, 160 F.2d 370.
2. Complaint is made concerning the admission of certain parts of the Grand Jury testimony containing admissions by appellants Greenes and Memolo. It is said that all of the Grand Jury minutes should have been given to the jury if any were. No error was committed in this matter. What was given to the jury was consecutive testimony, not isolated excerpts of what someone said, pulled out of its context. There is no reason why the record should have been unduly cluttered with all the Grand Jury testimony. What was necessary and what the cases cited by the appellants require, is that statements made are given sufficiently in their context so that the jury may have an accurate notion of what was said and under what circumstances. Schoborg v. United States, 6 Cir., 1920, 264 F. 1; Jaquith v. Smith, 1942, 112 Vt. 353, 24 A.2d 341; Jones v. Krambeck, 1940, 228 Iowa 138, 290 N.W. 56. This principle was complied with.
3. Appellants maintain that the Trial Court erred in failing to declare a mistrial because of certain remarks made by attorney for the prosecution in his rebuttal. These remarks concerned a senior partner in a well-known New York law firm who had been a witness. The defense referred to this witness as a man of “fine qualities,” “an example of an honest man and good fellow,” and “a fine old gentleman.” The prosecution, on the other hand, referred to the witness as a man “who goes to Europe for his holidays,” and as “that conspirator,” and “criminal conspirator.” We make no comment for or against the witness. We do hold, however, that this interchange of evaluations concerning him was, at most, irrelevant entertainment for the jury and gives not the most remote basis for asking for a new trial.
4. Appellant Donald Johnson had been indicted and tried for alleged participation in one of the cases used by the prosecution in this case to help establish the general conspiracy. Donald Johnson was acquitted by the jury in that prosecution. He contended that he was entitled to the benefit of the rule of res judicata with regard to that acquittal and that the Trial Court ruled that the acquittal was of no consequence.
We think that this characterization of the attitude of the Trial Judge on the matter does not accurately state his position. He not only had the significance of the acquittal in mind, but he told the jury about it clearly and forcefully. He said in part: “But the acquittal in that case, since it was of a different conspiracy, cannot be used to require that you acquit Donald Johnson in this case. However, in order to be sure that the Court protects the defendent in this regard, and that you as jurors protect him in this regard, and to be sure that we shall not do what might be done in this case, try him twice on the same set of facts, which is one of the things that can’t be done under the Constitution of the United States, the Court charges you that you do not retry as to Donald Johnson the charges in the indictment, which is in evidence and which I have outlined to you, and specifically, that you shall not consider in this case as to him the overt acts which are mentioned in that Central Forging Company indictment. You will find them listed, there are five of them, and it includes the receiving of two thousand five hundred dollars. As I say, I don’t think that fact was squarely an issue in that case, but I want to be perfectly sure that neither you nor this Court retry any defendant on the ground that he has been acquitted. In that regard you pay no attention to those specific acts in the Central Forging case as regards Donald Johnson. However, all of the other matters in evidence are also as to him.”
Defendants have cited excerpts from decisions stating general principles of res judicata in the law. There is no dispute as to the correctness of the general propositions there stated. But we do not find them helpful in considering the bearing of the fact of the acquittal in the earlier case on the charge of the conspiracy here. We think what the Trial Court did was adequate to protect the rights of the defendant.
5. Appellants complain that the Judge did not charge in terms that the jury must find the date of the beginning of this conspiracy and the date of its end. Instead he said: “As to time, it is not necessary that the Government prove that the crime of conspiracy charged was committed exactly within the limits laid in the indictment, that is, February 1, 1934, to December 31, 1944. Nor is it necessary to prove that any of the overt acts were committed at the time in which they are specified in the indictment. It is sufficient if a conspiracy be found beyond a reasonable doubt that it continue in existence and force and validity for a period of time within three years of the finding of the indictment, which was the 11th day of September, 1945. If such a conspiracy be found and an overt act as charged in the indictment be found to have been done within three years of the finding of the indictment, that would be sufficient.”
We think the complaint which the defendants make of the charge is predicated upon the notion that the agreement in a conspiracy is something that is formal, as a contract to buy and sell land. Of course, it is not. In most of these conspiracy cases the agreement is a tacit one and is shown by what the parties do together, not by formal promises interchanged among them. United States v. Direct Sales Co., D.C.S.C. 1942, 44 F.Supp. 623, affirmed 1943, 63 S.Ct. 1265, 87 L.Ed. 1674, 319 U.S. 703; United States v. Holt, 7 Cir., 1940, 108 F.2d 365, certiorari denied 1940, 309 U.S. 672, 60 S.Ct. 616, 84 L.Ed. 1018; Babb v. United States, 8 Cir., 1929, 27 F.2d 80. Its end is shown either by the fact that they no longer act together or that they are unable to do so because the law has caught up with them. We find nothing amiss with regard to the Trial Judge’s charge here.
6. The appellant Memolo urged, at some length, that he was deprived of his constitutional rights by the examination of certain papers and books. He submitted these books to a Grand Jury before which he was summoned under subpoena. He did not, at the time, point to anything in them which created personal privilege in his behalf against self-incrimination. The privilege is personal and it is clear that unless the party, himself, is being called upon to incriminate himself the fact that someone else may be incriminated is not sufficient to exclude evidence. From the examination of these records things were learned which were made the basis of evidence against Memolo later. We agree with the Trial Judge, however, that there was no invasion of his constitutional rights.
7. Various other complaints are made by the defendants about the conduct of the trial. We think they are not well taken. The Trial Judge was strict, it is true, but he was fair. Certain instructions asked for were refused. But the Judge’s charge was a most thorough one and covers over a hundred pages in the Appendix before us. It deals with every phase of the case. The fact that certain other requests on matters not strictly relevant to the case were refused is not, we think, reversible error. It is not our notion of the appellate process that the Trial Judge’s charge should be sifted through bolting cloth to find possible error. The argument that his instructions usurped fact finding functions of the jury we think is without foundation.
Our conclusion is that as to three of the appellants there must be an affirmance. As to appellant, Miller Johnson, for reasons above stated, there must be a remand with directions to enter judgment of acquittal.
“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.” Act March 4, 1909, 35 Stat. 1096, 18 U.S.C.A. § 88.
“Whoever corruptly * * * shall endeavor to influence * * * any * * * officer in of of any court of the United States * * * in the discharge of his duty, or who corruptly * * * shall influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice therein, shall be fined not more than $1,000, or imprisoned not' more than one year, or both.” Act March 4, 1909, 35 Stat. 1113, 18 U.S.C.A. § 241.
United States v. Johnson et al., D.C.M.D.Pa.1946, 65 F.Supp. 42; United States v. Johnson et al., D.C.M.D.Pa. 1946, 65 F.Supp. 46.
United States v. Johnson et al., D. C.M.D.Pa.
Act Dee. 27, 1927, 45 Stat. 51, 18 U.S.O.A. § 582.
Braverman v. United States, 1942, 817 U.S. 49, 68 S.Ct. 99, 87 L.Ed. 23; Pierce v. United States, 1920, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542; United States v. Rabinowich, 1915, 238 U.S. 78, 85 S.Ct. 682, 59 L.Ed. 1211.
Cf. Hyde v. United States, 1910, 35 App.D.C. 451, affirmed 1912, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann. Cas.l914A, 614; see 2 Wharton’s Evidence in Criminal Cases § 704 (1935).
He did, however, point out in another part of the charge that it would be possible to acquit the Judge and yet find the others guilty. The jury apparently followed this instruction.
The cases so holding are numerous. See e. g. United States v. Hare, 7 Cir., 1946, 153 F.2d 816, certiorari denied 1946, 328 U.S. 836, 66 S.Ct. 983, 90 L.Ed. 1612; Baxter v. United States, 6 Cir., 1930, 45 F.2d 487.
Much of the evidence introduced could be used only against some of the defendants. The Grand Jury testimony w'hich could ■ not be used against the Judge nor his sons indicates the agreement among all the defendants to obstruct justice. The jury wa.s carefully instructed not to use evidence against all defendants when that evidence was accepted only as to certain ones. It is, therefore, possible that the Judge’s participation to the juiy’s satisfaction could be established only by evidence which was incompetent as to him. Yet when the jury was considering the issue of his participation as to other defendants this evidence could be used. Defense counsel repeatedly asked for such instructions and directions to the jury. The jury apparently followed the instruction and excluded from their mind the evidence which was incompetent only as to one particular defendant when considering his guilt or innocence.
The Judge at the end of the series of questions which elicited the testimony limited its introduction to Donald Johnson on the ground that the meeting occurred after the investigation by the E.B.I. and therefore the admissions were binding solely on Donald Johnson. Thus we actually have only two occasions in which Miller Johnson’s name appears in the testimony.
“If you find that anyone of the defendants charged in this case was really only connected with one or two of the ' subsidiary conspiracies which might be alleged in connection with some facts which are brought into this case, and which, it is true might involve some of the same conspirators alleged and named here, you would not on that account find such defendant guilty in this case upon such evidence and such circumstances alone.” The fact that the Government only alleged participation in only one of the eleven cases was the ground for dismissal of the indictment as to Hoyt A. Moore and Charles Korman. United States v. Johnson et al., D.C.Md.Pa.1946, 65 F.Supp. 46; United States v. Johnson et al., D.C.M.D.Pa.1946, 65 F.Supp. 42.
The problem here involved is actually one of collateral estoppel rather th.ia res judicata. See Scott, Collateral Estoppel by Judgment, 56 Harv.LJtev. X (1942).
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
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
NATIONAL LABOR RELATIONS BOARD v. FINANCIAL INSTITUTION EMPLOYEES OF AMERICA, LOCAL 1182, CHARTERED BY UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, et al.
No. 84-1493.
Argued December 4, 1985
Decided February 26, 1986
BRENNAN, J., delivered the opinion of the Court, in which White, MARSHALL, Blackmun, Powell, Rehnquist, Stevens, and O’ConnoR, JJ., joined. BURGER, C. J., filed an opinion concurring in the judgment, post, p. 210.
Norton J. Come argued the cause for petitioner in No. 84-1493. With him on the briefs were Solicitor General Fried, Linda Sher, and Patrick J. Szymanski.
Mark A. Hutcheson argued the cause for petitioner in No. 84-1509. With him on the briefs was Stephen M. Rummage.
Laurence Gold argued the cause for respondents in both cases. With him on the brief were George Murphy, Marsha S. Berzon, Michael Rubin, and David Silberman.
Together with No. 84-1509, Seattle-First National Bank v. Financial Institution Employees of America, Local 1182, Chartered by United Food & Commercial Workers International Union, AFL-CIO, et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States by Edward B. Miller and Stephen A. Bokat; for the National Right to Work Legal Defense Foundation by Raymond J. LaJeunesse, Jr.; and for the Legal Foundation of America by Jean Fleming Powers and David Crump.
Justice Brennan
delivered the opinion of the Court.
The question for decision in these cases is whether a rule of the National Labor Relations Board that requires that nonunion employees be permitted to vote in a certified union’s decision whether to affiliate with another union is consistent with the National Labor Relations Act.
i — I
In 1970, the Board certified the Firstbank Independent Employees Association (Firstbank) as the collective-bargaining representative of a bargaining unit consisting of the employees of petitioner Seattle-First National Bank (SeaFirst). Firstbank and SeaFirst subsequently negotiated successive collective-bargaining agreements, the most recent of which expired in 1977. In 1978, Firstbank voted to affiliate with the Retail Clerks International Union, AFL-CIO. Under Firstbank’s constitution, only union members in good standing could vote in the election. The union members voted in favor of affiliation by a margin of 1,206-774. Upon affiliation, Firstbank changed its name to the Financial Institution Employees of America, Local 1182 (FIEA), chartered by the Retail Clerks International Union, AFL-CIO. FIEA then petitioned the Board to amend its certification to reflect this change. SeaFirst challenged the petition, arguing that affiliation with the Retail Clerks had substantially changed the union, that nonunion employees should have been allowed to vote on whether to affiliate, and that the union had not followed its own constitution in establishing voter eligibility standards. The Board rejected these arguments and amended Firstbank’s certification to name FIEA as the employees’ bargaining representative. Seattle-First National Bank, 241 N. L. R. B. 751 (1979).
SeaFirst refused to recognize the amended certification or to bargain with FIEA. The Board sustained FIEA’s charges and held that SeaFirst had committed an unfair labor practice in violation of §§ 8(a)(1) and 8(a)(5) of the Act, 29 U. S. C. §§ 158(a)(1) and 158(a)(5), and ordered it to bargain. Seattle-First National Bank, 245 N. L. R. B. 700 (1979). SeaFirst petitioned the Court of Appeals for the Ninth Circuit for review of the Board’s order, and the Board cross-applied for enforcement. Before the Court of Appeals rendered its decision, the Board moved for remand of the case to it, and the court granted the motion. Seattle-First National Bank v. NLRB, Nos. 79-7515, 80-7004 (June 27, 1980); see n. 4, infra.
On remand, the Board notified the parties of its decision on its own motion to reconsider its earlier decision. On reconsideration, the Board held that, because nonunion employees were not allowed to vote in the affiliation election, the election did not meet minimal “due process” standards, and therefore that the affiliation was invalid. Accordingly, the Board dismissed FIEA’s unfair labor practice charge and vacated the amended certification. Seattle-First National Bank, 265 N. L. R. B. 426 (1982).
FIEA petitioned the Court of Appeals for the Ninth Circuit for review of the Board’s decision. The Court of Appeals, in a 2-1 decision, granted the petition and remanded the case. 752 F. 2d 356 (1984). The court held that the Board’s requirement that nonunion employees be allowed to vote on affiliation questions was irrational and inconsistent with the Act for three reasons. First, the Board’s rule intruded upon the union’s internal affairs —here a totally unjustified intrusion because the Board had not determined that affiliation had substantially changed the union or eroded its majority support — and violated the “longstanding federal labor policy of avoiding unnecessary interference in internal union affairs.” Id., at 362. Second, the Board’s rule was “inconsistent with the strong national policy of maintaining stability in the bargaining representative.” Id., at 364. Pursuant to that policy, Congress and the Board had restricted the opportunities for employers and employees to challenge a certified union’s status as bargaining representative, and the Board’s new rule did not further but breached the policy, since it effectively decertified the union without a Board determination that affiliation had undermined the union’s majority support. Finally, the Board’s rule was irrational, because the interests of nonunion employees were adequately protected under existing procedures, and because the Board’s reasoning did not support the rule.
The holding of the Court of Appeals conflicts with contrary holdings of the Courts of Appeals for the Fifth and Seventh Circuits upholding the Board’s rule. Local Union No. 4-14 v. NLRB, 721 F. 2d 150, 152-153 (CA5 1983); United Retail Workers Union, Local 881 v. NLRB, 774 F. 2d 752 (CA7 1985). We granted both petitions in this case to to resolve the conflict. 471 U. S. 1098 (1985). We affirm.
HH l-H
Section 7 of the Act guarantees employees the right “to bargain collectively through representatives of their own choosing,” 29 U. S. C. §157, and the Board is empowered to determine representation on petition of employees or the employer. 29 U. S. C. §§ 159(c)(l)(A)(i), 159(c)(1)(B). In either case, the Board investigates the petition and holds a hearing if it has reasonable cause to believe that a “question of representation” exists, 29 U. S. C. § 159(c), and directs a representation election by secret ballot to settle the question. Ibid. The Board certifies the winning union as the bargaining representative of all of the employees in the bargaining unit. The employer commits an unfair labor practice by refusing to bargain with the employees’ certified bargaining representative. 29 U. S. C. § 158(a)(5).
The Act recognizes that employee support for a certified bargaining representative may be eroded by changed circumstances. In such cases, employees may petition the Board for another election, alleging that the certified representative no longer enjoys majority support. 29 U. S. C. § 159(c)(1) (A)(ii); 29 CFR §§ 101.17,102.60(a) (1985). Similarly, an employer who questions whether a majority of employees continue to support a certified union may petition for another election. 29 U. S. C. § 159(c)(1)(B); 29 CFR §§101.17, 102.60(a) (1985); see 1 C. Morris, The Developing Labor Law 349 (2d ed. 1983). The employer, however, must “demonstrate by objective considerations that it has some reasonable grounds for believing that the union has lost its majority status.” United States Gypsum Co., 157 N. L. R. B. 652, 656 (1966); 29 CFR § 101.17 (1985); see 1 Morris, supra. Again, if the Board determines, after investigation and hearing, that a question of representation exists, it directs an election by secret ballot and certifies the result. 29 U. S. C. § 159(c).
One such change in circumstances is, as here, where an independent union decides to affiliate with a national or international organization. In many such cases, the union may also change its name to reflect its new affiliation, and will petition the Board to amend its certification to reflect this name change. 29 CFR §§101.17, 102.60(b) (1985). The Board’s practice has been to grant such petitions if the Board found that the affiliation satisfied two conditions. First, that union members have had an adequate opportunity to vote on affiliation. North Electric Co., 165 N. L. R. B. 942, 943 (1967). The Board ordinarily required that the affiliation election be conducted with adequate “due process” safeguards, including notice of the election to all members, an adequate opportunity for members to discuss the election, and reasonable precautions to maintain ballot secrecy. E. g., Newspapers Inc., 210 N. L. R. B. 8, 9 (1974), enf’d, 515 F. 2d 334 (CA5 1975). Second, that there was substantial “continuity” between the pre- and post-affiliation union. The focus of this inquiry was whether the affiliation had substantially changed the union; the Board considered such factors as whether the union retained local autonomy and local officers, and continued to follow established procedures. See Note, supra n. 5, at 445, and nn. 74-82. If the organizational changes accompanying affiliation were substantial enough to create a different entity, the affiliation raised a “question concerning representation” which could only be resolved through the Board’s election procedure. 1 Morris, supra, at 690; 29 CFR §§ 101.17, 102.60(b) (1985). However, as long as continuity of representation and due process were satisfied, affiliation was considered an internal matter that did not affect the union’s status as the employees’ bargaining representative, and the employer was obligated to continue bargaining with the reorganized union. 1 Morris, supra, at 690-691; Universal Tool & Stamping Co., 182 N. L. R. B. 254, 259 (1970).
The Board’s new rule dramatically changes this scheme. The Board now takes the position that all employees in the bargaining unit — not merely union members — must have the opportunity to participate in the affiliation decision. See Amoco Production Co., 262 N. L. R. B. 1240, 1241 (1982). Unless they are allowed to do so, the Board will not amend the union’s certification or require the employer to bargain with the reorganized union. The Board applies this rule even though the organizational changes resulting from the affiliation are not substantial enough to raise a question of representation. See Brief for NLRB 16-17. The Board does not contend that the Act requires that all employees of the bargaining unit, union and nonunion, must be allowed to participate in the affiliation election or that the Act expressly authorizes the Board to impose such requirements. Rather, the Board and the employer defend the Board’s new rule on two grounds. First, they assert that the Board’s rule is a reasonable means of protecting the bargaining unit employees’ right to select a bargaining representative under § 7 of the Act. Second, they argue that the rule minimizes industrial strife. We address each argument in turn.
I — I 1 — 1 HH
A
Petitioners argue that the Board should be afforded “a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees,” NLRB v. A. J. Tower Co., 329 U. S. 324, 330 (1946); see also 29 U. S. C. § 156; NLRB v. Wyman-Gordon Co., 394 U. S. 759, 767 (1969); NLRB v. Waterman S.S. Corp. 309 U. S. 206, 226 (1940), and contend that a requirement that all employees be allowed to vote on affiliation is a reasonable means of insuring that a majority of employees consent to representation by the postaffiliation union, and ultimately of protecting the right of all employees to select a bargaining representative. Our cases have previously recognized the Board’s broad authority to construe provisions of the Act, and have deferred to Board decisions that are not irrational or inconsistent with the Act. Ford Motor Co. v. NLRB, 441 U. S. 488, 495, 497 (1979); Beth Israel Hospital v. NLRB, 437 U. S. 483, 501 (1978); NLRB v. Iron Workers, 434 U. S. 335, 350 (1978). However, the question here is whether the Board’s new rule exceeds the Board’s statutory authority. Cf. NLRB v. Longshoremen, 473 U. S. 61 (1985); NLRB v. Bildisco & Bildisco, 465 U. S. 513 (1984). Deference to the Board “cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption ... of major policy decisions properly made by Congress.” American Ship Building Co. v. NLRB, 380 U. S. 300, 318 (1965); see also NLRB v. Insurance Agents, 361 U. S. 477, 499 (1960). We hold that the Board’s new rule exceeds its authority under the Act.
Under the Act, the certified union must be recognized as the exclusive bargaining representative of all employees in the bargaining unit, and the Board cannot discontinue that recognition without determining that the affiliation raises a question of representation and, if so, conducting an election to decide whether the certified union still is the choice of a majority of the unit. 29 U. S. C. § 159(c). Of course, as is the case with any organizational and structural change, a new affiliation may substantially change a certified union’s relationship with the employees it represents. These changed circumstances may in turn raise a “question of representation,” if it is unclear whether a majority of employees continue to support the reorganized union. Thus, in these situations, the affiliation implicates the employees’ right to select a bargaining representative, and to protect the employees’ interests, the situation may require that the Board exercise its authority to conduct a representation election. 29 U. S. C. § 159(c)(1). However, the Board’s decision must take into account that “[t]he industrial stability sought by the Act would unnecessarily be disrupted if every union organizational adjustment were to result in displacement of the employer-bargaining representative relationship.” Canton Sign Co., 174 N. L. R. B. 906, 909 (1969), enf. denied on other grounds, 457 F. 2d 832 (CA6 1972). In many cases, a majority of employees will continue to support the union despite any changes precipitated by affiliation. In such situations, affiliation does not necessarily implicate the “selection” of a new bargaining representative. The reorganized union may legitimately claim to succeed as the employees’ duly selected bargaining representative, and in that case retains a legitimate interest in continuing to bargain collectively with the employer. The Act balances these competing concerns by authorizing the Board to conduct a representation election only where affiliation raises a question of representation. 29 U. S. C. § 159(c). Conversely, where affiliation does not raise a question of representation, the statute gives the Board no authority to act. The Board’s new rule upsets the accommodation drawn by the statute by effectively decertify-ing the reorganized union even where affiliation does not raise a question of representation.
Turning to the record in these cases, the Board revoked FIEA’s certification and relieved SeaFirst of its obligation to bargain despite the fact, as the Board acknowledges, that it was not sufficient to raise a question of representation that nonunion employees were not allowed to vote in the affiliation election. Brief for NLRB 16-17. Absent a question of representation, FIEA continued to function, as it was entitled to do, as the bargaining representative of the unit, and SeaFirst was obligated to continue bargaining with it. By-refusing either to amend FIEA’s certification or to order SeaFirst to bargain, the Board effectively circumvented the decertification procedures provided for by statute. Moreover, the Board exceeded its statutory authority by requiring that nonunion employees be allowed to vote in the union’s affiliation election. This violated the policy Congress incorporated into the Act against outside interference in union decisionmaking. See Steelworkers v. Sadlowski, 457 U. S. 102, 117 (1982); NLRB v. Boeing Co., 412 U. S. 67, 71 (1973); Scofield v. NLRB, 394 U. S. 423, 428 (1969); NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, 195 (1967). Petitioners maintain that this policy must give way to the right of the employees to select a bargaining representative. Cf. Pattern Makers v. NLRB, 473 U. S. 95 (1985) (union rule barring resignations during a strike contrary to statutory policy of voluntary unionism); NLRB v. Marine Workers, 391 U. S. 418 (1968) (union rule requiring exhaustion of internal grievance procedures does not preclude Board review). But the Act establishes a specific election procedure to decide whether the employees desire a change in a certified union’s representative status. While the Board is charged with responsibility to administer this procedure, the Act gives the Board no authority to require unions to follow other procedures in adopting organizational changes.
B
Petitioners contend that this statutory scheme does not adequately protect the interests of nonunion employees, and that this justifies the Board’s new rule. They argue that an affiliation may affect a union’s representation of the bargaining unit even if it does not raise a question of representation, but that argument overlooks the fact that a union makes many decisions that “affect” its representation of nonmember employees. It may decide to call a strike, ratify a collective-bargaining agreement, or select union officers and bargaining representatives. Under the Act, dissatisfied employees may petition the Board to hold a representation election, but the Board has no authority to conduct an election unless the effects complained of raise a question of representation. In any event, dissatisfaction with representation is not a reason for requiring the union to allow nonunion employees to vote on union matters like affiliation. Rather, the Act allows union members to control the shape and direction of their organization, and “[n]on-union employees have no voice in the affairs of the union.” Allis-Chalmers, 388 U. S., at 191. We repeat, dissatisfaction with the decisions union members make may be tested by a Board-conducted representation election only if it is unclear whether the reorganized union retains majority support.
Petitioners concede that a union’s organizational and structural changes would not ordinarily justify the Board’s meddling in a union’s internal affairs, but argue that affiliation is different from other changes because affiliation necessarily changes the union’s identity, and because initiation of the change is by the certified union seeking the Board’s approval for the affiliation by amendment of its certification or an order on the employer to bargain after affiliation. Neither distinction is persuasive.
First, petitioners argue that affiliation differs from other organizational changes because it results in employees being represented by a different organization. See Hamilton Tool Co., 190 N. L. R. B. 571, 576 (1971) (Miller, concurring). But many organizational or structural changes may operate to alter a union’s “identity.” This would be the case where the union amends its constitution or bylaws, restructures its financial obligations and resources, or alters its jurisdiction. The fact that an affiliation is often accompanied by a formal name change does not serve to distinguish it from other organizational developments. As the Board has recognized, “an affiliation does not create a new organization, nor does it result in the dissolution of an already existing organization.” Amoco Production Co., 239 N. L. R. B. 1195 (1979). Rather, the union will determine “whether any administrative or organizational changes are necessary in the affiliating organization.” Ibid. If these changes are sufficiently dramatic to alter the union’s identity, affiliation may raise a question of representation, and the Board may then conduct a representation election. Otherwise, the statute gives the Board no authority to interfere in the union’s affairs.
Petitioners next contend that affiliation involves the union’s asking the Board to amend its certification or to order the employer to bargain. Petitioners assert that the Board therefore has a strong interest in insuring that its own election procedures have not been circumvented before placing its imprimatur on the union’s affiliation election. This argument mischaracterizes the nature of the relevant procedures. In amending the union’s certification or ordering the employer to bargain, the Board does not “sanction” the union’s affiliation. Rather, it signifies only that the reorganized union continues as an ongoing entity that the employer should continue to recognize. By analogy, the fact that the Board may order the employer to bargain with a union that has amended its constitution does not mean that the Board has “sanctioned” the constitutional amendment. In any event, the Board’s interest in insuring the integrity of its procedures does not empower it to adopt measures exceeding its statutory authority. If the Board finds that affiliation raises a question of representation “undermining . . . the Board’s own election and certification procedures,” Amoco Production Co., 262 N. L. R. B., at 1241, it can refuse to consider the union’s unfair labor practice charge, and is authorized to conduct a representation election. However, it may not condone an employer’s refusal to bargain in the absence of a question of representation, and has no authority to prescribe internal procedures for the union to follow in order to invoke the Act’s protections.
> HH
The basic purpose of the National Labor Relations Act is to preserve industrial peace. 29 U. S. C. § 151. The Act includes several provisions designed to encourage stable bargaining relationships, e. g., § 8(b)(7)(A), 29 U. S. C. § 158 (b)(7)(A) (prohibiting recognitional picketing by employees represented by recognized union); § 8(b)(7)(B), 29 U. S. C. § 158(b)(7)(B) (prohibiting recognitional picketing for one year after election); § 9(c)(3), 29 U. S. C. § 159(c)(3) (prohibiting second representation election within one year), and the Board has devised rules to achieve the same ends. See n. 3, supra. Petitioners argue that the Board’s new rule furthers this policy by introducing a measure of certainty into the bargaining relationship that protects both the employer and the union. By having all employees vote for affiliation, so the argument goes, the employer avoids the possibility of having to bargain -with a union that may not represent a majority of the employees. Petitioners submit that the union also benefits from having all employees vote, since it avoids the disruption that would occur if the Board eventually determines that it must hold a new election because the affiliation raises a question of representation. If the employees vote for affiliation, the union can continue to bargain with confidence, since the employer is less likely to challenge the affiliation, and the Board is less likely to find a question of representation. If the employees vote against affiliation, the incumbent union can forgo affiliation and continue to represent the bargaining unit.
Absent any statutory framework, the Board’s rule might well be a rational means of preserving industrial stability. However, as the Ninth Circuit noted, Congress has already determined “as a matter of national labor policy that bargaining stability and the principle of majority rule may limit the timing of employee challenges to their certified bargaining representative’s majority status.” 752 F. 2d, at 366. The Act assumes that stable bargaining relationships are best maintained by allowing an affiliated union to continue representing a bargaining unit unless the Board finds that the affiliation raises a question of representation. The Board’s rule contravenes this assumption, since an employer may invoke a perceived procedural defect to cease bargaining even though the union succeeds the organization the employees chose, the employees have made no effort to decertify the union, and the employer presents no evidence to challenge the union’s majority status. Any uncertainty on the employer’s part does not reheve him of his obligation to bargain collectively. “If an employer has doubts about his duty to continue bargaining, it is his responsibility to petition the Board for relief .... To allow employers to rely on employees’ rights in refusing to bargain with the formally designated union is not conducive to [industrial peace].” Brooks v. NLRB, 348 U. S. 96, 103 (1954). The Board’s rule effectively gives the employer the power to veto an independent union’s decision to affiliate, thereby allowing the employer to directly interfere with union decisionmaking Congress intended to insulate from outside interference.
We hold that the Board exceeded its authority under the Act in requiring that nonunion employees be allowed to vote for affiliation before it would order the employer to bargain with the affiliated union. The judgment of the Court of Appeals is affirmed. The cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
After the Board amended FIEA’s certification, the Retail Clerks International Union merged with the Amalgamated Meat Cutters and Butcher Workmen of North America to become the United Food and Commercial Workers International Union, AFL-CIO. The Board granted FIEA’s motion to amend the name of the charging party in this ease to reflect this change. Seattle-First National Bank, 245 N. L. R. B. 700, 700, n. 1 (1979).
Under § 8(a) of the Act, as set forth in 29 U. S. C. § 158(a), “[i]t shall be an unfair labor practice for an employer—
“(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
“(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.”
The court cited three examples of Board rules designed to maintain stable bargaining relationships. 752 F. 2d, at 365. First, in cases in which the employer is charged with refusing to bargain with a certified union, the union enjoys a presumption of majority status. For the first year after certification, this presumption is irrebuttable. See Brooks v. NLRB, 348 U. S. 96, 103 (1954). Second, the Board will consider “decerti-fying” a union only if at least 30% of the employees present a petition, or in “extreme eases.” See 29 CFR § 101.18 (1985); R. Gorman, Basic Text on Labor Law 49-50 (1976). Third, under its contract-bar rule, the Board ordinarily refuses to conduct decertification elections for a certain period of time while the collective-bargaining agreement remains in effect. See 1 C. Morris, The Developing Labor Law 361-376 (2d ed. 1983).
The procedural history of the Fifth Circuit’s decision is closely intertwined with this case. In that case, the employer refused to bargain with an affiliated union because only union members had been allowed to vote on affiliation. The Board ordered the employer to bargain. Amoco Production Co., 220 N. L. R. B. 861 (1975), aff’d, 239 N. L. R. B. 1195 (1979). The Board relied on its Amoco decision when it originally amended FIEA’s certification in this case. Amoco was then appealed to the Court of Appeals for the Fifth Circuit, which remanded the case for the Board to determine whether affiliation had substantially changed the union. Amoco Production Co. v. NLRB, 613 F. 2d 107, 112 (1980). In light of the strong similarity between the two cases, the Board asked the Ninth Circuit to remand this ease as well. On remand from the Fifth Circuit, the Board did not address whether affiliation had substantially changed the union. Rather, the Board reversed itself and concluded that the affiliation was invalid because only union members had been allowed to vote. Amoco Production Co., 262 N. L. R. B. 1240 (1982). The Board in turn relied on this decision in dismissing FIEA’s unfair labor practice charge and revoking its amended certification.
A local union may seek to affiliate with a larger organization for a variety of reasons. The larger organization may provide bargaining expertise or financial support, or may compensate for a lack of leadership within the local union. Amoco Production Co., 239 N. L. R. B., at 1195; Hale, Union Affiliations: Examination of Governing NLRA Standards, 1983 Det. C. L. Rev. 709. Affiliation “is but one of many ways in which labor organizations alter their structures and alignments in response to changing economic and political conditions.” Note, Union Affiliations and Collective Bargaining, 128 U. Pa. L. Rev. 430, 431 (1979). The Board has recognized that a union “must remain largely unfettered in its organizational quest for financial stability and aid in the negotiating process.” The Williamson Co., 244 N. L. R. B. 953, 955 (1979).
The union suggests that it may even be inappropriate for the Board to impose due process safeguards with respect to union members. Brief for FIEA 28-29. While we note that the NLRA does not require unions to follow specified procedures in deciding matters such as affiliations, we need not assess the propriety of the Board’s past procedures.
The parties disagree over whether affiliation substantially changed the union in this case. See Brief for NLRB 4, and n. 2; Brief for FIEA 4. However, the Board did not make a continuity determination but simply dismissed FIEA’s unfair labor practice charge and vacated its amended certification. The Court of Appeals therefore declined to address the continuity issue. 752 F. 2d, 356, 359, n. 4 (1984). We also decline to address it.
In some cases, the affiliated union will not petition the Board to amend its certification, but will instead wait to see whether the employer will continue to bargain. If the employer refuses to bargain, the union may then file an unfair labor practice charge with the Board. In the past, the Board required the employer to bargain if the affiliation satisfied its two-pronged due process and continuity test. In other words, the Board used the same standards to examine affiliations whether the issue arose as a defense to an unfair labor practice charge or in a petition to amend a certification. Independent Drug Store Owners of Santa Clara County, 211 N. L. R. B. 701, n. 2 (1974), enf’d, 528 F. 2d 1225 (CA9 1975); Hale, supra n. 5, at 710, and n. 8; Note, supra n. 5, at 432.
The Board’s assertion that it actually adopted its “new” rule in its decision in Jasper Seating Co., 231 N. L. R. B. 1025 (1977), may be questioned. Jasper was a 3-2 decision in which only two members took the position that nonunion employees should be allowed to vote in affiliation elections. While suggesting that he could adopt this position under other circumstances, member Penello concurred in the decision “based upon the application of [different] principles.” Id., at 1026. He found that the affiliation had raised a question of representation which could only be resolved through a Board-conducted representation election. Id., at 1027.
The Board has recognized that “affiliation does not directly involve the employment relation. The status of wages, working conditions, benefits, and grievance procedures is unaffected by the affiliation vote; the collective-bargaining agreement between the union and the employer remains effective until the stated expiration date.” Amoco Production Co., 239 N. L. R. B., at 1195. Affiliation “has no probative value concerning the employees’ choice of the [union] as their collective bargaining representative.” American Range Lines, Inc., 13 N. L. R. B. 139, 154 (1939); see also Brief for NLRB 16, n. 10 (“The Board has in general found that affiliations do not destroy continuity of representation”).
Congress has expressly declined to prescribe procedures for union decisionmaking in matters such as affiliation. When the NLRA was amended by the Labor Management Relations Act of 1947, the House passed a proposal that would have regulated union procedures for electing officers, assessing dues, disciplining members, and deciding to strike. H. R. 3020, §8(c), 80th Cong., 1st Sess. (1947), 1 NLRB, Legislative History of the Labor Management Relations Act, 1947, pp. 179-183 (Legis. Hist.). These provisions were deleted from the final legislation. See 93 Cong. Rec. 6443 (1947), 2 Legis. Hist. 1540 (“The Senate conferees. . . felt that it was unwise to authorize [the NLRB] to undertake such elaborate policing of the internal affairs of unions”). In 1959, Congress adopted the Labor-Management Reporting and Disclosure Act, which regulated union procedures for assessing dues, disciplining employees, and electing officers. 29 U. S. C. §§ 411-415, 481. Senators Knowland and McClellan both advanced proposals to regulate other sorts of union decisions. See 104 Cong. Rec. 11184 (1958) (constitutional amendments and recall of officers); id., at 11461 (waiver of right to strike); S. 1137, § 102(5), 86th Cong., 1st Sess. (1959), 1 Legislative History of the Labor-Management Reporting and Disclosure Act 272-273 (1959) (creation of affiliated organizations or funds), § 103(4), id., at 277 (mergers and transfers between local unions). None of these proposals was incorporated into the statute. See Steelworkers v. Sadlowski, 457 U. S. 102, 117 (1982) (“Congress was guided by the general principle that unions should be left free to ‘operate their own affairs, as far as possible.’ It believed that only essential standards should be imposed by legislation” (citation omitted)).
In its amicus brief, the Chamber of Commerce notes that the statute does not explicitly provide for petitions to amend a union’s certification, and argues that the Board therefore has broad authority to refuse to grant such requests. However, because the union’s request to amend its certification is a mere formality, it cannot give the Board additional authority to police the affiliation. A union could simply decide not to change its name upon affiliation, and would not have to ask the Board to amend its certification. The employer might then challenge the affiliation as a defense to an unfair labor practice charge. Unless the Board finds that the affiliation raised a question of representation, the affiliated union would continue as the employees’ bargaining representative, and the employer would be required to bargain with the reorganized union. Thus, the amended certification procedure cannot broaden the Board’s authority to interfere in the union’s affairs.
We do not suggest, however, that other Board representation procedures, such as its continuity determination, exceed its statutory authority.
Respondents argue that the Board’s rule is irrational because it assumes that affiliation involves the selection of a new bargaining representative absent any indication that the affiliation has significantly changed the union. Because we conclude that the Board has exceeded its authority under the statute, we need not address this issue.
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_usc2sect
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7430
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Appellant, v. Cheryl L. McPECK, a/k/a Cheri Bell d/b/a Gold Studio, Appellee.
No. 89-5502.
United States Court of Appeals, Eighth Circuit.
Submitted June 14, 1990.
Decided Aug. 6, 1990.
John A. Dudeck, Jr., Washington, D.C., for appellant.
Ian Traquair Ball, Minneapolis, Minn., for appellee.
Before LAY, Chief Judge, HEANEY and TIMBERS, Senior Circuit Judges.
The HONORABLE WILLIAM H. TIMBERS, Senior Circuit Judge for the United States Court of Appeals for the Second Circuit, sitting by designation.
LAY, Chief Judge.
The United States of America appeals from an order of the district court affirming the bankruptcy court’s award of compensatory damages, punitive damages, and attorneys’ fees to Cheryl L. McPeck. The bankruptcy court assessed the award against the Internal Revenue Service (IRS) under 11 U.S.C. § 362(h) (1988) because of its willful violation of the automatic stay established by McPeck’s chapter 13 bankruptcy petition. We remand with instructions.
BACKGROUND
The facts underlying the bankruptcy court’s finding that the IRS violated the automatic stay are set forth in detail in its opinion. See In re McPeck, Bky. No. 4-88-437, slip op. at 2-14 (Bankr.D.Minn. Oct. 12, 1988). A summary will suffice here.
McPeck owned a dance and exercise studio in Maple Grove, Minnesota, which she incorporated as “Gold Studio, Inc.” sometime prior to 1988. McPeck became delinquent in paying various federal taxes, including personal income taxes, employee wage withholding taxes, federal unemployment (FUTA) taxes, and social security (FICA) taxes. The IRS made several collection attempts, none of which were successful. On February 4, 1988, McPeck filed a chapter 13 bankruptcy petition. She did not file a bankruptcy petition on behalf of Gold Studio, Inc. That same day, McPeck called the IRS to inform it of her petition. She also personally delivered a copy of the petition to the IRS along with a letter from her attorney advising the IRS that the automatic stay had gone into effect.
Despite this notice, the IRS continued its collection efforts without seeking relief from the stay. On February 16, 1988, McPeck met with a revenue officer to provide information about corporate assets. The revenue officer asked McPeck about her personal financial situation and had her fill out a form entitled “Collection Information Statement for Individuals.” This' form asked McPeck about her personal assets and personal finances. On February 25, 1988, the IRS secured a court order authorizing it to seize the assets of Gold Studio, Inc. The IRS conducted the seizure the next day. Apparently using this seizure as a training exercise, the IRS secured police protection, hired a trucking company, and sent five revenue officers to seize the corporate property. The IRS gave McPeck an opportunity to segregate her personal property, and made an effort to seize only corporate property. Nonetheless, some of McPeck’s personal items were mistakenly loaded onto the truck and hauled away to an auction house along with the corporate property.
The IRS eventually realized that the corporate assets had no value to the IRS because they were fully encumbered by liens. The IRS also learned that it had seized some of McPeck’s personal assets. Nevertheless, the IRS advised McPeck that it would not release any of the assets until she agreed to pay freight and storage charges and signed a “receipt” absolving the IRS of all liability for damages caused by the seizure. McPeck refused to sign the “receipt,” and the property thereafter remained in storage at the auction house.
McPeck filed a motion under 11 U.S.C. § 362(h) alleging that the IRS had willfully violated the automatic stay. The bankruptcy court found three separate violations: (1) taking the “Collection Information” statement, (2) seizing McPeck’s personal property, and (3) requiring McPeck to sign the “receipt” releasing the IRS from liability as a condition for the return of her property. Finding the first and third violations to be willful, the bankruptcy court awarded McPeck $1489.05 in actual damages, $2500 in punitive damages, and $2,825.25 in attorneys’ fees.
The United States does not challenge the findings that the IRS willfully violated the stay. Nor does it assert that any of the damages or attorneys’ fees are inappropriate. The United States’ sole argument is that Congress has not waived the IRS’s immunity from money judgments in bankruptcy cases. McPeck counters that 11 U.S.C. § 106 (1988) provides the necessary waiver of sovereign immunity in this case. DISCUSSION
There is no doubt that the IRS is bound by the automatic stay. Section 362(a) of the Bankruptcy Code imposes the stay on all “entities.” Section 101(14) defines “entity” to include a “governmental unit.” Section 101(26) defines “governmental unit” to include a “department, agency, or instrumentality of the United States.” This does not end the inquiry, however. Nothing in § 362 serves as a waiver of the federal government’s sovereign immunity from the damages and attorneys’ fees authorized by § 362(h). See Small Business Admin. v. Rinehart, 887 F.2d 165, 169 (8th Cir.1989). For such a waiver, we must look to 11 U.S.C. § 106, which provides:
Waiver of sovereign immunity
(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit’s claim arose.
(b) There shall be offset against an allowed claim or interest of a governmental unit any claim against such governmental unit that is property of the estate.
(c) Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sovereign immunity—
(1) a provision of this title that contains “creditor”, “entity”, or “governmental unit” applies to governmental units; and
(2) a determination by the court of an issue arising under such a provision binds governmental units.
11 U.S.C. § 106 (1988).
We held in Rinehart that subsection (c) does not constitute a waiver of the federal government’s immunity from monetary sanctions for violation of the automatic stay. 887 F.2d at 170 (relying on plurality opinion in Hoffman v. Connecticut Dept. of Income Maintenance, — U.S.-, 109 S.Ct. 2818, 106 L.Ed.2d 76 (1989)). Recognizing this obstacle, McPeck asserts that subsection (a) is applicable. Subsection (a) authorizes monetary recovery from a governmental unit if (1) the governmental unit has a claim against the estate, (2) the debt- or’s claim against the governmental unit is property of the estate, and (3) the two claims arose from the same “transaction or occurrence.”
The United States does not deny that the first two requirements of subsection (a) have been satisfied. However, it argues that McPeck’s claim for damages did not “arise from the same transaction or occurrence” as the IRS’s claim upon the tax debt. This is a question that has resulted in a split of authority among the few bankruptcy courts that have addressed it. Compare In re Price, 103 B.R. 989, 995-96 (Bankr.N.D.Ill.1989) and In re Lile, 96 B.R. 81, 85 (Bankr.S.D.Tex.1989) with In re Academy Answering Service, Inc., 100 B.R. 327, 330 (N.D.Ohio 1989).
We need not pass on this issue, however, because we think that the proper provision to be applied in this case is subsection (b). Subsection (b) does not require that the two claims “arise from the same transaction or occurrence.” See H.R.Rep. No. 595, 95th Cong., 1st Sess. 317, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6274. Unlike subsection (a), however, subsection (b) limits the waiver of sovereign immunity to an offset of the governmental unit’s claim against the estate. Both parties minimally address subsection (b) in their briefs, apparently because the bankruptcy court did not specifically authorize an offset in this case. We find, however, that offset was the proper procedure to follow in this case.
Section 106(b) states that any claim against a governmental unit that is property of the estate “shall be offset” against an allowed claim or interest of the governmental unit. This mandatory language comports with the established principle that an award to a plaintiff on a claim is ordinarily offset against an award to the defendant on a counterclaim; a single judgment is entered for the excess, if any. See, e.g., In re Applied Logic Corp., 576 F.2d 952, 957-58 (2d Cir.1978); 80 C.J.S. Set-Off & Counterclaim § 6, at 16 (1953). Thus, the tax claim established by the IRS must initially be offset by the counterclaim of the estate. A contrary rule would not only violate the language of § 106(b), but would contravene general principles of equity by requiring the governmental unit to pay the award to the debtor while being forced to attempt to recover its own claim through bankruptcy.
In our view, therefore, subsections (a) and (b) of § 106 must be read together. Section 106(a) is applicable only where the debtor’s claim exceeds the claim of the governmental unit, and then, affirmative recovery is allowed only to the extent of such excess. Here, the IRS’s claim for taxes far exceeds the total amount that McPeck was awarded on her § 362(h) motion. Thus, the proper procedure would have been to offset McPeck's recovery against the IRS’s tax claim. To find a waiver of sovereign immunity for such an offset, we need only to look to § 106(b). Accordingly, we remand with instructions to offset McPeck’s award against the IRS’s tax claim.
In our view, § 106(b) requires that McPeck’s entire award, including the award of attorneys’ fees, be offset. When a statute awards attorneys’ fees to a party, the award belongs to the party, not to the attorney representing the party. See Evans v. Jeff D., 475 U.S. 717, 731-32, 106 S.Ct. 1531, 1539-40, 89 L.Ed.2d 747 (1986); Smith v. South Side Loan Co., 567 F.2d 306, 307 (5th Cir.1978) (per curiam). Here, McPeck’s entire § 362(h) claim, including her claim for attorneys’ fees, became property of the estate by virtue of 11 U.S.C. § 1306 (and as required by § 106(b)). The Bankruptcy Code contains specific provisions for the compensation of attorneys who prosecute claims on behalf of the estate. See 11 U.S.C. § 503(b) (1988). An attorney's claim under these provisions is given the highest priority. See 11 U.S.C. § 507(a) (1988). We recognize that collecting fees under these bankruptcy procedures may impose somewhat of a burden on McPeck’s counsel. Nonetheless, we are dealing here with principles narrowly limiting recovery against a sovereign.
McPeck suggests, however, that a provision of the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(b) (1988), authorizes an affirmative award of attorneys’ fees against the IRS in this case. The United States counters that 28 U.S.C. § 2412(e) (1988) renders the EAJA inapplicable to this case because this case is one “to which section 7430 of the Internal Revenue Code of 1954 applies.” Id. We agree with the IRS that I.R.C. § 7430 is applicable here because that section applies to “any administrative or court proceeding which is brought by or against the United States in connection with the determination, collection, or refund of any tax, interest, or penalty” under the Internal Revenue Code. I.R.C. § 7430(a) (1990) (emphasis added). As the United States argues, to receive attorneys’ fees under I.R.C. § 7430
[McPeck] would have to comply with the substantive and procedural requirements of Section 7430. For example, she would have to prove that the position of the United States was “not substantially justified,” and that she “substantially prevailed” with respect to the amount in controversy or the most significant issue or set of issues presented, a burden she would not bear under Section 362(h).
Reply Brief for the Appellant at 18.
This issue was neither addressed by the bankruptcy court nor fully briefed by the parties. It appears from the bankruptcy court’s order that it intended to award attorneys’ fees solely under § 362(h). However, on remand the bankruptcy court may determine whether attorneys’ fees can be awarded under the procedural standards set forth in I.R.C. § 7430. If so, the award of attorneys’ fees should be assessed affirmatively against the IRS, and not as an offset against its tax claim.
The case is remanded to the district court with instructions to remand to the bankruptcy court for further proceedings in accordance with this opinion.
. The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota.
. The Honorable Nancy C. Dreher, United States Bankruptcy Judge for the District of Minnesota.
. As of the hearing on the § 362(h) motion the IRS had still not released any of the property even though McPeck had made several requests to the IRS and to the Department of Justice for a return of her personal property. McPeck eventually regained her personal property by agreeing to a sale of the corporate assets and applying the proceeds toward freight and storage charges.
. 11 U.S.C. § 362(h) provides:
An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.
. The bankruptcy court found that the IRS’s seizure of McPeck’s personal property, although technically a violation, was not willful because the IRS attempted to seize only corporate property.
. For example, the United States does not argue that these are not “appropriate circumstances” for an award of punitive damages. See In re Ketelsen, 880 F.2d 990 (8th Cir.1989).
. The IRS filed a proof of claim in the bankruptcy court in the amount of $19,329.40 for personal income, FICA, FUTA, and wage withholding taxes incurred by McPeck while operating her studio as a sole proprietorship. The IRS later amended its claim to include an additional $4,671.30 in wage withholding and FICA taxes.
In this chapter 13 case, McPeck’s claim for damages became property of her bankruptcy estate since, under 11 U.S.C. § 1306(a)(1) (1988), it was "property * * * the debtor ac-quirefd] after the commencement of the case but before the case [was] closed, dismissed, or converted.”
. The court in In re Applied Logic stated:
The rule allowing setoff, both before and after bankruptcy, is not one that courts are free to ignore when they think application would be "unjust." It is a rule that has been embodied in every bankruptcy act the nation has had, and creditors, particularly banks, have long acted in reliance upon it.
576 F.2d at 957-58 (footnote and citation omitted).
. 28 U.S.C. § 2412(b) provides:
Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.
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 26? Answer with a number.
Answer:
|
sc_caseorigin
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039
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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.
MEGHRIG et al. v. KFC WESTERN, INC.
No. 95-83.
Argued January 10, 1996
Decided March 19, 1996
O’Connor, J., delivered the opinion for a unanimous Court.
John P. Zaimes argued the cause and filed briefs for petitioners.
Jeffrey P Minear argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Schiffer, Deputy Solicitor General Wallace, Anne S. Almy, and John T Stahr.
Daniel Romano argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed for the Petroleum Marketers Association of America by Alphonse M. Alfano and Robert S. Bassman; for the Southern California Service Station Association by Dimitri G. Daskalopoulos; and for the Western States Petroleum Association by Donna R. Black.
Briefs of amici curiae urging affirmance were filed for the Commonwealth of Massachusetts et al. by Scott Harshbarger, Attorney General of Massachusetts, and William L. Pardee, John Beling, and Karen McGuire, Assistant Attorneys General, Jeremiah W. Nixon, Attorney General of Missouri, and James Layton, Joseph P. Bindbeutel, and Douglas E. Nelson, Assistant Attorneys General, and by the Attorneys General of their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Calvin E. Holloway of Guam, Chris Gorman of Kentucky, Frankie Sue Del Papa of Nevada, Tom Udall of New Mexico, Darrell V. McGraw, Jr., of West Virginia, Robert A. Butterworth of Florida, Carla Stolla of Kansas, Richard P. Ieyoub of Louisiana, Deborah T. Poritz of New Jersey, Dennis C. Vacco of New York, and James E. Doyle of Wisconsin; for the State of Louisiana through its Department of Transportation and Development by William M. Hudson III, Edgar D. Gankendorff, Lawrence A. Durant, James M. Bookter, and Charley Hutchens; for the Bi-State Development Agency of the Missouri-Illinois Metropolitan District by Timothy W. Burns, Jerome M. Organ, John Fox Arnold, and Nelson G. Wolff; and for Kaufman and Broad Home Corp. et al. by William N. Kammer and Robert C. Longstreth.
Justice O’Connor
delivered the opinion of the Court.
We consider whether § 7002 of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U. S. C. § 6972, authorizes a private cause of action to recover the prior cost of cleaning up toxic waste that does not, at the time of suit, continue to pose an endangerment to health or the environment. We conclude that it does not.
I
Respondent KFC Western, Inc. (KFC), owns and operates a “Kentucky Fried Chicken” restaurant on a parcel of property in Los Angeles. In 1988, KFC discovered during the course of a construction project that the property was contaminated with petroleum. The County of Los Angeles Department of Health Services ordered KFC to attend to the problem, and KFC spent $211,000 removing and disposing of the oil-tainted soil.
Three years later, KFC brought this suit under the citizen suit provision of RCRA, 90 Stat. 2825, as amended, 42 U. S. C. § 6972(a), seeking to recover these cleanup costs from petitioners Alan and Margaret Meghrig.
KFC claimed that the contaminated soil was a “solid waste” covered by RCRA, see 42 U. S. C. § 6903(27), that it had previously posed an “imminent and substantial endangerment to health or the environment,” see § 6972(a)(1)(B), and that the Meghrigs were responsible for “equitable restitution” of KFC’s cleanup costs under § 6972(a) because, as prior owners of the property, they had contributed to the waste’s “past or present handling, storage, treatment, transportation, or disposal.” See App. 12-19 (first amended complaint).
The District Court held that § 6972(a) does not permit recovery of past cleanup costs and that § 6972(a)(1)(B) does not authorize a cause of action for the remediation of toxic waste that does not pose an “imminent and substantial endangerment to health or the environment” at the time suit is filed, and dismissed KFC’s complaint. App. to Pet. for Cert. A21-A23. The Court of Appeals for the Ninth Circuit reversed, over a dissent, 49 F. 3d 518, 524-528 (1995) (Brunetti, J.), finding that a district court had authority under § 6972(a) to award restitution of past cleanup costs, id., at 521-523, and that a private party can proceed with a suit under § 6972(a)(1)(B) upon an allegation that the waste at issue presented an “imminent and substantial endangerment” at the time it was cleaned up, id., at 520-521.
The Ninth Circuit’s conclusion regarding the remedies available under RCRA conflicts with the decision of the Court of Appeals for the Eighth Circuit in Furrer v. Brown, 62 F. 3d 1092, 1100-1101 (1995), and its interpretation of the “imminent endangerment” requirement represents a novel application of federal statutory law. We granted certiorari to address the conflict between the Circuits and to consider the correctness of the Ninth Circuit’s interpretation of RCRA, 515 U. S. 1192 (1995), and now reverse.
II
RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste. See Chicago v. Environmental Defense Fund, 511 U. S. 328, 331-332 (1994). Unlike the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 94 Stat. 2767, as amended, 42 U. S. C. § 9601 et seq., RCRA is not principally designed to effectuate the cleanup of toxic waste sites or to compensate those who have attended to the remediation of environmental hazards. Cf. General Electric Co. v. Litton Industrial Automation Systems, Inc., 920 F. 2d 1415, 1422 (CA8 1990) (the “two ... main purposes of CERCLA” are “prompt cleanup of hazardous waste sites and imposition of all cleanup costs on the responsible party”). RCRA’s primary purpose, rather, is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, “so as to minimize the present and future threat to human health and the environment.” 42 U. S. C. § 6902(b).
Chief responsibility for the implementation and enforcement of RCRA rests with the Administrator of the Environmental Protection Agency (EPA), see §§6928, 6973, but like other environmental laws, RCRA contains a citizen suit provision, §6972, which permits private citizens to enforce its provisions in some circumstances.
Two requirements of § 6972(a) defeat KFC’s suit against the Meghrigs. The first concerns the necessary timing of a citizen suit brought under § 6972(a)(1)(B): That section permits a private party to bring suit against certain responsible persons, including former owners, “who ha[ve] contributed or who [are] contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” (Emphasis added.) The second defines the remedies a district court can award in a suit brought under § 6972(a)(1)(B): Section 6972(a) authorizes district courts “to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste ... , to order such person to take such other action as may be necessary, or both.” (Emphasis added.)
It is apparent from the two remedies described in § 6972(a) that RCRA’s citizen suit provision is not directed at providing compensation for past cleanup efforts. Under a plain reading of this remedial scheme, a private citizen suing under § 6972(a)(1)(B) could seek a mandatory injunction, i. e., one that orders a responsible party to “take action” by attending to the cleanup and proper disposal of toxic waste, or a prohibitory injunction, i. e., one that “restrains” a responsible party from further violating RCRA. Neither remedy, however, is susceptible of the interpretation adopted by the Ninth Circuit, as neither contemplates the award of past cleanup costs, whether these are denominated “damages” or “equitable restitution.”
In this regard, a comparison between the relief available under RCRA’s citizen suit provision and that which Congress has provided in the analogous, but not parallel, provisions of CERCLA is telling. CERCLA was passed several years after RCRA went into effect, and it is designed to address many of the same toxic waste problems that inspired the passage of RCRA. Compare 42 U. S. C. § 6903(5) (RCRA definition of “hazardous waste”) and §6903(27) (RCRA definition of “solid waste”) with § 9601(14) (CERCLA provision incorporating certain “hazardous substance[s],” but specifically excluding petroleum). CERCLA differs markedly from RCRA, however, in the remedies it provides. CERCLA’s citizen suit provision mimics § 6972(a) in providing district courts with the authority “to order such action as may be necessary to correct the violation” of any CERCLA standard or regulation. 42 U. S. C. § 9659(c). But CERCLA expressly permits the Government to recover “all costs of removal or remedial action,” § 9607(a)(4)(A), and it expressly permits the recovery of any “necessary costs of response, incurred by any . . . person consistent with the national contingency plan,” § 9607(a)(4)(B). CERCLA also provides that “[a]ny person may seek contribution from any other person who is liable or potentially liable” for these response costs. See § 9613(f)(1). Congress thus demonstrated in CERCLA that it knew how to provide for the recovery of cleanup costs, and that the language used to define the remedies under RCRA does not provide that remedy.
That RCRA’s citizen suit provision was not intended to provide a remedy for past cleanup costs is further apparent from the harm at which it is directed. Section 6972(a)(1)(B) permits a private party to bring suit only upon a showing that the solid or hazardous waste at issue “may present an imminent and substantial endangerment to health or the environment.” The meaning of this timing restriction is plain: An endangerment can only be “imminent” if it “threaten[s] to occur immediately,” Webster’s New International Dictionary of English Language 1245 (2d ed. 1934), and the reference to waste which “may present” imminent harm quite clearly excludes waste that no longer presents such a danger. As the Ninth Circuit itself intimated in Price v. United States Navy, 39 F. 3d 1011, 1019 (1994), this language “implies that there must be a threat which is present now, although the impact of the threat may not be felt until later.” It follows that § 6972(a) was designed to provide a remedy that ameliorates present or obviates the risk of future “imminent” harms, not a remedy that compensates for past cleanup efforts. Cf. § 6902(b) (national policy behind RCRA is “to minimize the present and future threat to human health and the environment”).
Other aspects of RCRA’s enforcement scheme strongly support this conclusion. Unlike CERCLA, RCRA contains no statute of limitations, compare § 9613(g)(2) (limitations period in suits under CERCLA § 9607), and it does not require a showing that the response costs being sought are reasonable, compare §§ 9607(a)(4)(A) and (B) (costs recovered under CERCLA must be “consistent with the national contingency plan”). If Congress had intended § 6972(a) to function as a cost-recovery mechanism, the absence of these provisions would be striking. Moreover, with one limited exception, see Hallstrom v. Tillamook County, 493 U. S. 20, 26-27 (1989) (noting exception to notice requirement “when there is a danger that hazardous waste will be discharged”), a private party may not bring suit under § 6972(a)(1)(B) without first giving 90 days’ notice to the Administrator of the EPA, to “the State in which the alleged endangerment may occur,” and to potential defendants, see §§6972(b)(2)(A)(i)-(iii). And no citizen suit can proceed if either the EPA or the State has commenced, and is diligently prosecuting, a separate enforcement action, see §§ 6972(b)(2)(B) and (C). Therefore, if RCRA were designed to compensate private parties for their past cleanup efforts, it would be a wholly irrational mechanism for doing so. Those parties with insubstantial problems, problems that neither the State nor the Federal Government feel compelled to address, could recover their response costs, whereas those parties whose waste problems were sufficiently severe as to attract the attention of Government officials would be left without a recovery.
Though it agrees that KFC’s complaint is defective for failing properly to allege an “imminent and substantial endanger ment,” the Government (as amicus) nonetheless joins KFC in arguing that § 6972(a) does not in all circumstances preclude, an award of past cleanup costs. See Brief for United States as Amicus Curiae 22-28. The Government posits a situation in which suit is properly brought while the waste at issue continues to pose an imminent endangerment, and suggests that the plaintiff in such a case could seek equitable restitution of money previously spent on cleanup efforts. Echoing a similar argument made by KFC, see Brief for Respondent 11-19, the Government does not rely on the remedies expressly provided in § 6972(a), but rather cites a line of cases holding that district courts retain inherent authority to award any equitable remedy that is not expressly taken away from them by Congress. See, e. g., Porter v. Warner Holding Co., 328 U. S. 395 (1946); Wyandotte Transp. Co. v. United States, 389 U. S. 191 (1967); Hecht Co. v. Bowles, 321 U. S. 321 (1944).
RCRA does not prevent a private party from recovering its cleanup costs under other federal or state laws, see § 6972(f) (preserving remedies under statutory and common law), but the limited remedies described in § 6972(a), along with the stark differences between the language of that section and the cost recovery provisions of CERCLA, amply demonstrate that Congress did not intend for a private citizen to be able to undertake a cleanup and then proceed to recover its costs under RCRA. As we explained in Middle-sex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 14 (1981), where Congress has provided “elaborate enforcement provisions” for remedying the violation of a federal statute, as Congress has done with RCRA and CERCLA, “it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens suing under” the statute. “‘[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.’” Id., at 14-15 (quoting Tmnsamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 19 (1979)).
Without considering whether a private party could seek to obtain an injunction requiring another party to pay cleanup costs which arise after a RCRA citizen suit has been properly commenced, cf. United States v. Price, 688 F. 2d 204, 211-213 (CA3 1982) (requiring funding of a diagnostic study is an appropriate form of relief in a suit brought by the Administrator under § 6973), or otherwise recover cleanup costs paid out after the invocation of RCRA’s statutory process, we agree with the Meghrigs that a private party cannot recover the cost of a past cleanup effort under RCRA, and that KFC’s complaint is defective for the reasons stated by the District Court. Section 6972(a) does not contemplate the award of past cleanup costs, and § 6972(a)(1)(B) permits a private party to bring suit only upon an allegation that the contaminated site presently poses an “imminent and substantial endangerment to health or the environment,” and not upon an allegation that it posed such an endangerment at some time in the past. The judgment of the Ninth Circuit is reversed.
It is so ordered.
Section 6972(a) provides, in relevant part:
“Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf—
“(1)(B) against any person, including . .. any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment....
“. . . The district court shall have jurisdiction ... to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both ....”
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
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209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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songer_fedlaw
|
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 statute, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Plaintiff-Appellee, v. Monty Edward CLAYBORNE, Jr. and George Ingram, Defendants-Appellants.
Nos. 77-1568, 77-1570.
United States Court of Appeals, Tenth Circuit.
Submitted July 12, 1978.
Decided Aug. 22, 1978.
Joseph F. Dolan, U. S. Atty., and William C. Danks, Asst. U. S. Atty., Denver, Colo., for plaintiff-appellee.
Lawrence Rotenberg, Denver, Colo., for defendant-appellant Clayborne.
Michael F. DiManna, Denver, Colo., for defendant-appellant Ingram.
Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
Clayborne and Ingram were indicted for the manufacture of a controlled substance, amphetamines, and for conspiracy to so manufacture. The substantive offense was pursuant to 21 U.S.C. § 841(a)(1), whereas the conspiracy was pursuant to 21 U.S.C. § 846 and § 841(a)(1). A third participant, one Kuck, was also indicted and convicted. That judgment has been affirmed by this court in United States v. Kuck, 573 F.2d 25 (10th Cir. 1978). Ingram was granted a mistrial, but on retrial was found guilty of conspiracy. The manufacturing count was then dismissed. We here review the convictions of Clayborne and Ingram.
The principal issue common to both defendants is whether the court erred in denying a motion to suppress certain evidence found during a warrant search of a clandestine amphetamine laboratory. It is claimed that this evidence was tainted by the illegal use of an electronic tracking device attached to a container of ether. The signal from this was located in the laboratory where the controlled substance was produced. The Federal Drug Enforcement Administration agents installed this device in a drum of chemicals purchased by Ingram.
Other points raised by Ingram herein are, first, that his Fifth Amendment right not to be placed twice in jeopardy for the same offense was violated. This, he argues, was a consequence of the granting by the court of the mistrial (on his motion). A second point on behalf of Ingram attacks the receipt by the trial court of an index card which had certain chemical formulae on it for production of amphetamines. This was for use of chemicals which are used in making methamphetamines. The defense objection to this was that it was seized after indictment and thus should have been excluded as being in violation of Rule 403 of the Federal Rules of Evidence.
* * * * * *
I.
In November 1976, Ingram ordered a quantity of ethyl ether from the Service Supply Company of Denver. At the same time he inquired about the obtaining of some phenyl-2-propanone. Both of these chemicals are used in the manufacture of methamphetamines. So following the placing of the order, the company, as a result of prearrangement, notified the Drug Enforcement Administration. On November 29, Ingram and another person picked up a 55-gallon drum of ethyl ether at Service Supply. He was observed doing this by agents of the DEA, who followed him to the home of Ruck’s parents.
A subsequent transaction is the one which is here in issue. That occurred on December 20, 1976. On that date, Ingram again put in an order for ethyl ether. The DEA agents installed an electronic tracking device or “beeper” in a 55-gallon drum and then took the drum to Service Supply, where it was filled with ether and delivered to Ingram. The electronic beeper sends out periodic radio signals, which allow its location to be established and monitored.
On the day (December 29) that Ingram picked up this drum complete with the beeper, the agents followed him to his home and observed the drum being unloaded and taken into the house. The agents then proceeded periodically to monitor its presence to be sure that the drum did not move out of Ingram’s home. However, on January 1, the beeper signal was no longer there and eventually the signal was found to emanate from 1229 South Bannock Street in Denver. These were commercial premises which had been leased by Clayborne. The agents detected the smell of ether and noted that the windows were covered so as to prevent viewing the inside. After a day’s surveillance, a search warrant was obtained and executed on January 2. The search produced methamphetamines together with materials and paraphernalia for their manufacture. This was the evidence which the defendants sought to have suppressed as being in violation of their Fourth Amendment rights. The contention was that the violation related back to the initial failure to obtain a warrant for use of the beeper.
The trial court denied the motion to suppress and did so on the basis that Ingram lacked standing to challenge the presence of the beeper inside the oil drum, it being the property of the DEA, and also because it was not a Fourth Amendment question.
II.
The starting point in solving this present problem is a consideration of the Supreme Court’s decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). This is a new variation which questions whether, as a consequence of failure to obtain a warrant at the outset authorizing use of the beeper, the evidence obtained through subsequent use of the beeper, including that resulting from the search of the laboratory, was illegal because it was not in accordance with the requirements of the Fourth Amendment. In Katz, the Court held that the use of an electronic bug or microphone placed on the roof of a public telephone booth violated the Fourth Amendment. The reason was that the question was not whether places or property enjoy an immunity because of the Fourth Amendment, but, rather, whether the people are entitled to protection (and not places). The Court went on to hold that when the defendant closed the door of the telephone booth he believed that he had shut out all other persons and that he had privacy which would insure that his conversation would not be heard by others. The Court also stated that that which a person exposes to the public may not be the subject of Fourth Amendment protection, but that, on the other hand, that which he seeks to preserve as private, even in an area accessible to the public, may enjoy constitutional protection.
Several circuits have considered the beeper problem in the light of Katz. See United States v. Hufford, 539 F.2d 32 (9th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 614 (1976), in which agents installed a beeper in a drum of caffeine which had been ordered by the defendants. Visual surveillance together with the beeper permitted the agents to isolate a drum of caffeine in the garage of the defendants. It was held that no reasonable expectation of privacy had been invaded, notwithstanding that the beeper was employed in a “probing, exploratory question for evidence.” The Ninth Circuit relied on the Supreme Court’s decision in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). There the Court held that the warrantless scraping of paint from the exterior of a car parked in a public lot together with the measurement of its tire tread was not a violation for the reason that the expectation by the defendant of privacy was minimal. The Ninth Circuit related Hufford to the Cardwell holding in support of its conclusion that there was little expectation of privacy in driving along a public road. The beeper was viewed as merely an aid to or substitute for visual surveillance. It was regarded as being similar to the use of binoculars or trained dogs. Cf. United States v. Venema, 563 F.2d 1003 (10th Cir. 1977), wherein we approved the use of a trained dog to detect the scent of marijuana in a locker. That opinion could see no reasonable expectation of privacy in the air space around the locker.
The First Circuit in United States v. Moore, 562 F.2d 106 (1st Cir. 1977), has also considered the question. As in the present case, federal agents installed a beeper in a container of chemicals which had been ordered by the defendants.' When delivery was taken a second beeper was attached to their van. The agents, aided in part by the beepers, followed the defendants to a house. The beeper in the container was subsequently used to monitor the presence of the chemicals inside the house. Subsequently, a search warrant was obtained and the search revealed the clandestine manufacture of methamphetamines. The court distinguished between the use of a monitoring device to track a vehicle and the use of it to monitor the continued presence of the chemicals in the house. The latter was considered to be an invasion of the privacy of the home. It was acknowledged that the beeper in the car constituted an intrusion, but that its use could be justified on the basis of the mobility of the car and the lack of reasonable expectation of privacy with respect to it. Probable cause was held to exist with respect to the monitoring of the location of the vehicle. Once the defendants left the vehicle and entered the house, the right of privacy existed free from war-rantless intrusion by the government. The court also observed that the fact that the defendant initially had no rights in the chemical boxes was not of any significance since they later obtained lawful possession, and the agents sought to use the electronic devices after this.
The court held that evidence derived from the use of the beeper while the material was in the house had to be suppressed. The court did, however, leave the door open to separation of the evidence illegally obtained while in the house and the use of evidence which derived from the beeper pri- or to its being taken into the house, e. g., while the material was being transported in a car. There was a remand to the district court to determine the part of the evidence which had to be suppressed and that which did not.
In the instant case the beeper surveillance evidence within the house and that within the laboratory do not come together as one connected transaction. The agents lost contact with the device following the movement from the house. An independent effort was necessary to reestablish contact. So the laboratory contact is not tainted by the surveillance within the house.
Our court has' recently filed an opinion which, although not factually on all fours with this case, is similar to it. We refer to United States v. Shove a, 580 F.2d 1382 (10th Cir. 1978). The beeper was there used only for the purpose of tracking the car. Federal agents arranged a delivery to the defendant and followed him to a house occupied by a codefendant, which home was in Denver. A beeper was placed on the codefendant’s car at that place and shortly thereafter agents by use of the beeper were able to trace the car to the proverbial clandestine laboratory. The court recognized that electronic tracking devices were appropriate even without prior court approval where there was probable cause or exigent circumstances. Probable cause was found to be present. Circumstances relating to probable cause were substantially the same background circumstances which are here.
Judge Barrett, writing for the panel, expounded the established truth that there was minimal expectation of privacy in an automobile along a public road, citing United States v. Frazier, 538 F.2d 1322 (8th Cir. 1976), cert. denied, 429 U.S. 1046, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977), wherein the use of a beeper on a car was approved in connection with an ongoing kidnap plot.
In the case before us it was the beeper on the inside of the drum of ether which enabled the agents to locate the laboratory. The agents in our case had to use an airplane to pick up the beeper signal and locate the building in which the clandestine laboratory was located. This was true because in the first instance they were not aware that the drum had been moved from Ingram’s house. Given the proposition that the home cannot be invaded without a warrant, does it follow that a clandestine laboratory in which amphetamines are likely to be manufactured enjoys the same protection?
Although this case is factually similar to our decision in Shove a, in the Ninth Circuit’s decision in Hufford and the First Circuit’s decision in Moore there are differences. Both Shove a and Moore held that beeper surveillance without warrants for the purpose of monitoring vehicles was valid. In all of the cited cases, and also in the present case, there is information of the agents amounting to probable cause to believe that a controlled substance was about to be made. While approving the use of the beeper for monitoring the automobile, the First Circuit in Moore distinguished the use of the beeper in the home. It held that there could not be a warrantless search inside the house. It also held that the lessened expectancy of privacy when using vehicles had no relevance; that although surveillance of the automobile could be conducted without a warrant, the same was not true of a home.
Hufford comes closest to this case since there the beeper was inside a garage. Here the beeper revealed the presence of the drum of ether inside the clandestine laboratory at 1229 South Bannock. Does the use in these circumstances constitute a per se violation of the Fourth Amendment? We conclude that it does not. The clandestine laboratory here was a commercial establishment which was susceptible not only to outside viewing, but also to ingress and egress of the public. Strict privacy as in a home was not to be properly expected here. There is a vast difference between it and Katz. The difference is found in a comparison of the size and extent of the intrusion in each case. That in Katz is great because of the wholly unexpected eavesdropping on a conversation. We say that it was proper to use the device to locate the drum of chemical in the clandestine laboratory at 1229 South Bannock Street, a new location which proved to be a commercial building with the windows covered to protect against viewing the activities and materials inside. It was also within the law for them to make every effort to ascertain what was going on within the laboratory including the testing of the odors and the observations that the windows were covered. We consider the electronic beeper as a substitute for persistent extensive visual effort. We do not say that the laboratory stands on the identical footing as the automobile, and clearly it is not the same as Ingram’s home, which the Fourth Amendment protects from invasion. We are persuaded by the fact that the intrusion of the clandestine laboratory was slight. Also, it is not to be argued that defendant-appellant had a justifiable or reasonable expectation that there would not be any disturbance of privacy. Also, the use of the beeper within the laboratory was vastly different from the use of the recording device in the telephone booth in Katz. The invasion in Katz was of great magnitude in comparison with the intrusion here.
Under these special facts, then, we must hold that the slight intrusion was not per se in violation of the Fourth Amendment and that the use of the beeper without a warrant was not invalid. The trial court did not err in denying the motion to suppress.
III.
The defendant Ingram maintains that his rights under the Double Jeopardy Clause were violated when the court granted a mistrial. He concedes that where the defendant moves for the mistrial the general rule is that retrial is not barred except in the instance in which the judicial or prosecutorial error that prompted the motion was intended to provoke the motion or was otherwise motivated by bad faith or undertaken to harass or prejudice petitioner. See Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977) (quoting United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)).
Several of the circuits have characterized the test as to whether retrial is to be barred even though the mistrial was at the request of the defendant as whether there was gross negligence or intentional misconduct which led to the granting of the mistrial. See United States v. Martin, 561 F.2d 135 (8th Cir. 1977); United States v. Kennedy, 548 F.2d 608 (5th Cir. 1977).
Ingram maintains that the trial judge was grossly negligent in violating his right to be present at trial by not adjourning the trial to determine whether his absence was voluntary. We disagree. The judge was talking about the fact that Ingram was late for the trial once and, finally, was absent altogether for a day due to his having been arrested and placed in jail in Aurora, a nearby community. The court had gone ahead with the trial in his absence, but once the judge found out that his absence had been involuntary, he granted the mistrial on the motion of the defendant. Under these circumstances, we fail to see that there was either invalid coercion exercised by the court or that there was negligence or other misconduct.
IV.
Ingram’s final contention is that the trial court erred in receiving Exhibit 14, an index card with some chemical formulae having to do with chemicals which could be used for making amphetamines. This was taken from Ingram’s person when he was arrested two months after the indictment. At the first trial the Exhibit was excluded because Ingram was being tried with Clay-borne. At the second trial Ingram was tried alone and the Exhibit was received. The defendant objected on the ground that it resulted from investigation subsequent to the indictment and was inadmissible under Rule 403, which declares that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or confusion.
Defendant’s argument in reality is that the Exhibit evidenced acts subsequent to the conspiracy and thus it is contrary to the rules in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963,1 L.Ed.2d 931 (1957), and United States v. Floyd, 555 F.2d 45 (2d Cir. 1977), which concerned evidence of post-conspiracy acts or cover-up tactics which are quite different from the card in the present case. It is for the trial court to determine relevance, and we cannot agree with defendant that it is incompetent. It does not appear that the evidence was inconsistent with the indictment. Indeed it was entirely consistent with it and receipt of it was not erroneous.
The judgment of the district court is affirmed.
. We agree with this ruling and would take the same position in the case at bar if the proposition were to be seriously argued.
. The testimony of one of the agents included a description of the building.
Q Would you describe the warehouse, whatever type of building is appropriate at 1229 South Bannock?
A The building is a long one-story building with four sets of office or industrial space in it. Each space had a large overhead door and a single small door adjacent to the overhead door, both front and rear. 1229 was the space the further south on the building.
Q So there are actually several entrances in that one warehouse building?
A Yes, sir, four.
. There is no evidence which resulted from the clearly illegal monitoring of the inside of the home.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SNELL v. UNITED STATES.
No. 3857.
United States Court of Appeals Tenth Circuit.
May 10, 1949.
Milton Berger, Denver, Colo., for appellant.
Haskell B. Pugh, Assistant United States Attorney, Oklahoma City, Okl., for appel-lee.
Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.
BRATTON, Circuit Judge.
An information was filed in the United States Court for Western Oklahoma charging that Harry C. Snell and Joe David Murray, with the use of loaded firearms, robbed the First National Bank of Jones, Oklahoma, of approximately $9,331, such bank then being a member of the Federal Reserve System. The defendants pleaded guilty to the charge contained in the information, and each was sentenced to imprisonment for a term of twenty-five years and to pay a fine of $10,000. About fourteen months after imposition of the sentences, the defendant Snell filed in the case a pleading in the nature of a motion to vacate the written waiver of counsel signed by him, to vacate the plea of guilty entered by him, to vacate the sentence imposed upon him, and to recall the commitment under which he was then confined in prison. The court denied the motion without hearing any evidence, and the defendant appealed.
While drawn inartistically and apparently without the aid of an attorney, the essence of the motion was that the defendant was an ignorant layman not versed in law or criminal procedure; that previous to the filing of the information in this case he had never been charged with a crime; that intermediate his arrest and his appearance before the court he was confined in jail incommunicado; that he had no opportunity to contact persons friendly to him or to learn of his constitutional or legal rights; that he did not effectively waive his right to the assistance of counsel; and that he did not have the benefit of counsel at the time he signed the written waiver, at the time he entered his plea of guilty, and at the time sentence was imposed upon him. The Sixth Amendment to the Constitution of the United States guarantees to one charged with a crime the right to the aid of counsel in his defense, and under the broad sweep of the constitutional safeguard the accused is entitled to the guiding hand of counsel at every stage of the proceedings. Thomas v. Hunter, 10 Cir., 153 F.2d 834. The right to the aid of counsel is personal, and, of course, it may be waived. But it must be waived intelligently, understandingly, and in a competent manner. Caldwell v. Hunter, 10 Cir., 163 F.2d 181, certiorari denied, 333 U.S. 847, 68 S.Ct. 649, 92 L.Ed. 1130.
The right to the assistance of counsel is one of substance, and it is not satisfied by mere legalistic formality. Willis v. Blunter, 10 Cir., 166 F.2d 721, certiorari denied, 334 U.S. 848, 68 S.Ct. 1499, 92 L.Ed. 1772; Fields v. Hunter, 10 Cir., 167 F.2d 547. It is the duty of the trial judge before whom a defendant appears without counsel to make a thorough inquiry and to take all steps necessary to insure the fullest protection of the constitutional right at every stage of the proceedings. That protecting duty imposes upon the trial judge the responsibility of determining whether there is an intelligent and competent waiver by the accused. To discharge that duty, the court must investigate as long and as thoroughly as the circumstances of the case reasonably demand. The fact that an accused may state that he is informed of his right to counsel and desires to waive such right does not automatically end the responsibility of the court. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct 316, 92 L.Ed. 309.
Here, the defendants were taken before the court three days after the commission of the offense charged in the information. The transcript of the proceedings duly certified by the official court reporter, the correctness of which is not challenged, discloses that the Assistant United States Attorney stated that the case was before the court for the waiver of indictment; that the court asked the defendants if they had an attorney and each replied in the negative; that the court asked if they desired one, and they again answered in the negative; that'the court said, “Let them, sign waiver of appointment of attorney”; that after each signed the waiver, the court inquired whether they desired to plead guilty or not guilty; that they each entered a plea of guilty; and that the sentences were immediately imposed. The court did not advise the defendants respecting their right to the assistance of counsel. The nature of the charge or the possible range of punishment was not explained to them. No questions were asked tendirig to elicit information as to whether they desired to waive their right to the assistance of counsel and to enter their pleas of guilty with an apprehension of the nature of the charge, the range of allowable punishment, possible defenses, possible circumstances in mitigation, or other possible similar factors entering into the equation. The signing of a written waiver of the right to the aid of counsel and the entering of a plea of guilty under such circumstances does not satisfy the protecting exactions of the Sixth Amendment. Von Moltke v. Gillies, supra; Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184.
The United States advances the contention that the written waiver and the judgment and sentence recite that the constitutional rights of the defendant were explained to him; ’that such factual recital in the judgment and sentence import verity; and that in the absence of fraud it cannot be collaterally challenged. A factual recital of that kind contained in the judgment and sentence in a criminal case imports verity and in the absence of fraud it is not open to collateral attack in habeas corpus. Ed-minston v. Hunter, 10 Cir., 161 F.2d 691; Christakos v. Hunter, 10 Cir., 161 F.2d 692, certiorari denied, 332 U.S. 801, 68 S.Ct. 92, 92 L.Ed 381. But this is not a proceeding in habeas corpus in which the judgment in the criminal case is being attacked collaterally. It is a motion lodged in the criminal case in which the judgment is being subjected to direct attack. Therefore, the rule on which the United States relies is without application.
The order denying the motion is reversed and the cause is remanded.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
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songer_pretrial
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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 rulings on pre-trial procedure favor the appellant?" This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment. 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".
Earl COLEMAN, Appellant, v. UNITED STATES of America, Appellee. Alvin J. TOBIN, Appellant, v. UNITED STATES of America, Appellee. Ronald ALLSTON, Appellant, v. UNITED STATES of America, Appellee. Winfield L. ROBERTS, Appellants, v. UNITED STATES of America, Appellee.
Nos. 21804-21806, 21856.
United States Court of Appeals District of Columbia Circuit.
Argued June 18, 1969.
Decided Nov. 28, 1969.
Petition for Rehearing in No. 21856 Denied Dec. 18, 1969.
Mr. Peter D. O’Connell, Washington, D.C., with whom Mr. William F. Wet-more, Jr., Washington, D.C. (both appointed by this court), was on the brief, for appellants in Nos. 21,804, 21,805 and 21,806.
Mr. Robert L. Wright, Washington, D.C. (appointed by this court), for appellant in No. 21,856.
Mr. Julius A. Johnson, Asst.U.S. Atty., with whom Messrs. David G. Bress, U.S.Atty., at the time the brief was filed, and Victor W. Caputy, Asst. U.S.Atty., were on the brief, for appel-lee. Messrs. Thomas A. Flannery, U.S. Atty., and Roger E. Zuckerman, Asst.U. S.Atty., also entered appearances for ap-pellee.
Before BAZELON, Chief Judge, and TAMM and ROBB, Circuit Judges.
ROBB, Circuit Judge:
The appellants Earl Coleman, Alvin Tobin, Ronald Allston and Winfield Roberts were convicted on twelve counts of an indictment: one count charging them jointly with unauthorized use of a motor vehicle on or about November 15, 1966 (22 D.C.Code § 2204); one count charging that on November 22, 1966 they entered The National Bank of Washington, D.C., Brookland Branch, with intent to commit robbery (18 U.S.Code § 2113 (a)); five counts charging them jointly with robbery of the Bank on November 22, 1966, in violation of 18 U.S.Code § 2113(a); and five counts alleging the same robberies on November 22, 1966, in violation of 22 D.C.Code § 2901 Each was sentenced to prison for not less than one nor more than five years on the unauthorized use count and from five to fifteen years on each of the remaining counts, the sentences to run concurrently-
At a few minutes before 9:56 A.M. on November 22, 1966, the Brookland Branch of The National Bank of Washington, on 12th Street, N.E. near Perry Street, was held up. As they were aft-erwards to testify some of the tellers on duty saw three men enter the bank with drawn guns, others saw four. The bandits, Negro males, were masked with dark glasses to which scarfs or bandanas were attached. Witnesses noticed that one or more wore dark hats, dark gloves, and raincoats or carcoats. The bandits ordered the Bank employees and customers to lie down on the floor. One of the tellers, a lady, was talking on the telephone at the time and was slow in complying with this order. A bandit pushed her, took the telephone receiver out of her hand and struck her in the face with it, breaking her nose. She noticed that this man wore a black hat, sun glasses with a multi-colored bandana tied to them, a dark carcoat, khaki pants and dark gloves. He carried a short-barreled pistol.
Having placed the employees and customers on the floor the bandits “went through and took the money out of the tellers’ cages”, gathering it up in “dirty white” bags that “looked like pillow cases”. The money, in bills and coins, amounted to $15,308.32. Included in the loot were bills the serial numbers of which had previously been recorded by the Bank and packets of bills and rolls of coins bearing notations in the handwriting of Bank employees.
The holdup took only a few moments. Before the bandits left, carrying the bags of money, one of the Bank employees was able to set off the holdup alarm; and after they left another employee got up from the floor, looked out the front window and saw the bandits getting into a dirty light blue or white automobile. She noted and wrote down the tag number of the car. It was a District of Columbia tag, 251-219. She watched the car leave the Bank, head towards Perry Street, and turn left on Perry.
At 9:56 A.M. Officers Ervin and Dar-zinsky of the Metropolitan Police, who were patrolling in a scout car, responded to the alarm from the Bank. Having spoken to the Bank manager they set out in search of the getaway car. Within minutes they found it abandoned on Perry Street, two blocks from the Bank. It was a blue Mustang bearing D. C. tags 251-219. The engine was running, the door on the driver’s side was open, and rolls of coins were scattered on the floor boards and on the ground outside. A loaded automatic pistol was lying on the right of the front seat. The car was parked almost in front of the house of a Mrs. Rosser. When questioned by the officers she told them that at about 9:20 A.M. that morning she had noticed a U-Haul truck, shaped like a Volkswagen bus, parked in front of her house. Shortly afterwards she heard a noise “like a high speed speeding away”. She looked out the window again and noticed that the U-Haul truck was gone. Acting on this information Officer Ervin broadcast a lookout for a U-Haul truck.
At 9:56 A.M. Officers Lukic and Yates of the Metropolitan Police, patrolling in another scout car, heard a “flash” lookout that there was a holdup in progress at the Brookland Branch of The National Bank of Washington. Five or ten minutes later they received a second message “to look out for four Negro males, one Negro male was dark skinned, heavy build and wearing a large bushy mustache. These Negro males * * * entered a blue Mustang with D. C. registration and were seen leaving the scene of holdup.” The tag number of the Mustang was included in the message. Five or ten minutes after this second message the officers heard a third broadcast that “the blue Mustang was found abandoned and that they [the bandits] now may be in a U-Haul van-type truck.”
Promptly after receiving the lookout for a U-Haul van-type, truck Officers Lu-kic and Yates stationed themselves on an overpass overlooking Kenilworth Avenue, N. E., which they “figured * * * would be a good escape route”. In a few minutes they saw a U-Haul van-type truck bound down Kenilworth Avenue. Only one man, the driver, was visible in the truck. The officers “came up behind” the truck and Officer Lukic saw the face of the driver in the truck’s large rear-view mirror. The driver was a Negro male, dark skinned, with a heavy mustache. Turning on their red light and siren the officers “pulled the truck over” on Kenilworth Avenue about four blocks from the place where they had first seen it. Before the truck stopped Officer Yates noticed a Negro male looking out through one of the small windows in the rear of the van, “peeping quickly and going down”. When the truck and the police car stopped, the police ear being to the rear of the truck, the driver of the truck, who turned out to be Coleman, got out and walked towards the policemen, who also got out of their car and walked towards Coleman and the truck. As he walked Officer Lukic “observed a head bob up” at one of the small rear windows of the truck and then quickly duck “back down inside the truck”. At this point Lukic drew his gun and told Coleman to turn and put his hands on the side of the truck. Opening the truck’s rear doors the officers discovered Tobin, Allston and Roberts inside, lying on a mattress. Also in the truck was more than $14,900 in bills and coins, together with a number of articles of clothing. A fully loaded short-barreled .38-ealiber revolver was on the floor behind the driver’s seat. A loaded .22-caliber starter’s pistol was found in Coleman’s right pants pocket.
Among the articles of clothing and equipment found in the U-Haul truck with the appellants were the following: 4 pairs of sun glasses; 4 scarfs or bandanas ; 4 pairs of brown work gloves; 2 pillow cases; 4 felt hats; 2 trench coats; 1 raincoat; 2 jackets. A black silk scarf was found in Allston’s pocket. Witnesses at the trial identified many of these articles as similar to those worn by the bank robbers. Also found in Allston’s trousers pocket was a packet of twenty-dollar bills. At trial these bills were identified by their serial numbers as part of the money taken from the Bank. In addition, several thousand dollars in bills and rolls of coins recovered in the truck were identified by serial numbers and bank markings as part of the loot. When recovered, most of this money was stuffed in two pillow cases; the rest was scattered on the floor of the truck. Finally, evidence at the trial established that the several rolls of quarters, dimes and nickels recovered in the blue Mustang getaway car, or on the ground nearby, had been taken from the Bank that morning.
Evidence at the trial established that the blue Mustang had been stolen about November 15, 1966 from a used-car lot, where it was parked with the keys on the dashboard. No tags were on the car when it was stolen. As we have said, when it was recovered on Perry Street on November 22 it bore D. C. tags 251-219. These tags had been issued for a 1956 Dodge which was acquired by Coleman in October 1966. As for the U-Haul truck in which the appellants were apprehended, the proof was that this vehicle was rented by one Alvin Douglas, at the instance of Coleman, and with Coleman’s money, on November 20, 1966. At the time he received the U-Haul truck Coleman removed a mattress from another truck that he had, and placed it in the U-Haul truck. The appellant Tobin was with Coleman on this occasion.
The appellant Roberts testified at the trial that he had no part in the bank robbery. He said he left home about 8:00 o’clock on the morning of November 22 to visit a young lady who lived near Kenilworth Avenue. Finding that she was not at home he went to a bus stop on Kenilworth Avenue where he was waiting when the U-Haul truck driven by Coleman came by, “slowed up” and his friend Tobin, who was sitting on a mattress in the truck with Allston, opened the door and offered Roberts a ride. Roberts said he got into the truck, but that he had ridden only two or three blocks when the truck was stopped by the police and he was arrested. He testified that he did not know Coleman or Allston. He did not notice the contents of the truck, he said, except for the mattress on the floor, on which the men were sitting.
Roberts was the only defendant to take the stand before both sides announced that they rested. Before final argument began, however, counsel for Tobin moved to reopen the ease so that his client might testify. Counsel stated that “I thought it was going to be the defense which was shared by counsel in the case” that Tobin, Allston and Roberts “were picked up by Coleman who was driving the truck and that they got into the truck and they knew nothing about any bank robbery, and that is inconsistent, of course, with what I heard and I was taken by surprise and my client would like to testify that he did not know anything about it. He wasn’t going to take the stand, but he has changed his mind and now he does want to take the stand.” Tobin was then permitted to testify over the objection of counsel for Roberts. His story was that on the morning of November 22, he was on Kenilworth Avenue “catching out”, that is waiting in the hope that someone from a construction company “would come and pick me up * * * to go out as a helper.” He said he had been waiting about two hours when Allston came along on his way to a liquor store. Allston tarried with Tobin and in a few minutes Coleman drove by in the U-Haul truck. Tobin “flagged him down” and Allston and Tobin got into the truck. Almost immediately thereafter, according to Tobin, the truck stopped again and picked up Roberts, and the three men sat on the mattress until they were arrested a few moments later. Tobin swore that although he knew Coleman, Roberts and Allston, he had nothing to do with the holdup. He said he was with Coleman when Coleman rented the U-Haul truck, but he understood the truck was to be used by Coleman in moving some of his household goods. '
In rebuttal the government introduced the testimony of police officers to the effect that the U-Haul truck made no stops in the blocks on Kenilworth Avenue where the appellants claimed they had been picked up.
Against the background of these facts we now consider the errors assigned by the appellants.
I
The appellants assert that there was no probable cause for their arrest and that the search of the U-Haul truck was therefore unlawful. We think, however, that Officers Lukic and Yates acted reasonably in stopping the truck and arresting its occupants. Within twenty minutes after the robbery the officers were alerted to look out for a U-Haul van-type truck occupied by four Negro males, one of whom was dark-skinned and wearing a large mustache. Moments after receiving this information they saw a U-Haul van-type truck proceeding on a logical escape route. It was driven by a dark-skinned Negro male with a heavy mustache. Before stopping the truck one of the officers noticed furtive movements by one or more Negro males inside the truck. Had the officers failed to stop the truck under these circumstances they would have been remiss in their duty. The “exigencies of the situation” made their action imperative. Bailey v. United States, 128 U.S.App.D.C. 354, 358, 389 F.2d 305, 309 (1967). As we have repeatedly noted the existence of probable cause “depends on the facts and circumstances of the particular case * * * and on the ‘practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Bailey v. United States, 128 U.S. App.D.C. 354, 357, 358, 389 F.2d 305, 308, 309 (1967), quoting from Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Probable cause exists when the officer “in the particular circumstances, conditioned by his observations and information, and guided by the whole of his police experience, reasonably could have believed that a crime had been committed by the person to be arrested.” Jackson v. United States, 112 U.S.App.D.C. 260, 262, 302 F.2d 194, 196 (1962). “Conduct innocent in the eyes of the untrained may carry entirely different ‘messages’ to the experienced or trained observer.” Davis v. United States, 133 U.S.App.D.C. 172, 174, 409 F.2d 458, 460, cert. den., 395 U.S. 949, 89 S.Ct. 2031, 23 L.Ed.2d 469 (1969). And the element of flight in a vehicle from the scene of the crime may tip the scales in favor of probable cause. Bailey v. United States, supra. See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Dixon v. United States, 111 U.S.App.D.C. 305, 296 F.2d 427 (1961); Dorsey v. United States, 125 U.S.App.D.C. 355, 372 F.2d 928 (1967). Judged by these criteria the actions of the officers were reasonable and lawful.
II
The appellant Allston complains of the cross examination of his “character” witness. The witness testified that she had known Allston for about nine years, that she knew other persons in the community in which he lived who in turn knew him, that she knew what his reputation was among these persons, and that his reputation for “peace and good order” and for “honesty” was good. On cross examination she testified that she had discussed Allston’s reputation for peace and good order and honesty with the people who knew him. Over the objection of Allston’s counsel the Assistant United States Attorney then asked the witness whether she had heard that (1) on September 18, 1964, Allston was convicted of petty larceny; (2) on June 17, 1966, Allston was convicted of petty larceny; (3) on January 26, 1967 he was convicted of petty larceny; and (4) on October 24, 1957 he was convicted of a violation of the Federal Narcotics laws. The witness responded that she thought she had heard of the 1966 petty larceny conviction but she had not heard of the others. The record discloses that before permitting the Assistant United States Attorney to ask these impeaching questions the district judge was careful to satisfy herself from court records that the convictions inquired about had in fact occurred.
Immediately after the witness left the stand the district judge instructed the jury:
“Members of the jury, with reference to Inez Milton, the last witness called by Mr. Mack, you are told this: The defendant, Mr. Allston, called Inez Milton as a character witness, and the basis for the evidence given by that character witness is the reputation of the defendant, Mr. Allston, in the community.
“Since the defendant, Mr. Allston, has thus tendered the issue of his reputation, Mr. Caputy, the Assistant United States Attorney, was permitted to ask the witness, Inez Milton, if she had heard of certain incidents.
“You are told that you are not to assume that the incidents asked about actually took place and you are not to consider them, in fact, you are to put those incidents out of your mind so far as the defendant Allston, himself, is concerned.
“The questions referred to were permitted so as to test the standard of information of the character witness, herself, as to the reputation of the defendant Allston. In other words, these questions to a character witness and her answer thereto, are to be taken into consideration by the jury only in weighing the evidence of the character witness, Inez Milton, that is, testing the standard of character evidence and the opinions that this character witness seemed to have.”
In her charge to the jury the district judge, after instructing as to the weight that might be given to evidence of the appellant’s good reputation, repeated and emphasized her previous instruction limiting the effect of the prosecutor’s impeaching questions.
There was no error in the procedure followed by the district judge and the Assistant United States Attorney. The impeaching questions were carefully phrased; each of them followed the proper formula, beginning “Have you heard?”. The convictions to which they related were plainly relevant to the testimony of the witness. The limiting and explanatory instructions by the district judge, and indeed the entire procedure, were precisely in accord with the ruling of the Supreme Court in Michelson v. United States, 335 U.S. 469, 69 S. Ct. 213, 93 L.Ed. 168 (1948). Awkard v. United States, 122 U.S.App.D.C. 165, 352 F.2d 641 (1965) and Shimon v. United States, 122 U.S.App.D.C. 152, 352 F.2d 449 (1965), relied upon by the appellant, are readily distinguishable. In the Awkard case the prosecutor inquired about arrests and a conviction that occurred after the period to which the character testimony related. In the Shimon ease we held that the impeaching questions were not directed at the credibility of the witness but rather were intended to prejudice the defendant by innuendo. Cf. United States v. Wooden, 137 U.S.App.D.C.-, 420 F.2d 251 (decided this day).
Ill
The appellants Coleman, Tobin and Allston contend that fatal error occurred when the Court permitted counsel for Roberts, in the presence of the jury, to call them as witnesses for Roberts and thus compel them to invoke their right to remain silent. It is argued that the error was compounded when counsel for Roberts in his closing argument to the jury referred to the refusal of the co-defendants to take the stand.
When Roberts left the stand after completing his testimony his counsel announced in the presence of the jury: “Your Honor, I call Earl Coleman to the stand”. A conference at the bench followed, in which Coleman’s counsel stated that his client would decline to testify. He asked that the Court “make some explanation as non-violent as possible why he is not going to testify”. The Court responded “I will simply say that he has the right to take it or not take it as he sees fit. And then just simply say that he elects not to. Is that all right?” Coleman’s counsel answered “That is agreeable to me, Your Honor.” Counsel for Allston stated that his client would not testify and that he did not want him to be called as a witness by Roberts. Tobin’s counsel also took this position. Counsel for Roberts insisted that “I am not going to be restricted, Your Honor. I have a right to call any witness I desire * * * I have a right in open court to ask for a witness. The witness has a right not to testify by invoking his privilege.”
After the bench conference all counsel returned to the trial table and the following occurred in the presence of the jury:
“[Counsel for Roberts]: I believe * * * [Counsel for Coleman] was addressing the Court in reference to my request for a witness.
“THE COURT: You have asked that Earl Coleman—
“[Counsel for Roberts]: — be called as a witness.
“THE COURT: Earl Coleman has the right to take the stand or not to take it, as he sees fit.
******
“[Counsel for Coleman]: Yes, Your Honor. Mr. Coleman declines to testify.
“THE COURT: Very well.
“[Counsel for Roberts]: Your Hon- or, I will now call Mr. Allston as a witness.
“THE COURT: The defendant
Ronald Allston has the right to take the stand or not to take the stand as he sees fit.
“[Counsel for Allston]: I object, Your Honor’s statement and I ask that it be stricken from the record and that the jury be instructed to disregard it. (sic)
“THE COURT: The Court declines to do so, * * * [Counsel for Roberts] having sought to call Mr. Allston as a witness.
“[Counsel for Roberts]: If the Court please, I now call Mr. Tobin as a witness.
“[Counsel for Tobin]: On behalf of the Defendant Tobin, we decline to take the stand on the basis of the Fifth Amendment.
“THE COURT: The attorney for the defendant Tobin has declined. You may not call him as a witness.
“[Counsel for Roberts]: If the Court please, may the record indicate the manner in which the various defendants are asserting their privilege?
“THE COURT: Just a moment.
“[Counsel for Roberts]: I am sorry-
“THE COURT: You are not making any further statement in reference to the defendants.”
In his closing argument to the jury counsel for Roberts referred to his unsuccessful attempt to call the co-defendants as witnesses. The co-defendants objected and the Court responded “I believe I told the jury the other day that they may testify or may not as they please. A defendant has an absolute right not to testify if that is his choice.” When counsel for Roberts persisted in this line of argument the Court admonished him, saying “I think you should cease commenting upon the other defendants”.
It was error to permit counsel for Roberts in the presence of the jury to call upon the co-defendants to testify, and he should not have been allowed to comment to the jury upon their failure to take the stand. Counsel’s actions violated the rights of the defendants who did not testify, guaranteed by both the Fifth Amendment and the provisions of 18 U.S.C. § 3481. Were this a case in which the question of guilt or innocence was close the error in permitting this conduct would require us to reverse the convictions of Coleman and Allston, who did not testify. DeLuna v. United States, 308 F.2d 140, 1 A.L.R.3d 969 (5th Cir.1962), rehear. den., 324 F.2d 375 (1963); United States v. Housing Foundation of America, Inc., 176 F.2d 665 (3rd Cir.1949); Cf. United States v. Echeles, 352 F.2d 892 (7th Cir.1965); State v. Medley, 178 N.C. 710, 100 S.E. 591 (1919); State v. Smith, 74 Wash. 2d 749, 446 P.2d 571 (1968). See Hayes v. United States, 329 F.2d 209, 221-222 (8th Cir.), cert. den., sub nom. Bennett v. United States, 377 U.S. 980, 84 S.Ct. 1883, 12 L.Ed.2d 748 (1964). We are convinced beyond a reasonable doubt however that the error did not contribute to the conviction of Coleman and Allston and that it was therefore harmless. Efficient and intelligent work by the police, combined with skillful marshaling and presentation of the evidence by the prosecutor during seven days of trial, resulted in a case against the appellants Coleman and Allston that was overwhelming: The license tags on the Mustang getaway ear belonged to Coleman. Two days before the holdup, Coleman, accompanied by Allston, arranged to rent the getaway truck and placed in it the mattress upon which the bandits reclined. Less than twenty-five minutes after the holdup he was arrested while driving the getaway truck. He had a pistol in his pocket. In the truck were proceeds of the holdup, a loaded revolver, and the disguises used by the robbers. The appellant Allston was lying concealed in the truck and in his pocket were a silk scarf, similar to the masks worn by the robbers, and a sheaf of twenty-dollar bills which was part of the loot. In the light of these facts it is inconceivable that any honest juror in his right mind could have had any doubt as to the guilt of Coleman and Allston, even if counsel for Roberts had never called them to the stand or commented on their failure to testify. In short, we think that this is a case for the application of the harmless error rule of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), decided by the Supreme Court of the United States June 2, 1969. Cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); 28 U.S.C., § 2111; Fed.Rule Crim.Proc. 52(a).
We have carefully considered all of the other contentions of the appellants and find them to be without merit; however, we mention one further matter: The appellants were convicted and sentenced on the second count of the indictment alleging that in violation of 18 U.S.C. § 2113(a) they entered The National Bank of Washington, D.C., with intent to commit robbery therein. They were also convicted and sentenced on the third, fifth, seventh, ninth and eleventh counts alleging robbery of the Bank in violation of 18 U.S.C., § 2113(a). Although all of the sentences are to run concurrently, Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957) holds that one who is convicted of robbery under 18 U.S.C. § 2113(a) may not also be convicted under the same section of entering the Bank to commit robbery. We have recently considered this matter in Bryant v. United States, 135 U.S.App.D.C. 138, 417 F.2d 555 (decided August 7, 1969). In accordance with the procedure followed in that case and in the Prince case we therefore set aside the appellants’ convictions on the second count of the indictment and remand for resentencing on the convictions under the other counts, which we affirm.
It is so ordered.
. A thirteenth count charging Coleman with carrying a dangerous weapon, a pistol, without a license, was dismissed on motion of the government when it appeared during trial that the pistol was not capable of discharging a\ projectile.
. Each of the five counts charging robbery under 18 U.S.Code § 2113(a) corresponded with one of the five counts alleging robbery under 22 D.C.Code § 2901, and related to the theft of a specified sum of money from the cage of one of five tellers.
. See footnote 1 above.
. Not counsel on this appeal.
. The instruction was as follows:
“The basis for the evidence given by the character witness called by Mr. Allston is the reputation of Mr. Allston in the community. The jury is instructed that Mr. Allston, by calling the character witness, put in issue in this case his reputation for peace and good order and for honesty and, because he did so, Mr. Oaputy was permitted to question the character witness as to whether she had heard that Mr. Allston had committed certain offenses.
“The jury is instructed that regardless of those questions and the answers thereto, the jury is not to assume or infer that any of the offenses inquired about were actually committed. The jury may take into consideration those questions and the answers thereto for a limited purpose only. That is, in weighing the evidence of the character witness, in testing her standard of information on the reputation of Mr. Allston and otherwise passing upon her credibility as a witness.
“The jury is directed not to consider such questions and the answers thereto for any other purpose.
“I have a few more statements to make to you on this same subject: The jury is instructed that questions put to the character witness as to any alleged prior offenses committed by Mr. Allston, and her answers thereto, are to be disregarded entirely by the jury, except to the extent that they bear on the credibility of the character witness. You are also instructed that such questions and the answers thereto are not to be considered as evidence that there have in fact been prior offenses by Mr. Allston.
“Further, the jury is instructed that such questions and answers thereto are not to be considered as evidence of the guilt of Mr. Allston of the offenses charged in the indictment here.”
. Not counsel on this appeal.
. The transcript of the closing- argument contains the following:
“[Counsel for Roberts] : Roberts didn’t even know Coleman and Allston. You heard him call each one of these defendants to the stand and you probably wondered why and how I intended to prove Roberts’ story or how I was going to be able to say to each one of these other men: ‘Is it true that Roberts doesn’t know you as he says he doesn’t,’ but I didn’t have that opportunity. That was my purpose, in trying to call them, because the only way I could support his testimony is by putting some evidence on the stand to give you the situation—
“[Counsel for Allston]: I must object to that, Your Honor. I think that this is not proper argument and I object, if the Court please, and I ask Your Honor to instruct the jury to disregard it.
“[Counsel for Coleman]: I join in that.
“[Counsel for Allston]: With reference to the other defendants.
“THE COURT: I believe I told the jury the other day that they may testify or may not as they pleased. A defendant has an absolute right not to testify, if that is his choice.
“[Counsel for Roberts]: May I comment on it?
“THE COURT: Well, I think you have.
“[Counsel for Roberts]: * * * What circumstances do we have — they are difficult to overcome. I would ask you this hypothetical case, that probably may never occur, but just think of this: You and I walk out into the corridor alone during a recess and then on reentering the courtroom you say: ‘That person took $100 out of my pocket.’ Mow, there are just the two of us. How do I deny it ever happened, except by taking the stand and saying T didn’t do it’? How would one prove that this never occurred? Mow, isn’t Roberts in that same position? These men wouldn’t testify for him, so there he is—
“[Counsel for Allston]: Your Honor, I ask Your Honor to instruct the jury to disregard that statement. “THE COURT: I have already instructed the jury. I think you should cease commenting upon the other defendants, * * * [Counsel for Roberts],
“[Counsel for Roberts] : Well, members of the jury, how else would you overcome that statement by someone whom you know is telling the story about you, about a crime which you never committed? How would you go about it? How would you be able to refute this testimony? * * * ”
At the conclusion of the argument for Roberts, counsel for Allston and Tobin moved for a mistrial because of the statements by Counsel for Roberts about his attempts to get the co-defendants to testify. The motion was denied.
In her charge to the jury the district judge said:
“The jury is instructed that a defendant in a criminal case has an absolute right not to testify and the jury must not draw any inference against a defendant because he did not testify. A defendant who wishes to testify can do so, in which event his testimony is to be judged by the jury in the same way as that of any other witness.”
. 18 U.S.C. § 3481 provides:
“In trial of all persons charged with the commission of offenses against the United States and in all proceedings in courts martial and courts of inquiry in any State, District, Possession or Territory, the person charged shall, at his own request, be a competent witness. His failure to make such request shall not create any presumption against him.”
Counsel's conduct was egregious, especially in view of the fact that although he intended to call the co-defendants as witnesses he at no time moved for a severance on behalf of his client.
Counsel for defendants in future cases in the District Court should take notice tliat such conduct may be ground for disciplinary action.
. The error has no effect on the validity of the conviction of Roberts. Moreover, although Tobin originally refused to testify when called by Roberts, he later took the stand, protested his innocence, and attempted to explain his presence in the getaway truck. As we have indicated in our summary of the facts his change of mind was apparently not motivated by pressure from Roberts; on the contrary he decided to testify because he believed that Roberts in his story had departed from the defense which had been agreed upon among the appellants.
Question: Did the court's rulings on pre-trial procedure favor the appellant? This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_usc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
William GEARHARDT, d/b/a Cary Concrete Products Co., et al., Plaintiffs-Appellees, v. AMERICAN REINFORCED PAPER CO., Defendant-Appellant.
No. 11968.
United States Court of Appeals Seventh Circuit.
June 18, 1957.
Walter I. Deffenbaugh, Thomas C. Strachan, Jr., Chicago, 111., for appellant. Pope & Ballard, Chicago, 111., of counsel.
Gates W. Clancy, Fred J. O’Connor, Chicago, 111., for appellee. Robert C. Jenkins, Chicago, 111., of counsel.
Before MAJOR, LINDLEY and SCHNACKENBERG, Circuit Judges.
LINDLEY, Circuit Judge.
Plaintiffs brought suit in the district court, claiming that their cement block plant building had been damaged by fire caused by defendant’s negligent burning of debris in the rear of its plant. From the judgment entered in pursuance of a verdict in favor of plaintiffs, defendant appeals, asserting that there is not sufficient credible evidence to sustain the verdict and judgment and that the court erred in receiving evidence concerning other fires on defendant’s premises prior to October 8, 1953, and in permitting the witness Jungnickel to testify. As a corollary to its argument that there is not sufficient credible evidence to support the verdict, defendant asserts also that the jury was not justified in finding for plaintiffs in view of the fact, as defendant contends, that the undisputed physical conditions irrefutably contradicted plaintiffs’ testimony.
Plaintiffs William Gearhardt and Harriet Gearhardt, it was averred, are co-owners of the damaged premises. Other plaintiffs were insurance companies who had reimbursed plaintiffs in part and claimed to be subrogated to their rights in the amounts paid.
Plaintiffs relied upon § 53 of Chapter 38, Illinois Revised Statutes 1951, which provides a penalty for knowingly permitting fire to pass from one’s property to that of another, and creates a penalty for negligently causing a fire which damages another’s property. Plaintiffs charged that defendant, by its customary method of burning paper on its grounds, violated the statute and that its continuous action in this respect amounted to maintenance of a nuisance; that on October 9, 1953, certain sparks or flames of pieces of Ignited paper were carried by the wind from a fire on defendant’s premises and ignited plaintiffs’ building, causing damages thereto amounting to $33,000; that plaintiffs were in the exercise of due care and caution for the safety of their property, and that defendant was negligent in permitting the fire to escape from its premises and to ignite plaintiffs’ building.
In determining whether the evidence as to the cause of the fire was sufficient to justify the verdict of the jury, it is well to remember that we must interpret the evidence in the light most favorable to plaintiffs. Though it be contradictory in character, if that favoring the plaintiffs is sufficient to make a case that must go to the jury, we cannot disturb the verdict. Bearing in mind that defendant’s argument, so far as the facts are concerned, is grounded upon the proposition that the physical facts completely destroyed the credibility of the witnesses for plaintiffs, we must examine the facts in order to determine whether a prima facie case requiring submission to the jury was made.
Plaintiffs’ cement block factory is located at the edge of the village of Cary, Illinois, on the west side of route 14. To the rear of the building, as well as of that of defendant’s premises, are the tracks of the Northwestern Railroad, running to Chicago. Just south of plaintiffs’ plant and somewhat to the west thereof, is a steel quonset building owned by the Curtiss Candy Company, used as a repair shop. To the south of this lie defendant’s premises. Its buildings are nearer the highway than those of Curtiss, so that there is an unobstructed view from plaintiffs’ building on the north to defendant’s plant on the south. The distance from defendant’s building to that of plaintiffs’ is estimated by various witnesses at from 150 to 300 feet.
Defendant is engaged in the manufacture of strong tape for binding and reinforcing the corners and edges of cardboard boxes. The tape consists of two plies of brown paper, reinforced with spun glass fiber inserted between the plies, with other material, such as glue or paste, to bind the elements together. All the scrap remaining from the manufacture is burned in the rear of defendant’s premises, together with substantial amounts of tissue paper, in an area said to be enclosed by chicken wire fencing, in piles some 5 feet in diameter. The evidence indicates that the scrap other than the tissue paper burns slowly but steadily.
Defendant has been burning scrap on its premises since 1950, burning a substantial amount every day. Plaintiffs offered evidence of hazardous conditions both before and at the time in question. Thus, a witness who operated a gas service station slightly more distant from defendant’s premises than plaintiffs’ property, testified that defendant’s burning area was almost the size of the trial courtroom; that there had been numerous fires there within a week or so prior to October 9, from which burned chunks of paper blew across to his driveway, in and about his gas pumps, and that he complained repeatedly to the police about these occurrences. Another witness, who operated the repair shop on the Curtiss property, testified that the burning area was about 20 feet square; that, prior to the time in question, burning particles had flown into his quonset hut, through the windows and doors, so that they had to be closed; that he complained frequently to defendant’s plant manager and its foreman, as well as to the fire department of the village; that the burning particles from defendant’s fire flew 30, 40 or 50 feet into the air; that the fires continued to burn after defendant’s employees who had set them went away; that the burning continued after he made his complaints, and that burning of the waste had caused at least one fire to defendant’s shack located at the rear of its premises.
It is undisputed that on the evening of October 8 defendant’s employees had burned paper in the area used for that purpose. Two witnesses testified that, from a Northwestern train on which they were travelling, they saw a fire at the rear of defendant’s premises at 7:30 P.M. Another, that at approximately 1 o’clock in the morning of October 9, there was a “good-sized” blaze in the rear of defendant’s plant and that there was at that time a moderate wind. Police Officer Jungnickel testified that about 3 o’clock A.M., on October 9, he saw a fire in the rear of defendant’s property from which sparks rose 50 feet; that the wind was blowing sparks and burning particles in the direction of plaintiffs’ plant; that they were “great big” sparks, some of them passing over plaintiffs’ building; that there was a pretty good wind; that he warned defendant’s night watchman about this situation, and reported it to his chief; that he turned in the fire alarm at approximately 3:00 A.M., and that, when the firemen arrived, defendant’s bonfire was still burning and throwing sparks. Plaintiff William Gear-hardt testified that he arrived at the scene on the morning of October 9 sometime between 6 and 7 o’clock, and shortly thereafter found a live fire in the area where defendant customarily burned its waste paper.
The fire in plaintiffs’ building was discovered at approximately 3:30 A.M. some 30 minutes after sparks and burning particles had been seen blowing in to the area around the building. There was testimony that on the second floor of the building, on the south end, there was an overhead garage door so that when one looked out of the door, he would look toward defendant’s burning area; that just inside the door there were lumber, tar and other combustible materials ; that the door could have been open; that on the side of the building on the second floor, which faced the highway, there were three windows and a row of windows facing the railroad tracks; that in the south end of the second story there was a large window and a large garage door, 8'x7'; that a couple of the windows were broken; that the door was normally left open for a draft and closed only when it was raining or when the weather was cold; that the roof was wood covered with tar paper. The night was'a clear mild October night. Various other circumstances tending to corroborate plaintiffs’ testimony were proved.
It would seem perfectly obvious that this evidence, if believed by the jury, to which we are bound to believe that it gave credence, made a prima facie case for plaintiffs. There was no evidence of any probable cause of the fire other than that indicated in the recited testimony. In this situation it was necessary for the court to submit the cause to the jury.
In this connection plaintiff argues that the credibility of the witnesses who testified that flames, sparks and burning paper fell around and upon the building is positively refuted by the physical facts and, therefore, must be disregarded. In this connection, defendant reviews the testimony of other witnesses. However, upon mature consideration, we find in the record no evidence which irrefutably negates the testimony of Jungnickel and Gearhardt. True, some witnesses did not see or did not remember seeing any fire on defendant’s property; but that is not a surprising situation. It merely reflects negative testimony of witnesses who were interested solely in watching the main fire.
Defendant observes that a tree near plaintiffs’ building was not completely destroyed but lost only the leaves on the limbs nearest the building. It argues therefore, that there would not have been a southwest wind as was indicated by the testimony of some witnesses. But to our mind this has little or no significance. If the fire started from the inside, from sparks blown through the open door, it is not surprising that, as it worked upward through the roof, it had not progressed far enough to consume the entire tree before the firemen arrived.
We have examined the voluminous record carefully. We find nothing to impel us to say, as a matter of law, there were any physical facts completely refuting the testimony of the witnesses who testified positively as to the existence of burning paper in defendant’s back yard and flying sparks therefrom as late as 3 o’clock in the morning. Whether the wind was from the southeast or southwest, or whether it blew in varied gusts from one direction and then from another, as is frequently the case, is immaterial. There was testimony as to the situation which required that the cause be submitted to the jury. Defendant has cited decisions in which it has been held that the physical facts absolutely refuted the oral testimony, but none of them presented such a state of the record as we have here.
Defendant seeks in this respect to have us contrast, compare and weigh the testimony of plaintiffs’ witnesses and that of defendant’s witnesses upon the question of whether the fire originated on the inside or the outside of the building. The jury had the right to determine these issues. They knew that some witnesses described the whole second floor as “an inferno”, or as “a furious fire”; and that, when the firemen arrived, fire was coming through the roof or from the roof. They had the testimony as to flying sparks. Whether the fire started on the roof or came from sparks carried in through the window or door, we think, is wholly immaterial.
The rule governing such cases is well stated in Christie v. Callahan, 75 U.S.App.D.C. 133, 124 F.2d 825, 839, thus: “Generally speaking, direct and positive testimony to specific acts of negligence is not required to establish it. Circumstantial evidence is sufficient, either alone or in combination with direct evidence. Circumstantial evidence may contradict and overcome direct and positive testimony. The limitation on its use is that the inference drawn must be reasonable. But there is no requirement that the circumstances, to justify the inferences sought, negative every other positive or possible conclusion. The law is not so exacting that it requires proof of negligence or causation by testimony so clear that it excludes every other speculative theory.” And, in National Lead Co. v. Schuft, 8 Cir., 176 F.2d 610, the fire was charged to have been caused by an accumulation of lignite coal dust. The court, after commenting that, though there was no direct proof of how the fire started, if the jury believed the testimony, it was logical for it to infer that some form of gaseous propagation had occurred, and added (at pages 613, 614): “Inferences made from probative facts do not constitute legal speculations, if they can be said to be probabilities by the test of common judgment. Christie v. Callahan, 75 U.S.App.D.C. 133, 124 F.2d 825, 840. * * * No possible basis-therefore can be claimed to exist for the contention that as a matter of law the theory of plaintiffs was not ‘inconsistent, with any other rational theory.’ A theory of proximate cause resting in probative circumstances does not become a matter of speculation and conjecture by a mere suggestion of other possible causes which are unsupported by any proved facts. Sears, Roebuck & Co. v. Peterson, 8 Cir., 76 F.2d 243, 247.” See also Schulz v. Pennsylvania Railroad Co., 350 U.S. 523, 76 S.Ct. 608, at page 610, 100 L.Ed. 668, and Terminal Railroad Ass'n v. Farris, 8 Cir., 69 F.2d 779.
Defendant complains of the admission in evidence of former occurrences in the course of defendant’s burning papers. There was testimony as to the continued character of these conditions, and we know of no reason why the jury should not have had the benefit of its admission to show the dangerous condition arising from defendant’s practices in burning paper, and to prove that defendant had notice of such condition through the complaints made and failed to desist from the practice. In Sears, Roebuck & Co. v. Copeland, 4 Cir., 110 F.2d 947, 949: “Such evidence tends to show the dangerous qualities of the thing or place, and knowledge of these qualities on the part of the owner or possessor. Wigmore on Evidence, 2d Ed., §§ 252 and 458. * * The rule of evidence under discussion rests in part upon the inference that conditions of a continuing nature, once shown to exist, will persist.” Wigmore on Evidence, 2d Ed., § 437. And as pointed out in 65 C.J.S. Negligence § 234, pp. 1053, 1054: “Where the dangerous or safe character of the place, method, or appliance which is alleged to have caused the accident or injury is in issue, evidence is admissible in a proper case that other similar accidents or injuries, actual or potential, have resulted at or from such place, method, or appliance, whether before the accident in suit, at the same time, or thereafter.” See also Wigmore on Evidence, Vol. 1, § 442, p. 522 (1904).
Defendant also complains because the court permitted police officer Jungniekel to testify, though his name had not been included in the list of witnesses with which plaintiffs had supplied defendant. The evidence is that the name was supplied but was spelled Youngnickel instead of Jungniekel; that the witness’s brother spelled his name with a “Y” and the witness with a “J”; that all the firemen knew him, and that various of defendant’s witnesses knew him. We know of no rule which made it improper to admit the testimony. There was no evidence of trickery on the part of plaintiffs, no evidence that they were attempting to take advantage of defendant. In this situation we think it would have been error for the court not to have admitted the testimony.
Finding no error in the record, the judgment is affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_petitioner
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044
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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.
SCHWEGMANN BROTHERS et al. v. CALVERT DISTILLERS CORP.
NO. 442.
Argued April 9-10,1951.-
Decided May 21, 1951.
John Minor Wisdom and Saul Stone argued the cause and filed a brief for petitioners.
Monte M. Lemann argued the cause for respondents. With him on the brief were Thomas Kiernan, Edgar E. Barton, J. Blanc Monroe and Walter J. Suthon, Jr.
Solicitor General Perlman, Assistant Attorney General Morison, Robert L. Stern, Charles H. Weston and J. Roger Wollenberg filed a brief for the United States, as amicus curiae, urging reversal.
Briefs of amici curiae supporting respondents were filed by Robert E. Woodside, Attorney General, and Harry F. Stambaugh for the State of Pennsylvania; Samuel I. Rosenman, Godfrey Goldmark and Herman S. Waller for the National Assn, of Retail Druggists et al.; Herbert A. Bergson for Coty Incorporated et al.; and by Murray F. Cleveland for the Louisiana State Pharmaceutical Association.
Mr. Justice Douglas
delivered the opinion of the Court.
Respondents, Maryland and Delaware corporations, are distributors of gin and whiskey. They sell their products to wholesalers in Louisiana, who in turn sell to retailers. Respondents have a price-fixing scheme whereby they try to maintain uniform retail prices for their products. They endeavor to make retailers sign price-fixing contracts under which the buyers promise to sell at not less than the prices stated in respondents’ schedules. They have indeed succeeded in getting over one hundred Louisiana retailers to sign these agreements. Petitioner, a retailer in New Orleans, refused to agree to the price-fixing scheme and sold respondents’ products at a cut-rate price. Respondents thereupon brought this suit in the District Court by reason of diversity of citizenship to enjoin petitioner from selling the products at less than the minimum prices fixed by their schedules.
It is clear from our decisions under the Sherman Act (26 Stat. 209) that this interstate marketing arrangement would be illegal, that it would be enjoined, that it would draw civil and criminal penalties, and that no court would enforce it. Fixing minimum prices, like other types of price fixing, is illegal per se. United States v. Socony-Vacuum Oil Co., 310 U. S. 150; Kiefer-Stewart Co. v. Seagram & Sons, 340 U. S. 211. Resale price maintenance was indeed struck down in Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373. The fact that a state authorizes the price fixing does not, of course, give immunity to the scheme, absent approval by Congress.
Respondents, however, seek to find legality for this marketing arrangement in the Miller-Tydings Act enacted in 1937 as an amendment to § 1 of the Sherman Act. 50 Stat. 693, 15 U. S. C. § 1. That amendment provides in material part that “nothing herein contained shall render illegal, contracts or agreements prescribing minimum prices for the resale” of specified commodities when “contracts or agreements of that description are lawful as applied to intrastate transactions” under local law. (Italics added.)
Louisiana has such a law. La. Gen. Stat., §§ 9809.1 et seq. It permits a “contract” for the sale or resale of a commodity to provide that the buyer will not resell “except at the price stipulated by the vendor.” The Louisiana statute goes further. It not only allows a distributor and retailer to make a “contract” fixing the resale price; but once there is a price-fixing “contract,” known to a seller, with any retailer in the state, it also condemns as unfair competition a sale at less than the price stipulated even though the seller is not a party to the “contract.” In other words, the Louisiana statute enforces price fixing not only against parties to a “contract” but also against nonsigners. So far as Louisiana law is concerned, price fixing can be enforced against all retailers once any single retailer agrees with a distributor on the resale price. And the argument is that the Miller-Tydings Act permits the same range of price fixing.
The argument is phrased as follows: the present action is outlawed by the Sherman Act — the Miller-Tydings Act apart — only if it is a contract, combination, or conspiracy in restraint of trade. But if a contract or agreement is the vice, then by the terms of the Miller-Tydings Act that contract or agreement is immunized, provided it is immunized by state law. The same is true if the vice is a conspiracy, since a conspiracy presupposes an agreement. That was in essence the view of the Court of Appeals, which affirmed by a divided vote a judgment of a district court enjoining petitioner from price cutting. 184 F. 2d 11.
The argument at first blush has appeal. But we think it offends the statutory scheme.
We note to begin with that there are critical differences between Louisiana’s law and the Miller-Tydings Act. The latter exempts only “contracts or agreements prescribing minimum prices for the resale.” On the other hand, the Louisiana law sanctions the fixing of maximum as well as minimum prices, for it exempts any provision that the buyer will not resell “except at the price stipulated by the vendor.” We start then with a federal act which does not, as respondents suggest, turn over to the states the handling of the whole problem of resale price maintenance on this type of commodity. What is granted is a limited immunity — a limitation that is further emphasized by the inclusion in the state law and the exclusion from the federal law of the nonsigner provision. The omission of the nonsigner provision from the federal law is fatal to respondents’ position unless we are to perform a distinct legislative function by reading into the Act a provision that was meticulously omitted from it.
A refusal to read the nonsigner provision into the Miller-Tydings Act makes sense if we are to take the words of the statute in their normal and customary meaning. The Act sanctions only “contracts or agreements.” If a distributor and one or more retailers want to agree, combine, or conspire to fix a minimum price, they can do so if state law permits. Their contract, combination, or conspiracy — hitherto illegal — is made lawful. They can fix minimum prices pursuant to their contract or agreement with impunity. When they seek, however, to impose price fixing on persons who have not contracted or agreed to the scheme, the situation is vastly different. That is not price fixing by contract or agreement; that is price fixing by compulsion. That is not following the path of consensual agreement; that is resort to coercion.
Much argument is made to import into the contracts which respondents make with retailers a provision that the parties may force nonsigners into line. It is said that state law attaches that condition to every such contract and that therefore the Miller-Tydings Act exempts it from the Sherman Act. Such a condition, if implied, creates an agreement respecting not sales made under the contract but other sales. Yet all that are exempted by the Miller-Tydings Act are “contracts or agreements prescribing minimum prices for the resale” of the articles purchased, not “contracts or agreements” respecting the practices of noncontracting competitors of the contracting retailers.
It should be noted in this connection that the Miller-Tydings Act expressly continues the prohibitions of the Sherman Act against “horizontal” price fixing by those in competition with each other at the same functional level. Therefore, when a state compels retailers to follow a parallel price policy, it demands private conduct which the Sherman Act forbids. See Parker v. Brown, 317 U. S. 341, 350. Elimination of price competition at the retail level may, of course, lawfully result if a distributor successfully negotiates individual “vertical” agreements with all his retailers. But when retailers are forced to abandon price competition, they are driven into a compact in violation of the spirit of the proviso which forbids “horizontal” price fixing. A real sanction can be given the prohibitions of the proviso only if the price maintenance power granted a distributor is limited to voluntary engagements. Otherwise, the exception swallows the proviso and destroys its practical effectiveness.
The contrary conclusion would have a vast and devastating effect on Sherman Act policies. If it were adopted, once a distributor executed a contract with a single retailer setting the minimum resale price for a commodity in the state, all other retailers could be forced into line. Had Congress desired to eliminate the consensual element from the arrangement and to permit blanketing a state with resale price fixing if only one retailer wanted it, we feel that different measures would have been adopted — either a nonsigner provision would have been included or resale price fixing would have been authorized without more. Certainly the words used connote a voluntary scheme. Contracts or agreements convey the idea of a cooperative arrangement, not a program whereby recalcitrants are dragged in by the heels and compelled to submit to price fixing.
The history of the Act supports this construction. The efforts to override the rule of Dr. Miles Medical Co. v. Park & Sons Co., supra, were long and persistent. Many bills had been introduced on this subject before Senator Tydings introduced his. Thus in 1929, in the Seventy-First Congress, the Capper-Kelly fair trade bill was offered. It had no nonsigner provision. It merely permitted resale price maintenance as respects specified classes of commodities by declaring that no such “contract relating to the sale or resale” shall be unlawful. As stated in the House Report, that bill merely legalized an agreement “that the vendee will not resell the commodity specified in the contract except at a stipulated price.” That bill became the model for the California act passed in 1931 — the first state act permitting resale price maintenance. The California act contained no non-signer clause. Neither did the Capper-Kelly bill that was introduced in the Seventy-Second Congress. So far as material here it was identical with its predecessor.
The Capper-Kelly bill did not pass. And by the time the next bill was introduced — three years later — the California act had been changed by the addition of the non-signer provision. That was in 1933. Yet when in 1936 Senator Tydings introduced his first bill in the Seventy-Fourth Congress he followed substantially the Capper-Kelly bills and wrote no nonsigner provision into it. His bill merely legalized “contracts or agreements prescribing minimum prices or other conditions for the resale” of a commodity. By this date several additional states had resale price maintenance laws with nonsigner provisions. Even though the state laws were the models for the federal bills, the nonsigner provision was never added. That was true of the bill introduced in the Seventy-Fifth Congress as well as the subsequent one. They all followed in this respect the pattern of the Capper-Kelly bill as it appeared before the first nonsigner provision was written into state law. The “contract” concept utilized by Cap-per-Kelly before there was a nonsigner provision in state law was thus continued even after the nonsigner provision appeared. The inference, therefore, is strong that there was continuity between the first Tydings bill and the preceding Capper-Kelly bills. The Tydings bills built on the same foundation; they were no more concerned with nonsigner provisions than were their predecessors. In view of this history we can only conclude that, if the draftsman intended that the nonsigning retailer was to be coerced, it was strange indeed that he omitted the one clear provision that would have accomplished that result.
An argument is made from the reports and debates to the effect that “contracts or agreements” nevertheless includes the nonsigner provisions of state law. The Senate Report on the first Tydings bill, after stating that the California law authorized a distributor “to make a contract that the purchaser will not resell” except at the stipulated price, said that the proposed federal law “does no more than to remove Federal obstacles to the enforcement of contracts which the States themselves have declared lawful.” The Senate Report on the second Tydings bill, which was introduced in the Seventy-fifth Congress, did little more than reprint the earlier report. The House Report, heavily relied on here, gave a more extended analysis.
The House Report referred to the state fair trade acts as authorizing the maintenance of resale prices by contract and as providing that “third parties with notice are bound by the terms of such a contract regardless of whether they are parties to it”; and the Report also stated that the objective of the Act was to permit the public policy of the states having such acts to operate with respect to interstate contracts for the sale of goods. This Report is the strongest statement for respondents’ position which is found in the legislative history. The bill which that Report endorsed, however, did not pass. The bill which became the law was attached by the Senate Committee on the District of Columbia as a rider to the District of Columbia revenue bill. In that form it was debated and passed.
It is true that the House Report quoted above was referred to when the Senate amendment to the revenue measure was before the House. And one Congressman in the debate said that the nonsigner provision of state laws was validated by the federal law.
But we do not take these remarks at face value. In the first place, the House Report, while referring to the non-signer provision when describing a typical state fair trade act, is so drafted that the voluntary contract is the core of the argument for the bill. Hence, the General Statement in the Report states that the sole objective of the Act was “to permit the public policy of States having ‘fair trade acts’ to operate with respect to interstate contracts for the resale of goods”; and the fair trade acts are referred to as legalizing “the maintenance, by contract, of resale prices of branded or trade-marked goods.” (Italics added.)
In the second place, the remarks relied on were not only about a bill on which no vote was taken; they were about a bill which sanctioned “contracts or agreements” prescribing not only “minimum prices” but “other conditions” as well. The words “other conditions” were dropped from the amendment that was made to the revenue bill. Why they were deleted does not appear. It is said that they have no relevance to the present problem, since we are dealing here with “minimum prices” not with “other conditions.” But that answer does not quite hold. The question is the amount of state law embraced in the words “contracts or agreements.” It might well be argued that one of the “conditions” attaching to a contract fixing a minimum price would be the liability of a nonsigner. We do no more than stir the doubt, for the doubt alone is enough to make us skeptical of the full implications of the old report as applied to a new and different bill.
We look for more definite clues; and we find the following statement made on the floor by Senator Tydings: “What does the amendment do? It permits a man who manufactures an article to state the minimum resale price of the article in a contract with the man who buys it for ultimate resale to the public . . . .” Not once did Senator Tydings refer to the nonsigner provisions of state law. Not once did he suggest that the amendment would affect anyone but the retailer who signs the contract. We search the words of the sponsors for a clear indication that coercive as well as voluntary schemes or arrangements are permissible. We find none. What we do find is the expression of fear in the minority report of the Senate Committee that the nonsigner provisions of the state laws would be made effective if the law passed. These fears were presented in the Senate debate by Senator King in opposition to the amendment. But the Senate Report emphasizes the “permissive” nature of the state laws, not once pointing to their coercive features.
The fears and doubts of the opposition are no authoritative guide to the construction of legislation. It is the sponsors that we look to when the meaning of the statutory words is in doubt. And when we read what the sponsors wrote and said about the amendment, we cannot find that the distributors were to have the right to use not only a contract to fix retail prices but a club as well. The words they used — “contracts or agreements” — suggest just the contrary.
It should be remembered that it was the state laws that the federal law was designed to accommodate. Federal regulation was to give way to state regulation. When state regulation provided for resale price maintenance by both those who contracted and those who did not, and the federal regulation was relaxed only as respects “contracts or agreements,” the inference is strong that Congress left the noncontracting group to be governed by preexisting law. In other words, since Congress was writing a law to meet the specifications of state law, it would seem that if the nonsigner provision as well as the “contract” provision of state law were to be written into federal law, the pattern of the legislation would have been different.
We could conclude that Congress carved out the vast exception from the Sherman Act now claimed only if we were willing to assume that it took a devious route and yet failed to make its purpose plain.
Reversed.
Resale price maintenance is allowed only as respects commodities which bear, or the label or container of which bear, the trade mark, brand, or name of the producer or distributor and which are in free and open competition with commodities of the same general class produced or distributed by others. Excluded are agreements between manufacturers, between producers, between wholesalers, between brokers, between factors, between retailers or between persons, firms or corporations in competition with each other.
The nonsigner clause in the Louisiana Act reads as follows: “Wil-fully and knowingly advertising, offering for sale or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provision of section 1 [§ 9809.1] of this act, whether the person so advertising, offering jor sale or selling is or is not a party to such contract, is unfair competition and is actionable at the suit of any person damaged thereby.”
“Provided further, That the preceding proviso shall not make lawful any contract or agreement, providing for the establishment or maintenance of minimum resale prices on any commodity herein involved, between manufacturers, or between producers, or between wholesalers, ... or between retailers, or between persons, firms, or corporations in competition with each other.” 15 U. S. C. § 1.
S. 240, 71st Cong., 1st Sess.; H. R. 11, 71st Cong., 1st Sess. See H. R. Rep. No. 536, 71st Cong., 2d Sess.
H. R. Rep. No. 536,71st Cong., 2d Sess. 2.
Cal. Stat., 1931, c. 278. The California Act was sometimes known as “the Junior Capper-Kelly.” See Grether, Price Control Under Fair Trade Legislation (1939), p. 54.
S. 97, 72d Cong., 1st Sess.; H. R. 11, 72d Cong., 1st Sess.
Cal. Stat., 1933, c. 260: The California law is now found in Business & Professions Code, Pt. 2, c. 3, § 16904.
S. 3822, 74th Cong., 2d Sess., 80 Cong. Rec. 1007.
See Ill. Laws 1935, p. 1436; Iowa Laws 1935, c. 106; Md. Laws 1935, c. 212, §2; N. J. Laws 1935, c. 58, §2; N. Y. Laws 1935, c. 976, §2; Ore. Laws 1935, c. 295, §2; Pa. Laws 1935, No. 115, §2; Wash. Laws 1935, c. 177, § 4; Wis. Laws 1935, e. 52.
S. Rep. No. 2053,74th Cong., 2d Sess. 2.
S. Rep. No. 257,75th Cong., 1st Sess.
H. R. Rep. No. 382,75th Cong., 1st Sess.
M, p. 2.
Id.
See, e. g., the statement of Rep. Dirksen, a House conferee, in 81 Cong. Rec. 8138.
H. R. Rep. No. 382,75th Cong., 1st Sess. 2.
81 Cong. Ree. 7495.
H. R. Rep. No. 1413, 75th Cong., 1st Sess. 10 (the Conference Report of the House) merely stated: “This amendment provides for an amendment to the antitrust laws under which contracts and agreements stipulating minimum resale prices of certain commodities, and which are similar to contracts and agreements which are lawful as applied to intrastate commerce, are not to be regarded as being illegal under the antitrust laws.”
S. Rep. No. 879, 75th Cong., 1st Sess.
81 Cong. Rec. 7491. And see S. Rep. No. 879, Part 2, 75th Cong., 1st Sess.
S. Rep. No. 879,75th Cong., 1st Sess. 6.
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:
|
songer_r_nonp
|
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 "groups and associations". 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.
ACTION FOR CHILDREN’S TELEVISION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, CBS, Inc., National Association of Broadcasters, Washington Association for Television and Children, Office of Communication of the United Church of Christ, American Broadcasting Companies, Inc., Communication Commission of the National Council of Churches of Christ in the U.S.A., Association of Independent Television Stations, Inc., Forward Communications Corp., et al., National Broadcasting Company, Inc., Intervenors.
No. 84-1052.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 18, 1985.
Decided March 19, 1985.
See also, 546 F.Supp. 872.
Petition for Review of an Order of the Federal Communications Commission.
Henry Geller, Washington, D.C., with whom William August, Cambridge, Mass., was on the brief, for petitioner.
C. Grey Pash, Jr., Counsel, F.C.C., Washington, D.C., with whom Bruce E. Fein, Gen. Counsel, and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on brief, for respondents. George Edelstein and Robert B. Nicholson, Dept, of Justice, Washington, D.C., entered appearances for respondent Dept, of Justice.
Sally Katzen, Washington, D.C., with whom Carl R. Raney, Joel Rosenbloom, Carol H. Fishman, Valerie G. Schulte, Washington, D.C., Corydon B. Dunham, New York City, and Howard Monderer, Washington, D.C., were on joint brief, for intervenors American Broadcasting Companies, Inc., et al. Erwin G. Krasnow, Washington, D.C., also entered an appearance for intervenor Nat. Ass’n of Broadcasters.
Barbara R. Shufro, Wilhelmina Reuben Cooke, Washington, D.C., and Donna De-mac, New York City, were on brief, for intervenors Wash. Ass’n for Television and Children, et al.
J. Laurent Scharff, Jack N. Goodman and Robert J. Aamoth, Washington, D.C., were on brief, for intervenor Ass’n of Independent Television Stations, Inc. James M. Smith, Washington, D.C., also entered an appearance for intervenor Ass’n of Independent Television Stations, Inc.
Robert M. Gurss and Andrew Jay Schwartzman, Washington, D.C., were on brief, for amicus curiae Nat. Educ. Ass’n urging reversal.
Before WRIGHT, GINSBURG, and SCALIA, Circuit Judges.
Judge Ginsburg took no part in the decision of this case.
Opinion PER CURIAM.
PER CURIAM.
Petitioner Action for Children’s Television and supporting intervenors (“petitioners”) challenge the Federal Communications Commission’s January 4, 1984 Report and Order defining the obligations of television broadcast licensees to their child audiences. See In re Children’s Television Programming and Advertising Practices, 96 F.C.C.2d 634 (1984) (“1984 Order”). There the Commission found that the video market, considered as a whole, does not exhibit a clear failure to serve the needs and interests of the child audience, and that mandatory programming rules (including flexible processing guidelines for license renewal applications) raise serious problems of law and policy; and accordingly elected simply to reaffirm “the general licensee obligations emphasized by the Commission in its [Children’s Television Report and Policy Statement, 50 F.C.C.2d 1 (1974) (“1974 Statement”), aff'd sub nom., Action for Children’s Television v. FCC, 564 F.2d 458 (D.C.Cir.1977) ] and ... the general requirement that stations provide programming responsive to the needs and interests of the communities they serve.” 96 F.C.C.2d at 655 (footnote omitted). Petitioners assert that the agency improperly considered the children's programming available from all video sources in finding no market failure warranting more intensive regulation of commercial broadcasting; that it gave insufficient consideration to flexible processing guidelines; that it arbitrarily and without explanation dropped the 1974 Statement’s requirement that licensees make a reasonable effort to provide age-specific, informational, and educational children’s programming; and that it ignored relevant evidence.
After carefully considering petitioners’ arguments, we conclude that the Commission’s decision was within the broad scope of its discretion and was adequately explained by the 1984 Order. See FCC v. WNCN Listeners Guild, 450 U.S. 582, 593-96, 101 S.Ct. 1266, 1273-75, 67 L.Ed.2d 521 (1981); NAACP v. FCC, 682 F.2d 993, 998 (D.C.Cir.1982). The differences between the 1984 Order and the 1974 Statement are attributable to changes in the Commission’s judgment about how best to serve the public interest, convenience and necessity, and the reasons for these changes are stated in the Order with sufficient clarity to withstand judicial scrutiny. See Motor Vehicle Manufacturers Ass’n, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 42-43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983).
Only two issues raised by petitioners require brief discussion. First, petitioners assert that it was improper for the Commission, in making its determination of public needs for children’s programming, to take into account such programming available on cable television or on noncommercial television broadcasting stations. We think not. As to cable: While that medium is not available in all areas or to all segments of the viewing community, it has a sufficiently broad and increasing presence that the Commission may appropriately consider its offerings in determining the necessity for such nationwide rules as petitioners favored. This does not mean, and we do not interpret the Commission to suggest, that in a particular service area where cable penetration is insubstantial or nonexistent that medium can have any effect upon the broadcaster’s assessment of the most significant needs of his community; or that the broadcaster in any community can disregard the needs of those not served by cable. We also see no need for the Commission to blind itself to the contribution of noncommercial television. To be sure, Congress did not intend noncommercial broadcasting to “relieve commercial broadcasters of their responsibilities to present public affairs and public service programs, and in general to program their stations in the public interest,” S.Rep. No. 222, 90th Cong., 1st Sess. 6, reprinted in 1967 U.S.Code Cong. & Ad.News 1772, 1777. But that does not mean that the Commission must require commercial broadcasters to pursue those responsibilities in disregard of the fact that some gaps in the public interest may have been filled by that source while other needs remain entirely unmet.
The second issue relates to age-specific programming. The 1974 Statement set forth the Commission’s expectation that broadcast licensees would henceforth make a reasonable effort “to present programming designed to meet the needs of three specific age groups: (1) pre-school children, (2) primary school aged children, and (3) elementary school aged children.” 50 F.C.C.2d at 7. Petitioners express the fear that the 1984 Order, which does not explicitly discuss age-specific programming, will relieve licensees of that obligation, echoing concerns voiced by Commissioner Rivera in his dissent from the Order. See 96 F.C.C.2d at 660 n. 11. We do not read the 1984 Order that way — nor, based on their representations at oral argument, do the broadcasters or the Commission. While it imposes no detailed age-specific requirements on licensees, and expresses doubts about a number of the programming categories relied on by the 1974 Statement (e.g., “informational” and “educational”), it explicitly affirms that “there is a continuing duty, under the public interest standard, on each licensee to examine the program needs of the child part of the audience and to be ready to demonstrate at renewal time its attention to those needs.” 96 F.C.C.2d at 656. It is absurd to believe that “the program needs of the child part of the audience” were thought to be uniform, from pre-school through elementary school. It seems clear to us that under the 1984 Order broadcasters faced with renewal challenges based on the adequacy of their children’s programming can be called upon to explain why they chose to focus on the needs and interests of certain age groups or other segments of the child audience, or why they emphasized emotional rather than cognitive needs. Licensees can expect the Commission to defer to reasonable programming decisions in this field, but that is a far cry from the wholesale abolition of licensee responsibility perceived by petitioners.
Petition denied.
Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
|
songer_abusedis
|
B
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
In the Matter of Establishment Inspection of STODDARD LUMBER COMPANY, INC., 1/4 Mile South of City of Yellowstone Highway, St. Anthony, Idaho, Petitioner-Appellant, v. Ray MARSHALL, Secretary of Labor, U.S. Department of Labor, Respondent-Appellee.
No. 79-4143.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 2, 1980.
Decided Sept. 15, 1980.
John L. Runft, Runft & Longeteig, Chartered, Boise, Idaho, on brief, for petitioner-appellant.
Charles Hadden, Carin A. Clauss, Benjamin W. Mintz, Allen H. Feldman and Thomas L. Holzman, Washington, D.C., on
Before SNEED and NELSON, Circuit Judges, and GRAY , District Judge.
Honorable William P. Gray, United States District Judge for the Central District of California, sitting by designation.
SNEED, Circuit Judge:
Appellant, Stoddard Lumber Company, appeals from an order of the district court holding the company in contempt of court for refusing, on November 29, 1978, to hon- or an Occupational Safety and Health Administration (OSHA) inspection warrant that was obtained ex parte on November 21, 1978. Stoddard challenges the district court’s order on three grounds: (1) the district court erred in finding that the Secretary of Labor’s inspection selection method was exempt from the notice and comment rulemaking procedures of the Administrative Procedure Act (APA) under 5 U.S.C. § 553; (2) the district court erred in finding that Stoddard fit within the standards outlined in the Secretary’s inspection selection plan; and (3) the Secretary lacked the authority to apply ex parte for inspection warrants under 29 C.F.R. § 1903.4. We find no merit in appellant’s challenges and affirm the contempt order.
Our jurisdiction rests on 28 U.S.C. §§ 1291 and 1294(1).
I.
FACTUAL BACKGROUND
Stoddard Lumber Company is an Idaho corporation engaged in the business of producing lumber and other wood products for shipment to points both inside and outside the State of Idaho, and is thereby subject to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq., [hereinafter referred to as “the Act”]. Since July 1, 1974, OSHA’s Boise Area Office has utilized a detailed procedure for identifying and selecting particular work establishments for inspection pursuant to section 8(a) of the Act. Under OSHA’s General Schedule Inspection Selection Process, OSHA inspections are divided into two categories: (1) unscheduled inspections, which are conducted in response to the receipt of information of hazardous working conditions at a particular establishment; and (2) general schedule inspections, which are scheduled on the basis of objective selection criteria.
Utilizing this inspection selection procedure, Richard Jackson, OSHA Area Director for the State of Idaho, selected Stoddard for a general schedule inspection, and assigned an OSHA compliance and safety officer to conduct it. However, on September 26, 1978, when compliance officer Garney Coffey attempted to inspect the Stoddard workplace, the company refused him entry. Thereupon, the Secretary of Labor filed an application for an ex parte inspection warrant in the United States District Court for the District of Idaho. Based on the Secretary’s warrant application and accompanying documents, the district court found sufficient probable cause to issue a warrant authorizing a full inspection of the Stoddard premises.
On November 29, 1978, an OSHA compliance officer returned to the Stoddard workplace and attempted to execute the warrant, but the company, after consulting with its attorney, again refused to permit the inspection. The Secretary then applied to the district court for an order holding Stoddard in contempt. The district court issued an order directing Stoddard to show cause why it should not be held in contempt. After a hearing held on the show cause order, the court entered an order holding the company in contempt for its refusal to honor the OSHA inspection warrant. The court fined Stoddard $500 plus an additional $100 for each succeeding refusal to permit an inspection.
Stoddard contends that the warrant was invalid because it was issued pursuant to an OSHA regulation which was not promulgated in accordance with the APA notice and comment rulemaking procedures under 5 U.S.C. § 553. Alternatively, appellant argues that the warrant was invalid because it lacked an adequate showing of probable cause, and because it had been obtained ex parte.
II.
RULEMAKING PROCEDURES UNDER THE APA
The Act evidences a strong congressional policy that every worker in the United States should be afforded a safe working environment. 29 U.S.C. § 651(b). To that end, the Secretary of Labor is invested with limited authority to enter and inspect workplaces for occupational hazard “during regular working hours and at reasonable times . within reasonable limits and in a reasonable manner . . . .” 29 U.S.C. § 657(a)(2). The Secretary is also given authority to “prescribe such rules and regulations as he may deem necessary to carry out [his] responsibilities under this chapter, including rules and regulations dealing with the inspection of an employer’s establishment.” 29 U.S.C. § 657(g)(2).
Stoddard contends that the Secretary’s General Schedule Inspection Selection Process is per se unreasonable because it is a “rule” that has not been promulgated in accordance with the formal rulemaking procedures of 5 U.S.C. § 553. Section 553 requires publication of an agency’s rules in the Federal Register at least thirty days before its effective date, and that persons subject to an agency’s rules be given notice of and an opportunity to comment on proposed rules. However, by its own terms, the notice and comment requirements of 5 U.S.C. § 553 do not apply “to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice . . . .” 5 U.S.C. § 553(b)(3)(A).
Distinguishing between those types of rules which to be valid must be promulgated pursuant to the procedures of section 553 and others whose validity does not rest on observance of that section’s notice and comment procedures has proved to be quite difficult. A few quite simple and universally accepted propositions can be stated, however. Legislative rules must be promulgated pursuant to section 553. Interpretative rules and other types of declarations described in section 553(b)(3)(A) frequently, but not invariably, need not be. The fundamental distinction between legislative rules and interpretative rules has been described by Professor Davis in the following manner:
“A legislative rule is the product of an exercise of delegated legislative power to make law through rules. An interpretative rule is any rule an agency issues without exercising delegated legislative power to make law through rules.”
2 K. C. Davis, Administrative Law Treatise, §7:8 (2d ed. 1979) [hereinafter cited as Davis]. Valid and properly promulgated legislative rules have the force of law; interpretative rules are subject to having their content rejected by a court. Even though an agency has the power to promulgate legislative rules, as the Secretary does in this case, it might choose not to issue rules pursuant to that authority. In such instances the rules are interpretative, not legislative. Id.
The preciseness of these propositions is greatly reduced by the fact that many courts have held that rules, even though intended by the agency to be interpretative, which have a “substantial impact” must nonetheless comply with the notice and comment procedure. See National Motor Freight Traffic Ass’n v. United States, 268 F.Supp. 90 (D.D.C. 1967), aff’d 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19 (1968); Pharmaceutical Manufacturers Ass’n v. Finch, 307 F.Supp. 858 (D.Del. 1970); Davis, § 7:17. The presence of “substantial impact” is indicated, it has been said, by “the amount of confusion and controversy generated and the need for expertise in resolving the issue, in addition to its financial impact on affected parties.” See Warren, The Notice Requirement In Administrative Rulemaking: An Analysis Of Legislative And Interpretive Rules, 29 Adm.L.Rev. 367, 389 (1977). Courts applying the “substantial impact” analysis sometimes ignore the APA distinction between legislative and interpretative rules and simply distinguish between rules having a “substantial impact” which are subject to the notice and comment procedure and those not having such an impact which are not subject to such procedure. Professor Davis, while taking care to point out the juridical difference between legislative rules and interpretative rules, expresses approval of the exercise by the courts in appropriate cases of the power to require notice and comment procedures even though not specifically required to do so by the APA. Davis, § 7:18. In his view the Supreme Court’s recent adjuration to avoid imposing procedural requirements beyond those of section 553, set forth in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978), should not terminate this practice. Davis, § 7:19.
Be that as it may, we have no difficulty in holding that neither the General Schedule Inspection Selection Process, nor OSHA Instruction CPL 2.25, nor the 1979 OSHA Field Operations Manual and Industrial Hygiene Field Operations Manual, Chap. IV, each of which is referred to by appellant in his brief, is subject to notice and comment procedure. None was promulgated as a legislative rule by the Secretary. Also none has a sufficiently “substantial impact” to justify such procedure. The program by which the choice of installations to inspect is made remains subject to control by the courts exercising their responsibilities under the criteria of the Fourth Amendment as explicated in Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Although the ability of courts to substitute their judgment for that of an administrator will not in all ’instances excuse noncompliance with notice and comment procedure, in this case the experience of courts in determining the reasonableness of searches pursuant to warrants constitutes a source of expertise very likely not inferior to that of the Secretary. The absence of notice and comment procedures under these circumstances very likely will not prejudice owners. Our conclusion remains the same without regard to whether the Secretary’s pronouncements be regarded as interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.
III.
APPLICATION OF THE STANDARDS TO STODDARD’S BUSINESS
In Marshall v. Barlow’s, Inc., supra, the Supreme Court held section 8(a) of the Act unconstitutional insofar as it authorized nonconsensual warrantless inspections of an employer’s establishment. The Supreme Court stated quite clearly that to obtain a warrant the Secretary is not required to show probable cause in the criminal law sense. Instead, the Court held that:
[f]or purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that ‘reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to a particular [establishment].’
435 U.S. at 320, 98 S.Ct. at 1824 [citing Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967)].
Stoddard asserts that no probable cause was established since the Secretary made no showing to the magistrate that the selection program applied to Stoddard’s lumber business. Specifically, according to Stoddard, the Secretary was required to provide statistics on the company’s accident and illness rate, as well as show the company’s position on the worst-first list in order to satisfy the probable cause standard under Barlow’s.
We find that such a showing is not required. See Marshall v. Chromalloy American Corp., 589 F.2d 1335 (7th Cir.), cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979). In Chromalloy, the Seventh Circuit found that a warrant application stating that there was a high incidence of injuries in the foundry industry had stated a basis for the magistrate’s finding of probable cause. The court noted that to require individual statistics every time the Secretary wants a warrant would result in a full-blown hearing and “would be imposing on the Secretary an unwarranted ‘consumption of enforcement energies’ which would ‘exceed manageable proportions. . . . Such a situation was not intended by the Supreme Court in its decision in Barlow’s.” 589 F.2d at 1342. (Citations omitted.)
In his application for a warrant, the Secretary provided the district court with the following information: (1) a detailed explanation of the selection plan; (2) the OSHA area director’s sworn affidavit stating that Stoddard was selected pursuant to that plan without influence of any other factors; and (3) that the injury incident rate in the lumber industry was 1.8 times the national injury rate for 1976, the most recent year for which statistics were available. Given this information, it was clear that Stoddard fit within the selection program. Contrary to appellant’s contention, the Secretary’s failure to provide individual statistics of Stoddard’s business does not make the warrant fatally defective. There was sufficient evidence presented to support the district court’s finding of probable cause for the issuance of the administrative search warrant.
IY.
AUTHORITY OF THE SECRETARY TO OBTAIN EX PARTE WARRANTS
Stoddard argues that 29 C.F.R. § 1903.4, both as originally promulgated and as amended, does not authorize the Secretary to apply for OSHA inspection warrants ex parte.- Stoddard asserts that the Barlow’s decision indicated that upon being refused permission to inspect, the Secretary is limited to seeking compulsory judicial process for inspections in which the owner of the installation is given notice to appear and show cause why inspection should not be permitted. Appellant relies principally upon the decision and reasoning of the court in Cerro Metal Products v. Marshall, 620 F.2d 964 (3d Cir. 1980). The Third Circuit, in affirming the district court’s granting of a preliminary injunction prohibiting OSHA from obtaining ex parte warrants to inspect the employer’s workplace, placed great weight, as had the district court, upon the Supreme Court’s dictum in Barlow’s that “the kind of process . apparently anticipated by . regulation [§ 1903.4] provides notice to the business operator.” 436 U.S. at 318, 98 S.Ct. at 1823. Although recognizing that it was not bound by this dictum, the majority nonetheless adopted it as integral to the constitutional holding in Barlow’s and concluded that section 1903.4 as originally promulgated “did not empower OSHA to seek ex parte warrants.” Cerro Metal Products v. Marshall, supra at 979.
To evaluate properly the Third Circuit’s position, it is necessary initially to make clear three propositions. The first is obvious. The Fourth Amendment does not preclude ex parte warrants. The second is that nothing in the Act requires notice to the employer before acquiring a warrant. Finally, the existing regulation, section 1903.4, as amended on December 22, 1978, contemplates the availability of ex parte warrants.
The circumstances upon which the Third Circuit relied arose from the Secretary’s efforts in Barlow’s to avoid the Fourth Amendment’s warrant requirements. In that effort the Secretary took the position that a warrant was unnecessary because those who refused to permit inspection upon request were entitled to notice of compulsory process initiated by the Secretary. Participation in that process, the Secretary suggested, afforded sufficient protection to the employer, and its availability coupled with the absence of a warrant requirement would discourage employer resistance to inspections and facilitate administration of the Act. See Cerro Metal Products v. Marshall, supra at 976 n.32. The 1976 version of the Field Operations Manual was not inconsistent with this position. In that version the phrase “compulsory process” was substituted for the word “warrant,” which appeared in the earlier 1972 version, and the following paragraph, which also appeared in the 1972 version, was eliminated:
f. In cases where a refusal of entry is to be expected from the past performance of the employer, or where the employer has given some indication prior to the commencement of the investigation of his intention to bar entry or limit or interfere with the investigation, a warrant should be obtained before the inspection is attempted. Cases of this nature should also be referred through the Area Director to the appropriate Regional Solicitor and the Regional Administrator alerted.
As a result the Third Circuit concluded that neither the regulations nor the Secretary’s practices thereunder recognized ex parte warrants and that any change of those regulations required a notice and comment rule making. It added elegance to its holding by invoking Shakespeare’s line from Hamlet that the agency was “hoist with [its] own petar.” Cerro Metal Products v. Marshall, supra at 967. The issue in this case is whether there was a “petar” with which to be “hoist.” We think not.
It is indeed true that the Secretary perhaps unwisely altered its manual to reflect his belief that the Fourth Amendment imposed no warrant requirement with respect to nonconsensual inspections. “Compulsory process,” a conveniently ambiguous term, was introduced to indicate primarily that coercion would be applied to those who resisted inspection. We cannot agree, however, that the term must be construed as a forswearing by the Secretary of any intention or power to resort to the ex parte warrant process. We are persuaded by Chief Judge Seitz’s dissenting opinion in Cerro Metal Products, Inc., supra at 984, in which he pointed out that the 1976 Manual retained in its subparagraph (8) the phrase that “[e]xcept in unusual circumstances ., there shall be no advance notice to the employer concerning compulsory process or pending inspection.” The forerunner of this phrase appeared in the 1972 Manual and read:
“Except in unusual circumstances . ., there shall be no advance warning to the employer of the fact either that a warrant has been secured or that inspection will take place pursuant to the warrant.”
It is clear, asserted Chief Judge Seitz, that the term “compulsory process” in subparagraph (8) of the 1976 Manual refers to the use of ex parte warrants as did its predecessor in the Manual's 1972 version. We agree.
Nor is this reading of the 1976 Manual foreclosed by the Supreme Court’s opinion in Barlow’s. In broad terms, the Court took the position that the Fourth Amendment’s warrant requirement as applied to inspections under the Act was not significantly more burdensome than was the procedure then employed by the Secretary with respect to those who refused to consent to inspections. 436 U.S. at 316-21, 98 S.Ct. at 1822-25. Moreover, the Court recognized that “surprise searches” were authorized by the Act and “contemplated” by the regulations. Id. at 317, 98 S.Ct. at 1823. Such searches obviously would employ the ex parte warrant procedure. Against this interpretation must be placed the Court’s footnotes 14 and 15 in which the focus is on a “compulsory process” in which notice is given to the owner who refused to permit inspection of the initiation of that “process.” In addition, footnote 15 can be read as assuming that no ex parte warrant procedure was authorized by the regulations. We believe, however, that to hold that these two footnotes amount to a determination by the Supreme Court that the regulations did not authorize ex parte warrants accords them undue weight. In truth the Court never specifically focused its attention on whether ex parte warrants were authorized. It merely addressed the “compulsory process” that the Secretary indicated he was using, and which did not involve the use of a warrant, and concluded that it provided no reason to set aside the Fourth Amendment’s warrant requirement. We decline to read more into the opinion because of two footnotes.
We conclude by observing that this court has held that OSHA administrative searches pursuant to a warrant are authorized by the statute and the regulations. See Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1287 (9th Cir. 1979); see also Marshall v. Burlington Northern, Inc., 595 F.2d 511, 514 (9th Cir. 1979). In Plum Creek, as here, the inspection warrant was obtained before the 1978 amendment to section 1903.4, but the decision was rendered after the amendment. Although we did not discuss the ramifications of the amendment, the court did rely upon Marshall v. W. & W. Steel Co., Inc., 604 F.2d 1322 (10th Cir. 1979). In W. & W. Steel, the Tenth Circuit held that the 1978 amendment to section 1903.4 was an interpretative rule and as such was exempt from the notice and comment rulemaking procedures under 5 U.S.C. § 553. We need not address this issue. Section 1903.4 of 29 C.F.R., both as originally promulgated and as amended, authorizes the Secretary to apply for OSHA inspection warrants ex parte. Our holding with respect to ex parte warrants does not rest upon the 1978 amendment.
Affirmed.
. Stoddard is engaged in business affecting commerce within the meaning of section 3 of the Act, 29 U.S.C. §§ 651 et seq., since it ships some of its products interstate.
. Based upon data regarding accidents and illnesses, industries within Idaho are ranked in descending order on the basis of accidents and illnesses per employee. Industries with an accident/illness rate exceeding the national rate of 9.2 accidents or illnesses per 200,000 man-hours worked are classified as “high hazard” industries. At all relevant times, 32 industries in Idaho were listed as “high hazard.” Within each “high hazard” industry, individual work establishments are ranked in descending order on the basis of injury/illness rates. The number of general schedule inspections that reasonably can be anticipated to be performed in a given year is estimated, and that number of individual work establishments is selected with a uniform percentage of establishments being taken from the top of each “high hazard” industry.
The “high hazard” individual work establishments are grouped on a geographical basis. Idaho is divided into four districts. Within each district, the individual work establishments are grouped by county location. Each county receives approximately the same proportion of total inspections as the county’s proportion of the total working population of Idaho. Finally, within a selected county the largest employer on each of the high hazard lists is chosen. Thus, the largest employer on the highest hazard industry in the county is selected first, followed by the largest employer of the second highest hazard industry in the county and so on until the number of anticipated inspections is completed. See General Schedule Inspection Selection Process, C.R. 6.
. The company was advised by the order that the fine would be set aside if it notified the court the inspection would be permitted by February 14, 1979, and would in any case be suspended if the company advised the court by that date that it was proceeding with an appeal.
. The APA defines a “rule” as follows:
(4) “rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing. ... 5 U.S.C. § 551(4).
Question: Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond1_5_2
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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 "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.
Stanley BERG and Berg Investments, Inc., an Indiana Corporation d/b/a The Body Works, PFW, Inc., an Indiana Corporation, Plaintiffs-Appellants, v. The HEALTH AND HOSPITAL CORPORATION OF MARION COUNTY, INDIANA, Defendant-Appellee.
No. 87-2493.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 24, 1988.
Decided Jan. 20, 1989.
Richard Kammen, McClure McClure & Kammen, Indianapolis, Ind., for plaintiffs-appellants.
Richard M. Knoth, Squire Sanders & Dempsey, Cleveland, Ohio, for defendant-appellee.
Before BAUER, Chief Judge, KANNE and MANION, Circuit Judges.
MANION, Circuit Judge.
Plaintiffs filed suit seeking a judgment declaring unconstitutional the “open booth” ordinance enacted by The Health and Hospital Corporation of Marion County, Indiana (HHC). On cross-motions for summary judgment, the district court upheld the ordinance. Berg v. Health and Hospital Corporation of Marion County, 667 F.Supp. 639 (S.D.Ind.1987). We affirm.
I.
HHC is an independent governmental body created pursuant to Ind.Code § 16-12-21-1 et seq. It is governed by a board of trustees and is responsible for protecting, promoting, and improving public health. The Board of Trustees (Board) is empowered to enact ordinances to promote public health in Marion County, Indiana. To combat the spread of acquired immune deficiency syndrome (AIDS) in Marion County, HHC’s Board of Trustees adopted General Ordinance No. 5-1985(A) (open booth ordinance) in February 1986. The ordinance is designed to eliminate structures which promote anonymous sexual activity and hence to curtail such activity, in the hope that this will help prevent or slow the spread of AIDS.
At a public hearing regarding the ordinance, HHC heard testimony from several persons who viewed the ordinance as a positive step toward containing the spread of AIDS. At the hearing, a professor of microbiology and immunology at the Indiana University School of Medicine, the State Health Commissioner for the Indiana State Board of Health, and the acting chief of HHC’s Bureau of Disease Prevention/Health Promotion all testified in favor of the ordinance. Among other things, they testified concerning the fatal nature of AIDS, the rapid increase in the number of persons afflicted with the disease both nationwide and in Marion County, and the great risk of persons becoming infected with the disease by engaging in high-risk sexual activity with multiple partners.
Indiana’s State Health Commissioner, Dr. Woodrow A. Myers, Jr., also testified before the Board and explained that the State Board of Health’s statewide AIDS prevention plan had recommended to each local health officer that, among other things, they identify those businesses or establishments operated wholly or in part to provide opportunities for high-risk sexual behavior and to eliminate the dangers these establishments presented to their communities. Dr. Myers further testified that because high-risk sexual activity waá thought to be the primary factor in the transmission of AIDS, those establishments where such high-risk sexual activity occurred were places where the likelihood of the disease’s transmission was at its highest.
HHC also heard testimony from an officer of the Indianapolis Police Department, Lieutenant Rogers. Rogers was assigned to the police department’s sex offenses branch and, before that, to the vice branch. Rogers informed the Board that high-risk sexual activity regularly occurred in certain Marion County establishments. In some places, booths are available where patrons may watch entertainment behind closed doors. Typically, the booths have apertures which allow participants on either side of the wall to engage in sexual activity with one another. According to Rogers, hundreds of arrests have been made in such places over the last few years, usually for public indecency. Undercover police officers have reported observing sexual activity occurring in these areas. Rogers concluded that the booths facilitated anonymous sexual activity.
This appeal involves those parts of the ordinance designed to curtail anonymous high-risk sexual activities and, thus, the spread of AIDS, by regulating the design and structure of commercial premises. Section 19-309, for example, provides that no commercial building shall be designed for or used to promote high-risk sexual conduct. Section 19-311 establishes minimum standards for the design and maintenance of commercial buildings. Section 19-311(a) prohibits partitions in buildings which have apertures designed to encourage sexual activity between persons on either side of the partition. Section 19-311(b) provides that “booths, stalls, or partitioned portions of a room, or individual rooms, used for the viewing of motion pictures or other forms of entertainment” are required to have “at least one side open to an adjacent public room so that the area inside is visible to persons in the adjacent public room.” Section 19-311(c) provides that no commercial buildings or structures shall be constructed so that private rooms or accommodations can be offered to customers if the building is in violation of § 19-309 and is not a validly operating hotel, motel, apartment complex or condominium. Section 19-310 provides that “the health officer shall be guided” by regulations adopted by HHC’s Board and “by the most recent instructions, opinions and guidelines of the Center for Disease Control of the United States Department of Health and Human Services which relate to the spread of infectious diseases....” (The ordinance’s relevant provisions are set forth in Appendix A.)
The Board subsequently adopted several health officer regulations to help administer and enforce § 19-311(b). These regulations limit the applicability of the “open booth” provisions to enclosures offered to the public for a fee “as part of a business operated on the premises which offers as part of its business the entertainment to be viewed within the enclosure....” Section 19-311(b)(l). The regulations also excluded private offices used by the owners and employees of the business. The regulations further define the terms “doors, curtains or portal partitions” and the term “open to an adjacent public room” as those terms are used in § 19-311(b). (These regulations are set forth in Appendix B.)
In March 1986, HHC cited PFW, Inc. (PFW) for violating § 19-311(a) and (b). PFW, joined by Stanley Berg and Stanley Berg Investments, Inc., which describes itself as a business offering its customers “private relaxation and entertainment” rooms, filed suit seeking a declaratory judgment and an injunction against the enforcement of the ordinance. The district court permitted Draix, Inc., Annex Adult Books, Inc., Shadeland Avenue Adult Bookstore, and Keystone Avenue Adult Books to intervene in the action as plaintiffs. All of the intervenors are Marion County businesses that were notified by HHC that they were in violation of the “open booth” provisions of § 19-311(b). They alleged that they would buy, make available or otherwise deal with constitutionally protected materials in Marion County. The inter-venors further alleged that the ordinance will prevent them from doing so in the future.
Berg moved for summary judgment, contending that the ordinance violated his rights under the First Amendment. Although broadly contending that §§ 19-101.-1,19-309,19-310,19-311(b) and (c), and the regulations governing 19-311(b), violated the First Amendment, Berg declared that the “gravamen” of his complaint was the “open booth” provision of § 19-311(b). Berg argued that § 19-311(b) was an unconstitutional prior restraint on expressive activities in violation of the First Amendment. Alternatively, he argued that, if the ordinance did not constitute a prior restraint, it nevertheless was not a reasonable time, place, and manner restriction. Berg further argued that the ordinance was unconstitutionally overbroad and vague. HHC filed a cross-motion for summary judgment, seeking to have the ordinance declared constitutional.
The district court rejected Berg’s claims and upheld the ordinance as a valid time, place, and manner restriction. The court further rejected Berg’s overbreadth and vagueness arguments. Berg appeals the district court’s grant of summary judgment in favor of HHC.
II.
A. Prior Restraint
As in the district court, Berg’s appeal focuses on the “open booth” provision of § 19-311(b). He first argues that the district court erred in holding the “open booth” ordinance was not a prior restraint of speech prohibited by the First Amendment. According to Berg, the “open booth” provision constitutes a prior restraint because it “effectively bans” the showing of movies or other forms of entertainment in a commercial building with a door where the public is charged a fee for access, because it substantially restricts the availability of constitutionally protected material, and because the ordinance purports to give HHC the authority to close businesses who fail to comply with § 19-311(b).
The ordinance manifestly is not a prior restraint. “Governmental action constitutes a prior restraint when it is directed to suppressing speech because of its content before the speech is communicated.” United States v. Kaun, 827 F.2d 1144, 1150 (7th Cir.1987) (quoting In re G. & A. Books, Inc., 770 F.2d 288, 296 (2d Cir.1985), cert. denied, sub nom. M.J.M. Exhibitors, Inc. v. Stern, 475 U.S. 1015, 106 S.Ct. 1195, 89 L.Ed.2d 310 (1986)). The Supreme Court has struck down regulations as unconstitutional prior restraints on speech where “public officials [have] the power to deny use of a forum in advance of actual expression.” See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 1244, 43 L.Ed.2d 448 (1975). The Marion County ordinance simply does not ban the viewing of any forms of entertainment or grant officials the discretion to suppress any speech based upon its content. Berg is in no way restrained in his ability to sell books, movies, or other forms of entertainment so long as he complies with the ordinance. As the district court noted, “[t]he ordinance does not ban the viewing of films or other entertainment, but merely regulates the environment in which the viewing occurs.” Berg, 667 F.Supp. at 642. See also Broadway Books, Inc. v. Roberts, 642 F.Supp. 486, 490 n. 2 (E.D.Tenn.1986) (open booth ordinance held not to constitute a prior restraint). The ordinance also does not require a person to obtain a license or a permit before exhibiting any particular form of speech.
Berg’s prior restraint argument centers on HHC’s ability to close an operation for failure to comply with the “open booth” provision. The Supreme Court’s reasoning in Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986), however, forecloses this argument. In Arcara, the owners of a bookstore argued that a New York statute authorizing the closure of a building determined to be a public nuisance violated their First Amendment rights. In the course of rejecting the plaintiffs’ claims that the closure of the bookstore was entitled to First Amendment protection even though it violated the state statute, the Court specifically rejected the position that such a closure would constitute a prior restraint. The Court explained:
The closure order sought in this case differs from a prior restraint in two significant respects. First, the order would impose no restraint at all on the dissemination of particular materials, since respondent is free to carry on his bookselling business at another location, even if such locations are difficult to find. Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited — indeed, the imposition or the closure order has nothing to do with any expressive conduct at all.
478 U.S. at 705-06 n. 2, 106 S.Ct. at 3177 n. 2 (emphasis added). Thus, the mere fact that HHC has the authority to close a business because it violates the ordinance does not transform the ordinance into a prior restraint on expressive activities. The ordinance’s application does not depend on an advance determination that the particular entertainment is permissible, and Berg remains free to carry on his business (albeit with open booths).
B. Time, Place, And Manner Restriction
We conclude, as have several other courts confronted with similar ordinances, that the proper constitutional measure here is whether the ordinance constitutes a valid time, place, and manner restriction. See Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165 (4th Cir.1986); Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243 (9th Cir.1982); Suburban Video, Inc. v. City of Delafield, 694 F.Supp. 585 (E.D.Wis.1988); Doe v. City of Minneapolis, 693 F.Supp. 774 (D.Minn.1988); Broadway Books, Inc. v. Roberts, 642 F.Supp. 486. We will assume — because it is not an issue in this case — that the material viewed in the booths is protected by the First Amendment. “To sustain a time, place, and manner restriction on First Amendment activities, the government must show that the restriction (1) is content-neutral, (2) serves a legitimate governmental objective, (3) leaves open ample alternative channels of communication, and (4) is narrowly tailored to serve the governmental objective.” City of Watseka v. Illinois Public Action Council, 796 F.2d 1547, 1552 (7th Cir.1986), aff'd, 479 U.S. 1048, 107 S.Ct. 919, 93 L.Ed.2d 972 (1987).
Under the time, place, and manner analysis, other courts have consistently upheld “open booth” ordinances as valid exercises of state police power. See Wall Distributors, Inc., supra; Ellwest, supra; Suburban Video, supra; Doe v. City of Minneapolis, supra; Broadway Books, supra. Likewise, we find no constitutional infirmity in Ordinance 5-1985(A).
There can be no doubt that the first two elements of the time, place, and manner test are met. The ordinance is clearly content-neutral; it makes no distinction between types of films or entertainment. Thus, it “would apply to a showing of ‘Rebecca of Sunnybrook Farm’ as well as any other film or performance. The ordinance regulates only the non-communicative aspects relating to the environment in which such material may be disseminated or received, and thereby ‘imposes only an incidental burden’ on plaintiffs’ first amendment rights.” Doe v. City of Minneapolis, 693 F.Supp. at 780 (construing an ordinance patterned on the Marion County ordinance at issue in this case). Indeed, the ordinance by its terms applies to all such enclosed booths, regardless of the type of film shown. Ellwest, 681 F.2d at 1245 n. 2. The ordinance is not directed at the content of the films or the type of entertainment which might be viewed in the booths; rather, it is directed at the booth’s “secondary effects,” namely the possible spread of AIDS through the anonymous sexual activity which may occur there. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986). See also Wall Distributors, Inc., 782 F.2d at 1169.
The ordinance also serves a legitimate governmental objective. HHC has the responsibility “[t]o protect, promote or improve public health” and to “control disease” within Marion County. Ind.Code § 16-12-21-28 3(i). Ordinance 5-1985(A) is clearly consistent with that mandate. Further, combating the spread of a deadly disease which has no known cure doubtless constitutes a legitimate governmental objective. Cf. City of Watseka, 796 F.2d at 1554 (protecting peace and quiet and preventing crime an “obvious” legitimate governmental objective).
Moreover, the “open booth” ordinance leaves ample alternative channels of communication. Here we consider “methods of communication” and ask “whether those methods not prohibited by the challenged regulation” (viewing the films, etc., with an open door) “are equivalent to the prohibited methods” (viewing the films, etc., behind a closed door). Wisconsin Action Coalition v. City of Kenosha, 767 F.2d 1248, 1254 n. 3 (7th Cir.1985). There is absolutely nothing in the ordinance limiting the availability of films or other entertainment. The ordinance does not bar people from watching films or entertainment in individual enclosures. The viewing public is in no way “denied access to the market ... or ... unable to satisfy its appetite for sexually explicit fare.” Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976). Persons who wish to watch entertainment in individual enclosures may continue to do so; their access to such films and other entertainment is not substantially impaired by the removal of doors on the booths. Plainly, for First Amendment purposes, an open booth is the equivalent to a closed booth, so far as viewing materials is concerned.
Lastly, the ordinance is narrowly tailored to serve the governmental objective. City of Watseka, 796 F.2d at 1552. Whether an enactment is narrowly tailored really in; volves two separate inquiries. First, there! must be a significant relationship between the ordinance and the governmental interest. Id. at 1554; City of Kenosha, 767 F.2d at 1257. Second, less restrictive alternatives must be inadequate to protect the governmental interest. City of Watseka, 796 F.2d at 1554.
Berg contends there is no connection between the ordinance and the served interest. He argues that HHC has not established that anyone has contracted AIDS from a commercial enterprise such as those in the instant suit or, for that matter, in Marion County. The proof Berg would require — specifically identifying such a commercial enterprise as the place where one contracted AIDS — is probably not possible in such exact terms, or if possible, would be exceedingly difficult to establish; however, it is also not necessary. HHC was entitled to rely on the experiences of other communities and it need only demonstrate that the evidence relied upon was “reasonably believed to be relevant to the problem” that it was addressing. City of Renton, 475 U.S. at 51-52, 106 S.Ct. at 931; Doe v. City of Minneapolis, 693 F.Supp. at 781; Broadway Books, 642 F.Supp. at 491. Thus, it was entirely proper to rely on the more general information which HHC considered.
When HHC adopted Ordinance 5-1985(A), it had information concerning the incidence of AIDS in Marion County, its rapid increase in other cities, its incurable, fatal nature, its transmission via multiple, anonymous sexual encounters, and about the casual sexual activity, including anal intercourse, observed in the types of local establishments sought to be regulated. Further, HHC heard testimony from a health professional who testified that the ordinance was an important step in the prevention of unsafe sexual practices and, thus, in the spread of AIDS. This information establishes a significant relationship between the ordinance and HHC’s legitimate interest in fighting the spread of AIDS.
But to be narrowly tailored there also must be no less restrictive alternative which could serve the governmental interest. City of Watseka, 796 F.2d at 1554. This requirement is easily met here, as the ordinance “responds precisely to the substantive problem which legitimately concerns” HHC. Id. at 1553 (quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 810, 104 S.Ct. 2118, 2131, 80 L.Ed.2d 772 (1984)). As the Fourth Circuit observed in regard to a similar enactment:
[t]he open booth regulation appears to be the least burdensome means of controlling offensive and illegal activity within booths that can be imagined. The regulation in no way limits the time of operation, number of booths, or content of exhibitions. We conclude that the regulation is ... narrowly tailored to serve the specific interest advanced by the City....
Wall Distributors, Inc., 782 F.2d at 1170. Moreover, we decline to engage in speculation as to other possible alternatives which HHC might have employed to fight the spread of AIDS. In both City of Watseka and City of Kenosha, where we did consider alternatives to the challenged enactments, there already existed less restrictive alternatives which could adequately protect the articulated interests at issue. There is nothing similar found in the record here. This case is also unlike Doe v. City of Minneapolis, supra, where the ordinance’s challengers proffered specific alternatives to the open booth ordinance (a one-person-one-booth restriction, or the removal of the bottom 24 inches of the door as opposed to the entire door). Berg identified no less restrictive alternatives, nor do we think any exist.
III.
Berg also contends that the ordinance is unconstitutionally overbroad and vague. We disagree.
The ordinance is overbroad, Berg argues, because it could be applied to rooms where activities such as watching movies or plays or reading books and magazines take place as opposed to high-risk sexual activity. An overbroad enactment “sweeps within its prohibitions [that which] may not be punished under the First and Fourteenth Amendments.” Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972). An ordinance or statute may be invalidated on its face only if the overbreadth is substantial. Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569, 107 S.Ct. 2568, 2571, 96 L.Ed.2d 500 (1987); Broad-rick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973); United States v. Rodgers, 755 F.2d 533, 542 (7th Cir.1985), cert. denied, 473 U.S. 907, 105 S.Ct. 3532, 87 L.Ed.2d 656 (1985). “[T]he overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918. “[Tjhere must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984). See also Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569, 107 S.Ct. at 2571 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394 (1985)). However, even where an ordinance “appears overbroad because of its ambiguity [it] should not be struck down if it is subject to a reasonable limiting instruction.” U.S. v. Rodgers, 755 F.2d at 542.
The ordinance by itself or through its regulations specifically excludes its application to private business offices or to hotels and motels. As the district court found, the regulation and the ordinance when read together limit the “open booth” provision’s application to private or individual enclosures in which entertainment is sold as part of a business on commercial premises. This is sufficiently tailored to fend off an overbreadth challenge. Moreover, as we elsewhere have stated, the ordinance is precisely aimed at matters within HHC’s power to regulate, and it achieves its end without encroaching on First Amendment rights. Broadway Books, Inc., 642 F.Supp. at 490 n. 2.
Nor is the ordinance unconstitutionally vague. Essentially Berg argues that the ordinance does not clearly define the particular premises to which it applies, leaving this determination to the individual discretion of enforcement officers. “[A]n enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. at 108, 92 S.Ct. at 2298. Laws must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Id.; Baer v. City of Wauwatosa, 716 F.2d 1117, 1124 (7th Cir.1983). But enactments need not provide “meticulous specifics” or mathematical precision; they are permitted “flexibility and reasonable breadth.” Grayned v. City of Rockford, 408 U.S. at 110, 92 S.Ct. at 2300. When evaluating a facial challenge to an ordinance, we must consider any limiting construction that an enforcement agency proffers. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 1191 n. 5, 71 L.Ed.2d 362 (1982).
Read as a whole, the ordinance and its regulations plainly are directed at those establishments which provide individual booths where high-risk sexual activity may occur and to businesses that offer as part of their business the entertainment to be viewed within the enclosure. And, although the term “entertainment” is arguably general, when read in the particular context of this ordinance, it cannot be said that it is beyond the grasp of persons of ordinary intelligence. Grayned v. City of Rockford, 408 U.S. at 108, 92 S.Ct. at 2298; Broadway Books, Inc., 642 F.Supp. at 490 n. 2. In sum, we believe that persons of ordinary intelligence are capable of identifying those establishments subject to the ordinance.
IV.
HHC’s “open booth” ordinance is a valid and constitutional regulation serving a legitimate governmental interest, and it is neither so vague nor overbroad as to be unconstitutional. For the foregoing reasons, the district court is in all respects
AFFIRMED.
APPENDIX A
Legislative Finding
Sec. 19-101.1. It is hereby further found that there exist within Marion County, Indiana, commercial premises, commercial structures or parts thereof, which by reason of the design, and intended use of such premises or structures or parts thereof are conducive to the spread of communicable disease found to be of danger to persons frequenting such premises, structures, or parts thereof, and to the public health, safety and welfare. The health, safety and welfare of all persons in Marion County must be protected by the establishment of standards for such premises, structures, or parts thereof, to eliminate the possibility of infection of contagious disease. Of specific danger is the sexually transmissible disease of Acquired Immune Deficiency Syndrome, which is currently found to be irreversible and uniformly fatal. The incidence of this disease is found to occur in discernible population groups, and the risk factors for obtaining or spreading the disease are associated with high-risk sexual conduct with multiple partners. The commercial premises, structures, or parts thereof, which place persons at risk of infection from this disease due to their design or intended use for high-risk sexual conduct, are necessarily subject to regulation and minimal standards for the prevention of the spread of this disease and for the protection of the public health, safety and welfare.
Sec. 19-309. No commercial building, structure, premises or subdivision, partition, portion or part thereof or facilities therein, shall be so constructed, used, or operated for the purpose of sexual activities, in which facilities high-risk sexual conduct takes place. No commercial building, structure, premises or subdivision, partition, or portion shall be designed for or used to promote high-risk sexual conduct.
Sec. 19-310. In exercising powers conferred by this, or any other, section of the Code relating to communicable disease, the health officer shall be guided by the most recent instructions, opinions and guidelines of the Center for Disease Control of the United States Department of Health and Human Services which relate to the spread of infectious diseases and any regulations which may be adopted by this Board which relate to controlling the spread of infectious diseases.
Sec. 19-311. Minimum standards for prevention of certain communicable diseases in commercial premises.
No person shall occupy any commercial building, structure, premises, or portion or part thereof, which does not comply with the following requirements:
(a.) For the prevention of the spread of sexually transmitted disease, no partitions between subdivisions of a room, portion or part of a building, structure or premises may have an aperture which is designed or otherwise constructed to encourage sexual activity between persons on either side of the partition.
(b.) No booths, stalls, or partitioned portions of a room, or individual rooms, used for the viewing of motion pictures or other forms of entertainment, shall have doors, curtains or portal partitions, but all such booths, stalls, partitioned portions of a room, or individual rooms so used shall have at least one side open to an adjacent public room so that the area inside is visible to persons in the adjacent public room. All such described areas shall be lighted in such a manner that the persons in the areas used for viewing motion pictures or other forms of entertainment are visible from the adjacent public rooms, but such lighting shall not be of such intensity as to prevent the viewing of the motion pictures or other offered entertainment.
(c.) No commercial building, structure or premises shall be so constructed that private rooms or accommodations can be offered to patrons of that business operated therein if:
(1.) The building, structure or premises is in violation of Sec. 19-309, above; and
(2.) The building, structure or premises is not a validly operating hotel, motel, apartment complex or condominium.
APPENDIX B
SECTION 19-311(b):
(1) The words “booth, stalls, partitioned portions of a room or individual rooms” mean such enclosures as are specifically offered to the public or members of that establishment for hire or for a fee as part of a business operated on the premises which offers as part of its business the entertainment to be viewed within the enclosure; which shall include, without limitation, such enclosures wherein the entertainment is dispensed for a fee, but a fee is not charged for mere access to the enclosure.
(2) The words “booths, stalls, partitioned portions of a room or individual rooms” do not mean such enclosures that are private offices used by the owners, managers or persons employed on the premises for attending to the tasks of their employment, which enclosures are not held out to the pub-lie or members of the establishment for hire or for a fee or for the purpose of viewing entertainment for a fee, and are not open to any persons other than employees.
(3) The words “doors, curtains or portal partitions” mean full, complete, nontransparent closure devices through which one cannot see or view the activity taking place within the enclosure.
(4) The words “open to an adjacent public room so that the area inside is visible to persons in the adjacent public room” shall mean either the absence of any “door, curtain or portal partition” or a door or other device which is made of clear, transparent material such as glass, plexiglass or other such material meeting building code and safety standards, extending from the floor to the top of the door frame, exclusive of the door or device framing itself, so that the activity inside the enclosure may be viewed or seen by persons outside the enclosure.
. For the sake of clarity and simplicity we will refer to all plaintiffs and plaintiffs-appellants as "Berg."
. The substance of the testimony, given at a hearing before HHC concerning the adoption of the ordinance, was before the district court in the form of affidavits (in opposition to Berg’s motion for summary judgment) by persons who recounted the testimony they had given. Additional background information came from the "legislative finding” by HHC (Appendix A) regarding the ordinance.
.High-risk sexual activity is defined in § 7-402(b) of the ordinance as fellatio and anal intercourse.
. In further support of the argument that the ordinance constitutes an impermissible prior restraint, Berg asserts that the ordinance will have a “chilling effect" on those wishing to view entertainment behind closed doors. In other words, Berg contends that some people will choose not to watch certain entertainment at all rather than to do so in public — or at least without a door. This privacy-based argument is without merit. Cf. Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1248 (9th Cir.1982). Beyond that, there is no evidence that such a “chilling effect” will result. Compare Doe v. City of Minneapolis, 693 F.Supp. 774, 778 (D.Minn.1988) (affidavits submitted asserting that removal of doors would have such a "chilling effect”). In an affidavit attached to the complaint, Berg asserted only that the ordinance infringed upon his privacy rights because it could require the removal of his office door. This, however, is a distinct privacy interest from his patrons’. Moreover, the regulations specifically provide that the ordinance is inapplicable to private offices, thus making moot Berg’s privacy claim.
. As we have explained elsewhere, the "ample alternative channels” factor of the time, place, and manner analysis differs from the "less restrictive alternatives” prong of the "narrowly tailored interest” factor. Wisconsin Action Coalition v. City of Kenosha, 767 F.2d 1248, 1254 n. 3 (7th Cir.1985).
. The Fourth Circuit’s reasoning was in connection with the final factor of the time, place, and manner analysis as articulated in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed. 2d 672 (1968), namely, that the restriction on First Amendment interests be no greater than is essential to achieve the interest advanced by the government. Wall Distributors, Inc., 782 F.2d at 1170. This is completely consistent with our "less restrictive alternative” factor. City of Watseka, 796 F.2d at 1554 (citing U.S. v. O'Brien ).
Question: This question concerns the first listed respondent. 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:
|
sc_adminaction_is
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider 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.
HOWARD DELIVERY SERVICE, INC., et al. v. ZURICH AMERICAN INSURANCE CO.
No. 05-128.
Argued March 21, 2006
Decided June 15, 2006
Paul F. Strain argued the cause for petitioners. On the briefs were Richard M. Francis, Heather G. Harlan, Lawrence A. Katz, and Mitchell Y. Mirviss.
Donald B. Verrilli, Jr., argued the cause for respondent. With him on the brief were William M. Hohengarten, Elaine J. Goldenberg, Barbara S. Steiner, Daniel R. Murray, Margaret M. Anderson, Hugh S. Balsam, and Karen Lee Turner.
Donald J. Capuano and John M. Mclntire filed a brief for the National Coordinating Committee for Multiemployer Plans as amicus curiae urging reversal.
G. Eric Brunstad, Jr., Rheba Rutkowski, and William C. Heuer filed a brief for the American Home Assurance Co. et al. as amici curiae urging affirmance.
Justice Ginsburg
delivered the opinion of the Court.
The Bankruptcy Code accords a priority, among unsecured creditors’ claims, for unpaid “wages, salaries, or commissions,” 11 U. S. C. § 507(a)(4)(A), and for unpaid contributions to “an employee benefit plan,” § 507(a)(5). It is uncontested here that § 507(a)(5) covers fringe benefits that complete a pay package — typically pension plans, and group health, life, and disability insurance — whether unilaterally provided by an employer or the result of collective bargaining. This case presents the question whether the § 507(a)(5) priority also encompasses claims for unpaid premiums on a policy purchased by an employer to cover its workers’ compensation liability. We hold that premiums owed by an employer to a workers’ compensation carrier do not fit within § 507(a)(5).
Workers’ compensation laws ensure that workers will be compensated for work-related injuries whether or not negligence of the employer contributed to the injury. To that extent, arrangements for the payment of compensation awards might be typed “employee benefit plants].” On the other hand, statutorily prescribed workers’ compensation regimes do not run exclusively to the employees’ benefit. In this regard, they differ from privately ordered, employer-funded pension and welfare plans that, together with wages, remunerate employees for services rendered. Employers, too, gain from workers’ compensation prescriptions. In exchange for no-fault liability, employers gain immunity from tort actions that might yield damages many times higher than awards payable under workers’ compensation schedules. Although the question is close, we conclude that premiums paid for workers’ compensation insurance are more appropriately bracketed with premiums paid for other liability insurance, e.g., motor vehicle, fire, or theft insurance, than with contributions made to secure employee retirement, health, and disability benefits.
In holding that claims for workers’ compensation insurance premiums do not qualify for § 507(a)(5). priority, we are mindful that the Bankruptcy Code aims, in the main, to secure equal distribution among creditors. See Kothe v. R. C. Taylor Trust, 280 U. S. 224, 227 (1930); Kuehner v. Irving Trust Co., 299 U. S. 445, 451 (1937). We take into account, as well, the complementary principle that preferential treatment of a class of creditors is in order only when clearly authorized by Congress. See Nathanson v. NLRB, 344 U. S. 25, 29 (1952); United States v. Embassy Restaurant, Inc., 359 U. S. 29, 31 (1959).
I
Petitioner Howard Delivery Service, Inc. (Howard), for many years owned and operated a freight trucking business. Howard employed as many as 480 workers and operated in about a dozen States. Each of those States required Howard to maintain workers’ compensation coverage to secure its employees’ receipt of health, disability, and death benefits in the event of on-the-job accidents. Howard contracted with Zurich to provide this insurance for Howard’s operations in ten States.
On January 30, 2002, Howard filed a Chapter 11 bankruptcy petition. Zurich filed an unsecured creditor’s claim in that proceeding, seeking priority status for some $400,000 in unpaid workers’ compensation premiums. In an amended proof of claim, Zurich asserted that these unpaid premiums qualified as “[(Contributions to an employee benefit plan” entitled to priority under § 507(a)(5). App. 32a. The Bankruptcy Court denied priority status to Zurich’s claim, reasoning that the overdue premiums do not qualify as bargained-for benefits furnished in lieu of increased wages, hence they fall outside § 507(a)(5)’s compass. App. to Pet. for Cert. 51a-57a. The District Court affirmed, similarly determining that unpaid workers’ compensation premiums do not share the priority provided for unpaid contributions to employee pension and health plans. Id., at 39a-50a.
The Court of Appeals for the Fourth Circuit reversed 2 to 1 in a per curiam opinion. 403 F. 3d 228 (2005). The judges in the majority, however, disagreed on the rationale. Judge King concluded that § 507(a)(5) unambiguously accorded priority status to claims for unpaid workers’ compensation premiums. Id., at 237. Judge Shedd, concurring in the judgment, found the § 507(a)(5) phrase “employee benefit plan” ambiguous. Looking to legislative history, he concluded that Congress likely intended to give past due workers’ compensation premiums priority status. Id., at 238-239. In dissent, Judge Niemeyer, like Judge King, relied on the “plain meaning” of § 507(a)(5), but read the provision unequivocally to deny priority status to an insurer’s claim for unpaid workers’ compensation premiums. Id., at 241-244.
We granted certiorari, 546 U. S. 1002 (2005), to resolve a split among the Circuits concerning the priority status of premiums owed by a bankrupt employer to a workers’ compensation carrier. Compare In re Birmingham-Nashville Express, Inc., 224 F. 3d 511, 517 (CA6 2000) (denying priority status to unpaid workers’ compensation premiums), In re Southern Star Foods, Inc., 144 F. 3d 712, 717 (CA10 1998) (same), and In re HLM Corp., 62 F. 3d 224, 226-227 (CA8 1995) (same), with Employers Ins. of Wausau v. Plaid Pantries, Inc., 10 F. 3d 605, 607 (CA9 1993) (according priority status), and 403 F. 3d, at 229 (case below) (same).
II
Adjoining subsections of the Bankruptcy Code, § 507(a)(4) and (5), are centrally involved in this case. Subsections 507(a)(4) and (5) currently provide:
“(a) The following expenses and claims have priority in the following order:
“(4) Fourth, allowed unsecured claims ... for—
“(A) wages, salaries, or commissions, including vacation, severance, and sick leave pay earned by an individual....
“(5) Fifth, allowed unsecured claims for contributions to an employee benefit plan—
“(A) arising from services rendered within 180 days before the date of the filing of the [bankruptcy] petition or the date of the cessation of the debtor’s business, whichever occurs first. . . .” 11 U. S. C. §507.
Two decisions of this Court, United States v. Embassy Restaurant, Inc., 359 U. S. 29 (1959), and Joint Industry Bd. of Elec. Industry v. United States, 391 U. S. 224 (1968), prompted the enactment of § 507(a)(5). Embassy Restaurant concerned a provision of the 1898 Bankruptcy Act that granted priority status to “wages” but said nothing of “employee benefits plans” or anything similar. 11 U. S. C. § 104(a)(2) (1952 ed., Supp. V; repealed 1978). We held that a debtor’s unpaid contributions to a union welfare plan — which provided life insurance, weekly sick benefits, hospital and surgical benefits, and other advantages — did not qualify within the priority for unpaid “wages.” 359 U. S., at 29-35. In Joint Industry Bd., we followed Embassy Restaurant and held that an employer’s bargained-for contributions to an employees’ annuity plan did not qualify as “wages” entitled to priority status. 391 U. S., at 228-229.
To provide a priority for fringe benefits of the kind at issue in Embassy Restaurant and Joint Industry Bd., Congress added what is now § 507(a)(5) when it amended the Bankruptcy Act in 1978. See H. R. Rep. No. 95-595, p. 187 (1977) (hereinafter H. R. Rep.) (explaining that the amendment covers “health insurance programs, life insurance plans, pension funds, and all other forms of employee compensation that [are] not in the form of wages”); S. Rep. No. 95-989, p. 69 (1978). Notably, Congress did not enlarge the “wages, salaries, [and] commissions” priority, § 507(a)(4), to include fringe benefits. Instead, Congress created a new priority for such benefits, one step lower than the wage priority. The new provision, currently contained in § 507(a)(5), allows the provider of an employee benefit plan to recover unpaid premiums — albeit only after the employees’ claims for “wages, salaries, or commissions” have been paid. § 507(a)(4).
Beyond genuine debate, the main office of § 507(a)(5) is to capture portions of employee compensation for services rendered not covered by § 507(a)(4). Cf. Embassy Restaurant, 359 U. S., at 35; Joint Industry Bd., 391 U. S., at 228-229 (both emphasizing Congress’ prerogative in this regard). The current Code’s juxtaposition of the wages and employee benefit plan priorities manifests Congress’ comprehension that fringe benefits generally complement, or “substitute” for, hourly pay. See H. R. Rep., at 357 (noting “the realities of labor contract negotiations, under which wage demands are often reduced if adequate fringe benefits are substituted”); id., at 187 (“[T]o ignore the reality of collective bargaining that often trades wage dollars for fringe benefits does a severe disservice to those working for a failing enterprise.”); In re Saco Local Development Corp., 711 F. 2d 441, 449 (CA1 1983) (majority opinion of Breyer, J.) (substitution of fringe benefits for wages “can normally be assumed, unless the employer is a philanthropist”).
Congress tightened the linkage of subsections (a)(4) and (a)(5) by imposing a combined cap on the two priorities, currently set at $10,000 per employee. See § 507(a)(5)(B). Because (a)(4) has a higher priority status, all claims for wages are paid first, up to the $10,000 limit; claims under (a)(5) for contributions to employee benefit plans can be recovered next up to the remainder of the $10,000 ceiling. No other subsections of §507 are joined together by a common cap in this way.
Putting aside the clues provided by Embassy Restaurant, Joint Industry Bd., and the textual ties binding § 507(a)(4) and (5), we recognize that Congress left undefined the § 507(a)(5) terms: “contributions to an employee benefit plan ... arising from services rendered within 180 days before the date of the filing of the [bankruptcy] petition.” (Emphasis added.) Maintaining that subsection (a)(5) covers more than wage substitutes of the kind at issue in Embassy Restaurant and Joint Industry Bd., Zurich urges the Court to borrow the encompassing definition of employee benefit plan contained in the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. § 1001 et seq. (2000 ed. and Supp. III). See §1002(1) (term “employee welfare benefit plan” means, inter alia, “any plan, fund, or program [that provides] its participants or their beneficiaries, through the purchase of insurance or otherwise, . . . benefits in the event of sickness, accident, disability, death or unemployment”); § 1002(3) (term “employee benefit plan . . . means an employee welfare benefit plan or an employee pension benefit plan or a plan which is both an employee welfare benefit plan and an employee pension benefit plan”); cf. § 1003(b)(3) (excluding plans “maintained solely for the purpose of complying with applicable workers’] compensation laws or unemployment compensation or disability insurance laws”). The dissent endorses this borrowing. See post, at 676.
Federal courts have questioned whether ERISA is appropriately used to fill in blanks in a Bankruptcy Code provision, and the panel below parted ways on this issue. See 403 F. 3d, at 235, n. 9 (King, J., concurring in judgment) (“declin[ing] to rely upon the ERISA definition”); id., at 239-241 (Shedd, J., concurring in judgment) (reading legislative history to indicate that Congress intended “‘employee benefit plan’ in the bankruptcy priority provision to have the same meaning that [the term] has in ERISA”); id., at 245 (Niemeyer, J., dissenting) (maintaining that ERISA definition is inapt in Bankruptcy Code priority context); cf. Birmingham-Nashville Express, 224 F. 3d, at 516-517 (noting division of opinion but concluding that decisions rejecting incorporation of ERISA’s “employee benefit plan” definition into § 507(a)(5) “ha[ve] the better of the argument”); HLM Corp., 62 F. 3d, at 226 (“[T]he ERISA definition and associated court guidelines were designed to effectuate the purpose of ERISA, not the Bankruptcy Code.” (internal quotation marks omitted)); Southern Star Foods, 144 F. 3d, at 714 (same). Compare Brief for American Home Assurance Company et al. as Amici Curiae 17-25 (legislative history suggests Congress intended to incorporate ERISA definition) with Brief for National Coordinating Committee for Multiemployer Plans as Amicus Curiae 22-27, and n. 21 (legislative history suggests Congress did not intend to incorporate ERISA definition).
ERISA’s omnibus definition does show, at least, that the term “employee welfare benefit plan” is susceptible of a construction that would include workers’ compensation plans. That Act’s signals are mixed, however, for 29 U. S. C. § 1003(b)(3) specifically exempts from ERISA’s coverage the genre of plan here at issue, i. e., one “maintained solely for the purpose of complying with applicable workers’] compensation laws.” The § 1003(b)(3) exemption strengthens our resistance to Zurich’s argument. We follow the lead of an earlier decision, United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 219 (1996), in noting that “[h]ere and there in the Bankruptcy Code Congress has included specific directions that establish the significance for bankruptcy law of a term used elsewhere in the federal statutes.” Id., at 219-220. No such directions are contained in § 507(a)(5), and we have no warrant to write them into the text.
This case turns, we hold, not on a definition borrowed from a statute designed without bankruptcy in mind, but on the essential character of workers’ compensation regimes. Unlike pension provisions or group life, health, and disability insurance plans — negotiated or granted as pay supplements or substitutes — workers’ compensation prescriptions have a dominant employer-oriented thrust: They modify, or substitute for, the common-law tort liability to which employers were exposed for work-related accidents. See 6 A. Larson & L. Larson, Workers’ Compensation Law §100.01[1], pp. 100-2 to 100-3 (2005) (hereinafter Larson & Larson); 4 J. Lee & B. Lindahl, Modern Tort Law: Liability and Litigation §43:25, pp. 43-45 to 43-46 (2d ed. 2003). As typically explained:
“The invention of workers compensation as it has existed in this country since about 1910 involves a classic social trade-off or, to use a Latin term, a quid pro quo. . . . What is given to the injured employee is the right to receive certain limited benefits regardless of fault, that is, even in cases in which the employee is partially or entirely at fault, or when there is no fault on anyone’s part. What is taken away is the employee’s right to recover full tort damages, including damages for pain and suffering, in cases in which there is fault on the employer’s part.” P. Lencsis, Workers Compensation: A Reference and Guide 9 (1998) (hereinafter Lencsis).
Workers’ compensation regimes thus provide something for employees — they ensure limited fixed payments for on-the-job injuries — and something for employers — they remove the risk of large judgments and heavy costs generated by tort litigation. See 6 Larson & Larson §100.03[1], at 100-11 (“[Workers’ compensation] relieves the employer not only of common-law tort liability, but also of statutory liability under virtually all state statutes, as well as of liability in contract and in admiralty, for an injury covered by the compensation act.” (footnote omitted)); Lubove, Workmen’s Compensation and the Prerogatives of Voluntarism, 8 Lab. Hist. 254, 258-262 (Fall 1967) (workers’ compensation programs were adopted by nearly every State in large part because employers anticipated significant benefits from the programs; other programs workers’ groups sought to make mandatory — notably, health insurance — were not similarly embraced). No such tradeoff is involved in fringe benefit plans that augment each covered worker’s hourly pay.
Employer-sponsored pension plans, and group health or life insurance plans, characteristically insure the employee (or his survivor) only. In contrast, workers’ compensation insurance, in common with other liability insurance in this regard, e. g., fire, theft, and motor vehicle insurance, shield the insured enterprise: Workers’ compensation policies both protect the employer-policyholder from liability in tort, and cover its obligation to pay workers’ compensation benefits. See In re HLM Corp., 165 B. R. 38, 41 (Bkrtcy. Ct. Minn. 1994). When an employer fails to secure workers’ compensation coverage, or loses coverage for nonpayment of premiums, an affected employee’s remedy would not lie in a suit for premiums that should have been paid to a compensation carrier. Instead, employees who sustain work-related injuries would commonly have recourse to a state-maintained fund. See, e. g., Minn. Stat. § 176.183, subd. 1 (2004); N. Y. Work. Comp. Law Ann. § 26-a (West Supp. 2006). Or, in lieu of the limited benefits obtainable from a state fund under workers’ compensation schedules, the injured employee might be authorized to pursue the larger recoveries successful tort litigation ordinarily yields. See, e. g., id., § 11 (West 2005); W. Va. Code §23-2-8 (Lexis 2005); Lencsis 67.
Further distancing workers’ compensation arrangements from bargained-for or voluntarily accorded fringe benefits, nearly all States, with limited exceptions, require employers to participate in their workers’ compensation systems. See, e. g., Ill. Comp. Stat., ch. 820, § 305/4 (West 2004); Minn. Stat. § 176.181, subd. 2 (2004); U. S. Dept, of Labor, Office of Workers’ Compensation, State Workers’ Compensation Laws, Table 1: Type of Law and Insurance Requirements for Private Employment (2005), online at http://www.dol.gov/esa/ regs/statutes/owcp/stwclaw/tables-pdf/tablel.pdf (as visited June 13, 2006, and available in Clerk of Court’s case file). An employer who fails to secure the mandatory coverage is subject to substantial penalties, even criminal liability. We do not suggest, as the dissent hypothesizes, see post, at 674, that a compensation carrier would gain § 507(a)(5) priority for unpaid premiums in States where workers’ compensation coverage is elective. Nor do we suggest that wage surrogates or supplements, e. g., pension and health benefits plans, would lose protection under § 507(a)(5) if a State were to mandate them. We simply count it a factor relevant to our assessment that States overwhelmingly prescribe and regulate insurance coverage for on-the-job accidents, while commonly leaving pension, health, and life insurance plans to private ordering.
We note that when the Fourth Circuit confronted a claim for workers’ compensation premiums owed not to a private insurer but to a state fund, that court ranked the premiums as “excise taxes” qualifying for bankruptcy priority under what is now § 507(a)(8)(E). See New Neighborhoods, Inc. v. West Virginia Workers’ Comp. Fund, 886 F. 2d 714, 718-720 (1989). See also In re Suburban Motor Freight, Inc., 998 F. 2d 338, 342 (CA6 1993) (“Where a State ‘compels] the payment’ of ‘involuntary exactions, regardless of name,’ and where such payment is universally applicable to similarly situated persons or firms, these payments are taxes for bankruptcy purposes.” (quoting New Neighborhoods, 886 F. 2d, at 718-719; alteration in original)); LeRoy et al., Workers’ Compensation in Bankruptcy: How Do the Parties Fare? 24 Tort & Ins. L. J. 593, 623-624 (1989) (describing disagreement among courts on whether payments to state-run workers’ compensation funds qualify as excise taxes under § 507(a)(8)). We express no view on the § 507(a)(8)(E) issue presented in New Neighborhoods. We venture only this observation: It is common for Congress to prefer Government creditors over private creditors, see Birmingham-Nashville Express, 224 F. 3d, at 517-518; it would be anomalous, however, to advance Zurich’s claim to level (a)(5) while leaving state-fund creditors at level (a)(8).
Zurich argues that according its claim an (a)(5) priority will give workers’ compensation carriers an incentive to continue coverage of a failing enterprise, thus promoting rehabilitation of the business. It may be doubted whether the projected incentive would outweigh competing financial pressure to pull the plug swiftly on an insolvent policyholder, and thereby contain potential losses. An insurer undertakes to pay the scheduled benefits to workers injured on the job while the policy is in effect. In the case of serious injuries, however, benefits may remain payable years after termination of coverage. See 1 Larson & Larson §§ 10.02-10.03, at 10-3 to 10-7; Lencsis 51-52. While cancellation relieves the insurer from responsibility for future injuries, the insurer cannot escape the obligation to continue paying benefits for enduring maladies or disabilities, even though no premiums are paid by the former policyholder. An insurer would likely weigh in the balance the risk of incurring fresh obligations of long duration were it to continue insuring employers unable to pay currently for coverage. That consideration might well be controlling even with an assurance of priority status, for there is no guarantee that creditors accorded preferred positions will in fact be paid. See Tr. of Oral Arg. 31-32 (“[A]s soon as they smell bankruptcy, they’re going to pull the plug anyway.” (SCALIA, J.)); LeRoy, supra, at 596 (noting “general reluctance on the part of private insurers to provide debtors with the necessary Workers’ Compensation coverage”).
Rather than speculating on how workers’ compensation insurers might react were they to be granted an (a)(5) priority, we are guided in reaching our decision by the equal distribution objective underlying the Bankruptcy Code, and the corollary principle that provisions allowing preferences must be tightly construed. See Kothe, 280 U. S., at 227 (“The broad purpose of the Bankruptcy Act is to bring about an equitable distribution of the bankrupt’s estate ....”); Nathanson, 344 U. S., at 29 (“The theme of the Bankruptcy Act is 'equality of distribution’ . . . ; and if one claimant is to be preferred over others, the purpose should be clear from the statute.” (quoting Sampsell v. Imperial Paper & Color Corp., 313 U. S. 215, 219 (1941))); H. R. Rep., at 186; 2 Collier Bankruptcy Manual ¶ 507.01, p. 507-4 (rev. 3d ed. 2005) (“[P]riorities under the Code are to be narrowly construed.”).
Every claim granted priority status reduces the funds available to general unsecured creditors and may diminish the recovery of other claimants qualifying for equal or lesser priorities. See Joint Industry Bd., 391 U. S., at 228-229. “To give priority to a claimant not clearly entitled thereto is not only inconsistent with the policy of equality of distribution; it dilutes the value of the priority for those creditors Congress intended to prefer.” In re Mammoth Mart, Inc., 536 F. 2d 950, 953 (CA1 1976). Cases like Zurich’s are illustrative. The Bankruptcy Code caps the amount recoverable for contributions to employee benefit plans. See supra, at 659-660. Opening the (a)(5) priority to workers’ compensation carriers could shrink the amount available to cover unpaid contributions to plans paradigmatically qualifying as wage surrogates, prime among them, pension and health benefit plans.
In sum, we find it far from clear that an employer’s liability to provide workers’ compensation coverage fits the § 507(a)(5) category “contributions to an employee benefit plan ... arising from services rendered.” Weighing against such categorization, workers’ compensation does not compensate employees for work performed, but instead, for on-the-job injuries incurred; workers’ compensation regimes substitute not for wage payments, but for tort liability. Any doubt concerning the appropriate characterization, we conclude, is best resolved in accord with the Bankruptcy Code’s equal distribution aim. We therefore reject the expanded interpretation Zurich invites. Unless and until Congress otherwise directs, we hold that carriers’ claims for unpaid workers’ compensation premiums remain outside the priority allowed by § 507(a)(5).
* * *
For the reasons stated, the judgment of the United States Court of Appeals for the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
All references to provisions of the Bankruptcy Code use the current numbering. At the time respondent Zurich American Insurance Company (Zurich) claimed priority treatment for unpaid workers’ compensation premiums, the relevant subsections were numbered (a)(3) (wages) and (a)(4) (employee benefit plans). The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. 109-8, §212(2), 119 Stat. 51, altered the priority list so that (a)(3) became (a)(4), and (a)(4) became (a)(5). The only other statutory change relevant here concerns the dollar amount accorded priority status under current § 507(a)(4) and (a)(5). When Zurich filed its proof of claim, the total sum allowed under those two subsections was $4,650 for each employee, see note following 11 U. S. C. § 104 (2000 ed., Supp. III). That ceiling has since been raised, pursuant to § 104, to $10,000 per employee, 11 U. S. C. A. § 507(a)(5)(B)® (Supp. 2006).
In its initial proof of claim, Zurich did not check the box marked “Contributions to an employee benefit plan,” but instead checked a box marked “Other,” and wrote in “Administrative Expense — Insurance Premiums.” App. 22a, 30a. Zurich does not argue here that the workers’ compensation premiums owed by Howard qualify as administrative expenses entitled to priority under § 507(a)(2).
We have jurisdiction of this case, as did the Court of Appeals, because the District Court’s ruling qualifies as a final decision under 28 U. S. C. § 158(d). See 403 F. 3d, at 231, and n. 6 (District Court’s ruling effectively concluded the dispute between Zurich and Howard, for the adverse decision rendered Zurich’s claim valueless and Zurich agreed to withdraw the claim if it failed to prevail on appeal). See also In re Saco Local Development Corp., 711 F. 2d 441, 444 (CA1 1983) (majority opinion of Breyer, J.) (“Congress has long provided that orders in bankruptcy cases may be immediately appealed if they finally dispose of discrete disputes within the larger case — and in particular, it has long provided that orders finally settling creditors’ claims are separately appealable.”).
Section 507(a)(5)(B) provides:
“(a) The following expenses and claims have priority in the following order:
“(5) Fifth, allowed unsecured claims for contributions to an employee benefit plan—
“(B) for each such plan, to the extent of—
“(i) the number of employees covered by each such plan multiplied by $10,000; less
“(ii) the aggregate amount paid to such employees under paragraph (4) of this subsection, plus the aggregate amount paid by the estate on behalf of such employees to any other employee benefit plan.” 11 U.S. C. §507.
Congress also excluded most workers’ compensation benefits from the purview of the Davis-Baeon Act, 40 U. S. C. § 3141(2) (2000 ed., Supp. III), a measure that fixes a floor under wages on Government projects. The Davis-Baeon Act incorporates “bona fide fringe benefits,” broadly defined, into prevailing wage determinations, but specifically excludes benefits contractors are required to provide under federal, state, or local law. § 3141(2)(B).
Providing health care to workers fosters a healthy and happy work force, and a contented work force benefits employers. The dissent suggests this as a reason to rank workers’ compensation insurance with health and pension plans for bankruptcy priority purposes. See post, at 672. But the benefit employers gain from providing health and pension plans for their employees is of a secondary order; indeed, under the dissent’s logic, wages could be said to “benefit” the employer because they ensure that employees come to work, can afford transportation to the jobsite, etc. These benefits redound to the employer reflexively, as a consequence of the benefit to the employee. Workers’ compensation insurance, by contrast, directly benefits insured employers by eliminating their tort liability for workplace accidents.
Saco Local Development Corp., 711 F. 2d, at 448-449, we note, is not at odds with our conclusion that unpaid workers’ compensation premiums do not qualify for priority status. The First Circuit held in Saco that a group life, health, and disability insurance plan fit within § 507(a)(5), though the benefit package was unilaterally provided by the employer, and not installed pursuant to collective bargaining. Wage surrogates, then-Judge Breyer explained, need not be negotiated to qualify under § 507(a)(5) as “employee benefit plants],” for “Congress’ object in enacting [that subsection] was to extend the 1898 Act’s wage priority to new forms of compensation, such as insurance and other fringe benefits.” Id., at 449. Saco did not involve workers’ compensation regimes, and the First Circuit expressed no opinion on them.
The state fund in New Neighborhoods, it appears, did not urge that claims for unpaid workers’ compensation premiums qualify for the higher (a)(5) priority. The Fourth Circuit’s opinion in that case, however, suggests that the court assumed a private compensation carrier would be accorded no priority. See 886 F. 2d, at 720 (under court’s holding, “a state agency is given, as an insurer, priority in bankruptcy when a private insurer is not”).
The dissenting opinion nowhere homes in on the reality that including amounts owed to workers’ compensation carriers risks diminishing funds available to cover contributions to workers’ pension and "health-care plans.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_geniss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. 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".
King HAIRSTON, Appellee, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Appellant.
No. 73-2216.
United States Court of Appeals, Fourth Circuit.
Argued June 4, 1974.
Decided July 3, 1974.
Robert E. Shepherd, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen. of Virginia, on brief), for appellant.
Gordon M. Kent, Altavista, Va. [court-appointed counsel] (Kent & Kent, Altavista, Va., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges, sitting in banc.
BUTZNER, Circuit Judge:
The sole issue presented by this appeal is whether a Virginia prisoner, King Hairston, is entitled to a writ of habeas corpus on the basis of his complaint that black persons were systematically excluded from his grand and petit juries in 1942. Hairston did not raise this issue at his trial. He initially alleged it in his state habeas proceeding. We previously found that Hairston had established a prima facie case of systematic exclusion, and we remanded the case for an evidentiary hearing to afford the state the opportunity to present rebuttal evidence. The district court then ruled that Hairston was entitled to the writ, and a panel of this court affirmed on the opinion of the district court.
We subsequently withdrew the panel decision, and reheard the .case in banc to determine whether McNeil v. North Carolina, 368 F.2d 313 (4th Cir. 1966), should be overruled because of two recent decisions of the Supreme Court, Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), and Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). In McNeil, we held that a prisoner who had not complied with state law by challenging the jury before his plea was not barred by the state rule of waiver from raising the issue of systematic exclusion in collateral proceedings. In contrast to McNeil, the Supreme Court held in Davis that a federal prisoner waives objection to the composition of the grand jury if he does not raise the issue before entry of his plea as required by Federal Rule of Criminal Procedure 12(b)(2). Of course, pursuant to the rule, a court may grant relief from the waiver. In Tollett, the Court held that a state prisoner who pleaded guilty could not attack the composition of the grand jury in a collateral proceeding. However, the Court reiterated that it was still an open question whether systematic racial exclusion in the selection of a grand jury could be raised in a federal habeas corpus action after trial on a plea of not guilty. 411 U.S. 260 n.1, 93 S.Ct. 1602. Thus, the issue posed by McNeil has not yet been definitively decided by the Supreme Court, but at least one intermediate court has found an apt analogy in Davis. See, e. g., Rivera v. Wainwright, 488 F.2d 275 (5th Cir. 1974).
During the course of the in banc hearing, it became apparent that the state habeas court had considered the merits of Hairston’s allegation and that it had not relied on the waiver mandated by the Virginia statute which dealt with challenges to juries at the time of Hair-ston’s trial. In this posture of the case, the constitutionality of the composition of the jury is before us as a litigable issue. Cf. Coleman v. Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964). The appeal, therefore, presents an inappropriate occasion for reconsidering McNeil, and we reserve the question of its viability for another day.
On the merits of Hairston’s claim, the district judge’s finding of facts and application of law are unassailable. Accordingly, the judgment is affirmed.
. Hairston v. Cox, 459 F.2d 1382 (4th Cir. 1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2266, 36 L.Ed.2d 963 (1973).
. Hairston v. Cox, 361 F.Supp. 1180 (W.D.Va. 1973).
. Hairston v. Cox, No. 73-2216 (4th Cir., March 20, 1974) (opinion withdrawn).
. Accord, Parker v. Boss, 470 F.2d 1092 (4th Cir. 1972).
. Virginia Code Ann. §§ 4895, 6002 (1936). Virginia’s Rules of Criminal Practice and Procedure, which became effective January 1, 1972, incorporate many provisions of the Federal Rules of Criminal Procedure. The provisions of Virginia Rule 3A:12 (c)(2) and (3) pertaining to motions before trial, waiver of objections, and relief from waiver are substantially similar to Federal Rule 12(b)(2).
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_genresp1
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
In re CHICAGO & N. W. RY. CO. (eighteen cases).
Nos. 7561-7569, 7724, 7767-7772, 7740, 7741.
Circuit Court of Appeals, Seventh Circuit.
Feb. 9, 1942.
Affirming decree 35 F.Supp. 230.
Luther M. Walter and Helen W. Munsert, both of Chicago, Ill., Robert K. Stuart, of Evanston, Ill., Ferris E. Hurd, of Chicago, Ill., Edward K. Hanlon, of New York City, Meyer Abrams, Norman Asher, Edward C. Kohlsaat, and Harry N. Wyatt, all of Chicago, Ill., John M. MacGregor, of New York City, R. C. Stevenson, of Chicago, Ill., John B. Marsh and Edward E. Watts, Jr., both of New York City, Walter H. Jacobs and Anthony L. Michel, both of Chicago, Ill., S. Pierce Browning, Jr., and Robert E. Houston, Jr., both of New York City, Anan Raymond, Robert Z. Hickman, Cyrus H. Adams, and James P. Dillie, all of Chicago, Ill., and Orrin G. Judd, of New York City, for appellants.
Kenneth F. Burgess, Douglas F. Smith, and Geo. Ragland, Jr., all of Chicago, Ill., McCready Sykes and Wm. A. Stewart, both of New York City, Wm. B. Hale, of Chicago, Ill., Fred N. Oliver and Willard P. Scott, both of New York City, Chas. M. Thomson, of Chicago, Ill., Edwin S. S. Sunderland, Thos. O’G. FitzGibbon, and Geo. John Miller, all of New York City, Henry F. Tenney, Roger R. Leech, and Lee Walker, all of Chicago, Ill., Russell L. Snodgrass, Cassius M. Clay, A. Marvin Braverman, and James W. Close, all of Washington, D. C., Herbert Friedlich, of Chicago, Ill., Leonard D. Adkins and Alfred H. Phillips, both of New York City, and Wm. D. Kerr, of Chicago, Ill., for appellees.
Before EVANS and KERNER, Circuit Judges, and LINDLEY, District Judge.
EVANS, Circuit Judge.
These eighteen appeals arise out of the reorganization proceedings of the Chicago & North Western Railway Company, instituted pursuant to Section 77 of the Bankruptcy Act, 11 U.S.C.A. § 205. The Interstate Commerce Commission’s plan of reorganization has been accepted, with one exception, by more than two-thirds of the creditors, of each of the groups, who voted on the reorganization plan, and it has been confirmed by the District Court, after full hearing. We have the benefit of the District Court’s findings and opinion, In re Chicago & N. W. Ry. Co., D.C., 35 F.Supp. 230, and an elaborate and informative report by the Examiner of the I. C. C., as well as a complete discussion and ultimate findings by the Commission. The appeals are chiefly from the trial court’s orders of approval and confirmation of the plan of reorganization.
The Debtor operates in nine states, over 8,290.533 miles first main track and 13,047.-127 of all tracks. A subsidiary of the Debtor, the Chicago, St. Paul, Minneapolis & Omaha Railway Company, owns 1,577.171 miles of first main track and 2,438.047 miles of all tracks. It is operated and renders reports separately from Debtor but its lines complement those of Debtor.
The Debtor’s obligations, generally, comprehended seven divisional mortgages, two system mortgages, R. F. C., R. C. C., and bank loans, equipment trust obligations, and other miscellaneous indebtedness.
To give a succinct idea of the basic facts of this reorganization and the Debtor’s financial structure, this chart is appended:
The following is a brief description of the securities involved in this reorganization:
Milwaukee & State Line bonds, 3%% bonds of 1941, $2,500,000, a lien on 51 miles of double track main freight line between Chicago and Milwaukee, original cost of which was $3,870,817, and reproduction value of $3,574,820.
Manitowoc, Green Bay & North Western Ry., first mortgage, 3%% bonds of 1941, amounting to $3,750,000, a first lien on 113.5 miles of railroad in Wisconsin; original cost, $4,673,102, reproduction cost $4,-278,949.
St. Paul Eastern Grand Trunk Railway first mortgage, 4%% bonds of 1947, amounting to $1,120,000, first lien on 56.1 miles of track in Wisconsin, original cost, $1,212,352, reproduction cost, $1,161,111.
Milwaukee, Sparta & North Western first mortgage, 4% bonds of 1947, amounting to $15,000,000, are a first lien on 177.3 miles of track in Wisconsin; original cost of $15,405,431, and cost of reproduction new, $15,348,864.
DesPlaines Valley Railway first mortgage, 4%% bonds of 1947, amounting to $2,500,000, are a first lien on 19.7 miles of double track, and some equipment; the original cost was $2,921,237, and the cost of reproduction new, $2,884,955.
St. Louis, Peoria & North Western Ry. first mortgage, 5% bonds of 1945, amounting to $10,000,000, a first lien on 112 miles of track and equipment; the original cost was $10,787,269, and reproduction cost, $9,-803,745.
Sioux City & Pacific Rd. first mortgage, bonds matured 1936, amounting to $4,000,000, are a first lien on 118.2 miles of road, costing $4,932,716, and reproduction cost of $5,960,031.
The general mortgage bonds (varying from 3% to 5%), amounting to $132,-011,500 outstanding, and $23,896,000 pledged (total of $155,907,500) a first lien on 4,-876.1 miles of road and equipment. The original cost was $326,335,801, and the cost of reproduction, $359,264,801.
The First and Refunding Mortgage (4%-5%, 2037) amounting to $47,822,000 outstanding, and $65,615,000 pledged (total of $113,437,000) a first lien on 2,749.8 miles of road, and some equipment. The original cost was $103,806,572, and the cost of reproduction was $100,935,498.
Equipment obligations of $14,973,000 are outstanding, and an additional $117,000 pledged, and are first liens on equipment costing $63,414,791.
Serial Collateral Notes, 4%, to Public Works Administration, amounting to $1,-360,000, secured by $1,350,000 first mortgage bonds, and $50,000 capital stock of the Escanaba Co.
The 15-yr., 6%% bonds, matured in 1936, amounting to $14,775,000, secured by pledge of $17,730,000 of general mortgage 5% series E bonds of 1987.
The R. F. C. notes, maturing in 1936, amounting to $14,947,200, are secured by $101,813,800 principal amount of various debtor and other securities. Other notes to the R. F. C. which matured in 1935 and 1936 amounted to $27,302,933.
Bank Notes, 5%, matured in 1936, amounting to $4,439,690, were secured by $18,193,000 of principal amount of Debtor’s securities.
Railroad Credit Corporation notes, maturing in 1935 and 1936, amounting to $653,-681, were secured by $7,021,000 principal amount of Debtor’s securities.
Twenty-Year convertible 4%% Series A, bonds of 1949, amounting to $72,335,000, issued in 1929.
The preferred stock of Debtor, amounting to $22,395,000, and the common stock, amounting to $158,440,300.
The financial structure of Debtor is vexatiously involved. Its obligations, including interest, total $615,742,758. (Unpaid interest to January 1, 1939, amounted to $59,156,409 — of which $1,160,916 has since been paid.)- Its cost of reproduction new, less depreciation, plus land values, is $676,793,588. A valuation, based on earnings (including earnings of the Chicago, St. Paul, Minneapolis & Omaha Ry. Co.) capitalized at five percent, for the period 1926-1930, is $508,969,360; for the period 1931-1935, it is $159,324,640. The I. C. C. believed (and so found) the earnings for the normal prospective year to be $14,625,-000.
The confirmed plan of reorganization provided for a $450,000,000 capital structure comprehending:
$117,000,000 fixed interest debt
105.000. 000 contingent interest debt
107.000. 000 preferred stock
121.000. 000 common stock.
This would result in $3,382,079 fixed interest charges and $9,046,324 contingent interest charges — an annual total of $12,-428,403. The I. C. C. held there was no equity for the present common and preferred stockholders.
In brief, the confirmed plan of capital structure provides for: (1) undisturbed status of P. W. A. and Equipment obligations ; (2) new divisional mortgages for the “Des Plaines” and “Sioux City” lines, at 100% and accrued interest, but the interest rate of the former to be decreased from 4% to 4% and of the latter to be increased from 3y2 to 4%; (3) issuance of new First and General Mortgage 4% bonds on the system with 2%% fixed and 1%% contingent commutated interest, and the issuance of a Second Mortgage Convertible 4y2% income bonds; (4) issuance of new preferred and common stock.
These securities — the new general mortgage, the second mortgage, the preferred and common stock, were apportioned in varying percentages to the respective security holders.
There are three vital, determinative questions (and numerous less important questions) presented by this appeal.
(a) The finding, and' the sufficiency of the evidence to support it, that the common and preferred stock of the old company are without value.
(b) The sufficiency of the evidence to support the finding that the estimated future normal income of the Debtor will not exceed $14,625,000 and will not support a capitalization, on reorganization, in excess of $450,000,000.
(c) Tlie effect of the favorable vote of the creditors upon the objections advanced by mortgage trustees and others to the plan, and the alleged failure of the Commission to make necessary specific findings of values, which are required by the opinion in the case of Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 61 S.Ct. 675, 85 L.Ed. 982.
Other questions, but not so sharply pronounced in this case, as in the recent case of Chicago, Milwaukee & St. Paul Ry. reorganization, In re Chicago, M., St. P. & P. R. Co., 7 Cir., 124 F.2d 754, decided December 4, 1941, are: (a) The attacks on the fairness of the allocation of the securities among the various groups of lien holders. (b) The alleged preference shown the R. F. C. in the plan of reorganization, (c) The position of the so-called State Line Bonds, and the finding of the District Court as to the fairness of the plan as to these bondholders, (d) A consideration of the wisdom of selling the assets back of this mortgage.
In our approach to the approval (or rejection) of the plan which the I. C, C. has submitted, and which bears evidence of much study and thoughtful consideration of a mass of facts and figures, by this body, which is peculiarly well qualified to analyze and digest said statistics, we have assumed to occupy the role of guardian and umpire. We act as umpire or arbitrator so far as the sharply conflicting claims of different groups of bondholders are concerned. And we assume to act as guardians or trustees for the thousands of small security holders who, because their claims are small, could not be expected or required to go to Washington to present their claims, and protect them before the I. C. C., against the urge of groups which, before the I. C. C. and now before this Court, have insistently advanced and pressed their arguments in favor of larger allowances to their group members and smaller and less desired allocations to others.
It is unfortunate that this court may not have the benefit of advice of counsel appointed by it and representing all the interested parties, — the secured and unsecured creditors, the stockholders, and the public. As the law stands, counsel are limited in the scope of their employment.
True, we have had the advantage of helpful briefs by attorneys representing a large group of holders of bonds of different kinds, who have taken a broader view than could be expected from one who was employed to press the claims of a single group only. We are duly appreciative of this assistance. For, in a case where the assets are fixed in amount and not sufficient to pay all the secured creditors in full, the urge for a greater allowance to one must, necessarily, be at the expense of the allowance to another. In other words the sum of all claims — a, b, c, d, e, and f, etc., is X. Inasmuch as X is a fixed and unchangeable quantity, we cannot increase the amount represented by “a” without reducing the amount'represented by one or more of the other elements, b, c, d, e or f. It thus becomes apparent that before beginning our study of the details of the plan, we must ascertain and fix the amount represented by X. Dispute over it is at the bottom of all other conflicts.
Common and Preferred Stock. In as much as the outstanding obligations exceed $450,000,000, it follows that there is no equity for the holders of the old stock.
Unless the $450,000,000 figure can be raised, the common and preferred stockholders must be eliminated.
Vulnerability of the Commission’s figures must be limited to its finding that the probable income for the future normal year is $14,625,000. The importance of this link in the Commission’s finding seems to be fully appreciated by that body, for we have been benefited with compilations of charts and earnings which run the gamut of possibilities.
The following statement is made, of the earnings of the company for 1930-1940—
1930............... $22,837,630
1931....... 7,614,983
1932............... 2,384,574
1933............... 9,412,771
1934............... 8,356,854
1935............... 5,524,417
1936............... 9,060,616
1937............... 153,007 (deficit)
1938............... 1,053,247
1939............... 7,701,603
1940............... 11,675,027
Likewise, we have the earnings from 1913 to 1923, which are:
1913............... $20,382,666
1914............... 19,108,281
1915............... 19,393,742
1916............... 27,714,458
1917............... 23,762,324
1918............... 12,441,437
1919............... 12,678,750 (deficit)
1920............... 1,609,231
1921............... 6,651,136
1922............... 17,036,306
1923............... 15,843,375
Likewise, there are many facts and statistics showing the change from 1920 to 1930 and more particularly from 1930 to 1940. To illustrate, the following tables are submitted :
Debt Outstanding Inclusive Short Term Notes But Not The Collateral Pledged Thereunder.
December 31, 1919.......... $223,150,000
December 31, 1929.......... 351,646,400
July 1, 1935................. 384,963,420
December 31, 1938.......... 431,390,104
December 31, 1941.......... 469,518,043
Increase in Debt — $246,368,043, or 110.40%
Freight Traffic, Ton Miles.
(Thousands)
1920......................... 9,582,620
1929......................... 8,902,865
1935......................... 4,994,324
1938......................... 5,200,389
1939......................... 5,793,766
Decrease in Freight Traffic — 3,788,854 or 39.62%
Passenger Traffic (Passengers Carried One Mile).
(Thousands)
1920......................... 1,444,559
1929......................... 953,462
1935......................... 554,209
1938......................... 684,877
1939......................... 696,071'
Decrease in Passenger Traffic — 748,488, or 51.81%
The Commission found that the earnings of the normal prospective year are $14,-625,000. The approved plan provided for fixed interest obligations of $3,382,079, as follows:
The tables and charts which have been submitted in abundance, to show the income, estimated and required, the revenue trends, etc., are informative, but need not all be set forth. A study of them justifies the following conclusions:
The indebtedness of the debtor increased more than 110% in twenty-two years, 1919 to 1941.
The freight traffic decreased 39% in twenty years, 1920 to 1940.
The passenger traffic declined 51% during the same period.
There have been large annual deficiencies for more than a decade.
Had the debtor’s income available for interest (without payment of any Federal income tax) equaled $14,625,000, the sum which the Commission has estimated to be the income of the normal year of the future, it would have been insufficient to meet the interest charges during the last ten years. Deficits would have accumulated at a rate in excess of eight million dollars per year.
Fixed
Fixed interest obligations Principal Interest
Undisturbed obligations..,...............$ 12,698,000 $ 470,095
10-yr. serial note to R. C. C............ 663,000 26,520
.15-yr. serial note to banks............... 3,296,000(a) 82,400
15-yr. secured notes to R. F. C............ 25,000,000 (a) 625,000
Sioux City divisional bonds.............. 4,000,000 160,000
Des Plaines divisional bonds............. 2,500,000 100,000
First and Gen. mtge. bonds A........... 55,762,556(a) 1,394,064
First and Gen. mtge. bonds B @ 4%..... 12,100,000 524,000
$117,019,556 $ 3,382,079
Charges or
Other Requirements (contingent) Principal Dividends
Sinking fund (divisional bonds)........ 32,500
Additions & Betterments fund (minimum) 2,500,000
15-yr. serial notes to banks............. (a) 49,440
15-yr. secured notes to R. F. C............ (a) 375,000
First and gen. mtge. bonds, A........... (a) 836,438
Second mtge. income bonds, A.......... 105,058,904 4,727,651
Sinking fund (income bonds).......... 525,295
9,046,324
Total fixed and contingent...........$222,078,460 $12,428,403
Preferred stock........................ 106,996,076 5,349,804
Common stock......................... 120,899,773
Total capitalization................. $449,974,309
Total charges ahead of dividends on
common stock.................. $17,778,207
Ratio of debt to total capitalization. 49.35% 49.35%
With outstanding securities limited to $450,000,000, and with interest reduced to and in part made dependent upon income, a revenue of $14,625,000 will leave little for preferred stockholders under the new plan. Nothing could have been paid to either common or preferred stockholders under the existing set up.
Prior to 1929 the spread between the operating revenues and costs and the proportion of net operating income to total operating revenues had been reduced more than 50%. In other words, the percentage of net operating income to total operating revenues was, in 1900, 32.4%. In 1929, it was 19.9%. in 1936 it had dropped to 9.6%. It rose in 1937 to 14.1%.
The conclusion is unavoidable and also most important that the debtor can not continue to operate with an evergrowing indebtedness and a decrease in revenues, unless there is a radical change for the better in gross and net income.
First, and foremost in a plan of reorganization, is the ascertainment of a maximum of securities which may be issued. The amount for all securities, to-wit, $450,-000,000, is the I. C. C.’s answer to this inquiry. It meets our approval, not only because it is supported by evidence and is the finding of the I. C. C., but our independent study of the reports convinces us that a larger sum could not be sustained by the company’s future business.
The I. C. C. said:
“Competing forms of transportation, loss of export trade, and shifts in sources of traffic appear to have brought about a continuing change for the worse, as regards any reasonable expectation of the ability of this property to produce earnings sufficient to support a capitalization in which the present stockholders might be recognized as possessing equities of any value. Definitely a short-haul carrier, and one looking to passenger traffic for a large part of its business, results show that the debtor has proved particularly vulnerable to high-way competition. Capture of traffic by pipe lines has also been a serious factor, and the pipe line system is expanding.”
In reaching our conclusion we must admit that we have been compelled to depend upon the I. C. C.’s estimated income of the debtor in the future. We have not and can not give much weight to original or reproduction cost of the company’s properties, although we have not ignored those factors. There is more certainty that the fair value of all assets does not exceed $450,000,000 on an estimated net revenue of $14,625,000 than there is of the correctness of the estimated annual net income figure of $14,-625,000. At best the latter figure must have the uncertainty common to all prophecy. While the urge to raise this item, in order to give the old stockholders something for their stock, is strong, the necessity of certainty of interest and dividend payments upon the new securities is quite as important. Moreover, good faith and honesty to all concerned demand a plan which may be reasonably expected to measure up to the expectations of its sponsors. Failure so to do and a return of the debtor to the court for another major operation by the I. C. C. may well witness the demise of the patient.
A valuation is necessary for two purposes. Not only is it necessary to ascertain the presence of value in the old common and preferred stock, but for the purpose of an accurate and wise allocation of new securities. An ascertainment of the productive qualities of the road as a whole, and of the individual branches is quite essential to a fair allocation of new, to holders of old, securities.
It is seriously, and we think legitimately argued, that the Commission should consider reproduction cost in determining value. Section 77 sub. e. While accepting this urge, it must be remembered that reproduction value is but one of many factors which must be considered in determining value. In one case, it may be a material factor; in another it could be rather inconsequential. To illustrate, — an investor’s estimate of the value of a timber or mining tract, not in use, but held as reserve, might well be taken at a large percentage of original cost. Where, however, a property is being used to its full extent as a revenue producer, its original cost, and the cost of reproduction, must surrender their claim of importance to the dominance of earnings. In re Chicago, Milwaukee, St. Paul & P. Railway Co., supra; Consolidated Rock Products Co. v. Du Bois, supra. Mr. Justice Holmes, speaking for the Court, said, in Galveston, H. & S. A. Ry. Co. v. Texas, 210 U.S. 217, 226, 28 S.Ct. 638, 639, 52 L. Ed. 1031, “the commercial value of property consists in the expectation of income from it.” Consolidated Rock Products Co. v. Du Bois, supra, 312 U.S. at page 526, 61 S.Ct. 675, 85 L.Ed. 982.
While we are not only permitted, but required, to exercise'our judgment upon the soundness of these estimated revenues in a normal year, we must concede the superior ability and opportunity of the I. C. C. to pass judgment on such a factual question. It is unfortunate that the soundness of estimates must be incapable of demonstration to a mathematical certainty. But prophecy is ever subject to such criticism. Nevertheless, the difficulty and the uncertainty as to correctness of estimates, do not relieve the I. C. C. (or us) from meeting the obligation. Consolidated Rock Products Co. v. Du Bois, supra.
The unusual and extraordinary increases in revenue of carriers during the last year have made the Commission’s estimate the subject of determined and vigorous attack by the stockholders. This has caused us no end of anxiety and concern. This radical change (for the better) in the past year can not and should not be ignored. Nor can we dismiss it as undisclosed by the record which deals with a more distant past. It is something we can, and should, and do, take judicial notice of. It is, we believe, temporary, and like a crop failure year, in the Northwest — which this Debtor serves — not to be taken too seriously when viewing the long future of this railroad. In making this statement we are aided by the experiences of railroads during and after the last war.
It must, however, be a fact of vital importance that a substantial increase in revenue and a corresponding increase in value of assets would still leave nothing upon which the old stockholders could predicate a value for their stock.
Were it not for the provision of the statute which requires the I. C. C. to consider the reproduction cost in determining value, we would look for even greater guidance, to the earning power of the company, than was done by the I. C. C.
The finding which determined the absence of value in the common and preferred stock must be, and is, approved as fair to the creditors, to the stockholders, and to the public.
Relying on our holding in In re Chicago, Milwaukee, St. Paul & P. Railway, Debtor, supra, that the I. C. C. failed to make findings of values, sufficiently detailed to permit us to pass intelligently on the fairness of the plan and the reasonableness of the allocation of new securities among holders of old securities, the various appellants ask us to reverse and remand the case for further evidence and more detailed findings by said I. C. C.
This case differs from the Milwaukee case in this respect. Here, the creditors have received the plan and voted, almost unanimously, their approval of it. Our question then is not restricted to the sufficiency of findings to support the plan, but it is a review of a plan which has the approval of the various groups of creditors. The stockholders are eliminated. The creditors alone are entitled to the assets of the debtor. They are also entitled to a fair allocation of new securities in view of the value of their old bonds, having due regard to the value of the liened property and the future earnings of the road.
While fairness is a somewhat relative term and is not measurable, in its practical application, with mathematical certainty, courts will not go beyond the expressed assent and approval of the bondholders to ascertain whether fairness in distribution attained the goal of perfection. If the creditors „who are to share an insolvent estate understandingly agree on a division thereof, the problem of the court has been solved.
The creditors are divided into 21 groups, 14 of which passed upon the plan. They and the percentage of acceptance of their vote, are herewith set forth.
Table on Vote of Various Class of Creditors on Plan:
% of vote
Total in favor
Class Name of Security Outstanding Amt. Voted* of plan
(5) Preferred claims................ 25,823.49 $ 25,823.49 100.
(6) General mortgage bonds.......... 132,019,000 100,610,500 96.06
(7) Sioux City & Pac. bonds............ 4,000,000 3,464,000 100.00
(8) Mil. & State Line bonds............ 2,500,000 2,150,000 50.37
(9) Manitowoc, Green Bay bonds.....,. 3,750,000 3,169,000 • 100.
(10) St. Paul Eastern bonds............. 1,120,000 796,000 83.79
(11) Mil., Sparta & N. W. bonds........ 15,000,000 9,794,000 98.28
(12) Des Plaines Valley bonds........... 2,500,000 1,872,000 98.66
(13) St. Louis, Peoria & N. W. bonds.,.. 10,000,000 7,223,000 99.56
(14) 1st and refunding bonds............ 47,822,000 24,642,000 97.75
m 15-year 6%% bonds................ '14,775,000 8,641,000 98.43
(16) Convertible 4%% bonds.......i.... 72,335,000, 21,358,000 87.10
(18) Collateral promissory notes......... 47,313,882 47,049,192.55 100.
(21) General claims..........'.......... 1,017,375 203,941.47. 98.66
Total..................... $230,998,457.51 96.2
*Additional defective ballots: Class (6), $2,760,500; Class (7), $10,000; Class (9), $27,000; Class (10), $7,000; Class (11), $457,000; Class (12), $3,000; Class (13), $128,000; Class (14), $1,145,000; Class (15), $159,000; Class (16), $669,500; Class (21), $3,277.50.
As to the classes omitted, it should be said the plan was not submitted to them, either because they were not affected, were paid in full, or as in the case of stockholders, it was believed they had no interest under the absolute priority principle applicable in this case.
Four groups representing claims which aggregate approximately $54,000,000 and interest, have voted unanimously in favor of accepting the plan. Five other groups voted more than ninety-eight per cent for accepting the plan. These bond issues aggregate $27,000,000 and interest. Two groups, whose total outstanding bonds aggregate $180,000,000, voted more than ninety-six per cent for the plan. All groups, save one, overwhelmingly favored the plan. The one exception is the Milwaukee and State Line Group. The total of this issue was $2,500,000, and 50.37% favored acceptance. The Equitable Life Assurance Society of the U. S., and an affiliate, the Equitable Credit Union, voted their holdings of $1,003,000 against the plan.
, This single exception to the strong approval, which the plan evoked from the creditors, necessitated separate treatment.by the District Court, as' it does here! Section 77 provides for approval of the plan without the approval of twó-thirds of the creditor's of á class, provided the court, after hearing, finds that the plans make adequate provision for fair and equitable treatment of the interests or claims of those rejecting it; that such rejection is not reasonably justified in-the light of the respective rights and interests of all parties, including particularly the group affected.
The District Court squarely met this issue and made a finding of fairness, etc., which avoided the necessity of a two-thirds vote of approval by this group.
The District Court’s finding is here assailed as contrary to the evidence, and as having been made to avoid an adverse group vote in the otherwise perfect record of approval.
We will consider this phase of the case later, for we are now interested in the effect of the approval of the plan by the vast majority of the creditors, of different groups, on the various objections which have been raised.
As to those groups which have, without opposition of a single bond
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_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".
MONARCH ELECTRIC & WIRE CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 4202.
Circuit Court of Appeals, Seventh Circuit.
Feb. 26, 1930.
Evans, Circuit Judge, dissenting.
Herbert G-. Mayer and Carl Meyer, both of Chicago, Ill., for appellant.
Randolph C. Shaw, of Washington, D. C., for appellee.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
SPARKS, Circuit Judge.
This is a petition by Monarch Electric & Wire Company to review an order of the Board of Tax Appeals entered August 14, 1928, and involves income and excess profits taxes for the year 1920, in the amount of $6,-104.03.
The uncontroverted facts relating to this issue are as follows:
In 1906, one Nathan Deutseh owned the entire capital stock of the Monarch Electric & Wire Company, an Illinois corporation organized in 1902 (not the petitioner herein). In the latter part of 1906, Deutseh sold a 16 per cent, interest in this company to each of the three Schwab brothers, L. S. Schwab, H. S. Schwab, and A. G. Schwab, and retained for himself the remaining 52 per cent, controlling interest. In the latter part of the year 1919, the Schwab brothers began negotiations for the purchase of Deutseh’s stock. Both parties dealt at arm’s length through their respective attorneys. An agreement, dated January 1, 1920, was finally perfected, by the terms of which the name of the company was changed to Schwab Electric Company; a new corporation, the petitioner herein, was organized and acquired all the assets subject to the liabilities of the Schwab Electric Company, with the exception of certain indebtedness of Deutseh which was canceled and $25,300 in Liberty Bonds which was paid directly to Deutseh. Besides the Liberty Bonds and the cancellation of his indebtedness, Deutseh received from petitioner $300,-000 par value of its preferred stock (being its total authorized preferred stock). This preferred stock had voting rights, and was entitled to cumulative dividends of 6 per cent, per annum, the payment of the dividends being guaranteed individually by the three Schwab brothers. The Schwab brothers further agreed that this preferred stock would be redeemed at a certain amount each year, the last maturity of which is to be April 1, 1937.
The Schwabs further agreed with Deutsch that, until $100,000 of the preferred stock was redeemed their aggregate annual salaries would not exceed $36,000, and until $150,000 par value of preferred stock was redeemed their aggregate annual salaries would not exceed $45,000, and until $200,000 par value of preferred stock was redeemed their aggregate annual salaries would not exceed $54,000.
The three Schwabs' received from petitioner all its common stock, which gave the Schwabs a 52 per cent, interest and voting control.-
The assets conveyed to petitioner by the Schwab Electric Company had a fair market value, in the amount agreed upon between Deutsch and the Schwabs and admitted by respondent, and were reflected as invested capital in the petitioner’s income tax returns as follows:
Leasehold ................... $ 75,000.00
Building .................... 300,000.00
Machinery................... 46,075.52
Good will.................... 75,000.00
These assets were taken over by the petitioner at the above figures. The Schwab Electric Company had carried the assets at a much lower valuation, and no good will was carried as an asset by it.
Respondent, in computing petitioner’s invested capital, valued the assets acquired by petitioner from the Schwab Electric Company on the same basis as they stood on the boobs of that company, instead of at their market value. Petitioner contends that for the year T920, it is entitled to have its invested capital computed on the actual cash value of the property paid in for its stock on January 1, 1920, and that the limitation of section 331 of the Revenue Act of 1918 is not applicable. The commissioner contends that the limitation of section 331 is applicable. This is the only issue involved.
The material portion of section 331 of the Revenue Act of 1918 (40 TJ. S. Stat. 1095) is as follows:
“See. 331. In the ease of the reorganization, consolidation, or change of ownership of a trade or business, or change of ownership of property, after March 3, 1917, if an interest or control in such trade or business or property of 50 per centum or more remains in the same persons, or any of them, then no asset transferred or received from the previous owner shall, for the purpose of determining invested capital, be allowed a greater value than would have been allowed .under this title in computing the invested capital of such previous owner if such asset had not been so transferred or received: » * *
Petitioner contends that inasmuch as Nathan Deutsch, on January 1, 1920, owned more than 50 per cent, of the stock of the Schwab Electric Company, and after the reorganization or change of ownership he owned less than 50 per cent, in the new corporation, such transaction does not come within the provisions of the statute. With this contention we cannot agree. In our judgment the wording of the statute is not ambiguous in this particular. It explicitly says that “if an interest or control of 50 per centum or more remains in the same persons, or awy of them,” (italics ours), then the statute applies. Before the reincorporation Deutsch, it is true, owned and controlled more than 50 per cent, of the stock; but it is also true that he, with either one or more of the Schwabs, at that time owned and controlled more than 50 per cent, of the stock. After the reincorporation we find the persons holding the stock in the new corporation are identical with the stockholders in the old, and that Deutsch, with either one or more of the Schwabs, still owns and controls more than 50 per cent, of the stock of the new corporation; and this brings the transaction squarely within the statute.
We are thoroughly convinced that the reorganization and transfer of stock was a bona fide transaction in every particular, and that there was no effort whatever on the part of petitioner or its stockholders to circumvent the government; but of course these facts are not sufficient to overcome the plain and unambiguous terms of the statute.
The order of the Board of Tax Appeals is' affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
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04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
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11. Georgia
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20. Maine
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29. Nevada
30. New
31. New
32. New
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35. North
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39. Pennsylvania
40. Rhode
41. South
42. South
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44. Texas
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54. District
55. Guam
56. not
57. Panama
Answer:
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songer_initiate
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B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify 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. Ronald JARRETT, Defendant-Appellant.
No. 81-2565.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 13, 1982.
Decided April 5, 1983.
Rehearing and Rehearing En Banc Denied June 8, 1983.
John W. Conniff, Chicago, 111., for defendant-appellant.
William C. Bryson, Dept, of Justice, Washington, D.C., for plaintiff-appellee.
Before WOOD and POSNER, Circuit Judges, and DUMBAULD, Senior District Judge.
The Honorable Edward Dumbauld, United States Senior District Judge for the Western District of Pennsylvania, is sitting by designation.
HARLINGTON WOOD, Jr., Circuit Judge.
This appeal, raising a variety of issues, arises from a jury conviction under 18 U.S.C. § 1951 (“the Hobbs Act”) for the armed robbery of Alfred’s Orange Blossom Jewelers (“Orange Blossom”) in Oak Lawn, Illinois, on December 15, 1977. The court sentenced Jarrett as a dangerous special offender under 18 U.S.C. § 3575 to twenty-five years imprisonment.
I. Jurisdiction
Jarrett asserts that the federal government lacked both constitutional power and statutory authority to prosecute him for the robbery of the Orange Blossom. According to Jarrett, the Hobbs Act does not permit the federal government to bring a criminal prosecution for a local robbery of a retail store upon a de minimis showing of effect on interstate commerce. Jarrett argues that, although the de minimis standard applies in extortion cases under the Hobbs Act, a more exacting standard should apply in robbery cases because of constitutional limits on the power of the federal government imposed by the reservation of power to the states to prosecute traditionally local offenses under the Tenth Amendment. Jarrett points out that traditionally robbery is a local offense whereas extortion is not. Thus, Jarrett concludes, the government failed to establish Hobbs Act jurisdiction in this case because, “of the $38,952.03 listed stolen, the Government proved that about $2,000 worth of interstate commerce was ‘affected,’ ” a figure which establishes only a de minimis effect on commerce. An examination of the statutory language of the Hobbs Act, the legislative history of the Act, the cases interpreting the Act, and the cases which examine the Tenth Amendment refute this position.
Nothing on the face of the Hobbs Act indicates a congressional intent to define the phrase “affects commerce” more narrowly with respect to the offense of robbery as opposed to the offense of extortion. To the contrary, the statute places robbery and extortion on equal ground regarding the jurisdictional requirement of affecting commerce. Such equal placement and treatment provides strong evidence that Congress intended the use of the same standard in determining effect on commerce by robbery or extortion.
The legislative history provides no support for Jarrett’s contentions. Congress clearly intended to define as a federal crime conduct that it recognized as punishable under state law. United States v. Culbert, 435 U.S. 371, 379, 98 S.Ct. 1112, 1116, 55 L.Ed.2d 349 (1978). The legislative debates contain numerous statements to the effect that the conduct reached by the Hobbs Act was already subject to punishment under state robbery and extortion statutes. Representatives who opposed the Hobbs Act contended that the Act interfered with the rights of the states. In passing the bill, however, Congress concluded that “the States had not been effectively prosecuting robbery and extortion affecting interstate commerce and that the Federal Government had an obligation to do so.” United States v. Culbert, 435 U.S. 371, 380, 98 S.Ct. 1112, 1117, 55 L.Ed.2d 349. Contrary to Jarrett’s position, Congress perceived both extortion and robbery to be crimes traditionally subject to state prosecution.
Jarrett cites no case which distinguishes between the degree to which commerce must be affected for purposes of invoking federal jurisdiction for a charge of robbery and for a charge of extortion under the Hobbs Act. Courts draw no such distinction and require only a de minimis effect for robbery as well as extortion.
In Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960), an extortion prosecution, the Court stated that the Hobbs Act “speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.” Reaffirming this view in United States v. Culbert, 435 U.S. 371, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978) (extortion prosecution), a unanimous Supreme Court said:
the statutory language [of the Hobbs Act] sweeps within it all persons who have “in any way or degree... affect[ed] commerce... by robbery or extortion.”... These words do not lend themselves to restrictive interpretation; as we have recognized, they “manifest... a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.”
Id. at 373, 98 S.Ct. at 1113.
In a Hobbs Act robbery prosecution, United States v. Caldarazzo, 444 F.2d 1046 (7th Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 328, 30 L.Ed.2d 276 (1971), this circuit drew no distinction between the jurisdictional requirement for robbery and extortion cases. In Caldarazzo, we ruled that “[t]he Hobbs Act provides federal sanctions for robbery which ‘in any way or degree obstructs, or delays, or affects commerce or the movement of any article or commodity in commerce.’ ” Id. at 1048-49.
We have previously held in an extortion case that “the commerce element [of the Hobbs Act is] satisfied where the actual impact on commerce is de minimis,... or where, in the absence of proof of an actual impact, there is a realistic probability that the extortionate transaction will have some effect on interstate commerce.” United States v. Hedman, 630 F.2d 1184, 1195 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981). Thus, in light of Caldarazzo and Hedman, we hold that the de minimis standard applies to robbery cases under the Hobbs Act.
The Eighth Circuit, in Nick v. United States, 122 F.2d 660 (8th Cir.), cert. denied, 314 U.S. 687, 62 S.Ct. 302, 86 L.Ed. 550 (1941), addressed a Tenth Amendment attack on the validity of the Anti-Racketeering Act of 1934, ch. 569, 48 Stat. 979, 18 U.S.C. §§ 420a-420e (the predecessor to the Hobbs Act). In upholding the validity of the Act, the court, 122 F.2d at 668, explained as follows:
The argument as to the Tenth Amendment is that this Act undertakes to invade State jurisdiction and deal with domestic violence — in short, is an attempt to exercise the police power reserved to the States under the Amendment. Clearly this is not true. The Act is an exercise of police power but it is based upon the protection of interstate commerce. If it comes within the commerce clause of the Constitution it is not open to this objection. If it does not come within the commerce clause it would be invalid whether it involved an exercise of police power or not. That the Act is within the commerce clause seems clear....
Similarly, the Ninth Circuit in Carbo v. United States, 314 F.2d 718, 733 (9th Cir.1963) held that the Hobbs Act is within the power of Congress and does not contravene the Tenth Amendment.
Rather than regulate the internal functions of the states, the Hobbs Act regulates the activities of individuals. Furthermore, the Hobbs Act does not displace the states’ freedom to prosecute robberies or extortions. See generally Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (Illinois robbery conviction following federal prosecution and acquittal of bank robbery presents no double jeopardy problem). The Hobbs Act presents no unconstitutional intrusion upon the sovereignty of the states and, thus, is a constitutional exercise of the commerce power.
II. Jury Instruction on Affecting Commerce Element
Jarrett contends that the district court’s instruction respecting the necessary element of interstate commerce was inadequate. According to Jarrett, the instruction which the trial court gave “improperly delegated to the jury” the question of law of whether the robbery affected interstate commerce. Thus, Jarrett argues, the trial court erred in instructing the jury in terms of the governing legal standard instead of requiring the jury to determine only the factual questions supporting a finding of effect on commerce, such as whether the Orange Blossom store received jewelry from out-of-state suppliers. Jarrett fears that the error “diverted the jury from its special office of examining the evidence, and making findings of fact only.”
United States v. Kuta, 518 F.2d 947, 951-52 (7th Cir.) (a Hobbs Act case), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975), and United States v. Sweet, 548 F.2d 198, 202 (7th Cir.1977) (18 U.S.C. § 844(i)), cert. denied, 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1978), held that the court determines as a jurisdictional matter whether interstate commerce has been affected and the jury finds whether the underlying facts exist. On the issue of the requisite nexus to commerce, the district judge in this case instructed the jurors:
Now, the defendant is charged, in effect, with the crime of obstructing, delaying and affecting interstate commerce by knowingly and willfully and unlawfully committing robbery....
‡ ‡ ‡ ‡ ‡
Now, the term “commerce” means all commerce between any point in the state and any point outside thereof.
The robbery here need only have a minimal effect on commerce and it is not necessary for you to find that the defendant knew or intended that his actions would in any way affect commerce, it is only necessary that the natural consequences of the acts committed by the defendant charged in the indictment was to affect commerce in any way or degree.
Record at 367-68.
In dicta, we approved a similar instruction pertaining to the element of commerce under the Hobbs Act in United States v. Staszcuk, 517 F.2d 53, 55 n. 6, 59 (7th Cir.) (en banc), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975). Moreover, no prejudice resulted to Jarrett because the underlying jurisdictional facts were not controverted. In any event, Jarrett failed to object to the instruction at trial. Fed.R. Crim.P. 52(a).
III. Selective Prosecution
Jarrett also raises a claim of selective prosecution. He argues that it is not a claim which must be raised in a pretrial motion under Rule 12(b) of the Federal Rules of Criminal Procedure and, therefore, that he did not waive that defense by failing to file his motion until after the completion of the trial. We disagree.
It seems clear that a request for dismissal based on selective prosecution must be raised before trial. United States v. Taylor, 562 F.2d 1345, 1356 (2d Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977); United States v. Oaks, 508 F.2d 1403, 1404-05 (9th Cir.1974), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976). In order to gain an evidentiary hearing on the issue of selective prosecution, the defendant must make a prima facie case based on facts “sufficient to raise a reasonable doubt about the prosecutor’s purpose.” United States v. Falk, 479 F.2d 616, 620-21 (7th Cir.1973). To do this, the defendant must show (1) that the prosecutor engaged in intentional discrimination based on an impermissible consideration, such as race, religion, or exercise of constitutional rights, United States v. Peskin, 527 F.2d 71, 86 (7th Cir.1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976), and (2) that “[w]hile others similarly situated have not generally been proceeded against because of conduct forming the basis of the charge against him, he has been singled out for prosecution.” United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974). These issues bring into question the institution of the prosecution; Rule 12(b) requires such issues to be raised prior to trial. The sufficiency of these showings can, in the majority of cases, be determined without trying the general issue, which in this case was whether Jarrett was involved in the Orange Blossom robbery in violation of the Hobbs Act.
While it is suggested in United States v. Wilson, 639 F.2d 500, 506 (9th Cir.1981) (Real, J., concurring), that a selective prosecution defense may require a full trial in order to develop the relevant facts, this is allowed for within the pretrial motion scheme, by Rule 12(e). The court may, for “good cause,” defer decision of a constitutional objection if production of evidence will clarify the issue, or if factual uncertainties require “trial of any nontrivial part of ‘the general issue...." United States v. Barletta, 644 F.2d 50, 57-58 (1st Cir.1981) (emphasis in original); Wright, Federal Practice and Procedure: Criminal 2d § 194. The stringency of the time requirements are similarly softened by Rule 12(f) which allows the trial judge to relieve a defendant of his waiver “for cause shown.” The policies behind restricting the time for making a motion for dismissal based on selective prosecution are well served by Rule 12(b), while arguments against including selective prosecution in those motions covered by 12(b) are mitigated by the deferral and waiver relief provisions of Rules 12(e) and (f). The district court was correct in finding that Jarrett waived his selective prosecution motion by failure to file until two months after trial. We need not reach the issue of whether Jarrett could have been relieved of his waiver, since he never requested such relief from the district court.
IV. New Trial
Jarrett claims entitlement to a new trial, citing as grounds (1) new evidence or perjured testimony, (2) government withholding of discovery materials, (3) rebuttal on a collateral matter, and (4) admission of hearsay. Pursuant to Rule 33 of the Federal Rules of Criminal Procedure, a court may grant a new trial to a defendant “if required in the interest of justice.” After reviewing the record and the parties’ arguments, we are convinced that the interest of justice does not require a new trial.
Jarrett argues that “the jury never heard a critical change in the testimony of his coconspirator, Brown, which occurred subsequent to trial.” Thus, the jury lacked an important factor in evaluating Brown’s credibility.
At trial, Jarrett’s counsel asked Brown the following questions and received the following answers:
Q. Isn’t it a fact, Mr. Brown, that you didn’t see Ronald Jarrett on December 15, 1977, until after the Orange Blossom robbery had been concluded and accomplished?
A. No.
Q. Isn’t that a fact?
A. No, it is not.
Q. Would you lie to help yourself, sir?
A. No, I would not.
Subsequently, at the sentencing hearing, counsel asked Brown about his parole release in 1968. Brown admitted that he obtained a regular job, not because he wanted or intended to live a law-abiding life, but because it was a “necessity to get out on parole.” When asked if he would lie to help himself, Brown answered, “I probably would.”
Contrary to Jarrett’s position, we detect no serious conflict in Brown’s testimony. In the first passage, Brown denied that he was lying about Jarrett’s participation in the robbery in order to help himself. In the second passage, Brown admitted that he would lie on certain occasions, such as obtaining his parole release. Furthermore, during the trial, Brown admitted to lying on a subject more pertinent to the case, stating that he lied to a special agent who was investigating the robbery. The jury, therefore, heard Brown admit that he sometimes lied. Finally, accepting Jarrett’s contentions arguendo, Brown’s testimony at the sentencing hearing does not meet the test for granting a new trial based on newly discovered evidence, United States v. Hedman, 655 F.2d 813, 814 (7th Cir.1981), or based on perjured testimony, Larrison v. United States, 24 F.2d 82 (7th Cir.1928).
Newly discovered evidence, to be grounds for a new trial, must be “material, and not merely impeaching or cumulative.” Hedman, 655 F.2d at 814 (emphasis added). Here, Brown’s testimony is merely impeaching, at best.
For perjured testimony to form the basis for a new trial, the court must be reasonably convinced that the testimony given by a material witness is false and that the jury might have reached a different conclusion had the truth come to light. United States v. Robinson, 585 F.2d 274 (7th Cir.1978) (en banc), cert. denied, 441 U.S. 947, 99 S.Ct. 2171, 60 L.Ed.2d 1051 (1979); Larrison v. United States, 24 F.2d 82 (7th Cir.1928). Brown’s statement at the sentencing hearing does not convince us that he was lying while testifying at Jarrett’s trial. Moreover, the fact that Brown lied at his parole hearing would not impress the jury to reach a different verdict because Brown already admitted to them that he lied to the special agent.
Jarrett claims that the government withheld certain documents necessary for the defense to impeach witnesses for the prosecution. Unfortunately, Jarrett does not describe in particulars the nature of the documents he sought to discover. The district court restricted discovery to “any statements of the witnesses that might be usable for impeachment purposes, but not every statement made by witnesses regarding Jarrett.” In clarification, the court ruled, and we agree, that simply because a witness has accused Jarrett of committing another crime does not mean the witness is biased. Moreover, even if evidence that prosecution witnesses accused Jarrett of other crimes indicates bias, such evidence would be cumulative since the witnesses in question here were already accusing Jarrett of the Orange Blossom robbery. There is no indication or suggestion that the witnesses were accusing Jarrett of crimes so great in number as to connote prejudice or bias. The district court did not err, let alone abuse its discretion, by denying discovery. See generally United States v. Watson, 669 F.2d 1374, 1384 (11th Cir.1982); 10 Fed.Proc., L.Ed. § 26:403 (1982).
Jarrett claims that he was improperly impeached on a collateral matter. At trial he testified that when he was visited by ATF agents in April of 1978 (about four months after the robbery), he did not have any police scanners or walkie-talkies in his home. In rebuttal, an ATF agent testified, over objection, that when he went to Jarrett’s home on April 20, 1979, he found walkie-talkies.
A matter is collateral if the impeaching fact could not have been introduced into evidence for any purpose other than contradiction. 3 Weinstein’s Evidence ¶ 607 at 607-64 (1981). We agree with Jarrett that proof of possession of walkie-talkies sixteen months after the crime was committed is collateral. However, this impeachment resulted in harmless error beyond a reasonable doubt. Fed.R.Crim.P. 52(a); Fed.R.Evid. 103(a); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The remoteness in time and lack of relevance should have been obvious to the jurors. Possessing walkie-talkies is hardly inflammatory.
Jarrett challenges the instruction given by the court relating to the rebuttal testimony. At trial, defense counsel raised no objection; rather, counsel specifically approved the instruction. Tr. 360 (“That’s fine, your Honor, that’s good.”). We do not consider the instruction to constitute plain error. Fed.R.Crim.P. 52; Fed.R. Evid. 103(d). Rather, it appears to be an agreed upon stipulation as to the date of the agents’ visit and a limiting instruction designed to eliminate any prejudice to Jarrett.
Jarrett’s final ground for a new trial — improperly admitting hearsay — is frivolous, not meriting detailed discussion. According to Jarrett’s contention, the district court erroneously concluded that “the Government had established a joint venture” between Rodriguez, Jarrett, Brown, and Willis such that statements made by the now deceased Rodriguez were not hearsay under Federal Rule of Evidence 801(d)(2)(E). The independent evidence of the conspiracy was more than sufficient to meet the preponderance test adopted in United States v. Santiago, 582 F.2d 1128, 1135 (7th Cir.1978). Willis and Brown both testified to the participation of the four in the crime, and to various admissions by Jarrett, Fed.R.Evid. 801(d)(2)(A). Their testimony clearly established that Rodriguez was a coconspirator of Jarrett’s within the meaning of United States v. Gil, 604 F.2d 546 (7th Cir.1979). Furthermore, Jarrett failed to object to the admission of Rodriguez’s statements at trial.
V. Sentencing
Jarrett attacks his sentence imposed under the dangerous special offender statute, 18 U.S.C. § 3575, arguing that the district court’s findings concerning “dangerousness” are not supported by the record and are clearly erroneous, that the court abused its discretion in relying upon the witness Mara and the police reports for corroboration of the witness Brown’s testimony, and that the court erred in not explaining “why a twenty five year sentence is required when the maximum under the statute is twenty years.” We find Jarrett’s claims meritless.
Jarrett contends the finding of dangerousness to be unsupported by the record because Brown’s testimony is incredible. As the finder of fact in the sentencing hearing, however, the court was entitled to accord such weight as it saw fit to Brown’s testimony. United States v. Inendino, 604 F.2d 458, 463-64 (7th Cir.), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979); United States v. Williamson, 567 F.2d 610, 615-16 (4th Cir.1977). Additionally, Brown’s testimony was corroborated by Mara’s testimony and by the police records.
Jarrett complains that Mara did not testify as to his personal knowledge concerning Jarrett’s participation in a burglary of a Jewel grocery store and other incidents. Pursuant to Rule 1101(d)(3) of the Federal Rules of Evidence, the Rules do not apply in sentencing hearings. Thus, the Rules relating to hearsay do not apply. A judge may properly conduct a broad inquiry, “largely unlimited either as to the kind of information he may consider, or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). Hearsay evidence is admissible in sentencing proceedings, including- dangerous special offender proceedings. United States v. Inendino, 604 F.2d 458, 463 (7th Cir.), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979).
Similarly, regarding Jarrett’s claim of lack of authentication, Rule 901 of the Federal Rules of Evidence is inapplicable. In particular, however, Jarrett points out that the FBI agent at the sentencing hearing did not make copies of the police reports himself, or compare them with the originals for accuracy. However, the copies in question were xeroxes of the original — “admissible to the same extent as an original” under Rule 1003 of the Federal Rules of Evidence, unless “a genuine question is raised as to the authenticity of the original.” Fed.R. Evid. 1003. Thus, even if the Rules applied, the fact that the agent did not make the xerox or conform it with the original would make no difference. Although defense counsel called the accuracy into question in form, he did not do so in substance. Further, the district court assured Jarrett he would consider the reports “with a grain of salt,” and would consider them for the “limited purpose of... determining whether or not there is any corroboration in this record as to the testimony given by Brown.” Tr. 343-44.
Finally, Jarrett contends that the district court erred in failing to explain its findings concerning “dangerousness” under 18 U.S.C. § 3575(f). “A defendant is dangerous” under Section 3575(f) “if a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant.” 18 U.S.C. § 3575(f). In United States v. Neary, 552 F.2d 1184, 1193 (7th Cir.), cert. denied, 434 U.S. 864, 98 S.Ct. 197, 54 L.Ed.2d 139 (1977), we noted that a trial court must make additional factual determinations of “special” and “dangerous” after a verdict of guilty to support the imposition of a sentence longer than the maximum sentence normally applicable to the crime. A finding of dangerousness under Section 3575(f) involves an evaluation of the defendant’s character and a prediction of future criminal conduct, “matters which are traditionally left to [the] wide discretion of a sentencing court.” Id.
Contrary to Jarrett’s contention, the district court explained its findings concerning dangerousness. The court’s explanation is in accord with the construction of Section 3575(f) in Neary. The district court said,
[TJhis- defendant was in charge of an operation and he was the mastermind behind it, he was the organizer of it and he was the one who determined after the Orange Blossom robbery took place who was going to get what....
But in addition to that... this defendant has, as a juvenile, two arrests, on 58 different occasions he has been arrested as an adult. He had two convictions as a juvenile. There were 13 as an adult.
Now, when this information was finally collected... the government apparently decided... that society needed some kind of better protection from the continuance of this criminal enterprise in which the defendant was engaged and... the only way in which he was making his living.
... [I]t is clear to me from this record, without any question, that this defendant has been a professional criminal all of his adult life and he qualifies beyond question as a dangerous special offender....
... [Y]our past record also indicates to me that probation and parole are terms which, apparently, have little meaning for you.
Thus, the district court found Jarrett to be dangerous to society because of his criminal life-style. As the trial court judge clearly articulated the reasoning behind his decision in finding Jarrett to be dangerous, we hold that the district court did not abuse its discretion. United States v. Madison, 689 F.2d 1300 (7th Cir.1982).
VI. Ineffective Assistance of Counsel
Jarrett’s final claim is that he did not receive effective assistance of counsel as guaranteed by the Sixth Amendment. Jarrett makes numerous allegations respecting this claim, ranging from failure to timely file a motion asserting selective prosecution to failure to object to the introduction of certain evidence. As relief, Jarrett requests this court to reverse and remand for a new trial or, in the alternative, to remand for a hearing on the ineffective assistance of counsel claim.
This claim is not properly before us. Just prior to sentencing, Jarrett filed a bare motion asserting ineffective assistance of counsel. The district court denied it. At a subsequently held hearing on the motion alleging denial of effective assistance, the district court indicated that it would permit defense counsel to file affidavits in support of this motion, would allow briefing, and then would reconsider its prior ruling. In response, however, defense counsel indicated he preferred not to address the issue further, opting instead to seek collateral relief pursuant to 28 U.S.C. § 2255 if this court did not rule favorably on appeal. We believe defense counsel’s original inclination is correct. As we stated in United States v. Lang, 644 F.2d 1232, 1240 (7th Cir.), cert. denied, 454 U.S. 870, 102 S.Ct. 338, 70 L.Ed.2d 174 (1981):
First, this type of allegation is more appropriately dealt with by the district court. Procedurally, several vehicles are available, including Rule 33 of the Fed.R. Crim.P., Motion for a New Trial, or the collateral relief available to federal prisoners under 28 U.S.C. § 2255. Second, examination of the record does not provide clear evidence of the ineffective assistance of counsel, the failure alleged being those of litigation strategy. Nor do we have the impressions and findings of the district judge to guide us.
For the foregoing reasons, the judgment of the district court is affirmed.
. Although Jarrett cites to the Ninth Amendment, his argument is essentially a Tenth Amendment argument. Cf. J. Ely, Democracy and Distrust at 34-41 (1980). In any event, the Tenth Amendment provides a stronger argument than does the Ninth Amendment.
. Title 18 U.S.C. § 1951 provides:
(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
(3) The term “commerce” means... - commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.
. See, e.g., 91 Cong.Rec. 11848 (1945) (remarks of Rep. Powell) (“Extortion and robbery are crimes in all 48 States.”); id. at 11900 (remarks of Rep. Hancock) (“robbery and extortion, two crimes which are recognized as serious in every State in the Union.... The courts of the States of this country have tried thousands of cases of robbery and extortion.”); id at 11901 (remarks of Rep. Gwynne) (“Of course, the state law prohibits robbery and extortion. Unquestionably State indictments could have been returned against the members of this union. The fact is, however, such indictments were not returned. It is a breakdown of law enforcement reminding the Congress of its duty to protect interstate commerce by the enactment of this bill.”); id at 11916 (remarks of Rep. Patrick) (“If you gentlemen can convince me that any state in the Union in which these depredations to which reference has been made has not adequate laws to convict people for robbery and for every one of the things set out here, I will vote for this bill.”); id. at 11906 (remarks of Mr. Robison) (“The definition of robbery and extortion set out in this bill... are defined in substantially the same way by the laws of every State in the Union”).
. 91 Cong.Rec. 11903 (remarks of Rep. Welch); id. at 11848 (remarks of Rep. Powell). (“Mr. Speaker, this is another ridiculous threat against democracy. It is the more ridiculous because it comes from the great proponent of States’ rights. Extortion and robbery are crimes in all 48 States.... Why then gentlemen of the States’ rights school, do we need Federal legislation.”).
. See generally United States v. Darby, 312 U.S. 100, 114, 61 S.Ct. 451, 457, 85 L.Ed. 609 (1941) (“It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states.”); Hoke v. United States, 227 U.S. 308, 321, 33 S.Ct. 281, 283, 57 L.Ed. 523 (1913) (Tenth Amendment challenge to White-Slave Traffic (Mann) Act, ch. 395, 36 Stat. 825, rejected); United States v. Staszcuk, 517 F.2d 53, 58-59 (7th Cir.), (en banc), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975); Gagliardo v. United States, 366 F.2d 720, 722 (9th Cir.1966) (18 U.S.C. § 1464 does not violate Tenth Amendment); Marshall v. United States, 355 F.2d 999, 1004 (9th Cir.1966) (rejecting Tenth Amendment challenge to 18 U.S.C. § 1952), cert. denied, 385 U.S. 815, 87 S.Ct. 34, 17 L.Ed.2d 54 (1966); United States v. Vignola, 464 F.Supp. 1091, 1099 n. 23 (E.D.Pa.1979) (unsuccessful Tenth Amendment attack of RICO, 18 U.S.C. § 1961 et seq.), affirmed, 605 F.2d 1199 (3d Cir.1979), cert. denied, 444 U.S. 1072, 100 S.Ct. 1015, 62 L.Ed.2d 753 (1980).
. See generally United States v. Gillock, 445 U.S. 360, 371, 100 S.Ct. 1185, 1192, 63 L.Ed.2d 454 (1980); National League of Cities v. Usery, 426 U.S. 833, 852, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245 (1976). See also Equal Employment Opportunity Commission v. Wyoming, -U.S. -, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983) (narrowly limits Usery).
. In United States v. Stubin, 446 F.2d 457, 465 (3d Cir.1971), the Third Circuit examined a similar instruction and concluded that no plain error resulted.
. Although Jarrett also claims vindictive prosecution, this claim fails since vindictive prosecution has as its basis an increase in charges or a new prosecution allegedly brought in retaliation for the exercise of constitutional rights. Here there is a single prosecution, and no increase in charges. Jarrett apparently wishes to equate his appearance as a witness before the 1978 grand jury with a criminal proceeding against him personally. This, however, is not the type of situation that falls within the perimeters of a vindictive prosecution defense. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); United States v. Wilson, 639 F.2d 500 (9th Cir.1981).
. Rule 12(b) provides:
Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to 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_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.
UNITED STATES of America, Plaintiff-Appellee, v. Guadalupe AVALOS-OCHOA, Defendant-Appellant.
No. 77-1308.
United States Court of Appeals, Ninth Circuit.
July 20, 1977.
Rehearing and Rehearing En Banc Denied Sept. 22, 1977.
Michael J. McCabe, Savitz, McCabe & Welles, San Diego, Cal., argued for appellant.
R. Michael Bruney, Asst. U. S. Atty., San Diego, Cal., on the brief, Terry J. Knoepp, U. S. Atty., Robert D. Krause, argued, San Diego, Cal., for plaintiffappellee.
Before BARNES, WALLACE and SNEED, Circuit Judges.
I.
Statement of the Case.
SNEED, Circuit Judge:
Guadalupe Avalos-Ochoa appeals his conviction for six violations of the Immigration and Nationality Act, 8 U.S.C. § 1324(a)(1) and (2), smuggling and transporting of illegal aliens. He was found guilty by a court trial in the United States District Court for the Southern District of California after an evidentiary hearing where a motion to suppress evidence was denied. Appellant was sentenced to the custody of the Attorney General for a period of four years on each count, the sentences to run concurrently.
II.
The Facts.
Following a sensor readout at midnight indicating border crossing activity, Agent Hungate of the United States Border Patrol set up surveillance of an area one mile north of the Mexican border in Imperial Beach, California. The area south of the officer’s position included mountainous terrain, unkept agricultural fields, and some heavily irrigated fields. The area to the north was residential. Hungate, an agent with the Border Patrol for over two years, testified that he had made approximately two hundred alien apprehensions in the immediate area.
At about 3:15 a. m., Hungate saw six or seven people cross the street three blocks away. He then proceeded along streets by which he could close off the area if any vehicles were leaving. At that time the dispatcher informed him that a nearby resident had reported a group of eighteen suspected illegal aliens in his yard. While circling the resident’s block, Agent Hungate saw a low-riding car start up and speed off. At that time he turned on his red light and as the fleeing car increased speed, activated his siren. Following a three block chase at speeds of fifty to eighty miles per hour the car yielded.
Mr. Avalos-Ochoa, who had been driving, got out of the car saying in Spanish that he didn’t want to drive; that someone had told him to drive. His pants were wet and dirty from the knees down. The car contained two other Mexican appearing individuals visible to the officer. Agent Hungate then arrested appellant. Four more individuals were subsequently found in the trunk of the car. All the passengers were determined to be illegal aliens.
HL
The Appeal.
Appellant moved to suppress the evidence of the presence of the alien witnesses in his car as well as their expected testimony at the time of trial. The trial court denied the motion. Mr. Avalos-Ochoa contends on appeal that the border patrol officer lacked (1) a founded or reasonable suspicion to make the investigatory stop of his vehicle, and (2) probable cause to make the arrest. We affirm the district court’s judgment of conviction.
IV.
Discussion.
A. The stop of the vehicle: reasonable suspicion existed.
The courts have recognized that the practical necessities of law enforcement require the allowance of brief investigatory detentions under circumstances that would not constitute probable cause for a search or arrest. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Supreme Court in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), recognized the valid public interest in controlling the illegal entry of aliens at the Mexican border. The Court stated:
. because of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, we hold that when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion.
422 U.S. at 881, 95 S.Ct. at 2580.
To justify such a stop there must be specific articulable facts, and rational inferences therefrom creating a reasonable suspicion that the vehicle contains illegal aliens. This court has held that “founded suspicion” and the “reasonable suspicion” of Brignoni-Ponce are essentially the same. United States v. Rocha-Lopez, 527 F.2d 476 (9th Cir. 1976). Among the facts which an officer can consider in formulating such reasonable suspicion are the location and traffic patterns of the area in which the vehicle is seen, information about recent illegal border crossings in the area, the driver’s behavior such as erratic driving or attempts to escape, the appearance of a heavily loaded car, and the officer’s experience in detecting illegal entry and smuggling. United States v. Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. 2574.
The facts in this case make it clear that the Border Patrol officer at the time he turned on his red light had a reasonable suspicion to make an investigatory stop of the appellant’s vehicle. Not only are the facts neatly within the guidelines of Brignoni-Ponce but also are similar to those in cases in which this court has found that reasonable suspicion existed. See, e. g., United States v. Rocha-Lopez, 527 F.2d 476 (9th Cir. 1976); United States v. Rodriguez-Alvarado, 510 F.2d 1063 (9th Cir. 1975); United States v. Bugarin-Casas, 484 F.2d 853 (9th Cir.), cert. denied, 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762 (1974). It was early morning. The area is in close proximity to the border and known for smuggling activity but with very little other traffic. Sensor activity had indicated movement that night. After the officer saw a group of people walking in the aréa a larger group of people was reported. The only car he saw after he commenced surveillance sped away, riding low in back. Officer Hungate had extensive experience in alien apprehensions in the immediate area. He was reasonable under all the circumstances in believing that the car or its occupants were involved in criminal activity. United States v. Holland, 510 F.2d 453, 455 (9th Cir.), cert. denied, 422 U.S. 1010, 95 S.Ct. 2634, 45 L.Ed.2d 674 (1975).
Appellant argues that the sensor alert which prompted the Border Patrol’s surveillance was over three hours old and so stale that it could not be included as a factor leading to a reasonable suspicion. He also contends that because the informant-resident’s phone call was never verified it failed to meet any indicia of reliability required by Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) which, appellant asserts, adopted the reliability of informants tests of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and made them a part of founded suspicion. Deprived of those factors appellant insists that those remaining are not sufficient to constitute founded suspicion.
We disagree. Adams did not adopt the Spinelli and Aguilar tests of reliability. It recognized that “Informants’ tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability.” 407 U.S. at 147, 92 S.Ct. at 1924, and that “One simple rule will not cover every situation.” Ibid. It acknowledged that an informant’s tip “completely lacking in indicia of reliability” would require additional investigation to provide adequate support for founded suspicion. Ibid.
There is, however, far more here than an unreliable tip. The resident’s phone call, when considered with the sensor alert, the nature of the area in which Agent Hungate was operating, and the sighting of six or seven people crossing the street, ceases to be a cipher in the founded suspicion calculus. Each circumstance acquires significance because of the presence of the other. Their combined weight, when added to the beginning of the appellant’s flight, is sufficient to constitute founded or reasonable suspicion.
B. The arrest: probable cause existed.
An officer, to have probable cause to arrest, must have facts and circumstances within his knowledge and of which he had reasonably trustworthy information sufficient to warrant a prudent man in believing that an offense had been committed and the person arrested had committed it. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Founded suspicion may ripen into probable cause to arrest or search through the occurrence of after-the-stop facts and incidents. United States v. Portillo Reyes, 529 F.2d 844 (9th Cir. 1975); United States v. Rodriguez-Alvarado, 510 F.2d 1063, 1064 (9th Cir. 1975); United States v. Jaime-Barrios, 494 F.2d 455 (9th Cir.), cert. denied, 417 U.S. 972, 94 S.Ct. 3178, 41 L.Ed.2d 1143 (1974); United States v. Barron, 472 F.2d 1215 (9th Cir.), cert. denied, 413 U.S. 920, 93 S.Ct. 3063, 37 L.Ed.2d 1041 (1973).
After Agent Hungate’s valid “stop” of the car driven by the appellant by turning on the red light, the appellant sped away and was apprehended after the officer gave chase. When he exited the car he was saying that he hadn’t wanted to drive. His pants were wet and dirty from the knees down suggesting his route through the gully and wet fields. Two Mexican-appearing individuals were in the ear. Founded suspicion, through the force of these events, was ripened to probable cause to arrest the appellant for transporting illegal aliens. The fact that the agent did not determine the passengers’ alienage prior to appellant’s arrest does not alter this conclusion. The pattern of the events in this case is a familiar one. Under such circumstances to require a determination of alienage of passengers before arresting the driver would resemble urging one about to step over a ditch to measure its width first.
AFFIRMED.
. See United States v. Morrison, 546 F.2d 319 (9th Cir. 1976).
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:
|
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.
EMPLOYEES OF THE DEPARTMENT OF PUBLIC HEALTH AND WELFARE OF MISSOURI et al. v. DEPARTMENT OF PUBLIC HEALTH AND WELFARE OF MISSOURI et al.
No. 71-1021.
Argued January 15, 1973
Decided April 18, 1973
Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and Rehnquist, JJ., joined. Marshall, J., filed an opinion concurring in the result, in which Stewart, J., joined, post, p. 287. Brennan, J., filed a dissenting opinion, post, p. 298.
A. L. Zwerdling argued the cause for petitioners. With him on the brief were Charles R. Oldham and George Kaufmann.
Charles A. Blackmar, Assistant Attorney General of Missouri, argued the cause for respondents. With him on the brief was John C. Danforth, Attorney General.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Griswold and Richard F. Schubert.
Mr. Justice Douglas
delivered the opinion of the Court.
The Eleventh Amendment, adopted in 1795, and formally ratified in 1798, provides:
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
The Eleventh Amendment is the basis of a motion by Missouri to dismiss a complaint filed by employees of state agencies of that State, the Department of Public Health and Welfare, and two of its divisions, the Division of Mental Disease and the Division of Health, and various officials of the Department and of the two Divisions.
Although the Eleventh Amendment is not literally applicable since petitioners who brought suit are citizens of Missouri, it is established that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State. See Hans v. Louisiana, 134 U. S. 1; Duhne v. New Jersey, 251 U. S. 311; Parden v. Terminal R. Co., 377 U. S. 184; C. Jacobs, The Eleventh Amendment and Sovereign Immunity 109-110 (1972).
The employees seek overtime compensation due them under § 16 (b) of the Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U. S. C. § 216 (b), and an equal amount as liquidated damages and attorneys’ fees. The District Court dismissed the complaint. The Court of Appeals, sitting in a panel of three, reversed, one judge dissenting. No. 20,204, Apr. 2, 1971 (not reported). On the filing of a petition for rehearing, the Court of Appeals sat en banc and by a closely divided vote set aside the panel decision and affirmed the judgment of the District Court. 452 F. 2d 820. The case is here on a petition for a writ of certiorari which we granted. 405 U. S. 1016.
The panel of three thought the present case was governed by Parden v. Terminal R. Co., supra. The court sitting en banc thought Parden was distinguishable. That is the central issue argued in the present case.
Farden involved a state-owned railroad operating in interstate commerce; and the claims were those of employees under the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. § 51 et seq. The term carrier for purposes of that Act was defined by Congress as including “[e]very common carrier by railroad while engaging in commerce between any of the several States.” Id., § 51. The Court concluded that Congress designed to bring state-owned, as well as privately owned, carriers within that definition and that it was empowered to do so by the Commerce Clause. The State’s operation of its railroad in interstate commerce, it held, was in subordination to the power of Congress to regulate interstate commerce and application of the FELA to a State in those circumstances was not precluded by sovereign immunity. 377 U. S., at 191-193. The Farden case in final analysis turned on the question of waiver, a majority of the Court holding that it was a federal question since any consent of the State to suit did not arise from an act “wholly within its own sphere of authority” but in the area of commerce, which is subject to pervasive federal regulation. Id., at 196.
It is said that the Fair Labor Standards Act (FLSA) stands on the same foundation, reflecting the power of Congress to regulate conditions of work of those producing goods for commerce, United States v. Darby, 312 U. S. 100, and those whose activities are necessary to the production of goods for commerce. Kirschbaum Co. v. Walling, 316 U. S. 517, 524. By § 3 (d) of the Act, “employer” was first defined to exclude the United States or any State or political subdivision of a State. But in 1966 there was added to § 3 (d) an “except” clause which reads “except with respect to employees of a State, or a political subdivision thereof, employed (1) in a hospital, institution, or school referred to in the last sentence of subsection (r) of this section . . . .” Section 3 (r) was amended at the same time to include: “the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, the mentally ill or defective who reside on the premises of such institution, a school for mentally or physically handicapped or gifted children, an elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit) . . . Identical language was also added in 1966 to subsection 3 (s), which defines “ [enterprise engaged in commerce or in the production of goods for commerce.”
By reason of the literal language of the present Act, Missouri and the departments joined as defendants are constitutionally covered by the Act, as the Court held in Maryland v. Wirts, 392 U. S. 183. The question is whether Congress has brought the States to heel, in the sense of lifting their immunity from suit in a federal court — a question we reserved in Maryland v. Wirtz, supra, at 199-201.
There is no doubt that Congress desired to bring under the Act employees of hospitals and related institutions. S. Rep. No. 1487, 89th Cong., 2d Sess., 8, 22-23; H. R. Rep. No. 1366, 89th Cong., 2d Sess., 3, 11-12, 15, 16-17, 18. But § 16 (b) remained the same. Prior to 1966 and afterward, it read in relevant part:
“Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction . . . .”
The history and tradition of the Eleventh Amendment indicate that by reason of that barrier a federal court is not competent to render judgment against a nonconsenting State. Parden involved the railroad business which Alabama operated “for profit.” 377 U. S., at 185. Parden was in the area where private persons and corporations normally ran the enterprise.
State mental hospitals, state cancer hospitals, and training schools for delinquent girls which are not operated for profit are not proprietary. “Before 1810, only a few eastern-seaboard states had incorporated private institutions to care for the mentally ill, and Virginia alone had established a public asylum.” D. Rothman, The Discovery of the Asylum 130 (1971)., But, as Rothman relates, after that the public sector took over.
Where employees in state institutions not conducted for profit have such a relation to interstate commerce that national policy, of which Congress is the keeper, indicates that their status should be raised, Congress can act. And when Congress does act, it may place new or even enormous fiscal burdens on the States. Congress, acting responsibly, would not be presumed to take such action silently. The dramatic circumstances of the Par-den case, which involved a rather isolated state activity can be put to one side. We deal here with problems that may well implicate elevator operators, janitors, charwomen, security guards, secretaries, and the like in every office building in a State’s governmental hierarchy. Those who follow the teachings of Kirschbaum v. Walling, supra, and see its manifold applications will appreciate how pervasive such a new federal scheme of regulation would be.
But we have found not a word in the history of the 1966 amendments to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts. The Parden opinion did state that it would be “surprising” to learn that Congress made state railroads liable to employees under the PELA, yet provided “no means by which that liability may be enforced.” 377 U. S., at 197. It would also be surprising in the present case to infer that Congress deprived Missouri of her constitutional immunity without changing the old § 16 (b) under which she could not be sued or indicating in some way by clear language that the constitutional immunity was swept away. It is not easy to infer that Congress in legislating pursuant to the Commerce Clause, which has grown to vast proportions in its applications, desired silently to deprive the States of an immunity they have long enjoyed under another part of the Constitution. Thus, we cannot conclude that Congress conditioned the operation of these facilities on the forfeiture of immunity from suit in a federal forum.
By holding that Congress did not lift the sovereign immunity of the States under the PLSA, we do not make the extension of coverage to state employees meaningless. Cf. Parden v. Terminal R. Co., supra, at 190. Section 16 (c) gives the Secretary of Labor authority to bring suit for unpaid minimum wages or unpaid overtime compensation under the FLSA. Once the Secretary acts under § 16 (c), the right of any employee or employees to sue under § 16' (b) terminates. Section 17 gives the Secretary power to seek to enjoin violations of the Act and to obtain restitution in behalf of employees. Sections 16 and 17 suggest that since private enforcement of the Act was not a paramount objective, disallowance of suits by state employees and remitting them to relief through the Secretary of Labor may explain why Congress was silent as to waiver of sovereign immunity of the States. For suits by the United States against a State are not barred by the Constitution. See United States v. Mississippi, 380 U. S. 128,140-141. In this connection, it is not amiss to note that § 16 (b) allows recovery by employees, not only of the amount of unpaid wages, but of an equal amount as liquidated damages and attorneys’ fees. It is one thing, as in Parden, to make a state employee whole; it is quite another to let him recover double against a State. Recalcitrant private employers may be whipped into line in that manner. But we are reluctant to believe that Congress in pursuit of a harmonious federalism desired to treat the States so harshly. The policy of the Act so far as the States are concerned is wholly served by allowing the delicate federal-state relationship to be managed through the Secretary of Labor.
The Solicitor General, as amicus curiae, argues that Hans v. Louisiana, 134 U. S. 1, should not be construed to apply to the present case, his theory being that in Hans the suit was one to collect on coupons attaching to state bonds, while in the instant case the suit is a cause of action created by Congress and contained in § 16 (b) of the Act. It is true that, as the Court said in Harden, “the States surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce.” 377 U. S., at 191. But we decline to extend Parden to cover every exercise by Congress of its commerce power, where the purpose of Congress to give force to the Supremacy Clause by lifting the sovereignty of the States and putting the States on the same footing as other employers is not clear.
We are told that the FLSA in 1971 covered 45.4 million employees and nearly 2 million establishments, and that 2.7 million of these employees and 118,000 of these establishments were in state or local government employment. We are also told that less than 4% of these establishments can be investigated by the Secretary of Labor each year. The argument is that if we deny this direct federal court remedy, we in effect are recognizing that there is a right without any remedy. Section 16 (b), however, authorizes employee suits in “any court of competent jurisdiction.” Arguably, that permits suit in the Missouri courts but that is a question we need not reach. We are concerned only with the problem of this Act and the constitutional constraints on “the judicial power” of the United States.
Affirmed.
The dissent argues that “Parden held that a federal court determination of such suits cannot be precluded by the doctrine of sovereign immunity because the States surrendered their sovereignty to that extent when they granted Congress the power to regulate commerce.” Post, at 299. But, the plain language of the Court’s opinion in Parden belies this assertion. For example, the Court stated:
“Recognition of the congressional power to render a State suable under the FELA does not mean that the immunity doctrine, as embodied in the Eleventh Amendment with respect to citizens of other States and as extended to the State’s own citizens by the Hans case, is here being overridden. It remains the law that a State may not be sued by an individual without its consent.” 377 U. S. 184, 192. The Court then repeated that “[a] State’s immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court.” Id., at 196. As we read these passages, and clearly as the dissent in Parden read them, id., at 198, they dealt with constitutional constraints on the exercise of the federal judicial power. Moreover, if Parden was concerned merely with the surrender of common-law sovereign immunity when the States granted Congress the power to regulate commerce, it would seem unnecessary to reach the question of waiver or consent, for Congress could subject the States to suit by their own citizens whenever it was deemed necessary or appropriate to the regulation of commerce. No more would be required. But, there can be no doubt that the Court’s holding in Parden was premised on the conclusion that Alabama, by operating the railroad, had consented to suit in the federal courts under FELA. Id., at 186.
“Few departures from colonial practices occurred in the first forty years after independence; the insane commonly languished in local jails and poorhouses or lived with family and friends. But in the course of the next few decades, in a dramatic transformation, state after state constructed asylums. Budding manufacturing centers like New York and Massachusetts erected institutions in the 1830’s, and so did the agricultural states of Vermont and Ohio, Tennessee and Georgia. By 1850, almost every northeastern and midwestern legislature supported an asylum; by 1860, twenty-eight of the thirty-three states had public institutions for the insane. Although not all of the mentally ill found a place within a hospital, and a good number among the aged and chronic poor remained in almshouses and jails, the institutionalization of the insane became the standard procedure of the society during these years. A cult of asylum swept the country.” Ibid.
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:
|
sc_adminaction_is
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider 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.
THOMPSON v. NORTH AMERICAN STAINLESS, LP
No. 09-291.
Argued December 7, 2010
Decided January 24, 2011
Eric Schnapper argued the cause for petitioner. With him on the briefs were David O’Brien Suetholz, Lisa S. Blatt, and Anthony Franze.
Acting Principal Deputy Solicitor General Kruger argued the cause for the United States as amicus curiae in support of petitioner. With her on the brief were Acting Solicitor General Katyal, Assistant Attorney General Perez, Deputy Assistant Attorney General Bagenstos, Joseph R. Palmore, P. David Lopez, Carolyn L. Wheeler, and Gail S. Coleman.
Leigh Gross Latherow argued the cause for respondent. With her on the brief were William H. Jones, Jr., Gregory L. Monge, and Nathaniel K. Adams.
Briefs of amici curiae urging reversal were filed for the National Employment Lawyers Association et al. by Michael L. Foreman, Rebecca M. Hamburg, Jeffrey R. White, Daniel B. Kohrman, Linda D. Kilb, Sarah C. Crawford, and Claudia Center; and for the National Women’s Law Center et al. by Helen Norton, Miarcia D. Greenberger, and Dina R. Lassow.
Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States of America by Patricia A. Millett, Robin S. Conrad, and Shane B. Kawka; and for the Equal Employment Advisory Council et al. by Roe T. Vann, Quentin Riegel, Karen R. Harned, and Elizabeth Milito.
Justice Scalia
delivered the opinion of the Court.
Until 2003, both petitioner Eric Thompson and his fiance, Miriam Regalado, were employees of respondent North American Stainless (NAS). In February 2003, the Equal Employment Opportunity Commission (EEOC) notified NAS that Regalado had filed a charge alleging sex discrimination. Three weeks later, NAS fired Thompson.
Thompson then filed a charge with the EEOC. After conciliation efforts proved unsuccessful, he sued NAS in the United States District Court for the Eastern District of Kentucky under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. § 2000e et seq., claiming that NAS had fired him in order to retaliate against Regalado for filing her charge with the EEOC. The District Court granted summary judgment to NAS, concluding that Title VII “does not permit third party retaliation claims.” 435 F. Supp. 2d 633, 639 (ED Ky. 2006). After a panel of the Sixth Circuit reversed the District Court, the Sixth Circuit granted rehearing en banc and affirmed by a 10-to-6 vote. 567 F. 3d 804 (2009). The court reasoned that because Thompson did not “engag[e] in any statutorily protected activity, either on his own behalf or on behalf of Miriam Regalado,” he “is not in-eluded in the class of persons for whom Congress created a retaliation cause of action.” Id., at 807-808.
We granted certiorari. 561 U. S. 1041 (2010).
I
Title VII provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has made a charge” under Title VII. 42 U. S. C. § 2000e-3(a). The statute permits “a person claiming to be aggrieved” to file a charge with the EEOC alleging that the employer committed an unlawful employment practice, and, if the EEOC declines to sue the employer, it permits a civil action to “be brought ... by the person claiming to be aggrieved ... by the alleged unlawful employment practice.” §2000e-5(b), (f)(1).
It is undisputed that Regalado’s filing of a charge with the EEOC was protected conduct under Title VII. In the procedural posture of this case, we are also required to assume that NAS fired Thompson in order to retaliate against Regalado for filing a charge of discrimination. This case therefore presents two questions: First, did NAS’s firing of Thompson constitute unlawful retaliation? And second, if it did, does Title VII grant Thompson a cause of action?
II
With regard to the first question, we have little difficulty concluding that if the facts alleged by Thompson are true, then NAS’s firing of Thompson violated Title VII. In Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006), we held that Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct. We reached that conclusion by contrasting the text of Title VII’s antiretaliation provision with its substantive antidiscrimination provision. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin “ ‘with respect to ... compensation, terms, conditions, or privileges of employment/” and discriminatory practices that would “ 'deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.’” Id., at 62 (quoting 42 U. S. C. § 2000e-2(a); emphasis deleted). In contrast, Title VII’s antiretaliation provision prohibits an employer from " 'discriminating] against any of his employees’ ” for engaging in protected conduct, without specifying the employer acts that are prohibited. 548 U. S., at 62 (quoting §2000e-3(a); emphasis deleted). Based on this textual distinction and our understanding of the antiretaliation provision’s purpose, we held that ''the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Id., at 64. Rather, Title YII’s antiretaliation provision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id., at 68 (internal quotation marks omitted).
We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired. Indeed, NAS does not dispute that Thompson’s firing meets the standard set forth in Burlington. Tr. of Oral Arg. 30. NAS raises the concern, however, that prohibiting reprisals against third parties will lead to difficult line-drawing problems concerning the types of relationships entitled to protection. Perhaps retaliating against an employee by firing his fiance would dissuade the employee from engaging in protected activity, but what about firing an employee’s girlfriend, close friend, or trusted co-worker? Applying the Burlington standard to third-party reprisals, NAS argues, will place the employer at risk any time it fires any employee who happens to have a connection to a different employee who filed a charge with the EEOC.
Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VIL As explained above, we adopted a broad standard in Burlington because Title VIPs antiretaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.
We must also decline to identify a fixed class of relationships for whieh third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in Burlington, 548 U. S., at 69, "the significance of any given act of retaliation will often depend upon the particular circumstances.” Given the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules. We emphasize, however, that "the provision’s standard for judging harm must be objective,” so as to “avoi[d] the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.” Id., at 68-69.
Ill
The more difficult question in this case is whether Thompson may sue NAS for its alleged violation of Title VII. The statute provides that “a civil action may be brought ... by the person claiming to be aggrieved.” 42 U. S. C. §2000e-5(f)(1). The Sixth Circuit concluded that this provision was merely a reiteration of the requirement that the plaintiff have Article III standing. 567 F. 3d, at 808, n. 1. We do not understand how that can be. The provision unquestionably permits a person “claiming to be aggrieved” to bring “a civil action.” It is arguable that the aggrievement referred to is nothing more than the minimal Article III standing, which consists of injury in fact caused by the defendant and remediable by the court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). But Thompson’s claim undoubtedly meets those requirements, so if that is indeed all that aggrievement consists of, he may sue.
We have suggested in dictum that the Title VII aggrievement requirement conferred a right to sue on all who satisfied Article III standing. Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 (1972), involved the “person aggrieved” provision of Title VIII (the Fair Housing Act) rather than Title VII. In deciding the case, however, we relied upon, and cited with approval, a Third Circuit opinion involving Title VII, which, we said, “concluded that the words used showed ‘a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.’ ” Id., at 209 (quoting Hackett v. McGuire Bros., Inc., 445 F. 2d 442, 446 (1971)). We think that dictum regarding Title VII was too expansive. Indeed, the Trafficante opinion did not adhere to it in expressing its Title VIII holding that residents of an apartment complex could sue the owner for his racial discrimination against prospective tenants. The opinion said that the “person aggrieved” of Title VIII was coextensive with Article III “insofar as tenants of the same housing unit that is charged with discrimination are concerned.” 409 U. S., at 209 (emphasis added). Later opinions, we must acknowledge, reiterate that the term “aggrieved” in Title VIII reaches as far as Article III permits, see Bennett v. Spear, 520 U. S. 154, 165-166 (1997); Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 109 (1979), though the holdings of those cases are compatible with the “zone of interests” limitation that we discuss below. In any event, it is Title VII rather than Title VIII that is before us here, and as to that we are surely not bound by the Trafficante dictum.
We now find that this dictum was ill-considered, and we decline to follow it. If any person injured in the Article III sense by a Title VII violation could sue, absurd consequences would follow. For example, a shareholder would be able to sue a company for firing a valuable employee for racially discriminatory reasons, so long as he could show that the value of his stock decreased as a consequence. At oral argument Thompson acknowledged that such a suit would not lie, Tr. of Oral Arg. 5-6. We agree, and therefore conclude that the term “aggrieved” must be construed more narrowly than the outer boundaries of Article III.
At the other extreme from the position that “person aggrieved” means anyone with Article III standing, NAS argues that it is a term of art that refers only to the employee who engaged in the protected activity. We know of no other context in which the words carry this artificially narrow meaning, and if that is what Congress intended it would more naturally have said “person claiming to have been discriminated against” rather than “person claiming to be aggrieved.” We see no basis in text or prior practice for limiting the latter phrase to the person who was the subject of unlawful retaliation. Moreover, such a reading contradicts the very holding of Trafficante, which was that residents of an apartment complex were “person[s] aggrieved” by discrimination against prospective tenants. We see no reason why the same phrase in Title VII should be given a narrower meaning.
In our view there is a common usage of the term “person aggrieved” that avoids the extremity of equating it with Article III and yet is fully consistent with our application of the term in Trafficante. The Administrative Procedure Act, 5 U. S. C. § 551 et seq., authorizes suit to challenge a federal agency by any “person . . . adversely affected or aggrieved . . . within the meaning of a relevant statute.” §702. We have held that this language establishes a regime under which a plaintiff may not sue unless he “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan v. National Wildlife Federation, 497 U. S. 871, 883 (1990). We have described the “zone of interests” test as denying a right of review “if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Securities Industry Assn., 479 U. S. 388, 399-400 (1987). We hold that the term “aggrieved” in Title VII incorporates this test, enabling suit by any plaintiff with an interest “arguably [sought] to be protected by the statute,” National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U. S. 479, 495 (1998) (internal quotation marks omitted), while excluding plaintiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII.
Applying that test here, we conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation — collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue.
* * *
The judgment of the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Kagan took no part in the consideration or decision of this case.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
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songer_applfrom
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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 type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES of America, Appellee, v. Joseph DOUGHERTY, Appellant.
No. 86-1642.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 11, 1986.
Decided Jan. 28, 1987.
Duane L. Nelson, Lincoln, Neb., for appellant.
Steven A. Russell, Asst. U.S. Atty., Lincoln, Neb., for appellee.
Before JOHN R. GIBSON and FAGG, 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.
HANSON, Senior District Judge.
Joseph Dougherty brings a number of issues before the court, appealing his conviction on two counts of violation of 7 U.S.C. § 2024(b), the unlawful acquisition of food stamps. For the reasons stated below, we affirm the decision of the district court.
I.
In March 1985, while working as an undercover agent involved in the enforcement of food stamp laws, Special Agent Joseph F. Meusberger met Arnold Kehm. Using the identity of “Joe Scott,” Meusberger told Kehm that if he should meet anyone who was interested in buying food stamp coupons that he could contact him.
In May of 1985, Meusberger learned Kehm had found someone who wanted to purchase food stamps. On May 14, 1985, Meusberger and Kehm went to the Mountains Bar in Lincoln, Nebraska and met with Joseph Dougherty. During that meeting Meusberger informed them that he had a girl friend who worked in the food stamp office and could obtain as many food stamps as he wanted. Dougherty and Kehm agreed to purchase food stamps.
On May 15, 1985, Meusberger again met with Dougherty and Kehm at the Mountains Bar, with Dougherty purchasing $970 in food stamps in exchange for $485 in cash. At this time, also, Meusberger gave Dougherty a telephone number so that Dougherty could reach him if he ever wanted to purchase additional food stamps.
No further contact was made by the secret service with Dougherty. On July 29, 1985, Dougherty called the undercover phone number at the office of the Secret Service, indicating to Special Agent Kelly Ward that he wanted to purchase additional food stamps. As a result of that contact, a meeting was scheduled so that Hol-ger Beckman, another Secret Service Agent, could meet Dougherty on July 31, 1985. At that time Dougherty purchased $950 in food stamps in exchange for $480 in cash.
The Secret Service had no further contact with Dougherty until he called the undercover number again on November 8, 1985, indicating his desire to purchase further food stamps. Dougherty initially stated that he could use $3,000 worth of food stamps. However, after learning that this might be his last opportunity to purchase stamps, Dougherty changed the figure to $4,000 worth of food stamps. During a still later phone conversation, Dougherty advised Meusberger that he was interested in acquiring all the $10,000 of food stamps that Meusberger indicated were available.
On November 20, 1985, Meusberger contacted Dougherty by phone and advised him that he had the $10,000 in food stamps Dougherty had requested. At this point Meusberger proceeded to Dougherty’s home where he met with Dougherty and Dougherty’s son. After some discussion, it was agreed that Meusberger would accept two checks totalling $5,000 for the $10,000 in food stamps. Meusberger again explained that his girlfriend stole the food stamps from work and expressed his desire not to go to jail as a result of this transaction. Meusberger then gave the food stamps to Dougherty who counted them to verify the amount. After determining that there were only $9,000 in food stamps instead of the $10,000 as agreed to, Meusber-ger left the checks and food stamps and walked out the door of the residence, ostensibly to obtain the final $1,000 in stamps. Once outside, Meusberger directed a surveillance team to enter the home and arrest Dougherty and his son. As the surveillance team was entering the house, Dough-erty attempted to throw the packages of food stamps out of the back door.
Following his arrest, Dougherty was interrogated by the Secret Service. He admitted purchasing $970 in food stamps on May 15, 1985 at the Mountains Bar, and further acknowledged that on July 31,1985 he purchased $950 in food stamps for $480 in cash. He also admitted that he had attempted to purchase $10,000 worth of food stamps for $5,000 in cash on November 20, 1985.
II.
In his opening statement to the jury, the prosecutor made the following statement: “We also expect to call Mr. Artie Kehm who has himself been convicted of a felony offense relating to this investigation.” The district court denied Dougherty’s motion for a mistrial as a result of this statement. Subsequently, the court gave a curative instruction to the jury.
Dougherty asserts these statements made by the prosecutor in his opening statement warranted the district court to declare a mistrial. He asserts that under Fed.R.Evid. 609(a), the prosecution cannot mention a witness’s prior conviction during opening statement. Under the law of this Circuit, the test for reversible prosecutorial misconduct has two parts: (a) the prosecutor’s remarks or conduct must have in fact been improper, and (b) such remarks or conduct must have prejudicially affected the defendant’s substantial rights so as to deprive the defendant of a fair trial. United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.1985). Not every impropriety of argument calls for a new trial or for a reversal of a judgment of conviction; nor should appellate courts reverse for such improprieties unless persuaded that they prejudice the defendant and the prejudice was not removed by the trial judge before submission of the case to the jury. Keeble v. United States, 347 F.2d 951, 956 (8th Cir.), cert. denied, 382 U.S. 940, 86 S.Ct. 394, 15 L.Ed.2d 350 (1965). Moreover, the denial of a motion for mistrial is placed in the sound discretion of the district court and may only be reversed on a showing of abuse of discretion. Hernandez, 779 F.2d at 458.
A.
We believe that the Assistant United States Attorney’s reference in opening statement to Kehm’s conviction was improper. The government asserts that its reference to Kehm’s conviction was an attempt to blunt any potential impeachment of his credibility which would imply that he was lying in order to have his own sentence reduced. See Hernandez, 779 F.2d at 459; United States v. Veltre, 591 F.2d 347, 349 (5th Cir.1979). We would place credence in the government’s argument if there were reason to believe the blunting was indeed necessary to avoid impeachment of Kehm. In fact, the prosecutor failed to blunt on direct examination any cross-examination which would go into Kehm’s felony conviction; instead, the prosecutor told the jury gratuitously in opening statement that Kehm was convicted of a felony in this very set of transactions. By referring to Kehm’s conviction in his opening statement, instead of waiting until direct examination, the Assistant United States Attorney created not only the possibility of a mistrial, but also the real potential that on appellate review, dependent upon the prejudicial effect of the prosecutor’s remarks, an otherwise valid conviction could be reversed. See United States v. Pierce, 792 F.2d 740, 740 (8th Cir.1986); Hernandez, 779 F.2d at 459-60. This case demonstrates once again that too often in strong cases prosecutors make statements they need not make. Having let his “zeal out run discretion,” United States v. Killian, 524 F.2d 1268, 1274 (5th Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1667, 48 L.Ed.2d 177 (1976), the prosecutor forces us to determine the prejudicial effect of his statement.
B.
To determine the prejudicial effect of the prosecutor’s improper statements, we must examine: (1) the cumulative effect of such misconduct; (2) the strength of the properly admitted evidence of the defendant's guilt; and (3) the curative actions taken by the trial court. Hernandez, 779 F.2d at 460.
In the present case, when viewed in the context of the entire trial, the statement made by the prosecutor had little, if any, cumulative effect on the outcome of the trial. The prosecutor made no further reference to Kehm’s felony conviction and took additional measures to see to it that Kehm did not talk about his felony conviction during direct examination. Furthermore, the fact that the jury found Dough-erty not guilty of the only transaction regarding the prosecutor’s improper statement suggests that there was little cumulative effect on the jury.
In addition, there was overwhelming evidence of guilt as to the second and third counts irrespective of the improper statement made by the prosecutor. Tape recordings of each transaction, testimony, and exhibits conclusively demonstrated Dougherty’s guilt with regard to the transactions occurring on July 31 and November 20.
Finally, the curative action taken by the trial court eliminated any prejudicial impact the improper statement would have had. The district court offered to give a curative instruction to the jury regarding the prosecutor’s remarks. The court then advised the defendant that it would give such an instruction when requested by counsel. During the instruction conference, defendant’s counsel did not object to giving a cautionary instruction, although not abandoning his motion for a mistrial. The court thereafter instructed the jury:
During his opening statement on Monday, the government counsel said Artie Kehm had been convicted of a felony. There is no evidence that Artie Kehm had been convicted of a felony and you must disregard entirely the statement that he has been.
(Tr. 720-21). Ideally, the trial court should have given a cautionary instruction to the jury immediately after the misconduct had occurred. Hernandez, 779 F.2d at 461. Although the curative instruction was not given immediately after the improper statement had been made by the prosecutor, it is clear that the district court’s remedial action alleviated any possible prejudice. As a result, in the totality of the circumstances of the entire trial, there was no prejudice to the defendant because of the prosecutor’s reference to Kehm’s conviction.
C.
In closing argument, the prosecutor made the following statement:
Let me talk first of all about this notion of specific intent. * * * The instruction only requires * * * that a defendant do an act which he believes the law forbids. Not the food stamp law. Mr. Nelson would suggest that you graft more into the instruction than is there. All I can say in that regard is to look at the instruction and to consider the instruction in the light of your common sense usage as to language.
(Tr. 709). Dougherty asserts prejudicial error regarding this comment. He argues that the insertion of the words “he believes” in the prosecutor’s closing argument misled the jury to such an extent that a new trial is warranted. We do not believe that the prosecutor’s statement in closing argument rises to the level of pros-ecutorial misconduct. Rather, the prosecutor’s statement was nothing more than a recital of the holding in Liparota v. United States, 471 U.S. 419, 433-34, 105 S.Ct. 2084, 2092, 85 L.Ed.2d 434 (1985), in which the Court stated that “the Government need not show that he had knowledge of specific regulations governing food stamp acquisition or possession.” Id. at 434, 105 S.Ct. at 2092. The district court, therefore, did not err in denying Dougherty’s motion for a mistrial with regard to the prosecutor’s closing argument.
III.
Dougherty also contends that the evidence presented at trial established that he was entrapped by agents of the Secret Service, and that he should have been acquitted on all counts without submitting the case to the jury.
In order for Dougherty to establish entrapment as a matter of law,
[t]he evidence must have clearly indicated that a government agent originated the criminal design; that the agent implanted in the mind of an innocent person the disposition to commit the offense; and that the defendant then committed the criminal act at the urging of the government agent.
United States v. Shaw, 570 F.2d 770, 772 (8th Cir.1978). As the Supreme Court has indicated, the principal focus of this inquiry is upon the “intent or predisposition of the defendant to commit the crime.” United States v. Russell, 411 U.S. 423, 429, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973). In distinguishing between the naive first offender and the street wise habitue, the cases reveal that the most important predisposition factor is whether a defendant’s reluctance to engage in criminal activity has been overcome by repeated government inducement. United States v. Lard, 734 F.2d 1290, 1294 (8th Cir.1984). Viewing the evidence in this case in a light most favorable to the government, we conclude that the evidence established that Dougherty was predisposed to commit the charged crimes.
It is clear that Dougherty initiated contact with the Secret Service agents on July 29 and November 8, 1985 in order to purchase food stamps. He specified the dollar amount and, during the latter of the two transactions, actually increased the dollar amount at his own suggestion. The Secret Service agents did no more than offer him an opportunity to commit a crime. He willingly and knowingly engaged in a course of criminal conduct which he knew to be illegal.
Dougherty further argues that it is possible to infer from the jury’s dismissal of Count II that the jury found that he had been entrapped with regard to the May 5, 1985 purchase of food stamps. He therefore contends by inference that Counts III and IV would have to be dismissed as well because tainted by the first transaction.
In a nearly identical case to the one at bar, the Seventh Circuit stated:
[t]he court knows of no per se rule which provides that the taint of the first entrapment requires judgments of acquittal as to all subsequent transactions. To the contrary, as long as the evidence was sufficient to support the counts on which the defendant was actually convicted, a jury verdict reflecting compromise or even inconsistency is permissible and legitimate.
United States v. Fields, 689 F.2d 122, 125-26 (7th Cir.1982). Furthermore, the jury verdict in this case was not necessarily inconsistent. Even though the jury found Dougherty not guilty of Count II, we find that the additional evidence of Dougherty’s conduct in arranging for the July 31 and November 20, 1985 food stamp purchases clearly establishes the requisite predisposition as to Counts III and IV. We, therefore, reject Dougherty’s argument that his conviction for only the subsequent offenses was improper.
In addition to his entrapment argument, Dougherty argues that the government agents violated his due process rights and that he should have been given the opportunity to present evidence on this issue to the jury for its consideration. In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), a plurality of the Court held that once predisposition had been shown, government misconduct could never be used to overturn the conviction, not even on due process grounds; rather, the remedy lies in prosecuting the police. Id. at 490, 96 S.Ct. at 1650. However, five justices disagreed with this view, stating that due process may bar a conviction where the conduct of law enforcement authorities is sufficiently offensive, even though the defendant is “predisposed.” Id. at 492, 96 S.Ct. at 1651 (Powell, J., concurring, joined by J. Blackmun); id. at 497, 96 S.Ct. at 1653 (Brennan, J. dissenting, joined by JJ. Stewart and Marshall). Therefore, apart from our conclusion that Dougherty failed to prove his entrapment defense, we need to examine whether the government conduct was “so outrageous that due process principles should bar the government from invoking judicial processes to obtain a conviction.” United States v. Russell, 411 U.S, at 431-32, 93 S.Ct. at 1643; United States v. Lard, 734 F.2d at 1296-97.
We do not believe that the government conduct in this case involved extreme and questionable measures triggering fundamental fairness concerns. As stated earlier, the uncontroverted evidence established that Dougherty was predisposed to buy food stamps. In fact, the evidence demonstrates that it was Dougherty who initiated the July 31, 1985 and November 20,1985 transactions. Moreover, whatever the parameters of the due process bar may be, it does not include the mere sale by the government of contraband to one predisposed to buy it. Hampton, 425 U.S. at 489-91, 96 S.Ct. at 1649-51. As the Court stated in United States v. Khatib, 706 F.2d 213 (7th Cir.1983):
If his position were accepted, no conviction could ever be based on the sale of contraband by a government agent, because the agent would have introduced the essence of the illegality into the transaction.
Id. at 217. Moreover, the most effective way to catch and deter those who deal in large quantities of stolen food stamps may be for the government itself to provide the stamps to willing buyers. United States v. Parisi, 674 F.2d 126,127 (1st Cir.1982); see also United States v. Salazar, 720 F.2d 1482, 1488 (10th Cir.1983). Thus, the district court properly concluded that Dough-erty’s due process rights had not been violated by the Secret Service agents’ selling him food stamps.
Dougherty next asserts that, if a due process violation were not established as a matter of law, he should have been allowed to introduce relevant evidence on this issue and the question should have been submitted to the jury for determination. In United States v. Quinn, 543 F.2d 640 (8th Cir.1976), this court held that “[a] claim of entrapment on the basis of outrageous government involvement does not present any question for a jury to decide but solely a question of law for the court.” Id. at 648. In United States v. Johnson, 565 F.2d 179 (1st Cir.1977), the court held:
Under any view, it is the court’s province to decide whether a defendant’s case was such that, if believed, it would fall into the exceptional category mentioned by Justice Powell [in Hampton v. United States, 425 U.S. 484, 493, 96 S.Ct. 1646, 1651, 48 L.Ed.2d 113 (1976)]. If such a determination were left to a jury’s unguided discretion, as under the instruction proposed here, the entrapment defense as now understood would be transformed into an invitation to twelve juors to consider in virtually any case whether the defendant was treated “fairly.” Whatever its possible role in resolving contested factual issues raised by an entrapment defense, the jury is not equipped and should not be permitted to speculate on whether particular facts do or do not amount to fundamental fairness.
Id. at 181-82. We conclude that the district court properly refused to submit the issue of a due process violation to the jury. Moreover, because this was a question of law for the court to decide, we find no error in the district court’s refusal to allow Dougherty to present evidence to the jury of a due process violation.
IV.
Dougherty asserts that the government failed to present sufficient evidence of an unauthorized acquisition of food stamps, of his specific intent, and that he actually had acquired food stamps on November 20, 1985.
Dougherty contends that there was no evidence of his unauthorized acquisition of food stamps in that Agent Meusberger legitimately possessed the stamps pursuant to a memorandum between the United States Secret Service and the Department of Agriculture; therefore, because Meusberger was authorized to possess the food stamps, Dougherty asserts that it could not have been a violation of 7 U.S.C. § 2024(b)(1) for him to have purchased them. In United States v. French, 683 F.2d 1189 (8th Cir.1982), we stated:
In 7 U.S.C. § 2024(a), Congress authorized the issuance or presentment of food stamps for enforcement purposes. In 7 U.S.C. § 2024(b), Congress made the unauthorized acquisition of food stamps a crime. Obviously, Congress did not intend to exempt from criminal penalties anyone who acquired food stamps from an undercover agent. The fact that a seller is authorized to sell does not mean that the buyer must necessarily be cloaked with authority to buy.
Id. at 1194-95 (quoting United States v. Stencil, 629 F.2d 984, 985 (4th Cir.1980)); see also United States v. Burrell, 720 F.2d 1488, 1493-94 (10th Cir.1983). So, too, in this case because Meusberger was authorized to sell food stamps does not vest Dougherty with authority to purchase food stamps. Thus, we find this argument to be without merit.
Dougherty next argues that specific intent was not proven at trial because the government never demonstrated that he specifically knew what he was doing was unlawful. In Liparota v. United States, 471 U.S. 419,105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), the Court stated:
This holding does not put an unduly heavy burden on the Government in prosecuting violators of § 2024(b). To prove that petitioner knew that his acquisition or possession of food stamps was unauthorized, for example, the Government need not show that he had knowledge of specific regulations governing food stamp acquisition or possession. Nor must the Government introduce any extraordinary evidence that would conclusively demonstrate petitioner’s state of mind. Rather, as in any other criminal prosecution requiring mens rea, the Government may prove by reference to facts and circumstances surrounding the case that petitioner knew that his conduct was unauthorized or illegal.
Id. at 433-34, 105 S.Ct. at 2092. The Court went on to note that evidence that a person bought food stamps at a substantial discount from face value, that the transaction took place in a back room to avoid being seen by others, and that the stamps had been marked “nontransferable” could lead to an inference that the petitioner knew his acquisition and possession of food stamps was unauthorized. Id. at 434 n. 17, 105 S.Ct. at 2093 n. 17.
The evidence in the present case indicates that Dougherty knew that he was obtaining the food stamps from a man whose girlfriend was stealing them from her workplace. In addition, he purchased them for half of their face value. Moreover, each of the food stamps that he was given was stamped “nontransferable.” The jury could therefore reasonably infer from the evidence presented at trial that Dougherty knew that he was acting in violation of some law or regulation. The district court properly submitted the issue of specific intent to the jury and the jury properly found from the evidence that Dougherty knew his acquisition of food stamps was not authorized.
Dougherty further contends that the district court should have given his proffered instruction on the issue of specific intent. Dougherty’s instruction would have required the government to prove he knew “regulations did not authorize him to acquire food stamps for money from a government agent who was then in lawful possession of the stamps.” However, his instruction is an incorrect statement of the law. See infra at 772-73; see also Liparota, 471 U.S. at 422 n. 3, 105 S.Ct. at 2086 n. 3. We find no error in the district court’s refusal to submit Dougherty’s instruction on the issue of specific intent.
Dougherty next argues that there was no evidence that he actually acquired the food stamps on November 20, 1985 because the transaction had not been completed at the time the Secret Service agents arrested him. Meusberger testified that Dougherty had taken physical possession of $9,000 in food stamps, counted the stamps book by book, and that he had the food stamps in his possession when the Secret Service agents arrested him. The evidence further indicated that Dougherty’s son made out two checks, payable to Agent Muesberger’s undercover identity, “Joe Scott,” and handed both checks to Agent Meusberger while Dougherty was counting the food stamps.
The applicable statute, 7 U.S.C. § 2024(b)(1), states that “whoever knowingly * * * acquires * * * or possesses coupons or authorization cards in any manner not authorized by this chapter or the regulations issued pursuant to this chapter shall * * .* be guilty of a felony * * The evidence shows that the November 20 transaction was interrupted only after Dougherty had taken the food stamps and counted them, and his son had written checks of $5,000 in order to purchase the stamps. Thus, the jury could reasonably conclude that Dougherty had “acquired” or “possessed” the stamps in violation of the statute.
V.
Dougherty alleges that the superceding indictment charging him was insufficient because it did not specifically make reference to the statutes and regulations regarding what constitutes an unauthorized manner of acquiring food stamps. He further argues that the regulations themselves are too nonspecific to support a criminal prosecution, and that the district court erred in failing to dismiss the indictment and failing to give his requested instruction on the food stamp program.
The superceding indictment charged that Dougherty “did knowingly acquire United States Department of Agriculture food stamp coupons * * * in a manner not authorized by the provisions of Chapter 51, Title 7, United States Code, and the regulations issued pursuant to said Chapter.” The indictment follows the wording of the statute. It fully, expressly, and without ambiguity sets forth the elements necessary to constitute the offense, and contains a statement of facts and circumstances sufficient to inform the accused of the offense with which he is charged. United States v. French, 683 F.2d at 1194. Thus, Dougherty’s argument concerning the sufficiency of the indictment is without merit.
Dougherty cites no authority to support his contention that his proffered food stamp program instruction was a more correct statement of the law than the instruction submitted by the court. The instruction given was approved by this court in French. 683 F.2d at 1195. He therefore demonstrates no error in the instruction given by the district court.
VI.
In response to an oral motion to suppress, the prosecution presented evidence outside the presence of the jury, regarding a statement made by Dougherty on November 20, 1985 to the Secret Service. After Dougherty had been informed of his rights, he signed a form indicating that he understood his rights and had no further questions regarding them. The interrogating agent then obtained Dougherty’s statement which Dougherty read and signed as accurate.
Dougherty now argues that the statement should not have been introduced into evidence because the agent did not receive an express waiver of each right found on the warning of rights form and statement form. The court ruled that the statement given by Dougherty was freely, voluntarily, and knowingly made, and thus allowed the introduction of evidence regarding his confession.
Whenever the state bears the burden of proof in a motion to suppress a statement that the defendant claims was obtained in violation of his Miranda rights, the state need prove waiver only by a preponderance of the evidence. Colorado v. Connelly, — U.S.-, 107 S.Ct. 515, 523, 93 L.Ed.2d 473 (1986). The question of whether a defendant has waived Miranda rights is one of fact, and the trial judge’s findings of fact regarding defendant’s waiver will not be overturned unless clearly erroneous. United States v. Ashby, 771 F.2d 392, 395 (8th Cir.1985). The totality of the circumstances of each case must be examined to determine if an accused has made a voluntary, knowing, and intelligent waiver of his rights to remain silent and to have counsel present. Lamp v. Farrier, 763 F.2d 994 997 (8th Cir.), cert. denied, — U.S.-, 106 S.Ct. 534, 88 L.Ed.2d 465 (1985).
The evidence demonstrates that Dougherty knowingly, voluntarily, and intelligently waived his rights and provided Agent Henderson with a statement concerning the food stamp transactions. Dougherty was informed verbally of his rights and was afforded the opportunity to read the warning of rights form and the written statement regarding the prior transactions, and acknowledged on the written form that the statement he had been given was correct. From this record we conclude that the findings of the district court at the suppression hearing and at trial were not clearly erroneous.
VII.
At sentencing, the district court suspended the execution of a sixty-day period of incarceration and placed Dougherty on probation for one year. Two of the conditions of his probation were that he pay $470 in restitution and pay taxable costs of prosecution.
Dougherty argues that the government suffered no loss from his illegal purchase of $950 in food stamps in exchange for $480 on July 31, 1985. This argument is merely a restatement of his earlier argument that he did not “acquire” the stamps in an unauthorized manner because Agent Meusberger in his undercover capacity created the crime and therefore the government cannot claim restitution. Once again, his argument is without merit.
Section 3651 of Title 18 specifically outlines that a court may, in suspending a sentence and imposing probation, require “restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had * * * » The evidence in this case established that Dougherty unlawfully acquired $950 in food stamps in exchange for $480 in cash on July 31, 1985. In effect, there was a loss to the United States Department of Agriculture in the amount of $470. As a result, the United States, as dispenser of the food stamps, would be the aggrieved party for purposes of restitution under 18 U.S.C. § 3651. We conclude, therefore, that the district court properly awarded restitution to the United States.
Dougherty also asserts that the district court erred in taxing costs of defense witnesses on him. The district court assessed $307.80 in costs against Dougherty, $187.80 of which was for defense witnesses. Section 1920 of Title 28 gives a judge or clerk the authority to tax costs, including fees and disbursements for witnesses. 28 U.S.C. § 1920(3). Generally, a district court’s taxation of costs may be set aside only upon a finding of abuse of discretion. United States Marshals Service v. Means, 741 F.2d 1053, 1057-58 (8th Cir. 1984) (en banc).
Dougherty asserts that the assessment of costs for defense witnesses is contrary to the spirit of the Criminal Justice Act, 18 U.S.C. § 3006A [CJA]. The CJA recognizes the need for supporting services to a defense by providing that the United States will pay for “investigative, expert, or other services necessary to an adequate defense” if the defendant is unable to pay for them. 18 U.S.C. § 3006A(e). Dougherty does not assert that the defense witnesses were “necessary” to his defense within the parameters of the CJA. Thus, we conclude that the CJA is not applicable to this case. See United States v. Maret, 433 F.2d 1064, 1068-69 (8th Gir.1970). Nor do we find compelling his assertion that the assessment of costs is somehow inconsistent with the “spirit” of providing an adequate defense without running the indigent defendant into debt. The state need not purchase for the indigent defendant all the assistance that his wealthier counterpart can buy. Ake v. Oklahoma, 470 U.S. 68, 71, 79-80, 105 S.Ct. 1087, 1090, 1095, 84 L.Ed.2d 53 (1984); see also Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985). Thus, we conclude that the district court reasonably exercised its discretion under 28 U.S.C. § 1920(3) in taxing costs to the defendant as a special condition of probation.
Having carefully reviewed all of Dough-erty’s arguments, we find no reversible error by the district court. The judgment is affirmed.
. The HONORABLE WARREN K. URBOM, United States District Judge for the District of Nebraska.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_respond1_3_2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Plaintiff, Appellee, v. John Carlyle RITCH, Defendant, Appellant.
No. 77-1348.
United States Court of Appeals, First Circuit.
Submitted Sept. 7, 1978.
Decided Sept. 22, 1978.
Certiorari Denied Nov. 13, 1978.
See 99 S.Ct. 463.
James B. Krasnoo, Boston, Mass., by appointment of the court, and Norris, Kozo-doy & Krasnoo, Boston, Mass., on brief for appellant.
Julio Morales Sanchez, U. S. Atty., and Jose A. Quiles, Asst. U. S. Atty., San Juan, P. R., on brief for appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
COFFIN, Chief Judge.
Defendant-appellant was indicted for possession and importation of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 952(a), following his arrest at the San Juan International Airport on April 28, 1976. When appellant failed to appear for trial of the drug charges on August 23, 1976, his bail was forfeited and an indictment was returned charging him with violation of 18 U.S.C. § 3150. After he was apprehended and returned to Puerto Rico in January, 1977, the district court, over appellant’s objection, ordered that the drug and bail jumping charges be consolidated for trial. Appellant, was found guilty after a jury trial on all three counts. He appeals from his convictions, arguing (1) that joinder of the drug and bail jumping charges was improper; and (2) that he was not afforded effective assistance of counsel in violation of his rights under the Sixth Amendment. Finding no merit in either claim, we affirm.
I.
Under Rule 13, Fed.R.Crim.P., the court may order that two or more indictments be tried together if the offenses could have been joined in a single indictment. Rule 8(a) sets forth the test for joinder. It provides that “[t]wo or more offenses may be charged in the same indictment . if the offenses charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” (Emphasis added.)
Appellant first argues that a consolidated trial of the cocaine and bail jumping charges was improper under Rule 8 since those offenses are not of a similar character. The simple answer to this claim is that the scope of Rule 8 is broader. It also permits joinder where the offenses are “connected together”. It is well established that a charge of bail jumping or escape may be deemed sufficiently “connected” with a substantive offense to permit a single trial, at least where the charges are related in time, the motive for flight was avoidance of prosecution, and appellant’s custody stemmed directly from the substantive charges. See, e. g., United States v. Quinones, 516 F.2d 1309, 1312 (1st Cir.), cert. denied, 423 U.S. 852, 96 S.Ct. 97, 46 L.Ed.2d 76 (1975); United States v. Bourassa, 411 F.2d 69, 74 (10th Cir.), cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969); Bayless v. United States, 381 F.2d 67, 71-72 (9th Cir. 1967); see also United States v. Elliot, 418 F.2d 219 (9th Cir. 1969).
Even though consolidation of offenses for trial is proper under Rules 8(a) and 13, a defendant nonetheless may seek severance of the offenses pursuant to Rule 14. Motions for severance, however, are addressed to the discretion of the trial court, see, e. g., United States v. Luna, 585 F.2d 1 at 4 (1st Cir. 1978), and a defendant bears a heavy burden to establish abuse. United States v. Somers, 496 F.2d 723, 730 (3rd Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); United States v. Abshire, 471 F.2d 116, 118 (5th Cir. 1972). To prevail, a defendant “must make a ‘strong showing of prejudice’ likely to result from a joint trial.” United States v. Luna, supra, quoting Sagansky v. United States, 358 F.2d 195, 199 (1st Cir.), cert. denied, 385 U.S. 816, 87 S.Ct. 36, 17 L.Ed.2d 55 (1966). Moreover, the prejudice that must be shown is something “more than just a better chance of acquittal” at separate trials. United States v. Martinez, 479 F.2d 824, 828 (1st Cir. 1973).
Against these principles, appellant’s claim must fail. He first asserts prejudice stemming from the fact that the jury at his consolidated trial was exposed to evidence of both offenses and may have used evidence of guilt as to one to infer guilt as to the other. Concededly, the law recognizes that the prejudicial impact of evidence of a defendant’s other crimes often outweighs its probative value and therefore that such evidence should not be admissible to prove criminal disposition. See, e. g., Fed.R.Evid. 404(b). Accordingly, courts often have found joinder of unrelated offenses for trial improper, when it would result in the jury’s exposure to evidence of the defendant’s other misdeeds. See, e. g., King v. United States, 355 F.2d 700, 704 (1st Cir. 1966); Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). Yet, there is a well established qualification to this rule in cases where one of the joined offenses involves escape or flight from prosecution. The courts consistently have held that evidence of flight is admissible, from which the jury may draw an inference of the defendant’s consciousness of guilt. See, e. g., United States v. Schwartz, 535 F.2d 160, 165 (2d Cir. 1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 581 (1977); United States v. Rowan, 518 F.2d 685, 691 (6th Cir.), cert. denied, 423 U.S. 949, 96 S.Ct. 368, 46 L.Ed.2d 284 (1975); United States v. Bourassa, supra; Hanks v. United States, 388 F.2d 171, 175 (10th Cir.), cert. denied, 393 U.S. 863, 89 S.Ct. 144, 21 L.Ed.2d 131 (1968); United States v. Accardi, 342 F.2d 697, 700 (2d Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 426, 15 L.Ed.2d 359 (1965). Thus, since the facts concerning appellant’s failure to appear for trial would have been admissible at trial of the drug charges in any event, no prejudice arose from joinder of the offenses. United States v. Bourassa, supra.
Appellant concedes that the evidence at trial was not complicated and that it is clear that the jury was in no way confused by consolidation. See United States v. Luna, supra. He argues, however, that consolidation deterred him from presenting fully his defense. We see little in fact or reason to support this claim. Appellant did not testify at trial. He concedes that he had no viable defense to the bail jumping charge and then maintains that joinder inhibited him from taking the stand in support of his defense to the drug charges. At trial, defense counsel did attempt to establish that appellant had been on a hunting trip in Colombia prior to his arrest at San Juan Airport and argued that the drugs found in his luggage had been placed there without his knowledge. Even assuming that appellant would have been subject to some damaging cross-examination concerning his failure to appear for trial, we fail to see how that constituted any substantial deterrent to his testifying in support of his drug defense if he and his counsel genuinely thought it advisable. Appellant does not and cannot claim that his defenses to the separate charges were logically or factually inconsistent. His flight, while damaging, does not require the conclusion that he was guilty of the substantive counts. While he may have fared better on the drug charges had the jury not known of his flight, something more than simply a better chance of acquittal is required to show undue prejudice. United States v. Martinez, supra. We conclude that appellant suffered no impermissible prejudice in the consolidated trial.
II.
Appellant next contends that the ineffectiveness of his court appointed counsel deprived him of his rights under the Sixth Amendment. In support, he points to numerous alleged errors and omissions by counsel which, it is claimed, singularly or cumulatively amount to a constitutional violation. We noté only the most significant. Appellant complains that his counsel failed to seek suppression of the drugs seized after search of his luggage; that as a result of the short time between the appointment of counsel and trial, counsel failed to interview potential defense witnesses; that counsel failed to object to certain hearsay testimony and unresponsive answers by government witnesses; and finally, that counsel did not cross-examine effectively.
In this circuit, ineffective assistance of counsel “means representation such as to make a mockery, a sham or a farce of the trial.” United States v. Wright, 573 F.2d 681, 683-84 (1st Cir. 1978), quoting United States v. Madrid Ramirez, 535 F.2d 125, 129 (1st Cir. 1976). While we have left open the possibility of adopting the more lenient “reasonably competent assistance” standard, see id. at 129-30, we need not reach that question here, because we are convinced that appellant’s representation was constitutionally adequate under either test.
Appellant’s first allegation that counsel failed to seek suppression of the fruits of the customs search is factually incorrect and legally insufficient. The record reveals that trial counsel did move to suppress the evidence and to have the drug charges dismissed at the close of the government’s case. Denying the motion, the district court held that the evidence had been properly admitted. Even if we assume, however, that suppression motions generally should be made before the commencement of trial, appellant’s claim must fail.
The decision whether or not to make various pretrial motions is a matter of trial tactics generally not reviewable under a claim of ineffective assistance. See Moran v. Hogan, 494 F.2d 1220, 1223 (1st Cir. 1974); Cottman v. Donnelly, 398 F.Supp. 1086, 1092 (D.Mass.1975). Moreover, counsel is not required to make futile or frivolous motions. United States v. Wright, supra, 573 F.2d at 684. From the record it seems clear, as the district court found, that the search was not improper. The arresting customs inspector testified that appellant, after deplaning from a flight from Colombia, entered his aisle for inspection. While appearing normal at first, appellant became nervous, his hands trembling, when the inspector asked him what he had been doing in Colombia. The inspector also testified that his suspicions were further aroused when appellant, in response, stated that he had been hunting, but was carrying no weapons. The inspector then began to inspect a briefcase which appellant had been holding in his hand while his other luggage was examined. The inspector stated that he knew from prior experience that the make of appellant’s briefcase was one which was frequently equipped with a false bottom for smuggling purposes. Upon opening the case, the inspector first observed an abnormality in the bottom and then noticed a plastic bag sealed to the bottom. Appellant was then asked to step into an office where the plastic bag was opened. It revealed a white powder which a field test indicated was cocaine.
As we have recently noted, the standard by which the constitutionality of a search at an international border is tested is “considerably more relaxed than those applicable to ordinary searches.” United States v. Wardlaw, 576 F.2d 932, 934 (1st Cir. 1978). In light of that relaxed standard, appellant suffered no prejudice from any failure of counsel to seek suppression, since it seems clear that the customs inspector had the requisite “reasonable suspicion” to justify the search. See id. at 934-35.
Appellant’s next attack on trial counsel is based on the fact that after his original attorney withdrew from the case as a result of appellant’s failure to appear for trial, his trial counsel was appointed some six days prior to the commencement of trial. Apparently trial counsel initially believed that the matter would be disposed of without trial, and after that assumption proved false, had to prepare for trial essentially over the space of a three day weekend. Appellant concedes that the government’s case was a simple one and makes no claim that counsel lacked trial experience. See Rastrom v. Robbins, 440 F.2d 1251 (1st Cir.), cert. denied, 404 U.S. 863, 92 S.Ct. 53, 30 L.Ed.2d 107 (1971). He however argues that as a result of the shortness of this period, counsel failed to interview potential defense witnesses.
In Rastrom, this court, noting that the amount of time required to prepare a constitutionally adequate defense can vary widely from case to case, refused to adopt a rule that impermissible prejudice would be presumed merely from a showing of shortness of preparation time. 440 F.2d at 1253-54. Thus, defendant bears the burden of establishing actual prejudice, a burden which has not been met here.
Appellant requested the presence of three individuals, believed to be living in Florida, who allegedly would testify that appellant had been hunting with them in Colombia prior to his arrest. On the first day of trial, counsel informed the court of his inability a? of that day to contact these individuals and requested a continuance. While permitting the government’s case to proceed, the court ordered the U.S. Attorney’s office to help defense counsel try to contact them. When these initial attempts failed, the court granted a one day continuance, during which the U.S. Attorney and defense counsel renewed their efforts to track down the witnesses. Compare Rastrom v. Robbins, supra. On the following day, after efforts to contact two of the witnesses were apparently still unavailing and it had been learned that the third witness was out of the country and had refused to come to Puerto Rico to testify, the government agreed to a stipulation as to the content of their testimony. As read to the jury, this stipulation stated that the witnesses would testify that appellant had been on a hunting trip in Colombia with them; that while there he had spent some of his time in their company; and that to the best of their knowledge, he had done nothing illegal.
Given the fact that the substance of the testimony of these witnesses, who in fact proved to be unavailable, was presented to the jury, we believe that appellant was not prejudiced by any failure of counsel to contact them before trial. Based on this stipulated testimony, defense counsel, as noted, argued that appellant had been in Colombia for recreational purposes and that the drugs found in his luggage could have been placed there without his knowledge. Judging from the jury’s verdict, this defense was not a winning one. While appellant perhaps cannot be faulted for wishing that counsel had been more vigorous in his defense, from the record it is clear that counsel’s preparation and presentation of the defense far exceeded the dismal performances condemned in the cases upon which he seeks to rely. See Twiford v. Peyton, 372 F.2d 670 (4th Cir. 1967); Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962), cert. denied, 372 U.S. 978, 83 S.Ct. 1110, 10 L.Ed.2d 143 (1963).
The last group of alleged failures to make certain evidentiary objections may be disposed of quickly. Certain of the objections which appellant claims counsel should have made, quite clearly would have been frivolous. Although other objections might have been technically sustainable, their omission was not prejudicial because the prosecutor could properly have asked the questions to which counsel allegedly should have objected simply by rephrasing them. Finally, with reference to appellant’s general complaint that trial counsel failed to cross-examine as effectively as he might have, we note again that the government’s evidence was quite simple and its case strong. We are satisfied that appellant’s representation adequately exceeded the constitutional minimum.
Affirmed.
. We note in this regard that while the stipulated testimony confirmed appellant’s claim that he had been hunting, it in no way negated the possibility, supported by other evidence, that he had had ample time while in Colombia to procure the cocaine.
. Appellant’s additional contention that trial counsel should have challenged the government’s proof as to the chemical composition of the cocaine is clearly frivolous in light of the strength of the testimony of the government’s chemist and the fact that appellant does not actually challenge the sufficiency of the evidence on this or any other element of the government’s case.
. As to the claim that an objection should have been made to the adequacy of the foundation for the testimony of Mr. Schreiber, a chemist with the Drug Enforcement Administration, concerning the number of dosages which could be obtained from the amount of cocaine seized from appellant, it appears that Mr. Schreiber’s educational background and experience established his competence to make the estimate. However, even assuming this to be debatable, we find little chance of prejudice. The sole purpose of this testimony was to establish that the large quantity of cocaine found in appellant’s luggage was intended for distribution, not personal use. We think that that quantity, some 765.4 grams, could speak for itself on this point.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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songer_usc1sect
|
151
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 47. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
RURAL TELEPHONE COALITION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Puerto Rico Telephone Company, International Business Machines Corporation, National Association of Regulatory Utility Commissioners, New York Telephone Company, et al., North American Telecommunications Association, Municipality of Anchorage, d/b/a Anchorage Telephone Utility, American Telephone and Telegraph Company, MCI Telecommunications Corporation, State of Alaska, GTE Service Corporation, United Telephone System, Inc., Rochester Telephone Corporation, Ad Hoc Telecommunications Users Committee, United States Transmission Systems, Inc., National Data Corporation, Aeronautical Radio, Inc., Pacific Bell, et al., Bell Telephone Company of Pennsylvania, et al., Intervenors. MCI TELECOMMUNICATIONS CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Ad Hoc Telecommunications Users Committee, et al., Intervenors.
Nos. 84-1110, 84-1139, 85-1152.
United States Court of Appeals, District of Columbia Circuit.
Argued April 3, 1987.
Decided Feb. 5, 1988.
William J. Byrnes, with whom Michael H. Bader, Kenneth A. Cox, John M. Pelkey, John M. Scorce, and Ruth S. Baker-Battist, Washington, D.C., were on the brief, for MCI Communications, Inc., petitioner in Nos. 84-1139 & 85-1152, and intervenor in No. 84-1110. Theodore D. Kramer, Thomas R. Gibbon, and Robert Michelson, Washington, D.C., also entered appearances for petitioner.
Linda L. Oliver, Counsel, Federal Communications Commission (“FCC”), with whom Diane S. Killory, General Counsel, Daniel M. Armstrong, Associate General Counsel, John E. Ingle, Deputy Associate General Counsel, and Laurel R. Bergold, Counsel, FCC, and Catherine G. O’Sullivan and Andrea Limmer, Attys. U.S. Dept, of Justice, Washington, D.C., were on the brief, for respondents. Barry Grossman and Nancy C. Garrison, Attys., U.S. Dept, of Justice, and Bruce E. Fein, Counsel, FCC, Washington, D.C., also entered appearances for respondents.
Jules M. Perlberg, with whom C. John Buresh, Jonathan S. Hoak, Chicago, 111., and Robert B. Stechert, Basking Ridge, N.J., were on the brief, for intervenor American Tel. & Tel. Co. (“AT & T”) in all cases. Michael Boudin, Washington, D.C., Judith A. Maynes, New Haven, Conn., and Alfred A. Green, New York City, also entered appearances for AT & T.
David Cosson, Andrew G. Mulitz, and Margot Smiley Humphrey, Washington, D.C., were on the brief for petitioner Rural Telephone Coalition. Paul G. Daniel, Wilmington, Del., also entered an appearance for petitioner Rural Telephone Coalition.
Raymond F. Scully, Alan B. Sternstein, and Katherine I. Hall, Washington, D.C., were on the brief for intervenors Pacific Bell, et al., in all cases.
Thomas J. O’Reilly, Washington, D.C., was on the brief for intervenor U.S. Telephone Ass’n in Nos. 84-1139 & 85-1152.
Richard McKenna, James R. Hobson, and Gail L. Polivy, Washington, D.C., entered appearances for intervenor GTE Service Corp. in all cases.
Gary C. Tucker, Denver, Colo., Michael L. Glaser, and Francis E. Fletcher, Jr., Washington, D.C., entered appearances for intervenors Municipality of Anchorage, d/b/a Anchorage Telephone Utility, et al., in all cases.
Albert H. Kramer and Denise Bonn, Washington, D.C., entered appearances for intervenor North American Telecommunications Ass’n in all eases.
Joseph P. Markoski and Ann J. LaF-rance, Washington, D.C., entered appearances for intervenor National Data Corp. in Nos. 84-1110 & 84-1139.
Saul Fisher, Bedminster, N.J., and John B. Messenger, Boston, Mass., entered appearances for intervenors New York Telephone Co., et al., in Nos. 84-1110 & 84-1139.
Charles D. Gray, Genevieve Morelli and William Paul Rodgers, Jr., Washington, D.C., entered appearances for intervenor National Ass’n of Regulatory Utility Comm’rs in Nos. 84-1110 & 84-1139.
Carolyn C. Hill, Washington, D.C., entered an appearance for intervenor United Telephone Systems, Inc., in Nos. 84-1110 & 84-1139.
Charles A. Zielinski and A. Richard Metz-ger, Jr., Washington, D.C., entered appearances for intervenor Rochester Telephone Corp. in No. 84-1110.
W. Randolph Young, Washington, D.C., entered an appearance for intervenor State of Alaska in No. 84-1110.
Joseph M. Kittner, James S. Blaszak, and Timothy J. Cooney, Washington, D.C., entered appearances for intervenor Ad Hoe Telecommunications Users Committee in all cases.
J. Roger Wollenberg, William T. Lake, and Roger M. Witten, Washington, D.C., entered appearances for intervenor IBM Corp. in all cases.
James L. McHugh, Jr., Washington, D.C., entered an appearance for intervenor Puerto Rico Telephone Co. in No. 84-1110.
John A. Ligón, Grant S. Lewis, and John S. Kinzey, Washington, D.C., entered appearances for intervenor Aeronautical Radio, Inc. in all cases.
Daniel P. Behuniak entered an appearance for intervenors Bell Telephone Co. of Pennsylvania, et al, in all cases.
Thomas J. Reiman, Chicago, 111., and Alfred Winchell Whittaker, Washington, D.C., entered appearances for intervenors Ameritech Operating Companies, et al., in Nos. 84-1139 & 85-1152.
Mary Jo Manning, Washington, D.C., entered an appearance for intervenor ROLM Corp. in No. 84-1139.
William B. Gundling, Hartford, Conn., entered an appearance for intervenor Dept, of Public Utility Control of the State of Connecticut in No. 84-1139.
Joel B. Shifman, Charleston, W. Va., entered an appearance for intervenor Public Service Com’n of West Virginia in No. 84-1139.
Robert W. Barker and Robert B. McKen-na, Washington, D.C., entered appearances for intervenor Mountain States Tel. & Tel. Co., et al., in Nos. 84-1139 & 85-1152.
Theodore D. Frank, Washington, D.C., entered an appearance for intervenor Cen-tel Corp. in No. 84-1139.
Arthur H. Simms and Lawrence P. Keller, Washington, D.C., entered appearances for intervenor Western Union Telegraph Co. in No. 84-1139.
Kevin H. Cassidy, McLean, Va., Jeffrey Matsuura, Washington, D.C., William E. Willis, New York City, and Margaret K. Pfeiffer, Washington, D.C., entered appearances for intervenor Satellite Business Systems in No. 84-1139.
Edgar Mayfield, William C. Sullivan, Linda S. Legg, and Liam S. Coonan, St. Louis, Mo., entered appearances for intervenor Southwestern Bell Telephone Co. in No. 84-1139.
Herbert E. Marks, Ann J. LaFrance, and David A. Wormser, Washington, D.C., entered appearances for intervenor Association of Data Processing Service Organizations, Inc., in No. 85-1152.
Daniel A. Huber, Washington, D.C., entered an appearance for intervenor U.S. Telecom, Inc., in No. 85-1152.
Brenda L. Fox, Washington, D.C., entered an appearance for intervenor National Cable Television Ass’n in No. 85-1152.
Before MIKVA, BORK and BUCKLEY, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
BUCKLEY, Circuit Judge:
Petitioners challenge various aspects of two Federal Communications Commission orders relating to the allocation of local exchange costs between the interstate and intrastate regulatory jurisdictions. The challenged decisions are interim measures the Commission has taken as the communications industry continues to adjust to the dissolution of American Telephone and Telegraph Company’s Bell System. Their effect is to shift certain costs from intrastate to interstate telephone service, with the partial objective of avoiding large increases in local telephone rates and advancing the goal of universal telephone service. We affirm the orders.
I. Background
Great changes have visited the Nation’s telephone system in recent years. The typical interstate call nonetheless still traces a familiar path. It originates at a home or office, proceeds to the switches of a local exchange telephone company, is connected there to an interexchange carrier, crosses state boundaries, reaches a second local exchange, and is finally connected through to the receiving party. The capital plant of local exchange companies is therefore essential to the functioning of the interstate communications system we have today.
State regulatory agencies have jurisdiction to set rates for local and intrastate telephone service. As telephone rates are generally based on the cost of providing service, it is necessary to separate and allocate the costs of operating local exchanges among the intrastate and interstate jurisdictions before state and federal agencies, respectively, can set rates. See Smith v. Illinois Bell Tel. Co., 282 U.S. 133, 51 S.Ct. 65, 75 L.Ed. 255 (1930); MCI Telecommunications Corp. v. FCC, 750 F.2d 135 (D.C.Cir.1984). Thus, separating costs between the two jurisdictions has the incidental effect of defining the rate base of telecommunications carriers.
This case concerns part of the Commission’s attempt to use its power to allocate costs between federal and state jurisdictions in order to cushion the transition to a competitive long-distance communications market. The conversion must be cushioned because during the period American Telephone and Telegraph Company (“AT & T”) was divesting itself of the Bell Operating Companies (“BOCs”), see United States v. AT & T, 552 F.Supp. 131 (D.D.C.1982), aff'd mem. sub nom. Maryland v. United States, 460 U.S. 1001, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983), the Commission determined that the Bell System had operated with wide disparities between the prices BOCs charged for local service and their operating costs.
Local company costs include certain “non-traffic sensitive” (“NTS”) costs. These do not vary with the volume of calling traffic. The capital plant from which they arise is the line from the customer’s premises to the local exchange company’s central office (the “subscriber loop”), related “customer premises equipment” (“CPE”) such as ordinary hand sets and customer wiring, and part of local exchange companies’ central office switching equipment.
After extensive studies in which it considered various options for eliminating the disparities between local company NTS costs and local customer bills, the Commission concluded that imposing “access charges” on subscribers to recover NTS costs would be the most economically efficient long-term solution. See MTS & WATS Market Structure, 93 F.C.C.2d 241 (1983) (“Access Charge Decision ”), recon., 97 F.C.C.2d 682 (1983), aff'd in principal part sub nom. National Ass’n of Regulatory Util. Comm’rs v. FCC, 737 F.2d 1095 (D.C.Cir.1984), cert. denied, 469 U.S. 1227, 105 S.Ct. 1225, 84 L.Ed.2d 364 (1985) (“NARUC”). As the Commission also determined that an immediate transition to such flat charges might cause some subscribers to forgo telephone service, it settled upon an interim policy consisting of (1) relatively low initial flat charges beginning in June 1985, and (2) recovery of the balance of NTS costs through usage-based charges. See NARUC, 737 F.2d at 1107-10.
A. Non-Traffic Sensitive Cost Allocation
The principal issue in this case is whether the Commission properly allocated twenty-five percent of NTS costs to interstate jurisdiction, to be phased in over an eight-year period. The choice of the particular level of allocation, twenty-five percent, is related to changes that have occurred in the communications industry since 1970. In that year the FCC adopted the “Ozark Plan” to allocate NTS costs between the interstate and intrastate jurisdictions. Under the Ozark Plan, NTS costs were assigned to the interstate jurisdiction at the rate of approximately 3.3 times the proportion of interstate use. See MCI v. FCC, 750 F.2d at 137.
The Commission refers to that calculation as the “subscriber plant factor” or “SPF.” As the proportion of interstate use increased sharply after 1970, the SPF caused NTS costs assigned to the interstate jurisdiction to increase more than three times as fast. The Commission therefore decided, in 1982, to “freeze” at approximately twenty-six percent the proportion of NTS costs allocated to interstate use. We affirmed the freeze order in MCI v. FCC, 750 F.2d at 141, as an interim measure pending fuller resolution of the NTS cost problem.
In 1980, the Commission referred the cost allocation problem to a Federal-State Joint Board (“Board”) for study and recommendations. Three years later, in Joint Board I, supra n. *, the Board recommended that twenty-five percent of NTS costs be deemed interstate costs. In its First Decision, supra n. *, the Commission accepted with minor changes the recommendations in Joint Board I. Thus, although local companies’ NTS costs do not increase as a result of interstate use, the Commission decided to order interstate carriers to absorb some of the cost of local service. The Commission defends its decision primarily because the Board’s recommendation “approximated the existing nationwide average interstate allocation under frozen SPF,” and thereby avoided “substantial dislocations in the industry [which] might have a significant impact on local rates and thus on universal service.” Brief for FCC at 22-23. According to the Commission, the policy it has chosen prevents “future automatic increases” in NTS interstate allocation “under a usage-based formula such as SPF.” Id. at 23.
B. High Cost Apportionment
The Commission also determined that the twenty-five percent allocation of NTS costs to interstate jurisdiction would not sufficiently assist certain high cost local companies to maintain universal service, which is one of the Commission’s charges under the Communications Act, 47 U.S.C. § 151 (1982) (“For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide,... wire and radio communication service with adequate facilities at reasonable charges,... there is created a commission to be known as the ‘Federal Communications Commission',____” (emphasis added)). The Commission therefore proposes to create a federal “Universal Service Fund” (“Fund”) to “ensure that telephone rates are within the means of the average subscriber in all areas of the country, thus providing a foundation on which the states can build to develop programs tailored to their individual needs.” First Decision, 96 F.C.C.2d at 795. The Commission describes the high cost apportionment plan as follows:
In an effort to keep local service rates affordable to the average subscriber in all areas of the nation, the FCC adopted a high cost formula which allocates a larger percentage of the costs of high cost companies to the interstate jurisdiction. The high cost assistance plan targeted the greatest assistance to the smallest companies and the highest cost areas. As the FCC had provided in the initial Access Charge Decision, the high cost allocation would be recovered through a permanent universal service fund to be funded by usage charges contained in the rates of interexchange carriers.
Brief for FCC at 16-17 (footnotes omitted). According to the Commission, “use of the basic 25 percent interstate allocation for NTS local exchange costs would result in a slight increase in the interstate NTS allocation when combined with the additional interstate expense allocation for high cost areas.” First Decision, 96 F.C.C.2d at 790 n. 19.
C.Customer Premises Equipment
The Commission deregulated “customer premises equipment” (“CPE”) in 1983. See Amendment of Section 64.702, 77 F.C.C.2d 384 (1980), recon. 84 F.C.C.2d 50 (1980), further recon. 88 F.C.C.2d 512 (1981), aff'd sub nom. Computer & Communications Indus. Ass’n v. FCC, 693 F.2d 198 (D.C.Cir.1982), cert. denied, 461 U.S. 938, 103 S.Ct. 2109, 77 L.Ed.2d 313 (1983). The Commission, however, has declined to make an immediate withdrawal of CPE that is “embedded” in the rate bases of the former BOCs because it fears that doing so would cause considerable economic dislocation. Instead, the Commission has ordered a sixty-month phaseout of embedded CPE ending in December 1987. To “avoid undue economic dislocations,” we approved this phase-out plan in MCI v. FCC, 750 F.2d at 142. Under review in this case is the Commission’s decision to adhere to the phaseout plan even after the embedded CPE is transferred to AT & T. As the embedded CPE is transferred, the phase-out in essence requires the inclusion of CPE in the costs of local companies until December 1987, regardless of the fact that local companies do not really own CPE.
D. Relative Use Traffic Study Period
For many years, telephone companies have been required by the FCC’s Separations Manual to measure relative traffic over a “representative” period. These studies provide the basis for apportioning traffic sensitive costs and for dividing revenues among the companies. Brief for Rural Telephone Coalition at 21; Brief for FCC at 19. Before us for review is the Commission’s decision to accept the Joint Board’s recommendation that telephone companies be required to base their measurements on seven-day traffic study periods. In order to accomplish this goal, the Commission amended the Manual by requiring that the study periods be representative “for all traffic.” First Decision, 96 F.C.C.2d at 808-09 (emphasis added); see Joint Board I, 48 Fed.Reg. at 46,572-73.
E. Grounds for Review
Petitioners’ objections concern different aspects of the two Commission orders before us. MCI Telecommunications Corporation (“MCI”) focuses its attack on the Commission’s acceptance of the Joint Board recommendation that twenty-five percent of NTS costs be allocated to the interstate jurisdiction. It contends that that allocation has no other purpose but the redistribution of wealth through a form of tax, and that Congress has not delegated taxing authority to the Commission even if such delegation were constitutional. MCI also argues that the twenty-five percent allocation amounts to a taking of property for public use without just compensation, in violation of the Fifth Amendment to the Constitution. In addition, MCI claims that the CPE phase-out is based on fictitious “phantom plant,” and thus violates basic ratemaking principles. Finally, MCI challenges the high cost apportionment.
Rural Telephone Cooperative (“Rural”) limits its challenge to the Commission’s decision concerning the seven-day sampling period. Although Rural originally sought review of the Commission’s determination that the Regulatory Flexibility Act, 5 U.S.C. §§ 601 to 612 (1982), does not apply to small telephone companies, counsel for Rural moved the court to dismiss that part of the petition in No. 84-1110. As the court granted the motion, the Regulatory Flexibility Act issue is no longer before us.
For the reasons stated below, we affirm the challenged portions of the orders under review.
II. Discussion
A. Standard of Review
As the reviewing court, we must “interpret constitutional... provisions” ourselves. 5 U.S.C. § 706 (1982). See St. Francis Hosp. Center v. Heckler, 714 F.2d 872, 873 (7th Cir.1983) (“Deference to administrative expertise does not extend to judging the constitutionality of a statute or regulatory scheme.”), cert. denied, 465 U.S. 1022, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984). The FCC’s interpretation and application of its authorizing statute, however, will be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (1982). “This review is a narrow one; we must affirm the decision if we find that it is not contrary to law, that it is supported by substantial evidence and based upon a consideration of the relevant factors, and if we determine that the conclusions reached have a rational connection to the facts found.” American Telephone & Telegraph Co. v. FCC, 832 F.2d 1285, 1291 (D.C.Cir.1987).
B. Interstate NTS Allocation
1. Is it a Taking?
Allocating twenty-five percent of NTS costs to interstate jurisdiction in effect transfers those costs to the rate bases of interstate carriers, forces them to recover those costs through their rates, and reduces their profitability. The Supreme Court, however, has reviewed statutorily authorized economic regulation with great deference. The Court's recent decision in FCC v. Florida Power Corp., — U.S. -, 107 S.Ct. 1107, 94 L.Ed.2d 282 (1987), follows that pattern. In that case, the Court held that Commission regulations limiting the rate an electric utility can charge television cable operators for the use of electricity poles constitute neither a per se taking of the utility’s property, nor a taking under more traditional Fifth Amendment principles.
On the per se taking issue, the Court distinguished Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), on the basis that the FCC did not require the power company to allow the cable operators to use its poles. Florida Power, 107 S.Ct. at 1112. The Court then applied the Takings Clause principle that “[s]o long as the rates set are not confiscatory, the Fifth Amendment does not bar their imposition.” Id. at 1113 (citing St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 58, 56 S.Ct. 720, 726-27, 80 L.Ed. 1033 (1936), and Permian Basin Area Rate Cases, 390 U.S. 747, 770, 88 S.Ct. 1344, 1361-62, 20 L.Ed.2d 312 (1968)).
In this case, nothing in the record suggests that the Commission’s allocation of twenty-five percent of NTS costs to the interstate jurisdiction constitutes a confiscation of MCI’s property. Indeed, MCI cannot operate general long distance service without using the facilities of local exchange companies. The proposition cannot seriously be entertained that requiring MCI to absorb part of the NTS costs of local exchanges amounts to a confiscation. See Jersey Cent. Power & Light Co. v. Federal Energy Regulatory Comm’n, 810 F.2d 1168, 1181 n. 3 (D.C.Cir.1987) (en banc) (absent “deep financial hardship... there is no taking”).
More fundamentally, we find the facts in this case analogous to the situation confronting the Court in Florida Power, except that the parties here are inverted. In Florida Power, the television cable companies needed the utility’s plant to reach their subscribers, and the utility challenged the FCC rate as a taking. Here, MCI needs local companies’ NTS plant to reach its subscribers, but it is MCI that challenges the rate indirectly resulting from FCC jurisdictional action.
It is the nature of the rate action, rather than the identity of the party challenging it, that controls the decision whether the rate is a taking. Comparing the rate action in Florida Power to the probable effect of the twenty-five percent allocation on MCI’s profits, we can discern no difference rising to the level of a Takings Clause objection. The Commission has attempted to balance various public and private concerns, acknowledged MCI’s reliance on local company plant, and established an allocation figure which, on the average, scarcely differs from the “frozen SPF.”
2. Is it a Tax?
We also find unacceptable MCI’s argument that the twenty-five percent allocation is an exercise of taxing power that Congress has not delegated to the Commission, and that could not be delegated without violating the Taxing Clause, U.S. Const. art. I, § 8. In Brock v. Washington Metropolitan Area Transit Auth., 796 F.2d 481, 489 (D.C.Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1887, 95 L.Ed.2d 494 (1987), we warned that “[t]he definition of ‘tax’ in the abstract is a metaphysical exercise in which courts do not have occasion to engage.” Rather, a regulation is a tax only when its primary purpose judged in legal context is raising revenue. Id. at 488-89. There is no reasonable way to construe the NTS cost allocation as having the primary purpose of raising federal revenue. Cf. South Carolina ex rel. Tindal v. Block, 717 F.2d 874, 887 (4th Cir.1983) (it is not an exercise of taxing power, but of the power to regulate commerce, to exact deductions from sales of all commercially marketed milk to offset cost of milk price support program), cert. denied, 465 U.S. 1080, 104 S.Ct. 1444, 79 L.Ed.2d 764 (1984).
As MCI has not cited any precedent holding that an agency’s exercise of a power to allocate costs among state and federal jurisdictions for purposes of ratemaking is equivalent to an exercise of the power to tax, we adhere to circuit precedent and reject MCI’s contention that the twenty-five percent allocation is a tax.
3. Is it a Prohibited Subsidy?
Finally, MCI contends that in enacting the Communications Act, Congress “intended to preserve the previous court decisions which interpreted the sections so transferred,” Brief for MCI at 58, including Smith v. Illinois Bell Tel. Co., 282 U.S. 133, 51 S.Ct. 65, 75 L.Ed. 255 (1930). According to MCI, the twenty-five percent NTS allocation violates the doctrine of Smith because it is intended to create a subsidy or, in the alternative, has the effect of creating one. We have noted before that where “there is no purely economic method of allocation... elements of fairness and other noneconomic values inevitably enter the analysis of the choice to be made.” MCI Telecommunications Corp. v. FCC, 675 F.2d 408, 416 (D.C.Cir.1982). MCI relies on Smith, however, to reason that “each jurisdiction must stand independently and may not rely on the ratepayers in the other jurisdiction for support.” Brief for MCI at 53.
This is not the first time MCI has attempted to convince this court that Smith requires a particular method of separating costs. See MCI v. FCC, 750 F.2d at 140-41. Smith holds only that intrastate and interstate telephone costs must be separated for jurisdictional purposes, and that such separation must be done according to “reasonable measures.” 282 U.S. at 150, 51 S.Ct. at 69. MCI’s construction of Smith unduly emphasizes the Court’s requirement of separation at the expense of its admonition that separation must be reasonably made. In the past, we have not interpreted the separation requirement in Smith so strictly. We have held that “Smith does not constitutionally compel use of a particular formula. Smith compels ‘only reasonable measures.’ ” MCI v. FCC, 750 F.2d at 141. See also id. at 141 n. 34.
Thus, we distinguish Smith because we view the twenty-five percent NTS cost allocation as a step on the road towards an efficient national telephone rate structure based primarily on access charges levied directly on customers. The allocation is a “reasonable measure” acceptable under Smith because it is part of a transitional process, and “[i]nterim solutions may need to consider the past expectations of parties and the unfairness of abruptly shifting policies.” MCI v. FCC, 750 F.2d at 141. Moreover, as we stated in NARUC,
[t]he shift from one type of nondiscriminatory rate structure to another may certainly be accomplished gradually to permit the affected carriers, subscribers and state regulators to adjust to the new pricing system, thus preserving the efficient operation of the interstate telephone network during the interim.
737 F.2d at 1135-36.
Accordingly, we affirm the twenty-five percent NTS cost allocation as a reasonable and carefully considered element of the transition towards the access charge regime approved in the Access Charge Decision.
C. High Cost Apportionment
1. Statutory Authority
The Commission was established “to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide,... wire and radio communication service with adequate facilities at reasonable charges....” 47 U.S.C. § 151 (1982). Moreover, the Commission is authorized to “make such rules and regulations... as may be necessary in the execution of its functions.” 47 U.S.C. § 154(i) (1982). As the Universal Service Fund was proposed in order to further the objective of making communication service available to all Americans at reasonable charges, the proposal was within the Commission’s statutory authority. We have recognized previously that universal service is an important FCC objective. See NARUC, 737 F.2d at 1108. Cf. GTE Service Corp. v. FCC, 474 F.2d 724, 730-31 (2d Cir.1973) (Commission has authority under 47 U.S.C. §§ 151 & 154(i) to regulate data processing activities of common carriers, which pose a “threat to efficient public communications services at reasonable prices”). Although § 154(i) “is not infinitely elastic,” North Am. Telecommunications Ass’n v. FCC, 772 F.2d 1282, 1292 (7th Cir.1985), the Commission’s action here falls within the “expansive powers” delegated to it by the Communications Act. NBC v. United States, 319 U.S. 190, 219, 63 S.Ct. 997, 1010-11, 87 L.Ed. 1344 (1943).
Had the Commission proposed the Universal Service Fund for the purpose of subsidizing the incomes of impoverished telephone users, it would have exceeded its authority under section 154(i), as the provision of public welfare is not among its functions. Instead, the Commission explicitly (and properly) rejected “solving] the problems of the poor” as an appropriate objective of the Fund, and restricted its use to the more limited purpose of ensuring that “telephone rates are within the means of the average subscriber.” First Decision, 96 F.C.C.2d at 795.
2. Arbitrariness
The Joint Board, which was established to study the interplay of state and national interests in the telecommunications field, gave the competing issues and considerations concerning the Universal Service Fund exhaustive study and presented carefully thought-out recommendations. 48 Fed.Reg. at 46,566-69. These recommendations were subjected to extensive review and comment by all interested parties, were amply discussed by the Commission, 96 F.C.C.2d at 791-802, and the reasons for the Commission’s conclusions were adequately explained.
MCI nevertheless argues that the Commission acted arbitrarily and capriciously, for two reasons. First, the beneficiaries of the Fund are telephone companies, not consumers. Brief for MCI at 62-63. There is a risk, as the Commission recognized, that local companies will not use the additional interstate expense allocation to reduce local rates. The Commission concluded, however, that this risk was minimal:
the interest of state regulatory officials in keeping local rates affordable as well as the watchfulness of individual consumers and local consumer groups will ensure that this assistance is used for its intended purpose.... Furthermore, we are asking the Joint Board to monitor the future use of this assistance.
96 F.C.C.2d at 796. We find this assessment of the risk entirely reasonable.
Second, MCI argues that the financial assistance formulae are, in effect, arbitrary because they are not tied to the actual needs of the local populations. Funds are dispersed to areas in which NTS costs exceed 115% of the national average. These, however, may reflect the higher costs associated with recent expansion in boom areas. MCI also argues that the Commission’s proposal may lead to the paradoxical result that some of the most affluent and rapidly developing communities (e.g., in the Sun Belt) will be major beneficiaries of the Fund; that the high cost criterion may encourage overexpansion or mismanagement; and that the aggregate costs in an area bear no necessary relation to the financial needs of local populations. Brief for MCI at 63-66.
These objections give us pause, but we are persuaded that the Commission is sensitive to the problems and intends to resolve them as they arise. As the Commission notes, 96 F.C.C.2d at 792 n. 24, the Joint Board is studying the distribution of the Fund, and will issue supplemental recommendations to the Commission if the level of support provided to any area under the current formulae is inappropriate. See Joint Board I, 48 Fed.Reg. at 46,569.
The Fund as proposed may well produce anomalous results, and there may indeed be “better” means of aiding the truly needy. Brief for MCI at 62, 63. Our task, however, is not to determine the best means, but only to decide whether the means selected by the Commission are lawful, supported by substantial evidence after consideration of relevant factors, and rationally connected to the facts. The Commission determined that the Fund would serve the statutory objective of universal service at reasonable charges, 47 U.S.C. § 151 (1982). The Fund was not proposed as a welfare scheme; if it were, the Commission would have exceeded its authority. Rather, the Commission seeks to moderate excessive NTS local exchange plant costs in order to ensure that rates are within the means of the average subscriber. As an interim measure, this decision was within the Commission’s discretion.
D. Customer Premises Equipment
MCI’s principal basis for challenging the Commission’s decision regarding CPE is the argument that
the moment terminal equipment is deregulated and withdrawn from common carrier service, its costs must be removed from common carrier accounts. A gradual phase-out of terminal equipment costs would be completely unlawful since, during the phase-out period, regulated common carriers would be receiving a return on plant not “used and useful” in the provision of common carrier service.
Brief for MCI at 68 (citing Federal Power Comm’n v. National Gas Pipeline Co. of America, 315 U.S. 575, 590, 62 S.Ct. 736, 745, 86 L.Ed. 1037 (1942), and American Telephone & Telegraph Co., 64 F.C.C.2d 1, 47 (1977)).
In MCI v. FCC, 750 F.2d at 142, we rejected a challenge by MCI to the CPE phase-out plan. That challenge focused on the Commission’s decision that the immediate removal of embedded CPE from the rate bases of local companies would be unacceptably disruptive. In approving the phase-out plan, the court was fully aware of the possibility that local companies would benefit from counting CPE in their rate bases even though they did not own CPE. We emphasized that “[sjince the FCC could deregulate all CPE today, it is unreasonable to preclude the agency from avoiding hardships by denying it the power to phase-out the regulations.” Id. We see no reason to revisit this area, especially as MCI’s renewed attack is premised on a doctrine of limited weight. See Jersey Central, 810 F.2d at 1175 (“ ‘used and useful’ [has] ceased to have any constitutional significance, and the Commission has at times departed from this standard”).
E. Relative Use Traffic Study
Rural argues that the Commission’s amendment to the Separations Manual adding the phrase “for all traffic” immediately after the words “representative period” was superfluous, as the purpose of the study had always been to achieve an accurate measurement of relative exchange usage. Furthermore, the phrase “for all traffic” does not necessarily imply a seven-day study period because for some telephone companies, a shorter period may provide a more accurate picture of relative traffic. Therefore, Rural concludes, the amendment has not effected a substantive change in the Manual, and what is deemed a “representative” period must continue to depend “on the facts and circumstances of a particular study area.” Brief for Rural at 28
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 47? Answer with a number.
Answer:
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songer_weightev
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B
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the 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".
Albert HARTWICK, Elizabeth Hartwick, Plaintiffs-Appellants. v. UNITED STATES STEEL CORPORATION, Defendant-Appellee.
No. 72-1280.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 12, 1972.
Decided Jan. 18, 1973.
James A. Tuck, Goodman, Eden, Mil-lender, Goodman & Bedrosian, Detroit, Mich., for plaintiffs-appellants; William H. Goodman, Detroit, Mich., on brief.
Gilbert E. Gove, Miller, Canfield, Paddock & Stone, Detroit, Mich., for defendant-appellee; John A. Marxer, Detroit, Mich., on brief.
Before CELEBREZZE and MILLER, Circuit Judges, and HOGAN , District Judge.
The Honorable Timothy S. Hogan, United States District Judge for the Southern District of Ohio, sitting by designation.
WILLIAM E. MILLER, Circuit Judge.
This is a negligence action against United States Steel Corporation arising from the injury of Albert Hartwick, the appellant, while he was foreman for the C-Way Construction Company. The United States Army Corps of Engineers had contracted with C-Way, appellant’s employer, for the construction of a lock on the Crooked River near Alanson, Michigan. The appellant was in charge of the steel pile driving crews.
In order to construct the lock it was necessary first to divert the river and to fill the river bed with gravel. Two cells, each 15 feet wide and 80 feet long, were then to be contructed on the sides of the old river bed. The cell walls were to consist of a continuous web of sheet piling to be driven some 27 feet into the ground by a pile driver. The sheet piling was manufactured by the 'appellee, United States Steel Corporation.
The sheets of piling are “Z” shaped, about 18 inches wide and varying in length from 27 to 28 feet. On each edge of the piling and extending the entire length of one edge there is a ball or a socket allowing the sheets of piling to be attached to one another. To assemble the piling around the cell, it is necessary to lift a sheet some 30 feet into the air and align the ball of that sheet with the corresponding socket of the adjacent sheet. After the ball and socket are initially aligned, the sheet piling is lowered into place and driven into the ground. Correctly manufactured, the sheets will form a straight line when installed. The sheets of piling manufactured by the ap-pellee, however, would not align properly. When the pilings were threaded together the sheets would be from 4 to 6 inches out of alignment. It was un-eontradicted at trial that appellee was aware of this defect in the piling when it was manufactured.
In order to correct the defect the appellant’s employer used a system of chains and chain binders to pull the piling back into alignment, so that it could be correctly driven into the ground. During the pile driving process, tension is placed on the chains and binders as they hold the pile in alignment. At the time of the accident the appellant was releasing the tension on a chain and chain binder attached to a pile that had been driven into the ground. When the binder was first attached to the chain holding the pile, a small wire had been placed around the handle of the binder to prevent it from being inadvertently knocked open. To release the tension on the chain and binder, the appellant removed the wire from the binder’s handle. The handle snapped open, striking the appellant on the shin and causing the injury.
After completion of the appellant’s proof, the appellee moved for a directed verdict. This motion was granted by the district court. In its ruling on the motion the district court found that the appellee’s manufacture of the pilings was not the proximate cause of the appellant’s injury.
The jurisdiction of the court was based upon diversity of citizenship. Directed verdicts are not favored in Michigan. Blazo v. Neveau, 382 Mich. 415,170 N.W.2d 62 (1969); See Serratoni v. Chesapeake & Ohio Ry., 333 F.2d 621 (6th Cir. 1964). The standard to be applied for directed verdicts is succinctly stated in Blazo:
On a motion for directed verdict it is the duty of the trial judge to review all the evidence, giving to the opposing party the benefit of all conflicts and inferences, and decide if there is any evidence from which the jury could reasonably find a verdict contrary to the moving party. 382 Mich. at 424, 170 N.W.2d at 66.
If reasonable minds can differ, the question should be submitted to the jury. Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (1970).
The district court found that the injury was not a natural event flowing from the appellee’s “negligent construction of the pilings . . . . ” In so ruling the court thus assumed that the appellee was negligent in its manufacture of the pilings and there is substantial evidence in the record to support this conclusion. The Michigan Supreme Court has made clear that the question of proximate cause, in case of doubt, is for the jury. As the court stated in Davis v. Thornton, supra at 145, 180 N. W.2d at 15.
But determination of negligence alone does not end the inquiry. Once a jury or judge has found that the defendant was negligent and that the plaintiff suffered injuries, it must be determined, whether the plaintiff’s injuries were caused by the defendant’s wrongful conduct and, then, if the defendant did cause the injuries, judge whether the plaintiff's injuries were too insignificantly related to or too remotely effected by the defendant’s negligence.
Of all the elements necessary to support recovery in a tort action, causation is the most susceptible to summary determination for it usually amounts to a logical connection of cause to effect. However, any doubts about the connections between the causes and the effects, should be resolved by the jury.
In Parks v. Starks, 342 Mich. 443, 448, 70 N.W.2d 805, 807 (1955), the court quoted with approval from 38 Am.Jur. Negligence, § 55 at 705 (1941):
The proximate cause of an injury is not necessarily the immediate cause; not necessarily the cause nearest in time, distance, or space. Assuming that there is a direct, natural, and continuous sequence between an act and an injury, . . . the act can be accepted as the proximate cause of the injury without reference to its separation from the injury in point of time or distance.
This holding was reaffirmed by the court in McKine v. Sydor, 387 Mich. 82, 88, 194 N.W.2d 841, 844 (1972).
Since- we must assume that the appellee’s manufacture was negligent, under the applicable Michigan precedents the element of the foreseeability of the harm is removed. As noted in Davis v. Thornton, supra, 384 Mich. at 146, 180 N.W.2d at 15:
The jury must then bridge the gap between the plaintiff’s injuries and the defendant’s negligence. This is the determination of cause and the remoteness of the effect. Once negligence is determined, foreseeability of harm should no longer be considered.
Causation is a process of logical determination, while the significance of the connections — remoteness—is a policy determination.
There is no doubt from the record before us that the appellee’s negligent construction was at least one of the causes of the appellant’s injury. Plainly the accident and injury would not have occurred absent such negligence. Thus we are left with the question of remoteness. As the Michigan Supreme Court has demonstrated, such an issue, as that of negligence itself, should ordinarily be determined by the jury:
The determination of remoteness, however, should seldom, if ever, be summarily determined.
Both the determination of remoteness and of negligence should almost always be left to the jury. Davis v. Thornton, supra, 384 Mich. at 147-148, 180 N.W.2d at 16.
Under these principles declared by the highest court of Michigan, we feel that there is sufficient connection between the appellee’s negligent construction or manufacture of the pilings and the appellant’s injury that reasonable minds could differ on the issue of causation and hence that the issue of proximate cause should have been left to the jury.
Although the district court made reference to the possibility of contributory negligence, he made no specific ruling on this issue and we therefore express no opinion with respect to it.
The judgment of the district court is reversed and the action is remanded for further proceedings not inconsistent with this opinion.
. This opinion specifically refers to the appellants, Albert Hartwick and Elizabeth Hartwick, only in the singular since any possible recovery by Elizabeth Hartwick is dependent upon her husband’s negligence action. The complaint alleges that she has been damaged by “Loss of society, companionship, love, affection and services of her husband . . . .”
. We need not determine here whether the rule governing the direction of verdicts is “substantive” or “procedural” within the meaning of the Erie rationale. This is true because the federal and Michigan rules appear to be substantially identical. For the Federal rule see 5A Moore, Federal Practice If 50.02(1) (2d ed. 1971). For the Michigan rule see the cases cited in this opinion, particularly Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (1970).
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_7_3
|
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 the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
John E. KIRBY, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.
No. 8394.
United States Court of Appeals Fourth Circuit.
Argued Nov. 7, 1961.
Decided Nov. 15, 1961.
Lowell R. Bowen, Baltimore, Md. (Court-assigned counsel), for appellant.
Robert F. Sweeney, Asst. Atty. Gen. of Maryland (Thomas B. Finan, Atty. Gen. of Maryland, on the brief), for appellee.
Before SOBELOFF, Chief Judge, and BOREMAN and BELL, Circuit Judges.
PER CURIAM.
John E. Kirby appeals from an order of the District Court dismissing without a hearing his petition for a writ of habeas corpus. Kirby is a state prisoner now serving two consecutive sentences of twenty years each in the Maryland Penitentiary on two charges of armed robbery.
The complaint is that his confinement is unconstitutional because in passing sentence the trial judge was “motivated by matters not of record.” To substantiate this claim the petitioner relies on a statement made by the state judge in passing sentence: “ * * * I am perfectly satisfied that you are not being tried for the only ones [holdups] that you perpetrated, * * The petitioner also points to the fact that the judge alluded to him as a “holdup artist.”
te State makes two countercontentions. The first is procedural, namely, that the petitioner has not exhausted his state remedies. The second, on the merits, is that viewed in context the judge’s statements did not infect the proceedings with such fundamental unfairness as to render them unconstitutional.
First, as to the exhaustion issue, it appears that the judge’s statements were set forth as a grievance in the petitioner’s brief in a delayed appeal to the Court of Appeals of Maryland, Kirby v. State, 222 Md. 421, 160 A.2d 786 (1960), and certiorari was denied by the Supreme Court. 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74. While it is true that the point made in the Court of Appeals of Maryland was not couched in the precise language employed in the petition to the District Court, nevertheless, the substance of the argument addressed to the Maryland court is the same as in the District Court. In each instance the defendant charged that he was deprived of his liberty without due process of law in that extraneous matter was permitted by the trial judge to influence the sentence. Consequently, we conclude that the petitioner duly exhausted his state remedies and had standing to petition the District Court for relief.
On the merits, however, the State must prevail. The observations of the judge, viewed most unfavorably— as unsupported by evidence and hence improper — could not be deemed so extreme as to convert the proceedings into a nullity. Federal courts do not exercise a general supervisory authority over state courts, and they have no jurisdiction to correct errors less than fundamental in a constitutional sense. Compare Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958). The remarks came on the heels of a recital of the defendant’s criminal record, which was one of impressive magnitude— eleven convictions for burglary, two for larceny, one for attempted burglary, one for escape from prison, one for assault with intent to kill. There is no indication. °f i7the ^e’s bias Prejudice the petitioner nor does it appear tha* these “tu obserrofaonfl, meas-ufed tbe defendant’s record, Played any significant part m the judgfent of^f court- Tbe len^th of sen“ tenceandthe considerations upon which f +1S based do notT normally raise constitutional issues. In the present case the facts alleged are not sufficient to support the claim that the petitioner has been denied due process,
Affirmed,
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
Answer:
|
songer_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
Joe BOLLING, Appellee, v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Appellant.
No. 8575.
United States Court of Appeals Fourth Circuit.
Argued June 1, 1962.
Decided June 5, 1962.
Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellant.
Montgomery Knight, Jr., Norfolk, Va., (Court-assigned counsel), for appellee.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.
PER CURIAM.
A petition for a writ of habeas corpus, filed by this Virginia recidivist, was first denied without a hearing. We remanded the case with instructions to hold a hearing.
At the hearing subsequently held, testimony was offered upon the basis of which the District Judge found that the petitioner was not represented by counsel when he pleaded guilty in 1938 to an indictment charging housebreaking and theft. He found further that the petitioner was not offered counsel by the presiding judge in 1938, was unaware that he was entitled to counsel, and that the circumstances were such that his conviction, without the assistance of counsel, was a denial of due process. The District Court concluded that, since the first underlying conviction was invalid, the defendant’s recidivist conviction in 1952, as a third offender, was also invalid. Following his conviction as a third offender, the petitioner escaped, committed another crime, of which he was thereafter convicted, and then received an additional sentence as a fourth offender.
The District Court was also of the opinion that the fourth offender sentence was invalid, since, in fact, there were then only three previous valid convictions.
The District Court held that the petitioner was entitled to have the writ issued, but he delayed the actual issuance of the writ on the condition that an appeal be promptly taken, or, alternatively, that steps be taken to retry the defendant for the 1938 offense, or to retry him under a recidivist charge as a third offender.
The respondent has appealed, contending only that the finding that the petitioner was not advised of his right to counsel prior to his 1938 conviction was clearly erroneous. While the prisoner made other patently irresponsible and apparently fabricated claims, he testified that he had no counsel, was not advised of his right to counsel, and mistakenly understood that he was pleading guilty to a misdemeanor when, in fact, the' charge was a felony. The prosecuting officer at the time of the 1938 conviction, now an agent of the Federal Bureau of Investigation, was offered as a witness by the respondent. He remembered the circumstances of the crime and testified that the practice of the judge, who received the guilty plea in 1938, was to accept the plea after inquiring only whether the prisoner wished to plead guilty. His testimony corroborates the prisoner’s claim that he was not offered counsel and was not informed that he had any right to representation by an attorney.
Under these circumstances, we think the finding of the District Judge is not clearly erroneous and that he correctly concluded that the writ of habeas corpus should be issued, since the prisoner is not now being held under any valid sentence.
The District Court, in its order, also stipulated that the writ would not issue if, within sixty days of his order, steps were taken by the Commonwealth of Virginia to retry the prisoner as a third offender. That time has now expired. We think it appropriate that the writ issue upon remand, but, of course, issuance of the writ will not prejudice the right, if any, the Commonwealth may have to rearrest the prisoner and now to retry him as a third offender. Whether or not the defendant may have a valid defense to conviction in any such proceeding is a question not properly addressed to us.
Affirmed and remanded
. Bolling v. Smyth, 4 Cir., 281 F.2d 192.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_casesourcestate
|
01
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
SHUTTLESWORTH v. CITY OF BIRMINGHAM.
No. 168.
Argued February 27, 1964.
Decided March 9, 1964.
Jack Greenberg argued the cause for petitioner. With him on the brief were James M. Nabrit III, Peter A. Hall and Orzell Billingsley, Jr.
J. M. Breckenridge argued the cause and filed a brief for respondent.
Per Curiam.
The judgment of the Court of Appeals of Alabama is reversed. Cole v. Arkansas, 333 U. S. 196; Williams v. Georgia, 349 U. S. 375.
Mr. Justice White took no part in the consideration or decision of this case.
Question: What is the state of the court whose decision the Supreme Court reviewed?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
sc_respondentstate
|
51
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
CRUZ v. BETO, CORRECTIONS DIRECTOR
No. 71-5552.
Decided March 20, 1972
Per Curiam.
The complaint, alleging a cause of action under 42 U. S. C. § 1983, states that Cruz is a Buddhist, who is in a Texas prison. While prisoners who are members of other religious sects are allowed to use the prison chapel, Cruz is not. He shared his Buddhist religious material with other prisoners and, according to the allegations, in retaliation was placed in solitary confinement on a diet of bread and water for two weeks, without access to newspapers, magazines, or other sources of news. He also alleged that he was prohibited from corresponding with his religious advisor in the Buddhist sect. Those in the isolation unit spend 22 hours a day in total idleness.
Again, according to the allegations, Texas encourages inmates to participate in other religious programs, providing at state expense chaplains of the Catholic, Jewish, and Protestant faiths; providing also at state expense copies of the Jewish and Christian Bibles, and conducting weekly Sunday school classes and religious services. According to the allegations, points of good merit are given prisoners as a reward for attending orthodox religious services, those points enhancing a prisoner’s eligibility for desirable job assignments and early parole consideration. Respondent answered, denying the allegations and moving to dismiss.
The Federal District Court denied relief without a hearing or any findings, saying the complaint was in an area that should be left “to the sound discretion of prison administration.” It went on to say, “Valid disciplinary and security reasons not known to this court may prevent the 'equality’ of exercise of religious practices in prison.” The Court of Appeals affirmed. 445 F. 2d 801.
Federal courts sit not to supervise prisons but to enforce the constitutional rights of all “persons,” including prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the Government for redress of grievances which, of course, includes “access of prisoners to the courts for the purpose of presenting their complaints.” Johnson v. Avery, 393 U. S. 483, 485; Ex parte Hull, 312 U. S. 546, 549. See also Younger v. Gilmore, 404 U. S. 15, aff’g Gilmore v. Lynch, 319 F. Supp. 105 (ND Cal.). Moreover, racial segregation, which is unconstitutional outside prisons, is unconstitutional within prisons, save for “the necessities of prison security and discipline.” Lee v. Washington, 390 U. S. 333, 334. Even more closely in point is Cooper v. Pate, 378 U. S. 546, where we reversed a dismissal of a complaint brought under 42 U. S. C. § 1983. We said: “Taking as true the allegations of the complaint, as they must be on a motion to dismiss, the complaint stated a cause of action.” Ibid. The allegation made by that petitioner was that solely because of his religious beliefs he was denied permission to purchase certain religious publications and denied other privileges enjoyed by other prisoners.
We said in Conley v. Gibson, 355 U. S. 41, 45-46, that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
If Cruz was a Buddhist and if he was denied a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts, then there was palpable discrimination by the State against the Buddhist religion, established 600 B. C., long before the Christian era. The First Amendment, applicable to the States by reason of the Fourteenth Amendment, Torcaso v. Watkins, 367 U. S. 488, 492-493, prohibits government from making a law “prohibiting the free exercise” of religion. If the allegations of this complaint are assumed to be true, as they must be on the motion to dismiss, Texas has violated the First and Fourteenth Amendments.
The motion for leave to proceed in forma pauperis is granted. The petition for certiorari is granted, the judgment is vacated, and the cause remanded for a hearing and appropriate findings.
So ordered.
Mr. Justice Blackmun concurs in the result.
The amended complaint alleges, inter alia:
“Plaintiff is an inmate of the Texas Department of Corrections and is a member of the Buddhist Churches of America. At the time of filing of this suit, he was incarcerated at the Eastham Unit and has since been transferred to the Ellis Unit. There is a substantial number of prisoners in the Texas Department of Corrections who either are adherents of the Buddhist Faith or who wish to explore the gospel of Buddhism; however, the Defendants have refused in the past, and continue to refuse, Buddhists the right to hold religious services or to disseminate the teachings of Buddha. The Plaintiff has been prevented by the Defendants from borrowing or lending Buddhist religious books and materials and has been punished by said Defendants by being placed in solitary confinement on a diet of bread and water for two weeks for sharing his Buddhist religious material with other prisoners.
“Despite repeated requests to Defendants for the use of prison chapel facilities for the purpose of holding Buddhist religious services and the denials thereof the Defendants have promulgated customs and regulations which maintain a religious program within the penal system under which:
“A. Consecrated chaplains of the Protestant, Jewish and Roman Catholic religions at state expense are assigned to various units.
“B. Copies of the Holy Bible (Jewish and Christian) are distributed at state expense free to all prisoners.
“C. Religious services and religious classes for Protestant, Jewish and Roman Catholic adherents are held regularly in chapel facilities erected at state expense for ‘non-denominational’ purposes.
“D. Records are maintained by Defendants of religious participation by inmates.
“E. Religious participation is encouraged on inmates by the Defendants as necessary steps toward true rehabilitation.
“F. Points of good merit are given to inmates by the Defendants as a reward for religious participation in Protestant, Jewish and Roman Catholic faiths which enhance on inmates eligibility for promotions in class, job assignment and parole.
“Because inmates of the Buddhist faith are being denied the right to participate in the religious program made available for Protestant, Jewish and Roman Catholic faiths by the Defendants, Plaintiff and the members of the class he represents are being subjected to an arbitrary and unreasonable exclusion without any lawful justification which invidiously discriminates against them in violation of their constitutional right of religious freedom and denies them equal protection of the laws.”
We do not suggest, of course, that every religious sect or group within a prison — however few in number — must have identical facilities or personnel. A special chapel or place of worship need not be provided for every faith regardless of size; nor must a chaplain, priest, .or minister be provided without regard to the extent of the demand. But reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
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.
WEINER v. SENTINEL FIRE INS. CO. et al. COLIN v. SAME.
No. 133.
Circuit Court of Appeals, Second Circuit.
Jan. 11, 1937.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
Mendes, Krisel & Lessall, of New York City (Herman Mendes and Jacob Krisel, both of New York City, of counsel), for defendant-appellant Fred Colin.
Powers, Kaplan & Berger, of New York City (Abraham Kaplan and George I. Gross, both of New York City, of counsel), for defendants-appellees.
AUGUSTUS N. HAND, Circuit Judge.
One Max Brandenburg was the owner of a bond and mortgage made to him by Kady Schaffer. The mortgage was to secure payment of the sum of $32,000, was a first lien on premises in Westchester county, N. Y., and contained a covenant that the mortgagor should “keep- the buildings on the premises insured against loss by fire for the benefit of the mortgagee.” About three years after the making of the bond and mortgage Brandenburg assigned his interest to one Stein, who thereafter reassigned it to Brandenburg. The principal having been reduced to $29,500, Brandenburg assigned the bond and mortgage to the defendant New York Title & Mortgage Company. On the date of this assignment the latter company entered into a participation agreement with Brandenburg which provided that it should have a share in the bond and mortgage to the extent of $22,000 and interest at the rate of 5% per cent, per annum, and that Brandenburg was to be the owner of the balance but that the ownership of the Title & Mortgage Company should be superior to that of Brandenburg. The agreement also provided that the Title & Mortgage Company might assign to any individual its interest in the bond and mortgage not to exceed $22,000, and was authorized to collect the entire income derived therefrom, retaining, however, the amount applicable to its share, while paying the balance to Brandenburg. It also authorized the Title & Mortgage Company to receive. payment of the entire principal, but obliged it to account to Brandenburg for any part received in excess of $22,000. The agreement further provided that the Title & Mortgage Company should “have all the rights of any holder of said bond and mortgage, and in the event of any default * * * the exclusive right to foreclose the same and receive the proceeds of sale from the Referee,” but that Brandenburg should in any “event have the right to an accounting for all moneys received” by the Title & Mortgage Company in excess of its ownership in said bond and mortgage. It added that: “All rights and authority-given under this article by the party of the second part (i. e. Brandenburg) are irrevocable.” The final article of the agreement provided that the Title & Mortgage Company was to notify Brandenburg of any default on the bond and mortgage and of any foreclosure by making the latter or his assigns a defendant in any foreclosure suit without further notice, but was to be under no other obligation to protect the interest of Brandenburg under any such suit or upon any sale under any such foreclosure. After the making of the participation agreement with Brandenburg, the Title & Mortgage Company assigned its superior interest in the bond and mortgage to the defendants Chase National Bank and William G. Barr as trustees under the will of Robert I. Barr, deceased, and guaranteed payment thereof to the extent of such superior interest. Under the instrument of guarantee the Title. & Mortgage Company was made the agent of the trustees “to sue for and receive the proceeds of any policy of fire insurance covering the mortgaged premises in favor of the insured.”
On August 12, 1931, Fred Colin, the defendant-appellant, purchased the junior participating interest in the bond and mortgage from Brandenburg. Prior to that time the plaintiff Weiner had become the owner of the mortgaged premises, and policies of fire insurance were issued by Sentinel Fire Insurance Company and Rhode Island Insurance Company, defendants-appellees, insuring Weiner against loss by fire, the first company in the sum of $10,000, and the second in the sum of $22,000. Each policy contained the provision: “Loss, if any payable to New York Title & Mortgage Company as 1st mortgagee,” and also had a mortgagee clause reading as follows:
“Loss or damage, if any, under this policy, shall be payable first to the New York Title and Mortgage Company, or owner of the mortgage guaranteed by the New York Title and Mortgage Company, covering the premises hereby insured, it being understood that upon request the New York Title and Mortgage Company will inform this Company of the name and address of the person to whom they may have assigned said mortgage, if any, as mortgagee (or trustee), as interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property. * * * ”
On August 14, 1932, and while the above policies were in force, the mortgaged premises were damaged by fire, and the owner Weiner filed proofs of loss with the defendants-appellees and other insurance companies. As the amount of the loss was disputed, this action was brought against all the insurance companies, also the Title & Mortgage Company and the Morris Plan Company. The latter were joined because they were named as mortgagees in different policies involved in the fire. The plaintiff Weiner and the defendants Morris Plan Company, Employers Fire Insurance Company, and Harmonía Fire Insurance Company adjusted their differences and thus'were eliminated from the litigation.
On April 24, 1933, the defendant Title & Mortgage Company filed an answer to Weiner’s complaint, in which it alleged that it held a senior participation interest in the mortgage covering the premises described in the policies of the defendants-appellees to the extent of $22,000 and that Fred Colin held a junior participation interest in the mortgage to the extent of $5,000. The attorney for the Title & Mortgage Company informed Colin that the latter should intervene as a defendant in the action to protect his interest, and thereafter he did intervene by consent of the parties. Later, without consulting Colin or notice to him, the defendants Sentinel Fire Insurance Company, Rhode Island Insurance -Company, Title & Mortgage Company, and Chase National Bank and William G. Barr, trustees under the will of Robert I. Barr, deceased, pursuant to the terms of the policies, entered into an agreement for the appraisal of the fire damage and the appraisers made an award fixing the loss at $8,832.63. The trustees Chase National Bank and William G. Barr filed a cross-petition in the action attacking the award as fraudulent and collusive, but it was sustained by the court, their cross-petition was dismissed, and no appeal was taken from the order of dismissal. Colin filed cross-actions against the defendants-appellees insurance companies demanding judgment for $5,000 against them for the loss alleged to have been payable to him by reason of his share in the mortgage. The issues raised by the cross-actions were tried before Judge Rippey and a jury. He held that Colin was bound by the appraisal, the validity of which had already been sustained by Judge Coxe, dismissed the cross-actions, and directed a verdict for the trustees against the insurance companies for the amount of the award. From this judgment Colin has appealed on the ground that he was not bound by the appraisal held without notice to him and should have been allowed to prove at the trial that the fire loss was greater than the amount awarded.
It seems clear to us that the judgment of the court below was right. The participation agreement provided that the Title & Mortgage Company should have all the rights of any holder of the mortgage, including the right to foreclose and collect the income and that these rights were irrevocable. Colin acquired a junior interest derived from Brandenburg which was subject to the provisions of the participation agreement. Brandenburg only had the right to an accounting of sums received by the Title & Mortgage Company. By the insurance policies the loss was made payable to the latter as mortgagee. The mortgagee clause covered only the Title & Mortgage Company, or an assignee to whom it had assigned its interest under a guarantee of the same. Colin was not an assignee of that company, but of Brandenburg, and stood in his place and not in that of the Title & Mortgage Company.
The contention that the mortgagee clauses were invalid because different from the standard form is without merit. The standard form of each policy, without the special clause in the annexed rider which made the loss payable to the Title & Mortgage Company, contains the following: “Other provisions relating to the interests and obligations of such mortgagee may be added hereto by agreement in writing.” Irrespective of this, the law of the state of New York does not forbid special agreements relating to the interests of the mortgagees. Hessian Hills Country Club v. Home Ins. Co., 262 N.Y. 189, 198, 200, 201, 186 N.E. 439.
The appellant argues that, because the owner of the property had agreed in the mortgage to procure insurance for the benefit of the mortgagee, Colin in some way became entitled to share in the proceeds derived from the policies even if the amount was insufficient to satisfy the senior claim of the trustees under the will of Robert I. Barr. It is true that, if the mortgagor neglected to perform his covenant to provide insurance for the benefit of the mortgagees, Colin could impress a lien upon any insurance moneys belonging to Weiner. Wheeler v. Factors’ & T. Insurance Co., 101 U.S. 439, 442, 25 L.Ed. 1055. But such neglect would not create any right in Colin to whom the insurance was not made payable as against the insurance companies. In other words, the right would only be good against the mortgagor’s interest which has turned out to be nil. The words in the policies “as interest may appear” do not show a purpose to cover Colin’s lien. The loss was made payable to the Title & Mortgage Company, or to the owners of the share of the mortgage guaranteed by that company, and these owners were the trustees under the will of Robert I. Barr. The words “as interest may appear” meant as the interest between the Title & Mortgage Company and Weiner may appear, or, in the event of an assignment by the Title & Mortgage Company, as the interest may appear between its guaranteed assignee and Weiner. Only in case the loss exceeded $22,000 would either Weiner or Colin have any interest in the proceeds of the policy.
The appellant, Cqlin, had no right to litigate the amount of the loss, for the reason that the participation agreement gave the Title & Mortgage Company full control over the mortgage and all the rights of any holder. Its power was coupled with an interest and was irrevocable. Terwilliger v. Ontario, C. & S. R. R. Co., 149 N.Y. 86, 92, 94, .43 N.E. 432. Under such circumstances, the New York courts have allowed one having a senior participation interest in a mortgage with powers similar to those given to the Title & Mortgage Company, even to satisfy a participation mortgage and take a new one without the consent of the holder of the junior interest, and have limited the latter to a lien on any amounts in excess of the interest of the senior owner. Lowenfeld v. Wimpie, 139 App.Div. 617, 124 N. Y.S. 178, affirmed 203 N.Y. 646, 97 N.E. 1108; Stafford v. New York Life Ins. Co., 235 App.Div. 538, 257 N.Y.S. 680, affirmed 260 N.Y. 696, 184 N.E. 150; Goodwin v. Gilsey, 210 App.Div. 31, 205 N.Y.S. 529. Under the participation agreement we are dealing with, the Title & Mortgage Company was given an irrevocable power to represent all persons interested in the mortgage subject only to accountability and any losses under the policies were payable only to it. Consequently it might invoke and become subject to the appraisal to fix the loss, and might in the absence of fraud, which was not claimed to have existed, bind all parties to the loss thus adjusted. Colin, therefore, had no independent right to litigate the amount of loss as fixed by the appraisers. Since the award was far less than $22,000, the senior interest in the mortgage, only that interest was entitled to receive anything from the insurance companies. Accordingly the court properly directed a verdict in favor of the trustees and dismissed the cross-actions interposed by Colin.
Judgment affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_const2
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second 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.
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: What is the second 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
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Plaintiff-Appellee, v. Roy J. POGUE, Defendant-Appellant.
No. 87-2286.
United States Court of Appeals, Tenth Circuit.
Jan. 12, 1989.
Robert N. Miller, U.S. Atty., Bruce F. Black, Asst. U.S. Atty., Denver, Colo., for plaintiff-appellee.
Roy J. Pogue, pro se.
Before McKAY, SEYMOUR, and HIGGINBOTHAM, Circuit Judges.
The Honorable Patrick E. Higginbotham, Circuit Judge, United States Court of Appeals for the Fifth Circuit, sitting by designation.
PER CURIAM.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.8. The cause is therefore ordered submitted without oral argument.
On October 22, 1985, defendant pled guilty to two counts of wire fraud under 18 U.S.C. § 1343. At that time, he was informed by the district court that he faced a maximum possible sentence of ten years imprisonment and a $2,000 fine. One month later, the district court imposed a sentence of four and one-half years prison time and five years probation on the respective counts. As a condition of probation, the court ordered defendant to make restitution to two of the banks he had defrauded in the total amount of $1,758,-091.14, pursuant to the Victim and Witness Protection Act, 18 U.S.C. § 3579 (renumbered as 18 U.S.C. § 3663 effective Nov. 1, 1986).
In June 1987, defendant filed a motion to vacate or correct his sentence pursuant to 28 U.S.C. § 2255, raising the following grounds in support of the relief requested:
(1) Breach of defendant’s plea agreement, which did not include any provision regarding restitution;
(2) Failure to inform defendant prior to pleading that restitution could be a part of the sentence imposed; and
(3) Failure to give proper consideration to the factors governing calculation of restitution.
The district court denied defendant’s motion, and this appeal followed.
I.
When the government obtains a guilty plea based upon an agreement between the defendant and the U.S. Attorney, the agreement must be fulfilled in order to maintain the integrity of the plea. United States v. Stemm, 847 F.2d 636, 637 (10th Cir.1988). In considering any claim that such an agreement has been breached, we must first determine the nature of the prosecutor’s promise. Id. This determination must be based upon “what the defendant reasonably understood when he entered his plea,” without “resortpng] to a rigidly literal approach in the construction of language.” United States v. Greenwood, 812 F.2d 632, 635 (10th Cir.1987). The plea agreement in this case provided only that the government would bring no further charges in return for defendant’s agreement to plead guilty. The agreement contained no provision regarding sentencing, and the government was free at sentencing to “make any statements in ... aggravation.” See Plea Agreement, Exhibit A. Therefore, the government’s recommendation and the Court’s imposition of restitution could not have been contrary to defendant’s reasonable understanding regarding sentencing. See United States v. Pomazi, 851 F.2d 244, 250-51 (9th Cir.1988) (government did pot breach plea agreement by recommending restitution where plea agreement silent as to sentencing).
II.
The second ground advanced in the motion is more problematic. At the time defendant changed his plea to guilty, he was entitled to an explanation of the consequences of conviction, including the court’s authority to order restitution. See Fed.R. Crim.P. 11(c)(1), as amended effective August 1, 1985; see e.g., United States v. Com, 836 F.2d 889, 893 (5th Cir.1988). Both the record of defendant’s plea hearing and his written statement in advance of plea corroborate defendant’s claim that he was not informed by the district court of the possibility of restitution prior to entering his plea. Indeed, absent testimony from former defense counsel, who has never been called upon to relate what information, if any, he provided defendant on the subject, the earliest we can say defendant knew he could be ordered to pay restitution was thirty minutes before sentencing, when the government first served defendant with its motion for the $1,758,091.14 in restitution.
The government essentially concedes that Rule 11 was violated, but argues that neither vacatur of defendant’s conviction nor correction of his sentence is warranted at this late stage in the proceedings. The government relies on United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), in which the Supreme Court indicated that a violation of Rule 11 that does not implicate constitutional or jurisdictional concerns will not support a collateral attack on a guilty plea unless the error resulted in a “complete miscarriage of justice” or in a proceeding “inconsistent with the rudimentary demands of fair procedure.” Id. at 783-84, 99 S.Ct. at 2087-88. In the government’s view, such exceptional circumstances do not obtain here, and the rejection of defendant’s Rule 11 claim should therefore be affirmed. The government emphasizes that defendant ád-mittedly knew about the potential for restitution prior to imposition of sentence but, despite that knowledge, persisted with his guilty plea and took no appeal from his sentence. The district court agreed with the government’s position, and summarily denied defendant’s motion on this basis.
Before we address defendant’s explanation for not abruptly withdrawing his plea at sentencing or at least raising some objection to restitution on a direct appeal, we note several important factors that distinguish this case from Timmreck. First and foremost, the sentence actually imposed in Timmreck did not exceed the maximum penalty the defendant had been (inaccurately) warned about, so the Court could properly conclude that the defendant had not suffered any prejudice as a result of the initial understatement of the maximum potential sentence. See id. at 782-83, 99 S.Ct. at 2086-87. This is also true of the several cases from this circuit that have denied relief under § 2255 for Rule 11 violations. See United States v. Sisneros, 599 F.2d 946, 948-50 (10th Cir.1979); United States v. Eaton, 579 F.2d 1181, 1183 (10th Cir.1978); Evers v. United States, 579 F.2d 71, 72-3 (10th Cir.1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1253, 59 L.Ed.2d 478 (1979); United States v. Hamilton, 553 F.2d 63, 66 (10th Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); see also Hicks v. Oliver, 523 F.Supp. 64, 67 (D.Kan.1981) (summarizing the thrust of Timmreck and Eaton as follows: “Courts may grant relief ... only where the total custodial time [actually imposed] ... exceeds the maximum possible sentence which the court told the defendant he might receive”). In the instant case, however, the $2,000 fine defendant was advised about prior to his plea is not remotely comparable in amount to the $1,758,091.14 restitution ultimately ordered by the district court. And this is not just a matter of money, because defendant may serve his five-year probation term in prison if he fails to make restitution. In short, defendant can realistically claim prejudice not presented in Timmreck or similar cases from this circuit.
Second, the Court found it significant in Timmreck that the defendant “[did] not argue that he was actually unaware of the [potential sentence] or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim was of a technical violation of the Rule.” United States v. Timmreck, 441 U.S. at 784, 99 S.Ct. at 2087. By contrast, defendant here maintains, not without credibility on this record, that he was unaware of the possibility of restitution until he heard about it at sentencing and that, had he been told of his immense exposure to financial liability, he would not have agreed to plead guilty.
Finally, in Timmreck, the defendant’s § 2255 motion was denied only after an evidentiary hearing at which former defense counsel testified that it was his routine practice to inform his clients about the very aspect of the defendant’s potential sentence that the trial court had failed to explain (i.e., the mandatory special parole term under 21 U.S.C. § 841). Id. at 782, 99 S.Ct. at 2086. This consideration is absent in the present case, where defendant’s § 2255 motion was denied without a hearing or comparable evidentiary development, and therefore without an opportunity to examine the possibility of prejudice.
All of these distinctions would be beside the point, however, if, as the government contends, defendant was given an opportunity to withdraw his plea after he was told about restitution at the sentencing hearing. In that case, we could confidently say that defendant suffered no prejudice from the omission of any reference to restitution at the time of his plea. See United States v. Grewal, 825 F.2d 220, 222 (9th Cir.1987) (failure to inform defendant about restitution prior to guilty plea did not justify collateral relief where defendant declined opportunity to withdraw his plea after becoming aware of this potential consequence). The government points out that defendant responded affirmatively when the district court inquired, during the opening moments of sentencing, whether he was “persisting or continuing” in his plea. However, defendant argues, with some force, that repeated admonishments from the bench at his plea hearing, to the effect that he would not thereafter be allowed to change his plea or appeal from his conviction, had misled him to believe his guilty plea was no longer open to alteration by the time he learned of the possibility of restitution. Absent evidence that counsel cleared up this alleged misunderstanding, it cannot be said that defendant was given a realistic opportunity to withdraw his plea after being informed restitution could be ordered. We therefore cannot conclude that defendant waived objection to restitution under the principles discussed in Gre-wal.
For the above reasons, we believe defendant has demonstrated a sufficiently substantial Rule 11 violation to be cognizable in a proceeding under 28 U.S.C. § 2255. Defendant has advanced a credible, largely undisputed factual claim of prejudice, as well as a facially sufficient explanation for his failure to raise the issue before. We note, however, that the summary nature of the district court’s disposition of defendant’s § 2255 motion left the government no occasion to present evidence potentially demonstrating that defendant actually had notice prior to pleading, from some source other than the court, that restitution could be ordered as part of his sentence, or that he was in fact aware of his right to seek withdrawal of his guilty plea after learning of this possibility. Defendant’s claims would be significantly undercut if the government established either of these alternatives. With this in mind, we believe the government should be permitted to attempt such a showing on remand, if it so wishes. Accordingly, the denial of defendant’s § 2255 motion is vacated with respect to the second ground asserted therein and the cause remanded to enable the district court to undertake one of the following courses of action: (1) further evidentiary development to determine when defendant was first made aware that restitution could be ordered and whether defendant understood that he was entitled to seek leave to withdraw his plea at that time; (2) resen-tencing without reference to restitution; or (3) vacatur of defendant’s conviction to permit him to withdraw his plea and face trial.
III.
Finally, we turn to defendant’s contention that the district court’s calculation of restitution constituted an abuse of its substantial discretion in this area of sentencing. See generally United States v. Richard, 738 F.2d 1120, 1122 (10th Cir.1984). We need not address defendant’s specific arguments on this issue, because defendant and defense counsel stipulated on the record to the amount of restitution imposed and expressly waived any evidentiary hearing on the issue at sentencing. See United States v. McMichael, 699 F.2d 193, 195 (4th Cir.1983) (district court authorized to order restitution in any amount up to the sum defendant and counsel agreed to at sentencing hearing); see also United States v. Davies, 683 F.2d 1052, 1055 (7th Cir.1982) (denial of Fed.R.Crim.P. 35 challenge to size of restitution order affirmed in part because the order had been limited to “the amount of ... defendant’s admitted depredations”); see generally United States v. Franks, 723 F.2d 1482, 1487 (10th Cir.1983) (in criminal prosecution for violation of tax laws, defendant may not be required to pay specific sum for unpaid taxes as condition for parole unless the amount has been conclusively established in the criminal proceeding, finally determined in civil proceedings, or acknowledged by defendant), cert. denied, 469 U.S. 817, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984).
The order of the United States District Court for the District of Colorado denying defendant’s § 2255 motion is AFFIRMED as it relates to the first and third grounds raised by defendant but VACATED as to ground two, and the cause is REMANDED for further proceedings consistent herewith.
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_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SECURITIES AND EXCHANGE COMMISSION v. SAVOY INDUSTRIES, INC., et al. Appeal of S. Mort ZIMMERMAN.
No. 79-1947.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 15, 1980.
Decided Sept. 28, 1981.
R. A. Dean Carlton, Washington, D. C., with whom Irving R. M. Panzer, Washington, D. C., was on the brief, for appellant.
Elisse B. Walter, Atty., Securities and Exchange Commission, Washington, D. C., with whom Jacob H. Stillman, Associate Gen. Counsel, Paul Gonson, Sol., Linda W. Otis, Sp. Counsel, and S. Lee Terry, Jr., Atty., Securities and Exchange Commission, Washington, D. C., were on the brief, for appellee. William A. Dietch, Atty., Securities and Exchange Commission, Washington, D. C., also entered an appearance for appellee.
Before ROBINSON, Chief Judge, and TAMM and WOOD, Circuit Judges.
Opinion for the Court filed by Chief Judge ROBINSON.
Of the United States Court of Appeals for the Seventh Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a) (1976).
ROBINSON, Chief Judge:
We are presented with still another chapter in the continuing struggle between S. Mort Zimmerman and the Securities and Exchange Commission (SEC). The District Court now has held Zimmerman in violation of several provisions of the federal securities laws and rules promulgated thereunder, and enjoined him from engaging in such misconduct in the future. Zimmerman challenges the court’s conclusions, contending that its factual findings are in error and that the injunction entered against him is invalid. We affirm the findings of fact and, save for but one of its provisions, uphold the injunction as framed.
I. BACKGROUND
In 1969, Zimmerman embarked upon a course of action designed to obtain control of States General Life Insurance Company, Inc., a publicly-held corporation. He concentrated his efforts initially on direct purchases of States General stock, in combination with indirect acquisition of its shares through the use of tender offers by companies already under his control. When these stratagems failed, Zimmerman sought to achieve his objective more circuitously by acquiring stock in Savoy Industries, Inc., another publicly-held corporation controlled by its president, Louis Danenberg, his longtime friend and co-investor. Zimmerman planned to take over Savoy and use it to gain control of States General.
Zimmerman was afraid to attempt a takeover of Savoy openly, however, realizing that the history of his securities-law transgressions could provoke opposition from Savoy’s shareholders. To prevent his plans from being thwarted in this manner, Zimmerman organized a takeover group to function at his direction, although he was not formally a member. The group eventually consummated an agreement with Savoy by which it would obtain control. In order to insure the success of the effort, Zimmerman’s participation was kept secret. Neither his role nor his future intentions for Savoy were disclosed in any of Savoy’s various filings with SEC and the American Stock Exchange, in documents mailed by Savoy to its shareholders, or in papers filed with SEC by the takeover group.
In 1974, SEC sued Zimmerman, along with several other individual and corporate participants in the takeover effort, for infraction of various antifraud and reporting provisions of the federal securities laws and regulations. The District Court, in 1976, held that Zimmerman had violated a number of such provisions in a variety of ways: Sections 13(d)(1) and 13(d)(3) of the Securities Exchange Act of 1934 by failing to file a Schedule 13D with SEC; Sections 10(b), 13(d)(1) and 13(d)(3) of the 1934 Act and Rules 10b-5 and 13d-l thereunder, and Section 17(a) of the Securities Act of 1933 by filing, in the name of the takeover group, a Schedule 13-D concealing his membership in the group; Sections 10(b) and 13(a) of the 1934 Act, Rules 10b-5, 13a-l, and 13a- thereunder, and Section 17(a) of the 1933 Act through Savoy’s filing of false and misleading documents with SEC at a time when the corporation was under Zimmerman’s control; Section 10(b) of the 1934 Act, Rule 10b-5 thereunder, and Section 17(a) of the 1933 Act as a consequence of Savoy’s filing of a false and misleading listing application with the American Stock Exchange and sending a false and misleading letter to Savoy’s shareholders. On the basis of these conclusions, the District Court enjoined Zimmerman from engaging in conduct transgressing the laws and regulations he had infringed in the course of the Savoy takeover. The injunction restrained activity associated with the sale or purchase of the securities of Savoy or any other issuer, and forbade Zimmerman to engage in any other deceitful or fraudulent act against any person.
Zimmerman appealed that decision to this court. In 1978, we affirmed the District Court with respect to its holding that Zimmerman had violated Sections 13(d)(1) and 13(d)(3) of the Securities Exchange Act of 1934 and rules promulgated thereunder. We remanded the remainder of the case, however, to the District Court for “a further illumination’’ of its findings as to the basis for Zimmerman’s accountability under Sections 20(a) and 20(b) of the 1934 Act for the documents filed with the American Stock Exchange or mailed to shareholders on behalf of Savoy. We also requested the District Court reach a factual resolution on whether Zimmerman had acted with scienter, noting that the Supreme Court’s decision in Ernst & Ernst v. Hochfelder, holding that private parties must prove scienter in actions for damages under the antifraud provisions of Section 10(b) of the Securities Exchange Act, had been announced after the District Court’s original rulings. Confronted with the question whether proof of scienter was also required in actions brought by SEC itself, we withheld comment on that subject pending the District Court’s determination as to the presence or absence of scienter in Zimmerman’s instance. Finally, we addressed the question of validity of the injunction entered against Zimmerman, and “[bjecause there remain[ed] doubt as to the existence of some of the violations underlying the injunction, we [felt] that the issue concerning the proper scope of [its] language [was] best considered, if at all, [upon formulation of] a precise definition of all the violations.” Consequently, “we remand[ed] with instructions to the district court to modify the second and third paragraphs of its injunction pendente lite, so as to encompass only the specific violations affirmed on appeal and so as to limit its scope to Savoy.”
On remand, the District Court found that Zimmerman controlled both the takeover group and Savoy, through its officers and directors, during the period of dissemination of the false and misleading documents at issue in the litigation. The court further found that Zimmerman had purposely “in bad faith, ‘with scienter,’ ” caused the takeover group and Savoy wrongfully to omit from the documents filed with SEC and the American Stock Exchange and transmitted to Savoy shareholders any reference to his participation in the takeover. Accordingly, the court held Zimmerman responsible therefor under Sections 10(b), 13(a), 13(d), 20(a) and 20(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. On the basis of these conclusions, the District Court revived and re-entered against Zimmerman the earlier injunction which we had modified pendente lite. In 1979, after SEC requested amendment of the injunction, the District Court revised its order in some respects.
Zimmerman now comes back to us on appeal from the District Court’s last decision, alleging principally that the court’s findings of fact are in error and that the injunction ultimately entered against him is illegal.
II. THE DISTRICT COURT’S FINDINGS OF FACT
Zimmerman complains that the District Court’s ruling that through his control of the takeover group and Savoy he intentionally violated the securities laws cannot possibly be correct. Specifically, he claims that the timing of the filing and dissemination of the Savoy documents precluded a finding that he was responsible for the false and misleading statements they contained because they were prepared and transmitted prior to the actual takeover of Savoy by the Zimmerman control group. In making this argument, Zimmerman attacks the logic and consistency of the court’s conclusions rather than its basic underlying findings of fact. We have carefully considered the challenge from this perspective and have concluded that Zimmerman’s objections are without merit.
The District Court held Zimmerman responsible for the takeover group’s filing of a Schedule 13-D, for Savoy’s filings of a Form 8-K Report, a Form 10-K and an American Stock Exchange listing application, and for the transmittal of a letter to Savoy shareholders, all of which contained false and misleading statements. Zimmerman’s attempt to avoid liability on grounds that he did not control Savoy at the time when four of the five documents were disseminated must fail. First, we cannot understand how Zimmerman could escape blame for the Schedule 13-D on the ground of an alleged lack of control over Savoy. The District Court has clearly and consistently found that Zimmerman controlled the takeover group from its inception, and that is enough to subject him to the consequences of the false and misleading filing. Second, even if Zimmerman had not controlled Savoy prior to the date when the board of directors installed as a consequence of the takeover agreement assumed management of the corporation, the Form 10-K was filed more than a,month after the change in directors. Thus, the filing of the false and misleading information contained in this document alone subjects Zimmerman to sanctioning under the securities laws, as the District Court held.
We do not rest our affirmance solely on the Schedule 13-D and the Form 10-K, however, for we think that the court’s finding that Zimmerman was responsible for the remaining three filings is well supported. The court obviously did not believe Zimmerman’s claim that he had nothing to do with these documents. It found that though Zimmerman had not physically handled or prepared any of the documents himself, he had “with a complete lack of good faith, induced... the false and misleading [filings].” Contrary to Zimmerman’s contention that the timing of these documents precludes holding him accountable for their contents, the District Court’s underlying findings buttress its conclusion in two ways. First, the court found that Zimmerman controlled Savoy, through its president, Louis Danenberg, when he, among others, agreed to the mechanics of Zimmerman’s takeover scheme. The court further found that Danenberg was motivated to go along with Zimmerman, with whom he had frequently engaged in business dealings in past years, because the scheme presented him with an opportunity to withdraw from Savoy in an acceptable manner. At the time, Danen-berg was conscious of his advancing age and ill health, and he hoped to find a way to “get out” free of SEC reporting requirements. Considering Danenberg’s motives, his acceptance of Zimmerman’s scheme, and Danenberg’s active role in procuring Savoy’s agreement to the takeover, the court reasoned that Zimmerman controlled Dan-enberg’s actions with respect to Savoy; and from this followed the deduction that “[c]ontrol of Danenberg meant control of Savoy.” The court rested this latter finding on incontrovertible facts: Danenberg was president of Savoy, as well as chairman of its board and a major stockholder; and he appeared to possess power to act virtually alone on behalf of the corporation, undertaking, for example, to negotiate the takeover for Savoy, to hire a new director at Zimmerman’s request, and to change accounting firms on Zimmerman’s command.
Moreover, the District Court found that Zimmerman transformed his de facto control into “legally enforceable” power in 1974 when Savoy and the takeover group signed the takeover agreement. Although the new board nominated by the takeover group did not assume control until three months later, the court found that during the interim Savoy functioned pursuant to obligations imposed by the takeover agreement, thus further enhancing Zimmerman’s already strong control of Savoy. It was during this interval that the Form 8-K, American Stock Exchange listing application, and the letter to Savoy shareholders were issued.
We are satisfied that the District Court’s conclusions are firmly supported by the underlying facts. The timing of the dissemination of the documents in question interposed no barrier to the court’s holding that Zimmerman bore responsibility for their contents since at all times relevant he controlled the entities that transmitted the documents.
III. THE DISTRICT COURT’S INJUNCTION
Zimmerman also contends that the injunction entered against him by the District Court violates Rule 65(d) of the Federal Rules of Civil Procedure because, he says, it is overbroad, lacking in specificity, and cast in language closely parallelling the statutes and SEC rules under which the District Court held him liable. The critical portions of the injunction follow:
IT IS ORDERED, ADJUDGED AND DECREED, that defendant S. Mort Zimmerman (Zimmerman), his agents, servants, partners, assigns and those persons in active concert or participation with him, are hereby restrained and enjoined from, directly or indirectly, making use of the means or instrumentalities of Interstate commerce or of the mails, in connection with the purchase or sale of securities of Savoy Industries, Inc. (Savoy) or any other issuer, to make any untrue statements of material facts or to omit to state material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading and to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person; and it is further
ORDERED, ADJUDGED AND DECREED, that defendant Zimmerman, his agents, servants, partners, assigns and those persons in active concert or participation with them, are hereby restrained and enjoined from directly or indirectly filing or causing Savoy or any other company to file any annual, periodic or other reports with the Securities and Exchange Commission containing untrue statements of material facts or omitting to state material facts necessary to make the statements made in light of the circumstances under which they were made not misleading or to omit information required to be stated therein, and from failing to file or causing the failure to file said reports on a timely and current basis...,
We agree that, to a very limited extent Zimmerman’s objections are well taken. In our view, the last clause of the first ordering paragraph of the injunction must be eliminated. We do not, however, accept his arguments with respect to the remaining provisions. To be sure, the Supreme Court has cautioned on a number of occasions that an injunction may not be so broad or imprecise as to leave one subject to it in doubt as to the conduct actually prohibited; as the Court stated in Hartford-Empire Co. v. United States, “[t]he decree must not be ‘so vague as to put the whole conduct of the defendants’ business at the peril of a summons for contempt,’ [nor may it] enjoin ‘all possible breaches of the law’....” We are mindful, too, that courts have struck down injunctions which effectively have ordered the defendant simply to refrain from violating the law “in any particular” or from breaching a general duty. It does not follow, however, that a broadly-phrased injunction may never be valid, nor that a prohibition of future transgressions, even in relatively wide-ranging terms, of a law already broken by the defendant is necessarily invalid. For example, in McComb v. Jacksonville Paper Co., the Supreme Court upheld an injunction which “[b]y its terms... enjoined any practices which were violations of [particular] statutory provisions,” recognizing that “[d]ecrees of that generality are often necessary to prevent further violations where a proclivity for unlawful conduct has been shown.” As the Court has stated elsewhere, “[a] federal court has broad power [] to restrain acts which are of the same type or class as unlawful acts which the court has found to have been committed or whose commission in the future, unless enjoined, may fairly be anticipated from the defendant’s conduct in the past.”
The occasion for injunctions of the type approved in McComb frequently arises when serious wrongdoing in the securities area has been proven. A number of the courts of appeals have rejected challenges to injunctions extending their prohibitions to dealings in all securities issues rather than simply to those which the defendant’s unlawful activities involved. In SEC v. Manor Nursing Centers, Inc., for instance, the Second Circuit upheld an injunction encompassing all issues, reasoning that
the district court was justified in believing that an injunction limited to violations involving... shares [of the corporation connected with the illegal conduct] would not adequately protect public investors. The violations of the federal securities laws committed by appellants... demonstrated their propensity to use various corporate entities to achieve unlawful objectives.
We think that the same thing may be said of the injunction entered against Zimmerman. Given his complex machinations, the number of individuals and entities he implicated in the Savoy-States General scheme, and his prior history of both civil and criminal infringements of the federal securities laws, we think that the District Court was completely justified in framing its injunction against Zimmerman in terms of “any issuer.”
We also uphold the District Court’s use in the injunction of language similar to that of the statutes violated by Zimmerman. As noted earlier, in McComb the Supreme Court specifically approved injunctions so worded. The few cases we have found invalidating injunctions utilizing statutory phrasing involved very broad legislative proscriptions, such as Section 2 of the Sherman Act. In the securities field, however, we have not encountered any instances in which a federal appellate court has struck down an injunction formulated in language closely parallelling the statute transgressed by the defendant; indeed, several courts have flatly rejected pleas to do so. While we need not decide whether the language of all sections of the federal securities laws is amenable to reproduction in an injunction, we hold that the statutory wording employed by the District Court in this case is sufficiently specific to pass muster.
Our affirmance of the injunction does not extend, however, to the clause ordering Zimmerman not “to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.” This interdiction could embrace nearly any sort of violation of the securities laws, and possibly reach out even beyond the securities area. To allow this provision to stand could subject to the federal civil contempt power future acts by Zimmerman that may be completely unrelated to his lawbreaking in the past. In short, this part of the injunctive order is in our view “ ‘so vague as to put the whole conduct of [Zimmerman’s] business at the peril of a summons for contempt.’ ” Consequently, it must be stricken.
IV. DISPOSITION
For the reasons set forth, the factual findings of the District Court are affirmed. The injunction entered against Zimmerman by the court is modified to eliminate from the first ordering paragraph the words “and to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.” As so modified, the injunctive order is affirmed.
So ordered.
. See the cases cited infra note 2.
. Mere summary of the complex facts of this litigation suffices for an understanding of the issues on appeal. Further explanations of the intricacies of Zimmerman’s operational scheme, and the relationships and motives of the various persons and entities it involved, may be found in two opinions of the District Court: SEC v. Zimmerman, No. 74-1711 (D.D.C. June 29, 1979), Joint Appendix (J.App.) 138 [hereinafter cited as Zimmerman II], and SEC v. Zimmerman, 407 F.Supp. 623 (D.D.C. 1976), aff'd in part, vacated in part sub nom. SEC v. Savoy Indus., Inc., 190 U.S.App.D.C. 252, 587 F.2d 1149 (1978), cert. denied, 440 U.S. 913, 99 S.ct. 1227, 59 L.Ed.2d 462 (1979) [hereinafter cited as Zimmerman /]. A more complete presentation of the facts is also made in our own prior opinion in this case, SEC v. Savoy Indus., Inc., supra.
. In 1969, Zimmerman consented to a permanent injunction against violations of § 17(a) of the Securities Act, 15 U.S.C. § 77q(a), and § 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b) (1976), or the latter’s implementing Rule 1 Ob-5, 17 C.F.R. § 240.10b-5 (1980), by promulgation or dissemination of misleading press releases, brochures, or other written or oral statements concerning two corporations. SEC v. Intercontinental Indus., Inc., 69 Civ. 30003 (D.B.B.) (S.D.N.Y.1969).
In 1972, pursuant to an indictment returned in 1971 in the United States District Court for the Southern District of Florida, in an unrelated matter involving sales of securities of another company, Zimmerman was fined $30,000 and placed on five years’ probation on his plea of guilty to three counts of securities fraud and one count of mail fraud. Brief for Appellee at 13 n.19.
. 15 U.S.C. § 78m(d)(l) & (3) (1976 & Supp. Ill 1979).
. Id. § 78j (1976).
. 17 C.F.R. § 240.10b-5 (1980).
. Id. § 240.13d-101 (1980). Although SEC has revised this rule during the years since Zimmerman engaged in the conduct at issue in this litigation, his liability does not depend on which version is deemed controlling. See SEC v. Savoy Indus., Inc., supra note 2, 190 U.S. App.D.C. at 263 n.29, 587 F.2d at 1161 n.29.
. 15 U.S.C. § 77q(a) (1976). See note 24 infra.
. 15 U.S.C. § 78m(a) (1976).
. 17 C.F.R. § 240.13a-1 (1980).
. Id. § 240.13a-ll (1980).
. See note 24 infra.
. Zimmerman I, supra note 2, 407 F.Supp. at 631. A portion of this injunction, subsequently revised slightly, Zimmerman II, supra note 2, Amended Order at 1-2, J.App. 167-168, is quoted in text infra at note 45.
. SEC v. Savoy Indus., Inc., supra note 2, 190 U.S.App.D.C. at 275, 587 F.2d at 1172.
. 15 U.S.C. § 78t(a)-(b) (1976). Although the District Court had not originally cited § 20(a) or § 20(b) of the Securities Exchange Act of 1934, upon review of its holding we concluded that those provisions must have formed the intended basis of liability under the District Court’s control theory. Consequently, we directed the District Court on remand to consider the applicability of these sections. SEC v. Savoy Indus., Inc., supra note 2, 190 U.S.App.D.C. at 272-274, 587 F.2d at 1169-1171.
. 190 U.S.App.D.C. at 272-275, 587 F.2d at 1169-1172.
. 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976).
. Id. at 214, 96 S.Ct. at 1391, 47 L.Ed.2d at 689.
. SEC v. Savoy Indus., Inc., supra note 2, 190 U.S.App.D.C. at 275, 587 F.2d at 1172.
. Id.
. Id. at 275-276, 587 F.2d at 1172-1173.
. Zimmerman II, supra note 2, at 3-4, J.App. 140-141.
. Id. at 4, J.App. 141.
. Id. & Conclusions of Law, id. at 19-27, J.App. 156-164. On remand, SEC chose not to pursue the action against Zimmerman under § 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a) (1976), so the District Court dismissed the proceedings thereunder. Zimmerman II, supra note 2, at 27, J.App. 164.
. Id., Order, J.App. 165.
. Id., Amended Order (filed Aug. 20, 1979), J.App. 167.
. In addition to his principal claims, Zimmerman raises other contentions that plainly are without merit. We fail to comprehend the meaning of his statement that “the District Court derived due process to the Appellant.” Brief for Appellant at 5. Apparently it has some significance to his argument that the court neglected, in violation of Fed.R.Civ.P. 52, to make independent findings of fact on remand, id., but we see no evidence of such an error here. Although the court substantively adopted a considerable portion of the factual findings proposed by SEC, it made significant alterations, additions, and deletions in SEC’s submission.
Nor do we find substantial Zimmerman’s contention that he was entitled to an evidentia-ry hearing on remand. We sent the case back to the District Court for an elaboration of its control theory of liability, including the applicability of §§ 20(a) and 20(b), see text supra at note 15, and for “a further illumination” of its factual findings as to Zimmerman’s control of Savoy and the presence or absence of scienter. See text supra at notes 15-19. Since this involved essentially only an explanation of the court’s prior findings of fact and conclusions of law and could be completed merely with the aid of the original record, there was no need for an evidentiary hearing.
. Brief for Appellant at 17. Citing no authority whatsoever, Zimmerman also insists that he cannot be held liable Yor the false and misleading documents disseminated by Savoy because those items were prepared by an outside law firm. We disagree. In view of the District Court’s finding that Zimmerman controlled Savoy at all relevant times, he was responsible for Savoy’s failure to fulfill its disclosure obligations. Compliance with federal securities laws cannot be avoided simply by retaining outside counsel to prepare required documents. See, e.g., Tarvestad v. United States, 418 F.2d 1043, 1047 (8th Cir. 1969), cert. denied, 397 U.S. 935, 90 S.Ct. 944, 25 L.Ed.2d 116 (1970). Zimmerman has made no attempt to claim the defense of reliance on advice of counsel, and the courts that to date have recognized this defense have required the defendant to establish that he (1) made a complete disclosure to counsel; (2) requested counsel’s advice as to the legality of the contemplated action; (3) received advice that it was legal; and (4) relied in good faith on that advice. See SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1101-1102 (2d Cir. 1972); United States v. Custer Channel Wing Corp., 376 F.2d 675, 683 (4th Cir.), cert. denied, 389 U.S. 850, 88 S.Ct. 38, 19 L.Ed.2d 119 (1967); Papilsky v. Berndt, [1976-77] Fed.Sec. L.Rep. (CCH) ¶ 95,627, at 90, 132-90, 135 (S.D.N.Y.1976); SEC v. M. A. Lundy Assoc., 362 F.Supp. 226, 233 (D.R.I.1973); United States v. Hill, 298 F.Supp. 1221, 1234-1235 (D.Conn. 1969); Hawes & Sherrard, Reliance on Advice of Counsel as a Defense in Corporate and Securities Cases, 62 Va.L.Rev. 1, 19-37 (1976). Even when established, such reliance does not operate as an automatic defense, but is only one factor to be considered in determining the propriety of injunctive relief. See SEC v. Manor Nursing Centers, Inc., supra, 458 F.2d at 1101; United States v. Schaefer, 299 F.2d 625, 630-631 (7th Cir.), cert. denied, 370 U.S. 917, 82 S.Ct. 1553, 8 L.Ed.2d 497 (1962); cf. Linden v. United States, 254 F.2d 560, 568 (4th Cir. 1958) (advice of counsel defense in context of prosecution for mail fraud). We need not decide whether the defense is available in this circuit, since Zimmerman plainly has failed to meet any of the prerequisites necessary for its invocation.
. Zimmerman II, supra note 2, at 3-4, 8-12 (Findings of Fact Nos. 13-15), J.App. 140-141, 145-149.
. Id. at 22, 25 (Conclusions of Law Nos. 9, 20), J.App. 159, 162.
. Id. at 24 (Conclusion of Law No. 17), J.App. 161.
. Id. at 160 (Conclusion of Law No. 15), J.App. 23.
. Id. at 7-8 (Finding of Fact No. 11), J.App. 144-145.
. Id. at 12-13 (Findings of Fact Nos. 17-19), J.App. 149-150.
. Id. at 24 (Conclusion of Law No. 16), J.App. 161.
. Id. at 12 (Finding of Fact No. 17), J.App. 149.
. Id.
. Id. at 12-13, J.App. 149-150.
. Id.
. Id. (Findings of Fact Nos. 17, 19), J.App. 149, 150.
. Id. at 13 (Finding of Fact No. 20), J.App. 150.
. Id.
. "Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” Fed.R.Civ.P. 65(d).
. Brief for Appellant at 7-8. Zimmerman also complains that the District Court’s amendment of its injunction on motion by SEC, see text supra at note 26, violated Fed.R.Civ.P. 60. Zimmerman is in no position to protest the deletion of the word “offer” since he benefited from this narrowing of the injunction’s scope. We need not address Zimmerman’s argument with respect to the rephrasing of the last clause of the first ordering paragraph, since we hold that this provision must be stricken for other reasons. See text infra at notes 61-62.
. Zimmerman II, supra note 2, Amended Order at 1-2, J.App. 167-168.
. This we later discuss. See text infra at notes 61-62.
. 323 U.S. 386, 65 S.Ct. 373, 89 L.Ed. 322 (1945).
. Id. at 410, 65 S.Ct. at 385, 89 L.Ed. at 360.
. See, e.g., Russell C. House Transfer & Storage Co. v. United States, 189 F.2d 349, 351 (5th Cir. 1951).
. See, e.g., Sanders v. Air Line Pilots Ass’n, Int’l, 473 F.2d 244 (2d Cir. 1972). Despite Zimmerman’s protestations to the contrary, we do not find this injunction at all unintelligible. See International Longshoremen’s Ass’n Local 1291 v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 69-72, 88 S.Ct. 201, 204-206, 19 L.Ed.2d at 236, 241-243 (1967); Brumby Metals, Inc. v. Bargen, 275 F.2d 46, 49 (7th Cir. 1960).
. 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed. 599 (1949).
. Id. at 192, 69 S.Ct. at 500, 93 L.Ed. at 604.
. Id. Without such injunctions, in some instances “a whole series of wrongs is perpetrated and a decree of enforcement goes for naught,” id. at 193, 69 S.Ct. at 500, 93 L.Ed.2
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_fedlaw
|
A
|
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 statute, and if so, whether the resolution of the issue by the court favored the appellant.
Herbert HARRIS et al., Appellants, v. The INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCAL NO. 1291, and Richard L. Askew, President of Local No. 1291.
No. 14213.
United States Court of Appeals Third Circuit.
Argued April 23, 1963.
Decided Aug. 5, 1963.
Harry Lore, Philadelphia, Pa., for appellants.
Abraham E. Freedman, Philadelphia, Pa. (Wilfred F. Lorry, Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for appellees.
Before BIGGS, Chief Judge, and HASTIE and GANEY, Circuit Judges.
HASTIE, Circuit Judge.
The question on this appeal is whether this suit by members in good standing of Local 1291 of the International Longshoremen’s Association against the local and its president for alleged violations of Title I, the “Bill of Rights”, of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 522, 29 U.S.C. §§ 411-415, is premature because the plaintiffs have not first sought relief within the union. Answering this question in the affirmative, 210 F.Supp. 4, the district court granted the defendants’ motion for summary judgment, and the plaintiffs have appealed
Facts relevant to various issues were developed in affidavits annexed to the motion for summary judgment and in extensive uncontradicted testimony taken at hearings on plaintiffs’ unsuccessful motions for preliminary injunctions. However, the opinion below in support of the granting of summary judgment unambiguously confined the issue sub judice to the exhaustion of internal remedies. See 210 F.Supp. at 8. Accordingly, we shall consider only that issue, leaving the merits of the plaintiffs’ grievance for future determination whether within the association or through future litigation.
A union member’s obligation to resort to internal remedies before suing his union is based upon the provision of section 101(a) (4) of the L.M.R.D.A., 29 U.S.C. § 411(a) (4), that:
“No labor organization shall limit the right of any member thereof to institute an action in any court, * * * irrespective of whether or not the labor organization or its officers are named as defendants * * *. Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof XXX»
In the present case, the relevant union requirement is contained in article XIX, section 5, of the “Constitution and Rules of Order of International Longshoremen’s Association, As amended at the 39th Convention * * * July 13-16, 1959, and Executive Council Meetings of October 28, 1959 and December 1, 1959”. See Sheridan v. United Bd. of Carpenters, 3d Cir. 1962, 306 F.2d 152, 159-160 (concurring opinion). That section provides that:
“No member * * * shall institute any civil action * * * against the I.L.A., any of its Local Unions, * * * or any officer * * * on account of any controversy for which a remedy by trial or appeal is provided for in this Constitution, unless and until he has first exhausted all such remedies of trial and appeal.”
The plaintiffs have taken no steps to invoke any of the remedies established by the I.L.A. constitution. They contend, however, that they may bypass these remedies and institute this action immediately because (1) the procedures set forth in the constitution are unreasonable in that they are confusing and contradictory; (2) the procedures give no assurance of final disposition of a complaint within the four-month period contemplated by the Act; and (3) the existence of the procedures was unknown to the plaintiffs when this action was commenced.
The complaint alleged that the defendant president’s wilful misconduct of union meetings has deprived the plaintiffs of their right to participate effectively in such meetings. Specifically, the plaintiffs alleged that the defendant president, at various times, knowingly and wilfully made erroneous parliamentary rulings, permitted conversations while members were recognized to speak, vilified one of the plaintiffs when he attempted to address a meeting, refused to permit debate on certain debatable questions, and declined to entertain appeals from his rulings.
Such intentional departures from the basic rules of orderly, democratic parliamentary procedure by the president of the local union, if proved, would constitute violations not only of the L.M.R.D.A., but also of the local president’s official duty to enforce the rules of order of the I.L.A. constitution. See article XIII, section 4. In such a case, article XVIII of the constitution provides an appropriate internal remedy.
Section 1(b) of article XVIII provides that “any * * * officer * * * shall be subject to discipline who is found guilty * * * of violating any provision of this Constitution”. In section 1(a) “discipline” is defined broadly enough to encompass relief for union members whose right to participate in union meetings has been abridged by the illegal conduct of a local president. Disciplinary proceedings may be initiated against an officer of a local union by “any member” of the union filing charges with the Executive Board of the local union, the District Council or District organization, or the Executive Council of the international union. Any of these bodies has jurisdiction to entertain such proceedings. Sections 3 to 5 of article XVIII set forth rules governing the conduct of such proceedings. Section 6 provides that “appeals from decisions [in disciplinary cases] * * * may be taken * * * by the accused or by the person filing the charge”.
The plaintiffs do not seriously question that such disciplinary proceedings under the I.L.A. constitution could give them the relief which they seek. Instances of possible confusion suggested by the plaintiffs do not negate the substantial probability that if they had attempted, in good faith, to follow the procedures established in those articles, they would have received an appropriate hearing of their grievances by a union tribunal empowered to grant them relief. We think the prescribed hearing procedures meet the standard of reasonableness stated in section 101(a) (4) of the L.M.R.D.A. See Edsberg v. Local 12, Int’l Union of Operating Engineers, 9th Cir. 1962, 300 F.2d 785.
But even if adequate provision is made for an initial disposition of a complaint, the plaintiffs contend that the multiplicity of appellate agencies renders the provisions for appeals unreasonable. Cf. Johnson v. Local 58, Int’l. Bd. of Elec. Workers, E.D.Mich.1960, 181 F.Supp. 734, 737. Article XIX, section 1, does enumerate several levels of the I.L.A. through which “appeals may be taken from any decision made under Article XVIII and from any action, failure to act or decision in the exercise of the original or appellate jurisdiction provided for in this Constitution”. But that article does not make successive resort to each of these agencies mandatory. Any higher one may preempt the jurisdiction of a lower one. See section 2. And it is not necessary for a member who intends to institute legal proceedings against the union or one of its officers to proceed through any intermediate appellate agency. Indeed, section 6 of article XIX directs that a member seeking to exhaust his remedies in accordance with the provisions of section 5, quoted above, forego intermediate appeals and file his appeal directly with the Executive Council of the international union, whose decision shall be final. Additional appellate procedures are required when a convention of the international union is imminent. But there is no evidence that such a convention was scheduled for any of the years during which the plaintiffs’ alleged grievances arose. In the absence of such evidence, the plaintiffs could not be penalized for failing to take steps necessary to securing review by the convention. Similarly, the existence of procedures which they are not required to follow does not make procedures which they are required to follow unreasonable as applied to them.
Taken as a whole, the provisions of articles XVIII and XIX of the I.L.A. constitution fairly indicate reasonable steps which should be taken by an aggrieved member seeking to exhaust internal remedies prior to bringing suit against the union.
The plaintiffs also attempt to excuse their failure to resort to the procedures established by the I.L.A. constitution on the ground that a final decision may well not have been obtainable within four months of the initiation of a proceeding. The undisputed facts establish that, although there was no unqualified assurance of a final decision within four months, the plaintiffs could reasonably have expected to receive at least an initial decision within the specified period. Such a decision might have granted them the relief they sought. Nevertheless, the plaintiffs contend that they were privileged to avoid the internal procedures altogether. We do not agree.
The proviso of section 101(a) (4), that a “member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time)”, reflects an effort to encourage mature, democratic self-government of labor organizations through the development of internal procedures for the correction of abuses by union officials and at the same time to provide reasonably expeditious judicial relief to union members who have been denied the fundamental rights guaranteed by Title I of the L.M.R.D.A. Typical statements in Congress of these competing policies may be found in 2 NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 [hereinafter cited as Leg.Hist.] 1106 (Senator McClellan), 1667 (Representative McCormack). The common objective and understanding seems to be expressed in the following statement by Senator Kennedy, one of the Senate conferees:
“The basic intent and purpose of the provision was to insure the right of a union member to resort to the courts, administrative agencies, and legislatures without interference or frustration of that right by a labor organization. On the other hand, it was not, and is not, the purpose of the law to eliminate existing grievance procedures established by union constitutions for redress of alleged violation of their internal governing laws.” 2 Leg.Hist. 1432.
On the one hand, it would not promote the stated purposes of Congress to insist that a union member pursue an internal remedy which could not, by its very nature, result in a decision within the period chosen by Congress as a reasonable norm. See Carroll v. Associated Musicians, S.D.N.Y., Jan. 15, 1963, 46 CCH Lab.Cas. 28438, 28445 (member not required to appeal to union convention scheduled to convene more than four months after his expulsion from membership) ; cf. Parks v. Int’l. Bd. of Elec. Workers, 4th Cir. 1963, 314 F.2d 886, 925. On the other, it would all but nullify any requirement of resort to internal remedies if union members were permitted to ignore reasonable procedures established by unions for internal adjustment of grievances because of mere uncertainty whether a final decision could or would be reached within the statutory period. As long as there is likelihood that some decision will be forthcoming within the four-month period, and the aggrieved member has not shown that he will be harmed by being required to seek such a decision, cf. Detroy v. American Guild of Variety Artists, 2d Cir. 1961, 286 F.2d 75, cert. denied, 366 U.S. 929, 81 S.Ct. 1650, 6 L.Ed.2d 388, the purposes of the act require that judicial intervention be withheld until the member has given the internal grievance procedures the chance to operate which Congress deemed to be reasonable. See Sheridan v. United Bd. of Carpenters, supra, at 160; Deluhery v. Marine Cooks Union, S.D.Cal.1962, 211 F.Supp. 529; Acevedo v. Bookbinders Local 25, S.D.N.Y.1961, 196 F.Supp. 308.
The foregoing interpretation is supported by the legislative history of section 101(a) (4). Although there was no committee report on the hastily-drafted Landrum-Griffin Bill (H.R. 8400, 86th Cong., 1st Sess.), section 101(a) (4) of which was enacted into law without change, the language of the so-called Elliott Bill (H.R. 8342), as reported by the House Committee on Education and Labor, did provide a clear answer to the problem raised by. the present case. As explained by the committee report, that bill provided that:
“A member whose rights under title I of the committee bill have been violated, who has exhausted the reasonable remedies available under the constitution and bylaws of the labor organization and of any national or international labor organization with which such labor organization is affiliated, or has diligently pursued such available remedies without obtaining a final decision within 6 calendar months after their being invoked, may bring a civil action * * H.R.Rep.No. 741, 86th Cong., 1st Sess., 1959, p. 7; 1 Leg.Hist. 765, U.S.Code Congressional and Administrative News 1959, p. 2429. (Emphasis added).
A statement of Representative Landrum indicates that section 101(a) (4) of the Landrum-Griffin Bill was intended to accomplish the same result:
“The committee bill would require that union members ‘exhaust reasonable remedies’ within a 6-month period, which are available under the union’s constitution and bylaws. Only then can the member subsequently institute a civil action for relief from infringement of his rights. * * * The bill we propose as a substitute would permit a member to seek immediate redress of his basic rights in the courts after A months without the further delaying and dilatory route of exhausting union procedures.” 2 Leg.Hist. 1518. (Emphasis added).
Finally, Representative Griffin, summarizing the work of the Conference Committee which approved the Landrum-Griffin version of section 101(a) (4), reported that:
“[The] Senate bill would require a union member to exhaust hearing procedures within the union for a period of 6 months before instituting legal or administrative proceedings against the union or its officers. [The] House provisions required only 4 months.” 2 Leg.Hist. 1712. (Emphasis added).
See also 2 Leg.Hist. 1295 (Senator McClellan), 1630 (Representative Riehl-man), 1811 (Representative Griffin). Throughout, the emphasis is upon a member’s seeking or actually receiving internal relief during the statutory period, not upon the establishment of procedures which shall guarantee a final decision within that period before a member may be required to utilize them.
In the present case, the plaintiffs have instituted no formal proceedings whereby the I.L.A. might have corrected the abuses which they allege. Since there is substantial likelihood that corrective action would be forthcoming within the statutory period if the plaintiffs proved their charges before a union tribunal, and since there is no showing that the plaintiffs would be harmed if required to follow the procedures established by the I.L.A. constitution, resort to the courts is precluded pending four months’ pursuit of an internal remedy.
The last of the plaintiffs’ contentions requiring discussion is that they cannot be held responsible for failing to utilize the procedures established by the I.L.A. constitution because' the existence of these procedures was unknown to them when this action was commenced. This contention, made with particular reference to the plaintiff Bey, who is apparently the moving spirit of the present litigation^ is advanced despite Bey’s admission that he was familiar with the I.L.A. constitution before 1959 and, specifically, that he was aware at that time of the existence of internal procedures for the adjudication of grievances. There is nothing in the record to show how the I.L.A. constitution was amended in 1959. Nor is there anything which indicates that it would have been futile for Bey to make a good faith effort to follow the union hearing procedures as he understood them. In addition, there is undisputed testimony by two union officials that copies of the present I.L.A. constitution and the local by-laws have been widely distributed among the membership of the defendant union. The undisputed facts and the inferences which may be drawn from them point compellingly to the conclusion that Bey’s failure to resort to formal internal procedures was a product not of ignorance of union grievance procedure but of preference for the judicial forum. At least during the specified four-month period, section 101(a) (4) does not permit such an election.
The dispositive conclusion reached by the district court was legally correct on the basis of undisputed facts and justified the granting of summary judgment.
The judgment will be affirmed.
. Section. 101(a), paragraphs (1) and (2) of the L.M.R.D.A., 29 U.S.C. §§ 411(a) (1), (2), provide as follows:
“(1) Equal rights. — Every member of a labor organization shall have equal rights and privileges within such organization * * * to attend membership meetings, and to participate in the deliberations and voting upon the business of such meeting's, subject to reasonable rules and regulations in such organization’s constitution and bylaws.
“(2) Freedom of speech and assembly. — Every member of any labor organization shall have the right * * * to express at meetings of the labor organization his views, * * * upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings * *
. Congress has already surveyed what plaintiffs’ counsel calls “the hazardous road of an accuser [seeking] to secure a remedy within his union”, and has enacted protections in the L.M.R.D.A. See, e. g., Salzhandler v. Caputo, 2d Cir. 1963, 316 F.2d 445.
. The record does not contain complete information about the frequency of meetings of the various agencies empowered to act upon disciplinary complaints against officex-s. Each, however, is subject to the call of its president. The ByLaws For Government of the defendant Local 1291, clause 15(d), require that the trial of charges against any member “shall bo held as soon as possible and without unnecessary delay”. It was testified without contradiction that the Philadelphia District Council meets monthly. It was also testified that the Executive Council of the international union customarily decides appeals on the same day that they are heard. There is nothing in the record which would indicate that any of the union agencies authorized to act on the plaintiffs’ complaint would neglect to dispose of charges against a local union officer promptly.
. Shortly before the institution of this litigation, the plaintiff Bey denied to a union official that he intended to prefer internal charges concerning the very occurrences which were later alleged in the complaint in this action.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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.
THE HERMOSA. MAGGIO et al. v. MEXICO ARIZONA TRADING CO.
No. 6647.
Circuit Court of Appeals, Ninth Circuit.
March 21, 1932.
Montgomery Phister and Loucks & Phister, all of San Pedro, Cal., and John C. MeHose and Young, Lilliek, Olson, Graham & Kelly, all of Los Angeles, Cal., for appellants.
Harold M. Sawyer, Alfred T. Cluff, and Daniel W. Evans, all of San Francisco', Cal., for appellee.
Before WILBUR and SAWTELLE, Circuit Judges.
SAWTELLE, Circuit Judge.
This appeal was taken by the claimants ■ of the motorship Hermosa from a decree holding the vessel and her owners liable for the loss of the greater part of a cargo of tomatoes shipped by the appellee from Topolo-bampo, Sinaloa, Mexico, to San Pedro, Cal., in May, 1920.
Much of the testimony was conflicting. Since we believe that there was substantial evidence to sustain the findings of the trial court, we are adopting the general narrative of the material facts as outlined by such findings.
The libelant-appellee is an Arizona corporation, engaged, among other things, in the business of growing tomatoes in the Fu-erte Valley, state of Sinaloa, Mexico, and of importing tomatoes into the United States.
The Hermosa is a sea-going vessel, capable of a normal cruising speed of ten and one-half nautical miles, and equipped with a refrigerating or cooling plant whereby her holds may be maintained at low and even temperatures.
On or about April 18, 1920, at Los An-geles, the appellee and William J. Maggio, as managing owner of the respondents-appellants’ inotoiship, entered into a contract of affreightment or charter party, for the carriage on the Hermosa from Topolobampo to Los Angeles harbor, of a full cargo of fresh tomatoes, with the option to the ap-pellee, at the conclusion of the voyage, for the ca triage of a second cargo of tomatoes between the same ports for like compensation as that provided for the first voyage, and upon the terms of the same contract of affreightment.
The material provisions of the charter-party or contract of affreightment are as follows :
“This cargo is to be loaded by the Mexico Arizona Trading Company as soon after the arrival [at Topolobampo] as possible. Vessel then to he immediately dispatched for San Pedro at full economical speed. * * *
“M.S. ‘Hermosa’ to furnish sufficient tarpaulins to cover crates of tomatoes carried on deck and exposed to the sun, and the crew of said vessel are required to cover the cargo of tomatoes during the daytime to protect same from sunlight, and to remove tarpaulins at nighttime for the purpose of cooling off: cargo, all hatches and vents to bo left open, weather permitting, in order to give cargo best ventilation possible. * * *
“It is further understood and agreed that the M.S. ‘Hermosa’ shall be absolved from all liability for deterioration or decay of said cargo of tomatoes.”
The first voyage provided for in the above contract was successfully accomplished. On that trip, a supercargo, employed by the ap-pellee, accompanied the tomatoes. Within the time required by the contract, the ap-pellee exercised its option for a second voyage, and on May 4, 1929, the Hermosa left Los Angeles harbor for Topolobampo, where she arrived on May 9, 1929.
The motorship finished discharging her down cargo at Topolobampo on May 10, 1929, and was ready for loading tomatoes for the second voyage. No supercargo was to accompany the consignment.
On May 10 and 11, 1929, Iho appellee loaded on board the Hermosa 7,725 lugs of fresh green tomatoes, grown in the vicinity of Los Moehis, Sinaloa, about sixteen miles by rail from Topolobampo. The loading was completed a,t about noon on May 11. Of the 7,725 lugs, 3,600 were stowed in the after refrigerated liohl of the vessel, and the remainder in the ’tween decks forward, on the after deck, and elsewhere above the main deck.
Under ordinary circumstances, and at her full economical speed, the Hermosa was capable of making the passage from Topolo-bampo to Los Angeles harbor in about four and one-half days.
Upon completion of the loading, the vessel failed to sail immediately for her destination, as required by the charter party, but remained at the dock until approximately 3 p. m. the following day, May 12. This delay was duo to the conduct of the master of the motorship. At about 11 o’clock in the forenoon of May 11, Captain H. J. Rookus, the master, left the Hermosa and went ashore to Topolobampo, where he became intoxicated and remained so until 3 o’clock in the afternoon of the following day, May 12. At that day and hour, still incapacitated, the master was assisted on board, and, immediately thereafter, the vessel sailed for Los An-geles under the direction of one of her crew.
After this delay of twenty-seven hours caused by the captain’s intoxication, the Her-mosa proceeded on her voyage without incident until about 10:30 a. m. on May 13, when a valve seat in the main engine circulating pump broke, interrupting the cooling of the engine and necessitating its being stopped. After a delay of an hour and three-quarters, the engineer disconnected the vessel’s general service pump from the refrigerating plant and attached it to the main engine. This was done for the purpose of supplying water to the main engine.
The main engine was then started, and the vessel proceeded into San Lucas Bay, Lower California, Mexico, to attempt repairs. The engineers, however, wero unable to mend the broken valve seat, or otherwise to operate the main engine without using the general service pump for supplying water thereto.
After a further delay of about four hours, at 4 p. m. on May 13, the vessel proceeded on her voyage, using the genera] service pump to supply water to the main engine, and continuing to do so for the rest of the trip. The operation of the refrigerator plant ceased with the disconnecting o-f the general service pump from at about noon on May 13, and was not resumed for the rest of the voyage. Luring all of that time the tomatoes in the afterhold of the Hermosa were without refrigeration.
There is no positive evidence as to the cause of the breaking of the valve seat, but the court found that the mishap was due to defects in the metal of the seat, or, as suggested by the engineer, to a rusting awa,y of the easting beneath the seat, whieh conditions must have existed when the vessel left Los Angeles harbor at the commencement of the voyage. There were eighteen similar valve seats in the pumps of the Hermosa. The vessel, however, carried no spare valve seats or any tools or materials by whieh a valve seat might he fabricated or by whieh the broken one might be repaired.
The Hermosa arrived at Los Angeles harbor at about 2:30' p. m. on May 17, 1909. She was delayed, as we have seen, for twenty-seven hours before leaving Topolo-bampo, and was further delayed about five and one-quarter hours because of the breakdown of her pump. Had it not been for these delays, the Hermosa presumably would have arrived at her destination early in the morning of May 16.
Upon discharge of the vessel’s cargo, the 3,600 lugs of tomatoes that had been stowed in the afterhold were found to be completely yellowed and cooked by their own heat, generated as a result of the cessation of refrigeration in the unventilated hold, following the substitution of pumps on May 13. The remainder of the tomatoes, whieh were loaded in the ’tween decks and elsewhere above the main deck, were badly overripened and de-triorated, which condition is apparently accounted for by the undue prolongation of the voyage, the additional exposure to the sun, and the lack of ventilation while the vessel lay motionless at Topolobampo and Sim Lucas Bay. All of the tomatoes stowed in the hold and some ,of the others were so badly damaged as to be unsalable, and were taken to the city dump. The remainder, after being reconditioned, were sold by the appel-lee at Los Angeles for a price less than the market price for tomatoes in sound condition.
Upon completion of the discharge of the tomatoes, the appellee paid to the owners of the Hermosa $5,509 as freight money, as re'quired by the contract of affreightment.
The lower court found that the Hermosa was unseaworthy in several respects, including that of a defective refrigerating plant and that of having an incompetent and irresponsible master. The court also found that the damage to the tomatoes was due to the unseaworthiness of the vessel, and that “it is not true that said damage would have happened if the vessel had sailed from Topolo-bampo for Los Angeles harbor immediately on the-completion of loading” the tomatoes.
• As conclusions of law, the trial court found that the delay of twenty-seven hours in sailing from Topolobampo, after the completion of loading, was unjustified and unexcused, and was a deviation, for whieh the Hermosa and her owners are liable for all damage to the shipment; and that there was a breach of the warranty of seaworthiness implied in the contract of affreightment.
The pivotal fact in issue, in our view of the ease, is whether or not the delay at Topolobampo amounted to a deviation. In our view of the case, it is not necessary to consider the question of seaworthiness.
The vessel was loaded on May 11, but did not sail until May 12. Topolobampo is a bar harbor, and the Hermosa was unable to get over the bar except in the afternoon, at high tide. The appellee contends that loading' was completed at 11 o’clock in the morning of May 11, and that the boat missed the tide and failed to sail that day through the fault of the drunken master. The appellants insist that the loading was not completed until between 2 and 3 o’clock in the afternoon of May 11, too late to eateh the tide that day, that the consequent delay was not the fault of the ship, and that therefore it eeuld not amount to a deviation.
As we have said, we believe that the findings of the lower court, to the effect that there was an unjustified deviation, were correct and were supported by substantial evidence. But the difficulty is that appellants have filed a stipulation and a motion for leave to take new testimony bearing upon the question of deviation, whieh question, as we have stated, we hold to he controlling hora
We will consider first the motion to take new testimony. In effect, the appellants claim surprise, in that two depositions taken at Nogales, Ariz., on September 10,1930, six days before tbe commencement of the trial, contained the first intimation of “the contention of libelant that there had been an initial delay of twenty-four hours at Topolo-bampo caused by the alleged drunkenness of the captain of the 'Hermosa,’ and that libel-ant would elaim that said delay amounted to a deviation.”
Counsel for the appellants insist that thereafter they acted “as promptly and effectively as was possible.” A chronology of events, as disclosed by the appellant’s brief, by the apostles on appeal, and by the documents filed in support of the motion to take new testimony, leads us to disagree with the appellants on this point.
In the first place, the original libel in rom and in personam, filed on August 6, 1929, alleged in general terms that the respondents-appellants “unduly delayed said voyage and deviated from the course thereof, contrary to the requirements of the said charter-party.”
The “Amendment to Libel,” specifically setting forih the facts of deviation, was filed on September 16, 1030, on the day the trial opened. Ota the same day, counsel for the appellants stated that they had no objection to the filing of the amended libel, and that they understood that the court would allow them to take the depositions of two witnesses who were experts “in respect to tomatoes and the condition of tomatoes.”
Nothing was then said about surprise on the deviation issue. Counsel for the appel-lee announced that he would consent to a reasonable time for the taking of depositions, as he did not “want counsel to submit Ills ease without a proper presentation of testimony.” It is also to be noted that the trial court was most generous in the matter of granting delay for the production of additional evidence.
“With that statement, we are ready,” counsel for the appellants announced. The trial proceeded and was completed on September 18, 1930.
According to counsel for the appellants, they “immediately endeavored to discover evidence which would establish the truth or falsity of the testimony of Adams and Shep-ley [as to the alleged deviation].”
It was not until May 4, 1931, seven and one-half months after the «¡lose of the trial, that the appellants were informed “that a man by the name of John Davidson, Lloyd’s agent at Guaymas, should bo able and competent to make the investigation.”
Considering tho fact that Topolobampo is in easy communication from Los Angeles by rail, mail, boat, and telegraph, we do not believe that, according to appellant’s own statements, they have made a showing of cine diligence in presenting their evidence in the court below. Appellants themselves are the owners of a molor'ship that, as we have s«*n, can make the trip from Los Angelas to Topolobampo in four and one-half days. There is no reason shown why they could not have sent their own representatives direct to the Sinaloa port, ins,lead of waiting seven months h«;fore they found an agent of Lloyd’s ai Ouaymas, Sonora, “some four hundred miles from Topolobampo by rail.”
In The Mabey, 10 Wall. (77 U. S.) 419, 420, 19 L. Ed. 963, the Supreme Court said:
“No excuse is shown in the papers, on which the motion is founded, why the witnesses named, and proposed to be examined, were not examined in some one of the courts below before the hearing there. The affidavit simply states that the testimony of these witnesses is material, as advised by counsel.
“This is not in accordance with the practice of the court. Some excuse, satisfactory to this court, should be shown for the failure to examine them in the courts below, such as that the evidence was discovered when it was too late to procure such examination, or that the witnesses had been subpoenaed and failed to appear, and could not be reached by attachments and tho like. * * *
“It is quite apparent, if commissions were to be allowed by this court to issue as a matter of course, on a formal application under the twelfth rule, without requiring any excuse for not taking the evidence in the usual way before the courts below, the privilege would be open to great abuse, disturbing the orderly proceedings in courts of admiralty. Instead of taking- proofs in the cause in the courts below, and there thoroughly trying it, much of the evidence could safely be omitted, relying on the new evidence in this court. There is no hardship upon the parties in guarding against this abuse with great care and strictness, as they have two opportunities to procure the attendance and examina,tion of the witnesses before they como hero on appeal: first, before the District Court, an«l, again before the Circuit.”
This court has likewise frowned upon the proposed method of trying an admiralty case: “After the decree was rendered the appellant obtained an order from this court permitting the taking of additional testimony, — a practice which, by the way, is becoming entirely too common. Parties should endeavor to procure all the testimony material to the issues presented by the pleadings in the first instance. The practice of bolstering up a lost cause by additional testimony ought not to be encouraged.” Pacific Steam Whaling Co. v. Grismore et al. (C. C. A.) 117 F. 68, 70.
See, also, The Juniata, 91 U. S. 366, 367, 23 L. Ed. 208; Taylor v. Harwood et al., Fed. Cas. No. 13,794; Tho Busy, Fed. Cas. No. 2,232.
We next turn to the stipulation already on file in this court. It is to the effect that tho appellants are prepared to procure witnesses who will establish the fact that tho records of the collector of customs at Topolo-bampo contain notations' that the Hermosa commenced the loading of tomatoes at 3 p. m., May 10,1020, and completed such, loading at 6:30 p. m., May 11,1029. It is agreed by the appellee that, if the Hermosa was to cross the bar on May 11, she had to leave her dock not later than 2 p. m. Otherwise, she would have to wait another day.
According to a chronological table prepared by the appellants, the hour on May 11 when the Hermosa completed the loading is variously fixed as follows:
Appellee’s version: Before noon.
Appellant’s version: 3 p. m.
Official records: 6:30 p. m.
Thus it will be seen that the customs records at Topolobampo set the hour of completion three and one-half hours later than even the appellants claim to have been the correct time. Are tlqe customs records correct, and the appellant’s own witnesses wrong?
The answer to this troublesome question is found in the appellant’s own brief: “The Mexican authorities having issued the permit to load, and having furnished the necessary inspectors, were not concerned about the actual time loading started. When they were officially notified that loading was completed, and they officially called off the inspectors, the loading was officially completed. The captain’s presence was not required to notify the Mexican authorities loading had been completed.” (Italics are the appellants’.)
Thus it will be seen that the appellants concede that the Mexican authorities were not concerned with the actual time when either the commencement or the completion of the loading took place. They were merely concerned with the time the permit was issued, on the one hand, and with the time “they were officially notified that loading was completed.”
This court, however, is concerned with the actual time loading was completed; for it is upon this fact that the entire case hinges. If the actual loading was completed before 2 p. m. on May 11, and the vessel’s departure was delayed by the master’s intoxication, the appellants are liable for a deviation; otherwise, not. We are concerned here with actual facts, and not with the hour at which the Topolobampo customs authorities were notified of those facts.
If the loading was completed- before noon of May 11, the vessel could have cleared the bar before 3 p. m. that same day, save for the master’s earousal.
On conflicting testimony, the court below found that the loading was completed at about noon. We are not disposed to disturb this finding, or to be impressed with a stipulation that admittedly does not establish the actual loading time.
In Luckenbach S. S. Co. v. Campbell, 8 F.(2d) 223, 224, the late Judge Rudkin, of this court, said: “There was ample testimony tending to prove that the working-place was unnecessarily dark and dangerous, and whether the appellant, the deceased, or-his fellow servants were responsible for that, condition was a question of fact for the determination of the court below. The findings-of that court, based as they were on competent testimony, will not be disturbed on appeal, in the absence of some plain or obvious-error, and none such is here apparent.”
Again, in The Mazatlan (C. C. A.) 287 F. 873, 875, the same learned jurist said: “If' these findings of the court are sustained by the testimony, it becomes unnecessary to consider many incidental questions presented by the record and discussed by counsel on the argument. In this class of eases the rule is well settled that an appellate court will not disturb the findings of the.trial court, except for manifest error. [Many eases cited.]”
We find no such error in the record before us, and accordingly we hold that the appellants were guilty of deviation, as a result, of the unnecessary detention of the Hermosa, from noon, May 11, to 3 p. m., May 12.
Finally, we advert to the legal consequences of such deviation.
In Carver on Carriage of Goods by Sea (6th Ed.) § 284, p. 393, we find the following language:
“And the voyage ought to be commenced without needless delay. If‘there has been an-, improper loss of time after the goods have-, been delivered by the shippers for shipment,, and damage or loss results, the shipowner is. answerable. Thus, where there has been negligent delay in provisioning the ship so that, she was detained at the port of loading, and was, consequently, frozen up- there for a longtime," the shipowner was liable to the charterers for consequent damage. * * *
“The voyage must be prosecuted without, unnecessary delay or deviation. The shipowner’s undertaking is that he will be diligent in carrying the goods on the agreed voyage, and will do so directly, without any unnecessary deviation. * * * ”
Again, in section 287, on page 399 of the-same eminent text, we find: “A voluntary and unwarranted deviation, therefore* displaces the original contract.”
In this connection, it is to ha observed, that in tho instant case the applicants are claiming exemption from liability under the clause as to damage from “deterioration or -decay,” hereinbefore quoted. If the charter party is swept away by the deviation, this saving clause, of course, cannot apply.
Again quoting from section 2-87, supra, ■we find:
“When a vessel has deviated from her proper course, the shipowner is not only liable for the delay, but he becomes responsible for any loss or damage that happens to the goods. Ho is not protected by the exception of perils in the contract.
“Thus in Thorley v. Orchis Co., [76 L. J., K. B. 595] locust beans were shipped in ¡a vessel described as ‘lying at Limassol and bound for London.’ The vessel did not proceed direet to London, hut wont out of her way io two ports in Asia Minor; on arrival in London, tho beans were damaged through the negligence of tho stevedores; the shipowners wore held liable notwithstanding an exception of such negligence in the bill of lading. There is no- need, tho Court held, to show that the loss which has occurred is traceable to the deviation.”
“A deviation is sueh a serious matter, and changes the character of the voyage so essentially, that a shipowner who ha,s been guilty of a deviation cannot he considered as having performed his part of the bill of lading contract, but something fundamentally different, and therefore he cannot claim the benefit of stipulations in his favour contained in the hill of lading. In what position, then, does he stand? He has carried tho goods to their place of destination, and is therefore entitled to some remuneration for that service, of which tho owner of the goods has received the benefit. The most favourable position which ho can claim to occupy is that ho has carried the goods as a common carrier for tho agreed freight. I do not say that in all eases he would he entitled as of right to be treated even as fa-vourably as this.”
It is true that, as appellants point out, the same learned text, in section 16, page 19, indicates that, only if the “consequences” of the deviation “would not have operated but for that,” tho shipowner is not excused; but, regardless of this apparent contradiction, we believe that the foregoing quotation from section 287 correctly states the law, and that tho deviating shipowner is an insurer, unless, again borrowing the language of Carver, “such loss or damage to cargo would have occurred notwithstanding the devia tion.”
Numerous decisions of the Supreme Co-urt sustain this view. Early in the history of American jurisprudence, Chief Justice Marshall succinctly stated the principle, in Oliver v. Maryland Insurance Co., 7 Cranch (11. U. S.) 487, 490, 3 L. Ed. 414: “Unquestionably an idle waste of time, after a vessel has completed the purposes for which she entered a port, is a deviation which discharges the underwriters. If the Comet remained, without excuse at Barcelona an unnecessary length of time while her cargo was ready for her and she might have sailed, she would remain at the risk of the owners — not of the underwriters.”
That a deviation, if established, subjects the carrier to the liability of an insurer, was clearly indicated by the Supreme Court as early as 1894, in the ease of Constable v. National Steamship Co., 154 U. S. 51, 60, 14 S. Ct. 1062, 1068, 38 L. Ed. 903: “It is claimed, however, that the berthing of this ship at a pier other than her own was in legal effect a deviation, which rendered the company an insurer of the cargo discharged at such pier without notice, until its actual delivery to the consignee. In the law maritime, a deviation is defined as a ‘voluntary departure without necessity, or any reasonable cause, fro-m the regular and usual course of tho ship insured’ (1 Bouv. Law Diet. 417; Hostetter v. Park, 137 U. S. 30, 40, 11 S. Ct. 1 [34 L. Ed. 568]; Davis v. Garrett, 6 Bing. 716; Williams v. Grant, 1 Conn. 487 [7 Am. Dec. 285]); as, for instance, where a ship bound from New York to Norwich, Conn., Went outside of Long Island, and lost her cargo in a storm (Crosby v. Pitch, 12 Conn. 410 [31 Am. Dec. 745]), or where a carrier is guilty of unnecessary delay in pursuing a voyage, or in the transportation of goods by rail (Michaels v. N. Y. Central Railroad, 30 N. Y. 564 [86 Am. Dec. 415]). But, if sueh deviation be a customary incident of tho voyage, and according to the known usage of triide, it neither avoids a policy of insurance nor subjects the carrier to the responsibility of an insurer. [Cases cited.]”
Again, in The Willdomino v. Citro Chemical Co., 272 U. S. 718, 725, 47 S. Ct. 261, 262, 71 L. Ed. 491, the court said: “Tho Circuit Court of Appeals [300 P. 5], we think, rightly held that the Willdomino made an inexcusable deviation from the permitted course when she went to North Sydney, Consequently she became liable as an insurer for any damage suffered by the cargo. [Cases cited.]” See, also, The Sarnia (C. C. A. 2) 278 F. 459, 461, 463, 464, certiorari denied 258 U. S. 625, 42 S. Ct. 382, 66 L. Ed. 797; St. Johns N. F. Shipping Corporation, Owner, etc. v. S. A. Companhia Geral Commercial do Rio de Janeiro, 263 U. S. 119, 124, 125, 44 S. Ct. 30, 68 L. Ed. 201; The Malcolm Baxter, Jr., 277 U. S. 323, 331, 48 S. Ct. 516, 72 L. Ed. 901; The Citta Di Messina (D. C.) 169 F. 472, 475.
The foregoing eases, it is true, all involve common carriers; and the appellants insist that: “Under the rule announced by the District Court, a vessel-would be liable after a deviation for damages to cargo caused by some occurrence with which th'e deviation had no connection whatsoever. This is not correct particularly in the case of a private carrier”
The authorities, however, do not sustain this attempted distinction between a private and a common carrier, so far as concerns liability for voluntary deviation. Nor do the appellants cite any ease in support of such distinction.
In Serutton on Charter Parties and Bills of Lading (12th Ed.), art. 99, pp. 294, 295, the rule is thus stated:
“In the absence of express stipulation to the contrary, the owner of a vessel, whether a general ship or chartered for a special voyage, impliedly undertakes to proceed in that ship without unnecessary deviation in the usual and customary manner. * * *
“The effect of deviation is to displace the special contract of the charter-party or bill of lading, together with all exceptions therein. The shipowner will, therefore, be liable to the charterer or cargo owner for any loss or damage which the goods sustain, unless he .can shew that the loss or damage was occasioned either by the act of God, or by the King’s enemies, or by inherent vice of the goods, and that the said loss or damage must equally have occurred even if there had been no deviation. And it is immaterial whether the loss or damage arises before, oh during, the deviation, or after it has ceased.”
See, also, Carver, supra, section 16, page 19, as to the latter part of this rule, dealing with the sole defense allowable to. the shipowner in case of deviation; namely, that the loss would have occurred, regardless of such deviation.
In Globe Navigation Co., Limited, v. Russ Lumber & Mill Co. (D. C. Cal.) 167 F. 228, 231, a ease that involved the chartering of the whole of a steamship., Judge De Haven said: “ * * * The rule seems to be that, when there has been an unjustifiable deviation upon the part of the vessel in the prosecution of her voyage, the shipowner is deprived of the benefit of exceptions contained in the contract of affreightment, unless it affirmatively appears that the loss® would have happened if there had been no deviation. [Authorities cited.]”
That case was cited with approval in The St. Johns N. F. (C. C. A. 2) 280 F. 553, 557; affirmed St. Johns N. F. Shipping Corporation, Owner, etc. v. S. A. Companhia Geral, etc., supra.
In Knox v. The Ninetta, Fed. Cas. No. 7,912, the shipment was “made under an agreement that no other freight should be taken.” Neverthel®s, according to the libel, “master, in violation of his contract, did not proceed with the said cargo directly to the port of Philadelphia, but deviated from his course and went into the river Piankitank, and there took in a deck load of wood, whereby the vessel was overloaded and caused to leak, in consequence whereof the wheat was damaged, injured, and rendered unmarketable,” etc.
There it was contended that the wood “in. no way interfered with the safe sailing or navigation of the schooner,” just as here the appellants contend that “the correct rule is that a vessel is liable, where there is a deviation, for damage proximately caused by the deviation.”
In The Ninetta Case, where, as here, the contract was for private carriage, the court said: “The greatest difficulty I have had in this case has been to determine whether this damage was occasioned by the fault or improper conduct of the captain, in putting into the Piankitank; but when I reflect that this was in violation of an express contract with the shipper, who was put to considerable trouble and expense in order to obtain •the exclusive use of the v®sel, I think the party who violat® such a contract, and takes in additional cargo, without the consent of the first shipper, assumes the risk and responsibility of an insurer, and should be liable for any loss that may afterwards occur.”
That case was cited with approval in The Sarnia (C. C. A. 2) 278 F. 459, supra.
There is no suggestion that the court reached its conclusion because it regarded the ship as a common carrier since the master had breached the contract of private carriage; on the contrary, the learned judge asserted that the party who violates such a contract assum® the liability of an insurer.
The entire trend of authorities, so far as wo have been able to discover, indicates that, as to the effect of a voluntary deviation from the contract of carriage, whether private or common, the liability of the shipowner is that of an insurer.
As we have seen, this liability, once incurred, can be avoided by the shipowner only by an affiimative showing- that the loss mast have occurred, even without the deviation. The appellants did not discharge this burden of proof, and the trial court correctly found “that it is not true that the said damage to the said tomatoes would have happened if the vessel had sailed from Topolobampo * * *' immediately on the completion of loading. * * ”
Accordingly, we hold that the lower court’s findings of fact and conclusions of law were correct, and that the decree should be affirmed.
Decree affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_bank_app1
|
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.
Your task is to determine whether or not the first listed appellant is bankrupt. If there is no indication of whether or not the appellant is bankrupt, the appellant is presumed to be not bankrupt.
Robert WILLIAMS and Henry J. Williams, Appellants, v. UNITED STATES of America, Appellee.
No. 17216.
United States Court of Appeals Ninth Circuit.
April 27, 1961.
B. W. Minsky, Los Angeles, Cal., for appellants.
Laughlin E. Waters, U. S. Atty., Thomas R. Sheridan and Edward M. Medvene, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before BARNES, JERTBERG, and MERRILL, Circuit Judges.
BARNES, Circuit Judge.
Appellants Robert and Henry Williams were charged in several counts, and convicted in one and two counts, respectively, of concealing and transporting, heroin in violation of 21 U.S.C.A. § 174. William Allen, a co-defendant of appellants, was convicted on ten pleas of guilty of the sale or concealment and transportation of heroin. Apprehension of these defendants was effected by federal narcotics agents and Los Angeles County Sheriff’s Deputies with the aid of Francis Jones, a special employee of the Federal Bureau of Narcotics. The district court’s jurisdiction to try this offense rests upon 18 U.S.C. § 3231. This court has jurisdiction on appeal. 28 U.S.C. § 1291.
On June 21, 1960, Jones contacted Allen and told him that he would probably want to buy some heroin on the following day. On June 22, 1960, after contacting law enforcement officers, Jones again called Allen and agreed to meet him at his residence. Jones, supplied with $160.00 of government funds and a Fargo listening device, was taken by the officers to the vicinity of Allen’s home. Jones entered Allen’s residence, the government agents maintaining a fixed surveillance on the building. Jones waited with Allen until about 11:00 A.M., when a 1960 Blue Oldsmobile Sedan pulled up in front of Allen’s house. Allen indicated that this was his connection, and requested Jones and two other persons in the building to wait in the back bedroom. Jones gave Allen $100.00 in government funds and then joined the two other men in the back bedroom. Robert Williams left the 1960 Blue Oldsmobile Sedan and walked to the door of Allen’s house where Allen was waiting for him. Both men walked back toward Williams’ car, and then, after a few moments returned to and entered, Allen's house. Williams then left the residence, went to the passenger side of his car, picked up a package and returned to the residence. At approximately 11:20 A.M. Williams left the house, returned to his car and departed from the area. As soon as Williams had left the house, Allen called Jones into the room and gave him a condom containing heroin. Jones left the house and was under continuous surveillance until he met the law enforcement officers a short time later. He gave the officers the heroin and the remaining $60.00 of advance funds supplied by the government.
On June 24, 1960, substantially the same sequence of events transpired.
In the evening on July 7th, Allen called Jones and told him that he could get a half ounce of heroin for $125.00. The following morning, at 7:45 A.M. Allen called Jones again and told him that Robert “Bobby” Williams’ brother, Henry “Sonny” Williams, would be at Allen’s house about 9:00 A.M. Again Jones met with federal and local agents, was searched, supplied with government funds and a Fargo listening device, and was taken to the vicinity of Allen’s residence. Jones entered Allen’s residence and waited until about 10 :50 A.M. when Henry “Sonny” Williams, driving a white 1959 Ford convertible drove past Allen’s residence and blew the horn. Allen said, “Here he is now,” and ran from the house. About five minutes later, Allen came back, got the money from Jones, and left. A few minutes later Allen returned and said that “Sonny” would call in about five minutes. Allen would then meet “Sonny” at Lorraine Walk and Gáge streets to get the heroin. About ten minutes later the telephone rang and Allen, after conversing a short while, left the house. Allen walked along Lorraine Walk to Gage and entered Williams’ car. A few moments later Allen left the car, ran back to his residence, and gave Jones the heroin.
After Allen had left the vehicle, “Sonny” Williams drove away from the area; being followed by two officers. While Williams was driving, officer Landry saw Williams “looking back” and apparently putting something in his mouth. When the officers arrested Williams they asked him to open his mouth, but he did not do so, until he had swallowed. The officer found, on Williams’ person, $15.00 of the money that they had given Jones to purchase the heroin. Later the same day, Williams told a narcotics agent that he wasn’t feeling well because he had swallowed some money.
Appellants raise two points in this appeal. First they contend that the trial court erred in denying their motion for a bill of particulars. Secondly, they claim that error was committed when the court admitted evidence of statements made by Allen outside the presence of appellants. We consider each matter in turn.
1. Alleged error in denial of bill of particulars.
Appellants claim that their motion for a bill of particulars should have been granted to inform them of (a) exactly when and where the heroin was sold; (b) the person to whom defendant allegedly sold and transferred the heroin; (c) whether the buyer at the time of the alleged sale was in the employ of the government; (d) whether the buyer was acting at the instance of the government at the time of the sale.
The indictment, itself, provided notice of the days on which the transactions occurred, though not of the exact time of day. The indictment also revealed the name of the person to whom the heroin was sold. In this connection, however, it should be noted that appellants were not convicted on charges of selling narcotics; they were convicted only of concealing and transporting narcotics, or facilitating such actions.
With the foregoing in mind, we find only one of appellants’ allegations to be significant. The exact location of the alleged offense may very well be a fact essential to the preparation of a defense to charges of concealing and transporting heroin. A defendant is entitled to a bill of particulars insofar as it is necessary to enable him adequately to prepare a defense. Rodella v. United States, 9 Cir., 1960, 286 F.2d 306, 310. It would seem then, that the trial court’s failure to grant a bill of particulars, to the extent of revealing the exact geographical sites of the alleged offenses, might be an abuse of discretion. Under the circumstances of this case, however, there was, we believe, no abuse of discretion. An abuse of discretion does not occur unless defendants are actually surprised in the progress of the trial; it must appear that appellants’ substantial rights have been prejudiced by the denial of the bill. Schino v. United States, 9 Cir., 1954, 209 F.2d 67, 70.
In the instant action, the government filed its trial memorandum, revealing the exact location of the June 22 and June 24 transactions, on September 8, 1960, one week before trial. Appellants’ bland assertion that they were surprised is not supported by anything more significant than the further allegation that there was no way for them adequately to prepare their case. These conclusory statements, of course, do not support a claim of prejudice to appellants’ substantial rights. Nor did appellants at the time of trial make any showing of surprise; ask for any continuance of the trial; or rely on any alleged prejudice on their motion for new trial. They urge their legal position now at too late a date.
2. Alleged error in admission into evidence of co-defendant Allen’s statement, made in the absence of appellants.
Appellants contend that Allen’s statements made to Jones, gave color to the acts of appellants. Such statements, made outside the presence of appellants, could not, appellants assert, be admitted in evidence without independent proof of a conspiracy between Allen and appellants.
In Fuentes v. United States, 9 Cir., 1960, 283 F.2d 537, we summarized the case law relevant to the same contention appellants here make. We reaffirm what we there held (at pages 539, 540). Clearly no charge or proof of conspiracy need be produced in order to justify the admission of a confederate’s statements, made in the defendant’s absence. Such third party statements may be admitted if there is adequate independent evidence of a concert of action between the third party and the defendants. In the case at bar, the observations of the several law enforcement officers and special employee Jones, unsupported by any reference to Allen’s declarations, constitute facts sufficient to establish a concert of action between Allen and appellants. To repeat the evidence, without any reference to Allen’s statements, it is established that Robert Williams arrived at Allen’s house on June 22, 1960. At that time the only persons in Allen’s residence were Allen, Jones and two others, the last three named being in the back bedroom when Williams entered the house. Williams went to the door of the house and met Allen; Williams then left the residence and removed a package from his car. Williams next entered the residence and remained a few moments. When Williams left, Allen gave Jones the heroin. A repetition of these events occurred on June 24, 1960. It is a fair inference from such data, that appellant Robert “Bobby” Williams and Allen were acting in concert.
Again without reference to any statements by Allen, it is established that Henry “Sonny” Williams drove to Allen’s house on July 8, 1960, and sounded his car horn. Allen, thereupon ran from his house, returning about five minutes later. Jones then gave Allen $150.00 of government funds. Allen departed and in a few minutes returned. After receiving a telephone call, Allen again departed and walked to the intersection of Lorraine Walk and Gage where he entered Williams’ car. After a short time Allen left the car, returned to his residence and gave Jones the heroin. In the meantime, Henry “Sonny” Williams was apprehended and found to be in possession of some of the money ($15.00) which Jones had previously given Allen. Again the data is sufficient to support an inference that Henry “Sonny” Williams and Allen were acting in concert.
The cases relied upon by appellants (Bartlett v. United States, 10 Cir., 1948, 166 F.2d 920; Braatelien v. United States, 8 Cir., 1945, 147 F.2d 888; Nibbelink v. United States, 6 Cir., 1933, 66 F.2d 178; and Kuhn v. United States, 9 Cir., 1928, 26 F.2d 463) are distinguishable. All deal with situations where actual conspiracy is charged, and the co-conspirators’ statements are admitted in order to link defendants with the conspiracy. Here conspiracy was not charged, and Allen’s statements were admitted to prove that appellants had committed certain substantive acts. Furthermore, the cases relied upon by appellants stand only for the proposition that the declarations of a coconspirator cannot be admitted against another conspirator unless independent evidence tends to establish the existence of the conspiracy and the third party’s connection with it. Such independent evidence, of course, may be and usually is entirely circumstantial. Bartlett v. United States, 10 Cir., 1948, 166 F.2d 920, 925. As we have seen, there is circumstantial evidence in the instant case which tends to establish a concert of action between each appellant and Allen.
Of course, appellant Robert Williams, while admitting the visits described hereinabove on June 22 and 24th, 1960, to Allen’s house, and appellant Henry Williams, admitting the meeting on July 8th, 1960, at Lorraine Walk and Gage streets, each by use of the respective automobiles described by the various witnesses, ascribe such contact to innocent purpose and friendly companionship with codefendant Allen. At best, this creates a conflict in the evidence, decided adversely to appellants by the trial court. Such factual determination is not clearly erroneous. It is therefore binding on this court.
Finding no error, we affirm.
Question: Is the first listed appellant bankrupt?
A. Yes
B. No
Answer:
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songer_casetyp1_1-3-1
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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 issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
UNITED STATES of America, Plaintiff-Appellee, v. Dorothy R. GARBER, Defendant-Appellant.
No. 78-5024.
United States Court of Appeals, Fifth Circuit.
Nov. 19, 1979.
Samuel S. Forman, Hollywood, Fla., Lawrence R. Metsch, Stanley A. Beiley, Miami, Fla. (co-counsel), for defendant-appellant.
Marsha L. Lyons, Asst. U. S. Atty., Miami, Fla., Charles E. Brookhart, Daniel F. Ross, Attys., Dept, of Justice, Tax Div., Washington, D.C., for plaintiff-appellee.
Before BROWN, Chief Judge, and COLEMAN, GOLDBERG, AINSWORTH, GOD-BOLD, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE and KRAVITCH, Circuit Judges.
Judges Frank M. Johnson, Jr., Garza, Henderson, Reavley, Politz, Hatchett, Anderson, Randall, Tate, Sam D. Johnson and Thomas A. Clark, did not participate in the consideration of or decision in this case. The case was taken under submission by the court en banc on June 5, 1979.
CHARLES CLARK, Circuit Judge:
Dorothy Clark Garber was indicted for willfully and knowingly attempting to evade a portion of her income tax liability for the years 1970, 1971, and 1972 by filing a false and fraudulent income tax return on behalf of herself and her husband. A jury found her innocent of the charges for 1970 and 1971 but convicted her under 26 U.S.C.A. § 7201 for knowingly misstating her income on her 1972 tax return. She was sentenced to 18 months imprisonment — all but 60 days of which was suspended— placed on probation for 21 months, and fined $5,000 exclusive of any civil tax liability. The taxability of the money received by Garber presents a unique legal question. Because of trial errors which deprived defendant of her defense on the element of willfulness, we reverse the conviction.
Some time in the late 1960’s after the birth of her third child, Dorothy Garber was told that her blood contained a rare antibody useful in the production of blood group typing serum. Dade Reagents, Inc. (Dade Reagents), a manufacturer of diagnostic reagents used in clinical laboratories and blood banks, had made the discovery and in 1967 induced her to enter into a contract for the sale of her blood plasma. By a technique called plasmapheresis, a pint of whole blood was extracted from her arm, plasma was centrifugally separated, and the red cells were returned to her body. The process was then repeated. The two bleeds produced one pint of plasma from two pints of blood, and took a total of from one and a half to two and a half hours.
Plasmapheresis is often preceded by a stimulation of the donor whereby the titre or concentration of the desired antibody in the blood is artifically increased by an injection of an incompatible blood type. Both stimulation and plasmapheresis are accompanied by pain and discomfort and carry the risks of hepatitis and blood clotting.
In exchange for Garber’s blood plasma, Dade Reagents agreed to pay her for each bleed on a sliding scale dependent on the titre or strength of the plasma obtained. Dade Reagents then marketed the substance for the production of blood group typing serum.
Because Garber’s blood is so rare — she is one of only two or three known persons in the world with this antibody — she was approached by other laboratories which lured her away from Dade Reagents by offering an increasingly attractive price for her plasma. By 1970, 1971, and 1972, the three years covered in the indictment, she was receiving substantial sums of money in exchange for her plasma. For two of those years she was selling her blood under separate contract to Associated Biologicals, Inc. (Associated) and to Biomedical Industries, Inc. (Biomedical), in both cases receiving in exchange a sum of money dependent on the strength of the antibody in each unit sold. In addition, Biomedical offered a weekly salary of $200, provided a leased automobile, and in 1972 added a $25,000 bonus. In that last year Garber sold her plasma to Biomedical exclusively, producing the coveted body fluid as often as six times a month.
For all three years involved, Biomedical had treated the regular $200 weekly payments as a salary subject to withholding taxes and provided Garber with a yearly W-2 form noting the taxes withheld. Every year, Garber attached those W-2 forms to her income tax return (which was filed jointly with her husband whom she has since divorced), declared the $200 per week as income, and paid the taxes due. All other payments, both from Biomedical and from Associated, had been paid directly to defendant by check. No income taxes were withheld by the companies; she received no W-2 forms, and paid no taxes on the money received. Biomedical did, however, file a Form 1099 Information Return with the IRS which showed a portion of Garber’s donor fees not subject to withholding. Garber was provided a copy of each 1099, which plainly states that it is for information only and is not to be attached to the income tax return. She had never before received Information Returns, and, while she was receiving checks from both Biomedical and Associated, only Biomedical provided this information.
In this prosecution for the felony of willful evasion of income taxes the government had the burden of proving every element of the crime beyond a reasonable doubt. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. England, 347 F.2d 425 (7th Cir. 1965). This required proof of a tax deficiency, an affirmative act constituting evasion or attempted evasion of the tax due, and willfulness. Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); United States v. Callahan, 588 F.2d 1078 (5th Cir. 1979); United States v. Buckley, 586 F.2d 498 (5th Cir. 1978). The element we find lacking here was willfulness.
At trial, outside the presence of the jury, the government proffered the testimony of Jacquin Bierman, a professor of law and practicing attorney in the City of New York, who stated his opinion that Garber had made available her bodily functions or products for a consideration which constituted taxable gross income. His conclusion was based on section 61(a) of the Internal Revenue Code (Code) which defines gross income as all income from whatever source derived, including (but not limited to) the following items:
(1) Compensation for services, including fees, commissions, and similar items;
(3) Gains derived from dealings in property;
26 U.S.C.A. § 61(a). While admitting that this case is the first of its kind, Bierman opined that if the exchanges were considered the sale of a product, there would be no tax basis or original cost for the product sold, and the entire sales price would constitute gain subject to tax under section 61(a)(3). Alternatively, he considered categorizing the transactions as the rendition of a service, in which case he was of the opinion that the entire sales price similarly would be fully taxable under section 61(a)(1).
The defense proffered to the court the testimony of Daniel Nall, a Certified Public Accountant and former revenue agent, who concluded that the money received by Garber was not within the legal definition of income in section 61(a) and that she had therefore participated in tax-free exchanges. He patterned his reasoning on early case law resting on Doyle v. Mitchell Brothers, 247 U.S. 179, 38 S.Ct. 467, 62 L.Ed. 1054 (1918), which held that funds obtained by the conversion of capital assets and which represented only the actual value of such assets was not taxable income. According to Nall, the Attorney General in a 1918 opinion considered the human body a kind of capital asset. Following the reasoning in Doyle, the opinion held that the proceeds of an accident insurance policy were not subject to tax because the proceeds of the insurance policy represented a conversion of the capital loss which the injured taxpayer had suffered. Nall mentioned similar opinions finding settlements received for personal injury not taxable income. Eventually the Code was amended to include a specific provision covering the tax consequences of compensation for injuries or sickness. Nevertheless, Nall explained, the theory has reappeared in situations involving the exchange of something so personal that its value is not susceptible to measurement. In these transactions— such as property settlements in divorce actions or damage awards for alienation of affection or for defamation of character— the value received is deemed equal to the value given, resulting in no taxable gain. Nall compared blood plasma, a part of the body which no one can value, and concluded that it too must be worth its market value. He therefore reasoned that its exchange produces no gain.
The district court heard the testimony of these two experts but refused to admit either opinion in the evidence which went to the jury because it considered the question of taxability to be one of law for the court and not the jury to decide. However, the court did permit the government to introduce testimony by an Internal Revenue Service agent who qualified as an expert in the field of accounting and taxation. This agent offered his opinion that additional taxable income was due but not reported in the years in question. His testimony was received over defense objection that it was based on his conclusion that the compensation received was income and taxable. During cross examination, the witness conceded that the taxability of money received for giving up a part of one’s body is a unique and undecided question in tax law. He also agreed that money received as a return on a capital product is not subject to tax. Yet, he based his calculations on his opinion that the blood plasma donations here were taxable personal services. His view was, in turn, based solely on a Revenue Ruling which declared donations of whole blood to be a service for purposes of determining the deductibility of a charitable contribution. The court sustained objections to the relevancy of further inquiry regarding the nature or value of blood plasma.
The defense argued to the court that the expert testimony of Daniel Nall should be presented to the jury to rebut the government’s expert IRS agent, to show that doubt existed as to whether a tax was due because it was incapable of being computed, and to demonstrate the vagueness of the law, which would preclude a willful intent to violate it. The court recognized that Nall’s theory could be relevant to its judicial resolution of the legal conflict. It ruled however that since Nall had never discussed his opinion of the law with the defendant, it had no relevancy to the fact issue of Garber’s intent. The jury never heard the testimony. It did, however, hear considerable factual evidence relating to Garber’s actual intent.
After hearing all the evidence, the court ruled as a matter of law that the moneys Garber received for her blood plasma, whether considered a personal service or a product, were income subject to federal income taxation. Consistent with that ruling the jury was instructed that the funds Garber received from the sale of her blood plasma were taxable income. The court also instructed the jury extensively on good faith and willfulness but refused the instructions requested by defense to the effect that a misunderstanding as to defendant’s liability for the tax is a valid defense to the charge of income tax evasion, saying:
I have said over and over again [to the jury] that she must act willfully, knowingly and willfully, in an effort to evade and defeat a tax by filing a false return, and that tells it all as far as I am concerned. This business about doubt and all these debatable things I have listened to around here for several days, and I’m not going to charge the jury that way, so as to confuse them. I think that would do more harm than good, and I think it would be error.
We hold that the combined effect of the trial court’s evidentiary rulings excluding defendant’s proffered expert testimony and its requested jury charge prejudicially deprived the defendant of a valid theory of her defense. No court has yet determined whether payments received by a donor of blood or blood components are taxable as income. If, as the government contends, by subjecting herself to the plasmapheresis process Garber has performed a service, her compensation would be taxable under section 61(a)(1) of the Code. In some ways, Garber’s activity does resemble work: artificial stimulation, which is not a necessary prerequisite to plasma extraction, causes nausea and dizziness; the ordeal of plasmapheresis can be extremely painful if a nerve is struck, can cause nausea, blackouts, dizziness and scarring, and increases the risks of blood clotting and hepatitis. These efforts of production may logically compare to the performance of a service.
On the other hand, blood plasma, like a chicken’s eggs, a sheep’s wool, or like any salable part of the human body, is tangible property which in this case commanded a selling price dependent on its value. The amount of Garber’s compensation for any given pint of plasma was directly related to the strength of the desired antibodies. The greater their concentration, the more she was paid; her earnings were in no way related to the amount of work done, pain incurred, or time spent producing one pint of plasma.
Of course, the product/service distinction is relevant only if the sale of the product results in no taxable gain. The experts testifying for both parties here concede that section 61(a)(3) includes in income only the profit gained through the sale or conversion of capital assets. They do not, however, agree on the computation of gain, because they differ in their theories as to how the value of the product before its sale is to be established. The cost of Garber’s blood plasma, containing its rare antibody, cannot be mathematically computed by aggregating the market cost of its components such as salt and water. That would be equivalent to calculating the basis in a master artist’s portrait by costing the canvas and paints. No evidence of any original cost exists in the case of Garber’s unusual natural body fluid.
In such a situation it may well be that its value should be deemed equal to the price a willing buyer would pay a willing seller on the open market. See United States v. Davis, 370 U.S. 65, 82 S.Ct. 1190, 8 L.Ed.2d 335 (1962); Bar L Ranch, Inc. v. Phinney, 426 F.2d 995 (5th Cir. 1970); Raytheon Production Corp. v. CIR, 144 F.2d 110 (1st Cir.), cert. denied, 323 U.S. 779, 65 S.Ct. 192, 89 L.Ed. 622 (1944); Farmers’ & Merchants’ Bank v. CIR, 59 F.2d 912 (6th Cir. 1932). If this were the proper basis, the exchange would be a wash resulting in no tax consequences. However, we need not and do not undertake the complex task of resolving what the law should be, nor is it necessary to decide whether, as the trial court concluded, the question is purely one of law for the court and not the jury to resolve. Rather, because the district court refused to permit Bierman, the expert for the government, and Nall, the expert for the defense, to testify and because it reserved to itself the job of unriddling the tax law, thus completely obscuring from the jury the most important theory of Garber’s defense — that she could not have willfully evaded a tax if there existed a reasonable doubt in the law that a tax was due — her trial was rendered fundamentally unfair.
A tax return is not criminally fraudulent simply because it is erroneous. Willfulness is an essential element of the crime charged. As such, the government must prove beyond a reasonable doubt that the defendant willfully and intentionally attempted to evade and defeat income taxes for each year in question by filing with the IRS tax returns which she knew were false. United States v. Pomponio, 429 U.S. 10, 97 S.Ct. 22, 50 L.Ed.2d 12 (1976); United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973). It is not enough to show merely that a lesser tax was paid than was due. Nor is a negligent, careless, or unintentional understatement of income sufficient. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 50 (1954); United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933); United States v. Pechenik, 236 F.2d 844 (3d Cir. 1956). The government must demonstrate that the defendant willfully concealed and omitted from her return income which she knew was taxable.
When the taxability of unreported income is problematical as a matter of law, the unresolved nature of the law is relevant to show that defendant may not have been aware of a tax liability or may have simply made an error in judgment. Nordstrom v. United States, 360 F.2d 734 (8th Cir.), cert. denied, 385 U.S. 826, 87 S.Ct. 59, 17 L.Ed.2d 63 (1966); United States v. Bridell, 180 F.Supp. 268 (N.D.Ill.1960). Furthermore, the relevance of a dispute in the law does not depend on whether the defendant actually knew of the conflict. In United States v. Critzer, 498 F.2d 1160 (4th Cir. 1974), the Fourth Circuit reversed a criminal tax fraud conviction against an Eastern Cherokee Indian who failed to report a portion of her income derived from land held by the United States in trust for the Eastern Cherokee Band. The evidence clearly established that the underreporting was intentional. Whether the income was taxable, however, was a disputed question dependent on the interpretation of certain land allotment statutes, which the court did not resolve. Instead, it reversed the conviction because of the absence of authority definitively governing the situation. The court’s language is particularly apt here:
As a matter of law, defendant cannot be guilty of willfully evading and defeating income taxes on income, the taxability of which is so uncertain that even co-ordinate branches of the United States Government plausibly reach directly opposing conclusions. As a matter of law, the requisite intent to evade and defeat income taxes is missing. The obligation to pay is so problematical that defendant’s actual intent is irrelevant. Even if she had consulted the law and sought to guide herself accordingly, she could have had no certainty as to what the law required.
498 F.2d at 1162 (emphasis added).
Critzer differs from this case in that the defendant there had been advised by the Bureau of Indian Affairs that the income received from the transactions on the Reservation was exempt from taxation. The fact that Garber did not have the benefit of such official advice does not persuade us that the result here should be different. The Critzer court did not so limit its holding:
It is settled that when the law is vague or highly debatable, a defendant — actually or imputedly — lacks the requisite intent to violate it.
498 F.2d at 1162. To hold otherwise would advocate convicting an unsophisticated taxpayer who failed to seek expert advice as to whether certain income was taxable while setting free a wise taxpayer who could find advice that taxes were not due on the identical type of debatably taxable income.
That Critzer was not decided on the basis of the defendant’s actual intent is further evidenced by the reasoning of the court and its reliance on James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961). In James, the Supreme Court put to rest a dispute over the taxability of embezzled funds. Fifteen years before James, the Court had held such funds non-taxable. CIR v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752 (1946). Subsequently a realigned Court undermined the viability of Wilcox by deciding that extortion money was taxable, distinguishing Wilcox on tenuous grounds. Rutkin v. United States, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833 (1952). When the taxability of embezzled funds again reached the Court in James, it decided that Rutkin had in effect overruled Wilcox and that embezzled monies were taxable. Nevertheless, the court reversed James’ conviction for willfully failing to report embezzled funds in violation of section 7201 because of the uncertainty of the law created by Wilcox. Significantly, neither James nor the cases following James required actual reliance on Wilcox to negate willful intent. Kahr v. CIR, 414 F.2d 621 (2d Cir. 1969); United States v. Dawson, 400 F.2d 194 (2d Cir. 1968); cert. denied, 393 U.S. 1023, 89 S.Ct. 632, 21 L.Ed.2d 567 (1969); Nordstrom v. United States, 360 F.2d 734 (8th Cir. 1966), cert. denied, 385 U.S. 826, 87 S.Ct. 59, 17 L.Ed.2d 63 (1966). As noted in Critzer:
the uncertainty created by Wilcox as a matter of law precluded a demonstration of “willfulness,” without regard to the defendant’s actual state of mind with respect to his knowledge or reliance on Wilcox.
498 F.2d at 1163.
Both Critzer and James involved disagreements among recognized authorities which were more clearly documented than the theories presented here. James involved conflicting Supreme Court decisions, and in Critzer the Bureau of Indian Affairs and the Internal Revenue Service strongly disagreed on the taxability of the income. In the case presently before us, as conceded by all the experts who testified, there is a dearth of authority directly supporting either argument. However, the fact that the question has never before evoked anything more than theories on either side adds to rather than detracts from the critical conflict upon which defendant’s criminal liability hinges. Neither position is frivolous, and the fact that both are urged without clear precedential support in law demonstrates that the court should not have restricted the evidence or instructed as it did.
The tax treatment of earnings from the sale of blood plasma or other parts of the human body is an uncharted area in tax law. The parties in this case presented divergent opinions as to the ultimate taxability by analogy to two legitimate theories in tax law. The trial court should not have withheld this fact, and its powerful impact on the issue of Garber’s willfulness, from the jury. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); United States v. Pomponio, 563 F.2d 659 (4th Cir. 1977). In a case such as this where the element of willfulness is critical to the defense, the defendant is entitled to wide latitude in the introduction of evidence tending to show lack of intent. United States v. Brown, 411 F.2d 1134 (10th Cir. 1969); Petersen v. United States, 268 F.2d 87 (10th Cir. 1959); Miller v. United States, 120 F.2d 968 (10th Cir. 1941). The defendant testified that she subjectively thought that proceeds from the sale of part of her body were not taxable. By disallowing Nall’s testimony that a recognized theory of tax law supports Garber’s feelings, the court deprived the defendant of evidence showing her state of mind to be reasonable.
This error was compounded by the court’s instructions to the jury which took from them the question of the validity of the tax. In effect, the court adopted the government’s position that a tax was owing as a matter of law. Garber admitted receiving unreported money and disclosed its source; the defense in this case rested entirely on a denial of the necessary criminal intent to evade taxes. The court erred by refusing to instruct the jury that a reasonable misconception of the tax law on her part would negate the necessary intent. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); Mann v. United States, 319 F.2d 404 (5th Cir. 1963); United States v. Tadio, 223 F.2d 759 (2d Cir. 1955); Wardlaw v. United States, 203 F.2d 884 (5th Cir. 1953). By withholding this theory, the court left the jury with the impression that a tax was clearly due and that Garber simply refused to pay it. A panel of this court in United States v. McClain, 593 F.2d 658 (5th Cir. 1979), recently reached a similar conclusion when' criminal liability for importing stolen Mexican artifacts depended on an interpretation of complicated, uncertain, and changing Mexican law declaring national ownership of artifacts. At the first trial, the district court heard in camera expert testimony interpreting the Mexican Constitution and relevant statutes, and instructed the jury on its determination of the foreign law. On appeal this was held to be error and the case remanded:
The court’s instruction that the Mexican government had owned the artifacts for over seventy-five years was highly prejudicial to the defendants. It could have been the decisive factor in the jury’s inferring that the defendants must have known that the artifacts in question were stolen.
United States v. McClain, 545 F.2d 988, 1000 (5th Cir. 1977). The second trial was replete with historians, professors, and others expressing their views on the changing Mexican laws, based for the most part on independent review of the Mexican Constitution and relevant statutes. After hearing all the experts, the jury was given the task of first deciding whether and when Mexico actually enacted national ownership of the artifacts, and then determining the defendants’ guilt based on that law. The defendants were convicted. Despite the “near overwhelming” evidence of guilt and intent to violate the law, the panel reversed the substantive convictions
because the most likely jury construction of Mexican law upon the evidence at trial is that Mexico declared itself owner of all artifacts at least as early as 1897. And under this view of Mexican law, we believe the defendants may have suffered the prejudice of being convicted pursuant to laws that were too vague to be a predicate for criminal liability under our jurisprudential standards.
593 F.2d at 670.
Similarly in the case before us, the government presented persuasive evidence showing that the defendant knowingly and willfully evaded her taxes. She received a significant amount of money over a three year period, but reported none of it. The proof also showed that those with whom she dealt advised her that they thought the proceeds were taxable. Nevertheless, the tax question was completely novel and unsettled by any clearly relevant precedent. A criminal proceeding pursuant to section 7201 is an inappropriate vehicle for pioneering interpretations of tax law. The conviction is reversed and the cause is remanded for retrial.
REVERSED and REMANDED.
. Sale of her plasma allegedly brought her $80,200 in 1970, $71,400 in 1971, and $87,200 in 1972.
. Section 104 of the Code, 26 U.S.C.A. § 104, now expressly excludes from taxable income certain insurance proceeds and
(2) the amount of any damages received (whether by suit or agreement) on account of personal injuries or sickness;
26 U.S.C.A. § 104(a)(2).
The defendant has alternatively argued that the payments here in question fall within this exclusion from taxable income. Section 104(a)(2) has consistently been applied only to payments resulting from the settlement or prosecution of a tort claim. Knuckles v. CIR, 349 F.2d 610 (10th Cir. 1965); Starrels v. CIR, 304 F.2d 574 (9th Cir. 1962); Agar v. CIR, 290 F.2d 283 (2d Cir. 1961). The only evidence in the record which could possibly support a claim that the payments to Garber were in settlement of a tort liability were medical release of liability forms she signed. We express no opinion on the ultimate merits of this contention.
. To prove that Garber had to have been actually aware of her tax liability, the government offered testimony from an employee of Dade Reagents, contradicted by defendant’s own statements, that in Garber’s early dealings with that company not only had she been advised of the taxable element of her payments but the company had also opened a savings account in her name and regularly deposited a portion of her earnings allegedly for income tax purposes. The IRS agent who first investigated the Garbers took the stand and testified that, in his initial interview with both Mr. and Mrs. Garber concerning their 1971 joint return, defendant denied having received any income other than the reported $200 per week salary from Biomedical. However, that same afternoon following the interview, defendant called the agent, explained that she and her husband were about to be divorced, and arranged a second interview in which she discussed her plasma donations and disclosed all monies received. The agent admitted that Garber was cooperative in the absence of her husband; she produced all relevant records including the 1099 forms received from Biomedical.
The defense offered affirmative evidence to show that Garber did not willfully misstate her income. An accountant had prepared all three joint returns from information supplied by Mr. Garber, who was not indicted, without consulting with defendant. Furthermore, it was undisputed that all payments to defendant were made by check, payable to her, and deposited in her bank account. Payments were never made in cash; there was no duplicative bookkeeping or other clandestine financial dealings indicative of an attempt to secrete earnings. Her returns for the years in question disclosed Biomedical as a source of income. In addition, Garber produced a copy of her 1969 tax return on which she declared no taxable income but noted “I have no W-2 forms as my income was made up entirely from donating blood plasma from various blood banks.” The defendant herself testified that she thought, after speaking with other blood donors, that because she was selling a part of her body the money received was not taxable.
. The plurality opinion in James stated:
We believe that the element of willfulness could not be proven in a criminal prosecution for failing to include embezzled funds in gross income in the year of misappropriation so long as the statute contained the gloss placed upon it by Wilcox at the time the alleged crime was committed. Therefore, we feel that petitioner’s conviction may not stand and that the indictment against him must be dismissed. 366 U.S. at 221-222, 81 S.Ct. at 1057.
Justices Black and Douglas were of the opinion that Wilcox still represented the controlling law, but agreed with the plurality that the new determination finding embezzled funds taxable should not be applied to past conduct:
[A] criminal statute that is so ambiguous in scope that an interpretation of it brings about totally unexpected results, thereby subjecting people to penalties and punishments for conduct which they could not know was criminal under existing law, raises serious questions of unconstitutional vagueness. 366 U.S. at 224, 81 S.Ct. at 1058.
The two dissenting Justices argued that a remand was necessary for a jury to determine the factual question of actual reliance on Wilcox.
. During its deliberations, the jury asked the court whether any effort was made by the government to settle the case in any other way previous to filing an indictment. Obviously they were not aware that the taxability of the sums was still a disputed question.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
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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.
WALKER v. UNITED STATES.
No. 4300.
United States Court of Appeals Tenth Circuit.
Oct. 17, 1951.
Elmore A. Page, Tulsa, Okl., for appellant.
John S. Athens, Tulsa, Okl. (Whit Y. Mauzy, Tulsa, Okl., on the brief), for -ap-pellee.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.
HUXMAN, Circuit Judge.
Appellant, Anna Lee Walker, was indicted in an indictment containing three counts, charging her with violating Title 18 U.S.C.A. § 1001. Count one charged that on or about March 1, 1951 * * * Anna Lee Walker knowingly and wilfully made a false representation in a matter within the jurisdiction of an agency of the United States, in that she at the time and place set out in the indictment procured a prescription for four % grain morphine sulphate tablets from Dr. O. A. Flanagan, falsely representing to him that her address was 822 South Cheyenne, Tulsa, Oklahoma. Count two charged that on or about March 1, 1951, she knowingly and wilfully used a false writing (the prescription which she had obtained), knowing same to contain a false statement, in that she uttered and filed with the William Penn Drug Store, 408 South Boston, in the City of Tulsa, Oklahoma, the prescription which she had obtained from Dr. Flanagan, knowing that said prescription contained the false statement that her address was 822 South Cheyenne, Tulsa, Oklahoma. Count three charged that on or about March 1, 1951, she knowingly and falsely made a false writing, knowing same to contain a false entry, in that she purchased from the Sooner Drug Store in Tulsa one ounce of paregoric and knowingly and falsely registered for such purchase her address as 1719 South Main Street, Tulsa. A trial was had to the court. Appellant was found guilty on all three counts and was sentenced to a term of imprisonment of eighteen months on each count, the sentences being made to run concurrently.
The evidence shows that prior to March 1, 1951, appellant had been living with her parents at 106 First Street South East, Miami, Oklahoma; that her occupation was that of a waitress; that on February 28 she came to Tulsa, bringing with her all of her clothes; that she came at the solicitation of Betty Lightfoot, who was living with her mother at 1719 South Main Street, Tulsa, Oklahoma; that Betty met her at the station; that she went with her to her mother’s home where she left her grips and stayed all night; that on the evening of February 28 she and Betty went to the apartment of Sherry Delphine Smith at 802 South Cheyenne, Tulsa; that there she changed into some clean clothes belonging to Delphine; that she and Betty then went out and apparently stayed out all night and then returned to jetty’s mother’s home at 1719 South Main, wearing Delphine’s clothes. She testified that because of conditions at Betty’s mother’s home, on her first visit to Delphine’s apartment, she talked with her about staying at her apartment until she found work; that she talked with her some time the next morning and that it was understood that she was. to come to Delphine’s house that afternoon and stay with her.
About ten o’clock on the morning of March 1, she and Betty Lightfoot went to the Sooner Drug Store, where she obtained the paregoric involved in count three of the indictment. The records required to be kept by druggists for the sale of paregoric under the Federal regulations corn tained appellant’s signature and gave her address as 1719 South Main. Thereafter about 1:15 P. M. she went to the office of Dr. Flanagan, where she obtained a prescription for four 14 gain morphine sulphate tablets, set out in count one. The prescription was filled , out and signed by Dr. Flanagan, who recorded her address as 822 South Cheyenne. She took the prescription giving her address as 822 South Cheyenne to the William Penn Drug Store, where it was filled and was given by the pharmacist to Betty Lightfoot, appellant being present in the store.
Thomas Richison, a witness called on behalf of the Government, testified that he was operating the Sooner Drug Store; that he kept a register for the recording of sales of exempt narcotic drugs; that anyone purchasing such drugs must register them in this register; that it was the practice in his store to require the purchaser to register such purchase, rather than the clerk who makes the sale. Dr. Flanagan testified that appellant, Anna Lee Walker, gave him the address 822 South Cheyenne and that he so recorded it in the prescription.
Delphine Smith, with whom appellant claims to have made arrangement to live some time during the day of March 1, does not live at 822 South Cheyenne, but lives at 802 South Cheyenne. H. B. Westover, the Federal Narcotic Agent, who arrested appellant, testified that at the time she told him she had given the address 806 and not 822 to the Doctor when she procured the prescription; that appellant told him that 806 was the address of Delphine Smith. There is no residence at 806.
Two grounds are urged for reversal— (1) that the evidence is wholly insufficient to sustain the judgment of guilty, and (2) that the judgments are void because Title 26 Code of Federal Regulations §§ 151.168 and 151.185, under which the charges are laid, are not within the power delegated to Congress by the United States Constitution.
The attacks upon counts one and two may be considered together. When appellant obtained the prescription for the morphine, upon which counts one and two were predicated, her address in the prescription and in the required record in the William Penn Drug Store was recorded as 822 South Cheyenne Street, Tulsa. That was not her address at the time she got the prescription, and the drugs. The only questions are — did she knowingly and wilfully give 'an erroneous address to Dr. Flanagan when she obtained the prescription, and did she later present it at the drug store where she obtained the drugs and, if so, did she do- this wilfully and knowingly. Dr. Flanagan testified that she gave him this address and that he recorded it as she gave it to him in the prescription. True, on cross-examination, he testified that he could have been mistaken and that he was “not infallible”, but this did not overcome his positive statement that he recorded her address as she gave it to him. It is more the mark of a witness who wants to be fair, rather than evidence of a doubt as to what occurred.
If appellant knowingly and falsely gave her address as 822 South Cheyenne, Tulsa, when she obtained the prescription for the morphine tablets, she is guilty of the offense laid in count one and also of the offense charged in count two. Wilfulness is an element of the offense charged and it was necessary for the Government to prove beyond a reasonable doubt that appellant wilfully and knowingly gave a false and erroneous address. To prove this element, it was not necessary, however, as contended by appellant, that the Government prove that she had in fact an evil intent. In some penal statutes, the word “wilful” connotes moral turpitude or evil of mind, but in others it means no more than that the interdicted act is done deliberately and with knowledge. We think that clearly is the sense in which the term is used in the statute under which the charges in the three counts of the indictment are laid. In resolving this question, it was the duty of the court to consider all the evidence as well as the inference deducible therefrom. When so considered, we are of the view that the evidence amply supports the court’s judgment on counts one and two.
As to Count three the contention is that there is no evidence in the record to sustain the verdict of guilty or the judgment entered thereon. It is argued that appellant had left Miami and had come to Tulsa to make her permanent home there and that at the time of the transaction set out in Count three 1719 South Main Street was her correct and only address. Since the sentence on .each count was eighteen months and the three sentences were made to run concurrently, it is not necessary for us to review the conviction on the third count. Assuming without deciding that the contention made is correct, since the sentences on Counts one and two run concurrently with the sentence on Count three, the conviction on Counts one and two are sufficient to sustain the sentence appealed from.
Appellant next contends that, since the purchase of the paregoric and the morphine sulphate tablets were local sales and dispensations and since no federal tax was involved, the control which the Government sought to set up over such sales through the applicable regulations was void for want of Constitutional power. It is argued that the control of all such local sales rests with the states and to permit Federal regulation thereof would violate the Constitutional rights accorded the sovereign states. Young v. United States, 315 U.S. 257, 62 S. Ct. 510, 86 L.Ed. 832, and Linder v. United States, 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819, on which appellant relies, do not sustain this contention. All the Young and Linder cases held was that the second proviso of § 6 of the Harrison Anti-Narcotic Act, as amended, 26 U.S.C.A. § 2551 which required any manufacturer, producer, com-pounder or vendor (including dispensing physicians) to keep a record of the sales did not apply to .physicians administering to patients whom they personally attend. The Linder case reaffirms the holding in United States v. Jin Fuey Moy, 241 U.S. 394, 36 S.Ct. 658, 60 L.Ed. 1061, that the narcotic law is a revenue measure and that Congress could not under the pretext of executing delegated power pass laws for the accomplishment of objects not entrusted to the Federal Government. It points out that the legislation enacted must have some reasonable relation to the exercise of the taxing authority conferred by the Constitution. It reaffirms the holding in United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604, that the emphasis is on securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic. It does uphold the authority of the officer charged with the enforcement of the Act to pass reasonable regulations for its enforcement. § 2551 of the Act, specifically provides for records of all sales, exchanges or gifts of such preparations in such manner as the Secretary shall direct and § 2606 authorizes the Secretary to confer any of the rights, privileges, powers and duties in respect to narcotic drugs conferred upon him upon the Commissioner of Narcotics or any officer or employee of the Bureau of Narcotics and to confer or impose upon the Commissioner of Internal Revenue any of such rights, privileges, powers and duties which may be necessary in connection with internal revenue taxes.
Pursuant to this statutory authority Regulation 151.168 was promulgated providing for the manner in which practitioners should issue prescriptions and the records required of - them and Regulation 151.185 was promulgated to provide for the records that were to> be kept with respect to the dispensation of exempt preparations. Requiring the keeping of such records does not invade the police power of the states. Such regulations are a valid exercise of the authority delegated by the statute to promote enforcement of the revenue provisos of the Act in question.
Affirmed.
. Title 18 U.S.C. § 1001 reads as follows:
“ Statements or entries generally.
“Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
. United States v. Buckley, D.C., 49 F. Supp. 993; Todorow v. United States, 9 Cir., 173 F.2d 439; McCoy v. United States, 9 Cir., 169 F.2d 776; United States v. Uram, 2 Cir., 148 F.2d 187; United States v. J. Greenbaum & Sons, 2 Cir., 123 F.2d 770.
. See Browder v. United States, 312 U.S. 335, 61 S.Ct. 599, 85 L.Ed. 862; Nabob Oil Co. v. United States, 10 Cir., 190 F.2d 478, and cases cited therein.
. Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699; Hirabayashi v. United States, 320 U.S. 81, 105, 63 S.Ct. 1375, 87 L.Ed. 1774.
. Watson v. United States, 9 Cir., 16 F.2d 52; Lewis v. United States, 9 Cir., 170 F.2d 43.
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:
|
songer_r_bus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
COMMISSIONER OF INTERNAL REVENUE v. KANN’S ESTATE et al.
No. 9694.
United States Court of Appeals Third Circuit.
Argued Dec. 9,1948.
Decided April 19, 1949.
O’CONNELL, Circuit Judge, dissenting.
Hilbert P. Zarky of Washington, D. C. (Theron Lamar Caudle, Asst. Atty. Gen., and Sewall Key and George A. Stinson, Sp. Assts. to the Atty. Gen., on the brief), for petitioner.
Ferdinand T. Weil of Pittsburgh, Pa. (F. T. Weil, S. Allen Vatz and Weil & Vatz, all of Pittsburgh, Pa., on the brief), for respondents.
Before BIGGS, Chief Judge, and Mc-LAUGHLIN and O’CONNELL, Circuit Judges.
BIGGS, Chief Judge.
■ Mrs. Bertha -F. Kann, the decedent, sold certain securities to-her children in'return for their unsecured promises to pay her life annuities. The question presented for our determination is: Did the Tax Court err in holding’ that the decedent realized no taxable gain under. Section 111(a) of the Internal Revenue Code, 26 U.S.'C.A. § 111(a), and the applicable regulation on the ground that annuity contracts undertaken by individual obligors do not have an ascertainable fair market value as a matter of law? The pertinent statute and regulation are in the margin. See also Section 22 of the -Internal Revenue Code, 26 U.S’.C.A. § 22, set out in note 3.
As the Tax Court pointed out, it -is no-t necessary to decide whether the entire capital is to ibe recouped before any amount becomes taxable, J. Darsie Lloyd v. Commissioner, 33 B.T.A. 903; Frank -C. Deer-ing v. Commissioner, 40 B.T.A. 984, or. whether a 3% annual return on an investment computed at insurance company rates, Anna L. Raymond v. Commissioner, 40 B.T.A. 244, affirmed 7 Cir., 114 F. 2d 140, certioriari denied 311 U.S. 710, 61 S.Ct. 319, 85 L.Ed. 462, is to be charged as ordinary income under Section 22(b) (2) until the capital expended has been <re-covered. See Maude Gillespie v. Commissioner, 43 B.T.A. 399, reversed on other grounds, 9 Cir., 128 F.2d 140. The question at bar turns on the meaning to be ascribed to the phrase “fair market value” in Section 111(b) and the 'regulation.
The petitioner would have us change what we believe to be a salutary rule of law established by the Board of Tax Appeals in the Lloyd case, supra, that where both the annuitant’s life span and the obligor’s ability to pay are uncertain no fair market value should be ascribed to the contract or obligation. That rule was again enunciated in the Deering case, supra, and was viewed with approval in Bella Hommel v. Commissioner, 7 T.C. 992. To elaborate a little, the Tax Court has held in the instant case, as in 'the past, that where obligors are individuals, whether rich or poor, their obligations to pay in the future do not possess such standing as to come within the purview of the statute, that such obligations possess no value by way of ordinary business. It should be noted that this court took a similar view in Evans v. Rothensies, 3 Cir., 114 F.2d 958, and in Cassatt v. Commissioner, 3 Cir., 137 F.2d 745, wherein, it will be observed, the Commissioner took a position diametrically opposed to that which he seeks to maintain in the case at bar. See also Burnet v. Logan, 283 U.S. 404, 51 S. Ct. 550, 75 L.Ed. 1143. Like the Tax Court we think that there is little to be gained by giving up the principle, now well established, that an agreement by an individual to pay a life annuity to another has no “fair market value” for purpose of computing capital -gain. In conclusion we state parenthetically that there is little in the record which can support the Commissioner’s view that the transactions between Mrs. Kann and her children were ordinary arm’s length business transactions. See the Raymond case, supra.
The decision of the Tax Count will be affirmed.
In an unreported decision.
“Sec. 111. Determination of amount of, and recognition of, gain or loss.
“(a) Computation of gain or loss. The gain from the sale or other disposition of property shall be the excess of the amount realized therefrom over the adjusted basis provided in section 113(b) for determining gain, and the loss shall be the excess of the adjusted basis provided in such section for determining loss over the amount realized.
“(b) Amount realized. The amount realized from the, sale or other disposition of property shall be the sum of any money received plus the fair market value of the property (other than money) received.
“(c) Recognition of gain or loss. In the case of a sale or exchange, the extent to which the gain' or loss determined under this section shall be recognized for the .purposes of this chapter, shall be determined under the provisions of section 112.”
Treasury Regulations 103, promulgated under the Internal Revenue Code: “Sec. 29.111-1. Computation of gain or loss.— Except as otherwise provided, the Internal Revenue Code regards as income or as loss sustained, the gain or loss realized from the conversion of property into cash, or from the exchange of property for other property differing materially either in kind or in extent. The amount realized from a sale or other disposition of property is the sum of any money received plus the fair market value of any property which is received. The fair market value of property is a question of fact, but only in rare and extraordinary cases will property be considered to have no fair market value. The general method of computing- such gain or loss is prescribed by section 111, which contemplates that from the amount realized upon the sale or exchange there shall be withdrawn a sum sufficient to restore the adjusted basis prescribed by section 113(b) and sections 29.113(b) (1)-1 to 29.113(b) (3)-2, inclusive (i. e., the cost or other basis provided by section 113(a), adjusted for receipts, expenditures, losses, allowances, and other items chargeable against and applicable to such cost or other basis). The amount which remains after the adjusted basis has been restored to the taxpayer constitutes the realized gain. If the amount realized upon the sale or exchange is insufficient to restore to the taxpayer the adjusted basis of the property, a loss is sufficient in the amount of the insufficiency. The basis may be different depending upon whether gain or loss is being computed.”
Internal Revenue Code:
“Sec. 22. Gross income.
“(a) General definition. ‘Gross income' includes gains, profits, and income derived from salaries, wages, or compensation for personal service, of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or ■ interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. * * *
“(b) Exclusions from gross income. The following items shall not be included in gross income and shall be exempt from taxation under this chapter: * * m * *
(2) Annuities, etc. * * * Amounts received as an annuity under an annuity or endowment contract shall be included in gross income; except that there shall be excluded from gross income the excess of the amount received in the taxable year over an amount equal to 3 per centum of the aggregate premiums or consideration paid for such an: nuity (whether or not paid during such year), until the aggregate amount excluded from gross income under this chapter or prior income tax laws in respect of such annuity equals the aggregate premiums or consideration paid for such annuity. * * * ”
During the years 1939 and 1940', inclusive, the taxable years in question, Mrs. Kann received through the annuities $24,672 a year, the total amounting to $39,344. She did not include as taxable income on her income tax returns for these years any portion of the annuities which she received. The respondents in the instant case, learning that the decedent had not included in her income tax returns as taxable income 3% of the consideration which she paid for the annuities in accordance with Section 22(b) (2) of the Internal Revenue Code, 26 U.S.C.A. § 22(b) (2), filed amended returns and paid the additional taxes as reflected by the amended returns.
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_fedlaw
|
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 statute, and if so, whether the resolution of the issue by the court favored the appellant.
W. P. ALLEN, Appellant, v. CITIZENS’ BANK & TRUST COMPANY, OF MIDDLESBORO, KENTUCKY, Appellee.
No. 3064.
Circuit Court of Appeals, Fourth Circuit.
May 1, 1931.
See, also, 43 F.(2d) 549.
S. H. Sutherland, of Clintwood, Va. (S. H. & George C. Sutherland, of Clintwood, Va., on the brief), for appellant.
B. H. Sewell, of Janesville, Va., and E. M. Fulton, of Wise, Va., for appellee.
Before PARKER and NORTHCOTT, Circuit Judges, and COLEMAN, District Judge.
PER CURIAM.
This was a suit oh certain promissory notes. Defendant contended that he had been released from liability thereunder by plaintiff’s acceptance under a deed of assignment which he had executed for the benefit of creditors. ' Plaintiff contended that it had not accepted under the deed of assignment, and that, if what was done be construed as an acceptance thereunder, it was not binding, because made under mistake as to the legal effect of certain instruments. The judge below ruled that plaintiff had not accepted the deed of assignment, and permitted recovery on the notes on condition that plaintiff disclaim any rights under it.
A majority of the court are of opinion that what was done by plaintiff amounted to an election to take under the deed of assignment, but that this election was made as a result of mistake, and that plaintiff, for that reason, is not bound thereby, where, upon acquiring knowledge of its rights, it withdrew its claim made under the deed of assignment. The judgment below will accordingly be affirmed.
Affirmed.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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.
C. C. MENGEL & BRO. CO. v. HANDY CHOCOLATE CO.
(Circuit Court of Appeals, First Circuit.
January 26, 1926.)
No. 1909.
1. Contracts @=>163 — Written insertions in printed contract prevail over inconsistent printed provisions.
Written insertions in printed contract prevail over inconsistent printed provisions.
2. Bales @=>176(3) — Buyer’s refusal of tender on specified ground held not to preclude defenses on other grounds; “waiver;” “estoppel.”
Buyer, by refusal of seller’s tender on specified ground, was not precluded by theory of waiver or estoppel from making other defenses; “waiver” being intentional relinquishment of a known right, and “estoppel” requiring that other party change his position.
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Estoppel; Waiver.]
3. Appeal and error @=>1610(1) — Circuit Court of Appeals held authorized to determine whether there was any substantial evidence to support finding.
Where seller excepted to court’s refusal to rule that on all the evidence judgment must be for plaintiff, Circuit Court of Appeals was authorized to determine whether, under proper construction of sale contract, there was any substantial evidence to support finding for buyer.
4. Sales @=>83 — Ineffectual tender from vessel held not election, precluding subsequent tender from warehouse.
Under contract for sale of cocoa for “shipment July-Sept. from the Gold Coast or via Liverpool or equivalent dely. from Whse. N. Y.,” title not to pass until delivery in New York, subject to inspection by buyer’s broker, held, that seller had right to chooue, within contract time, delivery from vessel from Gold Coast or warehouse, and tender from vessel, properly refused because of quality, was not election, precluding subsequent seasonable tender from warehouse.
5. Customs and usages <@=>17 — Contract held plain on face, and evidence of custom limiting “equivalent delivery from warehouse” held inadmissible.
Contract for sale of cocoa for shipment from Gold Coast, “or equivalent dely. from Whse. N. Y.,” held plain on its face, and evidence of custom limiting term “equivalent delivery from warehouse” to about 30 days from last permissible sailing date, was inadmissible, under rule that written contract cannot be controlled, varied, or contradicted by custom.
6. Customs and usages <@=>19(3) — Evidence held not to warrant finding of custom limiting ■term “equivalent delivery from warehouse,” to certain period after last permissible sailing date.
Evidence held not to warrant finding of custom of cocoa trade limiting term “equivalent delivery from warehouse” as alternative to delivery from vessel arriving to about 30 days after last permissible sailing date from point of shipment.
7. Sales <@=>181 (9) — Evidence that another vessel arrived 3 weeks later .than vessel carrying seller’s goods held inadmissible, as immaterial.
Where seller tendered cocoa from warehouse promptly on buyer’s rejection of cocoa arriving on vessel from Gold Coast, as permitted by contract, court properly excluded seller’s evidence that another vessel, taking shipment under same sailing date, arrived 3 weeks later.
8. Sales <@=>150(3)— Seller’s tender of delivery from warehouse the same day buyer properly refused delivery from vessel held not too late.
Under contract calling for shipment during July-September or equivalent delivery from warehouse seller’s tender of cocoa from warehouse the same day buyer properly refused tender from vessel held not too late.
In Error to the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge.
Action by the C. C. Mengel & Bro. Company against the Handy Chocolate Company. Judgment for defendant, and plaintiff brings error.
Reversed and remanded.
Addison C. Burnham, of Boston, Mass. (Blodgett, Jones, Burnham & Bingham, of Boston, Mass., on the brief), for plaintiff in error.
Philip 3sT. Jones, of Boston, Mass. (Hurlburt, Jones & Hall, of Boston, Mass., on the brief), for defendant in error.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
ANDERSON, Circuit Judge.
This is an action for breach of contract. The plaintiff was the seller and the defendant the buyer of 50 tons- of cocoa beans. The case was submitted to the District Court without a jury, and, without opinion or special findings of fact, that court entered judgment for the defendant.
The controlling facts are undisputed. The contract was in writing, as follows:
“Cocoa Contract to Arrive.
“New York, July 7, 1920.
“Sold for Account of C. C. Mengel é Bro. Co. to the W. H. Miner Chocolate Co.
Springfield, Mass.
“Quantity: Fifty (50) tons (5% more or less).
“Description: Usual good fair fermented Accra cocoa beans.
“Shipment: July-Sept. from the Gold Coast or via Liverpool or equivalent dely. from Whse. N. Y.
“Price: 13%e. cents per pound. Terms: Net cash 10 days from weighing and delivery.
“To be taken promptly by buyers on arrival ex dock at the port of New York and N. Y. weights to govern, usual tare.
“Each shipment to be considered a separate contract. Should any import duty, internal revenue, or any other form of tax be levied by the U. S. government on the cocoa embraced in this contract, it shall be assumed and paid for by the buyers.
“In case of loss, destruction, or seizure of cocoa or any part thereof, or abandonment thereof or any part thereof to underwriters, after shipment, this contract for such portion to be void and the amount sold reduced accordingly; in case the cocoa or any part thereof be transshipped within a reasonable time and arrive by any other vessel or vessels, this contract for such portion, to hold good.
“Sellers not liable for contingencies beyond their control.
“Quality to be inspected and passed upon by the undersigned.
“Snyder & Wheeler, Brokers.
“Brokerage 1 % of sale. This also applies to any portion lost or damaged at sea.”
The italicized portions are written insertions in a printed form. On familiar principles such insertions are to prevail over any inconsistent provisions in the printed form. Hagan v. Ins. Co., 186 U. S. 423, 428, 22 S. Ct 862, 46 L. Ed. 1229.
Coeoa intended by the seller for the buyer was shipped from the Gold Coast prior to September 30 by the steamship Tuekanuek. This shipment arrived in New York on December 15, and was properly rejected on December 18 by the buyer, because not of the specified quality. On the same day, the seller tendered the buyer the required quantity of cocoa from warehouse in New York. This tender was rejected by the buyer on December 20, in a letter, the pertinent part of which is as follows:
“We regret to advise that we are unable to accept a tender of 800 bags from store against this contract, you having previously notified the buyer that this cocoa was coming forward on the S. S. Tuekanuck afloat to New York. This cocoa duly arrived, was sampled and quality rejected by the b.uyers as not being up to contract requirements. In consequence of your having declared a specific lot, and this being duly tendered and rejected, does not give you the privilege of submitting or declaring another parcel.
“We submitted to you, by telephone, on Saturday proposition covering the 800 bags as tendered per S. S. Tuekanuck lately arrived. If you are not prepared to accept this, it will be necessary to cancel the contract.”
It thus appeares that the seller’s second tender (from the warehouse) preceded any claim of the buyer of a right to cancel. Defendant treated the contract as valid and outstanding until plaintiff rejected its offer of a reduced price for the cocoa on the Tuekanuek. The seller insisted on its rights to make the warehouse tender, and brought this suit.
On October, and perhaps in September, 1920, the buyer had made repeated requests for speedy delivery of the cocoa from the warehouse. As a result of these requests the seller wrote, on October 19, a letter, the material parts of which are as follows:
“Referring to 50 tons of usual good fair fermented Accra cocoa beans sold to you for shipment from the Gold Coast July/September or equivalent delivery from warehouse New York, through Messrs. Snyder & Wheeler, under contract dated July 7th, 1920, we beg to advise you that this cocoa is now afloat on the steamship Tuekanuck and will be delivered to you ex dock New York upon its arrival.”
But after receipt of this letter the buyer continued requests for delivery suggesting warehouse delivery. The seller declined to comply with these requests, but reiterated its intention to make delivery per shipment from the Tuekanuck. On October 28, 1920, the seller again wrote:
“As requested by you in your letter of October 27th, we beg to say that the 50 tons of fermented Accra Cocoa sold by us through you to the W. H. Miner Chocolate Company, Springfield, Mass., for July/September shipment from the Gold Coast is now afloat on the Steamship Tuekanuck.
“We have in our possession bills of lading dated Seeeondee, West Coast Africa, August 31, 1920, and Accra, West Coast Africa, September 3,1920, and the cocoa sold to the W. H. Miner Chocolate Company will be delivered from the lots covered by either of the above-mentioned bills of lading.
“We have been in touch with the steamship company, who inform us that the Steamship Tuekanuck will probably not arrive at the port of New York before November 15, 1920, and possibly will not arrive until after December 1, 1920.”
As late as the latter part of October, the plaintiff was told by the broker (acting for the defendant) “that as this contract called for either a shipment or equivalent, that his time to perform against his equivalent was pretty near to the finish, and that he would have to show something; we cautioned him”; that after “the Tuekanuck had been declared * * * I explained * * * that the delay of this boat was a hardship on the buyer, and that, as they had cocoa in store, why didn’t they let the buyer have some of that cocoa? He said, ‘No, the Miner Chocolate Company’s cocoa is coming on the Tuckanuck, and they will have to wait for the Tuekanuck; we can’t give them any store cocoa; they will have to wait until the Tuckanuek comes in.’ That comment was made at least, I will go under oath, six different times.”
The gist of the plaintiff’s contention, saved by appropriate requests for rulings which the court below denied, obviously was that the contract permitted the plaintiff to perform by tendering the cocoa either from a July-September shipment from the Gold Coast, or by a warehouse delivery, substantially within the same time limit.
The defendant, on the other hand, contended that the plaintiff, by its letter of October 19, had finally elected the alternative of performing from the Tuekanuck, and that no other alternative was thereafter open to it.
A secondary contention of the defendant was that, if the alternative of delivery from the warehouse was after its letter of October 19, 1920, open to the plaintiff, the tender of warehouse delivery on December 18 was not seasonable under the terms of the contract. In support of this defense, the defendant offered, and the court admitted subject to the plaintiff’s exception, evidence of an alleged custom limiting the term “equivalent delivery from warehouse” to a period, variously stated by the defendant’s witnesses, but roughly ending about 30 days from the last permissible date of sailing from the Gold Coast, so that, if such custom was proved and applicable, the tender of warehouse delivery after the arrival of the Tuekanuek on December 15 would be too late.
To meet this evidence, the plaintiff offered, and the court below excluded, subject to plaintiff’s exception testimony that the steamship Sehoodie left the Gold Coast with a eoeoa shipment prior to September 30, and yet did not arrive in New York until some three weeks after the arrival of the Tuekanuck.
It is difficult to determine upon what theory the court below went in admitting the evidence of custom in order to limit the time within which seasonable warehouse delivery might be made; for, at the plaintiff’s request and subject to the defendant’s exception, the court ruled that the defendant — by its letter of December 20, 1920, refusing the plaintiff’s offer of warehouse delivery on the specified ground that the plaintiff had by its letter of October 19, 1920, made a final election of delivery from the Tuekanuck — had waived all other defenses. As the eoeoa on the Tuekanuck was eoneededly not of the quality required by the contract, if this was the only tender that under the contract the plaintiff was entitled to make, it would seem immaterial whether the warehouse delivery subsequently tendered was or was not seasonable.
But we think the court erred in ruling that the defendant, by. its letter of December 20, 1920, waived all claims of defense other than that the plaintiff, by notifying the purchaser that the goods were coming on the Tuekanuck, and by tendering goods from the Tuekanuck, was precluded from making any further tender. The defense that the tender of December 18 was too late was duly pleaded, and there was, on this record, neither estoppel nor. waiver. “Waiver is an intentional relinquishment of a known right.” Suburban Land Co. v. Brown, 237 Mass. 166, 168, 129 N. E. 291, 292. There is no evidence of such intentional relinquishment. Doubtless in some of the cases are found inadequately guarded expressions as to waiver, which, considered apart from the facts before the court, might be thought to sustain the ruling below and the plaintiff’s present contention. But, on principle and the overwhelming weight of authority, a party does not lose a substantial right merely by failure to mention it. To ground an estoppel, it must appear that the other party, relying on that failure, changed its position. See 2 Williston on Sales, § 495; Galle v. Hamburg, etc., Co., 233 F. 424, 425, 147 C. C. A. 360. We find nothing in the cases cited and relied upon by the plaintiff which, on this record, constrain us to a different conclusion. Nor do we find any evidence of an estoppel. We treat this defence of unseasonable tender as open to the defendant, notwithstanding its letter of December 20.
The plaintiff excepted to the court’s refusal to rule that on all the evidence judgment must be for the plaintiff. The main question, therefore, before this court, is whether, under a proper construction of the contract, there was any substantial evidence to support the finding for. the defendant. We do not overlook the limitations upon this court arising under rules laid down in such eases as Law v. United States, 266 U. S. 494, 45 S. Ct. 175, 69 L. Ed. 401; Wear v. Imperial Glass Co., 224 F. 60, 139 C. C. A. 622; Dangberg Land Co. v. Day, 247 F. 477, 159 C. C. A. 531; White v. German Alliance Ins. Co., 103 F. 260, 43 C. C. A. 216; Gilbane v. Fidelity Co., 163 F. 673, 674, 90 C. C. A. 265; Ins. Co. v. Folsom, 18 Wall. 237, 21 L. Ed. 827; Cooper v. Omohundro, 19 Wall. 65, 69, 22 L. Ed. 47.
It is manifest that the finding below for the defendant must have been based on one of two theories:
(1) That the plaintiff had conclusively elected to perform its contract by allocating the cocoa on the Tuekanuck, and that the .defendant was not thereafter bound to accept cocoa from the warehouse.
(2) That the. tender of warehouse delivery on' December 18, 1920, was too late, even if otherwise permissible under the contract.
We think neither defense was, under a proper construction of the contract, sustained by any substantial evidence.
(1) There was no election. Plaintiff had, under the contract, a right to choose, within the contract time limit, either method of performance. Its stated intention of performance by allocation from the Tuekanuck (bad because of the quality of the cocoa) did not exhaust either the plaintiff’s right or its obligation to make warehouse delivery. The ease does not fall within the principle illustrated in the leading ease of Norrington v. Wright, 115 U. S. 188, 6 S. Ct. 12, 29 L. Ed. 366, and recently applied by this court in Burrows & Kenyon, Inc., v. Warren, decided December 7, 1925, 9 F.(2d) 1. Under this contract, title was to pass only by delivery in New York, subject to inspection of the .goods by the defendant’s brokers. The ease is therefore plainly distinguishable from the commercial contracts in which the declaration of a ship is a material provision. Compare The Manhattan (C. C. A.) 284 F. 310; Nat. Bank v. Lamboro (C. C. A.) 2 F.(2d) 23, 36 A. L. R. 509.
Defendant’s counsel concedes that if the plaintiff had made a defective tender of a July-September shipment from the Gold Coast, it would not thereby have been barred from performing by a subsequent July-September shipment from the Gold Coast. But if the declaration of a July-September shipment, bad because of honest mistake either as to the date of shipment, as to quantity or quality of the cargo, or for any other reason, left the seller at liberty, on discovering the error, to make another tender, that right must have been applicable, not merely to shipments from the Gold Coast, but to equivalent warehouse delivery. There would be neither logic nor business sense in holding that a defective designation of a Gold Coast shipment left it open to the seller to designate another Gold Coast shipment, but excluded an equivalent warehouse delivery.
The defendant’s counsel also invokes the familiar principle that “the practical interpretation of a contract by the parties to it for any considerable period of time before it comes to be the subject of controversy is deemed of great, if not controlling, influence” — citing Old Colony Trust Co. v. Omaha, 230 U. S. 100, 118, 33 S. Ct. 967, 972 (57 L. Ed. 1410), and other cases. The application of that rule to this record leads to a result the reverse of that for which defendant contends; for, as indicated in the statement above, the defendant, many days after the plaintiff had declared its intention of making delivery from the. Tuckanuek, insisted that, because of the delay, it should have warehouse delivery, and, indeed, never, until after the plaintiff had refused the defendant’s compromise offer for the cocoa on the Tuckanuek, suggested that the contract was not still valid and outstanding. Otherwise stated, both defendant and plaintiff plainly construed the contract as we now construe it.
Without further elaboration, we think it clear that there was no election. Compare Watson v. Watson, 128 Mass. 152; Friederichsen v. Renard, 247 U. S. 207, 213, 38 S. Ct. 450, 62 L. Ed. 1075; Wm. W. Bierce, Ltd., v. Hutchins, 205 U. S. 340, 347, 27 S. Ct. 524, 51 L. Ed. 828; Snow v. Alley, 156 Mass. 193, 30 N. E. 691; Tetley v. Shand, 20 W. R. 206; Mill Dam Foundry v. Hovey, 21 Pick. (Mass.) 417; Borrowman v. Free, L. R. 4 Q. B. D. 500; Ashmore v. C. S. Cox Co. (1889) L. R. 1 Q. B. D. 436; Mann v. Eastern, etc., Co., 244 Mass. 100, 138 N. E. 244.
(2) Was the tender of warehouse delivery on December 18 too late? In this connection, it is neeesary to consider the admissibility of the evidence as to custom. We think the court erred in admitting such evidence in order to control the time within which plaintiff was entitled to make equivalent warehouse delivery. The contract was, in our view, plain on its face. It falls within the principles stated by Mr. Justice Story in the Reeside Case, 2 Sumn. 567, Fed. Cas. No. 11657: “A written and express contract cannot be controlled, or varied, or contradicted by a usage or custom.”
Besides, even if custom were arguably admissible, the evidence on this record utterly failed to show any clear, definite, certain, and uniform custom or usage. On the contrary, the defendant’s witnesses were in hopeless confusion and disagreement as to what the alleged custom really was. We need not review the evidence in detail. It is enough to observe that the alleged custom was so little understood and observed during a period of three years after the making of the contract now in question that, as appeared from the testimony of the defendant’s own witness Barrett, the Cocoa Merchants’ Association then undertook to straighten it out by agreeing on a written rule fixing a time limit for such “equivalent warehouse deliveries.” There was therefore no evidence properly before the court warranting a finding that the warehouse delivery, tendered promptly after the arrival of the Tuckanuek and the rejection of the cocoa thereon, was too late under the terms of the contract.
The plaintiff’s offer of evidence that the steamer Schoodie, taking a July-September shipment, did not arrive until three weeks after the Tuckanuek, was, under the construction we give to the contract, properly rejected as immaterial; for it is undisputed that the shipment by the Tuckanuek was within the terms of the contract, and that the tender from warehouse followed promptly on the defendant’s proper rejection of the Tuekanuck cargo. There was, therefore, no occasion to show a later arrival of a Gold Coast shipment.
The result is that the tender of warehouse delivery on December 18 was strictly in accord with the terms of the contract. It follows that it was error for the court to refuse to rule, as the plaintiff requested, that on all the evidence the plaintiff was entitled to recover the difference between the contract price of the cocoa and the market price on December 18, 1920, with interest from that date. See Irvine v. Angus, 93 F. 629, 35 C. C. A. 501; Bayne v. United States, 195 F. 236, 115 C. C. A. 188.
The judgment of the District Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. The plaintiff in error recovers costs in this court.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond1_4_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 "sub-state government (e.g., county, local, special district)", specifically "judicial". Your task is to determine which specific substate government agency best describes this litigant.
Edward SAWYER, Jr., Petitioner-Appellant, v. Jack SANDSTROM, as Director, Department of Corrections and Rehabilitation, Dade County, Florida, Respondent-Appellee.
No. 79-2671.
United States Court of Appeals, Fifth Circuit.
April 10, 1980.
Elliot H. Scherker, Asst. Public Defender, Miami, Fla., for petitioner-appellant.
H. T. Smith, Asst. County Atty., Miami, Fla., for respondent-appellee.
Before GEE, FAY and VANCE, Circuit Judges.
FAY, Circuit Judge:
Appellant Edward Sawyer, Jr. was found guilty of violating Dade County’s loitering ordinance which provides:
For the purpose of this section “loitering” means the act of standing or remaining in or about any public street, public sidewalk, public overpass or public bridge, or other place specifically enumerated herein. A person commits the offense of loitering when he knowingly:
* * * * * *
(2) Loiters in any place with one or more persons knowing that a narcotic or dangerous drug, as defined in Sections 893.01 and 893.15, Florida Statutes, is being unlawfully used or possessed.
Code of Metropolitan Dade County, § 21-31.1(b)(2) (1974). Appellant, now in state custody, comes before this court to appeal the denial of his petition for a writ of habeas corpus. He asks us to decide whether his mere knowing presence at the scene of a suspected crime can be classified as criminal conduct. In essence, appellant questions whether he can be punished for having the wrong kinds of friends and for being with them on a public street. Appellant attacks the constitutionality of the loitering ordinance under which he was convicted, arguing that the ordinance is over-broad and violates his first and fourteenth amendment rights. We agree with appellant’s contentions. Holding the Dade County loitering ordinance unconstitutional, we reverse the district court’s dismissal of appellant’s petition for writ of habeas corpus.
1. The Facts and Proceedings
During the evening hours of October 9, 1975, officers of the City of Miami Police Department set up a stakeout to observe narcotics activity around a pool hall in downtown Miami. The pool hall under surveillance was known to the police as a place where narcotics were sold, both inside and outside. During the narcotics stakeout, appellant Sawyer was observed standing in front of the pool hall with a man known to the police as “Roach.” Appellant was also seen with Howard Wilamenko and Reginald Washington. “Roach,” Wilamenko, and Washington were all suspected by the police to be narcotics dealers.
The' police observed approximately six drug transactions in front of the pool hall that night. In each drug transaction, an unidentified buyer would walk up to either “Roach,” Wilamenko, or Washington and start conversing. The police observed each unidentified buyer pass money to the dealer, in return for which the dealer would pass a tinfoil packet to the buyer. Appellant Sawyer stood next to each drug dealer while the dealer consummated the alleged narcotics sale. During one such sale, a female in an orange Volkswagon took the object that the dealer gave to her, put it up to her nose, sniffed it, closed it, and put the rest in her brassiere.
The police officers at the stakeout did not observe appellant participating in any of the suspected sales of narcotics. They initially arrested him for possession of drug paraphernalia, but he was never prosecuted on this charge. Instead appellant was charged by information with loitering in a place where he “well knew that narcotics or other dangerous drugs” were being “unlawfully possessed, sold, or used” in violation of section 21-31.1(b)(2) of the Code of Metropolitan Dade County (the loitering ordinance). Record, Exhibit I.
During his nonjury trial in county court on March 22, 1976, appellant testified that he resided in the .vicinity of the pool hall, and that he was aware that this was a “heavy narcotics area.” He testified that during the evening of October 9, 1975 he went to the pool hall where he met and played pool with Reginald Washington. Appellant said he was unaware of any narcotics transactions which might have been conducted by Reginald Washington, and he testified that he did not personally observe any such transactions that night. Notwithstanding his plea of innocence, the trial court found that appellant had been “in companionship or direct contact with” the persons who had been involved in the suspected drug transactions. Record, Exhibit VI, at 34. Appellant was found guilty of violating the Dade County loitering ordinance and was sentenced to sixty days incarceration, with thirty days of the sentence suspended.
The Circuit Court of the Eleventh Judicial Circuit of Florida subsequently reversed the trial court’s judgment of conviction, finding the loitering ordinance to be “fatally (and facially) overbroad in that it proscribes innocent conduct which may not constitutionally be made the basis of a criminal penalty.” Record, Exhibit X. The Third District Court of Appeal of Florida disagreed, however, and on petition of the State of Florida it quashed the circuit court order. In upholding the constitutionality of the ordinance and reinstating appellant’s conviction and sentence, the state appellate court narrowed the definition of loitering to “imply some type of comradeship or companionship.” State v. Sawyer, 346 So.2d 1071, 1075 (Fla.Dist.Ct.App.1977). The court noted that although the ordinance might be unconstitutionally applied in certain situations, this was not a ground for finding the ordinance itself unconstitutional. “Far from having an impermissibly broad prophylactic ordinance, Dade County punishes only knowing association with persons possessing or using narcotics.” Id. at 1075.
Appellant subsequently filed petitions for writs of certiorari in the Supreme Court of Florida and the United States Supreme Court; both petitions were denied. Having exhausted his state remedies, appellant then filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida. The district court dismissed the petition, stating in its order of dismissal that “[t]he Dade County Ordinance not only proscribes an activity which its drafters perceived to be a breach of the peace, but also more clearly narrowed the offense of loitering to one who knowingly associates with one who is unlawfully possessing or using a narcotic or dangerous drug, thus giving unmistakeable [sic] notice to the offender.” Record at 45. The court found the ordinance to be well defined and “unquestionably constitutional.” Record at 46. Appellant Sawyer now seeks reversal of the district court’s order of dismissal of his habeas petition. Because we find the loitering ordinance at issue before us to be impermissibly and unconstitutionally overbroad, we grant appellant the relief he seeks.
II. The Construction of the Loitering Ordinance
The Dade County ordinance in question makes it a crime to knowingly loiter in any place with one or more persons knowing that a narcotic or dangerous drug is being unlawfully used or possessed. Code of Metropolitan Dade County § 21-31.1(b)(2). Appellant contends that the ordinance is unconstitutionally overbroad in violation of the first and fourteenth amendments because it punishes mere association with an individual known to be in possession of or engaged in the use of narcotics. The ordinance does not require, nor has it been construed to require, any active participation in a substantive narcotics offense. Although appellant concedes that the ordinance does bring within its scope activity which may constitutionally be punished, he points out that the broad sweep of the ordinance also punishes essentially innocent association in violation of first amendment associational rights.
In analyzing appellant’s overbreadth claim, our first task is to determine if some sort of limiting construction has been placed on the challenged ordinance. See Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973); Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). When considering a contention that a statute or ordinance is facially unconstitutional, it is necessary to proceed with caution; facial invalidity should not be declared unless the statute, or ordinance is not readily subject to narrowing construction by the state courts. Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975).
In the instant case, the trial court found appellant guilty under the ordinance because he had been knowingly “in companionship or direct contact with” individuals involved in suspected drug transactions. The Third District Court of Appeal noted that the loitering ordinance “clearly has criminal intent (scienter) written into [it]. The intent here is the knowledge on the part of the person loitering that he has voluntarily associated with one who is unlawfully possessing or using a narcotic or dangerous drug.” State v. Sawyer, 346 So.2d 1071, 1074 (Fla.Dist.Ct.App.1977). The appellate court emphasized that to be convicted under the ordinance “one must have knowledge of another’s unlawful possession of narcotics. Moreover, the words ‘loiters . . . with one or more persons’ imply some type of comradeship or companionship.” Id. at 1075 (emphasis in original).
In its order dismissing appellant’s habeas corpus petition, the federal district court noted that the state court’s narrowing construction of the loitering ordinance gave unmistakable notice to the offender. “This ordinance is not ... ‘a direction by a legislature to the police to arrest all suspicious persons.’ It is rather, a narrowly defined statute that gives more than adequate notice.” Record at 45-46. In placing its emphasis upon the clarity of definition in the ordinance, the district court misconceived appellant’s claim. Clearly, the Dade County ordinance, as construed by the state court, could withstand a constitutional challenge on grounds of vagueness. However, the fact that an enactment provides adequate notice of the acts it prohibits does not absolve it of the vice of overbreadth.
The objectionable quality of overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in 'the area "of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.
N.A.A.C.P. v. Button, 371 U.S. 415, 432-33, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). In this case, the state court’s narrowing construction of the loitering ordinance does not answer the charge of overbreadth. Appellant’s constitutional claim has survived its first test; we now subject the claim to further analysis in accordance with well-established principles of constitutional law.
III. Striking The Constitutional Balance: The Freedom of the Individual vs. The Interest of the State
The United States Constitution grants to local governments broad discretion to control and regulate the activities of citizens; however, such controls and regulations cannot sweep so broadly as to infringe upon the constitutional and organic rights of the individual. “[A] governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” N. A. A. C. P. v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325 (1964).
The “protected freedom” involved in this case is the first amendment guarantee of freedom of association. See, e. g., Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). This right to freely associate is not limited to those associations which are “political in the customary sense” but includes those which .“pertain to the social, legal, and economic benefit of the members.” Griswold v. Connecticut, 381 U.S. 479, 483, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965). “The rights of locomotion, freedom of movement, to go where one pleases, and to use the public streets in a way that does not interfere with the personal liberty of others” are implicit in the first and fourteenth amendments. Bykofsky v. Borough of Middletown, 401 F.Supp. 1242, 1254 (M.D.Pa.1975), aff’d without opinion, 535 F.2d 1245 (3d Cir.), cert. denied, 429 U.S. 964, 97 S.Ct. 394, 50 L.Ed.2d 333 (1976).
The first amendment thus limits the permissible scope of loitering laws; such an enactment can be upheld only if it proscribes conduct which threatens the public safety or constitutes a breach of the peace. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); State v. Ecker, 311 So.2d 104 (Fla.), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975). The Supreme Court has provided some guidance as to what constitutes a breach of the peace.
The offense known as breach of the peace embraces a great variety of, conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious.
Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213 (1940).
In the case at bar, the Florida appellate court defended the Dade County loitering ordinance by pointing out that
it is universally known that possession of narcotics is a violation of the criminal laws of this State. Possession being a criminal violation, it is also a breach of the peace. If an ordinance proscribes loitering that threatens public safety or a breach of the peace, it can withstand constitutional attack.
State v. Sawyer, 346 So.2d 1071, 1073 (Fla.Dist.Ct.App.1977) (emphasis added). The Sawyer opinion suggests that the possession of narcotics constitutes a breach of the' peace sufficient to justify some infringement of first amendment rights. We do not necessarily disagree with this conclusion, however, we find it inapposite to the facts before us. The appellant in this case was not charged with possessing narcotics, or with any other breach of the peace; his only “criminal” act was to associate with certain individuals, knowing that they were unlawfully using or possessing illegal drugs. Appellant has been convicted under the loitering ordinance for apparently innocent activity; his conviction clearly infringes on the free exercise of his associational rights.
An enactment which criminalizes ordinary associational conduct not constituting a breach of the peace runs afoul of the first amendment. See Coates v. City of Cincinnati, 402 U.S. 611, 615, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214 (1971) (“The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be ‘annoying’ to some people.”) The loitering ordinance before us punishes an individual not for his own criminal acts, but rather for his act of being in a public place and associating with individuals whom he knows to be engaged in criminal activity, i. e. drug use or possession. Both this court and the Supreme Court have recognized that under our system of justice punishment must be predicated only upon personal guilt.
In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to • other concededly criminal activity . . . that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause .
Scales v. United States, 367 U.S. 203, 224-225, 81 S.Ct. 1469, 1484, 6 L.Ed.2d 782 (1961); accord, St. Ann v. Palisi, 495 F.2d 423, 425 (5th Cir. 1974).
Scales v. United States, quoted above, concerned the constitutionality of the Smith Act, 18 U.S.C. § 2385 (1976), which prohibits knowing membership in any organization advocating the overthrow of the government by force or violence. The statute was challenged on the ground that it imputed guilt by mere association, and therefore infringed on first amendment guarantees. Although the statute on its face punished only knowing membership, the Supreme Court found that mere knowledge of the criminal nature of an organization was an insufficient basis for conviction. Ruling that the statute could reach only active members “having also a guilty knowledge and intent,” the Court noted that a conviction could not be based upon “what otherwise might be regarded as merely an expression of sympathy with the alleged criminal enterprise, unaccompanied by any significant action in its support or any commitment to undertake such action.” Scales v. United States, 367 U.S. 203, 228, 81 S.Ct. 1469, 1486, 6 L.Ed.2d 782 (1961).
Scales thus teaches that knowing association with a group cannot be made a punishable act just because some of the group members are engaged in criminal conduct. In the instant case, however appellant was convicted solely on the basis of his “companionship or direct contact with” persons suspected of engaging in drug transactions; he was not charged with any active participation in any criminal act. The loitering ordinance rendered appellant’s mere associational conduct criminal, based solely upon the suspected criminality of those with whom he publicly associated. In our opinion, this ordinance is unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct. Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971).
We recognize that municipalities such as Dade County have a valid interest in limiting narcotics trafficking and use; presumably that is one of the purposes of the loitering ordinance before us. Of course, if the purpose of the ordinance is to nip crime in the bud by providing police with the means to arrest all suspicious persons, it is patently unconstitutional. Papachristou v. City of Jacksonville, 405 U.S. 156, 169, 171, 92 S.Ct. 839, 847, 848, 31 L.Ed.2d 110 (1972). To the extent that the ordinance does have legitimate drug enforcement purposes, there exist alternative means of accomplishing those ends.
Even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.
Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960). A more artfully drawn ordinance would reach only those persons who are active participants in illegal narcotics transactions or who aid and abet the primary offender, without chilling the first amendment rights of persons engaged in essentially innocent associational conduct. See, e. g., People v. Cressey, 2 Cal.3d 836, 87 Cal.Rptr. 699, 708, 471 P.2d 19, 28 (1970) (accused must “act to aid, assist, or abet” the criminal violation); Jolley v. City of Jacksonville, 281 So.2d 901, 903 (Fla.Dist.Ct.App.1973) (enactment includes “element of participation or acting in concert with or abetting by lending approbation to the violation”). Even if a municipality failed to adopt a local ordinance regulating drug activity, the Florida Legislature has provided law enforcement officers with a vast array of tools with which to combat illegal narcotics activity. The conduct which the state may punish without running afoul of the first amendment is more than adequately covered by these provisions.
IV. Conclusion
The legitimate purposes of section 21-31.1(b)(2) of the Dade County loitering ordinance can be achieved by a more narrowly drawn ordinance or by the application of existing statutory prohibitions. The ordinance’s overly broad sweep is therefore unjustified by any compelling state interest. While the ultimate purpose of the ordinance may be acceptable and even laudatory, its overbreadth renders it unconstitutional on its face. “It is not permissible to enact a law which, in effect, spreads an all-inclusive net for the feet of everybody upon the chance that, while the innocent will surely be entangled in its meshes, some wrongdoers also may be caught.” Tyson & Brother v. Banton, 273 U.S. 418, 443, 47 S.Ct. 426, 432, 71 L.Ed. 718 (1927).
Because we hold section 21-31.1(b)(2) of the Code of Metropolitan Dade County unconstitutional on its face, appellant, convicted under this ordinance, is entitled to habeas corpus relief. We reverse the district court’s dismissal of appellant’s petition for habeas corpus.
REVERSED.
. The Circuit Court of the Eleventh Judicial Circuit of Florida has stayed execution of appellant’s sixty-day sentence pending federal review of the conviction. Appellant is, however, in “custody” for purposes of a claim under the federal habeas corpus statute, 28 U.S.C. § 2254 (1976). Hensley v. Municipal Court, San Jose-Milpitas Judicial District, Santa Clara County, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973).
. One of the police officers testified that he knew from previous experience that tinfoil packets usually are used for decks of heroin, and that he had seen such packets at least fifty-five times.
. A police officer testified that appellant Sawyer had hypodermic needles and syringes in his possession at the time of his arrest. Sawyer testified that he never possessed any syringes.
. State v. Sawyer, 346 So.2d 1071 (Fla.Dist.Ct.App.), cert. denied, 353 So.2d 678 (Fla.1977); cert. denied, 436 U.S. 914, 98 S.Ct. 2255, 56 L.Ed.2d 414 (1978).
. Counsel for appellee states that a proper construction of the ordinance requires a connection between the loitering individual and the drug transgression or contraband. He then argues that the drug dealer must be stripped of his lookout men, his accessories, and his syringe suppliers. Presumably such direct connections between a loiterer and an illegal drug or drug transgression would be encompassed by the existing laws pertaining to aiders, abettors, accessories, and conspirators. See n.6 infra.
. Section 893.13(l)(a) of the Florida Statutes (1979) makes it a crime to “sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver” any of the controlled substances specified in Fla.Stat. § 893.03 (1979). Possession of a controlled substance without a valid prescription is also illegal; such possession is punishable whether it is active or constructive. Fla.Stat. § 893.13(l)(e) (1979). One who aids or abets in any of these offenses is .punishable in the same manner as the individual who actually commits the offense. Fla. Stat. § 777.011 (1979). An individual who is an accessory after the fact or a conspirator is also subject to punishment. Fla.Stat. §§ 777.03, 777.04 (1979).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)", specifically "judicial". Which specific substate government agency best describes this litigant?
A. Judge or Court (local trial court judge or justice of peace)
B. Prosecutor/district attorney
C. Jail/Prison/Probation Official and Organization (includes prison hospitals; includes juvenile correction officials)
D. Other Judical Official
E. not ascertained
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Diego Ricardo ITZCOVITZ, a permanent resident alien residing in New York, New York, Plaintiff-Appellant, v. SELECTIVE SERVICE LOCAL BOARD NUMBER 6, NEW YORK, NEW YORK, et al., Defendants-Appellees.
No. 820, Docket 35664.
United States Court of Appeals, Second Circuit.
Argued June 8, 1971.
Decided Sept. 1, 1971.
See publication Words and Phrases for other judicial constructions and definitions.
Burt Neuborne, New York City (Paul Chevigny and Alan H. Levine), New York Civil Liberties Union, New York City (David Orlin, New York City, of counsel), for plaintiff-appellant.
Daniel Riesel, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for the Southern District of New York, Alan B. Morrison, Asst. U. S. Atty., of counsel), for defendants-appellees.
Before FRIENDLY, Chief Judge, and HAYS and OAKES, Circuit Judges.
OAKES, Circuit Judge:
Appellant, Diego Ricardo Itzcovitz, a permanent resident alien, seeks a declaratory judgment enabling him to leave the United States for a brief time and a limited purpose, without the threat of being declared an excludable alien upon his return. The purpose of his proposed trip is to attend a special training course in Tel Aviv conducted by his employer, El A1 Israel Airlines. He asserts and the Government concedes that, because he exercised his treaty right as an Argentine national to claim exemption from U. S. military service, he would be excludable upon re-entry into the United States, under the provisions of the Immigration and Nationality Act of 1952, 66 Stat. 163 as amended, and his name would therefore be placed in the “Lookout Book,” the Immigration and Naturalization Service’s list of currently excludable aliens who might be seeking re-entry, apparently distributed to INS agents at points of entry into the United States. Appellant contends that insofar as the provisions of the Immigration and Nationality Act of 1952 do brand him an excludable alien, the provisions place an impermissible burden on his rights under the Argentine Treaty which, incidentally, is similar to fifteen other treaties, principally of Friendship, Commerce and Navigation in granting exemption from military service. Appellant concedes for purposes of this appeal that by exercising his treaty right he has waived his eligibility for citizenship under Moser v. United States, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729 (1951), but he argues that such a waiver does not mean he may be declared an excludable alien.
Alternatively, appellant claims that as an alien lawfully admitted for permanent residence, temporarily leaving the country at the behest- and under the requirements of his employer, he would not be making an “entry” into the United States upon his return from Israel.
The court below did not reach the merits, but found the case unripe, and dismissed the action for lack of a “justi-ciable controversy,” without prejudice to appellant’s right later to seek relief from an exclusion order, if and when issued. We disagree with the court below and think that appellant should not be forced into the cul de sac of leaving the country, only to be “subjected,” on his return, “to the wearisome routine of immigration procedure as though [he] had never lived here,” ILWU Local 37 v. Boyd, 347 U.S. 222, 226, 74 S.Ct. 447, 449, 98 L.Ed. 650 (1954) (dissenting opinion), and the probability, in this case, of exclusion. Our view is taken from the perspective of the extensive INS-Itz-covitz history, and has in sight the concession made on argument that appellant would upon departure immediately take his place in the pages of the “Lookout Book.” That extensive history follows.
Appellant came to this country from Argentina with his parents in 1966 and was admitted as a permanent resident alien. Although he had completed his Argentine military obligation, he was required as a permanent resident alien of draft age to register with our Selective Service System. 50 U.S.C.App. § 453. He did so and was classified I-A on October 24, 1966. On March 29, 1967, he received a notice to report for induction. The Argentine Consulate in New York advised him that he was entitled to exemption from military service pursuant to the Argentine Treaty, and he thereupon applied to our Department of State for exemption. Despite the State Department’s best efforts, Itzcovitz was advised by Selective Service, erroneously, as it later turned out, that the draft exemption granted by the Treaty had been impliedly abrogated by the passage of the Selective Service Act. On May 22, 1967, one day before he was required under threat of arrest and prosecution to report for induction, he left the United States and was reclassified IV-C as an alien who had fled to avoid military service. On December 16, 1968, Oestereich v. Selective Service System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), held that there may be pre-induction judicial review of the classification of a registrant for the purposes of determining the applicability of unequivocal statutory exemptions. Three weeks later Itzcovitz sued for injunctive relief against the Selective Service System’s outstanding induction order and against INS’s refusal to permit him to return to the United States.
The late Judge Herlands ruled that he had jurisdiction under Oestereich, supra, that Selective Service had no authority to deny Itzcovitz his claimed treaty exemption to which he had a “plain and unequivocal” right, and granted him in-junctive relief against Selective Service, but denied injunctive relief against the INS on the ground that Itzcovitz had not exhausted his administrative remedies. Itzcovitz v. Selective Service System, 301 F.Supp. 168 (S.D.N.Y.1969). Itzcovitz appealed from the denial of relief against the Immigration Service, and the Government cross-appealed from the granting of relief against the Selective Service System, but shortly before oral argument in this court the Government withdrew its cross-appeal. During oral argument a panel of this court consisting of (then Chief) Judge Lumbard, Judge Kaufman and Judge Hays suggested that Itzcovitz be permitted to return to this country and resume his permanent resident status. On November 26, 1969, in a letter to that panel, the Government agreed that it was “now prepared to admit Itzcovitz,” without conceding his eligibility for citizenship, and affirmed to the court that “upon [Itzeovitz’s] return” he would “not be subject to an exclusion proceeding and will be deemed to have resumed his permanent resident status.” Subsequently, on February 10, 1970, the District Director of INS notified the United States Attorney for the Southern District of New York that “steps have been initiated to have Mr. Itzeovitz’s name removed from our Service lookout book.” He had returned on January 24, 1970. His appeal was then dismissed as moot by the panel in a per curiam opinion noting that “the government has conceded the propriety of admitting Itzcovitz into the country, and the parties have informed us of his return.” Itzcovitz v. Selective Service Local Board No. 6, 422 F.2d 828 (2d Cir. 1970).
Only after the Immigration Service had ignored letters written on March 12, June 18 and September 23, 1970, inquiring whether a brief departure from the country would result in his classification as an excludable alien on his return, did appellant institute this action for declaratory judgment. Appellant alleges that he is employed by El A1 Israel Airlines as a passenger agent at Kennedy International Airport, and that one of El Al’s employment requirements is a three-week course, given in Tel Aviv, on the prevention of airline hijackings. El A1 requested that the plaintiff attend a session to be conducted from October 18 until November 10, 1970.
Both appellant and INS moved for summary judgment below, INS claiming, among other things, that as an alien ineligible for citizenship under § 315(a) of the Act, 8 U.S.C. § 1426(a), Itzcovitz may be an excludable alien under § 212(a) of the Act, 8 U.S.C. § 1182(a) (22).
We disagree with the conclusion of the court below that this controversy is not ripe for adjudication. Having once been unlawfully excluded, appellant rightfully wonders whether a two- or three-week departure on employer’s business would raise again the spectre of exclusion, this time possibly without the grace of an INS retrenchment allowing appellant to re-enter and resume his status as a permanent resident alien. The Immigration Service admits and makes it very clear — clearer to us, perhaps, than it did to the court below— that it would seek to exclude appellant after his sojourn in Tel Aviv. Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), tells us that the ripeness doctrine “is to prevent the courts * * * from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized * * We are required to “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” 387 U.S. 149, 87 S.Ct. 1515.
We believe there is hardship in the case of this appellant, who has spent years seeking to retain his permanent resident alien status and is still left to guess whether he can go to Israel for a brief training course required by his employer. His case is not abstract, nor the issue without immediate concurrent significance. The issue is one which the courts can and appropriately should decide. Cf. Loos v. INS, 407 F.2d 651 (7th Cir.), cert. denied, 396 U.S. 877, 90 S.Ct. 150, 24 L.Ed.2d 135 (1969). The Government’s suggestion that within two years the appellant could apply to the Attorney General for a waiver of the excludability bar under 8 U.S.C. § 1182(c) is not meaningful since such a waiver can be applied for only by an alien who has voluntarily proceeded abroad, thus subjecting himself to exclusion. Similarly, the Government’s suggestion that within 3% years appellant could apply for citizenship under 8 U.S. C. § 1427(a) and thus obtain administrative and judicial review then is without merit, for on such an application the only issue would be whether he were validly declared ineligible for citizenship, a point which he concedes, and it would be unnecessary at the hearing thereon to reach the question of his excludability as an alien if he departed from the United States. This is a proper case for declaratory relief under 28 U.S.C. § 2201.
We do not reach the question of the apparent clash between appellant’s rights under the treaty and the immigration laws, for we conclude that appellant’s return to the United States after his proposed trip to Tel Aviv would not constitute an “entry” within § 101(a) (13) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101(a) (13), and the INS would therefore have no authority to exclude him under § 212, 8 U.S.C. § 1182, Rosenberg v. Fleuti, 374 U.S. 449, 452, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963). We reach this result having in mind not the history of Itzcovitz's case but the history of § 101(a) (13) of the Act. As early as 1947, this court, in an opinion by Chief Judge Learned Hand, held that an alien convicted of robbery did not re-enter the United States when he went by sleeping car from Buffalo to Detroit, passing through Canada en route. Di Pasquale v. Karnuth, 158 F.2d 878 (2d Cir. 1947). The alien was held to have “a vested interest in his residence,” and was not to “be subject to meaningless and irrational hazards”; while he could have learned by inquiry that the train would take him out of the United States and back into it, there was no evidence that he “knew or had any intention of leaving the United States or of entering Canada.” 158 F.2d at 878-879. Pointing out that “[djeportation can be the equivalent of banishment or exile,” the Supreme Court eleven months after Di Pasquale, supra, relied upon it and followed it, in Delga-dillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 12, 92 L.Ed. 17 (1947). There an alien merchant seaman, also later convicted of robbery, was rescued after his ship was torpedoed in World War II and taken to Havana, Cuba; his re-entry into the United States by way of Florida was held not to be an “entry” within the Act as it then read, the Court noting that “the exigencies of war, not his voluntary act, put him on foreign soil.” 332 U.S. at 391, 68 S.Ct. at 12. In Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576 (1953), the Supreme Court held an alien lawfully admitted to permanent residence was not deprived of the rights of a resident upon his return to the United States from a voyage as a merchant seaman when he had stopped at but remained aboard the vessel at foreign ports of call. The Court found the alien entitled, under the due process clause of the Fifth Amendment, to a hearing on his objections to deportation, a right he would not have enjoyed without his resident status. In a 5-4 decision the Supreme Court in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953), held that an alien who had traveled abroad and remained in Hungary for nineteen months could be treated as an “entering alien,” and be detained on Ellis Island without a hearing on his threatened exclusion. 345 U.S. at 213, 73 S.Ct. 625. Kwong Hai Chew was distinguished by the majority on the grounds that Kwong’s maritime service was continuous residence for naturalization purposes and that Kwong was pursuing his vocation for four months aboard an American ship. 345 U.S. at 213-214, 73 S.Ct. 625. Mezei did not affect the holdings in Delgadillo, Di Pasquale, or other cases following them, e. g., Carmichael v. Delaney, 170 F.2d 239 (9th Cir. 1948)' (no “entry” occurred after ship to which resident alien was assigned stopped at many ports and alien debarked, because of ship movements pursuant to Navy orders) ; Yukio Chai v. Bonham, 165 F.2d 207 (9th Cir. 1947) (no “entry” occurred after ship carrying resident alien back from seasonal cannery work in Alaska made unscheduled stop in Vancouver, B. C.). In Savoretti v. United States ex rel. Pincus, 214 F.2d 314 (5th Cir. 1954), decided after Mezei but relying on Delgadillo and Di Pasquale, a resident alien was held not to have made a new entry after the fishing boat on which he was sleeping (after some serious drinking) made an unscheduled stop in Bimini to sit out heavy weather. Delgadillo and Di Pasquale, in fact, were incorporated into the 1952 Immigration and Nationality Act by § 101(a) (13), 8 U.S.C. § 1101(a) (13), which provides that an alien
shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves * * * that his departure * * * was not intended or reasonably to be expected by him or his presence in a foreign port or place * * * was not voluntary.
Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804 (1963) (5-4) construed this provision to mean that a resident alien had not made an “entry” when he returned to the United States from a two hour trip to Ensenada, Mexico. The Court, relying on both Delgadillo and Di Pasquale, examined extensively the legislative history, saying
The most basic guide to congressional intent as to the reach of the exceptions is the eloquent language of Di Pasquale and Delgadillo themselves, beginning with the recognition that the “interests at stake” for the resident alien are “momentous,” 158 F.2d, at 879, and that “[t]he stakes are indeed high and momentous for the alien who has acquired his residence here,” 332 U.S., at 391, 68 S.Ct. 12. This general premise of the two decisions impelled the more general conclusion that “it is * * * important that the continued enjoyment of * * * [our] hospitality once granted, shall not be subject to meaningless and irrational hazards.” 158 F.2d at 879. See also Delgadillo, supra, 332 U.S. at 391, 68 S.Ct. 12. Coupling these essential principles of the two decisions explicitly approved by Congress in enacting § 101(a) (13) with the more general observation, appearing in Delgadillo as well as elsewhere, that “[d]eportation can be the equivalent of banishment or exile,” it is difficult to conceive that Congress meant its approval of the liberalization wrought by Di Pasquale and Del-gadillo to be interpreted mechanistically to apply only to cases presenting factual situations identical to what was involved in those two decisions.
374 U.S. at 458-459, 83 S.Ct. at 1810 (footnote omitted).
The decision concludes, significantly for our case, “that it effectuates congressional purpose to construe the intent exception to § 101(a) (13) as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” 374 U.S. at 462, 83 S.Ct. at 1812. The Court mentions three factors —the length of time of absence, the purpose of the visit, and the necessity of procuring travel documents, id., but leaves the development of these and “other possibly relevant” factors to “ ‘the gradual process of judicial inclusion and exclusion,’ Davidson v. New Orleans, 96 U.S. 97, 104 * * *., 24 L.Ed. 616.” 374 U.S. at 462, 83 S.Ct. at 1812.
That process helps to point the way for us.
The Ninth Circuit, following Di Pasquale and Fleuti, supra, in Wadman v. INS, 329 F.2d 812 (9th Cir. 1964), held that a five day absence from the United States by an alien vacationing in Mexico was not an interruption of “continuous” physical presence permitting deportation. Even more apposite, perhaps, is the Seventh Circuit decision in Zimmerman v. Lehmann, 339 F.2d 943 (7th Cir.), cert. denied, 381 U.S. 925, 85 S.Ct. 1559, 14 L.Ed.2d 683 (1965). There the court, quoting at length from Fleuti, held that neither a five- or six-day “harmless, innocent” vacation in Canada in 1952 nor a less than 24-hour trip to Canada in 1953 constituted an illegal “entry” within § 101(a) (13) of the Immigration and Nationality Act of 1952.
We believe the Congressional purpose underlying the Act would best be served by a similar holding here. The time factor is, to be sure, longer than in Zimmerman, Wadman or Fleuti, but it is still limited to three weeks, and is fairly characterized as only temporary. The purpose of Itzcovitz’s planned trip is in a real sense for the benefit of his employer; he is not merely vacationing, as were the petitioners in the other cases just mentioned. True, he doesn’t have to go, but whether he would be able to keép his job, much less advance himself, without going to Tel Aviv is doubtful. In any event, he has been directed by his employer to go. In a general sense Itzcovitz “intends” to go to Tel Aviv, just as Fleuti intended to go to Mexico. But appellant is not in the posture of having taken the trip in disregard of the immigration consequences; rather he has here sought relief in advance. The purpose of his trip is entirely bona fide, honorable and lawful. He has every intention of retaining permanently his residence in the United States. And, indeed, the sole purpose of the three week trip is to qualify him for more useful employment service as he continues his permanent residence. Under these circumstances — and we consider them limited — we do not think appellant’s trip to Tel A„viv will be “meaningfully interrup-tive” of his permanent residence “within the meaning and ameliorative intent of the exception to § 101(a) (13).” Rosenberg v. Fleuti, supra, 374 U.S. at 461, 462, 83 S.Ct. at 1812.
Our task in this, a case of statutory interpretation, has been made a little easier since Congress has had the gloss of Fleuti before it, for seven years, without tightening subsection (13) of the statute, or indeed changing it, even while changing provision after provision of subdivision (a) of § 101.
Accordingly, we reverse and remand with direction to the court below to grant appellant’s motion for summary judgment and declare that appellant may take his proposed business trip.
. The Treaty of Friendship, Commerce and Navigation between the United States and Argentina, July 7, 1853, 10 Stat. 1005, hereinafter the Argentine Treaty.
. Section 315, 8 U.S.C. § 1426; Section 212 (a) (22), 8 U.S.C. § 1182(a) (22).
. Article X of the Argentine Treaty provides :
The citizens of the United States residing in the Argentine Confederation, and the citizens of the Argentine Confederation residing in the United States, shall be exempted from all compulsory military service whatsoever, whether by sea or by land, and from all forced loans, requisitions or military exactions; and they shall not be compelled, under any pretext whatsoever, to pay any ordinary charges, requisitions, or taxes, greater than those that are paid by native citizens, of the contractive parties respectively.
. Opinion of the Attorney General, 42 Op. Atty.Gen.No.28 (April 1, 1968), at pp. 1-2. Provisions similar to Article X are found in treaties with China, Costa Rica, Ireland, Italy, Paraguay, Spain, Swiss Confederation, Thailand and Yugoslavia.
. See Astrup v. INS, 402 U.S. 509, 91 S.Ct. 1583, 29 L.Ed.2d 68 (1971).
. This time has been extended, we were advised on oral argument, by the employer, and this opinion assumes that such an extension is in effect.
. While ILWU Local 37 v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650 (1954), has never been expressly overruled, it has been politely overlooked by the Supreme Court for at least ten years.
. The term “entry” means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.
8 U.S.C. § 1101(a) (13).
. Appellant’s reply brief states that counsel has been informed that Itzcovitz’s future with El A1 “is contingent upon his ability to undergo such training in Tel Aviv.” But we not rest our holding on this narrow an interpretation of § 101(a) (13).
. See Historical Note, following 8 U.S. C.A. § 1101.
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_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
RIDGE RADIO CORPORATION, Appellant v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Dr. E. Z. Eperjessy, Louis Popp, and William H. Myers, co-partners, d/b/a Windber Community Broadcasting System, Intervenors.
No. 15946.
United States Court of Appeals District of Columbia Circuit.
Argued April 11, 1961.
Decided June 8, 1961.
Messrs. Robert Bennett Lubic and Isadore G. Aik, Washington, D. C., for appellant.
Mr. Richard M. Zwolinski, Counsel, Federal Communications Commission, with whom Mr. John L. FitzGerald, General Counsel, Federal Communications Commission, at the time the brief was filed, Mr. Max D. Paglin, now General Counsel, Federal Communications Commission, and Mr. Joel Rosenbloom, Counsel, Federal Communications Commission, at the time the brief was filed, were on the brief, for appellee. Mr. Daniel R. Ohlbaum, Asst. General Counsel, Federal Communications Commission, also entered an appearance for appellee.
Mr. William P. Bernton, Washington, D. C., for intervenor. Mr. E. Theodore Mallyck, Washington, D. C., also entered an appearance for intervenor.
Before Wilbur K. Miller, Chief Judge, and Bazelon and Fahy, Circuit Judges.
FAHY, Circuit Judge.
The Federal Communications Commission denied the request of Ridge Radio Corporation, herein referred to as Ridge, that its application for a new standard broadcasting station to operate on 1350 kilocycles at Windber, Pennsylvania, be consolidated for hearing with other mutually exclusive applications. At the same time the Commission dismissed Ridge’s application. Petition for reconsideration was also denied and Ridge then appealed to this court.
The question is whether Ridge was validly denied the consolidated hearing it sought because its application was filed after a cut-off date had been set by the Commission in circumstances now to be stated.
The Commission’s rule regarding consolidations, section 1.106(b) (1), reads as follows:
“In broadcast cases, no application will be consolidated for hearing with a previously filed application or applications unless such application, or such application as amended if amended so as to require a new file number, is substantially complete and tendered for filing by whichever date is earlier: (i) The close of business on the day preceding the day the previously filed application or one of the previously filed applications is designated for hearing; or (ii) the close of business on the day preceding the day designated by public notice published in the Federal Register as the day any one of the previously filed applications is available and ready for processing.”
On July 30, 1959, the Commission issued a public notice in which it listed fifty applications that would be considered ready and available for processing by September 5, 1959. The notice advised that,
“[A]n application, in order to be considered with any application appearing on the attached list, must be substantially complete and tendered for filing at the offices of the Commission in Washington, D. C., no later than the close of business on September 4, 1959, or, if action is taken by the Commission on any listed application prior to September 4, 1959, no later than the close of business on the day preceding the day on which action is taken.”
As September 4, 1959 arrived before action was taken on any listed application that date became the cut-off date under the notice.
Ridge’s application was filed November 23, 1959. There were then on file, among others later to be mentioned, the following applications for a new station on 1350 kilocycles at Windber:
“Gosco Broadcasters, herein referred to as Gosco, filed May 15, 1959, public notice of the filing being announced on May 18, 1959; and
“Windber Community Broadcasting System, herein referred to as Community, filed September 4, 1959.”
On January 7, 1960, pursuant to section 309(b) of the Communications Act of 1934, the Commission advised twenty-nine applicants, as well as other known parties in interest; that since their proposals involved mutual interference a consolidated hearing would be required to determine which proposals should be granted. This is the consolidated hearing in which Ridge sought a place. Included among the twenty-nine was WKRZ, Incorporated, licensee of station WKRZ, Oil City, Pennsylvania, seeking increase in power on its frequency of 1340 kilocycles. Also among the twenty-nine was the application of Connellsville Broadcasters, Incorporated, herein referred to as Connellsville, licensee of station WCVF, Connellsville, Pennsylvania, filed August 25,1959, for increase in power on its frequency of 1340 kilocycles. Connellsville was included because of objectionable interference it would cause to station WKRZ. Also included were Gos-co and Community because of objectionable interference they would cause to the Connellsville proposal, and because they were mutually exclusive of each other. Ridge was not included although, like Gosco and Community, it sought a new station at Windber on a frequency of 1350 kilocycles.
Ridge had no interest in any application included in the list published July 30, 1959, but, as above indicated, it did have an interest in the applications of Gosco and Community. As stated, the latter were included in the consolidated hearing because Connellsville, which filed August 25, 1959, created a possible interference with station WKRZ, and Connellsville was also in possible conflict with Gosco and Community. Of these, all except Ridge had filed by September 4, 1959, though only WKRZ was listed in the notice of July 30, 1959, and Ridge had no conflict with WKRZ.
Since the Commission’s denial of Ridge’s request for inclusion in the comparative hearing referred to in the letter of January 7, 1960, was based on the filing of its application after September 4. 1959, we do not consider any other basis which might have been but was not advanced by the Commission for its decision.
It is not questioned that Ridge would have been entitled under the Ashbacker doctrine to the consolidation it sought unless Ridge was cut off, as the Commission found, under section 1.106(b) (1) of its rule and the July 30, 1959 notice given under the rule. This new provision of the Commission grew out of the administrative difficulties to which the Ashbacker decision gave rise. Some such provision became necessary to prevent inordinate delays which arose through “chain reaction” conflicts such as are illustrated by this case. The right to provide an administrative solution of this sort was suggested by the opinion of the Court in Ashbacker, where it is said: “Apparently no regulation exists which, for orderly administration, requires an application for a frequency, previously applied for, to be filed within a certain date.”
The Commission construes the rule to mean that unless filed before the cut-off date an application may not be consolidated for hearing with any application previously filed, which included WKRZ in this case, with which Ridge had no conflict, and Gosco and Community with which Ridge did have a conflict, but which were not on the list of July 30, 1959. The Commission explains that this meaning of the rule was made clear when the present text of the rule was adopted, though the Commission then recognized that it might exclude from consideration applications filed before the date of hearing itself. The Commission deemed this result to be in the public interest after weighing the rights of the excluded appplicant with the need for expeditious disposition of applications.
We do not in this case question the authority of the Commission to enforce the rule it has adopted, or to give it the construction above set forth. But in carrying out the rule so construed the Commission may not, however inadvertently, give public notice of a cut-off date which does not fairly advise prospective applicants of what is being cut off by the notice. In the present case the Commission published a list of fifty applications that would be considered ready and available for processing by September 5, 1959, and advised potential applicants that “an application, in order to be considered with any application appearing on the attached list, must be substantially complete and tendered for filing * * * no later than the close of business September 4, 1959 * * In reading this notice one would reasonably conclude that it was directed only to applications having a possible conflict with some application on the list. It was not a warning that an application filed after September 4 would be precluded from Ashbacker consideration with an unlisted mutually exclusive application filed before that date and which in some way was in conflict with another unlisted application also filed before September 4, which in turn was in conflict with a listed application. To make the amended rule have that effect in a particular case the notice under the rule must be clearer as to the effect intended.
It is difficult enough to read section 1.106(b) (1) itself as the Commission interprets it, but we accept that interpretation in light of the history of the provision. Nevertheless, when a particular cut-off date is fixed by public notice a potential applicant is entitled to rely upon the terms of the notice. The Commission is not required in a notice to phrase its cut-off provision so broadly as to encompass all the rule itself permits. It may validly do less by the notice. In this case we think it did less. As phrased the notice was not fair warning that to be considered with Gosco and Community, not on the list, Ridge must file by September 4. Since, therefore, the notice did not deprive Ridge of its right to an Ash-backer hearing with other Windber-area applications, and since the rule was restricted in this case by the scope of the notice, the order of the Commission will be reversed and the case remanded to the Commission for further proceedings not inconsistent with this opinion.
We need hardly add that the question as to the adequacy of the notice does not evoke the principle of judicial deference to administrative expertise, often available to support Commission decisions of a different character.
It is so ordered.
. 47 C.F.R. § 1.106(b) (1) (Supp.1960).
. 24 Fed.Reg. 6248-49 (1959).
. 48 Stat. 1085 (1934), as amended, 47 U.S.C. § 309(b) (Supp. II 1959-60), 47 U.S.C.A. § 309(b), not including the amendment effective December 12, 1980.
. Since the Ridge application was not timely filed under the cut-off provisions of the Rules to be considered with the applications listed in the 309(b) letter of January 7, 1960, and since it is mutually exclusive with the applications of Gosco and Community listed therein, the application must be dismissed under the provisions of § 1.106(b) (4) of the Rules which states that, “Any mutually exclusive application filed after the date prescribed [cut-off date as published in Federal Register] * * * will be dismissed without prejudice and will be eligible for refiling only after a final decision is rendered by the Commission with respect to the prior application or applications or after such application or applications are dismissed or removed from the hearing docket.” Ridge Radio Corp., 20 Pike & Fischer R.R. 197, 202 (1960).
. Ashbacker Radio Corp. v. Federal Communications Comm’n, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108.
. See Revision of AM Processing Procedure, 18 Pike & Fischer R.R. 1565 (1959).
. 326 U.S. at page 333, note 9, 66 S.Ct. at page 151, note 9.
. In its petition for reconsideration filed with the Commission, Ridge laid emphasis upon the failure of the Commission in its discretion to waive the rule. But the Act does not limit our review to matters stressed in the petition for reconsideration. In view of the contentions and presentations as a whole, before the Commission and this court, we would not feel justified in failing to decide the case on the question of notice.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_erron
|
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 civil law issues involving government actors. The issue is: "Did the court's use of the clearly erroneous standard support the government?" That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards. 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".
SANCHO, Treasurer of Puerto Rico, v. CORONA BREWING CORPORATION.
No. 3191.
Circuit Court of Appeals, First Circuit.
March 15, 1937.
William C. Rigby, of Washington, D. C. (B. Fernandez Garcia, of San Juan, P. R., and Nathan T. Margold, of Washington, D. C., on the brief), for appellant.
James R. Beverley, of San Juan, P. R. (Thomas Allen and Sheldon E. Wardwell, both of Boston, Mass., and Jose Lopez Baralt, of San Juan, P. R., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
BINGHAM, Circuit Judge.
This is an action at law brought by the plaintiff in the federal District Court for Puerto Rico against the treasurer of Puer-to Rico to recover the sum of $12,509.10 and interest, being excise taxes upon beer and malt products manufactured by it in that island, imposed by Act No. 1, of March 12, 1934.
In its complaint the plaintiff alleged that it was duly authorized to do business in the island; that it had established a brewery for the purpose of manufacturing beer and malt products there; that, on August 25, 1933, it petitioned the Public Service Commission of Puerto Rico to declare complainant’s industry a “new industry” in accordance with the terms of Act No. 40, approved April 25, 1930, and that such industry be exempted from taxes in accordance with the provisions of that act; that on July 21, 1934, the Public Service Commission, after due hearing, granted the plaintiff’s petition and passed a resolution declaring plaintiff’s industry to be a new industry under the terms of Act No. 40, and in accordance with said act exempted its industry from taxation for the term of five years; that, notwithstanding the resolution and decision of the Public Service Commission of July 21, 1934, the treasurer of Puerto Rico collected from the plaintiff taxes calculated in accordance with the terms of Act No. 1, of March 12, 1934, and threatened dis-traint; that due to the threats of distraint the plaintiff paid to the treasurer, between July 21, 1934, and September 19, 1934, excise taxes under Act No. 1, of March 12, 1934, aggregating $12,509.10; that said sums were paid under protest pursuant to Act No. 8, of April 19, 1927; that the plaintiff attached to the complaint the tax receipts showing said payment or payments were made under protest as required by law; that said exaction of the taxes was illegal and without authority of law and in contravention of the resolution and order of the Public Service Commission; and that the treasurer, after the decision of the Public Service Commission, was without authority to impose and collect the taxes or any taxes except income taxes and premiums for workmen’s compensation.
These allegations, so far as they are allegations of fact, are admitted. The principal question in the case is whether Act No. 40, of April 25, 1930, exempts the plaintiff from the payment of taxes on its manufactured product.
The act is poorly drawn. Its meaning is far from clear. Its purpose, as disclosed in its title, is:
“To protect new industries in Puerto Rico by exempting them from taxes for a period not to exceed ten years, as the Public Service Commission may determine, and for other purposes.”
Section l describes the new industry or thing which it was the purpose of the act to exempt from taxation. After careful consideration of its provisions, we are of the opinion that they mean the same as though the section read:
“Section 1. New industries in Porto Rico are those processes, worked by hand or machinery, having for their object the preparation and production of articles of commerce, the preparation or production of which has not previously taken place in Porto Rico; or. those means, which are new in Porto Rico, of preparing or producing articles of commerce.”
If we are right as to section 1, our interpretation of section 2 is as though it read:
“Section 2. That said new industries [those processes or means described in Section 1] and their buildings, machinery, materials, franchises, etc., and, in general, all the properties, rights and privileges belonging to said industries, which are necessary in their work and operation, shall be exempt from all taxes for a period not to exceed ten years, as the Public Service Commission may determine. Said term shall be counted from the time the industrial installation is completed; Provided, That such exemption shall not include the assessments under the Workmen’s Compensation Act; And provided, further, That municipalities.are hereby authorized to grant a similar exemption from municipal license and excise taxes to such industries as are previously declared new industries by the Public Service Commission, for a term not to exceed the term granted by said Commission; Provided, That all such industries as have been declared new industries, application for which declaration was made under Act No. 92, promulgated March 31, 1919, shall be exempt from the income tax from the time they were declared new industries. Such shall not be the case however, with those industries which applied for and were declared new industries while Act No. 16, approved May 20, 1925, was in force and those obtaining such declaration hereafter.”
According to section 2, new industries (processes or means) as defined in section 1, and “their buildings, machinery, materials, franchises, etc., and, in general, all the properties, * * * which are necessary in their work and operation” are exempt from all taxation for a period not to exceed ten years as the Public Service Commission may determine.
The products to be manufactured or produced by such new industries are not mentioned. The “buildings, machinery, materials, franchises” mentioned are not products of their manufacture. Neither are their products “properties, rights and privileges belonging to said industries, which are necessary in the work and operation.” They are simply the result of the work and operation.
Exemption statutes are to be strictly construed. The power of a government to tax is not lightly to be parted with. And as section 2 of the Act of April 25, 1930, leaves it doubtful whether the products of such industries are included within its exemption, we feel constrained to hold that it was not the intention of the Legislature in the enactment of that section to exempt the products of such industries.
We are further of the opinion that to construe section 2, when read in connection with Act No. 1, of March 12, 1934, as exempting from taxation the products of the plaintiff’s industry, to that extent, would be to render section 2 invalid as being in violation of section 3 of the Organic Act of Puerto Rico, as amended; for such a construction would create a discrimination in favor of an article produced in Puerto Rico as respects similar articles imported from the United States and foreign countries and taxed in Puerto Rico. Such a discrimination section 3 of the Organic Act forbids.
Section 2 of the Twenty-First Amendment to the Constitution is without application to the facts in this case. It has to do with the importation of intoxicating liquors into Puerto Rico in violation of its laws. No question of that character is here involved.
If that amendment could be said to authorize, not merely permit, the imposition of a tax by Puerto Rico upon liquors imported into the island, it would not be in conflict with section 3 of the Organic Act as amended, for that section authorizes Puerto Rico to tax imported liquors as well as other imported articles; but as the legislative powers of Puerto Rico are only those authorized by Congress (acting under article 4, § 3, cl. 2, of the Constitution), Congress has the right in its grant of legislative powers to Puerto Rico to restrict its authority to enact laws imposing taxes on imports to such as do not discriminate against imports and in favor of like domestic products. The amendment, however, does not authorize Puerto Rico to enact laws, or render its exemption of domestic products, discriminating against imports of like character, valid. The Twenty-First Amendment simply withdraws the exclusive control of Congress, under the commerce clause (article 1, § 8, cl. 3), over commerce in intoxicating liquors, when their importation is in violation of the laws of a state, territory, or possession of the United. States. It does not confer power upon Puerto Rico as to, the enactment of its laws. That power it acquired by virtue of its Organic Act, which Congress is authorized to prescribe by virtue of article 4, § 3, cl. 2, of the Constitution.
The judgment of the United States District Court for Puerto Rico is vacated, and the case is remanded to that court, with direction to dismiss the complaint; costs to the appellant in both courts.
“Section 1. New industries in Puerto Rico shall be understood to be all such processes as, by transforming raw material, shall have as their object the preparation and production of articles of commerce, either manufactured by hand or by machinery, the preparation or production of which has not previously taken place in Puerto Rico or the means of preparing or producing which are new in Puerto Rico.”
Section 2 as above given is the same as section 2 in the original act, except the parts included in brackets.
Section 3, Organic Act (as amended [48 U.S.O.A. § 741a]):
“The internal revenue taxes levied by the Legislature of Puerto Rico in pursuance of the authority granted by this Act [chapter] on articles, goods, wares, or merchandise may be levied and collected as such legislature may direct, on the articles subject to said tax, as soon as the same are manufactured, sold, used, or brought into the island: Provided, That no discrimination be made between the articles imported from the United States or foreign countries and similar articles produced or manufactured in Puerto Rico.”
Question: Did the court's use of the clearly erroneous standard support the government? That is, a somewhat narrower standard than substantial evidence, or ignoring usual agency standards.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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.
GIBSON & PERIN CO. et al., Plaintiffs-Appellees and Cross-Appellants, v. CITY OF CINCINNATI et al., Defendants-Appellants and Cross-Appellees.
Nos. 72-1607, 72-1608.
United States Court of Appeals, Sixth Circuit.
Argued Jan. 31, 1973.
Decided June 26, 1973.
Edwards, Circuit Judge, concurred specially and filed opinion.
S. Arthur Spiegel, Cincinnati, Ohio, for Gibson & Perin Co.; Cohen, Todd, Kite & Spiegel, Cincinnati, Ohio, on brief; Hawley Todd, Marshall C. Hunt, Jr., Cincinnati, Ohio, of counsel.
A. David Nichols, Cincinnati, Ohio, William Chadeayne, Columbus, Ohio, for City of Cincinnati, and others; Isabel Guy, Acting City Sol., Thomas F. Rehme, Asst. City Sol., Cincinnati, Ohio, on brief.
Bricker, Evatt, Barton & Eckler, Columbus, Ohio, for Associated Dry Goods Corp. and Cincinnati Redevelopment-Corp.; Russell Leach, H. Franklin Crawford, III, John F. Birath, Jr., Columbus, Ohio, of counsel.
Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.
WEICK, Circuit Judge.
The controversy in this case arose out of the Cincinnati Business District Core Project Urban Renewal Plan, hereinafter referred to as “Plan”, which Plan was adopted by ordinance passed by City Council in 1962 after two public hearings. The Plan was amended in 1964 and 1965. Under this Plan old, dilapidated business buildings in blighted areas of Cincinnati have been razed and replaced with fine, new, privately-owned buildings, with the help of private industry. We agree with the District Judge that urban renewal in Cincinnati has been an outstanding success and a real boon to the City.
Of the many new buildings that have been constructed under the Plan, only the one in issue here has been questioned, and that is Pogue’s seven-story, shoppers’ parking garage, which opened on June 1, 1967. Although it was characterized by the District Court as a single-purpose parking garage designed primarily to serve Pogue’s department store, actually it serves not only shoppers at Pogue’s and other department stores, but also it serves customers for other business places in that downtown area. It serves also people who are attending other evening functions in the area of the garage. The fact is that the garage is open to the general public twenty-four hours a day, seven days a week. It accommodates at least 1,200 cars, which is about four times more parking space than was previously available in the area, and really consists of two garages. It also has space for retail businesses on the ground floor, part of which already has been rented to Closson’s.
The plaintiffs are retail merchants and the owner of a French restaurant, all with places of business owned or leased on the south side of Fourth Street (but outside the Urban Renewal Area), and located on the opposite side of Fourth Street from Pogue’s parking garage. They do not like the design and location of the parking garage.
Plaintiffs claim, and the District Court found, that plaintiffs—
“ . . . were led to expect that the north side of Fourth Street would be developed for retail and office space, with a shopper’s garage on Elm Street between Fourth and Fifth Streets;”
that instead, the City—
“ . . . not only approved the construction of the garage on Fourth Street between Elm and Race, but approved a single-purpose shopper’s garage wth scissors ramps designed solely for Pogue’s whose store is east of Block D at the corner of Fourth and Race Streets. . . .”;
that the change in the Plan was made without a public hearing; that a portion of Fourth Street was vacated without notice to the plaintiffs; that the ramps on Fourth Street impede pedestrian traffic on the northerly side of Fourth Street and adversely affect plaintiffs’ businesses located on the opposite side of Fourth Street. Actually, the scissors ramps protect pedestrians who walk on the public sidewalk underneath the ramps. Without the ramps the automobiles entering and exiting the garage on Fourth Street would be at the same level as the public sidewalk, and it would be very dangerous for pedestrians to walk thereon.
In their third amended complaint filed in 1969, the plaintiffs, in addition to the foregoing, have charged the defendants with violation of their civil rights, conspiracy, fraud, violation of federal and state antitrust laws, and with everything else that they could think of including the charge of depriving them of due process of law and the equal protection of the laws. They asked for injunctive relief and damages.
Defendants in the case, named in the Third Amended Complaint, were the City of Cincinnati; William C. Wichman, who was City Manager, and is now deceased; Cincinnati Redevelopment Corporation [CRC], a private Ohio corporation for profit, which purchased the land from the City after the City had acquired it by condemnation or by purchase, and had razed the old buildings. (CRC constructed the new parking garage thereon and sold and conveyed it for $4,000,000 to Adcor Realty Co., a subsidiary of Associated Dry Goods, Inc., which is also the parent corporation of H & S Pogue Co., Inc., a department store.) Continuing the list of defendants : Associated Dry Goods Co.; H & S Pogue Co., Inc.; Adcor Realty Co.; Morgan Guaranty Trust Co., which acquired the title to the property from Ad-cor Realty Co. under a lease-back arrangement for the operation of the Pogue department store; the Regional Director of HUD; and the Secretary of the Department of Housing and Urban Development, the latter two of whom were voluntarily dismissed from the case.
The District Court heard the case without a jury and decided against the plaintiffs on the issues of conspiracy, fraud and antitrust violations, but found in favor of the plaintiffs on the issue that the construction of the garage on Fourth Street, rather than on Elm Street, violated the Urban Renewal Plan, and that plaintiffs, although located outside the Urban Renewal area, had standing to file the action. The Court entered a mandatory—
“ . . . injunction against the City and Pogue’s Division of Associated Dry Goods Corporation, jointly and severally, requiring them to alter the Pogue completed garage by installing two elevators at Fourth and Elm Street (in addition to the existing three elevators only 80 feet from the northwest corner of Fourth and Race Street) and to improve the fire tower on Fourth Street so that it and the elevators can serve the area in which the plaintiffs are located and thus counteract the blighting effect of the garage as constructed.” (App.Yol. I, p. 55)
We affirm the District Court in its decision that there was no conspiracy, fraud or antitrust violation. We reverse the mandatory injunction issued against the City and Pogue’s.
I
STANDING
Pogue’s new garage is located in Urban Renewal Block D, which block consists of an entire city block, bounded on the north by Fifth Street, on the south by Fourth Street, on the east by Race Street, and on the west by Elm Street.
Only the plaintiffs, whose places of business are located outside the Urban Renewal area, have filed suit. They claim that the location and design of the garage have resulted in economic injury to them.
The threshold question therefore is whether persons located outside the Urban Renewal area have standing to maintain this action. We are of the opinion that plaintiffs do not have standing.
Plaintiffs contended in the District Court that they do have standing on the following grounds:
1) As federal taxpayers;
2) Under the Administrative Procedure Act;
3) As persons having a.personal stake in the outcome of the case; and
4) As private attorneys general.
The District Court ruled that plaintiffs’ contentions were untenable as federal taxpayers and under the Administrative Procedure Act. We agree. The Court, however, held that they had standing as persons having a personal stake in the outcome of the case, and as private attorneys general. We disagree.
No eases have been cited to us by the Court or by the parties, nor have we found any cases, where persons located outside the Urban Renewal area have been permitted to question the design or location of buildings approved by the agency (the City, in the present ease) as being in conformity with the Plan, said agency having been authorized by Congress to act. There is no general statutory right of appeal to the United States District Courts from decisions of federal, local or public agencies, and private persons, engaged in urban renewal projects under 42 U.S.C. § 1450 et seq. The Secretary is authorized to sue and to be used. 42 U.S.C. § 1456(c)(1). Suits, of course, could be filed for violation of specific regulations adopted by the Secretary of HUD under the provisions of § 1455(c)(1) by persons having standing.
Nor do we find authority for the mandatory order issued by the District Court ordering the City and the purchaser of property from the redeveloper, to make changes in completed buildings which the purchaser had acquired in good faith and for which it had paid a large sum of money.
The District Court recognized that it was charting a new course in virgin territory, — a course which we believe would have an adverse effect on future Urban Renewal projects, if persons located outside the project may question the decisions relating to the project made by the duly authorized local public agencies.
Not only was the project approved by HUD, but the Plan and the design and location of the garage were specifically approved by the City.
Standing to sue as “private attorneys general” rests on an explicit provision in the regulatory statute conferring standing, which is absent here. Data Processing Service v. Camp, 397 U.S. 150, 153 n. 1, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).
Review of decisions of federal agencies may be obtained under the Administrative Procedure Act. Contrary to plaintiffs’ claims, the City is not a federal agency as defined in the Act. 5 U.S.C. § 701(b)(1). Furthermore, the Director and the Secretary of the federal agency were voluntarily dismissed from the case by the plaintiffs.
The Act does not confer standing to seek judicial review upon anyone who suffers economic injury as a result of agency action, regardless of whether that person’s private rights have been invaded. Woodland Market Realty Co. v. City of Cleveland, 426 F.2d 955 (6th Cir. 1970); Harrison-Halsted Community Group, Inc. v. Housing & Home Finance Agency, 310 F.2d 99 (7th Cir. 1962).
Plaintiffs have no standing as federal taxpayers to question the design and location of the garage. They have not established a logical link between their status and the type of legislation which they are attempting to attack. They have not challenged a congressional enactment under the taxing and spending clause of Art. I, Sec. 8 of the Constitution, which is a prerequisite for standing under Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). In addition, the Court said:
“. . . [T]he taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. When both nexuses are established, the litigant will have shown a taxpayer’s stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court’s jurisdiction.” (Id. at 102-103, 88 S.Ct. at 1954).
No such nexuses have been established. Indeed, plaintiffs have not established any violation of a specific statute or constitutional provision.
The District Court relied on Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), wherein standing was held to exist in petitioner, a data processing company, to review a decision of the Comptroller of the Currency permitting National Banks, such as the respondent bank, to make data processing services available to other banks and bank customers. Review was provided for by the Administrative Procedure Act.
In addition to plaintiffs’ claim to economic injury because of competition from the banks, the interest which they sought to protect was arguably within the zone of interests to be protected and regulated by statute.
To the same effect is Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L. Ed.2d 192 (1970), wherein review was sought under the Administrative Procedure Act. The Court, following Data Processing Service, supra, held that farmers who were eligible for payments under the Food and Agricultural Act of 1965, had standing to challenge the validity of an amended regulation issued by the Secretary of Agriculture, which amended regulation, they alleged, violated the Act.
The Court further held that the farmers had a personal stake and interest; that they were clearly within the zone of interests protected by the Act; and that the statutory scheme evinces a congressional intent that the Secretary’s decision may be judicially reviewed.
Both Data Processing and Barlow, (unlike the present case) involve reviews sought under the Administrative Procedure Act. Both cases involved persons within the zone of interests protected, which is not true in the present case as plaintiffs’ businesses were located outside the Urban Renewal area. While in Data Processing the Court found no prohibition against review, in Barlow the Court found congressional intent favoring review.
In our case no review was provided by statute of acts of agencies and private developers of Urban Renewal projects. We think it was because. review would frustrate implementation of Urban Renewal plans and would discourage cities and redevelopers who might not want to become embroiled in protracted litigation, particularly after they had expended their money to participate in the project.
In our case, under no stretch of the imagination can it be claimed that plaintiffs, who were located outside the Urban Renewal area, were within the zone of interests protected by the statute. Since they had no money invested in the structures located in the Urban Renewal area, they had no personal interest or stake in the project.
The decision in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), is against the plaintiffs, as the Court held there that even under the Administrative Procedure Act the plaintiff and its members, who allegedly had a special interest in the conservation and the sound maintenance of the natural parks, game refuges, and forests of the county, did not have standing to enjoin federal officials from approving an extensive skiing development in the Mineral King Valley in the Sequoia National Forest. Petitioners in that case had not alleged that the challenged development would affect the Club or its members in their activities, or that they even used Mineral King, but alleged that the project would adversely change the area’s aesthetics and ecology.
In our case, the District Court in its opinion stated:
“It seems clear to the Court that the City could not have condemned the property in the south half of Block D for the purpose of erecting a garage such as the one the Developer built to the specifications of Pogue’s.
“In effect this would be condemning property for private purposes, and it needs no citation of authority to say that is not permitted.” (App. I, p. 59).
This proposition was set to rest in the leading case on Urban Renewal, which ease involved the District of Columbia. In Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954), Mr. Justice Douglas, who wrote the opinion for the Court, stated:
“Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. See Luxton v. North River Bridge Co., 153 U.S. 525, 529-530 [, 14 S.Ct. 891, 892] 38 L.Ed.2d 808; United States v. Gettysburg Electric R. Co., 160 U.S. 668, 679 [, 16 S.Ct. 427, 429] 40 L.Ed. 576. Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. See Luxton v. North River Bridge Co., supra; cf. Highland v. Russell Car Co., 279 U.S. 253 [, 49 S.Ct. 314] 73 L.Ed. 688. The public end may be as well or better served through an agency of private enterprise than through a department of government — or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects. What we have said also disposes of any contention concerning the fact that certain property owners in the area may be permitted to repurchase their properties for redevelopment in harmony with the overall plan. That, too, is a legitimate means which Congress and its agencies may adopt, if they choose. (Id. at 33-34, 75 S.Ct. at 103).”
In making it clear that it is not the function of the Courts to sit in review of legislative determinations, the Court stated:
“. . . But we have said enough to indicate that it is the need of the area as a whole which Congress and its agencies are evaluating. If owner after owner were permitted to resist these redevelopment programs on the ground that his particular property was not being used against the public interest, integrated plans for redevelopment would suffer greatly. The argument pressed on us is, indeed, a plea to substitute the landowner’s standard of the public need for the standard prescribed by Congress. But as we have already stated, community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis — lot by lot, building by building.
It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch. See Shoemaker v. United States, 147 U.S. 282, 298 [, 13 S.Ct. 361, 390] 37 L.Ed. 170; United States ex rel. Tennessee Valley Authority v. Welch, supra, [327 U.S. 546] at page 554 [, 66 S.Ct. 715, at 718, 90 L.Ed. 843]; United States v. Carmack, 329 U.S. 230, 247 [, 67 S.Ct. 252, 260] 91 L.Ed. 209.
The District Court indicated grave doubts concerning the Agency’s right to take full title to land as distinguished from the objeetional buildings located on it. 117 F.Supp. 705, 715-719. We do not share those doubts. If the Agency considers it necessary in carrying out the redevelopment project to take full title to the real property involved, it may do so. It is not for the courts to determine whether it is necessary for successful consummation of the project that unsafe, unsightly, or insanitary buildings alone be taken or whether title to the land be included, any more than it is the function of the courts to sort and choose among the various parcels selected for condemnation.
The rights of these property owners are satisfied when they receive that just compensation which the Fifth Amendment exacts as the price of the taking.” (Id. at 35-36, 75 S.Ct. at 104).
The title to the land in Block D, on part of which the garage was constructed, was acquired by the City, either by purchase or condemnation. No such defense was interposed in any condemnation suit, nor is there any proof that any purchases made by the City were other than voluntary. The title of the purchaser may not be collaterally attacked here.
The case closest in point to the present one is our decision in Woodland Market Realty Co. v. City of Cleveland, 426 F.2d 955 (6th Cir. 1970). In that case the plaintiff, which held a leasehold interest in certain commercial property located in Cleveland, sued the City for damages to its leasehold interest, the value of which was alleged to have been destroyed by the activity of the City in establishing its Urban Renewal project. Plaintiff claimed that such activity violated its rights under the Fifth and Fourteenth Amendments to the Constitution. Plaintiff alleged that its leasehold was originally included in the Urban Renewal project, but that the City later excluded it and acquired instead adjacent property belonging to plaintiff’s tenants, thereby depriving plaintiff of its tenants.
In affirming the judgment of the District Court dismissing the complaint, we stated that there had been no taking of plaintiff’s property within the meaning of the Fifth and Fourteenth Amendments requiring the payment of just compensation; that the losses sustained by plaintiff did not result from any intrusion or encroachment on plaintiff’s property. “Its leasehold estate has remained intact.” Id. at 958. Plaintiff’s losses resulted from the transformation of the neighborhood from a residential neighborhood to vacant land. We followed Berman v. Parker, supra, in holding that the drawing of boundary lines for a public project is a matter of legislative discretion, and it is not the function of the courts to review such discretion. We stated:
“When reduced to its essence, the issue presented upon this appeal is whether a property owner having property adjacent to an urban renewal project may maintain an action for compensation under the Fifth and Fourteenth Amendments of the Federal Constitution for depreciation in the value of his property by reason of the establishment of the project. This Court is of the opinion that he cannot.” (Id. 426 F.2d at 959).
In Campbell v. United States, 266 U.S. 368, 45 S.Ct. 115, 69 L.Ed. 328 (1924), the Court held that a property owner, a portion of whose land was condemned for a public purpose, was not entitled to compensation for damages to the residue occasioned by the acquisition and/pse of adjoining lands of others for theXsame project.
We followed Berman v. Parker, swpra, in Nashville 1-40 Steering Comm. v. Ellington, 387 F.2d 179 (6th Cir. 1967), holding that the routing of public highways was a prerogative of the executive department of the state, and not the judiciary.
Further, in order to have standing, plaintiffs must establish that they have a legal interest to maintain the suit, that the right invaded—
“. . . is a legal right, — one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.” (Tennessee Power Co. v. TVA, 306 U.S. 118, 137, 59 S.Ct. 366, 369, 83 L.Ed. 543 (1939)).
See also- United States ex rel. TVA v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843 (1946); Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938). Plaintiffs have established no such rights. Whatever damages plaintiffs sustained as a result of the Urban Renewal project are damnum absque injuria.
Under Ohio law plaintiffs, as owners or lessees of land abutting on the south side of Fourth Street, have no property right in the continuation or maintenance of the flow of traffic past their property, and the diversion of traffic as a result of public improvement is not an impairment of a property right for which damages may be awarded. State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53 (1955). As a matter of fact, the width of Fourth Street was not changed in the improvement.
Plaintiffs complain about not having received notice from the City of the vacation of a portion of Fourth Street. Actually, the portion vacated was not the traveled portion of the street, but included the north sidewalk, the location of which was changed by an exchange of easements and was relocated on Pogue’s property and underneath the ramps. Plaintiffs were not abutting owners of land on the north side of Fourth Street and were not entitled to notice under Ohio law. Ohio Rev.Code, § 723.06.
In essence, all that plaintiffs are really complaining about is the fact that they did not receive the benefits from the Urban Renewal project which they expected.
II
LIABILITY OF THE CITY OF CINCINNATI
The City is a political subdivision of the State of Ohio. It is not a “person” within the meaning of the Civil Rights Act and Congress did not intend that municipal corporations should be amenable to the Act. 28 U.S.C. § 1343; 42 U.S.C. § 1983; Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Johnson v. City of Cincinnati, 450 F.2d 796, 798 (6th Cir. ,1971).
There is an additional reason why the City cannot be held liable in this action. In its activities under the Urban Renewal project it was engaged in the performance of a governmental, and not a proprietary, function. It was exercising the police power of the state. It cannot be held liable for the performance of such acts. Broughton v. Cleveland, 167 Ohio St. 29, 146 N.E.2d 301 (1957); Wooster v. Arbenz, 116 Ohio St. 281, 156 N.E. 210 (1927).
III
LIABILITY OF POGUE INTERESTS
Inasmuch as the City is not liable for economic injury allegedly sustained by plaintiffs on account of the Urban Renewal Plan, it is difficult to see how Pogue’s, whose sin was to purchase a completed garage and to pay $4,000,000 for it, could possibly be held liable.
Plaintiffs complain that the Plan was changed to locate the garage on Fourth Street instead of on Elm Street. Actually, it is located on both streets. The City contends that the Plan was never changed; that brochures, reports, newspaper articles, etc., on which plaintiffs and the District Court relied as indicating a location on Elm Street, were illustrative only and were not a part of the Plan. City Council did approve the design and location of the garage.
But even if the City did change the location and design, it had the right to do so, as was held in Woodland Market Realty, supra, where the city changed its original plan to include plaintiffs in the urban renewal area and then changed its plan to exclude plaintiffs.
In our opinion, a public hearing was not required even if the City did change the design or location of a building in Block D.
Plaintiffs were tardy in filing their suit nearly one year after the City had passed an ordinance approving the bid of CRC as being “in accordance with the Urban Renewal Plan,” and after the property was conveyed by the City to the redeveloper.
IV
ANTI-TRUST VIOLATIONS
The District Court found that there was no evidence of any conspiracy to restrain trade. We agree.
Although most of the plaintiffs and Pogue’s have been engaged in business in Cincinnati for many years, no claim-of antitrust violation was ever made against Pogue’s until after it acquired its new garage.
Participation in an Urban Renewal project does not violate the antitrust laws.
Plaintiffs allege that the relevant market was a “dramatic elbow” at the corner of Fourth and Elm Streets. This claim is ridiculous. There was no proof of any relevant market. There was no proof of any real competition between the plaintiffs and Pogue’s. The antitrust claims are frivolous.
The judgment of the District Court is reversed and the cause is remanded with instructions to dismiss the complaint.
. The original complaint was filed in the District Court on July 2, 1966, about a year after CRC had acquired the land from the City at a cost of $587,770.04.
In the original complaint there was no charge of antitrust violation.
On February 21, 1967, the District Court denied plaintiffs’ application for a preliminary injunction, to enjoin completion of the garage. An Amended Complaint was filed on June 8, 1967; the Third Amended Complaint was filed on January 27, 1969; the trial commenced on June 2, 1970, and was concluded on June 25, 1970; the Memorandum Opinion of the District Court was filed on July 26, 1971.
. Plaintiffs, who are located on the south side of Fourth Street, and their customers, would have to walk only eighty feet from the northwest corner of Fourth and Race Streets to use the existing three elevators in the garage. There is no proof that the existing elevators are not adequate to serve properly the garage. Aside froni the damage to the garage occasioned by the construction of unneeded additional elevators, the construction ordered by the Court might cost as much as $350,000. The exact amount of the construction so ordered has not been determined since the plans therefor have not been prepared.
. The District Court relied heavily on Nor-walk v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968), which we believe is inapposite. In Norwalk the plaintiffs were directly involved (by removal) in the Urban Renewal scheme. They alleged violation of a specific standard in the Urban Renewal Act, as well as racial discrimination. The complaint was dismissed on motion and the allegations were accepted as true. Foster v. City of Detroit, 254 F.Supp. 655 (E.D. Mich., 1966), aff’d 405 F.2d 138 (6th Cir. 1968) is likewise inapplicable, as it involved due process violations in Detroit’s condemnation procedures concerning the right to compensation on the part of property owners whose lands were taken.
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:
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sc_decisiondirection
|
A
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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.
CHAN et al. v. KOREAN AIR LINES, LTD.
No. 87-1055.
Argued December 7, 1988
Decided April 18, 1989
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, and Kennedy, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, in which Marshall, Black-mun, and Stevens, JJ., joined, post, p. 136.
Milton G. Sincoff argued the cause for petitioners. With him on the brief were Steven R. Pounian and Donald W. Madole.
Richard J. Lazarus argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Bolton, and Deputy Solicitor General Ayer.
George N. Tompkins, Jr., argued the cause and filed a brief for respondent.
Justice Scalia
delivered the opinion of the Court.
This case presents the question whether international air carriers lose the benefit of the limitation on damages for passenger injury or death provided by the multilateral treaty known as the Warsaw Convention if they fail to provide notice of that limitation in the 10-point type size required by a private accord among carriers, the Montreal Agreement.
I
On September 1, 1983, over the Sea of Japan, a military aircraft of the Soviet Union destroyed a Korean Air Lines, Ltd. (KAL), Boeing 747 en route from Kennedy Airport in New York to Seoul, South Korea. All 269 persons on board the plane perished. Survivors of the victims filed wrongful-death actions against KAL in several Federal District Courts, all of which were transferred for pretrial proceedings to the District Court for the District of Columbia pursuant to 28 U. S. C. § 1407. All parties agree that their rights are governed by the Warsaw Convention, a multilateral treaty governing the international carriage of passengers, baggage, and cargo by air. Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T. S. No. 876 (1934), reprinted in note following 49 U. S. C. App. § 1502.
The present controversy centers on the per passenger damages limitation for personal injury or death. This was fixed at approximately $8,300 by the Convention, but was raised to $75,000 by the Montreal Agreement, an agreement among carriers executed (and approved by the Civil Aeronautics Board (CAB)) in 1966, and joined by KAL in 1969. Agreement Relating to Liability Limitations of the Warsaw Convention and the Hague Protocol, CAB Agreement 18900, note following 49 U. S. C. App. § 1502 (approved by CAB Order E-23680, May 13, 1966, 31 Fed. Reg. 7302). In addition to providing for a higher damages limitation, this agreement required carriers to give passengers written notice of the Convention’s damage limitations in print size no smaller than 10-point type. The notice of the Convention’s liability rules printed on KAL’s passenger tickets for the flight in question here appeared in only 8-point type. By motion for partial summary judgment, plaintiffs sought a declaration that this discrepancy deprived KAL of the benefit of the damages limitation.
On July 25, 1985, the District Court for the District of Columbia denied the motion, finding that neither the Warsaw Convention nor the Montreal Agreement prescribes that the sanction for failure to provide the required form of notice is the elimination of the damages limitation. In re Korean Air Lines Disaster of September 1, 1983, 664 F. Supp. 1463. Its opinion specifically considered and rejected contrary Second Circuit precedent. See In re Air Crash Disaster at Warsaw, Poland, on March 14, 1980, 705 F. 2d 85, cert. denied sub nom. Polskie Linie Lotnicze v. Robles, 464 U. S. 845 (1983). On September 24, 1985, the District Court certified for interlocutory appeal under 28 U. S. C. § 1292(b) (1982 ed., Supp. IV) the question whether KAL “is entitled to avail itself of the limitation of damages provided by the Warsaw Convention and Montreal Agreement despite its defective tickets.” The District of Columbia Circuit allowed the appeal and (following a remand of the record for clarification of the scope of the District Court’s order) affirmed, adopting the District Court’s opinion in full. In re Korean Air Lines Disaster of September 1, 1983, 265 U. S. App. D. C. 39, 829 F. 2d 1171 (1987). We granted certiorari, 485 U. S. 986 (1988), to resolve the conflict among the Courts of Appeals. (In addition to the Second Circuit, the Fifth is in disagreement with the District of Columbia Circuit’s resolution here. See In re Air Crash Disaster Near New Orleans, Louisiana, on July 9, 1982, 789 F. 2d 1092 (1986), reinstated, 821 F. 2d 1147 (1987) (en banc).)
II
Petitioners concede that by itself the Montreal Agreement imposes no sanction for failure to comply with its 10-point type requirement. They argue, however, that such a requirement is created by reading the Montreal Agreement in conjunction with the Warsaw Convention. This argument proceeds in two steps. First, petitioners assert that Article 3 of the Warsaw Convention removes the protection of limited liability if a carrier fails to provide adequate notice of the Convention’s liability limitation in its passenger tickets. Second, they contend that the Montreal Agreement’s 10-point type requirement supplies the standard of adequate notice under Article 3. Because we reject the first point, we need not reach the second.
Article 3 of the Warsaw Convention provides:
“(1) For the transportation of passengers the carriers must deliver a passenger ticket which shall contain the following particulars:
“(a) The place and date of issue;
“(b) The place of departure and of destination;
“(c) The agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right, the alteration shall not have the effect of depriving the transportation of its international character;
“(d) The name and address of the carrier or carriers;
“(e) A statement that the transportation is subject to the rules relating to liability established by this convention.
“(2) The absence, irregularity, or loss of the passenger ticket shall not affect the existence or the validity of the contract of transportation, which shall none the less be subject to the rules of this convention. Nevertheless, if the carrier accepts a passenger without a passenger ticket having been delivered he shall not be entitled to avail himself of those provisions of this convention which exclude or limit his liability.”
Although Article 3(1)(e) specifies that a passenger ticket shall contain “[a] statement that the transportation is subject to the rules relating to liability established by this convention,” nothing in Article 3 or elsewhere in the Convention imposes a sanction for failure to provide an “adequate” statement. The only sanction in Article 3 appears in the second clause of Article 3(2), which subjects a carrier to unlimited liability if it “accepts a passenger without a passenger ticket having been delivered.” Several courts have equated nondelivery of a ticket, for purposes of this provision, with the delivery of a ticket in a form that fails to provide adequate notice of the Warsaw limitation. See In re Air Crash Disaster Near New Orleans, Louisiana, on July 9, 1982, supra; In re Air Crash Disaster at Warsaw, Poland, on March 11, 1980, 705 F. 2d 85 (CA2), cert. denied sub nom. Polskie Linie Lotnicze v. Robles, 464 U. S. 845 (1983); Deutsche Lufthansa Aktiengesellschaft v. CAB, 156 U. S. App. D. C. 191, 196-197, 479 F. 2d 912, 917-918 (1973); Lisi v. Alitalia-Linee Aeree Italiane, S. p. A., 370 F. 2d 508 (CA2 1966), aff’d by equally divided Court, 390 U. S. 455 (1968); Egan v. Kollsman Instrument Corp., 21 N. Y. 2d 160, 234 N. E. 2d 199 (1967), cert. denied, 390 U. S. 1039 (1968). See also Warren v. Flying Tiger Line, Inc., 352 F. 2d 494 (CA9 1965) (conditioning liability limitation upon delivery of tickets in such manner as to afford passengers a reasonable opportunity to take measures to protect against liability limitation); Mertens v. Flying Tiger Line, Inc., 341 F. 2d 851 (CA2) (same), cert. denied, 382 U. S. 816 (1965). But see Ludecke v. Canadian Pacific Airlines, Ltd., 98 D. L. R. 3d 52, 57 (Can. 1979) (rejecting the view of the American cases).
We cannot accept this interpretation. All that the second sentence of Article 3(2) requires in order to avoid its sanction is the “delivery]” of “a passenger ticket.” Expanding this to mean “a passenger ticket in compliance with the requirements of this Convention” is rendered implausible by the first sentence of Article 3(2), which specifies that “[t]he . . . irregularity ... of the passenger ticket shall not affect the existence or the validity of the contract of transportation, which shall none the less be subject to the rules of this convention.” It is clear from this (1) that an “irregularity” does not prevent a document from being a “passenger ticket”; and (2) that an “irregularity” in a passenger ticket does not eliminate the contractual damages limitation provided for by the Convention. “Irregularity” means the “[qjuality or state of not conforming to rule or law,” Webster’s Second International Dictionary (1950), and in the present context the word must surely refer to the rules established by the Convention, including the notice requirement. Thus, a delivered document does not fail to qualify as a “passenger ticket,” and does not cause forfeiture of the damages limitation, merely because it contains a defective notice. When Article 3(2), after making this much clear, continues (in the second sentence) “Nevertheless, if a carrier accepts a passenger without a passenger ticket having been delivered, etc.,” it can only be referring to the carrier’s failure to deliver any document whatever, or its delivery of a document whose shortcomings are so extensive that it cannot reasonably be described as a “ticket” (for example, a mistakenly delivered blank form, with no data filled in). Quite obviously, the use of 8-point type instead of 10-point type for the liability limitation notice is not a shortcoming of such magnitude; indeed, one might well select that as a polar example of what could not possibly prevent a document from being a ticket.
Besides being incompatible with the language of the Convention, the proposition that, for purposes of Article 3(2), delivering a defective ticket is equivalent to failure to deliver a ticket, produces absurd results. It may seem reasonable enough that a carrier “shall not be entitled to avail himself of those provisions of this convention which exclude or limit his liability” when the ticket defect consists precisely of a failure to give the passenger proper notice of those provisions. But there is no textual basis for limiting the “defective-ticket-is-no-ticket” principle to that particular defect. Thus, the liability limitation would also be eliminated if the carrier failed to comply, for example, with the requirement of Article 3(1 )(d) that the ticket contain the address of the carrier.
The conclusion that defective compliance with the notice provision does not eliminate the liability limitation is confirmed by comparing Article 3(2) with other provisions of the Convention. Article 3 is a part of Chapter II of the Convention, entitled “Transportation Documents.” Just as Section I of that Chapter (which includes Article 3) specifies what information must be included in passenger tickets, Sections II and III specify what information must be included in, respectively, baggage checks and air waybills for cargo. All three sections require, in identical terms, “[a] statement that the transportation is subject to the rules relating to liability established by this convention.” Articles 3(l)(eJ, 4(2)(h), 8(q). All three sections also provide, again in identical terms, that if the relevant document (ticket, baggage check, or air waybill) has not been delivered (or, in the case of air waybill, “made out”), the carrier “shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability.” Articles 3(2), 4(4), and 9. But, unlike Section I, Sections II and III also specifically impose the latter sanction for failure to include in the documents certain particulars, including (though not limited to) the notice of liability limitation. Sections II and III thus make doubly clear what the text of Article 3(2) already indicates: that delivery of a defective document is something quite different from failure to deliver a document. And given the parallel structures of these provisions it would be a flouting of the text to imply in Section I a sanction not only withheld there but explicitly granted elsewhere. When such an interpretation is allowed, the art of draftsmanship will have become obsolete.
Petitioners and the United States as amicus curiae seek to explain the variance between Section I and Sections II and III (as well as the clear text of Article 3) as a drafting error, and lead us through the labyrinth of the Convention’s drafting history in an effort to establish this point. It would be absurd, they urge, for defective notice to eliminate liability limits on baggage and air freight but not on personal injury and death. Perhaps not. It might have been thought, by the representatives from diverse countries who drafted the Convention in 1925 and 1929 (an era when even many States of this country had relatively low limits on wrongful-death recovery) that the $8,300 maximum liability established for personal injury or death was a “fair” recovery in any event, so that even if the defective notice caused the passenger to forgo the purchase of additional insurance, he or his heirs would be treated with rough equity in any event. Cf. C. McCormick, Law of Damages § 104 (1935) (“In about one-third of the states, a fixed limit upon the recovery under the Death Act is imposed in the statute. The usual limit is $10,000, but in some instances the maximum is $7,500 or $5,000”). Quite obviously, however, the limitation of liability for baggage and freight (about $16.50 per kilogram, see Article 22(2)) was not set with an eye to fair value (the very notion of a “fair” average value of goods per kilogram is absurd), but perhaps with an eye to fair level of liability in relation to profit on the carriage — so that the shipper of lost goods misled by the inadequate notice would not be compensated equitably. Another possible explanation for the difference in treatment is that the limitations on liability prescribed for baggage and freight are much more substantial and thus notice of them is much more important. They include not just a virtually nominal monetary limit, but also total exclusion of liability for “an error in piloting, in the handling of the aircraft, or in navigation.” Article 20. Or perhaps the difference in treatment can be traced to a belief that people were much more likely, if adequate notice was given, to purchase additional insurance on goods than on their own lives — not only because baggage and freight are lost a lot more frequently than passengers, but also because the Convention itself establishes, in effect, an insurance-purchasing counter at the airport for baggage and freight, providing that if the consignor makes “a special declaration of the value at delivery and has paid a supplementary sum if the case so requires,” the carrier will be liable for actual value up to the declared sum. Article 22(2); see also Articles 4(g), 8(to).
These estimations of what the drafters might have had in mind are of course speculation, but they suffice to establish that the result the text produces is not necessarily absurd, and hence cannot be dismissed as an obvious drafting error. We must thus be governed by the text — solemnly adopted by the governments of many separate nations — whatever conclusions might be drawn from the intricate drafting history that petitioners and the United States have brought to our attention. The latter may of course be consulted to elucidate a text that is ambiguous, see, e. g., Air France v. Saks, 470 U. S. 392 (1985). But where the text is clear, as it is here, we have no power to insert an amendment. As Justice Story wrote for the Court more than a century and a half ago:
“[T]o alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty. Neither can this Court supply a casus omissus in a treaty, any more than in a law. We are to find out the intention of the parties by just rules of interpretation applied to the subject matter; and having found that, our duty is to follow it as far as it goes, and to stop where that stops — whatever may be the imperfections or difficulties which it leaves behind.” The Amiable Isabella, 6 Wheat. 1, 71 (1821).
For the reasons given above, we agree with the opinion of the Supreme Court of Canada, see Ludecke v. Canadian Pacific Airlines, Ltd., 98 D. L. R. 3d 52 (1979), that the Warsaw Convention does not eliminate the limitation on damages for passenger injury or death as a sanction for failure to provide adequate notice of that limitation. Accordingly, we affirm the judgment of the District of Columbia Circuit.
So ordered.
The relevant portion of the Montreal Agreement provides:
“2. Each carrier shall, at the time of delivery of the ticket, furnish to each passenger whose transportation is governed by the Convention . . . the following notice, which shall be printed in type at least as large as 10 point and in ink contrasting with the stock on (i) each ticket; (ii) a piece of paper either placed in the ticket envelope with the ticket or attached to the ticket; or (iii) on the ticket envelope:
“ADVICE TO INTERNATIONAL PASSENGER ON LIMITATION OF LIABILITY
“Passengers on a journey involving an ultimate destination or a stop in a country other than the country of origin are advised that the provisions of a treaty known as the Warsaw Convention may be applicable to the entire journey, including any portion entirely within the country of origin or destination. For such passengers on a journey to, from, or with an agreed stopping place in the United States of America, the Convention and special contracts of carriage embodied in applicable tariffs provide that the liability of certain (name the carrier) and certain other[*] carriers parties to such special contracts for death of or personal injury to passengers is limited in most cases to proven damages not to exceed US $75,000 per passenger, and that this liability up to such limit shall not depend on negligence on the part of the carrier. For such passengers travelling by a carrier not a party to such special contracts or on a journey not to, from, or having an agreed stopping place in the United States of America, liability of the carrier for death or personal injury to passengers is limited in most cases to approximately US $8,290 or US $16,580.
“The names of Carriers parties to such special contracts are available at all ticket offices of such carriers and may be examined on request.
“Additional protection can usually be obtained by purchasing insurance from a private company. Such insurance is not affected by any limitation of the carrier’s liability under the Warsaw Convention or such special contracts of carriage. For further information please consult your airline or insurance company representative.
“[*] Either alternative may be used.” Aeronautical Statutes and Related Materials 515 (compiled by Office of General Counsel, CAB, 1974).
For a similar reason, we need not discuss Department of Transportation (formerly CAB) Economic Regulation Part 221, 14 CFR §221.175(a) (1988), which was originally promulgated in 1963, before the Montreal Agreement, and which contains a similar requirement of 10-point type. This imports no sanctions of its own except a civil penalty, see 49 U. S. C. App. § 1471. Thus, even if (per impossibile) the Executive Branch could unilaterally prescribe what adequate notice under an international treaty consists of, the sanction of invalidating the damages limitations would still be lacking.
Justice Beennan accuses us of being “disingenuous” in saying that this is the only possible reading of Article 3. In the single paragraph supporting this accusation, he offers two arguments to show that Article 3 is “surely susceptible,” post, at 137, of another interpretation. First, he thinks it “not at all unreasonable to read the term ‘passenger ticket,’ when used ... in Article 3(2)” to mean, not what it meant in Article 3(1), but rather to be a “shorthand for [the] longer phrase” consisting of all the requirements that Article 3(1) says a passenger ticket must contain. It seems to us that this suggested reading is unreasonable — not only because no sensible draftsman would use such strange “shorthand” instead of referring, in Article 3(2), to “such a passenger ticket” rather than simply “passenger ticket,” but also because the result produced by the suggested reading is nonsensical. The effect of the concurrence’s exegesis can be assessed by substituting for the phrase “the passenger ticket” in Article 3(2) the phrase “a regular passenger ticket” — by which we mean (as does the concurrence) a ticket in full compliance with Article 3(1). The first sentence of Article 3(2) then reads, in relevant part: “The . . . irregularity. . . of a regular passenger ticket shall not affect the existence or the validity of the contract of transportation.” The only way out of this absurdity is to posit that by “irregularity” Article 3(2) means something other than failure to comply with all the requirements of Article 3(1) — but there is no plausible “something other.”
Justice Brennan’s second argument is that the first sentence of Article 3(2) “quite clearly,” post, at 137 (emphasis in original), does not have the meaning we have described. As he reads that sentence, when it says that an irregular ticket “shall none the less be subject to the rules of this convention” it means to include among those “rules” the rule of the second sentence, that (as he interprets it) if a “regular passenger ticket” is not delivered the rule limiting liability does not apply. Though this is put forward as a separate argument, it obviously assumes the correctness of the first one, since if “passenger ticket” in the second sentence does not mean a “regular passenger ticket” the “rule” of that second sentence does not apply to the delivery of an “irregular” ticket, as opposed to the delivery of no ticket at all. Quite apart from that flaw, however, it is impossible to read the second sentence as setting forth a “rule” that is included among the “rules” referred to in the first sentence, because that second sentence begins with the word “Nevertheless,” It sets forth an exception to the operation of the first sentence — not a specification of something already included within it. The latter would be conveyed, not by a new sentence beginning “Nevertheless,” but by a new clause beginning “including the rule that.” As written, the second sentence plainly conveys the meaning that if the reason for the “absence” of a passenger ticket (covered by the first sentence) is that a passenger ticket was never delivered, the carrier shall “nevertheless” — despite the first sentence — be unable to avail himself of the rules excluding or limiting liability.
We may note that the alternative interpretation the concurrence believes it sees in the text — which would render the omission of any single particular listed in Article 3(1) a basis for imposing the sanction of the second sentence of Article 3(2) — is evidently not an interpretation that the concurrence itself is prepared to adopt, since it finds that to have been quite plainly rejected by the drafters. See post, at 146-147. Ultimately, then, even on its own terms the concurrence does not use the drafting history to resolve an ambiguity but rather to depart from any possible reading of the Treaty.
The relevant provisions of Sections II and III are as follows:
“SECTION II. BAGGAGE CHECK
“Article U
“(3) The baggage check shall contain the following particulars:
“(a) The place and date of issue;
“(b) The place of departure and of destination;
‘Yc) The name and address of the carrier or carriers;
“(d) The number of the passenger ticket;
“(e) A statement that delivery of the baggage will be made to the bearer of the baggage check;
“(f) The number and weight of the packages;
“(g) The amount of the value declared in accordance with article 22(2);
“(h) A statement that the transportation is subject to the rules relating to liability established by this convention.
“(4) The absence, irregularity, or loss of the baggage check shall not affect the existence or the validity of the contract of transportation which shall none the less be subject to the rules of this convention. Nevertheless, if the carrier accepts baggage without a baggage cheek having been delivered, or if the baggage check does not contain the particulars set out at (d), (f), and (h) above, the carrier shall not be entitled to avail himself of those provisions of the convention which exclude or limit his liability.
“SECTION III. AIR WAYBILL
“Article 8
“The air waybill shall contain the following particulars:
“(a) The place and date of its execution;
“(b) The place of departure and of destination;
“(c) The agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercies that right the alteration shall not have the effect of depriving the transportation of its international character.
“(d) The name and address of the consignor;
“(e) The name and address of the first carrier;
“(f) The name and address of the consignee, if the case so requires;
“(g) The nature of the goods;
“(h) The number of packages, the method of packing, and the particular marks or numbers upon them;
“(i) The weight, the quantity, the volume, or dimensions of the goods; “(j) The apparent condition of the goods and of the packing;
“(k) The freight, if it has been agreed upon, the date and place of payment, and the person who is to pay it;
“(l) If the goods are sent for payment on delivery, the price of the goods, and, if the case so requires, the amount of the expenses incurred; “(m) The amount of the value declared in accordance with article 22(2); “(n) The number of parts of the air waybill;
“(o) The documents handed to the carrier to accompany the air waybill; “(p) The time fixed for the completion of the transportation and a brief note of the route to be followed, if these matters have been agreed upon;
“(q) A statement that the transportation is subject to the rules relating to liability established by this convention.
“Article 9
“If the carrier accepts goods without an air waybill having been made out, or if the air waybill does not contain all the particulars set out in article 8 (a) to (i), inclusive, and (q), the carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability.”
Even if the text were less clear, its most natural meaning could properly be contradicted only by clear drafting history. It is interesting, therefore, that the concurrence, after performing the examination we consider inappropriate, concludes that it is “impossible to say with certainty what the treatymakers at Warsaw intended.” Post, at 146. One would think that would be enough to cause the concurrence to resort to the treaty’s text. Instead, however, the concurrence shifts to an entirely different mode of analysis — one that it could as well have employed at the outset were it not intent upon demonstrating the technique of pursuing drafting history to a dead end. In its last four pages, the concurrence assumes for the sake of argument that there is an “adequate notice” requirement in the Warsaw Convention — an assumption that it justifies by the fact that “[c]ourts in this country have generally read [such a] requirement into the Warsaw Convention.” Post, at 149. Of course they have read in such a requirement, and of course determining the validity of doing so — rather than assuming it — was the very reason we selected this case for review. The object of our granting writs of certiorari on points of statutory or treaty interpretation is to determine the correctness of fundamental points that lower courts have resolved, not to assume those points to be correct in order to decide particular cases on reasoning useless elsewhere. The concurrence’s analysis provides guidance in all cases where notice of liability limitation is provided in 8-point rather than 10-point type. Four-point type, we are told, “may well” yield a different result, see post, at 150— always assuming, of course (what the concurrence does not venture to decide) that the Convention contains an “adequate notice” requirement. As for 6-point type, we have no hint whether that might entail liability — if there is any liability for inadequate notice. We choose not to follow a mode of analysis that seems a wasteful expenditure of this Court’s time.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_usc2
|
28
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 28. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
DISTRICT OF COLUMBIA, Appellant, v. MERIT SYSTEMS PROTECTION BOARD, et al.
No. 84-5426.
United States Court of Appeals, District of Columbia Circuit.
Argued March 29, 1985.
Decided May 21, 1985.
William J. Earl, Asst. Corp. Counsel for the District of Columbia, Washington, D.C., with whom John H. Suda, Principal Deputy Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel for the District of Columbia, Washington, D.C., were on the brief, for appellant. Edward E. Schwab, Washington, D.C., entered an appearance for appellant.
Philip G. Sunderland, Washington D.C., with whom James M. Hecker, Washington D.C., was on the brief, for appellee Lee A. Lendt.
Joseph J. Ellis, Atty., Merit Systems Protection Bd., of the Bar of the Supreme Court of Virginia, pro hac vice by special leave of the Court, Washington, D.C., with whom Evangeline W. Swift, Gen. Counsel, and Mary J. Jennings, Associate Gen. Counsel, Merit Systems Protection Bd., Washington, D.C., were on the brief, for appellee Merit Systems Protection Bd.
Before WALD, MIKVA and STARR, Circuit Judges.
Opinion PER CURIAM.
PER CURIAM:
This appeal arises out of an apparent gap in the various statutes and agreements transferring District of Columbia employment matters from the federal personnel system to a newly created local system. In 1973, Congress directed the District to establish a local personnel system within five years that would replace the existing framework under which District employees were governed by the federal system. See District of Columbia Self-Government and Governmental Reorganization (Home Rule) Act, Pub.L. No. 93-198 § 422(3), 87 Stat. 774, 791 (1973). In 1978, the District enacted the Comprehensive Merit Personnel Act, D.C.Code § 1-601.1 et seq., which created the general framework for a local personnel system. The Personnel Act provides for appeal of local personnel actions to the District’s Office of Employee Appeals (OEA), see id. § l-606.3(a), and allows any employee or local agency to seek review of OEA decisions in the Superior Court of the District of Columbia, see id. at § 1-606.-3(d).
The District was unable to implement the OEA system until December 4, 1980. See generally id. § 1-637.1(f) (delaying the effective date of the OEA framework until the enactment of employee appeal regulations). In order to provide for administrative appeals of local personnel decisions in the interim between the enactment and the full implementation of the Personnel Act, the District contracted with the Merit Systems Protection Board (MSPB) to adjudicate local employee appeals from January 1, 1980 until the OEA became operational. See Agreement Between the District of Columbia and the Merit Systems Protection Board 1-2, Record Excerpts (“RE”) at 1-2 (Dec. 20,1979); see generally 31 U.S.C. § 1537(a)(1) (authorizing the District to delegate local functions to federal agencies under appropriate circumstances). The agreement provided that “[t]he final decision of the Merit Systems Protection Board in any appeal heard under the authority of this agreement shall constitute the final administrative decision of the District of Columbia government.” Agreement if 2, RE at 1-2.
On December 1, 1980, before the District implemented its OEA, Lee Lendt was terminated from his position in the District’s Department of Human Resources. Pursuant to the procedure specified in his separation notice, Lendt appealed his termination to the MSPB and, in the course of the MSPB proceeding, the District conceded error and rescinded his separation. Lendt then moved for, and received, an award of attorneys’ fees from the MSPB. See Lendt v. District of Columbia, 15 M.S.P.B. 779, slip op. at 2-5, RE at 11-14 (1983) (looking to the Back Pay Act, 5 U.S.C. § 5596, as authority for the fee award). The District then petitioned for review of the fee award in Superior Court under D.C.Code § 1-606.-3(d), the local law provision governing judicial review of OEA decisions. The District named the MSPB as the sole respondent, and the MSPB thereupon removed the action to federal district court. See 28 U.S.C. § 1442(a)(1).
In federal court, the MSPB moved to dismiss the District’s action on the ground that it was barred by sovereign immunity. Lendt moved to intervene as a defendant and submitted a separate motion to dismiss. He argued that the local law provision governing review of OEA decisions could not create local court jurisdiction for the District’s suit because the local statute did not become effective until after the employment action that gave rise to this dispute and because that statute provides judicial review for OEA, not MSPB, decisions. The district court granted both Lendt’s unopposed motion to intervene and the MSPB’s motion to dismiss. See District of Columbia v. MSPB, Civ. No. 83-2483 (D.D.C. Jan. 31, 1984). After ruling that sovereign immunity prevented the District from naming the MSPB as a respondent, the district court dismissed the entire action. See id., mem. op. at 5.
The District then petitioned the district court to amend its dismissal order by reinstating the review proceeding against intervenor-defendant Lendt and remanding the action to Superior Court. Without explanation, the district court declined to do so. See District of Columbia v. MSPB, Civ. No. 83-2483 (D.D.C. June 4, 1984) (Order). The District now appeals only the district court’s refusal to reinstate and remand to Superior Court a review proceeding naming Lendt as the respondent. See District’s Brief at 17; District’s Reply Brief at 2. We therefore have no occasion to review the district court’s conclusion that the District’s suit against the MSPB was barred by sovereign immunity and we express no view on that ruling.
The dispute underlying this appeal raises thorny questions concerning the District’s ability to seek judicial review of MSPB decisions made pursuant to the transitional agreement between the District and the MSPB. We need not and do not decide any of those questions today. Instead, the only issue in this appeal is whether the district court should have remanded the District’s proceeding against Lendt to Superior Court once it determined that the District could not name the MSPB as a respondent in an action to secure judicial review of the fee award. We conclude that the district court should have done so.
Lendt sought intervention in this case under Rule 24 of the Federal Rules of Civil Procedure which provides intervention of right for any interested person “so situated that the disposition of the action may, as a practical matter, impair or impede [her] ability to protect [her interest in the underlying dispute] unless the applicant’s interest is adequately represented by existing parties.” Fed.R.Civ.P. 24(a)(2). Intervenors under Rule 24(a)(2) assume the status of full participants in a lawsuit and are normally treated as if they were original parties once intervention is granted. See, e.g., United States v. Oregon, 657 F.2d 1009, 1014 (8th Cir.1981); Marcaida v. Briscoe, 569 F.2d 828, 831 (5th Cir.1978); 7A C. Wright & A. Miller, Federal Practice and Procedure § 1920 (1972 & Supp.1984); 3B Moore’s Federal Practice U 24.16[6] (2d ed. 1985). By successfully intervening, a party makes herself “vulnerable to complete adjudication by the federal court of the issues in litigation between the intervenor and the adverse party.” 3B Moore’s Federal Practice § 24.16[6], at 181; cf. Wheeler v. American Home Prods. Corp., 582 F.2d 891, 896 (5th Cir.1977).
We see no reason to depart from the general rule here. Lendt intervened as a defendant in order to make additional arguments in support of dismissal, arguments that he would have presumably raised in Superior Court as well. He filed a substantial motion to dismiss and assumed an active role in defending his interests in the underlying controversy which, he asserted, were substantially different from those of the MSPB. See Memorandum in Support of Motion to Intervene As a Defendant at 4-5, RE at 33-34 (Oct. 12, 1983). The “price” of such intervention, we believe, is the possibility that the plaintiff will be able to obtain relief against the intervenor-defendant even if the original defendant is eliminated from the lawsuit.
Because Lendt assumed the status of an original party upon intervention, the district court was obliged to dispose of the District’s review action against Lendt once it determined that the MSPB could not be named as a respondent in this dispute. In its motion to remand, the District argued that its attempt to secure judicial review of Lendt’s fee award presented a question of local law properly resolved in Superior Court. The dismissal of the District’s claim against the MSPB, in other words, eliminated the sole basis for removal jurisdiction and left the district court with a local law claim for judicial review in local court over which it could not have exercised original jurisdiction. Under these circumstances, we believe that the district court should have remanded the District’s remaining claim against Lendt to Superior Court.
When federal parties remove an action under section 1442(a)(1), the federal court assumes jurisdiction over all the claims and parties in the case regardless of whether the federal court could have assumed original jurisdiction over the suit. See, e.g., 1A Moore’s Federal Practice 110.164[1], at 385-87. If the federal party is eliminated from the suit after removal under this provision, the district court does not lose its ancillary or pendent-party jurisdiction over the state law claims against the remaining non-federal parties. See, e.g., IMFC Professional Servs., Inc. v. Latin Am. Home Health, Inc., 676 F.2d 152, 158-59 (5th Cir.1982); Watkins v. Grover, 508 F.2d 920, 921 (9th Cir.1975); Peroff v. Manuel, 421 F.Supp. 570, 576 (D.D.C.1976). Instead, the district court retains the power either to adjudicate the underlying state law claims or to remand the case to state court. See, e.g., IMFC, 676 F.2d at 160; Peroff, 421 F.Supp. at 576-77; 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3727, at 462; 1A Moore’s Federal Practice 110.164[1], at 387-89; cf. 28 U.S.C. § 1441(c) (providing discretion to remand or to adjudicate pendent state law claims when removal is premised on the existence of federal claims).
In this case, Lendt raised a substantial argument that the District cannot obtain judicial review of his fee award in Superior Court under local law, an argument that the district court did not address. See supra p. 131. Although the district court never actually determined whether to remand or to entertain this challenge to local court jurisdiction, we believe that a remand to Superior Court is the appropriate course of action under the circumstances of this ease. Lendt’s jurisdictional challenge presents a complex question of purely local law: whether the Personnel Act can be interpreted to provide for judicial review of employee appeals decided under the District’s transitional agreement with the MSPB. Moreover, the federal party was eliminated from this case well before any proceedings concerning either Lendt’s separate jurisdictional challenge or the merits, so that judicial economy or fairness to the parties will not be sacrificed by a remand to local court. In this context, federal courts in this circuit and elsewhere regularly remand cases removed under section 1442(a)(1) once the federal party is eliminated. See, e.g., District of Columbia v. Moxley, 471 F.Supp. 777, 784 (D.D.C.1979); Peroff, 421 F.Supp. at 576; Givoh Assocs. v. American Druggists Ins. Co., 562 F.Supp. 1346 (S.D.N.Y.1983); Boyer v. Regli, 510 F.Supp. 1078, 1080 (E.D.Pa.1982); see also IMFC, 676 F.2d at 160 (suggesting that failure to remand under these circumstances may constitute an abuse of discretion); cf. United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139-40, 16 L.Ed.2d 218 (1966) (counselling against the assertion of pendent claim jurisdiction over difficult state law questions when federal claims are dismissed well before trial).
Because the federal party was eliminated shortly after removal and because the District’s action against Lendt implicates complex local law questions, we believe that a prompt remand to local court will best serve the interests of comity, fairness and judicial economy here. Cf. Noxell Corp. v. Firehouse No. 1 Bar-B-Que Restaurant, 760 F.2d 312, 317 (D.C.Cir.1985) (ordering dismissal for improper venue rather than remanding for a district court determination of whether dismissal or transfer was appropriate). We therefore reverse the district court’s dismissal order as applied to Lendt and remand to the district court with instructions to remand the District’s remaining action against Lendt to Superior Court.
So Ordered.
. In its petition for review of the MSPB decision in Superior Court, the District argued that the MSPB lacked the authority to award attorneys’ fees against the District because the Personnel Act made the federal Back Pay Act inapplicable to District employees and no other provision in local law authorized attorneys’ fees in employment actions. See Sup.Ct.R. Item 1; see generally D.C.Code § l-633.2(a)(5)(G) (superseding 5 U.S.C. § 5596 for District employees).
. Section 1442(a)(1) provides that "[a]ny officer of the United States or any agency thereof, or person acting under him” can remove a state court action to federal court. 28 U.S.C. § 1442(a)(1). Although this removal provision arguably refers only to individual federal officers, courts have generally interpreted the statute broadly to allow federal agencies to remove when sued in state courts. See, e.g., IMFC Professional Servs., Inc. v. Latin Am. Home Health, Inc., 676 F.2d 152 (5th Cir.1982); James River Apartments, Inc. v. Federal Housing Administration, 136 F.Supp. 24 (D.Md.1955); cf. Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 1816, 23 L.Ed.2d 396 (1969) (dicta).
. Section 1-606.3 provides in relevant part that:
Any employee or agency may appeal the decision of the [OEA] to the Superior Court of the District of Columbia for a review of the record and such Court may affirm, reverse, remove or modify such decisions, or take any other appropriate action as the Court may deem necessary.
D.C.Code § l-606.3(d).
. We do not believe that the district court's summary denial of the District’s motion to reinstate and remand its action against Lendt can be read as an implicit substantive ruling that local courts in fact lack this jurisdiction under local law. Instead, it seems clear that the district court (erroneously) assumed that the entire action must be dismissed once it determined that the District could not sue the MSPB in order to obtain judicial review of Lendt’s fee award.
. Lendt also argues that the MSPB is an "indispensable party” under Rule 19(b) of the Federal Rules of Civil Procedure to any action in local court challenging the propriety of his fee award. Under this view, the District’s remaining review action against Lendt must be dismissed given the district court’s ruling that the MSPB cannot be named as a respondent in this case. Whether the MSPB is an indispensable party to a local court review proceeding, however, presents a question of local law properly resolved after remand in Superior Court. See generally D.C. Super.Ct.R.Civ.P. 19 (describing joinder of the persons needed for just adjudication); Flack v. Lasher, 417 A.2d 393 (D.C.1980) (interpreting the indispensable party requirement in local law).
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 28. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_partywinning
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
NIXON v. FITZGERALD
No. 79-1738.
Argued November 30, 1981
Decided June 24, 1982
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Rehnquist, Stevens, and O’Connor, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 758. White, J., filed a dissenting opinion, in which Brennan, Marshall, and Blackmun, JJ., joined, post, p. 764. Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 797.
Herbert J. Miller, Jr., argued the cause for petitioner. With him on the briefs was R. Stan Mortenson.
John E. Nolan, Jr., argued the cause for respondent. With him on the brief were Samuel T. Perkins and Arthur B. Spitzer.
Louis Alan Clark filed a brief for the Government Accountability Project of the Institute for Policy Studies as amicus curiae urging affirmance.
Briefs of amici curiae were filed by Solicitor General Lee for the United States; by Roger J. Marzulla and William H. Mellor III for the Mountain States Legal Foundation; by John C. Armor and H. Richard Mayberry for the National Taxpayers Legal Fund, Inc.; and by Thomas J. Madden for Senator Orrin G. Hatch et al.
Justice Powell
delivered the opinion of the Court.
The plaintiff in this lawsuit seeks relief in civil damages from a former President of the United States. The claim rests on actions allegedly taken in the former President’s official capacity during his tenure in office. The issue before us is the scope of the immunity possessed by the President of the United States.
I
In January 1970 the respondent A. Ernest Fitzgerald lost his job as a management analyst with the Department of the Air Force. Fitzgerald’s dismissal occurred in the context of a departmental reorganization and reduction in force, in which his job was eliminated. In announcing the reorganization, the Air Force characterized the action as taken to promote economy and efficiency in the Armed Forces.
Respondent’s discharge attracted unusual attention in Congress and in the press. Fitzgerald had attained national prominence approximately one year earlier, during the waning months of the Presidency of Lyndon B. Johnson. On November 13,1968, Fitzgerald appeared before the Subcommittee on Economy in Government of the Joint Economic Committee of the United States Congress. To the evident embarrassment of his superiors in the Department of Defense, Fitzgerald testified that cost-overruns on the C-5A transport plane could approximate $2 billion. He also revealed that unexpected technical difficulties had arisen during the development of the aircraft.
Concerned that Fitzgerald might have suffered retaliation for his congressional testimony, the Subcommittee on Economy in Government convened public hearings on Fitzgerald’s dismissal. The press reported those hearings prominently, as it had the earlier announcement that his job was being eliminated by the Department of Defense. At a news conference on December 8, 1969, President Richard Nixon was queried about Fitzgerald’s impending separation from Government service. The President responded by promising to look into the matter. Shortly after the news conference the petitioner asked White House Chief of Staff H. R. Halde-man to arrange for Fitzgerald’s assignment to another job within the administration. It also appears that the President suggested to Budget Director Robert Mayo that Fitzgerald might be offered a position in the Bureau of the Budget.
Fitzgerald’s proposed reassignment encountered resistance within the administration. In an internal memorandum of January 20, 1970, White House aide Alexander Butterfield reported to Haldeman that “‘Fitzgerald is no doubt a top-notch cost expert, but he must be given very low marks in loyalty; and after all, loyalty is the name of the game.’” Butterfield therefore recommended that “‘[w]e should let him bleed, for a while at least.’ ” There is no evidence of White House efforts to reemploy Fitzgerald subsequent to the Butterfield memorandum.
Absent any offer of alternative federal employment, Fitzgerald complained to the Civil Service Commission. In a letter of January 20, 1970, he alleged that his separation represented unlawful retaliation for his truthful testimony before a congressional Committee. The Commission convened a closed hearing on Fitzgerald’s allegations on May 4, 1971. Fitzgerald, however, preferred to present his grievances in public. After he had brought suit and won an injunction, Fitzgerald v. Hampton, 152 U. S. App. D. C. 1, 467 F. 2d 755 (1972), public hearings commenced on January 26, 1973. The hearings again generated publicity, much of it devoted to the testimony of Air Force Secretary Robert Seamans. Although he denied that Fitzgerald had lost his position in retaliation for congressional testimony, Seamans testified that he had received “some advice” from the White House before Fitzgerald’s job was abolished. But the Secretary declined to be more specific. He responded to several questions by invoking “executive privilege.”
At a news conference on January 31, 1973, the President was asked about Mr. Seamans’ testimony. Mr. Nixon took the opportunity to assume personal responsibility for Fitzgerald’s dismissal:
“I was totally aware that Mr. Fitzgerald would be fired or discharged or asked to resign. I approved it and Mr. Seamans must have been talking to someone who had discussed the matter with me. No, this was not a case of some person down the line deciding he should go. It was a decision that was submitted to me. I made it and I stick by it.”
A day later, however, the White House press office issued a retraction of the President’s statement. According to a press spokesman, the President had confused Fitzgerald with another former executive employee. On behalf of the President, the spokesman asserted that Mr. Nixon had not had “put before him the decision regarding Mr. Fitzgerald.”
After hearing over 4,000 pages of testimony, the Chief Examiner for the Civil Service Commission issued his decision in the Fitzgerald case on September 18, 1973. Decision on the Appeal of A. Ernest Fitzgerald, as reprinted in App. 60a. The Examiner held that Fitzgerald’s dismissal had offended applicable civil service regulations. Id., at 86a-87a. The Examiner based this conclusion on a finding that the departmental reorganization in which Fitzgerald lost his job, though purportedly implemented as an economy measure, was in fact motivated by “reasons purely personal to” respondent. Id., at 86a. As this was an impermissible basis for a reduction in force, the Examiner recommended Fitzgerald’s reappointment to his old position or to a job of comparable authority. The Examiner, however, explicitly distinguished this narrow conclusion from a suggested finding that Fitzgerald had suffered retaliation for his testimony to Congress. As found by the Commission, “the evidence of record does not support [Fitzgerald’s] allegation that his position was abolished and that he was separated... in retaliation for his having revealed the C-5A cost overrun in testimony before the Prox-mire Committee on November 13, 1968.” Id., at 81a.
Following the Commission’s decision, Fitzgerald filed a suit for damages in the United States District Court. In it he raised essentially the same claims presented to the Civil Service Commission. As defendants he named eight officials of the Defense Department, White House aide Alexander Butterfield, and “one or More” unnamed “White House Aides” styled only as “John Does.”
The District Court dismissed the action under the District of Columbia’s 3-year statute of limitations, Fitzgerald v. Seamans, 384 F. Supp. 688 (DC 1974), and the Court of Appeals affirmed as to all but one defendant, White House aide Alexander Butterfield, Fitzgerald v. Seamans, 180 U. S. App. D. C. 75, 553 F. 2d 220 (1977). The Court of Appeals reasoned that Fitzgerald had no reason to suspect White House involvement in his dismissal at least until 1973. In that year, reasonable grounds for suspicion had arisen, most notably through publication of the internal White House memorandum in which Butterfield had recommended that Fitzgerald at least should be made to “bleed for a while” before being offered another job in the administration. Id., at 80, 84, 553 F. 2d, at 225, 229. Holding that concealment of illegal activity would toll the statute of limitations, the Court of Appeals remanded the action against Butterfield for further proceedings in the District Court.
Following the remand and extensive discovery thereafter, Fitzgerald filed a second amended complaint in the District Court on July 5, 1978. It was in this amended complaint— more than eight years after he had complained of his discharge to the Civil Service Commission — that Fitzgerald first named the petitioner Nixon as a party defendant. Also included as defendants were White House aide Bryce Harlow and other officials of the Nixon administration. Additional discovery ensued. By March 1980, only three defendants remained: the petitioner Richard Nixon and White House aides Harlow and Butterfield. Denying a motion for summary judgment, the District Court ruled that the action must proceed to trial. Its order of March 26 held that Fitzgerald had stated triable causes of action under two federal statutes and the First Amendment to the Constitution. The court also ruled that petitioner was not entitled to claim absolute Presidential immunity.
Petitioner took a collateral appeal of the immunity decision to the Court of Appeals for the District of Columbia Circuit. The Court of Appeals dismissed summarily. It apparently did so on the ground that its recent decision in Halperin v. Kissinger, 196 U. S. App. D. C. 285, 606 F. 2d 1192 (1979), aff’d in pertinent part by an equally divided Court, 452 U. S. 713 (1981), had rejected this claimed immunity defense.
As this Court has not ruled on the scope of immunity available to a President of the United States, we granted certio-rari to decide this important issue. 452 U. S. 959 (1981).
II
Before addressing the merits of this case, we must consider two challenges to our jurisdiction. In his opposition to the petition for certiorari, respondent argued that this Court is without jurisdiction to review the nonfinal order in which the District Court rejected petitioner’s claim to absolute immunity. We also must consider an argument that an agreement between the parties has mooted the controversy.
A
Petitioner invokes the jurisdiction of this Court under 28 U. S. C. § 1254, a statute that invests us with authority to review “[cjases in” the courts of appeals. When the petitioner in this case sought review of an interlocutory order denying his claim to absolute immunity, the Court of Appeals dismissed the appeal for lack of jurisdiction. Emphasizing the “jurisdictional” basis for the Court of Appeals’ decision, respondent argued that the District Court’s order was not an appealable “case” properly “in” the Court of Appeals within the meaning of § 1254. We do not agree.
Under the “collateral order” doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), a small class of interlocutory orders are immediately appealable to the courts of appeals. As defined by Cohen, this class embraces orders that “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978); see Cohen, supra, at 546-547. As an additional requirement, Cohen established that a collateral appeal of an interlocutory order must “presen[t] a serious and unsettled question.” 337 U. S., at 547. At least twice before this Court has held that orders denying claims of absolute immunity are appealable under the Cohen criteria. See Helstoski v. Meanor, 442 U. S. 500 (1979) (claim of immunity under the Speech and Debate Clause); Abney v. United States, 431 U. S. 651 (1977) (claim of immunity under Double Jeopardy Clause). In previous cases the Court of Appeals for the District of Columbia Circuit also has treated orders denying absolute immunity as appealable under Cohen. See Briggs v. Goodwin, 186 U. S. App. D. C. 179, 227-229, 569 F. 2d 10, 58-60 (1977) (Wilkey, J., dissenting on the appealability issue); McSurely v. McClellan, 172 U. S. App. D. C. 364, 372, 521 F. 2d 1024, 1032 (1975), aff’d in pertinent part en banc, 180 U. S. App. D. C. 101, 107-108, n. 18, 553 F. 2d 1277, 1283-1284, n. 18 (1976), cert. dism’d sub nom. McAdams v. McSurely, 438 U. S. 189 (1978).
In “dismissing” the appeal in this case, the Court of Appeals appears to have reasoned that petitioner’s appeal lay outside the Cohen doctrine because it raised no “serious and unsettled question” of law. This argument was pressed by the respondent, who asked the Court of Appeals to dismiss on the basis of that court’s “controlling” decision in Halperin v. Kissinger, supra.
Under the circumstances of this case, we cannot agree that petitioner’s interlocutory appeal failed to raise a “serious and unsettled” question. Although the Court of Appeals had ruled in Halperin v. Kissinger that the President was not entitled to absolute immunity, this Court never had so held. And a petition for certiorari in Halperin was pending in this Court at the time petitioner’s appeal was dismissed. In light of the special solicitude due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers, see United States v. Nixon, 418 U. S. 683, 691-692 (1974), we conclude that petitioner did present a “serious and unsettled” and therefore appealable question to the Court of Appeals. It follows that the case was “in” the Court of Appeals under § 1254 and properly within our certio-rari jurisdiction.
B
Shortly after petitioner had filed his petition for certiorari in this Court and respondent had entered his opposition, the parties reached an agreement to liquidate damages. Under its terms the petitioner Nixon paid the respondent Fitzgerald a sum of $142,000. In consideration, Fitzgerald agreed to accept liquidated damages of $28,000 in the event of a ruling by this Court that petitioner was not entitled to absolute immunity. In case of a decision upholding petitioner’s immunity claim, no further payments would be made.
The limited agreement between the parties left both petitioner and respondent with a considerable financial stake in the resolution of the question presented in this Court. As we recently concluded in a case involving a similar contract: “Given respondents’ continued active pursuit of monetary relief, this case remains ‘definite and concrete, touching the legal relations of parties having adverse legal interests.’” Havens Realty Corp. v. Coleman, 455 U. S. 368, 371 (1982), quoting Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240-241 (1937).
Ill
A
This Court consistently has recognized that government officials are entitled to some form of immunity from suits for civil damages. In Spalding v. Vilas, 161 U. S. 483 (1896), the Court considered the immunity available to the Postmaster General in a suit for damages based upon his official acts. Drawing upon principles of immunity developed in English cases at common law, the Court concluded that “[t]he interests of the people” required a grant of absolute immunity to public officers. Id., at 498. In the absence of immunity, the Court reasoned, executive officials would hesitate to exercise their discretion in a way “injuriously affect[ing] the claims of particular individuals,” id., at 499, even when the public interest required bold and unhesitating action. Considerations of “public policy and convenience” therefore compelled a judicial recognition of immunity from suits arising from official acts.
“In exercising the functions of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint.” Id., at 498.
Decisions subsequent to Spalding have extended the defense of immunity to actions besides those at common law. In Tenney v. Brandhove, 341 U. S. 367 (1951), the Court considered whether the passage of 42 U. S. C. § 1983, which made no express provision for immunity for any official, had abrogated the privilege accorded to state legislators at common law. Tenney held that it had not. Examining § 1983 in light of the “presuppositions of our political history” and our heritage of legislative freedom, the Court found it incredible “that Congress... would impinge on a tradition so well grounded in history and reason” without some indication of intent more explicit than the general language of the statute. Id., at 376. Similarly, the decision in Pierson v. Ray, 386 U. S. 547 (1967), involving a § 1983 suit against a state judge, recognized the continued validity of the absolute immunity of judges for acts within the judicial role. This was a doctrine “‘not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.’ ” Id., at 554, quoting Scott v. Stansfield, L. R. 3 Ex. 220, 223 (1868). See Bradley v. Fisher, 13 Wall. 335 (1872). The Court in Pierson also held that police officers are entitled to a qualified immunity protecting them from suit when their official acts are performed in "good faith.” 386 U. S., at 557.
In Scheuer v. Rhodes, 416 U. S. 232 (1974), the Court considered the immunity available to state executive officials in a § 1983 suit alleging the violation of constitutional rights. In that case we rejected the officials’ claim to absolute immunity under the doctrine of Spalding v. Vilas, finding instead that state executive officials possessed a “good faith” immunity from § 1983 suits alleging constitutional violations. Balancing the purposes of § 1983 against the imperatives of public policy, the Court held that “in varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based.” 416 U. S., at 247.
As construed by subsequent cases, Scheuer established a two-tiered division of immunity defenses in § 1983 suits. To most executive officers Scheuer accorded qualified immunity. For them the scope of the defense varied in proportion to the nature of their official functions and the range of decisions that conceivably might be taken in “good faith.” This “functional” approach also defined a second tier, however, at which the especially sensitive duties of certain officials— notably judges and prosecutors — required the continued recognition of absolute immunity. See, e. g., Imbler v. Pachtman, 424 U. S. 409 (1976) (state prosecutors possess absolute immunity with respect to the initiation and pursuit of prosecutions); Stump v. Sparkman, 435 U. S. 349 (1978) (state judge possesses absolute immunity for all judicial acts).
This approach was reviewed in detail in Butz v. Econo mou, 438 U. S. 478 (1978), when we considered for the first time the kind of immunity possessed by federal executive officials who are sued for constitutional violations. In Butz the Court rejected an argument, based on decisions involving federal officials charged with common-law torts, that all high federal officials have a right to absolute immunity from constitutional damages actions. Concluding that a blanket recognition of absolute immunity would be anomalous in light of the qualified immunity standard applied to state executive officials, id., at 504, we held that federal officials generally have the same qualified immunity possessed by state officials in cases under § 1983. In so doing we reaffirmed our holdings that some officials, notably judges and prosecutors, “because of the special nature of their responsibilities,” id., at 511, “require a full exemption from liability.” Id., at 508. In Butz itself we upheld a claim of absolute immunity for administrative officials engaged in functions analogous to those of judges and prosecutors. Ibid. We also left open the question whether other federal officials could show that “public policy requires an exemption of that scope.” Id., at 506.
B
Our decisions concerning the immunity of government officials from civil damages liability have been guided by the Constitution, federal statutes, and history. Additionally, at least in the absence of explicit constitutional or congressional guidance, our immunity decisions have been informed by the common law. See Butz v. Economou, supra, at 508; Imbler v. Pachtman, supra, at 421. This Court necessarily also has weighed concerns of public policy, especially as illuminated by our history and the structure of our government. See, e. g., Butz v. Economou, supra, at 508; Imbler v. Pachtman, supra, at 421; Spalding v. Vilas, 161 U. S., at 498.
This case now presents the claim that the President of the United States is shielded by absolute immunity from civil damages liability. In the case of the President the inquiries into history and policy, though mandated independently by our cases, tend to converge. Because the Presidency did not exist through most of the development of common law, any historical analysis must draw its evidence primarily from our constitutional heritage and structure. Historical inquiry thus merges almost at its inception with the kind of “public policy” analysis appropriately undertaken by a federal court. This inquiry involves policies and principles that may be considered implicit in the nature of the President’s office in a system structured to achieve effective government under a constitutionally mandated separation of powers.
<
Here a former President asserts his immunity from civil damages claims of two kinds. He stands named as a defendant in a direct action under the Constitution and in two statutory actions under federal laws of general applicability. In neither case has Congress taken express legislative action to subject the President to civil liability for his official acts.
Applying the principles of our cases to claims of this kind, we hold that petitioner, as a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts. We consider this immunity a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history. Justice Story’s analysis remains persuasive:
“There are... incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are confided to it. Among these, must necessarily be included the power to perform them.... The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office; and for this purpose his person must be deemed, in civil cases at least, to possess an official inviolability.” 3 J. Story, Commentaries on the Constitution of the United States § 1563, pp. 418-419 (1st ed. 1833).
A
The President occupies a unique position in the constitutional scheme. Article II, § 1, of the Constitution provides that “[t]he executive Power shall be vested in a President of the United States....” This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. These include the enforcement of federal law — it is the President who is charged constitutionally to “take Care that the Laws be faithfully' executed”; the conduct of foreign affairs — a realm in which the Court has recognized that “[i]t would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret”; and management of the Executive Branch — a task for which “imperative reasons re-quir[e] an unrestricted power [in the President] to remove the most important of his subordinates in their most important duties.”
In arguing that the President is entitled only to qualified immunity, the respondent relies on cases in which we have recognized immunity of this scope for governors and cabinet officers. E. g., Butz v. Economou, 438 U. S. 478 (1978); Scheuer v. Rhodes, 416 U. S. 232 (1974). We find these cases to be inapposite. The President’s unique status under the Constitution distinguishes him from other executive officials.
Because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government. As is the case with prosecutors and judges— for whom absolute immunity now is established — a President must concern himself with matters likely to “arouse the most intense feelings.” Pierson v. Ray, 386 U. S., at 654. Yet, as our decisions have recognized, it is in precisely such cases that there exists the greatest public interest in providing an official “the maximum ability to deal fearlessly and impartially with” the duties of his office. Ferri v. Ackerman, 444 U. S. 193, 203 (1979). This concern is compelling where the officeholder must make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system. Nor can the sheer prominence of the President’s office be ignored. In view of the visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages. Cognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.
B
Courts traditionally have recognized the President’s constitutional responsibilities and status as factors counseling judicial deference and restraint. For example, while courts generally have looked to the common law to determine the scope of an official’s evidentiary privilege, we have recognized that the Presidential privilege is “rooted in the separation of powers under the Constitution.” United States v. Nixon, 418 U. S., at 708. It is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States. See, e. g., United States v. Nixon, supra; United States v. Burr, 25 F. Cas. 187, 191, 196 (No. 14,694) (CC Va. 1807); cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). But our cases also have established that a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. See Nixon v. Administrator of General Services, 433 U. S. 425, 443 (1977); United States v. Nixon, supra, at 703-713. When judicial action is needed to serve broad public interests — as when the Court acts, not in derogation of the separation of powers, but to maintain their proper balance, cf. Youngstown Sheet & Tube Co. v. Sawyer, supra, or to vindicate the public interest in an ongoing criminal prosecution, see United States v. Nixon, supra — the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President’s official acts, we hold it is not.
c
In defining the scope of an official’s absolute privilege, this Court has recognized that the sphere of protected action must be related closely to the immunity’s justifying purposes. Frequently our decisions have held that an official’s absolute immunity should extend only to acts in performance of particular functions of his office. See Butz v. Economou, 438 U. S., at 508-517; cf. Imbler v. Pachtman, 424 U. S., at 430-431. But the Court also has refused to draw functional lines finer than history and reason would support. See, e. g., Spalding v. Vilas, 161 U. S., at 498 (privilege extends to all matters “committed by law to [an official’s] control or supervision”); Barr v. Matteo, 360 U. S. 564, 575 (1959) (fact “that the action here taken was within the outer perimeter of petitioner’s line of duty is enough to render the privilege applicable.. Stump v. Sparkman, 435 U. S., at 363, and n. 12 (judicial privilege applies even to acts occurring outside “the normal attributes of a judicial proceeding”). In view of the special nature of the President’s constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the “outer perimeter” of his official responsibility.
Under the Constitution and laws of the United States the President has discretionary responsibilities in a broad variety of areas, many of them highly sensitive. In many cases it would be difficult to determine which of the President’s innumerable “functions” encompassed a particular action. In this case, for example, respondent argues that he was dismissed in retaliation for his testimony to Congress — a violation of 5 U. S. C. §7211 (1976 ed., Supp. IV) and 18 U. S. C. § 1505. The Air Force, however, has claimed that the underlying reorganization was undertaken to promote efficiency. Assuming that petitioner Nixon ordered the reorganization in which respondent lost his job, an inquiry into the President’s motives could not be avoided under the kind of “functional” theory asserted both by respondent and the dissent. Inquiries of this kind could be highly intrusive.
Here respondent argues that petitioner Nixon would have acted outside the outer perimeter of his duties by ordering the discharge of an employee who was lawfully entitled to retain his job in the absence of “ ‘such cause as will promote the efficiency of the service.’ ” Brief for Respondent 39, citing 5 U. S. C. § 7512(a). Because Congress has granted this legislative protection, respondent argues, no federal official could, within the outer perimeter of his duties of office, cause Fitzgerald to be dismissed without satisfying this standard in prescribed statutory proceedings.
This construction would subject the President to trial on virtually every allegation that an action was unlawful, or was taken for a forbidden purpose. Adoption of this construction thus would deprive absolute immunity of its intended effect. It clearly is within the President’s constitutional and statutory authority to prescribe the manner in which the Secretary will conduct the business of the Air Force. See 10 U. S. C. § 8012(b). Because this mandate of office must include the authority to prescribe reorganizations and reductions in force, we conclude that petitioner’s alleged wrongful acts lay well within the outer perimeter of his authority.
V
A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President’s traditional concern for his historical stature.
The existence of alternative remedies and deterrents establishes that absolute immunity will not place the President “above the law.” For the President, as for judges and prosecutors, absolute immunity merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends.
VI
For the reasons stated in this opinion, the decision of the Court of Appeals is reversed, and the case is remanded for action consistent with this opinion.
So ordered.
See Economies of Military Procurement: Hearings before the Subcommittee on Economy in Government of the Joint Economic Committee, 90th Cong., 2d Sess., pt. I, pp. 199-201 (1968-1969). It is not disputed that officials in the Department of Defense were both embarrassed and angered by Fitzgerald’s testimony. Within less than two months of respondent’s congressional appearance, staff had prepared a memorandum for the outgoing Secretary of the Air Force, Harold Brown, listing three ways in which Fitzgerald might be removed from his position. See App. 209a-211a (memorandum of John Lang to Harold Brown, Jan. 6, 1969). Among these was a “reduction in force” — the means by which Fitzgerald ultimately was removed by Brown’s successor in office under the new Nixon administration. The reduction in force was announced publicly on November 4, 1969, and Fitzgerald accordingly was separated from the Air Force upon the elimination of his job on January 5, 1970.
See The Dismissal of A. Ernest Fitzgerald by the Department of Defense: Hearings before the Subcommittee on Economy in Government of the Joint Economic Committee, 91st Cong., 1st Sess. (1969). Some 60 Members of Congress also signed a letter to the President protesting the “firing of this dedicated public servant” as a “punitive action.” Id., at 115-116.
A briefing memorandum on the Fitzgerald matter had been prepared by White House staff in anticipation of a possible inquiry at the forthcoming press conference. Authored by aide Patrick Buchanan, it advanced the view that the Air Force was “firing... a good public servant.” App. 269a (memorandum of Patrick Buchanan to Richard Nixon, Dec. 5, 1969). The memorandum suggested that the President order Fitzgerald's retention by the Defense Department.
Id., at 228a.
See id., at 109a-112a (deposition of H. R. Haldeman); id., at 137a-141a (deposition of petitioner Richard Nixon). Haldeman’s deposed testimony was based on his handwritten notes of December 12, 1969. Id., at 275a.
See id., at 126a (deposition of Robert Mayo); id., at 141a (deposition of Richard Nixon).
Both Mayo and his deputy, James Schlesinger, appear to have resisted at least partly due to a suspicion that Fitzgerald lacked institutional loyalty to executive policies and that he spoke too freely in communications with friends on Capitol Hill. Both also stated that high-level positions were presently unavailable within the Bureau of the Budget. See id., at 126a (deposition of Robert Mayo); id., at 146a-147a (deposition of James Schlesinger).
Quoted in Decision on the Appeal of A. Ernest Fitzgerald (Sept. 18, 1973) (CSC Decision), reprinted in App. 60a, 84a. (Page citations to the CSC Decision refer to the cited page in the Joint Appendix.)
Id., at 85a. The memorandum added that “‘[w]e owe “first choice on Fitzgerald” to [Senator] Proxmire and others who tried so hard to make him a hero [for exposing the cost overruns].’ ” Suspicion of Fitzgerald’s assumed loyalty toward Senator Proxmire was widely shared in the White House and in the Defense Department. According to the CSC Decision, supra:
“While Mr. Fitzgerald has denied that he was ‘Senator Proxmier’s [sic] boy in the Air Force’, and he may honestly believe it, we find this statement difficult to accept. It is evident that the top officials in the Air Force, without specifically saying so, considered him to be just that.... We also note that upon leaving the Air Force Mr. Fitzgerald was employed as a consultant by the Proxmire Committee and that Senator Proxmire appeared at the Commission hearing as a character witness for [Fitzgerald].” App. 83a.
Id., at 61a.
See id., at 83a-84a.
See ibid.
Id., at 185a. A few hours after the press conference, Mr. Nixon repeated privately to Presidential aide Charles Colson that he had ordered Fitzgerald’s firing. Id., at 214a-215a (recorded conversation of Jan. 31, 1973).
Id., at 196a (transcription of statement of White House press secretary Ronald Ziegler, Feb. 1, 1973). In a conversation with aide John Ehrliehman, following his conversation
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
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