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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 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.
LADREY et al. v. UNITED STATES.
No. 9069.
United States Court of Appeals District of Columbia.
Argued March 25, 1946.
Decided May 20, 1946.
Messrs. Joseph A. McMenamin and Robert I. Miller, both of Washington, D. C., for appellants.
Mr. Sidney S. Sachs, Assistant United States Attorney, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney, and Cecil R. Heflin, Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellee.
Before GRONER, Chief Justice, and WILBUR K. MILLER and PRETTY-MAN, Associate Justices.
WILBUR K. MILLER, Justice.
In October, 1943, the grand jury in the District Court of the United States for the District of Columbia indicted Dr. Henry M. Ladrey for criminal abortion alleged to have been performed on one Hazel Queenan. While that charge was pending against him, Dr. Ladrey and his wife, Eva W. Ladrey, were indicted jointly, in January, 1944, under Title 22, § 701, District of Columbia Code (1940) , it being charged that they had offered Hazel Queenan a bribe of $260 to refrain from testifying against Ladrey in the abortion case. Having been convicted of the attempted bribery, Dr. Ladrey and wife appeal.
The appellants assign as error the following :
(a) improper argument to the jury by the attorney for the United States,
(b) admission of evidence concerning the performance of an abortion on Hazel Queenan,
(c) admission of evidence concerning statements made by Eva W. Ladrey out of the presence of Henry M. Ladrey,
(d) refusal to direct a verdict of not guilty as to Henry M. Ladrey at the close of the evidence for the United States, and at the conclusion of all the evidence.
Obviously, the alleged errors summarized above as (c) and (d) have to do only with the case against Henry M. Ladrey. The appellant, Eva W. Ladrey, necessarily must rely upon alleged errors (a) and (b)..
Hazel Queenan lived at 2310 Georgia Avenue, N. W., which is near the comer of Georgia Avenue and Trumbull Street in the District of Columbia. She testified that on the evening of January 6th, 1944, defendant Eva Ladrey came to her house and asked her if she was ready. Hazel Queenan replied that she was not as she had to attend a meeting that evening. Eva Ladrey then stated that she would return the following evening. In the meantime Hazel Queenan communicated with Sergeant Scott of the Metropolitan Police Department and on the evening of the 7th, when Eva Ladrey returned, police sergeants Scott and Crooke were concealed in the house where they could hear what was said in the front room.
. Eva Ladrey appeared, pursuant to the appointment, and talked with Hazel Quee-nan in the front room within the hearing of the officers. Witnesses for the government said she told Hazel Dr. Ladrey had sent her, and that he wanted her to make arrangements to drop the charges which had been entered against him as a result of the abortion; that she'would pay her $100 then and, after she had left, they would give her another $100 plus the $60 which she had paid as the fee for the operation. Eva opened her pocketbook and displayed an envelope which she said contained $100.
The two officers testified that they then entered the room and one asked Eva her name, to which she responded that she was Mrs. Wilkins. The officer said, “Now, Dr. Ladrey sent you up here, is that right, to make arrangements for this girl to drop the case?” She answered, “That is right.” The officer said, “Well, I heard you offer her $60 and expenses to go away if she would drop the case, is that right?” She answered, “Yes.” Thereupon the police placed Eva under arrest but, before taking her to the station, decided to look around in the vicinity to see if anybody was there who had brought Eva to the place. As they started to the nearby corner of 6th and Trumbull Streets, Eva said, “Well, I will tell you, I am Mrs. Ladrey. Dr. Ladrey is waiting at 6th and Trumbull for me.” They proceeded to that corner and found Dr. Ladrey standing near an automobile. One of the officers informed him of his wife’s statement that he had sent her there to offer the girl money to drop the charge, and asked if that were true. Ladrey replied, “Yes, I did bring her up here. I didn’t know what she was going to do and I didn’t know where she was going.” At the time of her arrest Eva’s purse contained an envelope in which were bills aggregating $100.
At the trial Ladrey denied that he took his wife to a point near the Queenan home or that he had told the officers he had done so. On the contrary, he said that he had not seen his wife since early morning. He declared that he had never discussed the abortion case with Eva, but there is evidence that his wife knew Hazel Queenan had paid the doctor $60 for the operation. Other circumstances appeared which we think it unnecessary to summarize.
Alleged error (a) — improper argument to the jury by the prosecuting attorney. We have carefully examined the transcript of that part of the argument of the assistant United States attorney of which complaint is made. The prosecutor did no more than to suggest to the jury that one who has theretofore borne a good reputation may commit a crime; that is, that proof of a good reputation is not a complete defense. We see no impropriety in that argument.
Alleged error (b) — admission of evidence concerning the performance of an abortion on Hazel Queenan. The appellants urge that it was improper and prejudicial for the court to permit Hazel Queenan to testify concerning the illegal operation she said Ladrey performed on her. They say that this was evidence of an offense for which they were not on trial. In the case before us, which is the bribery charge, it was proper to admit evidence of the attempt to bribe, and, as well, evidence tending to show that Hazel Queenan was a material witness in the abortion case. Her testimony concerning the operation was limited to statements to the effect that she was the person upon whom the operation had been performed, and statements showing the nature of the operation. This was no more than the bare necessity of the case for the prosecution required. Consequently it was not error to receive it.
As the errors assigned which concern the conviction of Eva Ladrey are without substance, the judgment against her is affirmed.
Alleged error (c) — admission of evidence concerning statements made by Eva W. Ladrey out of the presence of Dr. Ladrey. The appellants contend that evidence concerning the statements made to Hazel Queenan by Eva Ladrey were not admissible against Henry M. Ladrey because they were not made in his presence. Those statements include the offer of the bribe to Hazel Queenan, the actual overt act. Consequently, if evidence of these statements was not admissible against Henry M. Ladrey, he was entitled to a directed verdict in his favor.
The officers testified that Ladrey said he had let his wife out of his car at Georgia Avenue and Trumbull Street but that he did not know where she was going or what she was going to do. On the witness stand he denied having made that statement and said he had not seen Eva since early morning. In response to the question “Do you know how she happened to bring the officers around to 6th and Trumbull Streets when she was arrested ?” he said, “I don’t— if she brought them there.” Yet he later testified to having arranged to meet his wife that evening at approximately that spot.
The jurors had a right to believe the statements of the officers as to what Lad-rey said to them, and they could well have regarded as incredible the declaration of a man who lived in Alexandria, Virginia, that he had let his wife out of the car in the darkness of a winter evening at Georgia Avenue and Trumbull Street, some miles from their residence, but that he did not know where she was going or what she was going to do.
If the jurors were satisfied that false statements were made by Ladrey, they were justified in regarding those statements as in themselves tending to show guilt and the existence of a conspiracy. The evidence that Ladrey took his wife to a point near the scene of her attempt at bribery, that after her arrest he was found with his car parked at a nearby corner, that he made a statement so incredible as to be prima facie false, and conflicting statements as well, together with the fact that Ladrey had a strong motive to eliminate the Queenan woman as a witness, tended to show there was a secret combination or conspiracy between Ladrey and his wife, it being immaterial that the indictment did not specifically charge that they had conspired.
Since facts and circumstances, other than the statements and acts of Eva Ladrey, were shown from which it could be concluded that a conspiracy in fact existed, the evidence of Hazel Queenan and the police sergeants concerning the declarations of Eva Ladrey was admissible against Henry M. Ladrey under the general rule.
Alleged error (d) — refusal to direct a verdict of not guilty as to Henry M. Ladrey at the close of the evidence for the United States, and at the conclusion of all the evidence. By introducing evidence in his own behalf, Henry M. Ladrey waived the right to insist upon his motion for a directed verdict of not guilty at the end of the evidence for the United States. His contention that a verdict in his favor should have been directed at the conclusion of all the evidence must be denied. As we have pointed out in discussing alleged error (c), the proof was sufficient to justify the conclusion that a conspiracy existed. Eva Ladrey’s declarations and acts at the Queenan house, as well as her statements immediately after her arrest, were therefore competent against her husband.
With those declarations and acts included in the evidence against Ladrey, there was enough proof to justify submitting the case against him to the jury, and to sustain the verdict of guilty which was found. Our Code obliterates the former distinction between principals and accessories before the facts. In the case of Maxey v. United States, this court dealt with a factual situation not unlike that present here. In that case the accessory was not personally present inciting the principal to or aiding in the performance of the criminal act. All that was necessary, we said in that case, was to prove facts and circumstances from which it might be inferred, with sufficient certainty, that the accessory abetted the performance of the criminal act in such a way as to constitute him a principal offender under the section of the Code just cited. One who procures, commands, advises, instigates or incites the commission of an offense, though not personally present at its commission, is, by the common law, an accessory before the fact. The Code provision makes all such persons principals.
As we have seen, there was sufficient evidence to justify the jury’s conclusion that Ladrey was an accessory before the fact. He was therefore properly found guilty as a principal.
Affirmed.
22 — 701 [6:134]. Whoever promises, offers, or gives, or causes or procures to be promised, offered, or given, any money or other thing of value, or makes or tenders any contract, undertaking, obligation, credit, or security for the payment of money, or for the delivery or conveyance of anything of value, to any executive, judicial, or other officer, or to any person acting in any official function, or to any juror or witness, with intent to influence the decision, action, verdict, or evidence of any such person on any question, matter, cause, or proceeding or with intent to influence him to commit or aid in committing, or to collude in or allow any fraud, or make any opportunity for the commission of any fraud, shall be fined not more than five hundred dollars, or be imprisoned not more than three years, or both. (Mar. 3, 1901, 31 Stat. 1330, ch. S54, § 861.)”
Wilson v. United States, 162 U.'S. 613, 620,16 S.Ct. 895, 40 L.Ed. 1090.
Motive becomes a strong circumstance for consideration where the defendant is held as an accessory. Shiflett v. Commonwealth, 151 Va. 556, 145 S.E. 336.
St. Clair v. United States, 154 U.S. 134, 149, 14 S.Ct. 1002, 38 L.Ed. 936.
American Fur Co. v. United States, 2 Pet. 358, 365, 7 L.Ed. 450. In this case the Supreme Court said: “Where two or more persons are associated together for the same illegal purpose, any act or declaration of one of the parties, in reference to the common object, and forming a part of the res gestee, may be given in evidence against the others.” See also St. Clair v. United States, supra; Wiborg v. United States, 163 U.S. 632, 16 S.Ct. 1127, 1197, 41 L.Ed. 289.
Perovich v. United States, 205 U.S. 86, 27 S.Ct. 456, 51 L.Ed. 722; Murray v. United States, 53 App.D.C. 119, 126, 288 F. 1008.
Title 22, § 105, District of Columbia Code (1940).
“§ 22 — 105 [6:5]. In prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes, whatever the punishment may be. (Mar. 3, 1901, 31 Stat. 1337, ch. 854, § 90S.)”
30 App.p.C. 63.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
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sc_decisiondirection
|
B
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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.
UNITED STATES v. FIRST CITY NATIONAL BANK OF HOUSTON et al.
No. 914.
Argued February 20-21, 1967.
Decided March 27, 1967.
Assistant Attorney General Turner argued the cause for the United States in both cases. With him on the brief were Solicitor General Marshall and Richard A. Posner.
David T. Searls argued the cause for appellees First City National Bank of Houston et al. in No. 914. With him on the brief were Harry M. Reasoner, Leon M. Payne and William R. Lummis. Frederic L. Ballard argued the cause for appellees Provident National Bank et al. in No. 972. With him on the brief were Charles I. Thompson, Jr., Tyson W. Coughlin and Richard C. Bull. Eugene J. Metzger in No. 914 and Joseph J. O’Malley in No. 972 argued the- cause for appellee Comptroller of the Currency. With them on the brief were Robert Bloorh, Charles H. McEnerney, Jr., and Philip L. Roache, Jr.
Together with No. 972, United States v. Provident National Bank et al., on appeal from the United States District Court for the Eastern District- of Pennsylvania, argued February 21, 1967.
Mr. Justice Douglas
delivered the opinion of the Court.
These civil suits were filed by the United States under § 7 of the Clayton Act, 38 Stat. 731, as amended, 64 Stat. 1125, 15 U. S. C. § 18, to prevent two bank mergers — one in Texas between the First City National Bank of Houston and the Southern National Bank of Houston, and one in Pennsylvania between the Provident National Bank and the Central Penn National Bank, both in Philadelphia.
The Comptroller of the Currency approved the mergers under the Bank Merger Act of 1966, 80 Stat. 7,12 U. S. C. § 1828 (e) (1964 ed., Supp. II). The United States thereupon brought these suits in the respective District Courts and the Comptroller intervened in them. The District Courts dismissed the complaints. No. 914 (unreported) ; No. 972, 262 F. Supp. 397. The United States appealed, 32 Stat. 823, as amended, 15 U. S. C. § 29, and we noted probable jurisdiction, 385 U. S. 1023, 1024.
I. ■
It is suggested that the complaints are defective in that they fail to state that the actions are brought under the Bank Merger Act of 1966, do not even mention the Act, and that, therefore, these cases should be remanded to allow the Government to amend the complaints.
The Bank Merger Act of 1966 provides that “[a]ny action brought under the antitrust laws” shall be brought within a specified time (12 U. S. C. § 1828 (c)(7)(A)); it also specifies the standards to be applied by a court in a judicial proceeding challenging a bank merger “on the ground that the merger . . . constituted a violation of any antitrust laws other than section 2 of [the Sherman Act]” (12 U. S. C. § 1828 (c)(7)(B)); and it provides immunity from such an attack if those standards are met. Section 1828 (c)(8) provides that, “[f]or the purposes of [§ 1828 (c) ], the term ‘antitrust laws’ means . . . [the Sherman Act, the Clayton Act], and any other Acts in pari materia.” (Emphasis added.) Thus, an action challenging a bank merger on the ground of its anticompeti-tive effects is brought under the antitrust laws. Once an action - is brought under the antitrust laws, the Bank Merger Act provides a new defense or justification to the merger’s proponents — “that the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.” 12 U. S. C. § 1828 (c)(5)(B). There is no indication that an action challenging a merger on the ground of its anticompetitive effects is bottomed on the Bank Merger. Act rather than on the antitrust, laws. What is apparent is that Congress intended that a defense or justification be available once it had been determined that a transaction would have anticompetitive effects, as judged by the standards normally applied in antitrust actions. Thus, the Government’s failure to base the actions on the Bank Merger Act of 1966 does not constitute a defect in its pleadings. Nor is the Government’s failure to mention the Bank Merger Act fatal, for, as we shall see, the offsetting community “convenience and needs,” as, specified in 12 U. S. C. § 1828 (c)(5)(B), must be pleaded and proved by the defenders of the merger.
. - n.
An application for approval of- the Texas merger was made to the Comptroller of the Currency pursuant to 12 U. S. C. § 1828 (c)(5)(B), which provides that he shall not approve the merger “whose effect in any section of*the country may be substantially to lessen competition, or to tend to create a monopoly, or which in any other manner would be-in restraint of trade, unless [he] finds that the - anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.” Requests were made of the Attorney General and the Federal Reserve Board pursuant to 12 U. S. C. § 1828 (c) (4) for their views- and both submitted reports to the Comptroller that the merger would have serious anticompetitive effects. The Comptroller nonetheless approved it.
The same procedure was followed in the Pennsylvania case, and the Attorney General and Federal Reserve, submitted adverse reports. Nonetheless the Comptroller approved this merger also. And, as we have said, these civil suits were instituted to enjoin the mergers under § 7 of the Clayton Act.
Section 7 of the Clayton^ Act condemns mergers where “the effect of such acquisition may be substantially to lessen competition.” The Bank Merger Act of 1966 did not change that standard or the machinery for obtaining the prior approval of the Comptroller and a preliminary expression of views by the Attorney General and the Federal Reserve, but it added an additional standard for the Comptroller. Section 1828 (c)(5)(B) says, as already noted, that no merger shall be approved where the effect “may be substantially to lessen competition” unless the responsible agency, in this case the Comptroller, “finds that the anti-competitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.” And that subsection goes on to say: “In every case, the responsible agency shall take into consideration the financial and managerial resources and future prospects of the existing and proposed institutions, and the convenience and needs of the community! to be served.”
Section 1828 (c) (7) (B) provides that in a judicial proceeding attacking a merger on the ground that it violates the antitrust laws “the standards applied by the court shall be identical with” those the banking agencies must apply. Arid 12 U. S. C. § 1828 (c)(7)(A) states that “In any such action, the court shall review de novo the issues presented.” (Emphasis added.)
Section 1828 (c)(7)(A) also provides that the commencement of an antitrust action in the courts “shall stay the effectiveness of the agency’s approval unless the court shall otherwise specifically order.”
It is around these new provisions of the 1966 Aet and their interplay with §.7 of the Clayton Act that the present controversy turns.
First is the question whether the burden of proof is on the defendant banks to establish that an anticom-petitive merger is within the exception of 12 U, 8. C. § 1828 (c) (5) (B) or whether it is on the Government. We think it plain that the banks carry , the burden.' That is the general rule where one claims the benefits of an exception to the prohibition of a statute, Federal Trade Commission v. Morton Salt Co., 334 U. S. 37, 44-45. The House Report (No. 1221, 89th Cong., 2d Sess.) makes clear that antitrust standards were the norm and anticompetitive bank mergers, the exception: “. . . the bill acknowledges that the general principle of the antitrust- laws — that substantially anticompetitive mergers are prohibited — applies to banks, but permits an exception in cases where it is clearly shown that a given merger is so beneficial to the convenience and needs of the community to be served . . . that it would be in the public interest to permit it ” (Emphasis added.) Id., at 3-4.
The sponsor of the bill that was finally enacted, Congressman Patman, flatly stated: “It should be clearly noted that the burden of establishing such 'convenience and needs' is on the banks seeking to merge; and when we say clearly outweighed we mean outweighed' by the preponderance of the evidence.” 112 Cong. Rec.' 2333-2334 (Feb. 8, 1966).
We therefore disagree with the views ■ of the lower courts to the contrary. *
This problem is, of course, subtly merged with the question whether judicial review of the Comptroller’s decision is in the category of other administrative rulings which are sustained unless a court is persuaded that the agency’s action is clearly unsupported or not supported by substantial evidence.
The 1966 Act was the product of powerful contending forces, each of which in the aftermath claimed more of a victory than it deserved, leaving the controversy that finally abated in Congress to be finally resolved in the courts. So far as review of administrative agency action is concerned, we have only this to say. Prior to the 1966 Act administrative approval of bank mergers was necessary. Yet in an antitrust action later brought to enjoin them we never stopped to consider what weight, if any, the agency’s determination should have in the antitrust case. See United States v. Philadelphia National Bank, 374 U. S. 321; United States v. First Nat. Bank, 376 U. S. 665. Traditionally in antitrust actions involving regulated industries, the courts have never given presumptive weight to a prior agency decision, for the simple reason that Congress put such suits on a different axis than was familiar in administrative procedure. United States v. Radio Corporation of America, 358 U. S. 334; United States v. El Paso Natural Gas Co., 376 U. S. 651; United States v. Philadelphia National Bank, supra; United States v. First Nat. Bank, supra. We have found no indication that Congress designed judicial review differently under the 1966 Act than had earlier obtained.
In fact, as already noted, “the standards applied by the court shall be identical with those that the banking agencies are directed to apply.” 12 U. S. C. § 1828 (c) (7)(B). This language does not express the conventional standard, i. e., whether the agency’s action is supported by substantial evidence. In the latter instance it is the agency’s function to determine whether the law has been violated, while it is the court’s function to ascertain whether, absent error in statutory construction, the agency’s action has substantial support in the evidence.
There is no indication that Congress took that course here. Indeed the 1966 Act provides that the court in an antitrust action “shall review de novo the issues presented.” (Emphasis added.) 12 U. S. C. § Í828 (c)(7)(A). It is argued that the use of the word “review” rather than “trial” indicates a more limited scope to judicial action. The words “review” and “trial” might conceivably be used interchangeably. The critical words seem to us to be “de novo” and “issues presented.” They mean to us that the court should make an independent determination of the issues. Congressman Patman, the Chairman of the House Committee that drafted the Act, in speaking of this de novo review, said that the court would “completely and On its own make a determination as to whether the challenged bank merger should .be approved under the standard set forth in paragraph 5 (B) of the bill.” He added that the “court is not to give any special weight to the determination of the bank supervisory agency on this, issue.” 112 Cong.' Rec. 2335 (Feb. 8, 1966). Indeed the momentum of judicial precedents is in .that direction. For immunity from antitrust laws “is not lightly implied.” California v. Federal Power Commission, 369 U. S. 482, 485. And .the grant of administrative power to give immunity unless the agency's decision is arbitrary; 'capricious, or unsupported by substantial evidence, would be a long step in that direction. • Moreover, the Comptrollér’s action is informal, no hearings in the customary sense having been held prior to the 1966 Act (United States v. Philadelphia National Bank, supra, at 351) and none being required by Congress in the 1966 Act. We would therefore have to assume that Congress made a revolutionary innovation by making administrative action well nigh conclusive, even though no hearing had been held and no record in the customary sense created.
The courts may find the Comptroller’s reasons persuasive or well nigh conclusive. But it is the court’s judgment, not the Comptroller’s, that finally determines whether the merger is legal. That was the practice prior to the 1966 Act; and we cannot find a purpose on the part of Congress to change the rule. This conclusion does not raise serious constitutional questions by making the courts perform non judicial tasks. The “rule of reason,” long prevalent in the antitrust field (see, e. g., Chicago Board of Trade v. United States, 246 U. S. 231), has been administered by the courts. A determination of tiie effect on competition within the meaning of § 7 of the Clayton Act is a familiar judicial task. The area of “the convenience and needs of the community to be served,” now in focus as part of the defense under the 1966 Act, is related, though perhaps remotely, to the failing-company, doctrine, long known to the courts in antitrust merger cases. United States v. Diebold, Inc., 369 U. S. 654. The appraisal of competitive factors is grist for the antitrust mill. See, e. g., United States v. Philadelphia National Bank, supra, 357-367. The courts are not left at-large as planning agencies. The effect on competition is the standard; and it is a familiar one. If the anticompeti-tive effect is adverse, then it is to be excused only if “the convenience and needs of the community to be served” clearly outweigh it. We see no problems in bringing these standards into the area of judicial competence. There are no constitutional problems here not present in the “rule of reason” cases.
There is left only the stay issue; As we have seen, the 1966 Act provides that a timely antitrust action “shall stay the effectiveness of the agency’s approval unless the court shall otherwise specifically order.” 12 U. S. C. § 1828 (c)(7)(A). The lower courts dissolved the statutory stays on dismissing the antitrust suits.
Our remand will direct that the stays continue until the hearings below are completed and any appeal is had. A stay of course is not mandatory under any and all circumstances. But absent a frivolous complaint by the United States, which we presume will be infrequent, a stay is essential until the judicial remedies have been exhausted. The caption of the 1966 Act states that it is designed “[t]o establish a procedure for the review of proposed bank mergers so as to eliminate the necessity for the dissolution of merged banks.” Moreover, bank mergers may not, absent emergency conditions, be consummated until 30 days after approval by the Comptroller in order to enable the Attorney General to commence an antitrust action, 12 U. S. C. § 1828 (c)(6), which, apart from emergency situations, must be started within 30 days of the agency’s approval, 12 U. S. C. § 1828 (c)(7)(A). The legislative history is replete with references to the difficulty of unscrambling two or more banks after their merger. The normal procedure therefore should be maintenance of the status quo until the antitrust litigation has run its course, lest consummation take place and the unscrambling process that Congress abhorred in the case of banks be necessary.
Reversed.
Mr. Justice Clark took no part in the consideration or decision of these cases.
12 U. S. C. §1828 (e)(5)(B) provides, as we have seen, that a merger shall not be approved “whose effect.in any section of the country may be substantially to lessen competition.” It is pointed out that that standard omits the phrase “in-any line of commerce” which is present in § 7 of the Clayton Act. It is argued that Con-' gress meant that commercial banking is no longer to be considered as an area of effective competition and that the Act establishes in banking “a market test measürable only by larger commercial realities.”
We do not reach this question and we intimate no opinion on it nor any views on the merits of these mergers or on the justifications that are urged in their support. All questions except the procedural ones treated in the opinion are reserved.
The Chairman of the Federal Reserve System testified in the hearings that preceded enactment of the Bank Merger Act of 1966 that “a Federal court order cannot recreate the two banks that formerly existed .... [N]o matter how one may feel about whether the merger should have taken place in the first instance, there is no turning back. To unscramble the resulting bank clearly'poses serious problems not only for the bank but for its customers and the community.” Hearings on S. 1698 and related bills before the Subcommittee on Domestic Finance of the Hous§. Committee on Banking and Currency, 89th Cong., 1st Sess., 11. The president of the American Bankers Association declared that “ ‘[u]nmerging’ a bank after the two banks have operated as a single unit is nightmarish even in the abstract.” Hearings on S. 1698 before a Subcommittee of the Senate Committee on Banking and Currency, 89th Cong., 1st Sess., 63.. Senator Robertson stated, “you are dealing with a physical impossibility,” and “the community gets hurt,” when divestiture is attempted in a bank merger case. Id., at 4. Senator Proxmire spoke of “the agony and the inequity and the financial loss, disruption of the economy in the community, of being required . . . to unscramble.” Id., at 202.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
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.
PARKER-WASHINGTON CO. v. KANSAS CITY, MO., et al.
No. 8643.
Circuit Court of Appeals, Eighth Circuit.
March 20, 1930.
Byron Spencer, of Kansas City, Mo. (R. E. Ball, of Hermosa Beach, Cal., and H. M. Langworthy, and Frank H. Terrell, both of Kansas City, Mo., on the brief), for appellant.
William F. Woodruff, of Kansas City, Mo. (B. Denny Davis and Spencer A. Gard, both of Kansas City, Mo., on the brief), for appellees.
Before VAN VALKENBURGH and BOOTH, Circuit Judges, and DEWEY, District Judge.
DEWEY, District Jfidge.
The action is in equity to establish” and foreclose a vendor’s lien for an alleged unpaid part of the purchase price of certain real estate.
Appellant, the Parker-Washington Company, hereinafter referred to as the plaintiff, on and prior to the 18th day of June, 1923, was the owner of certain real estate located in the city of Kansas City, Mo. On that date- it sold this real estate to Harry J. Nicholas, appellee, herein referred to as the defendant.
The contract of sale, in so far as material in this suit, is as follows:
“This contract made and entered into this 18th day of June, 1923, by and between the Parker-Washington Company, a Corporation, the seller, and Harry J. Nicholas, the buyer, witnesseth:
“The seller has sold and agrees to convey as herein provided to said Harry J. Nicholas * * * the following described real estate in Jackson county, Mo., to-wit: * * *
“Said property is sold to the buyer at and for the price and sum of $30,000.00, which sum is to be paid in the following manner, to-wit: $500 in cash at the signing of this contract, the receipt whereof is hereby acknowledged by the seller, which sum is deposited with the Parker-Washington Company of Kansas City, Mo., as a part of the consideration of said sale.
“The purchaser is to take the title of said property subject to the liens of certain tax bills issued to pay for the construction of the Turkey Creek Sewer, and the face amount of said special tax bills unpaid shall be deducted from said purchase price. Making a price net to the Parker-Washington Company of $10,839.28.
“At the time of delivery of deed as herein provided the buyer shall pay to the seller such sum as represents the difference between $5,500 and the face amount of annual installment ($4,790.18) which shall be due on said Turkey Creek Sewer tax bill June 30, 1923, or $709.82. * * *
“For the balance of said purchase price the buyer is to execute four promissory notes secured by deed of trust upon the real estate above described, bearing six per cent per annum interest, payable semi-annually as follows :
“One note $1,209.82, due June 15, 1924; one note $1,209.82, due June 15, 1925; one note $1,209.82, due June 15, 1926; one note $6,000, due June 15,1927.
“The seller is to pay all state, county and municipal taxes, general and special and all assessments which are a lien on said property that can be paid at the date of this contract, save and except the Turkey Creek Sewer bills . above mentioned, which are to be paid by the buyer when due. * * *
“In witness whereof said parties hereunto subscribe their names. Executed in duplicate. (Signed) - The Parker-Washington Company by F. P. McCormick, Vice Pres. Harry J. Nicholas.”
On July 9, 1923, the plaintiff executed and delivered warranty deeds to defendant Nicholas, and Nicholas paid the cash and executed and delivered the notes and deed of trust in accordance with the written contract.
The warranty deeds contained the following provision: “This conveyance is' made subject to any legally created and existing easement of right of way over any portions of said property. Subject also to lease of American Aggregate Company of November 1,1919, and special tax bills issued for building of Turkey Creek Sewer, and state, school and county taxes for the year 1924.”
All deferred payments represented by notes were paid when due.
The Turkey Creek tax bills referred to in the contract were issued and delivered to the contractor who built the sewer, or his assignee, February 23, 1923. There were two tax bills; one, No. 3336, for $6,414.28, and another, No. 3337, for $12,546.44, an aggregate of $19,160.72. These tax bills were payable in four equal annual installments; the first installment being due June 30, 1923. The first installment of the tax bills, due June 30,1923, was paid by Nicholas July 10, 1923.
In 1924 the city council of the city of Kansas City took steps to construct two large improvement projects, one known as the Goose Neck sewer and the other as the Blue River sewer, each to cost from two and a half million to three million dollars. The cost of the construction of the Turkey Creek sewer improvement was $3,000,000. The plan which the city proposed and which was carried out, first, by amendment to the Constitution of the state on February 26, 1924, and later by a city ordinance approved April 14, 1924, was to issue bonds of the city, the proceeds thereof to be used in payment of the cost of the Goose Neck and Blue River sewer projects, and, evidently to equalize this situation, there was included in the plan the issuance of additional bonds in the sum of $3,000,000, to reimburse owners of real estate for payments and assessments made for the Turkey Creek sewer improvement.
Pursuant to the plan, the city in 1925 paid and thereby released the lien of the three installments of the Turkey Creek sewer tax bills which were not paid by the defendant, and now holds the first installment of $4,790.18, paid by the defendant Nicholas, to await the result of this suit.
No claim is made that either of the parties at the time they entered into the contract of sale, or at the time the deeds were executed, knew, or had any information, that the city was contemplating paying the expense of new sewers proposed and reimbursed and releasing assessments made for the payment of the Turkey Creek sewer.
Plaintiff seeks to recover from the defendant Nicholas, as a part of the purchase price of the real estate sold to him, the sum of $14,370.54, and for an order directing the city to pay to it the first installment of $4,-790.18, which had been paid by the defendant Nicholas, and is still in the hands of the city to be paid to the person entitled thereto. The trial court resolved the case in favor of the defendant.
It is the contention of the plaintiff that the purchase price of the real estate, $30,000, has not been paid to it in full; that it was the intention of the parties, as shown by the written contract, and in the light of the parol evidence introduced, that the part of the purchase price in an amount equal to the special tax bills was left in the hands of the vendee, as an agent, to pay the tax bills, and that defendant was and is a constructive trustee for plaintiff in handling the money set aside to pay the special tax bills in question; also that he is entitled to recover by reason of a mistake of fact.
The rights and obligations of the parties are fixed and established by the intention of the parties with reference to the payment of the taxes at the time of sale; and the following rule can be fairly deduced from the authorities :
In the absence of fraud or an express or implied agreement to the contrary, a vendee taking title to real estate subject to a valid lien thereon which is not the personal obligation of the vendor, and as a present payment on the purchase price, cannot later, in the event such lien is paid or discharged by a third party, be held for that part of the purchase price represented by the lien which was so paid or discharged. Vorchetto v. Sappenfield (K. C. Appeals, Mo., March 4, 1929) 14 S.W.(2d) 685; Dux v. Blomstrom, 70 Ill. App. 62, affirmed 175 Ill. 435, 51 N. E. 755; James v. Schmidt (City Ct. Brook.) 2 N. Y. S. 649; Allez v. Morales, 111 Misc. Rep. 139, 180 N. Y. S. 915; Cross v. Hayes, 45 N. J. Law, 12, affirmed 45 N. J. Law, 565; Tetzner v. Wulf, 93 Wash. 160, 160 P. 289; Miller v. Barler, 89 Tex. 264, 34 S. W. 601.
The contract states that “the purchaser is to take the title subject to the liens of certain tax bills issued to pay for the construction of the Turkey Creek Sewer, and the face amount of said special tax bills unpaid shall be deducted from said purchase price, making the price net to The Parker-Washington Company of $10,839.28.”
Words could hardly be found to more clearly express the intention of the parties. The statement in the contract that “the property is sold to the buyer at and for the price and sum of $30,000” is not in conflict with the above provision, but states the value fixed by the parties for which settlement is to be made in accordance with the later terms of the agreement as above set out.
There is a later provision in the contract that “the Turkey Creek Sewer bills above mentioned are to be paid by the buyer when due.” Here again we do not have any direct conflict with the above provision that the tax bills are to be deducted from the purchase price, as the contract must be considered in its entirety, and the agreement of the buyer to pay the sewer tax bills when they are due does not conflict with the statement in the contract that they are deducted from the purchase price.
The tax bills were not a personal obligation of the vendor for which it could he called upon to pay in the event they were not paid by the vendee.
The oral evidence introduced by the plaintiff, aside from evidence as to values, and as bearing upon the intention of the parties, is the testimony of the president of the plaintiff company, Mr. McCormick, to the effeet that, in a conversation he had with Mr. Nicholas prior to entering into the written contract, the latter agreed that he would pay the tax bills. This is in the written contract.
The vendee did agree to pay the tax liens, but he did not agree to pay them as a debt of, or for and on behalf of, the vendor, or in any other way agree to hold the money in his hands for and on behalf of the vendor, or’ to pay as his agent.
As there is no claim of fraud or misrepresentation, the actual value of the property at the time of the sale, as well as the actual or constructive increase in value of thé property by the improvement for which the special tax was levied, are immaterial, as the parties had equal knowledge regarding those matters.
We agree with the lower court that, on consideration of the contract in its entirety, there is no ambiguity with reference to the intention of the parties as to the method in which settlement was to be made under the sale contract, and that such settlement has been made by the purchaser as provided by the terms of such written contract.
The agreement is quite different from cases where the purchase money is left with the vendee to pay off an invalid lien under the mutual mistake of its being a valid lien, Lounsbury v. Potter, 37 N. Y. Super. Ct. 57; or under an express or implied agreement that money retained by the vendee was to be paid to the vendor unless used to pay certain liens, Walter v. Johnson, 2 Nev. 354; Boyle v. Rowland, 3 Desaus. (S. C.) 555; or eases where the vendee, as part of the purchase price, promised but did not pay an indebtedness of the vendor, Bray v. Booker, 8 N. D. 347, 79 N. W. 293; Evans v. See, 23 Pa. 88; or where expressly or impliedly a party in paying off incumbrances acted as agent for the vendor, Koch v. Roth, 150 Ill. 212, 37 N. E. 317; Phelps v. Reeder, 39 Ill. 172.
Nor can there be any mistake of fact in this ease, as the parties at the time of the making of the contract did not know that the tax bills were to be paid by public funds. To warrant relief for a mistake, it must be a past or present fact material to the contract. There was no mistake here as to any past or present fact. The lien for the special assessment was at the time the contract was entered into a valid and subsisting lien, and as to this there was no mistake.
We are not considering here how the parties might have provided for the payment of tax liens. It could have been done, under agreement of the parties in several ways. Arguments at this time as to what the parties might have done, and then say that they were in fact done, or intended to be done by the parties, are not convincing.
The decree of the lower court is affirmed.
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_casetyp1_6-3
|
E
|
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".
Robert L. JOHNSON, Keith A. Smith, Richard E. Davis, Ann McFadden, Wanda M. Anderson, and All Others Similarly Situated, Appellants, v. UNITED FOOD AND COMMERCIAL WORKERS, INTERNATIONAL UNION LOCAL NO. 23, Formerly Local No. 590; Jack Draper; Richard J. Lutz; United Food and Commercial Workers International Union, A.F.L.-C.I.O., C.L.C.; Alan Lee; and the Great Atlantic & Pacific Tea Company, Appellees.
No. 86-3781.
United States Court of Appeals, Third Circuit.
Submitted Pursuant To Third Circuit Rule 12(6) June 22, 1987.
Decided Sept. 17, 1987.
Michael D. Buchwach, Specter & Buchwach, P.C., Pittsburgh, Keith M. Pemrick, Dale, Woodward, Montgomery & White, Franklin, Pa., for appellants.
Leonard L. Scheinholtz, William Bevan III, Robert F. Prorok, David J. McAllister, Reed Smith Shaw & McClay, Pittsburgh, Pa., for The Great Atlantic & Pacific Tea Co., Inc.
Richard Roesel, Peter J. Ford, United Food & Commercial Workers Intern. Union, Washington, D.C., Joseph M. Maurizi, Maurizi & Cutruzzula, Pittsburgh, Pa., for the Union appellees.
Before GIBBONS, Chief Judge, and WEIS and ALDISERT, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
In this appeal plaintiff employees contend that they are not bound by an arbitrator’s unfavorable decision, despite their union’s voluntary submission of a dispute to him. We conclude that the union had authority to arbitrate the question of the existence of a collective bargaining agreement even though the matter could have been litigated. We also decide that individual employees may not rely on representations which were made by the employer during collective bargaining but never incorporated into a valid labor contract. We therefore will affirm the dismissal of the plaintiffs’ complaint.
Various facets of the dispute underlying this case have been before us on earlier occasions. Thus, we summarize the facts briefly for background purposes.
A collective bargaining agreement between The Great Atlantic & Pacific Tea Company and Local 590, now Local 23, covered the employees in seventy-seven A & P stores in western Pennsylvania, Maryland and West Virginia. This contract, signed in 1977, was to expire on September 27, 1980.
Beginning in June, 1980, A & P and the union tried without success to negotiate a new agreement. The September 27 deadline passed, but by its terms the 1977-80 provisions continued in force during the negotiations. On October 23, 1980, the negotiators seemingly had reached a resolution. They memorialized their agreement the next day in a hand-written memorandum signed by company and union representatives. The parties apparently intended to integrate the memorandum’s twenty-four points with the 1977-80 agreement at some future date.
Several months later, company and union representatives reworked the 1977-80 agreement to reflect the memorandum’s modifications. Local 590 officials signed the new three-year draft on May 27, 1981. The union membership, relying on representations made by the officers, then ratified the document. Senior officials at A & P, however, refused to sign the new contract, asserting that it did not accurately reflect the 1980 memorandum agreement.
Between the negotiation of the memorandum in 1980 and the company’s refusal to execute the proposed 1980-83 draft, A & P had shifted several full-time employees to part-time status. The union protested this action, arguing that the employer was bound by the terms of the 1977-80 agreement as continued in the 1980-83 proposed contract. These terms provided that A & P would combine part-time positions to create as many full-time positions as possible. The company insisted that the memorandum had specifically eliminated the pertinent clause and contended that it should not have been included in the 1980-83 draft.
Local 590 moved for arbitration. A & P initially objected on the grounds that no contract was then in force, but finally agreed to arbitrate the single question of whether a collective bargaining agreement had existed during the grievance period. After taking testimony, the arbitrator issued a comprehensive opinion that no collective bargaining agreement had existed between the parties after October 23, 1980.
The local next filed suit in the district court. In United Food and Commercial Workers Int’l Union, Local 590 v. Great Atlantic & Pacific Tea Co., 734 F.2d 455 (3d Cir.1984), we affirmed the district court’s refusal to modify the arbitrator’s decision.
In a related case, the trustees of the multi-employer welfare benefit fund covering A & P employees sued the company to recover payments due under the collective bargaining agreement. Because the fund had not been a party to the initial arbitration proceeding, we determined that collateral estoppel did not bar the trustees from enforcing their claims under the collective bargaining agreement. Moldovan v. Great Atlantic & Pacific Tea Co., 790 F.2d 894 (3d Cir.1986).
The proceeding now before us began as a suit in the state court by the named plaintiffs, former employees of A & P and members of Local 590. Defendants are the local and international unions, the president and secretary of the local union, the vice-president of the international union, and the employer, Atlantic & Pacific Tea Company.
Plaintiffs alleged on behalf of themselves and a class composed of similarly situated former employees that they were entitled to severance pay and sought recovery from defendants on various theories. The counts against the local union included negligence in failing to negotiate a collective bargaining agreement, fraud, failure to perform its duties under the union constitution, violation of the duty of fair representation and estoppel. Similar charges were brought against the international, as well as allegations of negligent supervision of Local 590. The individual union officers were accused of negligence, fraud, and breach of their duties under the union constitution.
The counts against the company rested on theories of “unwritten or defacto contract” and estoppel to deny the existence of a contract. The charges also included claims under the Pennsylvania Wage Payment and Collection law. Defendants removed the case to the federal court.
The district court determined that the plaintiffs’ claims against A & P were controlled by the agreement, or the lack of one, between the company and the union. Because that issue had been determined by arbitration and the court’s refusal to set aside the award, principles of res judicata and collateral estoppel prevented plaintiffs from relitigating the matter.
The court characterized the claims against the union officers as asserting violations of the duty of fair representation. That obligation arises under federal law, which preempts state law, and the claim is governed by a six-month statute of limitations. The counts here, not filed until three years later, were thus time barred. Accordingly, the district court dismissed the complaints with prejudice.
On appeal, plaintiffs contend that A & P’s severance pay obligation arose from the company’s direct promises to the employees and its course of conduct, including acceptance of the benefit derived from the former employees’ labor. Plaintiffs also assert that federal law did not preempt their claims against the unions and their officers, which existed independently of any collective bargaining agreement.
I.
Before 1980, plaintiffs, who were members of Local 590, were governed by the terms of the collective bargaining agreement then in effect. Although arbitration determined that no contract existed after October 23, 1980, its absence did not deprive Local 590 of the status as bargaining representative of the A & P employees.
Plaintiffs contend they are entitled to severance pay. That claim necessarily rests on language in both the memorandum of understanding and the 1980-83 draft, which substituted severance pay for job security. Indeed, the plaintiffs’ complaint leaves no room for doubt on this score because the itemization of damages mirrors the severance pay provision in the memorandum of understanding. No matter how plaintiffs attempt to plead their cause of action, they ultimately must return to the terms of the memorandum of understanding and the 1980-83 draft.
Any arguments about the validity and enforceability of the memorandum of understanding or the 1980-83 draft are foreclosed by our previous holding in United Food and Commercial Workers Int’l Union, Local 590 v. Great Atlantic & Pacific Tea Co., 734 F.2d 455. There we quoted from the arbitrator’s decision: “[a]ny grievances that are predicated either, upon the draft of the proposed 1980-83 Labor Agreement, or on the 1977-80 Labor Agreement, concerning events that occurred after October 23, 1980, are not arbitrable because no valid Labor Agreement exists under which the propriety of the Company’s actions can be measured.” Id. at 457 n. 2. The arbitrator also held that the memorandum of understanding did not constitute a binding contract.
The question then is whether plaintiffs here are bound by the arbitrator’s decision. In Adams v. Gould, Inc., 687 F.2d 27 (3d Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 348 (1983), we held that arbitration awards bind not only the union, but all employees represented by it. See also United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 62-63 n. 4, 101 S.Ct. 1559, 1564 n. 4, 67 L.Ed.2d 732 (1981) (“[A]n arbitration award stands between the employee and any relief which may be awarded against the company.”) See also Griesmann v. Chemical Leaman Tank Lines, Inc., 776 F.2d 66, 73 n. 11 (3d Cir.1985), citing Teamsters Local Union No. 764 v. J.H. Merritt and Co., 770 F.2d 40 (3d Cir.1985); Panza v. Armco Steel Corp., 316 F.2d 69 (3d Cir.) (per curiam), cert. denied, 375 U.S. 897, 84 S.Ct. 174, 11 L.Ed.2d 125 (1963).
In each of these cases, the arbitration award was the culmination of a process provided by a collective bargaining agreement. In the case before us, however, the dispute submitted to the arbitrator was not one within the terms of the collective bargaining agreement, but went to the very existence of that contract. Although the union asserted the grievance arose from the labor contract, the employer denied that any agreement existed and initially objected to arbitration on that ground.
In AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, -, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986), the Court restated the longstanding rule that the question of arbitrability is “undeniably an issue for judicial determination.” Earlier the Court had said, “[t]he duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty.” John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 547, 84 S.Ct. 909, 913, 11 L.Ed.2d 898 (1964).
Without question the union and the employer were entitled to a judicial decision on the issue of arbitrability. Yet, we have no doubt that both parties could voluntarily decide, as they did here, to resort to binding arbitration as an alternative form of dispute resolution. Because an arbitrator’s jurisdiction is rooted in the agreement of the parties, they may agree to submit even the question of arbitrability to an arbitrator. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 583 n. 7, 80 S.Ct. 1347, 1353 n. 7, 4 L.Ed.2d 1409 (1960); George Day Constr. Co. v. United Bhd. of Carpenters and Joiners of America, Local 354, 722 F.2d 1471, 1474-75 (9th Cir.1984). In general, a question ordinarily reserved for the courts may be submitted instead to binding arbitration if the parties consent. Piggly Wiggly Operators’ Warehouse, Inc. v. Piggly Wiggly Operators’ Warehouse Indep. Truck Drivers Union, Local No. 1, 611 F.2d 580, 584 (5th Cir.1980).
Once the parties have referred the matter to an arbitrator they are bound by his decision, Teamsters Local Union No. 764, 770 F.2d at 40, and may not later challenge his authority to resolve the dispute. Jones Dairy Farm v. Local No. P-1236, 760 F.2d 173, 175 (7th Cir.), cert. denied, 474 U.S. 845, 106 S.Ct. 136, 88 L.Ed.2d 112 (1985); Wilkes-Barre Publishing Co. v. Newspaper Guild of Wilkes-Barre, Local 120, 647 F.2d 372, 382 (3d Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1003, 71 L.Ed.2d 295 (1982).
The parties, therefore, define the issues and empower the arbitrator. International Chem. Workers Union, Local No. 566 v. Mobay Chem. Corp., 755 F.2d 1107, 1110 (4th Cir.1985); R. Gorman, Basic Text on Labor Law Unionization and Collective Bargaining 586 (1976). The arbitrator’s ultimate authority is not limited to the issues the collective bargaining agreement requires to be submitted, but expands to include those issues that the parties agree to submit. Piggly Wiggly, 611 F.2d at 584.
Plaintiffs rely on our statement in Moldovan that when the dispute is not over the terms of a collective bargaining agreement, but over its existence, “members of the bargaining unit are entitled to a judicial resolution of the question.” 790 F.2d at 897. That observation, however, must be read in context. The statement does not indicate a dichotomy of interest between the union and its members; but rather, it reiterates the principle that arbitrability is an issue for the courts. In each case the court cited as support for the proposition, the parties were the unions and not individual members.
The Moldovan opinion further commented that it was not clear whether the union’s decision to arbitrate was binding on the members of the bargaining unit, but assumed arguendo they were bound. The court concluded that, in any event, the trustees of the pension fund were not members of the bargaining unit and hence were not within the reach of the arbitrator’s decision.
The question raised in Moldovan, but not necessary for its decision, is presented for resolution here. Are individual union members governed by the results of arbitration when the dispute is not within the grievance procedure of a collective bargaining agreement, but is voluntarily submitted to arbitration by the union officials?
A union’s duty to its membership includes more than mere negotiations leading to a collective bargaining agreement. The union also has the obligation to represent its members in grievances and to enforce the contract. Concomitant to its administration of the agreement, a union may be required to resort to the courts. Although not integral to the bargaining process, litigation surely is a part of the union’s duty to compel compliance with the agreement for the benefit of its members.
Undoubtedly, the union possessed the authority to seek a judicial determination about the existence of the contract and to bind the members of the bargaining unit to the resulting judgment. The real issue, then, is whether the union also has the power to submit such a disagreement to arbitration, another dispute resolution method. We are persuaded that the union has such authority.
Early in the history of the common law, arbitration was not regarded favorably by the courts. That attitude, however, has since undergone radical revision. The Steelworkers Trilogy gave a ringing endorsement to the arbitration of labor disputes. Today, that philosophy is so deeply imbedded in labor law, that the Court construed the Norris-LaGuardia Act to allow an injunction against a union compelling it to arbitrate. Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970).
The Court has not confined its acceptance of arbitration to the field of labor law. In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), an antitrust case arising out of international commercial transactions, the court said, “potential complexity should not suffice to ward off arbitration.” Id. at 633, 105 S.Ct. at 3357.
In the same vein, the Court enforced an agreement in Shearson/American Express, Inc. v. McMahon, — U.S. -, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987), requiring a brokerage firm and its customer to arbitrate a claim under section 10(b) of the Securities Exchange Act. Distinguishing almost to extinction an earlier case under the Exchange Act, Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), the Court observed, “mistrust of arbitration that formed the basis for the Wilko opinion in 1953 is difficult to square with the assessment of arbitration that has prevailed since that time.” Id. at 2341. Similarly, in the McMahon case, the Court also permitted arbitration to decide claims under RICO. Cf. Moses H. Cone Memorial Hosp. v. Mercury Constr. Co., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270, reh'g denied, 419 U.S. 885, 95 S.Ct. 157, 42 L.Ed.2d 129 (1974).
Any doubts existing before The Steelworkers Trilogy about the use of arbitration in labor disputes have surely vanished by this time. No valid objections remain to a union’s decision to arbitrate a dispute rather than resort to the court. In some circumstances, that choice may be obviously beneficial to the membership. In other situations the advantages, or lack of them, may be perceived only in retrospect, but nothing in federal law would bar the union leadership from exercising its discretion. The expedition of the grievance process and the use of an arbitrator steeped in labor law are unquestionably factors that responsible union leaders may freely consider in deciding how best to resolve a dispute with an employer.
The claim here differs substantially from those considered in Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), and Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). In those cases, the Court observed that the employees had asserted rights grounded in specific statutory provisions designed to provide minimum substantive guarantees to individual workers. Here, the claims are based on allegations of obligations incurred by an employer through contract, implied contract or estoppel, rather than any statutory entitlement. The legislative concerns underlying Barrentine and Gardner-Denver are not present here.
We conclude, therefore, that a union does not exceed its authority by submitting the issue of arbitrability to voluntary arbitration instead of demanding resolution by a court. Because the arbitration procedure is permissible, it follows that individual union members are bound by the outcome to the same extent as when the dispute arises as a grievance within the provisions of a collective bargaining agreement. Thus, plaintiffs may not challenge the arbitrator’s decision that no binding contract existed after October 23, 1980, and claims based on the theory of an enforceable agreement cannot succeed.
II.
Plaintiffs here struggle to escape the arbitration decision by arguing that their claims stem from promises made by the company, not from provisions in the memorandum of understanding or in the 1980-83 draft. As the district court pointed out, however, these promises were not communicated to plaintiffs personally or individually, but to the bargaining unit represented by the union in the negotiations. The fact that the union may have misrepresented the company’s position to its membership during the collective bargaining process does not bind A & P to an enforceable contract.
To accept the plaintiffs’ contentions would severely undercut the national labor policy of encouraging and enforcing collective bargaining by representatives selected by the employees. Effective representation requires that the employer negotiate with the union and not bypass orderly procedures through direct appeals to the membership. See NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 2006, 18 L.Ed.2d 1123 (1967) (National labor policy extinguishes the individual employee’s power to order his own relations with his employer and creates a power vested in the chosen representative to act in the interests of all employees.); Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 683-84, 64 S.Ct. 830, 833, 88 L.Ed. 1007 (1944) (Orderly collective bargaining requires that the employer not be permitted to go behind the designated representatives in order to bargain with the employees themselves.). We find the plaintiffs’ arguments unconvincing.
III.
An exception to the binding effect of the union’s arbitration of an employee’s grievance applies when the employee can establish a breach of the union’s duty of fair representation. He may then recover in a § 301 suit against the employer on a breach of contract claim and against the union for a violation of the duty of fair representation. These actions are commonly termed “hybrid” section 301 suits. See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).
In reviewing the plaintiffs’ complaint against the union officers here, the district court concluded that the allegations of negligence and fraud were essentially claims that the unions and their officers had violated their duty of fair representation. We find no error in that characterization and reject the plaintiffs’ attempt to cast the allegations as state tort claims not preempted by federal law. The duty of fair representation is imposed by federal statute, and federal law applies whether the section 301 suit is brought in federal or state court. Id. at 174, 87 S.Ct. at 908.
The Supreme Court has made it clear that one cannot avoid federal preemption of alleged state law claims by artfully phrasing the language in the complaint. “It is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern.” Amalgamated Ass’n of Street Electric Ry & Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 292, 91 S.Ct. 1909, 1920, 29 L.Ed.2d 473 (1971); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985).
An action for breach of the duty of fair representation must be brought within six months of the time of the incident. DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983).’ See also Clift v. International Union, 818 F.2d 623 (7th Cir.1987). Even if the breach did not occur until May, 1984, when we decided that the arbitrator’s decision was binding, the statute of limitations expired before the present suit was filed in August, 1985. Consequently, the claims against the union and their officers were untimely, and the district court’s judgment on that ground must be sustained.
The judgment of the district court will be affirmed.
. United. Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960).
. In their complaint, plaintiffs also allege that the union officers violated their obligations under the union constitution. We have held that the six-month statute of limitations applies to claims of that nature as well. Lewis v. International Bhd. of Teamsters, 826 F.2d 1310 (3d Cir. 1987).
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_appel1_3_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
FEDERAL TRADE COMMISSION v. STANDARD AMERICAN, INC., Standard American Construction Co., Inc., Mansville Construction, Inc., Val Worth Enterprises, Inc., and Wolf, Dorleg and Wolf, Inc., Standard American, Inc., Mansville Construction, Inc., Val Worth Enterprises, Inc., Wolf, Dorleg and Wolf, Inc., Appellants.
No. 13763.
United States Court of Appeals Third Circuit.
Argued Feb. 23, 1962.
Decided July 3, 1962.
Nathan L. Posner, Philadelphia, Pa. (Donald Brown, Nathan L. Posner, Philadelphia, Pa., on the brief), Fox, Rothschild, O’Brien & Frankel, Philadelphia, Pa., for appellants.
Alvin L. Berman, Washington, D. C. (James Mcl. Henderson, Gen. Counsel, J. B. Truly, Asst. Gen. Counsel, Federal Trade Commission, Washington, D. C., on the brief), for appellee.
Before GOODRICH, KALODNER and GANEY, Circuit Judges.
KALODNER, Circuit Judge.
Did the District Court err (1) in ordering appellants, respondents below, to produce documentary evidence, originals or copies, within 30 days at a time and place to be fixed by the Federal Trade Commission; (2) in authorizing the Commission to take into custody the. evidence produced and to remove it to Washington, D. C. for a period not to exceed 30 days; and (3) in failing, in its Order, to require that the production of documents be to, and before, a member of the Commission or one of its Hearing Examiners?
These issues are presented on this appeal by the four appellants from the District Court’s Order entered following a hearing on a rule to show cause, pursuant to the Commission’s Application for enforcement of its subpoenas requiring appellants to give testimony and produce documentary evidence in an investigation being conducted by the Commission. In its Application, the Commission alleged that the appellants had failed and refused to comply with the subpoenas.
In its Memorandum and Order the District Court stated “ * * * we have examined and re-examined the. entire record and are totally unable to determine from it that the business corporations herein involved would in the slightest degree be hindered in their normal operations by the production and turning over of the various documents contained in the specifications attached to the subpoenas.”
Appellants do not challenge the relevance of the records involved to the Commission’s investigation although they dispute the District Court’s finding that they would not be hindered in the normal operations of their business by turning over the records to the Commission. On this score it must be noted that the District Court, in its Memorandum Opinion, stated that “if it is brought to the attention of the Court that any serious hindrance to respondents’ business will be caused by adherence to the provisions of the Order, we will reconsider it as to those specific instances.” Further, the Commission’s subpoenas specifically provided that copies of appellants’ records
could be produced in lieu of original records.
Pertinent to our disposition of the instant appeal are these facts as evidenced by the record:
Appellants Standard American, Inc. (“Standard”) and Mansville Construction, Inc. (“Mansville”) are engaged in the sale of home improvement fixtures, equipment and supplies and their installation ; appellant Val Worth Enterprises, Inc. (“Val Worth”) prepares scripts for and produces television commercials for Standard and Mansville, and appellant Wolf, Dorleg and Wolf, Inc. (“Wolf”) buys time from TV stations for these commercials.
The appellants have interlocking officers and directors; Sam Leonard is president of Standard and Mansville and an officer and director of Val Worth and Wolf; Samuel Moskowitz is secretary and treasurer of Standard and Mansville and an officer and director of Val Worth and Wolf; Abraham B. Wolf is president of Val Worth and Wolf; vice-president, office manager and accountant of Standard and Mansville.
On January 5, 1961, the Commission, in the course of an ex parte administrative investigation to determine whether appellants, among others, “in connection with the sale and offering for sale of home improvement fixtures, equipment and supplies and the installation thereof are engaging in false and misleading advertising or other deceptive acts or practices in a manner violative of Section 5 of the Federal Trade Commission Act”, served subpoenas upon appellants requiring them to appear at the United States Court House in Philadelphia, Pennsylvania, before one Eugene R. Baker, a designated attorney-examiner of the Commission, and to testify and produce specified documentary evidence. The documents subpoenaed were limited to the calendar year 1960. The appearance of each appellant was scheduled in the subpoenas for stated hours on January 23-24-25, 1961.
Appellants, in response to the subpoena, appeared through Leonard and Wolf. The record establishes that they failed to produce numerous records specified in the subpoenas and that their oral testimony was so evasive at times that it bordered on sham and evidenced a transparent attempt to conceal the truth. Moreover, with respect to such records as were produced appellants refused to permit the Commission’s attorney-examiner to retain them for the purpose of making copies or inspection and analysis. They in-particular challenged the right of the Commission to transport the records to Washington so that they might be photostated and studied. Appellants while on the witness stand, and their counsel, throughout the course of the healings before the Commissioner’s examiner, demonstrated an attitude of hostility and a defiance bordering on contempt of the investigative process.
The issues as to whether the District Court erred (1) in ordering appellants to produce documentary evidence, originals or copies, within 30 days at a time and place to be fixed by the Commission, and (2) in authorizing the Commission to take into custody the evidence produced and to remove it to Washington for a period not to exceed 30 days, will be considered together as they are controlled by the provisions of Section 9 of the Act and well-settled principles.
Section 9 authorizes the Commission’s use of subpoenas for the “production of * * * documentary evidence * * * from any place in the United States, at any designated place of hearing.”
The Courts have time and again held that the Commission may exercise its “broad power of investigation and subpoena, prior to the filing of a complaint”; the Commission, as an administrative agency of the United States “charged with seeing” that the Act is enforced, “has a power of inquisition” ; it is “more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not” ; it is sufficient if the investigation is within the Commission’s authority and unless the evidence sought by the subpoenas is clearly irrelevant and immaterial it is the duty of the district court to order compliance; and subpoenaed documents may be retained by the Commission for a reasonable length of time.
Although appellants urged in the District Court, as they do here, that the Commission’s subpoenas are burdensome and oppressive and that the compliance ordered will deprive them of “thousands of current records in daily business use” and result in “what is tantamount to the virtual destruction of a successful business” they did not adduce a single shred of evidence in the District Court to support their assertions.
It is settled that if appellants wanted the District Court to make “appropriate provisions for assuring the minimum interference with the conduct of [their] business”, they should have met their burden of showing the unreasonableness of the Commission’s demand, and should have “made a record that would convince [the District Court] of the measure of their grievance rather than ask [it] to assume it.” Anent the foregoing, as earlier stated in this opinion, the District Court specified in its Order that appellants could bring to its attention “any serious hindrance” to their business by adherence to its provisions. The specification referred to renders de minimis appellants’ point with respect to the removal of the subpoenaed records to Washington especially in the light of the fact that the subpoenas were directed only at records of appellants’ operations for the year I960, and the Order directing compliance was issued July 21, 1961 by which time the-records could scarcely be called “current” and “in daily business use” as appellants assert. Certainly, under the factual situation which prevailed here, we find no error in the Order directing appellants to produce the documentary evidence, as called for in the Commission’s subpoenas, within 30 days at a time and place to be fixed by the Commission and in authorizing the evidence so produced to be removed to Washington for a period not to exceed 30 days.
There remains for disposition appellants’ remaining contention that the District Court erred in failing, in its Order to require that the production of documents be to, and before, a member of the Commission or one of its Hearing Examiners.
The contention stated is utterly without merit. The cases cited in the margin are dispositive. They squarely hold that in an investigational hearing such as is here involved there is no requirement that subpoenas be made returnable to the Commission or a Hearing Examiner and that they may be made returnable to an attorney-examiner as in the instant proceeding.
For the reasons stated the Order of the District Court will be affirmed.
Judge Goodrich participated in the consideration of this case but died prior to the filing of this opinion.
. The Commission’s Application to the District Court was pursuant to provisions of Section 9 of the Federal Trade Commission Act (38 Stat. 722; 15 U.S.C.A. § 49) which read as follows:
“That for the purposes of this Act the commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any corporation being investigated or proceeded against; and the commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. Any member of the commission may sign subpoenas, and members and examiners of the commission may administer oaths and affirmations, examine witnesses, and receive evidence.
“Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the commission may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence.
“Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any corporation or other person, issue an order requiring such corporation or other person to appear before the commission, or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof.”
. Reported at 195 F.Supp. 801 (E.D.Pa. 1961).
. Standard American Construction Company, Inc. was a party to the proceedings below and was included in the District Court’s Order, but it has not joined in the instant appeal.
. Standard and Mansville have a common general manager and common employees.
. Section 5(a) (1) of the Federal Trade Commission Act (66 Stat. 632; 15 U.S. C.A. § 45(a) (1)) provides:
“Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are hereby declared unlawful.”
By Section 5(a) (6) of the Act (66 Stat. 632; 15 U.S.C.A. § 45(a) (6)), the Commission is
“ * * * empowered and directed to prevent persons, partnerships, or corporations * * ® from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.”
. Wolf, although president of both Val Worth and Wolf at first “didn’t know” whether Wolf acted for Val Worth in the buyiug of TV time for commercials prepared by Val Worth and later flatly stated that it did not do so. Records of billings of TV Station WFIL of Philadelphia, Pennsylvania, produced by the Commission, established that Wolf acted as agent for Val Worth in buying the time for commercials sponsored by Val Worth.
. Automatic Canteen Company of America v. Federal Trade Commission, 346 U.S. 61, 79, 73 S.Ct. 1017, 97 L.Ed. 1454 (1953); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 201, 66 S.Ct. 494, 90 L.Ed. 614 (1946).
. United States v. Morton Salt Co., 338 U.S. 632, 642-643, 70 S.Ct. 357, 94 L.Ed. 401 (1950); Oklahoma Press Publishing Co. v. Walling, supra note 7.
. Civil Aeronautics Board v. Hermann, 353 U.S. 322, 77 S.Ct. 804, 1 L.Ed.2d 852 (1957); Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 87 L.Ed. 424 (1943).
. See Federal Trade Commission v. Hallmark, Inc., 265 F.2d 433, 439 (7 Cir. 1959); National Labor Relations Board v. Kingston Trap Rock Co., 222 F.2d 299, 302 (3 Cir. 1955); McGarry v. Securities and Exchange Commission, 147 F.2d 389, 393 (10 Cir. 1945).
. Civil Aeronautics Board v. Hermann, supra, note 9, 353 U.S. at page 323, 77 S.Ct. at page 805.
. Oklahoma Press Publishing Co. v. Walling, supra, note 7, 327 U.S. at pages 217-218, 66 S.Ct. at pages 509-510.
. United States v. Morton Salt Co., supra, note 8, 338 U.S. at page 654, 70 S.Ct. at page 369.
. Hannah v. Larche, 363 U.S. 420, 446, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960) makes unnecessary discussion of appellants’ point on the “constitutionality” of the Commission’s investigation here. It was there held that “We have found no authorities suggesting that the rules governing Federal Trade Commission investigations violate the Constitution * * *”
. Federal Trade Commission v. Hallmark, Inc., supra note 10, 265 F.2d at pages 437 — 438; Federal Trade Commission v. Waltham Watch Co., 169 F.Supp. 614, 617-619 (S.D.N.Y.1959); Federal Trade Commission v. Scientific Living, Inc., 150 F.Supp. 495, 501-503 (M.D.Pa.1957), appeal dismissed (3 Cir. August 12, 1957, unreported), cert. den. 355 U.S. 940, 78 S.Ct. 429, 2 L.Ed.2d 421.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_stpolicy
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
TOMANENG v. REEVES.
No. 10973.
United States Court of Appeals Sixth Circuit.
Feb. 14, 1950.
J. Paul McNamara, and Walter J. Mackey, Columbus, Ohio (Thomas M. Quinn, Indianapolis, Ind., on the brief), for appellant.
Wm. E. Knepper, and H. S. Kerr, Columbus, Ohio, for appellee.
Before ALLEN, McALLISTER and MILLER, Circuit Judges.
PER CURIAM.
The sole question presented by this appeal is whether the decedent effected a change of beneficiary in accordance with the terms of a policy of life insurance which provides that the insured “shall have full power * * to designate a new beneficiary * * * by filing at the Home Office a written designation of beneficiary, which shall in no case be effective until the date upon which it is so filed.” The insurance company filed a bill of interpleader, joining the decedent’s wife and sister as defendants.
The facts are in the main stipulated,, and are,as follows: On January 7, 1946, the decedent, who was insured in The Penn Mutual Life Insurance Company under a policy in which his wife, Margaret Oyler Reeves, was named beneficiary, wrote the agent of-the company at Fort Wayne, Indiana, a letter, the pertinent part of which reads: “Marital difficulties since my return ■has made it necessary to again change the beneficiary of my policy. I therefore request that the usual procedure be instituted making the present beneficiary Miss Mary Elizabeth Reeves — (my Sister) the recipient in the event anything happens to me.”
On two previous occasions the decedent had changed the beneficiary in this same policy by the execution of “Change of Beneficiary” forms which he transmitted to the insurance company. After forwarding decedent’s letter of January 7, 1946, to the company’s home office, the agent wrote decedent that he was “ordering the -beneficiary forms for change to your sister, as per your request.” On January 16, 1946, the agent’s secretary wrote decedent enclosing a 'beneficiary form “recently requested,” and instructed decedent: “If this is in accordance with your wishes please sign both copies as indicated, having your signature witnessed, and -return -both to us. After certification at the Home Office the duplicate will be sent to you to be attached to the policy.” The forms were never signed by decedent and were retained in his possession until his death by accident on April 11, 1946.
Appellant contends that the letter of January 7, 1946, automatically constitutes the designation required under the policy and that its forwarding to the Home Office was the filing required. The District Court held that decedent’s wife was still the duly designated beneficiary of the policy at the time of decedent’s death and rendered judgment in her favor.
Under Ohio law, controlling here, where the insured has the unconditional right to change the beneficiary, a change may be effected even if the provisions of the policy setting forth the manner of effecting the change are not complied with exactly. Atkinson v Metropolitan Life Ins. Co., 114 Ohio St. 109, 150 N.E. 748.
But it must appear (1) that the insured had determined to change the beneficiary and (2) that he had done everything to the ■best of his ability to effect the change. Sun Life Assurance Co. of Canada v. Secoy, D.C., 72 F.Supp. 83; Union Central Life Ins. Co. v. Macbrair, 66 Ohio App. 144, 31 N.E.2d 172; Glen v. Aetna Life Ins. Co., 73 Ohio App. 452, 56 N.E.2d 951.
Tested by these rules, the judgment of the District Court must be affirmed. Decedent’s letter of January 7, 1946, did not constitute an unequivocal designation of change of beneficiary. It merely embodied a request to institute the usual procedure for change of 'beneficiary, with which the decedent was familiar, namely, the sending and -receipt of the beneficiary forms, their execution, and their filing in the home office. The decedent was an educated man, an assistant professor of medicine at Ohio State University, and no doubt understood the meaning of the words he used when he deliberately requested the agent to institute “the usual procedure.” The forms were sent, received, but never executed, and the contemplated change was not effected. Decedent failed to do all that he could to effectuate the change.
Appellant contends that the judgment of the District Court is contrary to the holding of this court in Schwerdtfeger v. American United Life Ins. Co., 6 Cir., 165 F.2d 928. There, however, the insured had signed a formal insurance company application designating his daughters as beneficiaries. The evidence of the insured’s determination to make the change was complete. Fie did the exact thing that the decedent here failed to do.
Judgment affirmed.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_decisiontype
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
SUNKIST GROWERS, INC., et al. v. WINCKLER & SMITH CITRUS PRODUCTS CO. et al.
No. 241.
Argued March 21-22, 1962.
Decided May 28, 1962.
Herman F. Selvin argued the cause for petitioners. With him on the briefs was Ross C. Fisher.
William C. Dixon argued the cause for respondents. With him on the briefs was Holmes Baldridge.
Mr. Justice Clark
delivered the opinion of the Court.
This is a treble damage suit brought under § 4 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 15, charging petitioners, Sunkist Growers, Incorporated, and The Exchange Orange Products Company, with conspiracy to restrain and monopolize interstate trade and commerce in citrus fruits and by-products and with actual monopolization thereof in violation of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, 15 U. S. C. §§ 1, 2, as amended. The petitioners are each agricultural cooperative organizations, Exchange Orange being a wholly owned subsidiary of Sunkist. Petitioners contend the case was submitted under instructions permitting the jury to find an illegal conspiracy among them and Exchange Lemon Products Company, a cooperative processing association owned and operated exclusively by a number of lemon-grower associations all of which are members of Sunkist Growers, Inc. They say that under the exemptions from the antitrust laws granted agricultural associations by § 6 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 17, and § 1 of the Cap-per-Volstead Act, 42 Stat. 388, 7 U. S. C. § 291, Sunkist, Exchange Orange, and Exchange Lemon, being made up of the same growers and associations, cannot be charged with conspiracy among themselves. The trial court overruled this contention, among others, and the jury returned a verdict of $500,000. Judgment for treble this amount and attorney fees, less some minor offsets, was entered. The Court of Appeals, accepting petitioners’ view of the instructions, held that the exemption claimed did not apply here and affirmed the judgment as to liability but reversed as to the amount of damages. 284 F. 2d 1. We granted certiorari limited to the issue of the immunity of interorganizational dealings among the three cooperatives from the conspiracy provisions of the antitrust laws. 368 U. S. 813. We have concluded that the case was submitted to the jury on the theory claimed by petitioners and that this was erroneous. Thus we reverse the judgment.
Sunkist Growers, Inc., has at its base 12,000 growers of citrus fruits in California and Arizona. These growers are organized into local associations which operate packing houses. The associations in turn are grouped into district exchanges, and representatives from these exchanges make up the governing board of Sunkist, a nonstock membership corporation. Sunkist serves the members as an organization for marketing their fresh fruit and fruit products through its field, advertising, sales, and traffic departments. All of its net revenues are distributed to the members.
In 1915 several member associations of Sunkist undertook to develop by-products for lemons in order to create a market for produce not salable as fresh fruit. Because this was a new, untried field the entire cooperative did not participate. Rather a separate cooperative — Exchange Lemon, a nonprofit stock corporation — was formed for this venture by the interested associations. Since that time Exchange Lemon has retained its separate identity although it is made up exclusively of lemon-grower associations which are also members of Sunkist. Its function now is primarily one of processing, and the resultant products are marketed for the owners by Sunkist through its products department, which is jointly managed by directors of Exchange Lemon and Exchange Orange.
One year after the organization of Exchange Lemon a similar association was formed to develop by-products for oranges. This organization, Exchange Orange, was comprised of a number of Sunkist member associations until 1931. At that time the Sunkist directors decided to make the processing facilities of Exchange Orange available to all of its member associations by purchasing it and operating it as a wholly owned subsidiary.
In sum, the individual growers involved each belong to a local grower association. Fruit which is to be sold fresh is packed by the associations and marketed by Sunkist, a nonstock membership corporation comprised of district exchanges to which the associations belong. Most fruit which is to be processed into by-products is handled by Exchange Orange, a subsidiary of Sunkist, or by Exchange Lemon, a separate organization comprised of a number of Sunkist member associations. It is then marketed by the products department of Sunkist which is managed by directors of Exchange Orange and Exchange Lemon.
Competing with the three cooperatives in the California-Arizona area in the business of processing and selling canned orange juice were four independent processors, which were primarily dependent upon Sunkist for their supply of by-product oranges. In 1951 two of these concerns, TreeSweet Products Company and E. A. Silzle Corporation, had process-and-purchase contracts with Exchange Orange. Under its contract TreeSweet agreed to process at cost an undetermined amount of oranges provided by Exchange Orange and to purchase the resultant orange juice at the then current price of Sunkist. The average net price for the oranges under this contract was alleged to have been $25.10 per ton. The contract with Silzle provided that it would process a stated amount of oranges for Exchange Orange and purchase the juice at a stated price less its processing cost alleged to have netted $17.66 per ton. The third producer, Case-Swayne Company, allegedly declined Sunkist’s offer of a similar contract. Respondent Winckler & Smith Citrus Products Company, the final processor, was offered oranges only at the list price of $40 to $44 per ton, depending upon content of soluble solids, and was refused the process- and-purchase arrangements described above.
Respondents brought this suit on the theory that Sunkist and Exchange Orange controlled the supply of byproduct oranges available in the California-Arizona area to independent processors; that they combined and conspired with Exchange Lemon, TreeSweet, and Silzle to restrain and to monopolize interstate trade and commerce in 1951 in the processing and sale of citrus fruit juices, particularly canned orange juice; that they in fact monopolized such trade and commerce; and that the purpose or effect thereof was the elimination of Winckler as a competitor in the sale of such juices. Respondents relied on six specific acts and contracts which allegedly furthered the conspiracy, namely: (1) the processing of oranges at cost by Exchange Lemon for Exchange Orange during 1951; (2) the processing of lemons at cost by Exchange Orange for Exchange Lemon during 1951; (3) the establishment by Sunkist and Exchange Orange of a price to independent processors alleged to be too high to enable purchasers to compete, i. e., the $40-$44 per ton list price; (4) the contract between Exchange Orange and TreeSweet in 1951; (5) the contract between Exchange Orange and Silzle in 1951; (6) the refusal to sign a comparable contract with respondent Winckler.
After a lengthy trial producing a 4,000-page transcript, the case went to the jury under a necessarily complicated charge. As to the parties the jury might find to have participated in an illegal conspiracy, the court gave several instructions. One, given early in the charge, was that:
“a parent corporation and its wholly-owned subsidiary can be guilty of combining or conspiring together to violate the antitrust laws. The defendants Sunkist Growers, Inc., and its wholly-owned subsidiary Exchange Orange Products Company, can accordingly combine or conspire together or with others to violate Sections 1 and 2 of the Sherman Act as charged in the first and second causes of action, subject to other instructions concerning the Capper-Volstead Act, and Section 6 of the Clayton Act, and the exemptions contained therein.”
The instructions on the Clayton and Capper-Volstead Acts merely stated that the cooperatives could lawfully have a monopoly of the fruit and products in which they dealt. Later references to the alleged conspiracy often mentioned only petitioners and the two independent processors, e. g., “If you find that either or both of the defendants [Sunkist and Exchange Orange, petitioners here] combined with TreeSweet or Silzle to eliminate the competition of the plaintiff . . . .” However, the court’s concluding instructions on the subject could well have been taken by the jury as permitting them to find an illegal conspiracy solely among the three cooperatives:
“Unless you find, therefore, from the preponderance of the evidence, that Sunkist or Exchange Orange or either of them, combined or conspired with either TreeSweet, or Silzle, or ELP [Exchange Lemon Products], and in 1951 did one or more of the specific acts charged ....
. . Unless you find from the preponderance of the evidence that defendants Sunkist and Exchange Orange, or either of them, and one or more of the alleged co-conspirators [one of which was Exchange Lemon], combined and conspired, and pursuant to such combination or conspiracy ....
“Those are summary instructions whieh sort of sum up what is charged and what the plaintiff must prove.”
And in a final addendum after consultation with counsel the court instructed that:
“I also am told that I spoke about how the defendants had conspired on one occasion. The charge is not that the defendants conspired. The charge is that the defendants and co-conspirators conspired.
“However, as a .matter of fact, you may find that nobody conspired, or you may pick out and decide that some number less than the total conspired.”
On the question now before us, the Court of Appeals held that any objection to at least one of the cónspiracy instructions was waived; that in any event different agricultural cooperatives combining together are not entitled to claim a total immunity for acts which they might do unilaterally and individually; and that the common ownership of Sunkist, Exchange Orange, and Exchange Lemon did not prevent the finding of an illegal conspiracy among them.
We believe the instructions quite plainly left it open for the jury to base their verdict upon a finding of a conspiracy among petitioners and Exchange Lemon. At the outset the court instructed that a conspiracy could be found between Sunkist and its wholly owned subsidiary Exchange Orange. Thereafter the charge advised the jury that a finding of conspiracy between “Sunkist or Exchange Orange or either of them . . . [and] either TreeSweet, or Silzle, or ELP” was sufficient basis for a judgment against petitioners. From this it is entirely probable that the jury’s verdict against both petitioners was based on their finding of a conspiracy among Sunkist, Exchange Orange, and Exchange Lemon. There is no question that Exchange Lemon was identified in the complaint and throughout the trial as an alleged co-conspirator. In no fewer than five instances did the trial court refer to the alleged conspiracy as being among petitioners and the “co-conspirators” or petitioners and Exchange Lemon, TreeSweet, or Silzle. The final summarization on conspiracy was in terms of finding that petitioners combined or conspired with either TreeSweet or Silzle or Exchange Lemon, and the addendum instructions emphasized that the jury could find either or both petitioners had illegally conspired with any one of the alleged co-conspirators. It is true that in some instances the court’s conspiracy instructions mentioned only TreeSweet and Silzle as co-conspirators. Conjecture as to the reasons for this would not be fruitful. For it is clear that the court never limited the jury to a consideration of those parties as the sole co-conspirators. And other instructions, including the summarization, allowed the jury to base their verdict upon a finding of an illegal conspiracy solely among Sunkist, Exchange Orange, and Exchange Lemon.
It is suggested by respondents and the court below that petitioners waived their objection to these instructions. This is based on petitioners’ acquiescence in the additional instructions, including references to the conspiracy, given the jury after the general charge. But petitioners’ actions here must be viewed in context. Prior to the general charge, conferences of counsel and the trial court were held to discuss the instructions. At each point counsel for petitioners objected to instructions which suggested that the three cooperatives might be found to have illegally conspired among themselves and requested instructions that would have limited a finding of an unlawful conspiracy in this case to one among petitioners and TreeSweet or Silzle. The trial court consistently ruled adversely to petitioners on this point. After the charge was delivered, counsel were told that all prior objections would be preserved and asked if they had any additional objections. In light of this assurance and petitioners’ prior objections and requests, we believe the acquiescence in the added instructions could not be considered a waiver.
We are squarely presented, then, with the question of whether Sunkist, Exchange Orange, and Exchange Lemon — the three legal entities formed by these 12,000 growers — can be considered independent parties for the purposes of the conspiracy provisions of §§ 1 and 2 of the Sherman Act. We conclude not. Section 6 of the Clayton Act provides, inter alia, that agricultural organizations instituted for the purposes of mutual help shall not be held or construed to be illegal combinations or conspiracies in restraint of trade under the antitrust laws. The Capper-Volstead Act sets out this immunity in greater specificity:
“That persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes . ...”
There can be no doubt that under these statutes the 12,000 California-Arizona citrus growers ultimately involved could join together into one organization for the collective processing and marketing of their fruit and fruit products without the business decisions of their officers being held combinations or conspiracies. The language of the Capper-Volstead Act is specific in permitting concerted efforts by farmers in the processing, preparing for market, and marketing of their products. And the legislative history of the Act reveals several references to the Sunkist organization — then called the California Fruit Growers Exchange and numbering 11,000 members — including a suggestion by Senator Capper that this was the type of cooperative that would find “definite legalization” under the legislation. Although we cannot draw from these references a knowing approval of the tripartite legal organization of the 11,000 growers, they do indicate that a cooperative of such size and general activities was contemplated by the Act.
Instead of a single cooperative, these growers through local associations first formed one area-wide organization (Sunkist) for marketing purposes. When it was decided to perform research and processing on a joint basis, separate organizations were formed by the interested associations for reasons outlined above. At a later date one of these (Exchange Orange) was acquired by the Sunkist organization and is presently held as a subsidiary. The other (Exchange Lemon) is still owned by the lemon-grower associations, all of whom are also member associations of Sunkist. With due respect to the contrary opinions of the Court of Appeals and District Court, we feel that the 12,000 growers here involved are in practical effect and in the contemplation of the statutes one “organization” or “association” even though they have formally organized themselves into three separate legal entities. To hold otherwise would be to impose'grave legal consequences upon organizational distinctions that are of de minimis meaning and effect to these growers who have banded together for processing and marketing purposes within the purview of the Clayton and Capper-Volstead Acts. There is no indication that the use of separate corporations had economic significance in itself or that outsiders considered and dealt with the three entities as independent organizations. That the packing is done by local associations, the advertising, sales, and traffic by divisions of the area association, and the processing by separate organizations does not in our opinion preclude these growers from being considered one organization or association for purposes of the Clayton and Capper-Volstead Acts.
Since we hold erroneous one theory of liability upon which the general verdict may have rested — a conspiracy among petitioners and Exchange Lemon — it is unnecessary for us to explore the legality of the other theories. As was stated of a general verdict in Maryland v. Baldwin, 112 U. S. 490, 493 (1884), “[I]ts generality prevents us from perceiving upon which plea they found. If, therefore, upon any one issue error was committed, either in the admission of evidence, or in the charge of the court, the verdict cannot be upheld . . . Suffice it to say that our decision in no way detracts from earlier cases holding agricultural cooperatives liable for conspiracies with outside groups, United States v. Borden Co., 308 U. S. 188 (1939), and for monopolization, Maryland & Virginia Milk Producers Assn. v. United States, 362 U. S. 458 (1960).
Reversed and remanded.
Mr. Justice Frankfurter took no part in the decision of this case.
Mr. Justice White took no part in the consideration or decision of this case.
These include juices, concentrates, oil, pectin, pharmaceuticals, and cattle feed.
Some by-product fruit is sold to or processed by independent processors.
Sunkist also sold by-product oranges to additional companies for processing into by-products other than canned orange juice.
The soluble solids content of the oranges processed by TreeSweet under this contract averaged 131.6 pounds per ton.
The soluble solids content of these oranges averaged 120 pounds per ton.
It could be argued that the instructions also permitted the jury to find an illegal conspiracy solely between petitioners. Our holding renders unnecessary an evaluation of this interpretation of the charge.
“Sec. 6. That the labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.”
The Act has certain organizational requisites which are not in issue here.
61 Cong. Rec. 1036 (1921) (remarks of Representative Black); 62 Cong. Rec. 2052 (1922) (Senator Kellogg); 62 Cong. Rec. 2061 (1922) (Senator Capper); 62 Cong. Rec. 2277 (1922) (Senator Walsh).
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
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.
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al., Appellants, v. FLORIDA EAST COAST RAILWAY COMPANY et al., Appellees.
No. 21060.
United States Court of Appeals Fifth Circuit.
June 8, 1965.
Thomas W. McAliley, Alan R. Schwartz, Nichols, Gaither, Beckham, Colson & Spence, Miami, Fla., for appellant.
William P. Simmons, Jr., Shutts, Bowen, Simmons, Prevatt, Boureau & White, Miami, Fla., for appellee, Florida East Coast Ry. Co.
Granville M. Alley, Jr., Denzil Y. Causey, Jr., Tampa, Fla., Neal Rutledge, Miami, Fla., for appellee, Broward County Port Authority, Fowler, White, Gillen, Humkey & Trenam, Tampa, Fla., of counsel.
Before JONES and BELL, Circuit Judges, and HUNTER, District Judge.
GRIFFIN B. BELL, Circuit Judge:
This is an appeal by employees of the Broward County (Florida) Port Authority and their unions from an order of the District Court enjoining the Port Authority and its employees from refusing to switch cars of the Florida East Coast Railway. The controlling question presented is whether the injunction as against the employees represented by appellants is barred by the NorrisLaGuardia Act, 29 U.S.C.A. § 101 et seq. We hold that it is and reverse.
In January 1963, certain employees of the Florida East Coast Railway went out on strike. The strikers set up picket lines at various points on FEC property. One area picketed was FEC’s interchange track which connects FEC’s tracks with those of the Broward County Port Authority. The Port Authority operates an independent belt line for the purpose of transferring cars from trunk lines to the dock facilities owned and operated by the Authority at Port Everglades. The Port Authority is under contract with FEC to switch FEC cars from the interchange track to the docks. After the picket lines went up at the interchange track, the Port Authority switching crews refused to cross the lines to pick up FEC cars.
The FEC, which was continuing to operate despite the strike against it, sought to compel the Port Authority to carry out its contractual obligations and its duty under the interchange section of the Interstate Commerce Act, 49 U.S. C.A. § 3(4). The Port Authority itself commenced a suit to compel its employees to service FEC tracks, but this action was dismissed without prejudice. The FEC then brought the present action against the Port Authority seeking an injunction requiring the Port Authority to switch its cars. The District Court entered a preliminary injunction prohibiting the Port Authority “and all of its officers, agents, servants, employees and attorneys, and all persons acting in concert and participation with them” from refusing to service the FEC tracks in accordance with the interchange agreement between the two railroads. The effect of the injunction was to require the Port Authority’s switching crews to cross the FEC picket line. Consequently, individual members of the switching crews and their unions were permitted to intervene. A second hearing was held at which the intervenors urged, inter alia,, that the injunction was barred by the Norris-LaGuardia Act. The District Court refused to dissolve the injunction, and the intervening employees and unions have brought the case here.
The Norris-LaGuardia Act, 29 U.S. C.A. § 104, provides:
“No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
“(a) Ceasing or refusing to perform any work * *
We begin by noting that the effect of the injunction entered below was to prohibit employees of the Port Authority, including appellants, from refusing to perform work, i. e., refusing to cross the FEC picket line. The injunction specifically binds the Port Authority “and all of its * * * employees.” Secondly, there is concededly a labor dispute between FEC and its employees. Under 29 U.S.C.A. § 113(c), the definitional section of the Norris-LaGuardia Act, the term “labor dispute” is broadly defined as any controversy over the terms or conditions of employment regardless of whether or not the disputants stand in the proximate relation of employer and employee.
We also think it is clear that this case involves or grows out of the labor dispute at FEC and that the Port Authority employees are persons interested in that dispute. The Port Authority employees refused to service the FEC interchange track solely because of the strike and picketing at FEC. This litigation would never have arisen were it not for the labor dispute at FEC. The Authority’s employees are interested in the dispute in that they are members of the same trade or industry as the striking FEC workers, see 29 U.S.C.A. § 113(b), and desire to make common cause with them by honoring their lawful picket line.
Thus, the literal language of the Norris-LaGuardia Act covers the situation presented here. The oft-stated congressional policy of that act was to prevent injunctive interference in labor disputes and to allow such controversies to be settled through negotiation and the free play of economic forces. 29 U.S.C.A. § 102; Sinclair Refining Co. v. Atkinson, 1962, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440; Order of Railroad Telegraphers v. Chicago & N. W. R. Co., 1960, 362 U.S. 330, 80 S.Ct. 761, 4 L.Ed.2d 774. This policy finds plain application here, since the effect of the injunction is to nullify the picket line and give FEC an advantage in the dispute it has with its employees. See Lee Way Motor Freight v. Keystone Freight Line, Inc., 10 Cir., 1942, 126 F.2d 931, cert. den., 317 U.S. 645, 63 S.Ct. 37, 87 L.Ed. 519, applying the Norris-LaGuardia Act in a comparable factual situation, and cf. Marine Cooks & Stewards, AFL v. Panama S.S. Co., 1960, 362 U.S. 365, 80 S.Ct. 779, 4 L.Ed.2d 797.
FEC’s primary contention is that even if the Norris-LaGuardia Act would otherwise be applicable, that enactment is superseded by the provisions of the Railway Labor Act, 45 U.S.C.A. § 151 et seq., requiring compulsory arbitration of minor disputes. The Supreme Court held in Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad Co., 1957, 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622, that Congress intended that compulsory arbitration under § 3, First, 45 U.S.C.A. § 153(i), of the Railway Labor Act should be the exclusive mode of settling minor disputes, and that consequently a strike over a minor dispute may be enjoined notwithstanding the Norris-LaGuardia Act. Under the Railway Labor Act, minor disputes involve grievances or questions of interpretation of an existing collective bargaining contract; major disputes arise from efforts to change working conditions through the making of a new agreement. 45 U.S.C.A. § 152, sixth, seventh; Elgin, J. and E. R. Co. v. Burley, 1945, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886, 1894-1895. FEC argues that this case actually involves a minor dispute between the Port Authority and its employees, rather than a major dispute at FEC, and that consequently the refusal to cross the picket line may be enjoined.
In our view, this argument ignores the realities of the factual situation before us. It is the FEC that seeks the injunction, not the Port Authority. Neither the Port Authority nor its switching crews have submitted the controversy to the Railroad Adjustment Board for arbitration, and the switching employees are in no way defeating the jurisdiction of that body. Consequently, the injunction entered below does not operate to preserve the jurisdiction of the Board over any minor dispute between the Port Authority and its employees; it operates to impede the strike over the major dispute at FEC. Thus, the injunction in no way serves the policy of the Railway Labor Act, whereas, as noted supra, it is in direct conflict with the policy of the Norris-LaGuardia Act.
In the present case, the Norris-LaGuardia Act and the Railway Labor Act can be easily accommodated, and this accommodation requires that the injunction entered by the District Court be dissolved. See Northwest Airlines, Inc. v. Transport Workers Union, W.D.Wash., 1961, 190 F.Supp. 495, holding that the Norris-LaGuardia Act prohibited an injunction to require one group of employees to cross a picket line set up by another group of employees of the same employer, and where the refusal to cross the picket line was treated as being a part of the major dispute. But see International Association of Machinists AFL-CIO v. Northwest Airlines, 8 Cir., 1962, 304 F.2d 206, where the major dispute and minor dispute were separated for purposes of the Norris-LaGuardia Act. We hold under the facts of the instant case that the refusal to cross the picket line is a part of the major dispute at FEC.
FEC also argues that the NorrisLaGuardia Act has been amended pro tanto by the interchange section of the Interstate Commerce Act, 49 U.S.C.A. § 3(4), quoted at note 1 supra. This contention is without merit. Cf. Texas & New Orleans R.R. v. Brotherhood of Railroad Trainmen, 5 Cir., 1962, 307 F.2d 151. Section 3(4) merely imposes a duty on earners to provide adequate connecting facilities without discrimination, and does not purport to regulate labor conditions in any manner whatsoever. Again, the clear language of the NorrisLaGuardia Act must control.
In sum, we hold that the Norris-LaGuardia Act is applicable to the present case and is not preempted by any other federal legislation. It follows that the order of the District Court refusing to dissolve the injunction to the extent it is binding on appellants here must be and it is
Reversed.
. “§ 3, par. (4). Interchange of traffic. All carriers subject to the provisions of this chapter shall, according to their respective powers, aiford all reasonable, proper, and equal facilities for the interchange of traffic between their respecting lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distribution of traffie that is not specifically routed by tbe shipper. As used in this paragraph the term ‘connecting line’ means the connecting line of any carrier subject to the provisions of this chapter or any common carrier by water subject to chapter 12 of this title.”
. See. Chicago & Illinois Midland Railway Co. v. Brotherhood of Railroad Trainmen, 8 Cir., 1963, 315 F.2d 771, vacated as moot, 375 U.S. 18, 84 S.Ct. 61, 11 L.Ed.2d 39 on the question which would he presented should the Port Authority seek an injunction. See particularly the dissenting opinion on the problem of separating the major dispute from the minor dispute, and accommodating this difficulty with the more specific provisions of the NorrisLaGuardia Act.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
LOCAL NO. 370, BAKERY, CONFECTIONERY AND TOBACCO WORKERS INTERNATIONAL UNION OF AMERICA, AFL-CIO and James E. Ray, Sr., Plaintiffs-Appellees, v. COTTON BROS. BAKING CO., INC., Defendant-Appellant.
No. 81-3188.
United States Court of Appeals, Fifth Circuit.
April 9, 1982.
Ernest R. Malone, Jr., New Orleans, La., for defendant-appellant.
Daniel E. Broussard, Jr., Alexandria, La., for plaintiffs-appellees.
Before BROWN, GEE and GARWOOD, Circuit Judges.
PER CURIAM:
This suit originated with a grievance filed by James E. Ray, a member of Local No. 370, Bakery, Confectionery and Tobacco Workers International Union of America, AFL-CIO (Union), against his employer, Cotton Brothers Baking Co., Inc. (Cotton Brothers). Mr. Ray, who had a history of tardiness and absenteeism, experienced automobile problems on the morning of March 4, 1979, which made it difficult to get to work. Later that day, Ray was fired, and subsequently he filed a grievance. The collective bargaining agreement between the Union and Cotton Brothers provided for arbitration of such disputes, and, after a hearing, the arbitrator found (i) that Cotton Brothers had not properly and objectively investigated the incident, and (ii) that Ray’s failure to report to work after his car broke down did not constitute just cause to fire him. On the basis of these findings, Ray’s reinstatement with back pay was ordered. Cotton Brothers refused to comply with the order, and this action was brought by the Union and Ray to enforce the arbitrator’s decision. Finding no errors in the arbitration proceedings or award, the District Court granted a summary judgment in favor of Ray and the Union. We affirm.
Summary judgment is appropriate when, viewing the case in a light most favorable to the opposing party, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. U. S. v. R & D One Stop Records, Inc., 661 F.2d 433, 435-36 (5th Cir. 1981). In its order dated July 28,1980, the District Court found no dispute as to the labor agreement providing for arbitration, the arbitrator’s reinstatement of Ray, and Cotton Brothers’ refusal to comply with the award. Citing the Steelworkers trilogy, the District Court held that an arbitrator’s decision under a labor agreement must be enforced except under unusual circumstances. Because it was unable to substitute its judgment for that of the arbitrator, the District Court granted summary judgment to the Union and Ray. We are in full agreement that summary judgment was proper in this instance. “The courts .. . have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim.” United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403, 1407 (1960).
In an earlier ruling, dated April 29, 1980, the District Court granted the Union’s motion to strike Cotton Brothers’ affirmative defenses and counterclaim on the basis of Louisiana’s three month statute of limitations. La.Rev.Stat. 9:4213. We need not reach this issue in light of the District Court’s later ruling, on the merits, that the bargained-for arbitrator’s decision was supportable and binding. The trial judge’s approach to and analysis of this case, when he finally ruled on the merits and granted a summary judgment, was not based upon the earlier order striking the defenses and counterclaim.
Finally, Cotton Brothers urges on appeal that the District Court should not have awarded attorney fees to the Union and Ray. “The District Court has authority to award attorney’s fees where it determines that a party has without justification refused to abide by the award of an arbitrator.” United Steelworkers v. U. S. Gypsum Co., 492 F.2d 713, 734 (5th Cir.), cert. denied, 419 U.S. 998, 95 S.Ct. 312, 42 L.Ed.2d 271 (1974). Cotton Brothers failed to present a genuine issue of material fact in opposing the motion to enforce the award, and under all the circumstances we cannot say that the District Court abused its discretion in the award of attorneys’ fees.
AFFIRMED.
. United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_direct1
|
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.
Lydia WILLIAMS v. Delano DOWLING, Appellant.
No. 13923.
United States Court of Appeals Third Circuit.
Argued at Christiansted Jan. 31, 1963.
Decided June 11, 1963.
Russell B. Johnson, Christiansted, St. Croix, V. I., for appellant.
James H. Isherwood, Christiansted, St. Croix, V. I. (Warren H. Young of Young & Isherwood, Christiansted, St. Croix, V. I., on the brief), for appellee.
Before MARIS, WOODBURY and HASTIE, Circuit Judges.
MARIS, Circuit Judge.
The defendant, Delano Dowling, appeals from a judgment of the District Court of the Virgin Islands in favor of the plaintiff, Lydia Williams, in an action brought by the plaintiff, the widowed mother of Averill Williams, to recover damages for the death of her minor son resulting from a mortal wound caused by a shot from defendant’s shotgun discharged by defendant’s minor half-brother, Richard Francis. The case was tried without a jury. The trial judge found that the defendant was guilty of negligence in leaving the shotgun accessible to Richard Francis and, without making any specific findings as to damages, awarded the plaintiff $5,000 plus costs and attorney’s fees. On this appeal the defendant contends that the evidence does not establish any negligence on his part and that the law and the evidence do not support the award of any damages to the plaintiff.
The right to recover damages for wrongful death is purely statutory since no such right was given by the common law. In the Virgin Islands such a right of action is given by section 76 of title 5, V.I.C. Section 75 of title 5, V.I.C., provides for an action for injury to a minor child to be brought by his parent or guardian to recover damages for the injury which the child has suffered, and both sections 75 and 77 of the same title provide that such an action shall not abate in case the injured child subsequently dies. In the present case Averill Williams died on his way to the hospital shortly after being shot and no claim is made on his behalf for the injury suffered by him. Accordingly sections 75 and 77 are not relevant to the case before us which must find its statutory support in section 76. The provisions of that section are as follows:
“§ 76. Action for wrongful death “When the death of a person not being a minor, or when the death of a minor person who leaves surviving him either a husband or wife or child or children or father or mother, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or in case of the death of such wrongdoer, against the personal representative of such wrongdoer, whether the wrongdoer dies before or after the death of the person injured. If such other person is responsible for any such wrongful act or neglect, the action may also be maintained against such other person, or in case of his death, his personal representatives. In every action under this section, such damages may be given as under all the circumstances of the case may be just, but shall not include damages recoverable under section 77 of this title. The respective rights of the heirs in any award shall be determined by the court. Any action brought by the personal representatives of the decedent pursuant to the provisions of section 77 of this title may be joined with an action arising out of the same wrongful act or neglect brought pursuant to the provisions of this section. If an action is brought pursuant to the provisions of this section and a separate action arising out of the same wrongful act or neglect is brought pursuant to the provisions of section 77 of this title, such actions shall be consolidated for trial on the motion of any interested party.”
The revision notes to sections 75, 76 and 77 of title 5, V.I.C., indicate that they were all taken from the California law, section 76 being taken directly from section 377 of the Code of Civil Procedure of California. Therefore, under the rule of statutory construction which the District Court has heretofore properly followed in considering Virgin Islands legislation taken from other jurisdictions, we must construe section 76 to mean what the courts of California, prior to the enactment of that section, had construed section 377 of their Code of Civil Procedure to mean.
The California courts have uniformly held that in an action under section 377 of their Code of Civil Procedure no award of damages may be made for injuries sustained or expenses incurred by the deceased prior to his death. Nor may damages be awarded to the heir for the bereavement, sorrow and mental anguish which he has suffered as a result of the death. Nor may exemplary or punitive damages be awarded. The heir of the deceased who brings the action may only be awarded damages for the wrongful death of the deceased if he is shown to have sustained pecuniary loss by reason of the wrongful death. It is only the pecuniary losses suffered by the heir which may be considered in carrying out the mandate of section 76 to award damages which will be just “under all the circumstances of the ease.” Such damages may include a pecuniary loss arising from the deprivation of the society, comfort and protection of the deceased. The pecuniary loss for which damages may be recovered may be either a loss arising from deprivation of something to which the heir would have been legally entitled, such as support, or may arise from a loss of benefits which under the circumstances could reasonably be expected to have accrued to the heir, even though the obligation resting on the deceased to bestow such benefits may have been a moral one only. It is thus the probable pecuniary loss to the plaintiff or those in whose behalf he sues which is the measure of damages in actions under section 76. But in fixing' the amount of damages, the trier of the facts is always bound by the fundamental rule that pecuniary damages is the limit of recovery, and the amount allowed must, therefore, bear some reasonable relation to the loss shown by the evidence.
The construction placed by the California courts upon the death statute from which section 76 was derived is summed up in Zeller v. Reid, 1940, 38 Cal.App.2d 622, 101 P.2d 730, 731, as follows:
“ * * * Rules governing the measure of damages in cases of this kind are well established. A plaintiff can only recover such pecuniary loss to her as is established by the evidence. This does not include damages for anguish caused by the loss of a loved one. Nothing can be recovered by way of solatium for wounded feelings and such loss may not be considered by the jury in assessing damages. However, the jury may consider the pecuniary value of the society, comfort and protection which might reasonably be expected had the child lived. The amount allowed therefor must be shown to be reasonably related to such pecuniary loss as is shown by the evidence. Ordinarily * * * the parent is entitled to the pecuniary value of the services of the child during minority. She is also entitled to compensation for any pecuniary loss suffered by reason of having been deprived of any pecuniary benefit reasonably to be expected from the child after his majority had he lived. Again, in fixing such pecuniary loss, the evidence must show some relation between the amount awarded and the amount which the parent might have reasonably expected the child to have contributed to her support had he lived and reached his majority. This involves his prospective earning power.”
It is in the light of the rules thus laid down by the courts of California that section 76 of title 5, V.I.C., must be construed and applied by the District Court.
In the case how before us the plaintiff’s complaint contains no allegations of pecuniary loss and prays only for “actual damages for her bereavement, pain and suffering, and punitive damages, all in the total sum of $5,000.-00.” It will at once be observed that none of the elements of damages claimed is of the kind which is recoverable under section 76. This alone, while significant as to the nature of the plaintiff’s claim, would not be enough to compel reversal of the judgment if the plaintiff had offered any evidence of pecuniary loss, since Rule 15(b) of the Rules of Civil Procedure is liberal in authorizing the amendment of pleadings to conform to the evidence. But a careful reading of the record in this case fails to disclose any evidence whatever bearing upon pecuniaiy damage which the plaintiff claimed to have sustained or might be expected to sustain as a result of her son’s death, or which would furnish support for a finding of such damages. And, as we have said, the trial judge made no findings on the subject of damages, pecuniary or otherwise. It necessarily follows that the award of damages of $5,-000.00 was unwarranted and cannot stand, even though the evidence should be held to support the finding of negligence, a question upon which we need not pass.
The judgment of the District Court will be reversed.
. The word “such” here appears to be a typographical error, since its use makes the sentence in effect a mere duplication of the preceding one. In section 377 of the California Code of Civil Procedure the word used at this point is “any” which gives the second sentence of the section its obvious meaning and purpose of permitting suit against any person other than the one whose wrongful act or neglect was the primary cause of the death, if such other person was also responsible for such wrongful act or neglect.
. Municipality v. Stakemann, D.C.V.I.1924, 1 V.I. 60; James v. Henry, D.C.V.I.1957, 3 V.I. 273, 157 F.Supp. 226. And see Starns v. Humphries, 9 Cir., 195], 189 F.2d 357, 359, 13 Alaska 258.
. Gallup v. Sparks-Mundo Engineering Co., 1954, 43 Cal.2d 1, 271 P.2d 34, 39.
. Munro v. Pacific Coast Dredging & Reclamation Co., 1890, 84 Cal. 515, 24 P. 303, 305-306.
. Lange v. Schoettler, 1896, 115 Cal. 388, 47 P. 139.
. As sole surviving parent of the deceased minor child, who was unmarried, the plaintiff is his heir under section 84(3) of title 15, V.I.C., and as sucli was entitled to bring an action under section 76.
. Bond v. United Railroads of San Francisco, 1911, 159 Cal. 270, 113 P. 366, 48 L.R.A.,N.S., 687; Fuentes v. Tucker, 1947, 31 Cal.2d 1, 187 P.2d 752, 757. See Annotations, Measure and elements of damages for personal injury resulting in death of infant, 14 A.L.R.2d 485; Excessiveness and inadequacy of damages for personal injury resulting in death of infant, 14 A.L.R.2d 550.
. Wyseur v. Davis, 1922, 58 Cal.App. 598, 209 P. 213, 216; Hunton v. California Portland Cement Co., 1944, 64 Cal.App. 2d 876, 149 P.2d 471, 474, 150 P.2d 221; Tyson v. Romey, 1948, 88 Cal.App.2d 752, 199 P.2d 721, 724-725.
. Williams v. McDowell, 1939, 32 Cal.App.2d 49, 89 P.2d 155, 157.
. Cossi v. Southern Pac. Co., 1930, 110 Cal.App. 110, 293 P. 663; Casselman v. Hartford Accident & Indemnity Co., 1940, 36 Cal.App.2d 700, 98 P.2d 539, 544.
. Dickinson v. Southern Pac. Co., 1916, 172 Cal. 727, 158 P. 183, 1S5; Zeller v. Reid, 1938, 26 Cal.App.2d 421, 79 P.2d 449, 450.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_const1
|
3
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
NELSON v. SECRETARY OF AGRICULTURE.
No. 8031.
Circuit Court of Appeals, Seventh Circuit.
Feb. 17, 1943.
Charles J. Gallagher, John P. Costello, and James J. Coughlin, all of Chicago, 111., for petitioner.
Daniel B. Britt, of Chicago, 111., and Robert C. Barnard, of Washington, D. C., for respondent.
Before EVANS, MINTON, Circuit Judges, and LINDLEY, District Judge.
LINDLEY, District Judge.
Employing the remedy afforded by Section 6b of the Commodity Exchange Act, 7 U.S.C.A. § 9, petitioner seeks to set aside an order of the Secretary of Agriculture, denying him all trading privileges on all contract markets for the period of ninety days and directing that such markets refuse him such privileges for that period, entered in a proceeding instituted by the Secretary as provided in said Section 6b, wherein respondent was charged with having (1) failed to register as a floor broker with the Secretary; (2) willfully and knowingly, without prior consent of his principal, Fenner and Beane, or the customers for whom he made trades, become the buyer with respect to selling orders and the seller with respect to buying orders, and, (3) entered into other transactions in violation of the Act.
The Referee to whom the matter was referred for hearing, after reciting the history of events over a period extending from September, 1937 to June 19, 1941, found that petitioner, as a floor broker, make contracts for future delivery of wheat for Fenner and Beane and certain other clearing members of the Chicago Board of Trade, receiving compensation only from the first named firm; that he did not register until May, 1940; that until that time he believed that he was not required to register; that on February 17, 1940, and on fifty-six other occasions, petitioner, knowingly and willfully took the other side of his customers’ orders without prior consent from his principal or its customers in violation of Section 4b (D), 7 U.S.C.A. § 6b (D).
The Referee recommended petitioner’s suspension from all trading privileges on contract markets for the period of one year. The Assistant Secretary adopted substantially the findings of the Referee, concluding (1) that petitioner had acted as a broker without registering for more than two years and (2) that he had willfully and knowingly taken the other side of his customers’ orders without prior consent, and suspended him from trading privileges for ninety days.
Petitioner does not question the fact that he did not register prior to 1940 as a floor broker or deny that he carried on the activities of a broker within the meaning of the Act in many transactions for Fenner and Beane, a clearing house by whom he was employed, or claim that in these transactions he was exempt from registration. His position is that he was misled by the regulations and pronouncements, oral and written, of the Secretary’s administrative office to believe that it was not necessary for him to register, inasmuch as he represented only one clearing house, and he emphasizes the fact that when he discovered that he was required to register, he readily complied. Obviously, if he was required to register, his failure to do so is not excused by such circumstances. They were pertinent only in determining for how long he should be suspended. Nichols & Co. v. Secretary of Agriculture, 1 Cir., 131 F.2d 651, 659.
He denies that substantial evidence supports the finding that he represented other clearing houses, points out that it is undisputed that he received no brokerage fees from them and insists that properly only one construction can be put upon those transactions, namely, that in each of them he was the principal trading on his own account and the clearing house, his broker. In view of the fact that the law required him to register, even though he represented only one house, we think it unnecessary to attempt to characterize properly his true legal status in his transactions with houses other than Fenner and Beane.
Petitioner objects to a finding of the Secretary that he entered into cross trades; but the evidence bearing upon this issue is not preserved in the record, and, though he does not insist that we may review the finding, he contends that the requirement of the Act that he shall not engage in “cross trades” is so indefinite and uncertain as a statutory definition of the prescribed standard of conduct as to afford him no opportunity to be advised of the real charge against him.
The statute does not define “cross trades” and the record does not disclose what constitutes such a trade but, in view of our conclusions, it is unnecessary for us to pass upon the factual question of whether petitioner engaged in cross trades or the legal question of whether the statutory definition is so indefinite as to be invalid. This follows from the fact that, as indicated, there is no denial of violation of the requirements to register and from the further fact that petitioner willingly and knowingly took the other side of his customers’ orders without prior consent. On the latter fact, the evidence upon which the Secretary relied is not in the record. Consequently there can be no review of the facts; we must accept the finding as it comes to us. Inasmuch as Section 4b (D) forbids willingly and knowingly taking the other side of a customer’s order without prior consent and inasmuch as we are bound by the finding, petitioner’s violation in this respect must stand unimpeached in fact. The only questions for our consideration, therefore, are entirely legal in character.
In enacting the legislation the Congress found that dealing in commodities is “affected with a national public interest” and that various transactions and practices had grown up detrimental to the producer, the consumer and those of the public engaged in commerce to such an extent as to amount to burdens upon and obstructions to commerce in commodities. Following this congressional finding of fact, that body expressly provided that, before engaging in' buying and selling commodities on contract markets, a floor broker should register with the Secretary and, among other things, should not “willingly and knowingly and without prior consent of his principal or customer become the buyer with respect to any selling order of such person or become the seller in respect to any buying order of such person.” In view of its unimpeached finding of fact, Congress, by virtue of the commerce clause, had authority to remove the burdens upon and obstructions to commerce and to require those engaged in purchasing and selling commodities on' contract markets to follow certain standards of practice as a legitimate and reasonable means of effectuating removal of such burdens and obstructions. Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839; Bartlett Frazier Co. v. Hyde, 7 Cir., 65 F.2d 350; Board of Trade of City of Chicago v. Wallace, 7 Cir., 67 F.2d 402; Moore v. Chicago Mercantile Exchange, 7 Cir., 90 F.2d 735.
The requirement to register is admittedly reasonable and no one has had the temerity to urge that a requirement that brokers shall not take the opposite side of their principals or customers in trades is in any wise unreasonable. In as much as Congress has jurisdiction over and the right, to regulate the activities of contract mar-kets and has prescribed reasonable rules governing the conduct of such markets with a view to preventing abuses and securing freedom from discriminating burdens and obstructions, petitioner and all others similarly situated are bound by the legislation. The court may not- interfere with this regulation of commerce under a power granted by the Constitution, unless some vital constitutional right of petitioner has been violated, or unless the action required is unnecessary or inappropriate for the protection of consumers, producers and the public. All this petitioner does not dispute, but he contends that Section 6b as interpreted in this proceeding, is unconstitutional because the charge and order are criminal in character and that to give such force to the Act is to work delegation of judicial functions to the Secretary and to violate Sections 1 and 2 of Article III of the Constitution and the Fifth and Sixth Amendments.
A similar contention was presented in Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 43, 43 S.Ct. 470, 67 L.Ed. 839, but the court found it unnecessary to decide it for the reason that the complaining parties had not been charged with commission of acts which would have subjected them to punishment. But this court, in Board of Trade of City of Chicago v. Wallace, 67 F.2d 402, 407, expressed the belief that the Supreme Court in the Olsen case had at least impliedly approved the statutory scheme for enforcing observance of the Act.
As the Circuit Court of Appeals for the First Circuit states in Nichols & Co. v. Secretary of Agriculture, 131 F.2d 651, 659: “Suspension of a registrant is not primarily punishment for a past offense but is a necessary power granted to the Secretary of Agriculture to assure a proper adherence to the provisions of the Act.” In Board of Trade of City of Chicago v. Wallace, 7 Cir., 67 F.2d 402, 407, certiorari denied 291 U.S. 680, 54 S.Ct. 529, 78 L.Ed. 1067, petitioner alleged that Section 6a, 7 U.S.C.A. § 8, was unconstitutional for the reasons here advanced. Section 6a provides that a commission composed of the Secretary of Agriculture, the Secretary of Commerce, and the Attorney General may suspend for a period of six months, or revoke, the designation of any board of trade as a “contract market” upon showing that it has failed or is failing to comply with any of the requirements of the Act. We said: “The premise that this is in essence a criminal proceeding rests wholly in assertion; no authority is cited in support. We see nothing of criminal nature in a proceeding for the revocation of a license or permit or designation granted under the authority of a statute which also authorizes revocation in case the grantee transgresses the statute.”
In Wright v. Securities and Exchange Commission, 2 Cir., 112 F.2d 89, 94, a similar provision in the Securities and Exchange Act was construed. Section 19(a) (3) of the Act, 15 U.S.C.A. § 78s (a) (3) provides that the Securities and Exchange Commission may suspend or expel from the Exchange any member or officer who has violated any provision of the Act. The court upheld an order of the Commission expelling petitioner saying: “In considering the order of expulsion as a punishment for past offenses the petitioner is in error. Section 19a (3), * * * authorizes an order of expulsion not as a penalty but as a means of protecting investors, if in the Commission’s opinion such action is necessary or appropriate to that end. Since the purpose of the order is remedial, not penal, there is no basis for the contention that Wright’s violation of the statute must be proved beyond a reasonable doubt. See Board of Trade v. Wallace, 7 Cir., 67 F.2d 402, 407.”
It is true that Section 19(a) (3) of Securities and Exchange Act expressly provides that the commission may suspend or expel members of the Exchange if in its opinion “such action is necessary or appropriate for the protection of investors.” However, the absence of a specific provision to that effect in Section 6b of the Commodity Exchange Act does not alter the legal situation. As notice is given by section 3, 7 U.S.C.A. § 5, that the Act is intended to promote the national interest and prevent undue burdens on commerce, this expressed intent governs as well all administration of the Act.
In permitting petitioner to buy and sell grain for future delivery on contract markets, the Government has in effect granted him a privilege. Suspension of such a privilege for failure to comply with the statutory standard is merely withdrawal by the Government of permission to engage in a business affected with the national public interest in which the person has no inherent right to engage, but in which he may participate only upon compliance with conditions imposed by Congress in the exercise of its power over commerce. Inasmuch as Congress has the power to fix conditions upon which petitioner may engage in trading on the market (Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839), it may, through an administrative agency, withdraw the privilege for violation of these conditions. Farmers Livestock Commission Co. v. United States, D.C.E.D.Ill., 54 F.2d 375, 378 (Court of three judges); Board of Trade v. Wallace, 7 Cir., 67 F.2d 402, 407; Wright v. Securities & Exchange Commission, 2 Cir., 112 F.2d 89, 95; Hall v. Geiger-Jones Co., 242 U.S. 539, 37 S.Ct. 217, 61 L.Ed. 480, L.R.A.1917F, 514, Ann.Cas.1917C, 643; Brinkley v. Hassig, 10 Cir., 83 F.2d 351, 354.
As the order of the Assistant Secretary was a proper administrative act and infringed upon none of petitioner’s constitutional rights, it is affirmed.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_genapel2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
ANNING-JOHNSON COMPANY and Workinger Electric, Incorporated, Petitioners, v. UNITED STATES OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Peter J. Brennan, Secretary of Labor, United States Department of Labor, Respondents.
Nos. 74-1381, 74-1382.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 19, 1975.
Decided May 27, 1975.
John A. Jeffries, Steven H. Adelman, Chicago, 111., for petitioner.
McNeill Stokes, Atlanta, Ga., for amicus curiae.
Carla A. Hills, Asst. Atty. Gen., Judith H. Norris, Atty., App. Section, Civ. Div., Dept, of Justice, Washington, D. C., for respondents.
Before STEVENS, SPRECHER and TONE, Circuit Judges.
SPRECHER, Circuit Judge.
The single narrow issue in this appeal is whether subcontractors working at a multi-employer construction site can receive citations and be held liable for penalties under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [OSHA], for non-serious violations of standards promulgated by the Secretary of Labor to which their employees were exposed, but which the subcontractors neither created nor were responsible for pursuant to their contractual duties.
I
Wright Construction Company, Inc. was the general contractor for the con-' struction of a five-story steel and concrete bank building at Elkhart, Indiana. Petitioner Anning-Johnson Company was a subcontractor on the project with responsibility for furnishing and installing fireproofing for the building. Petitioner Workinger Electric, Inc. was a subcontractor on the same construction site with responsibility,for furnishing and installing electrical, plumbing and sheet metal work. Neither subcontractors’contract contained a description of their duties which included general construction or carpentry work.
On May 31, 1973, an Occupational Safety and Health Administration compliance officer inspected the construction site. At the time of the inspection Anning-Johnson employed four employees on the jobsite who were members of Plasters Local 46, Cement Masons Local 532 and Laborers Local 645. Workinger employed fifteen employees at the construction site who were members of Electrical Workers Local 153, Plumbers Local 278 and Sheet Metal Workers Local 164.
It was stipulated that at the time of the inspection that the five floors and the roof of the building were already in place. The walls of the building were not in place and each floor was open at the side and was more than six feet above the adjacent floor and ground level.
The inspector found that on each floor a single steel cable was strung tautly along the edges of the open-sided floor at a height of approximately 40 inches above the surface of the floor. The cable was affixed to vertical columns of the building which were along the edge of the floor, about 50 feet apart. Red ribbons were tied to the cable at various intervals. The cables were the only barrier along the edges of these open-sided floors. There were no intermediate rails in place. At the time of the inspection employees of both subcontractors worked near and at the edge of these open-sided floors.
Located in about the center of the interior of the building was a steel stairway running from the basement to the fifth floor. The stairway was approximately 42 inches wide and was open on both sides except for the presence on one side of the next higher flight of the stairway. Each flight of stairs had more than four risers. The stairway from the first to the fifth floor had a railing running along only one side in some areas and had no intermediate rails. Other areas had, on both open sides, a single railing without intermediate rails. The stairway was the only means of reaching the upper floors in the building and at the time of the inspection it was used by all employees to reach the various floors.
On each floor level there was a floor opening for an elevator shaft. The opening in the floor was a rectangle approximately 5 feet IIV2 inches by 16 feet 2 inches. On the fifth floor at the time of inspection the opening was guarded by a single wood rail running along the edges of the opening at a height of approximately 40 inches above the floor surface. There was no intermediate rail or toeboard along any of the four sides of the opening. The opening on the third floor was covered by 4 foot by 8 foot plywood sheets which lay unsecured on top of 4 inch by 4 inch pieces of lumber running along the two sides of the opening. These plywood sheets were not installed so as to prevent accidental displacement.
Because of these conditions the OSHA inspector cited Wright as well as both petitioners for non-serious violations of 29 C.P.R. §§ 1926.500(d)(1), 1926.500(b)(1) and 1926.500(e)(1). A total fine of $150 against each subcontractor was assessed.
It was further stipulated by the parties that neither subcontractor installed the cable, erected any of the railings, or placed the plywood sheets over the floor openings, but that these, were installed by employees of Wright or other subcontractors who were members of Carpenters’ Local 565 and Laborers’ Local 645. Petitioners were not, however, specifically prohibited by the general contractor or by their contract with the carpenters’ union from abating the alleged violations. Foremen of both subcontractors were aware of the conditions and nonetheless allowed their men to remain on the job.
The case was presented before the Administrative Law Judge on a theory that the Secretary of Labor’s enforcement policy of citing subcontractors for non-serious violations of OSHA standards created by employees of other employers and which could not be effectively abated by the cited subcontractors was not authorized by the Act. On February 11, 1974, the Administrative Law Judge denied petitioners’ motion for summary judgment and affirmed the citations issued and the proposed penalties. It is that decision which petitioners seek to have reviewed. 29 U.S.C. § 660(a).
II
The Occupational Safety and Health Act of 1970 was enacted in order to reduce the substantial burdens placed on interstate commerce because of work-related personnel injuries and illnesses. 29 U.S.C. § 651. Pursuant to the Act, an employer’s duty flows from two sources. First, the Act requires that employers “shall comply with... standards promulgated under this chapter.” 29 U.S.C. § 654(a)(2). Second, where no standards are applicable, Sun Shipbuilding & Drydock Co., 4 OSAHRC 1020, 1043 (1973) (Review Commission), an employer is subject to a general duty to “furnish... his employees. a place of employment... free from recognized hazards... likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). This appeal does not deal with the application of the general duty clause.
Pursuant to the Act, the Secretary of Labor is given general authority to promulgate occupational safety and health standards. 29 U.S.C. § 655.6 The Secretary is authorized to send his agents to a worksite to inspect the area and equipment. 29 U.S.C. § 657(a). If upon such investigation the Secretary or his representative believes that an employer has violated any standard he shall issue a citation setting forth the nature of the violation and a reasonable time for abatement. 29 U.S.C. § 658(a). Thereafter, the Secretary shall notify the employer of any proposed penalty. The employer may contest the citation or the proposed penalty or both.
The Commission, through its decisions, has consistently taken the position that, exposure to conditions that violate one of the construction standards constitutes a sufficient basis upon which the Secretary may issue a citation and assess a fine against a subcontractor pursuant to 29 U.S.C. §§ 654(a)(2), 666, notwithstanding the fact that the violation is non-serious and was not created by the cited subcontractor. Thus, in Charles S. Powell d/b/a Powell Electric, 3 OSAHRC 1056 (1973) (Review Commission Judge), it was said:
[T]hese contentions by Respondent evade the real issue which is the exposure, if any, by Respondent of his employees to hazards. The underlying duty of each and every employer under Section 5 of the Act, regardless of whether an alleged violation was predicated upon paragraph (a)(1) or (a)(2) thereof, is to refrain from exposing employees to hazards. The Act grants no exceptions nor does it permit any delegation of this duty. The Act does not abridge the right to contract, it merely implies that an employer cannot by contract evade this duty to furnish a place of employment that is free of hazards. This duty is imposed upon each employer and makes no distinction as to whether the employer is a general contractor or a subcontractor; it may even include a lessor of employees relinquishing all control. Further the Act does not allow for any severance of responsibility predicated upon who produced or created the hazard or who may initially be responsible for its eradication.
Simply stated, whenever a subcontractor exposes his employees to hazards the employer subjects himself to the enforcement provisions of the Act and this is so regardless of who created the hazard or who may be responsible for its elimination.
Id. at 1060-61.
The Commission’s position and the one which the Secretary urges on this appeal has not gone uncriticized. In Robert E. Lee Plumbers, Inc., OSHRC Docket No. 2431 (Jan. 30, 1974) (Commission Review Ordered), it was said:
Admittedly, the respondent is responsible for the “place of employment,” yet no one should conclude that such responsibility imposed by the Act embraces the entire work project as shown in this case. This responsibility is the responsibility of the prime contractor. What then is the responsibility of the respondent, as a subcontractor employer? His responsibility is his worksite or that portion of the work as provided in his contract of employment. Under the Act, the respondent is required to comply with occupational safety and health standards and upon doing so, complys [sic] with the Act by furnishing a place of employment which is free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees. Laws usually follow the rule of reason and thus it would not be reasonable to require a subcontractor to insure a safe workplace for his employees, if to do so would embrace an entire work project on which numerous other contractors’ employees are working.
Under section 9(a) [29 U.S.C. § 658(a)] of the Act it is mandatory for an abatement period to be fixed with respect to each alleged violation. Respondent then is required to correct any violations, but can he correct a violation, the creation of which was not of his doing nor over which he has any control? Can respondent correct a violation which by doing so would interfere with the work endeavor of another subcontractor? Did Congress intend for an employer to correct a violation, to cease his portion of the work he is required to perform under contract, although the cause of the violation has no relation to his portion of the work under contract? Certainly, these queries must be resoundingly answered in the negative.
Id. at 7-8.
Similarly, Chairman Moran dissenting from the Commission’s reversal of R. H. Bishop Co., 8 OSAHRC 930 (1974) (Review Commission) adopted the following from the Administrative Law Judge:
In summary, therefore, while under the Act the employer is required to furnish a safe place to work, the Respondent cannot be held responsible for the default or conduct of the general contractor or other subcontractors on the job. It is in no position to guarantee compliance of all safety regulations by other employing units.
Id. at 938.
The reason for the divergent views is easily explainable. On the one hand the basic purpose of the Act is to prevent employment related injuries. The Secretary and a majority of the Commission have taken the position that this goal can best be achieved by imposing liability on a broad-based scale. Conversely, on the other side is the recognition that the prevailing position treats subcontractors, in light of the purposes of the Act, unnecessarily harshly and inequitably. We have carefully considered the position of both sides and have determined that the Act does not allow the Secretary to issue citations to the petitioning subcontractors for non-serious violations of the regulations involved in this case.
Ill
In reaching our conclusion we start with an analysis of the legislative scheme enacted by Congress. As previously stated the general duty clause provides that each employer shall furnish to his employees a place of employment free from serious hazards. 29 U.S.C. § 654(a)(1). It speaks in terms of furnishing a place of employment to employees such that they will not be exposed to the proscribed conditions, those conditions being ones that are “likely to cause death or serious physical harm.”
The other source of an employer’s duty under the Act states that an employer “shall comply” with regulations promulgated pursuant to the Act. 29 U.S.C. § 654(a)(2). This subsection, unlike (a)(1) (the general duty clause), does not speak in terms of employee exposure to hazards. If anything at all can be gleaned from the words of the subsection, it is that one who is to be charged with absolute liability be realistically in a position to comply with the promulgated standards. This, as will be shown, is not the case under the Secretary’s position.
It is true that the general duty clause was included in order to cover the most flagrant of situations and for which the Secretary had not promulgated appropriate regulations, so perhaps not much significance should be accorded the difference in language between the subsections. The varying thrust of the two subsections, however, is significant in at least one respect. The difference in language makes clear that when Congress desires to make mere exposure to a particular hazard a violation of the Act, it knows how to select language to clearly accomplish that goal. This conclusion is reenforced by the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 333, where the language clearly makes exposure to conditions which violated promulgated regulations a violation for both general and subcontractors alike.
We start then with the proposition that exposure to non-serious violations of standards promulgated pursuant to (a)(2) do not stand on the same footing as exposure to conditions that are likely to cause serious physical harm or death.
IV
If the literal language of the Act does not clearly require imposing liability on subcontractors for exposure of their employees to non-serious violations, neither does it clearly indicate that subcontractors should have some kind of broad exemption. In considering the proper interpretation of the statute, we have reviewed the legislative history carefully. Regretfully, we have found little that sheds significant light on the problem. We are, therefore, in the unenviable position of rendering an interpretation that seeks to fulfill the stated congressional purpose in an equitable manner, without the aid of a clear legislative record on the subject.
The purpose of the Act is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources... 29 U.S.C. § 651(b). It is clear that the Act is not nor could it be designed to eliminate all occupational accidents. Rather it is designed to require
a good faith effort to balance the need of workers to have a sale [sic] and healthy work environment against the requirement of industry to function without undue interference.
Legislative History, supra, note 15 at 435 (Remarks of Senator Williams).
The Act is designed not to punish, but rather to achieve compliance with the standards and the abatement of safety hazards. The underlying rationale in effectuating these purposes by placing primary responsibility on employers is that employers have primary control of the work environment and should therefore insure that it is safe and healthful. S.Rept.No.91-1282, 91st Cong., 2d Sess. 9 (1970); H.R.Rept.No.91-1291, 91st Cong., 2d Sess. 21 (1970). While this is true in most situations the application of that principle to the construction industry is not wholly accurate. On a multi-employer construction site, it is the general contractor who contractually controls the worksite. The subcontractor’s control, for all essential purposes, is contractually limited to his specific field (e. g. electrical, plumbing, painting). Indeed, the subcontractor’s contract in this case described their duties in limited terms. Thus, it is clear that the congressional reason for placing on the employer the primary responsibility for complying with occupational hazard and safety standards does not exist in the case of these challenging subcontractors.
V
It seems likely from the foregoing that Congress did not intend to adopt a broad mandatory rule providing that in all cases employee exposure to conditions which are violations of promulgated standards would result in employer liability. Such a rule would equate the employer’s duty to comply with the statute with a broader general obligation to assure safe and healthful working conditions for his employees under all circumstances. In short the Secretary’s rule, in addition to the employer’s clear duty to comply with promulgated standards within his control (29 U.S.C. § 654(a)(2)) and his duty to avoid exposing his employees to hazardous conditions likely to cause death or serious physical harm (29 U.S.C. § 654(a)(1)), would create a still broader general duty of avoiding exposure by his employees to non-serious technical violations created and within the control of third parties.
We must consider whether, even though such a nonstatutory general duty clause has not been mandated by Congress, it may nevertheless represent a rule which the Secretary has discretion to adopt. We conclude that the Secretary’s rule involves a policy choice of such magnitude and would lead to results under the Act, not intended by the Congress, that it may not be appropriately adopted without more direct statutory authorization. An examination of the effects of the Secretary’s rule on the construction industry and the policy considerations mitigating against such a rule confirms our conclusion.
We fail to see how requiring several different employers to place a proper guard rail over an opening or along the edge of open-sided floors or intermediate rails on stairways fulfills the purposes of the Act any more effectively than requiring only one employer to do so. The Secretary’s position is premised on the theory that the more people responsible for correcting any violation, the more likely it will get done. This is, of course, not necessarily true. Placing responsibility in more than one place is at least as likely to cause confusion and disruption in normal working relationships on a construction site. Such a policy might in effect prove to be counterproductive.
In any event even if the Secretary’s position on this point was correct, the benefits to be, gained from his policy must be considered in light of the other likely effects of that policy on the construction industry. To the extent that the Secretary has not allowed employers to avoid liability under the Act by contractual arrangements between the various employers, some employers have sought to place liability on the party at fault by contractual indemnification clauses that would operate whenever liability was imposed on a party not responsible for a cited violation. As these clauses continue to proliferate it will mean that the Secretary’s policy will tend unnecessarily to favor general contractors. When jobs are to be subcontracted out, it is usually the general contractor who will be bargaining from a position of strength and thus able to shift liability away from himself.
Even if contractual liability was fairly allotted to the party at fault, the Secretary’s policy of citing all employers at the site might necessitate litigation between the parties to finally affix liability. To require the parties in an ongoing relationship to resort to the courts to accomplish the objectives of fixing final responsibility for the abatement of minor hazards would seem to be an undesirable policy and one which Congress could not have intended.
In addition to the confusion that might be caused by the Secretary’s interpretation, the thrust of multi-employer liability is economically wasteful and in some cases totally impractical. The Secretary’s policy requires multiple expenditures in the discovery of violations. Since each employer is responsible for every violation to which his employees are exposed, they are in effect required to discover violations that are beyond their area of expertise. This requires electricians and plumbers for example to be familiar with the standards for general carpentry work and in reverse, that carpenters be familiar with standards bearing on the work of more technical specialists. Not only are the most obvious violations required to be discovered, but also the most subtle; ones not likely to cause serious physical harm or death. This is a burdensome requirement especially in relation to non-serious hazards.
In addition, the Secretary’s rule might cause duplicate expenditures to be made in the actual abatement of hazards by different employers. Furthermore, union contracts ordinarily require that only employees of certain crafts be permitted to undertake certain work. Thus, an electrical or other speciality subcontractor would often be required to hire additional employees in order to abate a hazard. For most subcontractors this would be uneconomical, and for small ones perhaps completely destroy the benefit of their contract. This result seems all the more curious in this situation where other subcontractors or the general contractor, who had more direct responsibility for general construction, already had the available equipment and personnel to undertake the correction of the stairway,, elevator shaft and building edges. At any rate in relation to non-serious violations we do not believe that Congress intended to subvert the well established craft jurisdiction concept or to impose burdensome expenses on subcontractors which do not have the appropriate employees to abate certain hazards.
Assuming as we have just found that requiring abatement of hazards by subcontractors not responsible for the violating conditions is impractical, the only other alternative available is for such a subcontractor to remove his employees from the job after a violation is discovered and prior to a citation being issued. This again not only requires a subcontractor to be able to recognize non-serious violations outside its field of expertise, but also is an unrealistic and economically unfeasible solution.
On many construction jobs the withdrawal of a single subcontractor, upon whose work future construction depends, could conceivably cause an entire project to shut down. The subcontractor who wants to avoid OSHA liability must guess at his peril that in fact a violation exists. Presumably, if it guesses wrong the owner or general contractor would have an action for all too often very substantial damages caused %y delay in the completion of a project. Whether a violation actually exists is not always easy to determine either before or even after a citation issues, since a successful contest may be brought. It is even more difficult for a subcontractor to make the correct choice in cases where a violation is non-serious, for example as in this case where the citation was for technically improper guarding devices, and not for a clearly visible total absence of guards.
To the extent that the Secretary’s policy will lead to the removal of workers from construction sites because of non-serious violations we find that policy inconsistent with the Act. Correcting the hazard, not shutting down construction sites, is the desired result. It is the former not the latter that is consistent with the balance approach. The standards are to be set “in terms of objective criteria and of the performance desired.” H.Rept.No.91-1765, 91st Cong., 2d Sess. 35 (1970) (Conference Report accompanying S. 2193). The Secretary, proceeding in district court, can seek to temporarily restrain any activity on a work site in imminent danger situations. 29 U.S.C. § 662. There was significant congressional debate over this section and the extent of its scope. See, e. g. H.Rept. No.91 — 1765, supra at 40. Clearly, a non-serious violation of the promulgated standards is not the type of imminent danger Congress contemplated when they included this section. To the extent that the Secretary may achieve a shut down of a work site by citing a subcontractor for allowing his employees to be exposed to non-serious violations, that policy is inconsistent with the imminent danger provisions of the Act.
For all of the foregoing reasons we have determined that the Secretary’s and Commission’s position cannot be sustained.
VI
In reaching this decision we have recognized that both sides have substantial merit in their position. We have not sought to undercut the Secretary’s authority or in any way frustrate the purposes of the Act. We have balanced the Secretary’s interest in enforcing his policy, and the purposes that policy serves, against the inefficient, uneconomical and inequitable effects it has on certain employers.
It is important to define precisely what effect our decision is intended to have. We have not told the Secretary whom he must hold liable where there is joint responsibility for the existence of a standard violation. Similarly, we have not held that the Secretary’s policy of imposing liability on employers for exposure to conditions that are serious violations of promulgated standards is invalid. Nor have we held that exposure by a subcontractor’s employees to a non-serious standard violation, which he created or is otherwise responsible for is impermissible. We have only held that these petitioners are not responsible for the conditions deemed non-serious violations of the promulgated standards by the Secretary and, therefore, that the Secretary’s policy of imposing liability on them merely because their employees were exposed to conditions which they neither created, caused, nor are otherwise responsible for, does not, on balance, fulfill the purposes of the Act. Since the facts of this case fall into this narrow holding, we set aside the order of the Commission in both 74-1381 and 74-1382.
. No employees from Anning-Johnson were working on the fifth floor at the time of the-inspection.
. Wright did not contest the citations issued to it.
. 29 C.F.R. § 1926.500 provides in relevant part:
Guardrails, handrails, and covers.
(a) General provision. This subpart shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways.
(b) Guarding of floor openings and fíoor holes. (1) Floor openings shall be guarded by a standard railing and toe boards or cov-' er, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.
******
(d) Guarding of open-sided fíoors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.
* * * * * *
(e) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails:
(i) On stairways less than 44 inches wide having both sides enclosed, at least one handrail, preferably on the right side descending;
(ii) On stairways less than 44 inches wide having one side open, at least one stair railing on the open side;
(iii) On stairways less than 44 inches wide having both sides open, one stair railing on each side;
(iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side;
(v) On stairways 88 or more inches wide, one handrail on each enclosed side, one stair railing on each open side, and one intermediate stair railing located approximately midway of the width.
. Initially, the penalties were set at $300, but pursuant to OSHA policy this figure was reduced.
. The subcontractors petitioned for review of the Administrative Law Judge’s decision, but no commissioner directed review and therefore the decision of the Administrative Law Judge became a final order of the Commission. 29 U.S.C. § 661(i).
. The general duty clause is not involved in this case, because by its terms the duty embodied in that clause flows only to hazards that are causing or likely to cause death or serious physical harm. In 29 U.S.C. § 666(j) a serious violation is deemed to exist “if there is a substantial probability that death or serious physical harm could result..” This definition parallels closely the wording of the general duty clause. In the present case the Secretary has classified the violations as “non-serious” which means ones that are not likely to cause death or serious physical harm and therefore outside the scope of the general duty clause. See generally Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv.L.Rev. 988 (1973).
. The standards in the present case were originally made effective pursuant to 21 U.S.C. § 653(b)(2) which provides in relevant part:
The safety and health standards promulgated under... Public Law 91-54, Act of August 9, 1969... are superseded on the effective date of corresponding standards, promulgated under this chapter, which are determined by the Secretary to be more effective. Standards issued under the laws listed in this paragraph... shall be deemed to be occupational safety and health standards issued under this chapter
The 28 C.F.R. part 1926 standards were promulgated under the Contract Work Hours and Safety Standards Act, Pub.L. 91-54, codified at 40 U.S.C. § 333. They were adopted as occupational safety and health standards pursuant to 29 C.F.R. § 1910.12. For more on the interrelationship between the Contract Work Hours and Safety Standards Act and the Occupational Safety and Health Act see note 13, infra.
. Any employer who has received a citation for a violation of 29 U.S.C. § 654 may be fined up to $1,000 for each violation. If cited for a serious violation some fine up to $1,000 must be levied. If an employer willfully or repeatedly violates section 654 he may be fined up to $10,000. Similarly, a failure to correct a violation within the time period allowed may be fined up to $1,000 for each day during which such violation remains unabated. 29 U.S.C. § 666.
. If no notice of contest is filed within fifteen days from receipt of the Secretary’s citation, the citation and the assessment, as proposed, shall be deemed to be a final order of the Commission and not subject to review by any court or agency. 29 U.S.C. § 659(a).
. For other cases with similar holdings see Savannah Iron & Fence Corporation, 10 OSAHRC 1 (1974) (Review Commission); Armor Elevator Company, Inc., 5 OSAHRC 260 (1973) (Review Commission); Sunray Electric Corporation, 7 OSAHRC 615 (1974) (Review Commission Judge); Star Circle Wall Systems, Inc., 3 OSAHRC 719 (1973) (Review Commission Judge); Skil-Craft Builders, Inc., 3 OSAHRC 622 (1973) (Review Commission Judge); Howard P. Foley Company, 3 OSAHRC 414 (1973) (Review Commission Judge); Jaffie Contracting Company, Inc., 2 OSAHRC 466 (1973) (Review Commission Judge); Fireproof Products Company, Inc., 2 OSAHRC 475 (1973) (Review Commission Judge); Ellison Electric, 1 OSAHRC 547 (1972) (Review Commission Judge); FEC, Inc., 1 OSAHRC 389 (1972) (Review Commission Judge).
. See also Anning-Johnson Co., OSHRC No. 3694 (May 3, 1974) (Commission Review Ordered); Anning-Johnson Co., OSHRC No. 4409 (April 19, 1974) (Commission Review Ordered).
. See note 6, supra and accompanying text.
. There is another reason why we believe the Secretary should not force this inequitable burden on subcontractors. The standards which the challenging subcontractors in this case are accused of violating were initially adopted pursuant to the Contract Work Hours and Safety Act, 40 U.S.C. § 333. See note 7, supra. That act provided in specified construction contracts with the federal government that:
[N]o contractor or subcontractor... shall require any laborer.. employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety, as determined under construction safety and health standards
The standards applicable in this case, see note 3, supra, do not specifically declare that exposure to non-conforming conditions will be a violation, and unlike the Contract Work Hours and Safety Act the language of OSHA’s subsection (a)(2) does not speak in strict exposure terms.
The standards adopted pursuant to the Contract Work Hours and Safety Act included the following:
(b) By contracting for full performance of a contract.. the prime contractor assumes all obligations prescribed as employer obligations under the standards contained in this part, whether or not he subcontracts any part of the work.
(c) To the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with• the standards in this part with respect to that part. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to.have joint responsibility.
(d) Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act.
29 C.F.R. § 1926.16 (emphasis added).
This regulation was part of subpart B of 29 C.F.R. part 1926. Subpart B was not adopted by the Secretary in promulgating OSHA standards, 29 C.F.R. § 1910.12(c), but the reason for not adopting was unrelated to that part of the regulation which makes subcontractors responsible only for their own work. The foregoing language may well have precluded liability against subcontractors who allowed their employees to be exposed to conditions not caused by them but which violated promulgated standards. In any case, we were not advised that the difference in statutory language in relation to subcontractors was considered by the Secretary prior to the decision to hold them liable.
While we do not rest our decision on the manner in which the Secretary’s policy was arrived at, we do note that there is a substantial likelihood that the present policy evolved into a hard and fast rule without much consideration and certainly without comment from those likely to be affected, as is the general procedure under the Act. 29 U.S.C. § 655(b).
. As Commission Chairman Moran has stated:
In enacting this law, Congress apparently gave little thought to the unique relationship which arises when employees of a number of different employers work in and around the same job site and are subject to the hazards which may exist at that site — hazards which may or may not have been created by thejr own employer — or someone else’s — or by some other employees of a totally unrelated and unknown employer.
Address by OSHRC Chairman Moran, National Construction Industry Conference of the American Arbitration Association, Boston, Massachusetts, April 24, 1974.
. It was observed during debate in the Congress that the more than 14,500 workers killed by work-related accidents each year represented an annual death toll exceeding that of the Vietnam war. Subcomm. on Labor of Senate Comm, on Labor and Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970, 92d Cong., 1st Sess. 411 (Comm.Print 1971) (remarks of Senator Williams).
. The contract in this case between Wright and Workinger Electric provided that the latter in accordance with the plans and specifications of the architect do the “Electrical Work Complete.” Similarly, Anning-Johnson was “To furnish and install the Sprayed on Fireproofing” in accordance with the architect’s plans.
In both contracts the only reference to OSHA was the following:
Sub-contractor agrees to comply with all requirements of the Occupational Safety and Health Act (Current Edition) and to save harmless and indemnify General Contractor from and against any and all liabilities imposed on the contractor for violations of said act arising out of the work covered by this sub-contractor.
No reference is made to correcting safety hazards beyond the scope of the subcontractor’s primary duties.
. See, e. g., Armor Elevator
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:
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songer_casetyp1_2-3-2
|
F
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - voting rights, race discrimination, sex discrimination".
Claude E. LONG, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.
No. 73-1993.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 7, 1974.
Decided April 30, 1974.
Louis F. Oberdorfer, Washington, D. C., for defendant-appellant; James Robertson, Peter A. Bell, Cary Lerman, Washington, D. C., Joseph A. O’Reilly, James R. Jackson, Ford Motor Co., Dearborn, Mich., on brief; Wilmer, Cutler & Pickering, Washington, D. C., of counsel.
William D. Haynes, Detroit, Mich., for plaintiff-appellee; Y. Paul' Donnelly, Detroit, Mich., on brief.
Before CELEBREZZE and ENGEL, Circuit Judges, and ROSENSTEIN, Senior Customs Judge.
The Honorable Samuel M. Rosenstein, Senior Judge, United States Customs Court, sitting by designation.
CELEBREZZE, Circuit Judge.
Ford Motor Company appeals from a judgment awarding Claude E. Long $10,949 on his claim that his discharge from Ford was racially discriminatory in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981. We reverse and remand for further consideration.
Claude Long, a black college graduate and former Department of Labor compliance officer, sought employment with Ford Motor Company, hoping to get into industrial management in the field of labor relations. On July 19, 1967, Long was hired as a production line foreman. After nearly two years on this job, during which time he received three satisfactory and one unsatisfactory performance evaluations, Long filed a complaint with the Michigan Civil Rights Commission, alleging that his race was the cause of harassment, an unfair performance review, and the denial of a promotion. In May 1969, Long was transferred to the Industrial Relations Department of Ford’s Frame Plant, and he withdrew his charge prior to investigation.
At the Frame Plant, Long was rotated among several positions. He began as a “wage analyst” on June 1, 1969. In January 1970 he was assigned to head the Suggestions Program, in which capacity he received an award. In April he was shifted to a position where he developed the Frame Plant’s medical leave procedures. He was returned to the wage analyst position in June 1970. On these jobs, Long received a “satisfactory plus” performance evaluation on December 1, 1969, a letter of repimand on July 24, 1970 (prompted primarily by work left on his desk when he left for vacation on June 28), and an “unsatisfactory” rating on October 26, 1970. After this final evaluation, Long submitted a letter of rebuttal to the poor rating. Following a meeting with his immediate and plant supervisors, Long resigned on November 30, 1970, after being offered the choice of discharge or resignation. On November 17, 1971, Long filed a complaint in Federal District Court, alleging violations of Title VII of the 1964 Civil Rights Act, 42 U. S.C. § 2000e et seq., and of the Civil Rights Act of 1866, 42 U.S.C. § 1981. On May 1, 1972, the District Court dismissed his claim under Title VII for failure to comply with th'e requirement of a timely filing with the Federal Equal Employment Opportunity Commission. The District Court proceeded to a hearing on the merits of the § 1981 claim.
Testimony was taken from Long, his supervisors, and his fellow workers. Long’s primary argument was that he had been treated in a dissimilar manner from other persons, that he had received outright antagonism from his plant supervisor, and that the actions which prevented him from rising to a position in labor relations were prompted by racial prejudice.
The District Court found for Long. While it made various findings and observations, the District Court’s central holding was that Ford violated Section 1981 by failing to train Long adequately for his tasks. The District Court characterized Long as a “capable man,” who because he “was not adequately trained . . . could not perform adequately.” The Court concluded:
“If [black] people are not given adequate job training and are, as a result, terminated, then unequal employment opportunity still results. This imbalance is a real factor in racial discrimination. Racial discrimination in employment will not end until such people are given thorough job training so that they can perform adequately. Inadequate job training in a situation such as this fosters racial discrimination. Thus, this court is convinced that race was a factor (possibly not the only factor) in the termination of Claude Long.”
Ford makes two basic arguments on appeal. First, it contends that Appellee’s complaint should have been dismissed because he failed to pursue his remedies under Title VII of the 1964 Civil Rights Act. Second, Ford contends that reversal on the merits is necessary because the record and findings of the District Court do not sustain a judgment for Long under the principles of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Ford does not contend that Section 1981 does not apply to private employment contracts. It is settled that Section 1981 prohibits racial discrimination in private employment.
Ford argues, however, that Long’s complaint should have been dismissed because he failed to file a charge with the Equal Employment Opportunity Commission within 210 days of his discharge. This was a jurisdictional prerequisite for bringing a Title VII suit under 42 U.S.C. § 2000e-5(d) (1970), and, so it is argued, impliedly a jurisdictional prerequisite to a § 1981 action.
Ford’s procedural objection is not without support in the case law. In Waters v. Wisconsin Steel Works of Int’l Harvesters Co., 427 F.2d 476 (7th Cir.), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970), the Seventh Circuit held that a plaintiff in a § 1981 action must show a reasonable excuse for having bypassed his Title VII remedies. See also Kinsey v. Legg, Mason & Co., Inc., 60 F.R.D. 91 (D.D.C.1973).
This viewpoint is a minority position. The Third, Fifth, Eighth, and District of Columbia Circuits have concluded that Section 1981’s availability is not limited to those plaintiffs who have pursued their Title VII remedies or have shown a reasonable excuse for not doing so. Young v. Int’l Telephone & Telegraph Co., 438 F.2d 757 (3d Cir. 1971); Caldwell v. National Brewing Co., 5 Cir., 443 F.2d 1044 (1971); Brady v. Bristol-Meyers Co., 459 F.2d 621 (8th Cir. 1972); Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973). Furthermore, this Court has held in another context that “ § 1981 [is] a separate and concurrent cause of action with Title VII.” Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th Cir. 1973). We adopt the prevailing view that a plaintiff need not pursue his Title VII remedies before instituting a cause of action under Section 1981.
We are impelled to this conclusion by rules of statutory construction. If Congress had expressly limited Section 1981’s availability in the manner Ford urges upon us, we would, be bound by the partial repeal of the earlier statute. Here, however, the question is whether we may imply á change in Section 1981 from the silent face of Title VII of the 1964 Civil Rights Act. This task is complicated by the fact that in 1964 Congress may not have recognized that Section 1981 was available to litigants against racial discrimination in private employment.
In Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 80 L.Ed. 351 (1936), the Supreme Court stated that a repeal of a statute by implication is not favored. There are two categories where repeal by implication is possible.
(1) [W]here provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. 296 U.S. at 503.
Title VII is not “in irreconcilable conflict” with Section 1981, and it does not cover the field in which Section 1981 was sown. See Sullivan v. Little Hunting Park, 396 U.S. 229, 237, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969) (regarding the compatibility of § 1982 and the provisions of the Fair Housing Act of 1968). Thus, the availability of Section 1981 is not limited by the existence of remedies under Title VII. “ [Legislative enactments in [the area of racial discrimination in employment] have long evinced a general intent to accord parallel or overlapping remedies against discrimination.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (citingto § 1981). Thus the District Court correctly proceeded to the merits of Appellee’s claim.
We cannot affirm the District Court’s decision on the merits, however, because it rests upon an erroneous view of Section 1981. That provision, first enacted as part of the Civil Rights Act of 1966,states:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
When a person sues under this statute to enforce his right not to be discriminated against in private employment, he must show that he was unable to make or enforce a contract that white citizens were able to make or enforce. Applied to the facts of this case, Appellee Long must show that he was forced to resign because of dissimilar treatment caused in part by his race.
As originally designed in 1866, Section 1981 was intended to uproot the institution of slavery and to eradicate its badges and incidents. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-437, 88 S.Ct. 2186, 20 L.Ed.2d 1189, (1968) (analysis applied to § 1981 in Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431, 439, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973).) When an employer, public or private, places more stringent requirements on employees because of their race, Section 1981 is violated. The purpose for which the Section was enacted — to afford equal opportunities to secure the benefits of American life regardless of race — requires1 that a court adopt a broad outlook in enforcing Section 1981. Schemes of discrimination, whether blatant or subtle, are forbidden. Newbern v. Lake Lorelei, Inc., 308 F.Supp. 407, 416 (S.D.Ohio 1968). Cf. Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 83 L.Ed. 1281 (1939).
Section 1981 is by its very terms, however, not an affirmative action program. It is an equalizing provision, seeking to ensure that rights do not vary according to race. It does not require that persons be accorded preferential treatment because of their race. On this point we view the Supreme Court’s discussion of Title VII as applicable to Section 1981:
“Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Griggs v. Duke Power Co., 401 U.S. 424, 430-431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971).
Thus, it was error for the District Court to hold Appellant liable for a failure to train Appellee adequately, absent a showing that this failure constituted either dissimilar treatment from the training whites receive or treatment similar on its face but dissimilar in its effects upon racial minorities and unfounded on business necessity. See Griggs v. Duke Power Co., supra; McDonnell Douglas Corp. v. Green, 411 U. S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Robinson v. Lorillard, 444 F.2d 791 (4th Cir. 1971).
Although the District Court made various observations and findings of fact, we cannot perceive an alternative holding sufficient in detail under Rule 52(a), Fed.Rules Civ.Proc., to permit review. Rather than specify that Appellee had received dissimilar treatment, the District Court relied on a rationale of inadequate training per se. Thus, we must remand for further proceedings to determine whether Appellee should recover on a proper ground.
The parties and the District Court did not have the benefit of McDonnell Douglas’ reasoning in the proceedings below. On remand, the District Court should apply McDonnell Douglas’ principles on the order and allocation of proof. A person alleging a § 1981 violation must first establish that his employment terms vary from those which his employer accords to similarly situated white workers. This can be shown by proof either that intentional racial prejudice entered into his treatment or that a facially neutral practice (here Appellant’s performance evaluation system) operates diseriminatorily against minority employees. In this case, Appellee may be able to establish that he was trained inadequately whereas white co-employees were trained adequately. He may be able to establish that Ford’s promotion system, which relies heavily upon the subjective evaluation of supervisors, has a discriminatory impact on minority employees, so that its use in discharging him was improper. Appellee may be able to establish that similarly situated white employees with comparable records would have been offered different positions within Ford rather than discharged, whereas he was forced to leave Ford altogether. We express no opinion as to whether the record below would support any of these possible holdings.
If Appellee establishes a prima facie case of dissimilar treatment due in part to racial discrimination, Appellant must then establish “some legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas Corp. v. Green, 411 U.S. at 802. In this case Appellant would argue that Appellee’s unsatisfactory performance review justified his termination and that its system of evaluation is grounded on business necessity.
If Appellee has established a prima facie case but Appellant’s rebuttal is sufficient to overcome Appellee’s initial showing, Appellee must then prove that his discharge was nonetheless a violation of Section 1981 because Appellant’s stated reason for the discharge was merely a pretext for a termination actually based on racial prejudice. 411 U.S. at 804. If the proofs reach this point, the District Court will have the task of evaluating the objectivity, sincerity, and honesty of the witnesses to arrive at a necessarily subjective conclusion.
Because of the new light shed on employment discrimination cases by McDonnell Douglas, we remand this case for such further proceedings as the District Court deems necessary to arrive at a just and proper conclusion. Affirmed in part and reversed in part for further proceedings in conformance with the principles enunciated herein.
. The District Court’s opinion is reported at 352 F.Supp. 135 (E.D.Mich.1972). Long’s lack of training was cited as the “fact that is controlling in this situation.” 352 F.Supp. at 139.
. Id.
. Id. at 140.
. Although the Supreme Court has not yet squarely held that this is the case, in Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431, 439-440, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973), the Supreme Court held that § 1981 is applicable to private discriminatory acts. An employment contract is covered by § 1981, and Title YII of the 1964 Civil Rights Act has not preempted the field of employment discrimination. Johnson v. City of Cincinnati, 450 F.2d 796 (6th Cir. 1971).
Furthermore, although this Circuit has not explicitly held that § 1981 prohibits racial discrimination in private employment, this conclusion is implicit in at least two holdings. Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th Cir. 1973); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973). This conclusion is unanimous among the circuits that have decided the question. Young v. Int’l Telephone & Telegraph Co., 438 F.2d 757 (3d Cir. 1971); Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1972); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied, 401 F.2d 948, 91 S.Ct. 935, 28 L.Ed. 2d 231 (1971); Waters v. Wisconsin Steel Works of Int’l Harvesters Co., 427 F.2d 476 (7th Cir.), cert. denied, 400 U.S. 911, 91 S. Ct. 137, 27 L.Ed.2d 151 (1970); Brady v. Bristol-Meyers, Inc., 459 F.2d 621 (8th Cir. 1972); Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973) .
. This requirement has been changed by recent amendments to Title VII. Pub.L. 92-261, § 4(a). See 42 U.S.C.A. § 2000e-5 (1974) .
. The 1968 decision of Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), is credited with having resuscitated the Civil Rights Act of 1866, of which § 1981 was a part, as to private defendants.
. Amendments to make Title VII the exclusive remedy for employment discrimination have been defeated. 110 Cong. Record 13650-52 (1964); 118 Cong. Record, 1524-26 (daily ed. Feb. 9, 1972); 1791-97 (daily ed., Feb. 15, 1972).
Title VII and 1981 afford different tactical advantages and handicaps to aggrieved parties. The existence of § 1981 as a procedurally separate source of relief will not likely deter the use of Title VII’s conciliation procedures. See Note, “Racial Discrim¡nation in Employment under the Civil Rights Act of 1866,” 36 U.Chi.L.Rev. 615, 639-41 (1969); Comment, “Is Section 1981 Modified by Title VII of the Civil Rights Act of 1964?,” 1970 Duke L.J. 1223, 1235 (1970) ; Peck, “Remedies for Racial Discrimination in Employment: A Comparative Evaluation of Forums,” 46 Wash.L.Rev. 455, 476-79 (1971) ; Larson, “The Development of Section 1981 as a Remedy for Racial Discrimination in Private Employment,” 7 Harv.Civ.Rights — Civ.Lib.L.Rev. 56, 69-84 (1972).
. The provision was re-enacted with some changes in 1870 and codified in 1874. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422, n. 28, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968).
. There are obligations to take affirmative action in hiring and training minority citizens as a precondition to being awarded government contracts. See Exec.Order No. 11,246, 3 C.F.R. 418 (1972). Section 1981 does not impose such an obligation on employers. Castro v. Beecher, 334 F.Supp. 930, 938 (D.Mass.1971), aff’d in part and rev’d in part, 459 F.2d 725 (1st Cir. 1972).
. Title VII of the 1964 Civil Rights Act, as amended 42 U.S.C.A. § 2000e et seq. (1972), is not before us. Except for the language quoted, we express no opinion as to the similarities between § 1981 and Title VII.
. Although McDonnell Douglas was a Title VII case, the principles governing these procedural matters apply with equal force to a § 1981 action. Cf. United States v. Chesterfield County School District, 484 F.2d 70 (4th Cir. 1973).
. Cf. E.E.O.C. No. 72-0777 (1971).
. See Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972); United States v. N. L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973); Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1972); Young v. Edgcomb Steel Co., 363 F.Supp. 961 (M.D.N.C.1973); United States v. Local 189, 301 F.Supp. 906 (E.D.La.1969), aff’d, 416 F.2d 980 (5th Cir. 1969), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970); Baxter v. Savannah Sugar Refining Corp., 350 F.Supp. 139 (S.D.Ga.1972).
. See Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803, 93 S.Ct. 1817, 36 L. Ed .2d 668 (1973); Robinson v. Lorillard, 444 F.2d 791, 798 (4th Cir. 1971); United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971); United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971); United States v. St. Louis-San Francisco Ry., 464 F.2d 301 (8th Cir. 1972); Brito v. Zia Co., 478 F.2d 1200 (10th Cir. 1973); Moody v. Albermarle Paper Co., 474 F.2d 134 (4th Cir. 1973); McAdory v. Scientific Research Instruments, Inc., 355 F.Supp. 468 (D.Md.1973); Note, “Fair Employment Practices: The Concept of Business Necessity,” 3 Memph.St.U.L.Rev. 76 (1972).
Question: What is the specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"?
A. voting rights - reapportionment & districting
B. participation rights - rights of candidates or groups to fully participate in the political process; access to ballot
C. voting rights - other (includes race discrimination in voting)
D. desegregation of schools
E. other desegregation
F. employment race discrimination - alleged by minority
G. other race discrimination - alleged by minority
H. employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority)
I. other reverse race discrimination claims
J. employment: sex discrimination - alleged by woman
K. pregnancy discrimination
L. other sex discrimination - alleged by woman
M. employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women)
N. other sex discrimination - alleged by man
O. suits raising 42 USC 1983 claims based on race or sex discrimination
Answer:
|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
CITY OF TACOMA, WASH., v. HOFFMAN.
No. 7441.
Circuit Court of Appeals, Ninth Circuit.
Sept. 5, 1934.
Howard Carothers, Corp. Counsel, Hilton B. Gardner, and Bartlett Rummell, Asst. Corp. Counsel, all of Tacoma, Wash. (U. E. Harmon, of Tacoma, Wash., of counsel), for appellant.
Elmer M. Hayden, P. D. Metzger, and A. E. Blair, all of Tacoma, Wash., for appellee.
Before WILBUR, SAWTELLE, and GARRE CHT, Circuit Judges.
PER CURIAM.
There is substantial evidence to support the verdict and judgment. There are no exceptions to the charge to the jury. The assignments of error do not properly challenge rulings on the evidence. Most of such rulings^ moreover, were not prejudicial by reason of the charge of the court withdrawing from the consideration of the jury the issues to which such evidence was addressed. The judgment is affirmed, the application of appellee for the imposition of a penalty for a frivolous appeal is denied, as the judgment bears interest at 6 per cent., and the appeal was evidently undertaken and prosecuted in good faith.
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:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
COMMERCIAL UNION INSURANCE COMPANY, Defendant, Appellant, v. Jose GONZALEZ RIVERA et al., Plaintiffs, Appellees.
No. 6613.
United States Court of Appeals First Circuit.
March 25, 1966.
C. A. Romero Barcelo, San Juan, P. R., with whom Seguróla, Romero & Toledo, San Juan, P. R., was on brief, for appellant.
P. Fernandez Cuyar, San Juan, P. R., with whom Rafael A. Gonzalez, J. Cor-dova Rivera and J. Cordova Mercado, Arecibo, P. R., were on brief, for appel-lees.
Before ALDRICH, Chief Judge, and MARIS and McENTEE, Circuit Judges.
Sitting by designation.
McENTEE, Circuit Judge.
This is a diversity suit for damages based on negligence of the defendant’s insured as a result of which plaintiff, Don Jose Gonzalez Rivera, was injured. The evidence shows that on December 27, 1963, Don Jose, while walking along a certain sidewalk in Arecíba, Puerto Rico, slipped and fell on a greasy and slippery substance which the defendant’s insured had negligently deposited on or had allowed to flow and accumulate on said sidewalk. The foreign substance consisted of used lard and other greasy residues from insured’s nearby hamburger and hot dog stand, which -insured’s employees had deposited on a vacant lot near that part of the sidewalk where Don Jose slipped and fell.
Plaintiff, Don Jose, claims that the negligence of the defendant’s insured was the proximate cause of his fall; that as a result of this fall he sustained serious permanent injuries, including brain damage which required extensive surgery, severe pain and suffering, and also sustained a substantial loss of earnings and the loss of his business.
In the same action his wife made claim against the defendant for loss of companionship and consortion and for mental pain and suffering. Plaintiff Don Jose’s four children, Luz Selenia, Rafael, Jose and Gladys Gonzalez, all of legal age at the time of trial, also joined in the suit, making claim for their mental pain and suffering as a result of their father’s injuries. None of these children lived with or were dependent upon the plaintiff Don Jose, for support.
The court originally assigned this case for trial by a jury to July 20, 1965, but on April 9, 1965, advanced the trial date to May 4, 1965. A few days before trial the defendant moved for a continuance on the ground that it did not have sufficient time to prepare its case properly for trial on May 4th. The court denied the motion. This motion was renewed on the opening day of the trial and was again denied. After a trial on the merits, the jury returned a verdict for the plaintiffs and assessed their damages as follows: $37,'500 for Don Jose; $15,-000 for his wife; $12,500 for Luz Se-lenia and $7,500 each for the other three children.
Defendant’s first assignment of error is that the trial court erred in denying its motion for a continuance. Such motions are addressed to the sound discretion of the court and a trial court’s refusal to grant a continuance will not be disturbed on appeal unless abuse of discretion is shown. Grunewald v. Missouri Pacific Railroad Company, 331 F. 2d 983, 986 (8th Cir. 1964); McDonnell v. Tabah, 297 F.2d 731, 733 (2d Cir. 1961).
As to defendant’s contention that it did not have enough time to prepare properly for trial on May 4, 1965, we note that the complaint in this case was filed on August 5, 1964, and answered on October 16, 1964. Defendant then waited nearly five months before initiating its discovery process. Thereafter, more than forty days elapsed before the defendant filed its interrogatories. It is apparent, therefore, that the defendant had ample time to prepare properly for trial on May 4, 1965, and we cannot say the trial court abused its discretion in denying defendant’s motions for a continuance.
The primary question raised by this appeal is whether the children of the injured plaintiff have a cause of action under Puerto Rican law to recover damages for their mental or moral suffering as a result of the injuries sustained by their father. It is well settled that the legal source of tort liability in Puerto Rico is Section 1802 of the Civil Code which, insofar as it is applicable to this case, reads as follows: “A person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done. * * * ” 31 L.P.R.A. § 5141.
It-is undisputed that children may recover damages for mental suffering and anguish in cases involving the wrongful death of a parent. See Matilde Colon vda. Davila et al. v. P. R. Water Resources Authority, No. R-62-93, Supreme Court of Puerto Rico, May 7, 1964 (not yet officially reported in English). The defendant claims that such damages are not recoverable hi personal injury cases where death has not resulted, However, in a recent case decided by the Supreme Court of Puerto Rico, Santiago Perez Gonzalez et al. v. Manuel Vazqueztell Perez et al., No. 443, September 28, 1962 (not yet officially reported in English), the court affirmed judgments in favor of a father, his wife and two sons and a daughter in circumstances identical to those in the instant case, where the father had suffered personal injuries but not death. See also Ramon Merced et al. v. Government of The Capital of Puerto Rico et al., 85 P.R.R. 530 (1962), where the Supreme Court permitted parents to recover damages for mental suffering caused by injuries to their child.
Moreover, we do, not accept the distinction made by the defendant between wrongful death cases and personal injury cases insofar as resultant mental suffering and anguish of sons and daughters are concerned. It is- obvious that a severe personal injury to a father, resulting in lifetime disability such as paralysis or brain- damage, can often cause more intense and enduring mental anguish and suffering to his son or daughter than would his death. Neither Section 1802 nor the Puerto Rico decisions appear to limit the right to recover damages for mental suffering to death cases only. Under the broad, general language of Section 1802, (“A person who * * * causes damage to another,’’) it is for the Puerto Rican courts to determine on a case to case basis what interests are entitled to juridical protection. The case law in this regard “has already assumed a sufficiently clear and definite position which follows the more 'liberal and at the same time the more just aspects of the doctrine.” Correa v. P. R. Water Resources Authority, 83 P.R.R. 139, 143 (1961). The court went on to say at p. 153: “ * * * we are not inclined to establish as a general rule of law — with complete abstraction of the facts and circumstances involved in each case — a re-strictual and exclusive criterion as to who may claim within the juridical scope of said section.” [1802]
From a review of the Correa decision and the other cases cited herein, it is clear that under Puerto Rican law the sons and daughters of the plaintiff, Don Jose, who was injured as a result of the wrongful act of the defendant, have a right of action for mental suffering, anguish and anxiety caused to them by reason of their father’s injuries. In other words, sons and daughters have a sufficiently close relationship to . their injured father to come within the scope of the term “another” as used in Section 1802; and their resulting mental pain, suffering and anguish are recognized as an element of damages. Correa v. P. R. Water Resources Authority, supra, at 148; Vazquez v. People, 76 P.R.R. 556 (1954); Travieso v. Del Toro, 74 P.R.R. 940 (1953).
As a further argument in support of their contention that these sons and daughters cannot recover, defendant claims that such awards are contrary to the specific terms of its insurance policy. The obligation of the insurer here is to pay ail sums the insured shall become legally obligated to pay as damages. It is admitted that the insured is legally obligated to pay compensation to the plaintiff, Don Jose, and to his wife for injuries suffered by said plaintiff, and under our holding in this case and the cases cited herein, is also legally obligated to pay compensation to the sons and daughters as well. It has been held that an insurance policy obligating the insurer to pay any loss for liability for bodily injuries also includes liability for consequential damages. See 8 Apple-man, Insurance Law and Practice, § 4893 (1962); United States Fidelity & Guaranty Co. v. Shrigley, 26 F.Supp. 625, 628 (W.D.Ark.1939).
Nor do we find any merit in the defendant’s claim that the damages awarded to the sons and daughters were excessive. The reasonableness of these awards was challenged before the trial court in defendant’s motion for a new trial which was denied. It is well settled that “the question of excessiveness of a verdict is primarily for the trial court, and its determination thereof will not be reversed on appeal except for manifest abuse of discretion.” Dubrock v. Interstate Motor Freight System, 143 F.2d 304, 307 (3d Cir. 1944). We are reluctant to overturn jury verdicts on the ground of excessiveness, since the trial court has had the benefit of hearing the testimony and of observing the demeanor of the witnesses and also knows the community and its standards. Solomon Dehydrating Company v. Guyton, 294 F.2d 439, 447 (8th Cir. 1961). The record indicates that the sons and daughters here suffered much more than mere transient or passing sorrow as eon-tended "by the defendant. We cannot say the trial court abused its discretion in upholding the verdicts in their favor.
Defendant also contends that the trial court erred in instructing the jury to make an award for loss of earnings. It claims that there is not sufficient evidence to warrant any award to Don Jose for such loss. The record does not support this contention. The plaintiff, Don Jose, testified that prior to the accident he was an established merchant in Arecibo, where he operated a profitable vegetable and grocery business for more than twenty-five years; that just before the accident his gross income was about $175 to $200 per week; that he has been.junable to return to work and could not continue his business because of the accident; that in his absence so much money was lost that the business had to be liquidated; and that at the time of the trial his only income was derived from social security payments. His wife also testified that prior to the accident, Don Jose paid all the expenses •of the household and that his business establishment had to be sold while he was in the hospital. Finally, there was medical testimony that Don Jose was in good health before the accident and that his complaints of headaches, dizzy spells and inability to concentrate and pursue his occupation after the accident were justified. Such being the state of the record, the district court properly instructed the jury to consider the plaintiff’s loss of earnings and future loss of earnings in making an award. We do not agree wtih the defendant’s contention that the evidence enumerated above was insufficient and that absent more precise data on plaintiff’s earnings, the jury could only speculate.
The plaintiff was not required to offer his books and records into evidence to prove loss, Christian v. The Hertz Corporation, 313 F.2d 174, 175 (7th Cir. 1963), and his loss of wages, although an approximation thereof, was competent evidence to aid the jury in arriving at a fair and just award. Cf. Phoenix Indemnity Co. v. Givens, 263 F.2d 858, 863 (5th Cir. 1959).
All other points raised by the defendant have been considered and have been found to be without merit.
Affirmed.
. As a result of his accident, Don Jose incurred medical, special nursing, and hospital expenses of $4,220.80, which were paid by his daughter, Luz Selenia.
. Defendant claims it did not learn of a second fall sustained by the plaintiff on February 4, 1964 in his doctor’s office, until after it received plaintiff’s answers to its interrogatories a few days before the trial and did not have sufficient time to investigate the causal relationship of said fall to the alleged injuries. Also that it did not have sufficient time before trial to have certain psychometric tests performed on the plaintiff in order to properly evaluate his condition after the accident.
. In wrongful death eases the Supreme Court of Puerto Rico has extended recovery under Section 1802' to other persons who are not as closely related to the deceased. See Correa v. P. R. Water Resources Authority, 83 P.R.R. 139 (1961) (concubines); Andres Cirino etc. v. P. R. Water Resources Authority, R-63-70 December 29, 1964 (not yet officially reported in English) (brothers and sisters).
. “To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident.”
. Dr. de Ohoudens, who performed the brain surgery on the plaintiff, testified that in spite of all surgery and treatments the plaintiff’s dizziness, headaches, poor memory and nervousness had not disappeared and his physical activity and tolerance for emotional stress was very low.
. It should be noted here that the trial court specifically instructed the jury that they were not permitted to award speculative damages.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_lcdisagreement
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
DAVIS v. UNITED STATES
No. 09-11328.
Argued March 21, 2011
Decided June 16, 2011
Orín S. Kerr argued the cause for petitioner. With him on the briefs was William W. Whatley, Jr.
Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Acting Solicitor General Katyal, Assistant Attorney General Breuer, Anthony A. Yang, and John M. Pellettieri.
Robocoa Louiso Ponnoll and Brott Sweitzor filed a brief for the National Association of Federal Defenders as amicus curiae urging reversal.
Briefs of amiei euriae urging affirmance wore filed for- the State of Maryland et al. by Douglas F. Gansler, Attorney General of Maryland, and Brian S. Kleinbord, Jeremy M. McCoy, and Carrie J. Williams, Assistant Attorneys General, by William H. Ryan, Jr., Acting Attorney General of Pennsylvania, and by the Attorneys General for their respective States a« follows: John J. Burns of ¿Alaska, Tom Home of Arizona, Kamala D. Har ris of California, John W. Suthers of Colorado, Joseph R. Biden III of Delaware, Pamela Jo Bondi of Florida, David M. Louie of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Gregory F. Zoeller of Indiana, Jack Conway of Kentucky, William J. Schneider of Maine, Martha Coakley of Massachusetts, Bill Sc.huette of Michigan, Jon Bruning of Nebraska, Cnfhprine Cortez Mastn of Nevada, Roy Cnnppr nf North Carolina, Wayne Stenehjem of North Dakota, E. Scott Pruitt of Oklahoma, Alan Wilson of South Carolina, Marty J. Jackley of South Dakota, Greg Abbott of Texas, Mark L. Shurtleff of Utah, Kenneth T. Cuccinelli II of Virginia, Robert B. McKenna of Waohington, J B. Van Rollen of Wiccon sin, and Bruce A Salzburg of Wyoming; for Wayne County, Michigan, by Kym L. Worthy and Timothy A Baughman; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.
Justice Alito
delivered the opinion of the Court.
The Fourth Amendment protects the right, to be free from “unreasonable searches and seizures,” but it is silent about how this right is to be enforced. To supplement the bare text, this Court created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation. The question here is whether to apply this sanction when the police conduct a search in compliance with binding precedent that is later overruled. Because suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety, we hold that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.
> — Í
The question presented arises in this case as a result of a shift in our Fourth Amendment jurisprudence on searches of automobiles incident to arrests of recent occupants.
A
Under this Court’s decision in Chimel v. California, 395 U. S. 752 (1969), a police officer who makes a lawful arrest may conduct a warrantless search of the arrestee’s person and the area “within his immediate control.” Id., at 763 (internal quotation marks omitted). This rule “may be stated clearly enough,” but in the early going after Chimel it proved difficult to apply, particularly in cases that involved searches “inside [of] automobile[s] after the arrestees [we]re no longer in [them].” See New York v. Belton, 453 U. S. 454, 458-459 (1981). A number of courts upheld the constitutionality of vehicle searches that were “substantially contemporaneous” with occupants’ arrests. Other courts disapproved of automobile searches incident to arrests, at least absent some continuing threat that the arrestee might gain access to the vehicle and “destroy evidence or grab a weapon.” In New York v. Belton, this Court granted cer-tiorari to resolve the conflict. See id., at 459-460.
In Belton, a police officer conducting a traffic stop lawfully-arrested four occupants of a vehicle and ordered the arrest-ees to line up, unhandcuffed, along the side of the thruway. Id., at 456; see Brief for Petitioner in New York v. Belton, O. T. 1980, No. 80-328, p. 3. The officer then searched the vehicle’s passenger compartment and found cocaine inside a jacket that lay on the backseat. Belton, 453 U. S., at 456. This Court upheld the search as reasonable incident to the occupants’ arrests. In an opinion that repeatedly stressed the need for a “straightforward,” “workable rule” to guide police conduct, the Court announced “that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id., at 459-460 (footnote omitted).
For years, Belton was widely -understood to have set down a simple, bright-line rule. Numerous courts read the decision to authorize automobile searches incident to arrests of recent occupants, regardless of whether the arrestee in any particular ease was within reaching distance of the vehicle at the time of the search. See Thornton v. United States, 541 U. S. 615, 628 (2004) (Scalia, J., concurring in judgment) (collecting cases). Even after the arrestee had stepped out of the vehicle and had been subdued by police, the prevailing understanding was that Belton still authorized a substantially contemporaneous search of the automobile’s passenger compartment.
Not every court, however, agreed with this reading of Bel-ton. In State v. Gant, 216 Ariz. 1, 162 P. 3d 640 (2007), the Arizona Supreme Court considered an automobile search conducted after the vehicle’s occupant had been arrested, handcuffed, and locked in a patrol car. The court distinguished Belton as a case in which “four unsecured” arrestees "presented an immediate risk of loss of evidence and an obvious threat to [a] lone officer’s safety.” 216 Ariz., at 4, 162 P. 3d, at 643. The court held that where no such “exigencies exis[t]” — where the arrestee has been subdued and the scene secured — the rule of Belton does not apply. 216 Ariz., at 4, 162 P. 3d, at 643.
This Court granted certiorari in Gant, see 552 U. S. 1230 (2008), and affirmed in a 5-to-4 decision. Arizona v. Gant, 556 U. S. 332 (2009). Four of the Justices in the majority agreed with the Arizona Supreme Court that Belton's holding applies only where “the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” 556 U. S., at 343. The four dissenting Justices, by contrast, understood Belton to have explicitly adopted the simple, bright-line rule stated in the Belton Court’s opinion. 556 ü. S., at 357-358 (opinion of Alito, J.); see Belton, supra, at 460 (“[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile” (footnote omitted)). To limit Belton to cases involving unsecured arrestees, the dissenters thought, was to overrule the decision’s clear holding. Gant, supra, at 357-358. Justice Scalia, who provided the fifth vote to affirm in Gant, agreed with the dissenters’ understanding of Belton’s holding. 556 U. S., at 351-352 (concurring opinion). Justice Scalia favored a more explicit and complete overruling of Belton, but he joined what became the majority opinion to avoid “a 4-to-l-to-4” disposition. 556 U. S., at 354. As a result, the Court adopted a new, two-part rule under which an automobile search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains “evidence relevant to the crime of arrest.” Id., at 343 (citing Thornton, supra, at 632 (Scalia, J., concurring in judgment); internal quotation marks omitted).
B
The search at issue in this case took place a full two years before this Court announced its new rule in Gant On an April evening in 2007, police officers in Greenville, Alabama, conducted a routine traffic stop that eventually resulted in the arrests of driver Stella Owens (for driving while intoxicated) and passenger Willie Davis (for giving a false name to police). The police handcuffed both Owens and Davis, and they placed the arrestees in the back of separate patrol cars. The police then searched the passenger compartment of Owens’ vehicle and found a revolver inside Davis’ jacket pocket.
Davis was indicted in the Middle District of Alabama on one count of possession of a firearm by a convicted felon. See 18 U. S. C. § 922(g)(1). In his motion to suppress the revolver, Davis acknowledged that the officers’ search fully complied with “existing Eleventh Circuit precedent.” App. 13-15. Like most courts, the Eleventh Circuit had long read Belton to establish a bright-line rule authorizing substantially contemporaneous vehicle searches incident to arrests of recent occupants. See United States v. Gonzalez, 71 F. 3d 819, 822, 824-827 (CA11 1996) (upholding automobile search conducted after the defendant had been “pulled from the vehicle, handcuffed, laid on the ground, and placed under arrest”). Davis recognized that the District Court was obligated to follow this precedent, but he raised a Fourth Amendment challenge to preserve “the issue for review” on appeal. App. 15. The District Court denied the motion, and Davis was convicted on the firearms charge.
While Davis’ appeal was pending, this Court decided Gant. The Eleventh Circuit, in the opinion below, applied Ganfs new rule and held that the vehicle search incident to Davis’ arrest “violated [his] Fourth Amendment rights.” 598 F. 3d 1259, 1263 (CA11 2010). As for whether this constitutional violation warranted suppression, the Eleventh Circuit viewed that as a separate issue that turned on “the potential of exclusion to deter wrongful police conduct.” Id., at 1265 (quoting Herring v. United States, 555 U. S. 135, 137 (2009); internal quotation marks omitted). The court concluded that “penalizing the [arresting] officer” for following binding appellate precedent would do nothing to “dete[r]... Fourth Amendment violations.” 598 F. 3d, at 1265-1266 (bracketing and internal quotation marks omitted). It therefore declined to apply the exclusionary rule and affirmed Davis’ conviction. We granted certiorari. 562 U. S. 1002 (2010).
II
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Amendment says nothing about suppressing evidence obtained in violation of this command. That rule — the exclusionary rule — is a “prudential” doctrine, Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357, 363 (1998), created by this Court to “compel respect for the constitutional guaranty.” Elkins v. United States, 364 U. S. 206, 217 (1960); see Weeks v. United States, 232 U. S. 383 (1914); Mapp v. Ohio, 367 U. S. 643 (1961). Exclusion is “not a personal constitutional right,” nor is it designed to “redress the injury” occasioned by an unconstitutional search. Stone v. Powell, 428 U. S. 465, 486 (1976); see United States v. Janis, 428 U. S. 433, 454, n. 29 (1976) (exclusionary rule “unsupportable as reparation or compensatory dispensation to the injured criminal” (internal quotation marks omitted)). The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations. E. g., Herring, supra, at 141, and n. 2; United States v. Leon, 468 U. S. 897, 909, 921, n. 22 (1984); Elkins, supra, at 217 (“calculated to prevent, not to repair”). Our cases have thus limited the rule’s operation to situations in which this purpose is “thought most efficaciously served.” United States v. Calandra, 414 U. S. 338, 348 (1974). Where suppression fails to yield “appreciable deterrence,” exclusion is “clearly... unwarranted.” Janis, supra, at 454.
Real deterrent value is a “necessary condition for exclusion,” but it is not “a sufficient” one. Hudson v. Michigan, 547 U. S. 586, 596 (2006). The analysis must also account for the “substantial social costs” generated by the rule. Leon, supra, at 907. Exclusion exacts a heavy toll on both the judicial system and society at large. Stone, 428 U. S., at 490-491. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. Ibid. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. See Herring, supra, at 141. Orn-eases hold that society must swallow this bitter pill when necessary, but only as a “last resort.” Hudson, supra, at 591. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs. See Herring, supra, at 141; Leon, supra, at 910.
Admittedly, there was a time when our exclusionary-rule cases were not nearly so discriminating in their approach to the doctrine. “Expansive dicta” in several decisions, see Hudson, supra, at 591, suggested that the rule was a self-executing mandate implicit in the Fourth Amendment itself. See Olmstead v. United States, 277 U. S. 438, 462 (1928) (remarking on the “striking outcome of the Weeks case” that “the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction”); Mapp, supra, at 655 ("[A]ll evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court”). As late as our 1971 decision in Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560, 568-569, the Court “treated identification of a Fourth Amendment violation as synonymous with application of the exclusionary rule.” Arizona v. Evans, 514 U. S. 1, 13 (1995). In time, however, we came to acknowledge the exclusionary rule for what it undoubtedly is— a “judicially created remedy” of this Court’s own making. Calandra, supra, at 348. We abandoned the old, “reflexive” application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits. Evans, supra, at 13; see, e. g., Calandra, supra; Janis, supra; Stone, supra; INS v. Lopez-Mendoza, 468 U. S. 1032 (1984); United States v. Havens, 446 U. S. 620 (1980). In a line of cases beginning with Leon, 468 U. S. 897, we also recalibrated our cost-benefit analysis in exclusion cases to focus the inquiry on the “flagrancy of the police misconduct” at issue. Id., at 909, 911.
The basic insight of the Leon line of cases is that the deterrence benefits of exclusion “var[y] with the culpability of the law enforcement conduct” at issue. Herring, 555 U. S., at 143. When the police exhibit “deliberate,” “reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. Id., at 144. But when the police act with an objectively “reasonable good-faith belief” that their conduct is lawful, Leon, supra, at 909 (internal quotation marks omitted), or when their conduct involves only simple, “isolated” negligence, Herring, supra, at 137, the “'deterrence rationale loses much of its force,”’ and exclusion cannot “pay its way,” Leon, supra, at 919, 908, n. 6 (quoting United States v. Peltier, 422 U. S. 531, 539 (1975)).
The Court has over time applied this “good-faith” exception across a range of cases. Leon itself, for example, held that the exclusionary rule does not apply when the police conduct a search in “objectively reasonable reliance” on a warrant later held invalid. 468 U. S., at 922. The error in such a case rests with the issuing magistrate, not the police officer, and “punish[ing] the errors of judges” is not the office of the exclusionary rule. Id., at 916; see also Massachusetts v. Sheppard, 468 U. S. 981, 990 (1984) (companion case declining to apply exclusionary rule where warrant held invalid as a result of judge’s clerical error).
Other good-faith eases have sounded a similar theme. Illinois v. Krull, 480 U. S. 340 (1987), extended the good-faith exception to searches conducted in reasonable reliance on subsequently invalidated statutes. Id., at 349-350 (“legislators, like judicial officers, are not the focus of the rule”). In Evans, supra, the Court applied the good-faith exception in a case where the police reasonably relied on erroneous information concerning an arrest warrant in a database maintained by judicial employees. Id., at 14. Most recently, in Herring, supra, we extended Evans in a case where police employees erred in maintaining records in a warrant database. “[IJsolated,” “nonrecurring” police negligence, we determined, lacks the culpability required to justify the harsh sanction of exclusion. 555 U. S., at 137, 144.
1 — I I — i ) — I
The question in this ease is whether to apply the exclusionary rule when the police conduct a search in objectively reasonable reliance on binding judicial precedent. At the time of the search at issue here, we had not yet decided Gant, 556 U. S. 332, and the Eleventh Circuit had interpreted our decision in Belton, 453 U. S. 454, to establish a bright-line rule authorizing the search of a vehicle’s passenger compartment incident to a recent occupant’s arrest. Gonzalez, 71 F. 3d, at 825. The search incident to Davis’ arrest in this case followed the Eleventh Circuit’s Gonzalez precedent to the letter. Although the search turned out to be unconstitutional under Gant, all agree that the officers’ conduct was in strict compliance with then-binding Circuit law and was not culpable in any way. See Brief for Petitioner 49 (“suppression” in this case would “impl[y] no assignment of blame”).
Under our exclusionary-rule precedents, this acknowledged absence of police culpability dooms Davis’ claim. Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield “meaningful 1]” deterrence, and culpable enough to be “worth the price paid by the justice system.” Herring, 555 U. S., at 144. The conduct of the officers here was neither of these things. The officers who conducted the search did not violate Davis’ Fourth Amendment rights deliberately, recklessly, or with gross negligence. See ibid. Nor does this case involve any “recurring or systemic negligence” on the part of law enforcement. Ibid. The police acted in strict compliance with binding precedent, and their behavior was not wrongful. Unless the exclusionary rule is to become a strict-liability regime, it can have no application in this case.
Indeed, in 27 years of practice under Leon’s good-faith exception, we have “never applied” the exclusionary rule to suppress evidence obtained as a result of noneulpable, innocent police conduct. Herring, supra, at 144. If the police in this case had reasonably relied on a warrant in conducting their search, see Leon, supra, or on an erroneous warrant record in a government database, Herring, supra, the exclusionary rule would not apply. And if Congress or the Alabama Legislature had enacted a statute codifying the precise holding of the Eleventh Circuit’s decision in Gonzalez,, we would swiftly conclude that “ ‘[penalizing the officer for the [legislature’s] error... cannot logically contribute to the deterrence of Fourth Amendment violations.’” Krull, 480 U. S., at 350. The same should be true of Davis’ attempt here to “ ‘[p]enaliz[e] the officer for the [appellate judges’] error.’” Ibid.
About all that exclusion would deter in this case is conscientious police work. Responsible law enforcement officers will take care to learn “what is required of them” under Fourth Amendment precedent and will conform their conduct to these rules. Hudson, 547 U. S., at 599. But by the same token, when binding appellate precedent specifically authorizes a particular police practice, well-trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities. An officer who conducts a search in reliance on binding appellate precedent does no more than ‘“ac[t] as a reasonable officer would and should act’ ” under the circumstances. Leon, 468 U. S., at 920 (quoting Stone, 428 U. S., at 539-540 (White, J., dissenting)). The deterrent effect of exclusion in such a case can only be to discourage the officer from ‘“do[ing] his duty.’” 468 U. S., at 920.
That is not the kind of deterrence the exclusionary rule seeks to foster. We have stated before, and we reaffirm today, that the harsh sanction of exclusion “should not be applied to deter objectively reasonable law enforcement activity.” Id., at 919. Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.
IV
Justice Breyer’s dissent and Davis argue that, although the police conduct in this case was in no way culpable, other considerations should prevent the good-faith exception from applying. We are not persuaded.
A
1
The principal argument of both the dissent and Davis is that the exclusionary rule’s availability to enforce new Fourth Amendment precedent is a retroactivity issue, see Griffith v. Kentucky, 479 U. S. 314 (1987), not a good-faith issue. They contend that applying the good-faith exception where police have relied on overruled precedent effectively revives the discarded retroactivity regime of Linkletter v. Walker, 381 U. S. 618 (1965). See post, at 254-256.
In Linkletter, we held that the retroactive effect of a new constitutional rule of criminal procedure should be determined on a case-by-case weighing of interests. For each new rule, Linkletter required courts to consider a three-faetor balancing test that looked to the “purpose” of the new rule, “reliance” on the old rule by law enforcement and others, and the effect retroactivity would have “on the administration of justice.” 381 U. S., at 636. After “weighting] the merits and demerits in each case,” courts decided whether and to what extent a new rule should be given retroactive effect. Id., at 629. In Linkletter itself, the balance of interests prompted this Court to conclude that Mapp v. Ohio, 367 U. S. 643—which incorporated the exclusionary rule against the States — should not apply retroactively to cases already final on direct review. 381 U. S., at 639-640. The next year, we extended Linkletter to retroactivity determinations in eases on direct review. See Johnson v. New Jersey, 384 U. S. 719, 733 (1966) (holding that Miranda v. Arizona, 384 U. S. 436 (1966), and Escobedo v. Illinois, 378 U. S. 478 (1964), applied retroactively only to trials commenced after the decisions were released).
Over time, Linkletter proved difficult to apply in a consistent, coherent way. Individual applications of the standard “produced strikingly divergent results,” Danforth v. Minnesota, 552 U. S. 264, 273 (2008), that many saw as “incompatible” and “inconsistent,” Desist v. United States, 394 U. S. 244, 258 (1969) (Harlan, J., dissenting). Justice Harlan in particular, who had endorsed the Linkletter standard early on, offered a strong critique in which he argued that “basic judicial” norms required full retroactive application of new rules to all eases still subject to direct review. 394 U. S., at 258-259.; see also Mackey v. United States, 401 U. S. 667, 675-702 (1971) (Harlan, J., concurring in part and dissenting in part). Eventually, and after more than 20 years of toil under Link-letter, the Court adopted Justice Harlan’s view and held that newly announced rules of constitutional criminal procedure must apply “retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception.” Griffith, supra, at 328.
2
The dissent and Davis argue that applying the good-faith exception in this case is “incompatible” with our retroactivity precedent under Griffith. See post, at 254; Reply Brief for Petitioner 3-7. We think this argument conflates what are two distinct doctrines.
Our retroactivity jurisprudence is concerned with whether, as a categorical matter, a new rule is available on direct review as a potential ground for relief. Retroactive application under Griffith lifts what would otherwise be a categorical bar to obtaining redress for the government's violation of a newly announced constitutional rule. See Dan-forth, supra, at 271, n. 5 (noting that it may “make more sense to speak in terms of the ‘redressability’ of violations of new rules, rather than the ‘retroactivity’ of such new rules”). Retroactive application does not, however, determine what “appropriate remedy” (if any) the defendant should obtain. See Powell v. Nevada, 511 U. S. 79, 84 (1994) (noting that it “does not necessarily follow” from retroactive application of a new rule that the defendant will “gain... relief”). Remedy is a separate, analytically distinct issue. Cf. American Trucking Assns., Inc. v. Smith, 496 U. S. 167, 189 (1990) (plurality opinion) (“[T]he Court has never equated its retroac-tivity principles with remedial principles”). As a result, the retroactive application of a new rule of substantive Fourth Amendment law raises the question whether a suppression remedy applies; it does not answer that question. See Leon, 468 U. S., at 906 (‘Whether the exclusionary sanction is appropriately imposed in a particular case... is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct’ ”).
When this Court announced its decision in Gant, Davis’ conviction had not yet become final on direct review. Gant therefore applies retroactively to this case. Davis may invoke its newly announced rule of substantive Fourth Amendment law as a basis for seeking relief. See Griffith, supra, at 326, 328. The question, then, becomes one of remedy, and on that issue Davis seeks application of the exclusionary rule. But exclusion of evidence does not automatically follow from the fact that a Fourth Amendment violation occurred. See Evans, 514 U. S., at 13-14. The remedy is subject to exceptions and applies only where its “purpose is effectively advanced.” Krull, 480 U. S., at 347.
The dissent and Davis recognize that at least some of the established exceptions to the exclusionary rule limit its availability in cases involving new Fourth Amendment rules. Suppression would thus be inappropriate, the dissent and Davis acknowledge, if the inevitable-discovery exception were applicable in this case. See post, at 254; Reply Brief for Petitioner 22 (“Doctrines such as inevitable discovery, independent source, attenuated basis, [and] standing... sharply limit the impact of newly-announced rules”). The good-faith exception, however, is no less an established limit on the remedy of exclusion than is inevitable discovery. Its application here neither contravenes Griffith nor denies retroactive effect to Gant.
It is true that, under the old retroactivity regime of Link-letter, the Court's decisions on the “retroactivity problem in the context of the exclusionary rule” did take into account whether “law enforcement officers reasonably believed in good faith” that their conduct was in compliance with governing law. Peltier, 422 U. S., at 535-537. As a matter of retroactivity analysis, that approach is no longer applicable. See Griffith, 479 U. S. 314. It does not follow, however, that reliance on binding precedent is irrelevant in applying the good-faith exception to the exclusionary rule. When this Court adopted the good-faith exception in Leon, the Court’s opinion explicitly relied on Peltier and imported its reasoning into the good-faith inquiry. See 468 U. S., at 918-919. That reasonable reliance by police was once a factor in our retroactivity cases does not make it any less relevant under our Leon line of eases.
B
Davis also contends that applying the good-faith exception to searches conducted in reliance on binding precedent will stunt the development of Fourth Amendment law. With no possibility of suppression, criminal defendants will have no incentive, Davis maintains, to request that courts overrule precedent.
1
This argument is difficult to reconcile with our modern understanding of the role of the exclusionary rule. We have never held that facilitating the overruling of precedent is a relevant consideration in an exclusionary-rule case. Rather, we have said time and again that the sole purpose of the exclusionary rule is to deter misconduct by law enforcement. See, e. g., Sheppard, 468 U. S., at 990 (“ 'adopted to deter unlawful searches by police’ ”); Evans, supra, at 14 (“historically designed as a means of deterring police misconduct”).
We have also repeatedly rejected efforts to expand the focus of the exclusionary rule beyond deterrence of culpable police conduct. In Leon, for example, we made clear that “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges.” 468 U. S., at 916; see id., at 918 (“If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect... it must alter the behavior of individual law enforcement officers or the policies of their departments”). Krull too noted that “legislators, like judicial officers, are not the focus” of the exclusionary.rule. 480 U. S., at 850. And in Evans, we said that the exclusionary rule was aimed at deterring “police misconduct, not mistakes by court employees.” 514 U. S., at 14. These cases do not suggest that the exclusionary rule should be modified to serve a purpose other than deterrence of culpable law enforcement conduct.
2
And in any event, applying the good-faith exception in this context will not prevent judicial reconsideration of prior Fourth Amendment precedents. In most instances, as in this case, the precedent sought to be challenged will be a decision of a federal court of appeals or state supreme court. But a good-faith exception for objectively reasonable reliance on binding precedent will not prevent review and correction of such decisions. This Court reviews criminal convictions from 12 Federal Courts of Appeals, 50 state courts of last resort, and the District of Columbia Court of Appeals. If one or even many of these courts uphold a particular type of search or seizure, defendants in jurisdictions in which the question remains open will still have an undiminished incentive to litigate the issue. This Court can then grant certio-rari, and the development of Fourth Amendment law will in no way be stunted.
Davis argues that Fourth Amendment precedents of this Court will be effectively insulated from challenge under a good-faith exception for reliance on appellate precedent. But this argumentas overblown. For one thing, it is important to keep in mind that this argument applies to an exceedingly small set of cases. Decisions overruling this Court's Fourth Amendment precedents are rare. Indeed, it has been more than 40 years since the Court last handed down a decision of the type to which Davis refers. Chimel v. California, 395 U. S. 752 (overruling United States v. Rabinowitz, 339 U. S. 56 (1950), and Harris v. United States, 331 U. S. 145 (1947)). And even in those cases, Davis points out that no fewer than eight separate doctrines may preclude a defendant who successfully challenges an existing precedent from getting any relief. Brief for Petitioner 50. Moreover, as a practical matter, defense counsel in many cases will test this Cuurt’s Fourth Amendment precedents in the same way that Belton was tested in Gant — by arguing that the precedent is distinguishable. See Brief for Respondent in Arizona v. Gant, O. T. 2008, No. 07-542, pp. 22-29.
At most, Davis’ argument might suggest that — to prevent Fourth Amendment law from becoming ossified — the petitioner in a case that results in the overruling of one of this Court’s Fourth Amendment precedents should be given the benefit of the victory by permitting the suppression of evidence in that one case. Such a result would undoubtedly be a windfall to this one random litigant. But the exclusionary rule is “not a personal constitutional right.” Stone, 428 U. S., at 486. It is a “judicially created” sanction, Calandra, 414 TI. ñ., at 848, specifically designed as a “windfall” remedy to deter future Fourth Amendment violations. See Stone, supra, at 490. The good-faith exception is a judicially created exception to this judicially created rule. Therefore, in a future case, we could, if necessary, recognize a limited exception to the good-faith exception for a defendant who obtains a judgment overruling one of our Fourth Amendment precedents. Cf. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal. L. Rev. 929, 952-953 (1965) (“[T]he same authority that empowered the Court to supplement the amendment by the exclusionary rule a hundred and twenty-five years after its adoption, likewise allows it to modify that rule as the lessons of experience may teach” (internal quotation marks and footnotes omitted)).
But this is not such a case. Davis did not secure a decision overturning a Supreme Court precedent; the police in his case reasonably relied on binding Circuit precedent. See Gonzalez, 71 F. 3d 819. That sort of blameless police conduct, we hold, comes within the good-faith exception and is not properly subject to the exclusionary rule.
* * *
It is one thing for the criminal “to go free because the constable has blundered.” People v. Before, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (Cardozo, J.). It is quite another to set the criminal free because the constable has scrupulously adhered to governing law. Excluding evidence in such cases deters no police misconduct and imposes substantial social costs. We therefore hold that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply. The
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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songer_procedur
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
BOBY v. ZURBRICK, District Director of Immigration.
No. 6256.
Circuit Court of Appeals, Sixth Circuit.
Dec. 16, 1932.
Ida Lippman, of Detroit, Mich. (Benjamin A. Rossin, of Detroit, Mich., on. the brief), for appellant.
Y. F. McAuliflie, of Detroit Midi. (Gregory H. Frederick, of Detroit, Mich., on the brief), for appellee.
Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges.
PER CURIAM.
Appellant, George Boby, filed his petition for writ of habeas eorpus. He sought to be discharged from arrest under a warrant of deportation directing that he be deported to Roumania. lie did not challenge the right of the government to deport him, but insisted that Roumania was not the country “whence he came.” See section 20 of the Immigration Act of February 5', 1917, U. S. C., tit. 8, § 156 (8 USCA § 156).
At the hearing the District Court dismissed the writ. Appellant has preserved nothing for review. No bill of exceptions nor statement of evidence has been “authenticated” or “approved” by the trial judge. The record contains what purports to bo a stipulation, that at the hearing “United States Department of Labor File No. 55,717 was offered and received in evidence,” and a further stipulation that this record be certified to us and made a part of the record on appeal. What purports to be such a file has been sent to us, but it was not ordered to be sent either by the District Court or by this court. It bears no identification marks showing that it was ever considered by the District Court. Indeed, the record entries show only that the petition for the writ of habeas corpus was dismissed after it was read and after the attorney for petitioner had been heard. For the reasons indicated, this file No. 55,717 cannot be considered. Dukas v. Zurbrick, 56 F.(2d) 518 (C. C. A. 6).
The stipulation last above referred to also purports to set forth other evidence and proceedings before the District Court, but it cannot take the place of the authentication or approval by the trial judge necessary to make its contents a part of the record. Malony v. Adsit, 175 U. S. 281, 287, 20 S. Ct. 115, 44 L. Ed. 163; Metropolitan R. R. Co. v. District of Columbia, 195 U. S. 322, 332, 25 S. Ct. 28, 49 L. Ed. 219; Buessel v. U. S., 258 F. 811, 817 (C. C. A. 2). Annexed to this stipulation is the name and official title of the judge, but wo cannot assume that he signed the paper as an authentication or approval of it as a part of the record.
Because of the insufficiency in the record in the particulars indicated, the order of the District Court must be and is affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_r_subst
|
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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Julia GONZALEZ, Individually and as guardian ad litem for Luis Gonzalez, age 9, and Manuel Gonzalez, age 10, and further on behalf of all persons similarly situated, Appellant, v. James F. YOUNG, Director, Hudson County Welfare Board and G. Thomas Ritti, Director, New Jersey Division of Public Welfare.
No. 76-2410.
United States Court of Appeals, Third Circuit.
Argued June 7, 1977.
Decided July 15, 1977.
Timothy K. Madden, Director, Jersey City, N.J., for appellant; Theodore A. Gardner, Hudson County Legal Services Corp., Jersey City, N.J., on the brief and of counsel.
Harold J. Ruvoldt, Jr., Hudson County Counsel, Jersey City, N.J., for Hudson County Welfare Board Director and Hudson County Welfare Bd.; William D. Surdovel, Asst. County Counsel, Jersey City, N.J., on the brief and of counsel.
William F. Hyland, Atty. Gen. of New Jersey, Trenton, N.J., for appellee G. Thomas Ritti, Director, New Jersey Division of Public Welfare; Stephen Skillman, Asst. Atty. Gen., Trenton, N.J., of counsel, Richard M. Hluchan, Deputy Atty. Gen., on the brief.
Before ALDISERT, ROSENN and HUNTER, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
This appeal requires us to resolve a question which was left open by the Supreme Court in Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), and which has divided the circuits. We are to decide whether the district court had jurisdiction in a claim for damages totalling less than $10,000 and alleging that a state regulation conflicts with a federal statute and therefore must fall because of the Supremacy Clause.
The question is presented in an appeal by Julia Gonzalez from summary judgment in favor of appellees James F. Young, Director of the Hudson County, New Jersey Welfare Board, and G. Thomas Ritti, Director of the New Jersey Division of Public Welfare. The district court, presented with a challenge to New Jersey welfare regulations which allegedly deprived Gonzalez of benefits ensured by a federal statute, determined that no conflict existed between the challenged state regulations and the applicable provisions of the federal statute and accompanying regulations. Because we determine that the district court did not have jurisdiction over this case in the posture in which it was presented, we vacate the district court’s order and remand for dismissal of the complaint for want of jurisdiction.
I.
Appellant resides with her two children in Jersey City, New Jersey. Each month, she receives $235.00 under the Aid to Families with Dependent Children program (AFDC), 42 U.S.C. § 601 et seq., as well as $157.00 under the Social Security Administration’s disability program for her one retarded son. On February 2, 1976, Gonzalez received and cashed both checks at a neighborhood food market. Upon leaving the store, she was accosted by a robber who stole the cash. The following day she explained her situation to the Hudson County Welfare Board, requesting $163.00 in emergency assistance funds to cover her rent and utility bills.
States which elect voluntarily to participate in the federal government’s AFDC program dispense the federal monies (“matching funds”) obtained under the program according to federal eligibility criteria. Minimum standards for emergency assistance eligibility are set out in 42 U.S.C. § 606(e)(1) and its accompanying regulation, 45 C.F.R. 233.120. The statute provides that emergency assistance to needy families with children embraces cases “where [an eligible] child is without available resources, the payments, care, or services involved are necessary to avoid destitution of such child or to provide living arrangements in a home for such child, and such destitution or need for living arrangements did not arise because such child or relative refused without good cause to accept employment or training for employment . . . 42 U.S.C. § 606(e)(1).
45 C.F.R. 233.120(a)(1) provides that in order to receive funding, a participating state must specify in a “state plan” the eligibility conditions to be imposed for receipt of emergency assistance. After electing to participate in the AFDC program, New Jersey promulgated the following provision in regard to emergency assistance payments:
When because of an emergent situation over which they have had no control or opportunity to plan in advance, the eligi-. ble unit is in a state of homelessness; and the County Welfare Board determines that the providing of shelter and/or food and/or emergency clothing, and/or minimum essential house furnishings are necessary for health and safety, such needs may be recognized in accordance with the regulations and limitations in the following sections.
N.J.A.C. 10:82-5.12. Pursuant to this state regulation, on March 15, 1976, the Hudson County Welfare Board formally denied Gonzalez’ request for emergency assistance stating that no assistance would be granted because Gonzalez was not in an “imminent or actual state of homelessness.”
In her complaint to the district court, Gonzalez alleged that appellee Young violated 42 U.S.C. § 606(e)(1) and 45 C.F.R. 233.120 by refusing to authorize emergency assistance in the amount of $163.00 “even though Julia Gonzalez is clearly entitled to same under Federal Law . . . She further alleged that appellee Ritti was responsible for “refusing to promulgate meaningful administrative procedures” for the emergency assistance program, a claim which was mooted by subsequently promulgated state regulations. Although not articulated, the gravamen of the complaint, and what is pressed on appeal, is that the New Jersey standard violates federal law because it is more restrictive than the standards mandated by federal statute.
II.
Gonzalez predicated jurisdiction in the district court upon 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343. Section 1983 provides for a federal cause of action to redress the deprivation, under color of state law, “of any rights, privileges, or immunities secured by the Constitution and laws . .” We hold that it is not a jurisdictional statute; it only fashions a remedy. Thus, although Gonzalez may have asserted a claim under section 1983, she had to look to other authority to obtain jurisdiction.
At the onset, 28 U.S.C. § 1331 was properly rejected by the district court because the amount in controversy did not exceed $10,000.00. Gonzalez sought only $163.00 in damages, along with declaratory and injunctive relief. Thus, it appears “to a legal certainty that the claim is really for less than the jurisdictional amount.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). See Nelson v. Keefer, 451 F.2d 289 (3d Cir. 1971).
The use of 28 U.S.C. § 1343 as a jurisdictional wellspring for her section 1983 claim, however, is not as clear. Whether it can be used as such is a question of lively and current proportion, on which the circuits are split. The statute provides, in relevant part:
The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;
(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.
28 U.S.C. § 1343(3), (4) (emphasis added).
A.
Any inquiry into the scope of section 1343 must make immediate reference to the Supreme Court case of Hagans v. Lavine, supra. In Hagans, the Court decided that when a constitutional claim is made under section 1983 which is of sufficient substance to support federal jurisdiction, a district court has the power under section 1343(3) to consider other claims based on section 1983 without determining that the latter claims, standing alone, are sufficient to support jurisdiction. The current inter-circuit disagreement is largely over whether a claim that a state law conflicts with federal law is of “sufficient substance” to confer jurisdiction, and when, absent a clearly sufficient constitutional claim, there exists an independent basis for jurisdiction under section 1983. Indeed, the questions have been specifically left open by the Supreme Court on a number of occasions. In King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), the Court stated: “We intimate no views as to whether and under what circumstances suits challenging AFDC provisions only on the ground that they are inconsistent with the federal statute may be brought in federal courts.” Id. at 312 n. 3, 88 S.Ct. at 2131. And in Hagans, supra, the Court stated:
In view of our disposition of this case, we do not reach the question whether, wholly aside from the pendent-jurisdiction rationale relied upon by the District Court, other valid grounds existed for sustaining its jurisdiction to entertain and decide the claim of conflict between federal and state law. It has been suggested, for example, that the conflict question is itself a constitutional matter within the meaning of § 1343(3). Connecticut Union of Welfare Employees v. White, 55 F.R.D. 481, 486 (Conn.1972). For purposes of interpreting and applying 28 U.S.C. § 2281, the three-judge-court provision, a claim of conflict between federal and state law has been denominated a claim not requiring a three-judge court. Swift & Co. v. Wick-ham, 382 U.S. 111, [86 S.Ct. 258, 15 L.Ed.2d 194] (1965). But Swift itself recognized that a suit to have a state statute declared void and to secure the benefits of the federal statute with which the state law is allegedly in conflict cannot succeed without ultimate resort to the Federal Constitution — “to be sure, any determination that a state statute is void for obstructing a federal statute does rest on the Supremacy Clause of the Federal Constitution.” Id., at 125, [86 S.Ct. at 266]. Moreover, when we have previously determined that state AFDC laws do not conform to the Social Security Act or HEW regulations, they have been invalidated under the Supremacy Clause. See Townsend v. Swank, 404 U.S. 282, 286, [92 S.Ct. 502, 505, 30 L.Ed.2d 448] (1971). It is therefore urged that the “secured by the Constitution” language of § 1343(3) should not be construed to exclude Supremacy Clause issues. That question we leave for another day.
Petitioners contend that § 1983 authorizes suits to vindicate rights under the “laws” of the United States as well as under the Constitution and that a suit brought under § 1983 to vindicate a statutory right under the Social Security Act, is a suit under an Act of Congress “providing for the protection of civil rights, including the right to vote” within the meaning of § 1343(4). They further argue that in any event, § 1343(3) in particular, and § 1343 in general, should be construed to invest the district courts with jurisdiction to hear any suit authorized by § 1983. These issues we also do not reach. .
415 U.S. at 533-34 n. 5, 94 S.Ct. at 1377. See also Lynch v. Household Finance Corp., 405 U.S. 538, 543-44 n. 7, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972); Rosado v. Wyman, 397 U.S. 397, 405 n. 7, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). See generally District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973).
B.
Appellant contended in the district court that her complaint raised a nonfrivolous constitutional claim over which the court was obliged to exercise jurisdiction. Our reading of the complaint is that there was no independent constitutional claim sufficient to fall within the jurisdictional language of § 1343(3). We begin by accepting the district court’s characterization: “The only constitutional claim the plaintiff presents is that the alleged conflict between the state .and federal statutes and regulations violates rights secured for her by the Supremacy Clause of the Constitution.” 418 F.Supp. at 569. The district court, however, found it unnecessary to reach this claim, since it had already determined that jurisdiction existed under both section 1343(3) and (4). Under the current state of the law, we suggest that the proper course would have been to determine initially whether what was identified as the “constitutional claim” was of “sufficient substance” to confer jurisdiction under section 1343(3), i. e., one to which Gonzalez’ statutory claim could then be appended under Hagans, supra.
On the question whether a claim that state law conflicts with federal law establishes a sufficient constitutional claim, through the Supremacy Clause, to establish jurisdiction under section 1343(3), we find ourselves in complete agreement with the Second Circuit’s resolution of this same problem. In Andrews v. Maher, 525 F.2d 113 (2d Cir. 1975), that court was presented with a claim that a Connecticut regulation violated various provisions of the Social Security Act, as well as regulations of the Department of Health, Education and Welfare (HEW), which required that AFDC aid be furnished under certain conditions. Addressing the contention that since this claim required ultímate resort to the Supremacy Clause, it was cognizable under section 1343(3) as a deprivation of rights “secured by the Constitution,” the court stated:
We reject the contention because it transforms statutory claims into constitutional claims by verbal legerdemain. The Supremacy Clause does not secure rights to individuals; it states a fundamental structural principle of federalism. While that clause is the reason why a state law that conflicts with a federal statute is invalid, it is the federal statute that confers whatever rights the individual is seeking to vindicate. Moreover, the language of section 1343(3) clearly contemplates a distinction between rights secured by the Constitution and rights secured by “any Act of Congress.” If the latter were just one variety of the former, it would be unnecessary to mention it as a separate situation. The Supreme Court has rejected a similar attempt to construe statutory claims as Supremacy Clause (and therefore constitutional) claims in the context of 28 U.S.C. § 2281, Swift & Co. v. Wickham, 382 U.S. 111, 125-28, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965), and we see no reason to reach a different result here.
Id. at 118-19 (footnote omitted).
We are cognizant that other courts have held to the contrary. In Blue v. Craig, 505 F.2d 830 (4th Cir. 1974), the court cited with approval the Supreme Court’s statement in Swift & Co. v. Wickham, 382 U.S. 111, 125, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965), that “to be sure, any determination that a state statute is void for obstructing a federal statute does rest in the Supremacy Clause.” 505 F.2d at 844. With this we agree. However, the Blue court concluded that “a claim that a state statute or regulation is inconsistent with federal law poses a constitutional issue under the Supremacy Clause, jurisdictionally cognizable under § 1343(3)” by relying on the Hagans footnote quoted above. We fail to comprehend how the Hagans passage, which specifically left the question unresolved, compels a finding that sections 1983 and 1343(3) are coextensive. A statement which specifically does not meet a question cannot be cited as authority for answering it. We conclude that jurisdiction must rest on a constitutional claim of sufficient substance, independent of statutory conflicts under the Supremacy Clause.
C.
Having determined that Gonzalez’ complaint presented no constitutional claim sufficient to confer jurisdiction under section 1343(3), we must consider whether the statutory claims had an independent basis for jurisdiction under either section 1343(3) or (4). Jurisdictional sections 1343(3) and (4) of Title 28 are cast in narrower language than that of remedial section 1983 of Title 42. For example, although section 1983 provides for redress of “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,” section 1343(3) covers only those secured by the Constitution or an “Act of Congress providing for equal rights of citizens.” (Emphasis added.) Appellant nevertheless urged in the district court that the qualifying language of section 1343(3) is superfluous and that, at any rate, section 1983 should be viewed as an act “providing for equal rights.” We cannot agree. Gonzalez claims deprivation not of a right secured by the Constitution, but one falling within the Social Security Act, which contains the AFDC provisions. And provisions of the Social Security Act simply were not designed to provide for the equal rights of citizens for purposes of section 1343(3). Accord, Andrews v. Maher, supra, 525 F.2d at 118; Rosado v. Wyman, 414 F.2d 170 (2d Cir. 1969), rev’d on other grounds, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Randall v. Goldmark, 495 F.2d 356 (1st Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 144, 42 L.Ed.2d 119 (1974); Dorak v. Shapp, 403 F.Supp. 863, 865 (M.D.Pa.1975); Mattingly v. Elias, 325 F.Supp. 1374, 1383 (E.D.Pa. 1971), rev’d on other grounds, 482 F.2d 526 (3d Cir. 1973). But see Blue v. Craig, supra; Vazquez v. Ferre, 404 F.Supp. 815 (D.N.J.1975); Watters v. Parrish, 402 F.Supp. 696 (W.D.Va.1975).
The district court’s total reliance on the rationale of Vazquez v. Ferre, supra, to support jurisdiction under section 1343(3), was misplaced. In Vazquez, plaintiffs’ complaint set forth three causes of action. The section 1983 claim, in the court’s own words, was “based upon the deprivation of statutory as well as constitutional rights.” 404 F.Supp. at 823 (emphasis added). Thus, under the holding of Hagans, the Vazquez court was free to explore the statutory claims.
To the extent that Vazquez sought to bring all section 1983 claims — wholly or partially statutory — under section 1343(3) automatically, we reject it. There is discussion to the effect that the legislative history of section 1343(3) demonstrates that its language was not intended to reduce the jurisdiction of federal district courts over section 1983 actions. This was the tack taken by the Fourth Circuit in Blue v. Craig, supra, perhaps the foremost circuit court case in favor of bringing wholly statutory section 1983 claims under section 1343.
We cannot accept this approach. The term “equal rights” first appeared in that part of the 1875 revision of the Civil Rights Act of 1871 which addressed jurisdiction of the circuit courts. Rev.Stat. § 629(16). The Fourth Circuit contends, and the district court in Vazquez agreed, that the term “equal rights” had a broader meaning at that time than it does today. 505 F.2d at 839; 404 F.Supp. at 824. Under this view, the term is merely a “ ‘short-hand’ reference back to all rights of actions qualifying for enforcement under the various remedial statutes enacted to give effect to the mandates of the Fourteenth Amendment.” 505 F.2d at 839.
Absent convincing evidence to the contrary, however, we must believe that Congress intended to separate the jurisdictional section from the section fashioning a remedy, which it did, and that “equal rights” does have meaning of its own. We note specifically, as did the Supreme Court in Lynch v. Household Finance Corp., supra, 405 U.S. at 544 n. 7, 92 S.Ct. 1113, that when Congress finally abolished the circuit courts’ original jurisdiction in 1911 by merging the previously separate jurisdictional grants for the district courts and circuit courts into what is now section 1343(3), it retained the “equal rights” limitation.
Nor do we believe that the Social Security Act is one “providing for the protection of civil rights,” as to bring this action under section 1343(4). No claim was made by Gonzalez of infringement of personal liberty, unlawful classification, or discrimination. Again we make reference to the actions of Congress in enacting the jurisdictional grant. Section 1343(4) was intended to ensure jurisdiction over claims based upon the Civil Rights Act of 1957. See H.R.Rep. No. 85-291, 1957 U.S.Code Cong. & Admin.News 1966, 1976 (1957). The Social Security Act, which protects the rights Gonzalez asserts here, is of a decidedly dissimilar purpose.
There is an ancillary argument that section 1983 itself provides a jurisdictional basis under section 1343(4) by virtue of its very existence as a statute protecting “rights, privileges and immunities”. See, e. g., Gomez v. Florida State Employment Service, 417 F.2d 569, 580 n. 39 (5th Cir. 1969). This chicken-and-egg approach must be rejected for several reasons. We have already noted that the language of the two statutes is not the same; one is more restrictive than the other. Second, and more important, it is our view that section 1983 does not in and of itself create or secure any substantive rights; it merely authorizes a cause of action when rights secured by another source have been infringed. In the present case, that “other” source is the Social Security Act. To say in one instant that the Social Security Act is not sufficient in itself to confer jurisdiction under section 1343(4) as an act “providing for the protection of civil rights”, and yet to permit the cloaking of that claim within section 1983 merely in order to confer jurisdiction, is a route we cannot take. Moreover, as we have heretofore observed, supra note 2, the Supreme Court has explicitly rejected the notion that section 1983 is a jurisdictional statute by express reference to 28 U.S.C. § 1343(3) as a “jurisdictional counterpart” of section 1983. Lynch v. Household Finance Corp., supra, 405 U.S. at 540, 543, 92 S.Ct. 1113.
We recognize that the Supreme Court has applied section 1343(4) in causes other than those brought solely under the Civil Rights Act of 1957. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 412 n. 1, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) (Civil Rights Act of 1866); Allen v. Board of Education, 393 U.S. 544, 554, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969) (Voting Rights Act of 1965). For the reasons expressed by our brethren on the First and Second Circuits, however, we do not go beyond these exceptions. In Andrews v. Maher, supra, the Second Circuit observed that “there is a difference between extending section 1343(4) to laws such as these, which protect specific rights and engender comparatively little litigation, and applying it to section 1983, which protects all rights ‘secured by the Constitution and laws.’ ” 525 F.2d at 120. And in Randall v. Goldmark, 495 F.2d 356, 360 (1st Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 144, 42 L.Ed.2d 119 (1974), the First Circuit expressed similarly compelling reservations:
Although [Jones v. Mayer] might be taken as an endorsement of a broad reading of the statute, applying section 1343(4) to section 1983 would in essence eliminate the jurisdictional amount requirement for any federal question case involving deprivations under color of state law, a consequence arguably so broad when measured in the light of the congressional objectives in adding section 1343(4), that we prefer not to make a positive commitment at this time.
D.
We end our analysis as we began it, by suggesting that the crucial polestar in examining the recent cases in this area is Hagans, supra. The presence of a substantial constitutional claim in a cause will afford a litigant the opportunity to press statutory section 1983 claims in the same action. Thus, in Almenares v. Wyman, 453 F.2d 1075 (2d Cir. 1971), cert. denied, 405 U.S. 944,92 S.Ct. 962, 30 L.Ed.2d 815 (1972), the Second Circuit could, consistent with its usual position of no jurisdiction over wholly statutory section 1983 claims (see e. g., Andrews v. Maher, supra; McCall v. Shapiro, 416 F.2d 246 (2d Cir. 1969)), find jurisdiction in a case challenging as violative of HEW regulations state procedures for terminating AFDC benefits where the complaint also stated a substantial constitutional claim that the actions of the city violated due process. In Rosado v. Wyman, 414 F.2d 170 (2d Cir. 1970), rev’d on other grounds, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), the same court dismissed a challenge to a state statutory provision which allegedly reduced the amount of AFDC benefits due under the federal statute, since the district judge never had jurisdiction over a constitutional claim to which the statutory claim could have been pendent.
Indeed, the rule of Hagans harmonizes our determination in the present case with the decision reached in Williams v. Wohlge-muth, 540 F.2d 163 (3d Cir. 1976). In Williams, former Pennsylvania provisions of the same emergency assistance program at issue here were challenged. At that time, the program limited assistance to emergency needs caused by either civil disorder or national disaster. Unlike the complaint filed for Gonzalez, which contained only the vaguest constitutional overtones relating to the Supremacy Clause, the complaint filed in Williams alleged that the former Pennsylvania provisions violated the equal protection and due process clauses of the Constitution. Determining that the constitutional claims were neither “wholly insubstantial” nor “wholly frivolous” under Ha-gans, supra, the court decided that the district court had properly taken jurisdiction over the case.
III.
We are not unmindful of the merits of the argument that a federal forum is best suited for adjudicating a claim that federal monies are not being allocated according to a mandatory federal scheme. We have no choice, however, but to act within our jurisdictional limits. It may well be that a federal forum has the necessary sensitivities to handle these claims, but it is for Congress to so determine.
It has been noted that subsequent to enactment of the 1875 Judiciary Act, “the history of federal question jurisdiction . [has revolved] largely around the creation by Congress of myriad new federal rights and its provision for their enforcement in the national courts without regard to jurisdictional amount.” Hart & Wech-sler, The Federal Courts and the Federal System 729 (1953), quoted in McCall v. Shapiro, 416 F.2d 246, 249 (2d Cir. 1969). In 1969, the prestigious American Law Institute issued its Study of the Division of Jurisdiction Between State and Federal Courts. The Study recommended amending § 1331(a) to read: “Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction without regard to amount in controversy of all civil actions. . . .’’In introducing S. 1876, the Federal Court Jurisdiction Act of 1973, which specifically incorporated this ALI recommendation, Senator Quentin Burdick stated:
The most important change here is that Federal question cases may be brought without any requirement that the amount in controversy exceed a fixed dollar amount. The need for a Federal forum is no less in small cases than in large cases. This will clarify many troublesome problems that the district courts have faced in attempting to determine the value of a case, particularly when equitable relief is requested. Furthermore, it is important that in a case where parties seek to assert Federal rights, they have full access to the district courts.
Congressional Record, Vol. 119 at 16679 (May 23, 1973).
Simply put, Congress has not provided for enforcement of the AFDC program without regard to jurisdictional amount. Claims such as that pressed by Gonzalez here may continue to be adjudicated in federal court when they are pendent to a sufficient constitutional claim in the same action, but until Congress acts we are not in a position to adjudicate claims over which we could not exercise independent jurisdiction.
For the foregoing reasons, the judgment of the district court will be vacated and the cause remanded with a direction to dismiss for want of jurisdiction.
. In advocating this method, we are mindful of the Supreme Court’s teaching that where pendent jurisdiction obtains, a court should dispose of the case on the nonconstitutional grounds if possible. E. g., Hagans v. Lavine, supra, 415 U.S. at 543, 94 S.Ct. 1372; California Human Resources Dep’t v. Java, 402 U.S. 121, 124, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1971); Dandridge v. Williams, 397 U.S. 471, 475-76, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). We are merely advising that in order to obtain jurisdiction, the constitutional claim(s) should be examined first.
. In Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), in which the Supreme Court made repeated references to section 1983 “and its jurisdictional counterpart [28 U.S.C. § 1343(3)]”, id. at 540, 543, 92 S.Ct. at 1117, the Court itself characterized the “equal rights” language as a “limitation”. Id. at 544 n. 7, 92 S.Ct. at 1116.
. An early discussion of this, and many of the issues presented by this case, is found in Note, Federal Jurisdiction Over Challenges to State Welfare Programs, 72 Col.L.Rev. 1404 (1972).
. By the Act of June 20, 1874, § 2, Congress charged Secretary of State Hamilton with the duty of preparing for publication and distribution the Revised Statutes of the United States. 18 Stat. 113-14. This work, according to its title page, embraced the statutes of the United States, general and permanent in their nature, in force on Dec. 1, 1873, as revised and consolidated by commissioners appointed under an act of Congress. Congress “enacted” the Revised Statutes on June 22, 1874; Secretary Fish affixed his seal to the finished work on February 22, 1875.
Brawer v. Horowitz, 535 F.2d 830, 838 n. 16 (3d Cir. 1976). Brawer provides a discussion of the Act of April 20, 1871.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
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songer_weightev
|
A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the 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 TREVINO, Plaintiff-Appellant, American National Insurance Company, Intervenor-Appellant, v. YAMAHA MOTOR CORPORATION, U.S.A., Defendant-Appellee.
No. 88-2818.
United States Court of Appeals, Fifth Circuit.
Sept. 5, 1989.
John Pichinson, Corpus Christi, Tex., for Trevino.
Frank E. Weathered, Corpus Christi, Tex., for American Nat. Ins. Co.
Sharon E. Callaway, Thomas H. Crofts, Jr., Jeffrey S. Hawkins, Groce, Locke & Hebdon, San Antonio, Tex., for defendant-appellee.
Before GOLDBERG, JOHNSON, and DUHE, Circuit Judges.
PER CURIAM:
Plaintiff Albert Trevino appeals an order entered by the district court granting summary judgment in favor of defendant Yamaha Motor Corporation, U.S.A. (Yamaha) on his products liability claim. Persuaded that, on the facts of the instant case, Yamaha was not responsible for any design defect in the product which allegedly caused injury to Trevino by virtue of the substantial modification of that product by a third party, we affirm the district court.
I. FACTS AND PROCEDURAL HISTORY
The instant action stems from injuries which plaintiff Albert Trevino received while employed as a golf course maintenance worker. Specifically, Trevino was injured when he fell off a bridge on the golf course after his pants leg became entangled on a carriage latch extending from his golf cart/maintenance vehicle. The basic golf cart used by Trevino was designed and manufactured by defendant Yamaha. It was another company, however, Watson Distributing Company (Watson), which, after receiving delivery of the basic golf cart from Yamaha, altered the design of the golf cart by installing a chassis cover and carriage latch (hereafter referred to as “the pickup-type body”) on the cart so that the vehicle would be suitable for golf course maintenance work. Watson then sold the converted golf cart/maintenance vehicle to the employer of Trevino. Yamaha could not manufacture the golf cart itself already converted in such a fashion because of import restrictions.
Trevino brought the instant suit against Yamaha in state district court in Texas alleging that the location of the latch on the golf cart/maintenance vehicle was unreasonably dangerous, and that Yamaha had failed to warn of that danger. Trevino did not, however, file suit against Watson, the distributor of the golf cart/maintenance vehicle, even though the latch which allegedly protruded from the golf cart/maintenance vehicle causing Trevino to fall was part of the pickup-type body installed by Watson on the cart prior to its distribution. After removing the suit to federal district court on the basis of diversity jurisdiction, Yamaha filed a motion for summary judgment maintaining that the sole allegation of defect in the golf cart/maintenance vehicle raised by Trevino in his products liability claim related to the pickup-type body installed on the golf cart by Watson. Thus, Yamaha argued that, since it had not participated in any manner in designing, manufacturing, marketing, distributing, or installing the alleged defective part of the golf cart (the pickup-type body), Yamaha was not liable to Trevino and thus, summary judgment was appropriate. In response, Trevino maintained that, even though Yamaha did not install or manufacture the defective pickup-type body, Yamaha “encouraged” its distributors to accessorize and modify the basic Yamaha golf cart in such a fashion so as to promote the sale of the carts.
After considering the summary judgment evidence submitted by the parties, the district court entered an order granting summary judgment in favor of Yamaha primarily on the basis that a manufacturer is generally not liable for design defects in its product resulting from the substantial modification of that product by a third party after the product has left the control of the manufacturer. Trevino now appeals the above order of the district court.
II. DISCUSSION
As a preliminary matter, we note that the instant appeal is one from an order of the district court granting summary judgment in a products liability action. Rule 56(c) of the Federal Rules of Civil Procedure provides that a movant is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” This Court, however, has previously stated that “the use of summary judgment is rarely appropriate in negligence or products liability cases, even where material facts are not disputed.” Davidson v. Stanadyne, Inc., 718 F.2d 1334, 1338 (5th Cir.1983) (footnote omitted). Nevertheless, where the resolution of the summary judgment motion turns upon legal, and not factual issues, summary judgment may be more appropriate. Id. at 1339 n. 8. See also Miller-Schmidt v. Gastech, Inc., 864 F.2d 1181, 1185 (5th Cir.1989). In the instant appeal, the pertinent facts, as reflected by the summary judgment evidence, are undisputed. Further, the legal issue which this Court must resolve on appeal involves the propriety of imposing strict liability on a manufacturer (Yamaha) for the defective design of a product resulting from the substantial modification of that product by its distributor (Watson). Accordingly, the use of summary judgment was not inappropriate in the instant case.
Applying Texas law to the instant diversity action, it is initially noted that strict liability actions in Texas are governed by the Restatement (Second) of Torts, § 402A (1965), which was adopted by the State of Texas in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 792 (Tex.1967). Section 402A provides in pertinent part that:
One who sells any product in a defective condition unreasonably dangerous to the user or consumer ... is subject to liability for physical harm thereby caused to the ultimate user or consumer ... if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold,
(emphasis added). Thus, any products liability action necessitates a two-part inquiry: (1) is there a defect, and (2) if so, who is responsible for the defect. For purposes of the instant appeal, it is assumed that the pickup-type body including the latch protruding from the Yamaha golf cart which purportedly caused Trevino to fall and injure himself, was defective; therefore, our inquiry becomes upon whom to place the responsibility for the defective design of the pickup-type body.
On appeal, Yamaha maintains that, since Watson installed the pickup-type body upon the Yamaha golf cart after the golf cart left the control of Yamaha, Yamaha is relieved of any liability for the defect in its cart resulting from the subsequent modification of that cart by Watson. In response, Trevino argues that Yamaha encouraged and approved of such a modification by Watson as part of its marketing strategy to circumvent import restrictions and promote sales. In this regard, Trevino contends that Yamaha was under a duty to design its golf cart in a manner safe for reasonably foreseeable uses, including the use of that cart as a maintenance vehicle after conversion to such a vehicle by a distributor. Further, Trevino maintains that Yamaha was under a duty to warn of anticipated dangers resulting from reasonably foreseeable uses of its golf cart. On this point, Yamaha concedes that the conversion of the golf cart by Watson to a maintenance vehicle was foreseeable.
In resolving the above issue of responsibility for the defective character of the golf cart/maintenance vehicle in the instant case, we are significantly guided by a Third Circuit decision, Verge v. Ford Motor Co., 581 F.2d 384 (1978), and a decision by a Texas Court of Appeals, Elliott v. Century Chevrolet Co., 597 S.W.2d 563 (Tex.Civ. App.-Ft. Worth 1980, writ ref’d n.r.e.), which adopts the rationale of the Verge decision. The defendant in the Verge case manufactured a truck chassis which was later converted to a garbage truck by a third party through the addition of a garbage compactor unit to the truck chassis. In Verge, the Third Circuit addressed whether the manufacturer of the truck chassis should be liable for failing to install a warning backup buzzer on the truck which, when backing up, crushed the plaintiff. The injury to the plaintiff in Verge might have been prevented had the plaintiff known the truck was backing up by virtue of a warning buzzer.
Reasoning that strict liability pursuant to section 402A should only be imposed where the manufacturer is responsible for the defective condition of the product, the Verge court concluded that the manufacturer of the bare truck chassis in that case was not strictly liable to the plaintiff. In so concluding, the Third Circuit enunciated the following three factors for consideration in determining the responsibility for a defect in a product where the finished product is the result of substantial work by more than one party. Verge, 581 F.2d 384. Those factors include: (1) trade custom — at what stage would the defect normally be cured; (2) relative expertise — which party is best acquainted with the design problems of the product as modified; and (3) practical considerations — which party is in the better position to remedy or warn of the defect. Id. at 387. Applying the above three factors, the Verge court reasoned that the company that converted the truck for garbage collection by installing the garbage compactor unit, and not the original manufacturer of the truck was the party who should properly be held liable to the plaintiff for injuries suffered by the plaintiff as the result of the failure to install a backup warning buzzer.
Confronted with a factual scenario similar to that in Verge, a Texas Court of Appeals, in Elliott v. Century Chevrolet Co., adopted the Verge analysis. In Elliott, the court of appeals applied the above three factors enunciated by the Third Circuit to conclude that the defendant manufacturer of a truck chassis was not strictly liable to the plaintiff in that case for the failure to install a safety device designed to remedy a defect resulting from the modification by a third party of the truck chassis to a beer truck. See also Riggins v. Ford Motor Co., 596 F.Supp. 1379 (E.D.La.1984) (following Verge). The Elliott decision, as the applicable Texas law on this issue, guides our disposition of the instant appeal.
Accordingly, applying the principles of Elliott and Verge to the facts of the instant appeal, we, like the district court, conclude that Trevino failed to adduce sufficient summary judgment evidence to establish that Yamaha was in a position to alter the design of the pickup-type body installed on its golf cart by Watson, or to discover and warn of any defect in the design of the pickup-type body. Further, the district court correctly determined that the manufacturer of the pickup-type body added to the Yamaha golf cart, and Watson, who installed the pickup-type body and sold the converted cart, were clearly in a much better position than Yamaha to warn ultimate consumers of any defects in the golf cart/maintenance vehicle. Therefore, on the facts of the instant case, Yamaha may not be held responsible for any defect in the golf cart chassis cover and latch which was installed by Watson during the conversion of the cart to a maintenance vehicle.
Trevino, however, maintains that, notwithstanding the above, the distinguishing factor between the Verge and Elliott cases and the instant case is the fact that Yamaha encouraged and approved of the subsequent modification of its golf cart by its distributors to a maintenance vehicle of the type which purportedly caused Trevino’s injury. Trevino then argues that, due to this encouragement and approval of the modification by Yamaha, Yamaha could reasonably foresee that an intended use of its golf cart would be as a maintenance vehicle and thus, Yamaha had a duty to design its golf cart in a manner which would take into account any defects resulting from that modification. In support of the above contention, Trevino submitted to the district court an affidavit from the president of Watson Distributing stating that “Yamaha was well aware that such after market accessories promoted sale of its products, and not only approved of, but also encouraged its distributors to provide such after market accessories.”
The above evidence of encouragement by Trevino is not sufficient to impose responsibility on Yamaha in the instant case for any defect in the design of the pickup-type body which allegedly caused Trevino to fall and injure himself. Our conclusion in this regard, however, should not be interpreted to mean that encouragement by a manufacturer to its distributor to modify its product in a particular manner may never give rise to liability of the manufacturer for a defect resulting from that modification. For instance, it is entirely conceivable that a manufacturer could, in encouraging its distributor to modify its product in a certain fashion before sale, provide to its distributor specific directions and guidance for modifying the product. In such an instance, it may be that, after applying the Verge factors of trade custom, relative expertise, and practicality, the imposition of strict liability on the manufacturer would be considered. Nevertheless, we need not specifically address the “encouragement” issue in the instant case; the evidence of encouragement by Yamaha advanced by Trevino is, at best, skeletal.
Therefore, since we conclude that Trevino has failed to adduce sufficient evidence establishing that Yamaha had any special expertise or that any practical considerations existed which would impose on Yamaha responsibility for the purported defective design of the pickup-type body, we affirm the order of the district court granting summary judgment in favor of Yamaha.
AFFIRMED.
. At this juncture, American National Insurance Company, intervened in the instant action to assert its subrogation rights under the Texas Worker’s Compensation Act.
. As mentioned previously, Yamaha concedes, for purposes of the instant appeal, that the modification of its golf cart to a maintenance vehicle was a foreseeable modification. Trevino, relying on this concession, maintains that, just as a manufacturer is under a duty to design its product in a manner safe for reasonably foreseeable uses by consumers, so also does a manufacturer have a duty to design its product in a manner safe for reasonably foreseeable uses and modifications by third parties. The above contention by Trevino, however, is without merit as the policy considerations underlying the duty of a manufacturer to consumers are different than those involved when determining on whom to place liability for a defect in a modified product after a third party modifies a product for his own pecuniary gain.
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:
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songer_respond1_8_2
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A
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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 "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
UNITED STATES of America, Appellant, v. Gordon SIMMONS and I. V. Simmons, Executors of the Estate of B. Hill Simmons, Appellees.
No. 21464.
United States Court of Appeals Fifth Circuit.
May 27, 1965.
James F. Flug, Atty., Dept, of Justice, Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., Dept, of Justice, Washington, D. C., Donald H. Frazer, U. S. Atty., Savannah, Ga., Richard M. Roberts, Acting Asst. Atty. Gen., David O. Walter, Michael I. Smith, Attys., Dept, of Justice, Washington, D. C., for appellant.
Louis A. Thompson, Savannah, Ga., for appellees.
Before WISDOM and GEWIN, Circuit Judges, and BREWSTER, District Judge.
WISDOM, Circuit Judge:
This taxpayer’s suit for an estate tax refund grew out of executors’ settling for $42,000 an estate’s claim for an income tax refund of $60,000, listed in the estate tax return as having “no value” at the date of the decedent’s death.
The decedent, B. Hill Simmons, died December 27, 1955. Some time before his death, the Internal Revenue Service began investigating, on a net worth basis, Simmons’s income tax returns for the years 1941 through 1953. As a result of the investigation, the decedent paid a deficiency in the amount of $43,000. The decedent never entertained the idea of filing a claim for a refund of these taxes. Shortly after Simmons’s death, the executors of the estate employed an attorney, Mr. Louis B. Thompson, counsel for appellee, to investigate the decedent’s tax affairs. By November 1956 the attorney decided that a claim for a refund should be filed for the decedent’s taxable years 1941 through 1953. February 1, 1957, Mr. Thompson filed the claim for refund amounting to $60,000. Upon the Service’s disallowing the claim, Mr. Thompson filed suit on behalf of the estate. In 1960, the Department of Justice approved the executors’ offer of compromise for $41,187. Meanwhile, the taxpayer’s attorney had filed an estate tax return listing the income tax claim as having no value, but had requested that the estate tax liability be held in abeyance pending the outcome of the claim. The Commissioner determined that the claim was includible in the decedent’s estate and valued the claim at the amount of the settlement.
Under Section 2031 of the Internal Revenue Code of 1954, the federal estate tax includes “all property, real or personal, tangible or intangible” of the decedent. When Simmons died, his “property” included the claim for refund of federal income taxes. Both parties agree that the claim for refund of income taxes is a part of Simmons’s gross estate. But as far as it is possible to disagree as to value, they disagree: the United States contends that the amount of the compromise, $42,000, fixed the estate tax value of the claim; the Estate of B. Hill Simmons (the taxpayer) contends the claim had no value when Simmons died. The taxpayers asserts that at the time of death the executors thought the claim was worthless and would have sold it for $1,000. Allegedly, a key factor in filing the claim was the discovery in October 1956 of a pencil memorandum tending to disprove fraud in that it showed the decedent’s intention to report certain cotton sales that had not been reported. The executors paid the tax assessed against the estate and sued for a refund.
The district court submitted the issue of valuation to the jury. The jury found that the claim was valueless at the time of the decedent’s death. The district court denied the Government’s motions for a directed verdict, a judgment n. o. v., and a new trial. We hold that the trial court correctly denied the motions for a directed verdict and judgment n. o. v., but we reverse the judgment and remand the case for a new trial, because there was no rational basis for the jury’s finding that the claim for an income tax refund was valueless on the date of the decedent’s death.
I.
Since a motion for a judgment notwithstanding the verdict in effect renews an earlier motion for a directed verdict, the applicable judicial standard is the same for both motions. Fed.R. Civ.P. 50. Professor Wright comments on these two motions and on the motion for a new trial as follows:
“The motion for judgment n. o. v., like the motion for directed verdict, raises only the legal question whether there was enough evidence to make an issue for the jury. It differs from the motion for a new trial, where the court has a discretion to set aside a verdict and grant a new trial even if the verdict is supported by substantial evidence. The motion for judgment n. o. v., on the other hand, must be denied if there is any substantial evidence which would support a verdict. The credibility of witnesses and weight of the evidence, proper considerations on a motion for a new trial, are not the concern of the court on a motion for a directed verdict or for judgment n. o. v. The evidence must be viewed in the light most favorable to the party against whom the motion is made, he must be given the benefit of all legitimate inferences which may be drawn in his favor from that evidence, and the motion must be denied if, so viewed, reasonable men might differ as to the conclusions of fact to be drawn.” Wright, Federal Courts § 95 at 370.
See also 2B Barron & Holtzoff (Wright ed.) § 1075. Professor Moore writes: “In ruling on the motion for directed verdict or for judgment n. o. v. it is the duty of the trial court to take that view of the evidence most favorable to the party against whom the motion is made, and from that evidence, and the inferences reasonably and justifiably to be drawn therefrom, determine whether or not, under the law, a verdict might be found for him.” 6 Moore, Federal Practice, § 59.08(5) at 3814.
Bearing these principles in mind, we hold that a review of the record shows abundant evidence to make an issue for the jury as to the value of the claim. The Commissioner contends, however, that the trial judge should have directed the verdict in favor of the United States or granted a judgment n. o. v. because, as a matter of law, the amount of the compromise fixed the value of the claim for estate tax purposes.
The few decided cases in this area of tax law reject the Commissioner’s contention. At one time the Board of Tax Appeals took the position that the amount later recovered on an income tax refund claim fixed the value of the claim for estate tax purposes. Security-First National Bank of Los Angeles, Executor of Estate of Milton Sills v. Commissioner, 1937, 35 B.T.A. 815; Estate of Harriet E. Barneson, 1941, P-H B.T.A. Memorandum Decisions 41,283. On appeal the Ninth Circuit reversed Barneson, sub nom., Bank of California, National Ass’n v. Commissioner, 9 Cir. 1943, 133 F.2d 428. The court held that the decedent’s claim for refund of income taxes was a part of the decedent’s gross- estate; that the value of the claim was the fair market value as between a willing buyer and a willing seller at the time of the decedent’s death. Instead of determining the fair market value, the Board had arbitrarily used the amount of the recovery. The Ninth Circuit remanded the case for a proper finding. On remand, the Board found that at the time of decedent’s death the fair market value of the claim was $4000 as against $8000 recovered in the taxpayers’ refund action. Estate of Harriet E. Barneson, 1945, P-H.B.T.A. Memorandum Decisions |¶ 45,129. Later cases support Barneson, at least by implication. See e. g., Duffield v. United States, E.D.Pa.1955, 136 F.Supp. 944; Estate of Isaac W. Baldwin v. Commissioner, T.C. Memo. 1959-203 D.N. 9446. Many of the cases the Government cites do not involve a determination of “fair market value”.
The Treasury Regulation applies the “willing buyer and seller test” to all questions of valuation. Reg. § 20.2031-1(b). When, as in this case, the claim cannot be lawfully sold or assigned, the test approaches the outer limits of an acceptable test. However, we cannot say that the regulation exceeds the statutory authority of the Treasury. And the test probably cuts across the board with a minimum of harm about as well as any other test that might be devised. See Frank, J. in Commissioner of Internal Revenue v. Marshall, 2 Cir. 1942, 125 F. 2d 943, 141 A.L.R. 445.
Applying the willing buyer and seller test to the claim for income tax refund, we see no reason for concluding that the amount of the settlement necessarily represents the fair market value of the claim at the date of death. The amount of the settlement is relevant but not conclusive.
The issue was a factual one for the jury. The record supports the trial judge’s denial of the motions for a directed verdict and a judgment n. o. v.
II.
“A motion for new trial (Fed.R.Civ.P. 59) unlike the motion for directed verdict or for judgment n. o. v. * * * is addressed to the sound discretion of the trial court; and the grant or denial of a motion for new trial is not reviewable, except where the trial court acts under the compulsion of a mistake of law, or lacks power to grant the motion, as where the motion is not timely, or where the court failed to exercise its discretion, or where it abuses its discretion. And a motion for a new trial on the ground that the verdict is against the weight of the evidence and the trial court’s ruling thereon are within the foregoing principles.” 6 Moore, Federal Practice § 59.08 at 3816.
If the jury had found that, based on “a reasonable knowledge of relevant facts” (Reg. § 20.2031-l(b)), the claim for a tax refund, at the moment of the decedent’s death, had a much smaller value than the amount of the settlement, we would not question the jury’s finding. But there is no rational basis in the evidence for the jury to bring in a verdict that the claim had no value.
For estate tax purposes, a value must be fixed for each asset in a decedent’s estate. Reg. §§ 20.2031-1 (b) and 20.2031- 2 through 20.2031-7. The regulations define “value” as “fair market value”. This is the “price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts”. Reg. § 20.2031- 1 (b).
Reasonable knowledge of the relevant facts would have revealed to the decedent and his accountant, as later discovered by present counsel, that there were gross errors in the revenue agent’s report sent to the decedent nine months before his death. And reasonable knowledge of decedent’s records would have led the decedent, his accountant, attorney, and executors to know that a certain memorandum tended to rebut the Commissioner’s finding of fraud. All of the records were in existence and among the decedent’s papers when he died.
In similar circumstances the Tax Court has held that the later discovered facts determine the value of the property at the date of death: The Tax Court said:
“Even if the executors were totally ignorant of the claim, we do not agree that it would for that reason be without value. An estate may possess many assets, tangible and intangible, of which the deceased’s representative or even the deceased himself may be unaware, and which may not become apparent until the lapse of a substantial period of time after death. Such property is for that reason no less an asset of the estate, nor can it necessarily be said to be valueless at the date of death. This is particularly true where, as here, the asset is one which by its nature is discoverable in the ordinary course of administration of the estate.” Estate of I. W. Baldwin, 1959, P-H. T.C. Memo ¶ 59,203.
The administration of every estate involves a delay before the succession representative knows all the relevant existing facts affecting the value of the property. The federal estate tax law is sufficiently flexible and realistic to take account of this delay.
The taxpayer contends that what brought the claim into being was a memorandum Mr. Thompson “discovered [October 1956] among a bunch of old papers that appeared to be of no value”. This memorandum concerned the sale of seven bales of cotton for $5,954.80. In one corner, in the decedent’s handwriting, were the words “income taxes”. One of the executors testified that the memorandum showed that the decedent “had no intention to defraud, and it would be impossible for the agent to go further back than three years in the investigation”.
This discovery may have affected the taxpayer’s appraisal of the claim. But the claim existed wholly apart from the memorandum. The “willing buyer and seller” are a hypothetical buyer and seller having a reasonable knowledge of relevant facts. It is impossible to believe that Congress intended valuation to be tested subjectively according to the state of mind of the executor making the return in question, the valuation depending on whether he was diligent and efficient in examining the decedent’s records.
In any event, the relevancy of the memorandum to the issue of valuation does not mean that all other evidence is irrelevant. The record shows conclusively that the claim had value and was considered to have value wholly aside from the memorandum. The original attorney for the estate, just a few days after the decedent’s death, December 27, 1955, recommended that the executors employ Mr. Thompson to inquire into the possibility of income tax refunds. March 22, 1956, within three months after the date of death, the executors engaged Mr. Thompson to make “a detailed investigation into the financial affairs and transactions” of the decedent. A week later they authorized him to file claims for refund of income taxes. By that time he had been “going through the records * * * and had come up with some evidence that several mistakes had been made”. April 5, 1956, the estate’s preliminary estate tax notice referred to a “contingent claim pending for refund of taxes, penalties, and interest on Fed. and State income taxes”. Thus, there is no doubt that before the discovery of the memorandum in October 1956, the executors, knew that the estate had a claim worth something. The executors, attorneys, and accountants simply had not sufficiently examined the decedent’s records to be able to make an intelligent guess as to the value of the claim and to support the claim with evidence. But the evidence was always there to be found. The revenue agents testified that as soon as the full facts were known to them or to their superiors, the value of the claim was accepted. Mr. Thompson testified that all of the relevant facts existed at the time of Simmons’s death, and that with full knowledge of these facts he reluctantly recommended that the estate settle for $4200. He would have discovered the agents’ errors along with the memorandum had Simmons retained him. In short, ignorance of the value of an asset at the time of a decedent’s death does not justify treating the asset as valueless, any more than ignorance of the existence of an asset, discovered after the date of death, justifies exclusion of the asset from the decedent’s gross estate.
Finally, although we do not accept the extreme position taken by the Government, that the amount of the compromise was necessarily the value of the claim at the time of death, that amount is certainly highly indicative of the fact that the claim had value at the time of Simmons’s death.
We11 are conscious of the limited scope of appellate review of a judgment entered on a jury’s verdict. But as Judge Rives has said:
“[T]his Court owes a duty not as a mere automaton, but as a judicial function to determine whether there is really a rational basis for a jury’s verdict. * * * Unless every jury verdict in cases of this kind is to be upheld, this one should be set aside * * Cole v. Usry, 5 Cir. 1961, 294 F.2d 426, at 430.
Considering this case in its entirety, we conclude that the controlling facts make it utterly unreasonable for the jury to bring in a verdict that the refund claim had no value at the time of the decedent’s death. The absence of any rational basis for the jury’s verdict makes it a mistake of law for the trial judge to deny the motion for a new trial.
III.
The appellant also objected to the district court’s charge to the jury. We consider that the charge was generally correct although, in the circumstances of this case, on remand the court should eliminate the words "if any”, to remove the implication that the jury was free to find that the claim had no value. We suggest, too, that without unduly complicating the charge, the court add a sentence to inform the jury that “reasonable knowledge of relevant facts”, within the meaning of Reg. 20.2031 includes knowledge of documents in existence at the time of death and later discovered by the estate’s attorney. The judgment below is reversed and remanded.
. E. g., Commissioner of Internal Revenue v. Estate of Shively, 2 Cir. 1960, 276 F.2d 372; Rose v. United States, 10 Cir. 1942, 128 F.2d 622.
. “I charge you that the standard of value contemplated by the estate tax statute is the fair market value of property at the time of the owner’s death which fair market value is the price at which the property would change hands between a willing buyer and a willing seller, neither under compulsion to buy or sell.
“Time of death, as used in provision requiring assets to be included at their value at date of death of decedent, means the exact moment of death.
“Also Gentlemen, one of the important issues in this case is the value, if any, of the taxpayer’s contingent claim for refund of income taxes. The value, if any, to be determined by you is the fair market value on the date of death of the decedent. You have heard evidence of the final refund received by the estate; however, this does not determine the fair market value of the claim at the date of death.
“In determining the value of the claim for refund, if any, you may consider the fact that the Government denied the claim upon receipt thereof and that it was necessary to bring an action in court before the Government would make refund.” (Emphasis added.)
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant?
A. fiduciary, executor, or trustee
B. other
C. nature of the litigant not ascertained
Answer:
|
songer_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
COMMERCIAL STANDARD INS. CO. v. AMERICAN EMPLOYERS INS. CO.
No. 11797.
United States Court oí Appeals Sixth Circuit.
Jan. 6, 1954.
Raymond C. Stephenson, Louisville, Ky., Raymond C. Stephenson, Charles M. Allen, Louisville, Ky., on brief, for appellant.
J. W. Clements, Louisville, Ky., J. Walter Clements, Curtis & Curtis, Louisville, Ky., on brief, for appellee.
Before SIMONS, Chief Judge, and McALLISTER and MILLER, Circuit Judges.
McALLISTER, Circuit Judge.
This is a contest between two insurance companies which insured an individual against the same risk. Appellant company paid the entire loss arising therefrom, and seeks contribution from the other insurance company. The District Court held that appellant and ap-pellee were co-insurers; that, by the terms of their policies, each became liable to the insured for that proportion of the total loss which its insurance bore to the total amount of insurance; that appellant company, in paying the insured more than that share for which it was liable — that is, the share for which appellee company was liable — became a volunteer; and that it was, therefore, not entitled to contribution.
The facts out of which the controversy arises are as follows: A. L. Dodd, doing business as Dodd Trucking Service, at Bowling Green, Kentucky, was insured by three policies of insurance; one, issued by appellant, Commercial Standard Insurance Company; and two other policies, issued by appellee, American Employers Insurance Company, to another party, who later assigned them to Dodd, the assignment having been consented to by the insurance company.
The policy issued by appellant, Commercial Standard Insurance Company, provided that it would pay, on behalf of the insured, all sums which he should be obligated to pay by reason of the liability imposed upon him by law for damages because of bodily injury sustained by any person, caused by accident, and arising out of the ownership, maintenance, or use of the insured’s automobile.
One of the, policies issued by appellee, American Employers Insurance Company, provided that it would pay, on behalf of the insured, all sums which he might be obligated to pay by reason of the liability imposed upon him by law for damages because of bodily' injury, caused by accident, and arising out- of the ownership or use of the insured’s premises, and all operations which were necessary or incidental thereto.
The other policy issued by the American Employers Insurance Company provided that it would pay, on behalf of the insured, all sums which he should be obligated to pay by reason of the liability imposed upon him by law for damages because of bodily injury sustained by any person, caused by accident, and arising out of the ownership, maintenance, occupation, or use of the premises for the purpose of an automobile storage garage or service station, and all operations, either on the premises or ■elsewhere, which were necessary and incidental thereto; and the use of any automobile for any purpose in connection with such operations.
. All three of. these, policies were in force on May. 8, 1944. On that day, Fred Ramey went to .the automobile service station, mentioned in the policies, which was being operated by Dodd, .to consult with him about the purchase of a partnership interest in the business. During the course of their discussions and negotiations, a mechanic employed by Dodd was engaged in removing tires from the wheels of a truck for the purpose of changing them from wheel to wheel in order to provide for uniform wear of the tire treads. Dodd asked Ramey whether he thought one of the tires which was being removed was worth retreading. As Ramey stooped over to examine the tire, the mechanic pounded with his hammer on the metal rim of the tire and loosened a steel ring which, because of the air pressure in the tire being suddenly forced against it, flew off and struck Ramey in the head, fracturing his skull. Later, Ramey sued Dodd in the Warren County Circuit Court in Kentucky, and eventually secured a judgment in the amount of $5,000, which was affirmed by the Kentucky Court of Appeals.
At the time that Ramey’s suit was commenced against him, Dodd reported that fact to Mr. Taylor, the insurance agent at Bowling Green who represented both insurance companies in this case, and who had caused all three of the above mentioned policies to be issued to Dodd. Taylor notified both insurance companies of the suit. Appellee, American Employers Insurance Company, refused to defend or take any responsibility for the defense of the suit. Appellant, Commercial Standard Insurance Company, defended the suit by virtue of its policy of insurance with Dodd. After the judgment against Dodd was affirmed by the court of last resort in Kentucky, appellant, on behalf of Dodd, paid the judgment rendered against him, with interest and costs.
The first contention advanced on this appeal by the Commercial Standard Insurance Company is that the liability of American Employers Insurance Company was primary; that Commercial’s liability was secondary; and that, therefore, appellant was entitled to be subro-gated to Dodd’s right against his primary insurer and to have the entire judgment and costs paid by appellee, American Employers Insurance Company, by virtue of its liability as such primary insurer.
Commercial’s policy insured Dodd against liability for accidental injuries arising out of the maintenance of Dodd’s truck. The term, maintenance, covered the changing of the tires to prevent undue wear.
The two policies of American Employers insured Dodd against liability for accidental injuries arising out of the use of the service station premises and all operations incidental to the use of such premises. These policies covered the liability for Ramey’s injuries which resulted from the operations incidental to the use of the service station.
All of the above policies covered the loss in this case, although they were phrased in different language and approached the subject of the liability from a different aspect. If Commercial’s policy had not been in existence, American Employers would have been liable for the entire loss; and if the latter’s policies had not been in existence, Commercial Standard would have been so liable. In such a case, misty indeed are the contours that may be perceived between primary and secondary liability. In any event, here, one circumstance obviates the necessity of considering such questions and determines the issue: all of the policies of both companies provided that if the insured had “other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all * * * insurance against such loss.” Where the loss of an insured is covered by several policies in different insurance companies, it is unimportant whether the coverage is specific in one policy and general in another, if the policies contain pro rata clauses providing that the liability under each policy shall be only that proportion of the total loss which the policy bears to the total amount of the policy. In-such a case, unless there are other provisions in the policies otherwise specifically limiting or conditioning liability thereunder, the insurance companies are-bound by what they have expressly covenanted in their policies as to their liability. In these circumstances, the insurance of none is primary or secondary; the liability is concurrent, and should be pro rated among them. The foregoing rule, which was laid down by Judge Freed in Ranallo v. Hinman Bros. Const. Co., D.C., 49 F.Supp. 920, was affirmed by this court on appeal, sub nom. Buckeye Union Casualty Co. v. Ranallo, 6 Cir., 135 F.2d 921, and is-here controlling. Appellant and appel-lee were, therefore, co-insurers; and, in this determination, we concur with the-conclusion of the District Court.
We come, then, to appellee’s contention that, although both companies were co-insurers, each was liable only for a pro rata amount of the total loss by virtue of their policy contracts with the insured; that the liability of the insurance companies was several, and not joint; that neither insurer had any interest in the liability of the other insurance company, except in ascertaining the total amount of insurance, in order to fix its pro rata share of the loss based upon such total outstanding insurance; that, since each insurance company was only liable for its pro rata share, it was not .legally bound to pay more than its proportion, and was not liable for the share of its co-insurer; that in any claim against it by the insured, appellant Commercial Standard Insurance Company could have paid its pro rata share of the loss and relied upon the pro rata clause in its policy; that in any action against it by the insured on its policy, appellant could have joined American Employers as a party for determination of its pro rata share; that payment to the insured by Commercial Standard of the entire loss was a payment not only of its share of the loss, but also of the share of the loss for which American Employers was liable; and that, in paying such share of American Employers, appellant was a volunteer, and, therefore, not entitled to recover the amount which it paid, above its pro rata share, to the insured, under the authority of American Casualty Co. v. Maryland Casualty Co., D.C.Pa., 20 F.Supp. 561; Farm Bureau Mutual Automobile Ins. Co. v. Buckeye Union Casualty Co., 147 Ohio St. 79, 67 N.E.2d 906; Traders & General Ins. Co. v. Hicks Rubber Co., 140 Tex. 586, 169 S. W.2d 142; Fidelity & Casualty Co. of New York v. Firemen’s Fund Indemnity Co., 38 Cal.App.2d 1, 100 P.2d 364.
Much is said in the briefs and in the authorities cited therein about the effect of a voluntary payment on the right to subrogation; and it is emphasized that a payment by a volunteer, as that term may be construed, will not support subrogation.
In considering this subject, it is to be borne in mind that there are two kinds of subrogation — (1) legal, or, as often denominated, equitable; and (2) conventional. Legal or equitable subrogation arises by operation of law; conventional subrogation, by contract or agreement. It may be said that usually when the term, “subrogation,” is used alone, legal or equitable subrogation is meant, rather than conventional subrogation. In equity, a court may give restitution to a plaintiff to prevent the unjust enrichment of the defendant, where the plaintiff has used his property in discharging an obligation owed by the defendant, by creating in the plaintiff rights similar to those which the obligee had before the obligation was discharged. But one who officiously, or, as generally expressed, who, as a volunteer, discharges an obligation owed by another, is not entitled to equitable subrogation. See Restatement of the Law of Restitution, Section 162. What a volunteer is in the legal sense, therefore, becomes of importance in the application of the doctrine of legal or equitable subrogation. If a person has any palpable interest which will be protected by the extinguishment of the debt, he may pay the debt and be entitled to hold and enforce it just as the creditor could. Katschor v. Ley, 153 Kan. 569, 113 P.2d 127. Payment of the debt of another under a moral obligation will support equitable subrogation; and the remedy will be applied in all cases where demanded by the dictates of equity, good conscience, and public policy. Federal Land Bank v. Marvin, 228 Ky. 242, 245, 14 S.W.2d 762, 70 A.L.R. 1392.
Both companies, then, were liable for the loss in question under their policies with the insured. While appellee refused to enter upon the defense of the damage suit, or to pay anything on the judgment, or any of the costs of defense, appellant defended the case through two trials and two appeals, and finally paid the judgment against the insured. It is now admitted by appellee that its policies covered the risk and that it would have been liable to pay its share of the judgment if appellant had not paid the entire judgment. But it now refuses any payment to appellant on the ground that, since appellee was not forced by legal action to pay its admitted share, appellant has no right to be reimbursed by it, since it was a volunteer in making the payment.
Whether appellant would be entitled to legal, or equitable subrogation suggests many interesting questions. Did it have a palpable interest to protect in paying the judgment as insurer? Were there dictates of equity and public policy justifying subrogation because of the payment? Whatever conclusions might be arrived at as to these considerations and their application to the problem presented by this controversy, we find it unnecessary to determine the question whether appellant would be entitled to legal, or equitable, subrogation.
In the instant case, we are not concerned with legal or equitable subrogation, but with conventional subrogation, which arises from the express insurance contract entered into between the insured, Dodd, and appellant insurer, Commercial Standard Insurance Company. Conventional subrogation, as has been said, is based upon contract — in this case, upon a written contract. On the other hand, legal, or equitable subrogation is based upon the equities of the parties and arises by operation of law where one having a liability or a right or a fiduciary relation in the premises pays a debt owing by another under such circumstances that he is, in equity, entitled to the security or the obligation held by the creditor whom he has paid. See Restatement of the Law of Restitution, Section 162.
One is not a volunteer, so as to be denied subrogation, who advances money to another for the payment of claims, with an express or implied agreement of either the debtor or creditor, that he shall acquire, or be subrogated to, the rights which the person paid had under a bond or other contract; and this is so even though the surety or secondary obligor made no request of him or had no notice of his advancing the money. Southern Exchange Bank v. American Surety Co. of New York, 284 Ky. 251, 144 S.W.2d 203; Western Casualty & Surety Co. v. Meyer, 301 Ky. 487, 192 S.W.2d 388, 164 A.L.R. 769; and one, likewise, who pays the debt of another pursuant to an agreement, express or implied, for subrogation, is not a volunteer, and is entitled to subrogation to the creditor’s rights. Movl Const. Co. v. Covington Trust & Banking Co., 258 Ky. 485, 80 S.W. 560; Federal Deposit Ins. Corp. v. American Surety Co. of New York, D.C.Ky., 39 F.Supp. 551. As stated in 50 Am.Jur. 697, “The rule that payments by volunteers will not support subrogation does not apply to conventional subrogation. One having no interest in or relation to the matter may be entitled to subrogation where he pays the debt of another upon agreement that he shall be entitled to the rights and securities of the creditor so paid.” See Smith v. Sprague, 244 Mich. 577, 222 N.W. 207.
The doctrine of subrogation is applied where money is advanced to pay a debt under an agreement with the debtor or with the creditor, either express or implied, that he shall be subrogated to the rights of the creditor. Southern Exchange Bank v. American Surety Co. of New York, 284 Ky. 251, 254, 144 S.W.2d 203. In conventional subrogation, the extent of the right is measured by the agreement for subrogation ; equity will determine the rights of the parties by the contract, enforce the agreement, and give the second or substituted creditor what he contracted for. Federal Deposit Ins. Corp. v. Wilhoit, 297 Ky. 339, 180 S.W.2d 72.
In United States Guarantee Co. v. Liberty Mutual Ins. Co., 244 Wis. 317, 12 N.W.2d 59, 150 A.L.R. 632, an insurance company paid the entire amount of a claim which was also covered by an insurance policy in another company, and, in so doing, paid in excess of the amount for which it would have been liable, because of the other insurance. It was held that the insurance company paying the entire claim was entitled to be sub-rogated to the rights of the insured against the other company by virtue of the agreement, contained in its insurance policy, for subrogation to the rights of the insured. To the same effect is the recent decision of Detroit Automobile Inter-Insurance Exchange v. Detroit Mutual Automobile Ins. Co., 337 Mich. 50, 59 N.W.2d 80. While the foregoing cases referred to the wrongful conduct of the insurance company which refused to perform its obligations under its policy, and discussed the rule that payments made to protect an interest, or because of a moral obligation, were not voluntary payments — apparently directed to the subject of equitable subrogation — the decisions of those courts were based upon the express contract for subrogation, and are authority for the rule that one who pays the debt of another pursuant to an agreement for subrogation, is entitled to the remedy of subrogation. Whether the payment of the debt of another is for the purpose of protecting an interest of the one who pays the debt; whether it is paid because of a moral obligation; whether it is a payment by a volunteer— all of these considerations are irrelevant in a case of conventional subrogation. All of the contentions of appellee American Employers Insurance Company on the subject of subrogation in its arguments and brief in which it cites numerous authorities, are addressed to the proposition that appellant is not entitled to legal or equitable subrogation. None of the arguments or authorities cited bears upon conventional subrogation or upon appellant’s rights thereto.
In this case, the evidence establishes appellant’s right to conventional subrogation. There is no mere implication or uncertainty about the terms of such subrogation. It is provided for in the policy of insurance where Dodd expressly agreed, as one of the conditions of appellant’s insuring him, that in the event of any payment made by appellant under the policy, Commercial Standard should be subrogated to all Dodd’s rights of recovery therefor against any person or organization, and that the insured would execute and deliver instruments and papers and do whatever else was necessary to secure such rights.
No question arises in this case as to the total amount of liability under the various policies of the two insurance companies. It is conceded by appellee that the policy of appellant and the two policies of appellee covered the loss in question. The amount of that loss, represented by the judgment, which was paid by appellant, together with costs and interest, and the reasonable expense of defending the action for damages resulting in the judgment, are not disputed. Commercial Standard Insurance Company was obligated, by the terms of its insurance contract with Dodd, to defend the suit brought against him. It paid the resulting judgment according to its contract with the insured, with costs and interest, and pursuant to the written agreement for subrogation. It was not a volunteer in paying the entire loss pursuant to the agreement for sub-rogation. Because of the payment of the judgment and by virtue of subrogation to the rights of its insured, it is entitled to a judgment against appellee, American Employers Insurance Company, in the amount of the pro rata share for which American Employers is liable under its two policies of insurance, together with such pro rata share of the costs and interest paid in the damage action and the expense of the defense of such suit.
In accordance with the foregoing, the judgment is set aside, and the case remanded to the District Court for entry of judgment in accordance with this opinion.
. The policy provision roads, as follows: “To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon liim by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile, including the loading and unloading thereof.”
. The policy provision, in so far as here pertinent, reads as follows: “To pay on behalf of the Insured all sums which the Insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom sustained by any person or persons, caused by accident and arising out of the hazards hereinafter defined. * * *
“Definition of Hazards
“Division 1. Premises — Operations “The ownership, maintenance or use of the premises, and all operations during the policy period which are necessary or incidental thereto.”
. The policy provision, in so far as here pertinent, provides as follows:
“1. Coverage A. Bodily Injury Liability.
“To pay on behalf of the Insured all sums which the Insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out. of such of the operations hereinafter defined as are indicated by specific premium charge or charges in Item 3 of the declarations.
* * * * * “Definition of Operations
“Division 2. Automobile Storage Garage or Service Station.
“The ownership, maintenance, occupation or use of the premises herein designated, including the public ways immediately adjoining, for the purpose of an automobile storage garage or service station, and all operations either on the premises or elsewhere which are necessary and incidental thereto, including ordinary repairs of buildings on the premises and the mechanical equipment thereof; and the use of any automobile for any purpose in connection with the above defined operations.”
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_othadmis
|
E
|
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".
Ronald Clark O’BRYAN, Plaintiff-Appellant, v. Dan V. McKASKLE, Acting Director, Texas Department of Corrections, Individually and in his official capacity; Robert D. Gunn; Joe V. LaMantia, Jr., Harry M. Whittington, Pete Cortez, Deralyn R. Davis, Thomas R. McDade, Clifford F. Smith, Lindsley Waters, and H. Bartel Zachery, Jr., individually and as members of the Texas Board of Corrections, Defendants-Appellees. Ronald Clark O’BRYAN, Petitioner-Appellant, v. Dan V. McKASKLE, Acting Director, Texas Department of Corrections, Respondent-Appellee.
Nos. 84-2182, 84-2183.
United States Court of Appeals, Fifth Circuit.
March 29, 1984.
Stefan Presser, Atty., American Civil Liberties Union, Houston, Tex., for plaintiff-appellant in No. 84-2182.
Leslie Benitez, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.
Will Gray, Carolyn Garcia, Houston, Tex., for petitioner-appellant in No. 81-2183.
Before POLITZ, RANDALL and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
Ronald Clark O’Bryan is scheduled to be executed before sunrise on March 31, 1984. He was convicted in a Texas state court in 1975 of murdering his own child in order to collect the proceeds from life insurance policies on his child’s life. His conviction and sentence were affirmed by the Texas Court of Criminal Appeals in 1979. O’Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979) (en banc), cert. denied, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 846 (1980). Two applications for a writ of habeas corpus were denied by the state trial and appellate courts in 1980 and 1982, respectively. His second application for federal habeas relief (the first having been dismissed without prejudice to permit O’Bryan to return to state court to exhaust additional claims) was denied in 1982, and this court affirmed the denial of habeas relief in 1983. O’Bryan v. Estelle, 714 F.2d 365 (5th Cir.1983), cert. denied sub norm. O’Bryan v. McKaskle, — U.S.-, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984). O’Bryan’s case has been before the Supreme Court on three different occasions: first, in 1980, when his petition for certiorari to review his direct appeal was denied; second, in January, 1984, when his petition for certiorari to review the decision of this court affirming the denial of federal habeas relief was denied; and third, in March, 1984, when his motion for leave to file an original petition for a writ of habeas corpus was denied, as was an accompanying motion for a stay of execution.
Following the Supreme Court's most recent action, O’Bryan elected to follow what are at least nominally two separate avenues for relief. First, he filed a new application for habeas relief in state court which was denied by the state district court on March 27, 1984, and by the Court of Criminal Appeals on March 28, 1984. O’Bryan then filed an application for federal habeas relief in federal district court, which was denied on March 29, 1984, as were accompanying requests for a stay of execution and for a certificate of probable cause. Pending before us in connection with O’Bryan’s most recent round of applications for habeas relief are applications for a certificate of probable cause and for a stay of execution.
O’Bryan’s second avenue for relief consisted of filing a complaint (the “1983 Complaint”) in federal district court on March 28, 1984, pursuant to 42 U.S.C. § 1983, against the Acting Director of the Texas Department of Corrections and the members of the Texas Board of Corrections (collectively, the “1983 defendants”). The 1983 Complaint asserted three claims:
(1) By failing to file an investigational new drug plan with the Food and Drug Administration (“FDA”) relating to the drugs used by the 1983 defendants as a method of execution and by failing to await the results of those tests mandated by the Court of Appeals for the District of Columbia Circuit in Chaney v. Heckler, 718 F.2d 1174 (D.C.Cir.1983), temp, stay granted (March 21, 1984), permanent stay granted (March 30, 1984), the 1983 defendants will force O’Bryan to become an unwilling consumer of drugs that are not shown to be safe and effective for their intended use in violation of the Federal Food, Drug and Cosmetic Act (the “Act”), 21 U.S.C. § 301 et seq. (1982);
(2) By failing to await the results of those tests mandated in Chaney, supra, the 1983 defendants will deprive O’Bryan of his eighth amendment right to be free from cruel and unusual punishment by subjecting him to lethal injection of drugs not proven safe, effective or humane in producing death; and
(3) The actions of the 1983 defendants, if allowed to go unstopped, will cause O’Bryan irreparable injury for which he has no adequate remedy at law.
O’Bryan requested the district court to grant declaratory relief to the effect that the 1983 defendants’ use of the drugs as a method of execution without FDA approval violates the Act and the eighth amendment and to grant preliminary and permanent injunctive relief against continuing to use the drugs as part of an execution unless expressly approved by the FDA for that purpose. On March 29, 1984, the district court denied O’Bryan’s request for preliminary and permanent injunctive relief and for a stay of execution, and also denied O’Bryan’s application for temporary relief pending appeal. Pending before us in connection with the 1983 Complaint is a motion to enjoin the 1983 defendants from subjecting O’Bryan to lethal injection with drugs not approved for that purpose by the FDA during the pendency of O’Bryan’s appeal from the district court’s judgment.
We turn first to the 1983 Complaint. In general, a court, in deciding whether to issue a stay, must consider:
(1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest.
Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir.1982) (Ruiz II) (quoting Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981) (Ruiz I)). While “the movant need not always show a ‘probability’ of success on the merits,” he must “present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities, [i.e. the other three factors] weighs heavily in the favor of granting the stay.” Ruiz II, 666 F.2d at 856 (emphasis in original) (quoting Ruiz I, 650 F.2d at 565). Insofar as the likelihood of success on the merits is concerned, we do not think that O’Bryan has made the showing required for a stay. We begin by noting that the mandate in Chaney v. Heckler, supra, has not issued, having been stayed by Chief Justice Burger pending the government’s application for a writ of certiorari in the Supreme Court. We note also that neither this court nor any party to this case is bound by the decision of the Court of Appeals for the District of Columbia Circuit in Chaney. On the probable merits of O’Bryan’s claim of a violation of the Act, we think that, for the reasons set forth in Judge Scalia’s dissenting opinion in Chaney, O’Bryan’s claim is insubstantial and he is unlikely to succeed on appeal. See also United States v. Evers, 643 F.2d 1043 (5th Cir.1981).
Insofar as his second claim is concerned — that by failing to await the results of the tests mandated in Chaney, the 1983 defendants will deprive O’Bryan of his eighth amendment right to be free from cruel and unusual punishment — we agree with the State that the showing made by O’Bryan of discomfort or unnecessary pain falls far short of the showing found insufficient in Gray v. Lucas, 710 F.2d 1048 (5th Cir.1983). Accordingly, O'Bryan's probability of success on the merits of this claim is inadequate to justify a stay.
Finally, turning to O’Bryan’s most recent round of applications for habeas relief, the district court, in a careful opinion, held that O’Bryan’s petition was a successive petition governed by Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts, alleging no new or different grounds for relief from his earlier federal court petition which was decided on the merits. The court noted that Rule 9(b) was designed to afford the district court discretion in reviewing a successive claim and to make redeterminations where “the applicant shows that the ends of justice would be served by permitting redeterminations of the ground,” citing Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). The district court held that O’Bryan’s current habeas petition presents no arguments that have not already been presented to this court and twice to the Supreme Court and rejected by all, and that the ends of justice would not be served by permitting redeterminations of those arguments.
We are governed in this case by the Supreme Court’s recent opinion in Barefoot v. Estelle, — U.S.-, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Specifically, in order to obtain a certificate of probable cause, O’Bryan must make a “ ‘substantial showing of the denial of [a] federal right.’ ” 103 S.Ct. at 3394. He must demonstrate that the issues raised in his application for federal habeas relief are “debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are ‘adequate to deserve encouragement to proceed further.’ ” Id. at 3394 n. 4 (quoting Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga.1980)). We think that O’Bryan has failed to make that showing.
The application in No. 84-2182 for leave to appeal in forma pauperis is GRANTED; the application in that case for a stay of execution is DENIED. The applications in No. 84-2183 for leave to appeal in forma pauperis, for a stay of execution and for a certificate of probable cause are DENIED. The mandate shall issue forthwith.
. The State of Texas argues that the 1983 Complaint is a thinly-disguised habeas petition; that O’Bryan has failed to exhaust his state remedies; and that the filing of the 1983 Complaint is an abuse of the writ, citing Jones v. Estelle, 722 F.2d 159 (5th Cir.1983) (en banc). In view of the result that we reach, we do not decide those questions.
. Although not argued by the parties, we are unable to identify the legal footing for O'Bryan's present effort to enforce this detailed federal administrative scheme. Middlesex County Sewerage Authority v. National Sea Clammers Assoc., 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981); Great American Federal Savings & Loan Assoc. v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979); Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Moreover, Congress provided in the Act that "[a]Il such proceedings for the enforcement, or to restrain violations, of [the Act] shall be by and in the name of the United States.” 21 U.S.C. § 337.
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:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Anthony CASTALDI, Appellant.
No. 137, Docket 29043.
United States Court of Appeals Second Circuit.
Argued Sept. 25, 1964.
Decided Nov. 17, 1964.
Robert M. Morgenthau, U. S. Atty. (Andrew M. Lawler, Jr., John A. Sprizzo, Asst. U. S. Attys., of counsel), for appellee.
Daniel H. Greenberg, New York City (Samuel W. Altman, Marvin Margolis, New York City, of counsel), for appellant.
Before LUMBARD, Chief Judge, and MOORE and SMITH, Circuit Judges.
MOORE, Circuit Judge.
Anthony Castaldi appeals from a judgment convicting him of criminal contempt of court. The conviction was based on his refusal to answer questions put to him before a Grand Jury in the Southern District of New York and before a District Judge on the ground that he might incriminate himself.
Castaldi had been indicted along with a score of co-defendants and co-eonspirators for conspiring to violate the federal narcotics laws. After a trial in 1963 he was one of five acquitted, eleven others being convicted. In February 1964 Castaldi was subpoenaed to testify before a federal grand jury investigating illicit narcotics traffic. At hearings in February, April and May 1964 he refused to answer all questions, some of which related to aspects of the conspiracy. On May 15th, at the Government’s request, Castaldi was granted immunity from future prosecution and ordered to answer, under 18 U.S.C.A. § 1406. On July 1st, his next appearance before the Grand Jury, and on July 2nd, before Judge Wyatt, he again refused to answer all questions. On notice and hearing as provided in Rule 42(b), Fed.R.Crim.P., Judge Wyatt found Castaldi guilty of disobedience of the Court’s orders requiring him to answer the questions put to him before the Grand Jury. Judge Wyatt sentenced him to two years’ imprisonment or until further order of the Court, should he answer the questions before the end of the sentence or the discharge of the Grand Jury. Castaldi’s request for a jury trial was denied.
Castaldi now contends that: (1) the prior acquittal operates to bar a contempt conviction based on a refusal to answer questions concerning in part the subject matter of the earlier proceeding; (2) he was constitutionally entitled to an indictment and trial by jury; and (3) the two-year sentence is constitutionally impermissible. We reject all three contentions.
The conspiracy acquittal, Castaldi argues, should bar his contempt conviction under principles of double jeopardy, res judicata and collateral estoppel. However, the acquittal in no way gave Castaldi permanent freedom to refuse to answer all questions relating to possible narcotics violations merely because they might have some connection with an earlier trial. Indeed, the Supreme Court held in both Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed. 2d 249 (1960) and Piemonte v. United States, 367 U.S. 556, 81 S.Ct. 1720, 6 L.Ed.2d 1028 (1961), that a prior conviction did not create a right to refuse to answer questions relating to the underlying crime. “‘[T]he public has a right to every man’s evidence.’ ” Piemonte, supra, 367 U.S. at 559 n. 2, 81 S.Ct. at 1722. If three persons witness an offense — an innocent bystander, a suspect who is convicted, and a suspect who is acquitted — - the acquitted suspect has no more right to keep silent than do the other two. See Piemonte, ibid. Because the contempt conviction is not the same offense as in the earlier conspiracy proceeding, double jeopardy plays no role here, just as it plays no role in the case of a prior conviction. Similarly, the doctrines of res judicata and collateral estoppel both contemplate subsequent litigation involving claims and facts already once adjudicated. The only question in the contempt proceeding was whether Castaldi wrongly refused to obey court orders; not whether he conspired to sell narcotics.
Castaldi is not being retried. .Nor does his acquittal establish as a matter of law his lack of knowledge concerning narcotics traffic as he claims. All that the Government was required to show was that it had complied with the statute. This it has done. See Ullman v. United States, 350 U.S. 422, 434, 76 S.Ct. 497, 100 L.Ed. 511, 53 A.L.R.2d 1008 (1956) dealing with a similar statute, 18 U.S.C.A. § 3486, 68 Stat. 745.
Castaldi next claims that he was entitled to an indictment and jury trial under the Fifth and Sixth Amendments to the Constitution. His arguments on these points involve constructions of the statutes which classify federal offenses and define criminal contempt (18 U.S. C.A. §§ 1 and 401). Briefly, he argues that the punishment for criminal con-.tempt is in the court’s discretion and might possibly exceed one year, that sentencing for more than one year makes an offense a felony, that a felony is an “in- . famous” crime, and that, therefore, there should have been an indictment and jury trial. This argument was made and rejected in United States v. Green, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958), which upheld a three-year sentence. That principle was recently reaffirmed in United States v. Barnett, 376 U.S. 681, 692, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964), which again ruled against a • constitutional right to a jury trial in . a criminal contempt case.
Castaldi does not have a statutory right to a jury trial. Congress has -provided for a jury trial in only certain , criminal contempt proceedings. See, e. g., 18 U.S.C.A. §§ 402, 3691, 3692; Civil Rights Act of 1964, § 1101, 78 Stat. 268. But under all of these statutes no right to a jury trial exists with respect to con-tempts committed in the presence of the court. And that is what Castaldi is convicted of.
Lastly, we come to the claim that the penalty which may be imposed is limited to that for petty offenses, because of the absence of a jury trial. Castaldi cites footnote 12 in United States V. Barnett, 376 U.S. at 694-695, 84 S.Ct. at 903, in which the Court added a “dictum” that “Some members of the Court are of the view that, without regard to the seriousness of the offense, punishment by summary trial without a jury would be constitutionally limited to that provided for petty offenses.” But as we noted in United States v. Harris, 334 F.2d 460, 463 (2d Cir.), cert. granted, 85 S.Ct. 438, the contempt in Barnett was not committed in the presence of the court and the contempt proceeding took place after compliance with the court order. Here, as in Harris, the contempt was committed in the court’s presence and the proceeding preceded compliance. But cf. Rollerson v. United States, No. 17675, D.C.Cir., Oct. 1, 1964.
Moreover, the sentence has a purge clause by which Castaldi “carries the keys to freedom in his willingness to comply with the court’s directive * *." United States v. Barnett, 376 U.S. at 727 n. 6, 84 S.Ct. at 1031 (dissenting opinion of Black, J.), id. at 754, 84 S.Ct. at 1020 (dissenting opinion of Goldberg, J.). Sentences similar to this were upheld in United States v. Reina, supra; United States v. Testa, 334 F.2d 746 (3d Cir.), cert. denied, 85 S.Ct. 83 (1964); see United States v. Rinieri, 308 F.2d 24 (2d Cir.), cert. denied, 371 U.S. 935, 83 S.Ct. 310, 9 L.Ed.2d 272 (1962).
Castaldi’s attempt to distinguish Harris as arising under Rule 42(a), Fed.R. Crim.P., for summary contempts, whereas this case arose under Rule 42(b) for disposition on notice and hearing, is without merit. His refusal to answer was m,ade in the presence of the court and would have justified a proceeding under Rule 42(a). If the sentence would be permissible then under Harris, it can hardly be made impermissible by the fact that the court chose to proceed under Rule 42(b), by which other additional protections were afforded.
The judgment appealed from is affirmed.
. The convictions were later reversed and a new trial ordered. United States v. Borelli, 336 F.2d 376 (2d Cir. 1964).
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_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
NATIONAL LABOR RELATIONS BOARD v. CONSOLIDATED MACHINE TOOL CORPORATION.
Docket 20516.
Circuit Court of Appeals, Second Circuit.
March 23, 1948.
For prior opinion see 163 F.2d 376.
Arthur L. Stern, of Rochester, N.Y., for Consolidated Machine Tool Corporation.
Owsley Vose and David P. Findling, both of Washington, D. C., for the Board.
Before L. HAND, SWAN and FRANK, Circuit Judges.
PER CURIAM.
Soon after the 'order of this court was entered, a majority of the employees in the Company’s Pattern Making Department petitioned the Board under § 9(c) (1) (A) (ii) of the Amended Act for “decertification” of the union which, on the appeal, we had held to be their “exclusive bargaining agent”; and the employer has been permitted to intervene in that proceeding. However, the Regional Director has refused to issue any notice of hearing upon the application, and the Board has sustained his refusal “on the ground that compliance with the Board’s order as enforced by the Circuit Court of Appeals * * * has not yet been effected.” The employer now moves us to modify our- order so as to allow the Board to proceed with the petition.
So far as the Board’s position may rest upon the notion that our order as such precludes it or its officers from proceeding with the petition, we need only say that we did not intend it to have any such effect; and that the Board is entirely free to take any action which it chooses: either to withdraw the present certification or to substitute a new “bargaining representative.” We are not aware that it thinks otherwise; but we say this to lay any doubts. On the other hand, so far as the Board refuses to act upon the petition until the employer has complied with our order, it is for the Board to decide whether noncompliance is a reason for refusing to consider the employees’ petition. Finally, we refuse to modify our order, so far as it directs the employer to deal with the present representative. Even though it may be true that the Amended Act has now made lawful the conduct of Maier on which the order was in part based, the refusal to deal with the duly selected “bargaining representative” remains an “unfair labor practice” which still supports the Board’s order and our order.
Motion denied.
§ 159(e) (1) (A) (ii), Title 29 Ü.S.C.A.
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
|
10
|
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".
Henry P. AUSTIN, Appellant, v. William M. O’KEEFFE, Deputy Commissioner et al., Appellees.
No. 23770.
United States Court of Appeals Fifth Circuit.
July 5, 1967.
John A. Lloyd, Jr., St. Petersburg, Fla., for appellant.
Brooks P. Hoyt, Tampa, Fla., Mac-farlane, Ferguson, Allison & Kelly, Tampa, Fla., for appellees Tampa Ship Repair & Dry Dock Co. and United States Fidelity & Guaranty Co.
Alfred H. Myers, Atty., Dept. of Labor, Charles Donahue, Sol. of Labor, James E. Hughes, Atty., U. S. Dept. of Labor, of counsel, Edward F. Boardman, U. S. Atty., E. J. Salcines, Asst. U. S. Atty., for appellee O’Keeffe.
Before PHILLIPS, COLEMAN, and SIMPSON, Circuit Judges.
Of the Tenth Circuit, sitting by designation.
COLEMAN, Circuit Judge.
Henry P. Austin brought an injunctive proceeding under 33 U.S.C. § 921(b) to set aside a Longshoremen’s and Harbor Workers’ Compensation Act compensation order. The District Court granted summary judgments in favor of the deputy commissioner and the two inter-venors, the employer and insurance carrier. Austin appealed. We reverse and remand with directions.
On August 15, 1961, Austin was injured in the course of his employment for Tampa Ship Repair & Dry Dock Company. Another worker jerked a hose, which caught Austin’s feet, throwing him to the deck of the vessel on which he was working. Austin twice underwent surgery on his right knee, but was left with substantial loss of use of his right leg. At a later time, Austin again fell, this time at his home, and injured his left knee.
Medical treatment was provided for Austin and compensation was paid him from the time of his first injury until November 1, 1963, when payments were terminated and the carrier denied entitlement to further benefits under the Act. Austin filed a claim for permanent and total disability benefits and additional medical treatment. The claim stated he had injured “both legs, knees and back”. At the hearing on his claim before a deputy commissioner, Austin asserted (1) that the instability of his injured right leg caused his fall and injury to his left knee; (2) that as a result of alterations in his gait and abnormal stresses placed on his back and spine by his knee injuries, he had suffered either an injury to his low back or aggravation of a preexisting condition in his low back which was previously non-disabling; (3) that his injuries caused an aggravation of pre-existing emotional or nervous disorders; (4) that his compensable injuries, or they in connection with preexisting disabilities, had caused him to suffer total disability and a total loss of earning capacity.
The deputy commissioner found the following facts:
“* * * [Cjlaimant did not injure his back in the accident of August 15, 1961; * * * claimant’s preexisting emotional instability was not materially permanently aggravated by the injury sustained; * * * the injury to the left leg * * * is a direct result of the injury and subsequent treatment of the right leg; * * * as the result of the injury sustained, the claimant was temporarily totally disabled from August 26, 1961, to October 1, 1963, inclusive; * * * as the further result of the injury sustained, the claimant has a 40 percent permanent partial loss of the use of the right leg and a 20 percent permanent partial loss of the use of the left leg * *
On the basis of these findings of partial disability, the deputy commissioner awarded the compensation allowable under the 33 U.S.C. § 908 schedule.
Austin filed his § 921 proceeding in the District Court claiming the deputy commissioner had failed to make findings or pass on the claim for total disability, had failed to consider the evidence as to the cause of his back disability, and had made findings and conclusions not supported by competent substantial evidence. The employer and carrier were allowed to intervene as defendants. Both filed motions for summary judgment. This appeal is from the order granting those motions.
The code section governing multiple injuries such as Austin’s, 33 U.S.C. § 908(c) (22), provides,
“In any case in which there shall be * * * loss of use of, more than one member * * * set forth in paragraphs (1) to (19) of this subdivision, not amounting to permanent total disability, the award of compensations shall be for the * * * loss of use of, each such member * * [Emphasis added].
It is Austin’s argument that his injuries do totally disable him, so that his compensation should be determined not by the schedules in paragraphs (1) to (19) of § 908(c) but by § 908(a).
Austin does not contend that there was a disputed issue of material fact which would have necessitated a full-scale trial in the District Court. Rather the contention is that, as a matter of law, the District Court should have enjoined the deputy commissioner’s order.
We do not linger long with Austin’s contentions that the deputy commissioner made erroneous findings. The standard is that set forth in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. O’Leary v. Brown-Pacific-Maxon, Inc., 1951, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483. We hold that the findings made were supported by substantial evidence.
The likelihood that the findings were incomplete is what troubles us.
The deputy commissioner found, “ * * * claimant did not injure his back in the accident of August 15, 1961 * * It is Austin’s theory, however, that he would be entitled to benefits for his back injury even though it arose subsequent to the original knee injury if it were due to stresses brought on by the leg injuries. The only expert testimony favoring Austin’s theory that changes in his gait brought on his back complaints was that of Dr. Wilson, Austin’s witness. On direct examination Dr. Wilson’s testimony was as follows:
“Q. Did you arrive at a diagnosis as to the complaints in the lumbo-sacral spine ?
A. This man has a degenerative lumbar disc. Any abnormal strain placed upon this particular joint would cause pain, yes, sir.
Q. Did you reach any determination as the relationship between these complaints and the injury to his right and left knees?
A. I believe that that is unconnected. The degenerative lumbar disc preexisted the injury. This was noted in 1958 on the hospital records. Their relationship there ivould simply be that of some stress mechanically imposed to that joint by the fact that he was walking abnormally. And I think there is some mechanical disadvantage from his leg limp or walking abnormally as far as a direct mechanical influence on this joint is concerned.
* * * * * *
Q. Is it consistent that these preexisting conditions could be present in a man who did heavy manual exertion such as in the occupation followed by Mr. Austin prior to this leg injury?
A. Without pain?
Q. Yes, sir.
A. I believe that with this degenerative condition he could do fairly heavy work without pain, yes, sir.
Q. Assuming that this was the situation, what, in your opinion, would be the relationship between his leg injuries and the development of pain in his back ?
A. Again, I would say that the only reasonable cause for this would be the altered mechanization secondary to limping on the right leg.
* * * * * *
Q. Is it possible that these degenerative changes [in the lumbar spine] that appear in 1963 could be a product of the mechanical changes made necessary by his leg injuries? '
A. I think it is possible.” [Emphasis added.]
Later on the following testimony was elicited from Dr. Wilson:
“Q. And could you explain in a bit more detail the actual mechanization of the production of a back pain and change in a gait or leg instability ?
A. Well, the major problem is from a different cause. In fact you are dealing with a pelvic tilt. He walks with his knee flexed on the opposite side, he also is actually extending his back ab normally by his flexed postural strain, so we are dealing with the effects of a short leg and extension strain, which, as I say, is simply postural, and we see him at times without pain.”
The appellees contend that since Dr. Wilson first testified he believed the back complaints and the knee injuries were unconnected all his subsequent testimony on the subject was hypothetical and conjectural. We think it clear, however, that Dr. Wilson meant the two complaints were originally unconnected, but that the limp adversely affected the back.
On the other hand, an expert medical witness for the employer and carrier testified, in effect, that the injuries to Austin’s legs did not permanently impair his back or spine.
In this state of the evidence, we conclude the deputy commissioner should have made an explicit finding as to whether Austin’s leg injuries aggravated his back condition.
Austin also claims it was error for the deputy commissioner not to make an explicit finding on his claim of total disability. We are of the opinion that the finding that Austin was not entitled to total disability benefits after October 1, 1963, coupled with his further finding that claimant’s disability thereafter was partial, makes it clear the commissioner was denying total disability benefits. Since the case must be remanded, however, and to be sure that Austin’s claim that his three injuries have interacted to produce total permanent disability is considered, the commissioner should now make an explicit finding on the point.
The judgment of the District Court will be reversed and the cause will be remanded with instructions to remand it to the deputy commissioner for additional findings of fact consistently with what we have said herein, Lumberman’s Mut. Cas. Co. v. Einbinder, 1965, 120 U.S.App.D.C. 56, 343 F.2d 338.
Reversed and remanded with directions.
. * * * (b) If not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings, mandatory or otherwise, brought by any party in interest against the deputy commissioner making the order, and instituted in the Federal district court for the judicial district in which the injury occurred * * *.
. § 90S. Compensation for disability.
Compensation for disability shall be paid to the employee as follows:
(a) Permanent total disability: In case of total disability adjudged to be permanent 60% per centum of the average weekly wages shall be paid to the employee during the continuance of such total disability. Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof shall, in the absence of conclusive proof to the contrary, constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts. * * *
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_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.
Giuseppe BERTONE, Plaintiff, v. TURCO PRODUCTS, Inc., a Corporation of the State of California, Defendant and Third-Party Plaintiff-Appellant (FLYING TIGER LINE, Inc., a Corporation of the State of Delaware, Third-Party Defendant-Appellee).
No. 12312.
United States Court of Appeals Third Circuit.
Argued Jan. 6, 1958.
Decided March 4, 1958.
Philip M. Lustbader, Newark, N. J. (Schneider, Lustbader & Morgan and George H. Harbaugh, Newark, N. J., on the brief), for appellant.
Harry A. Margolis, Newark, N. J. (Max L. Rosenstein, Newark, N. J., on the brief), for appellee.
Before MARIS, McLAUGHLIN and STALEY, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Giuseppe Bertone was a recent immigrant to this country, able to speak or understand only very little of the English language. It would seem that he could read no language. He was employed by Flying Tiger Line, Inc. and on February 23 or 24, 1953, in the course of that employment he was put to work cleaning some aircraft engine parts. To this end he was given a solution called “Paint-Gon” to be used in dissolving the foreign substances deposited on the aircraft engine parts during their operation. Paint-Gon has dangerous properties and consequently should not be permitted to touch the person, nor should its fumes be inhaled for very long. The dangerous qualities probably are a necessary concomitant of the product which will adequately perform the cleaning job. The containers in which Paint-Gon is made available apparently bear a label warning of the danger. Recommended procedure in using the product indicates that it be applied in a well-ventilated space with tools permitting use of the substance without direct contact therewith. The extent of the instructions Bertone received from his employer, the extent of his comprehension of whatever instructions were given, and the type of tools and working space he was assigned do not appear from the pleadings. At any rate it does appear that Bertone was injured by exposure to Paint-Gon. Subsequently he recovered a judgment in excess of $10,000 under the New Jersey Workmen’s Compensation statute.
Bertone thereafter filed this action against Turco Products, Inc., a California corporation and manufacturer of Paint-Gon, on a theory of negligence in failing to warn purchasers and prospective users of the dangerous characteristics of the product and of the precautions required for its use. Turco by answer set up defenses denying negligence, asserting contributory negligence, assumption of risk, and supervening negligence by a third party. Thereafter it brought in Flying Tiger by filing a third party complaint asserting a right to indemnity on the ground that Flying Tiger had not adequately instructed Bertone of the dangers in using Paint-Gon, even though Flying Tiger had been apprised thereof, and consequently Bertone’s injury was a result not of Turco’s negligence, but of Flying Tiger’s. Flying Tiger answered denying liability to Turco and setting up the workmen’s compensation recovery as a bar to any further recovery on a cause of action arising from the same accident. Subsequently Flying Tiger moved for summary judgment of dismissal, supported by affidavit, of the third party complaint against it. The dismissal was granted, without opinion, presumably for failure to state a claim upon which relief could be granted.
The question on this appeal from the order of dismissal is whether by the law of New Jersey Turco’s third party complaint makes out any possibility of proof under which Bertone could recover from Turco for which Turco would be entitled to indemnification by Flying Tiger.
The situation presents four possibilities of legal consequence: (1) neither Flying Tiger nor Turco was negligent as to Bertone, (2) Flying Tiger was negligent while Turco was not, (3) Turco was negligent whereas Flying Tiger was not, or (4) both Flying Tiger and Turco were negligent as to Bertone.
Bertone asserts he was not warned of the dangers of Paint-Gon. Turco states that its warning to prospective users was adequate. If Turco’s warning was adequate, there could be no recovery from Turco by Bertone irrespective of whether or not Flying Tiger may have acted negligently as to Bertone. This would dispose of the first two possibilities of legal consequence; Bertone could not recover from Turco for negligence by Flying Tiger in failing to pass on to Bertone the manufacturer’s adequate warning when Flying Tiger assigned Bertone to the task requiring the use of Paint-Gon. It is well nigh inconceivable that Bertone, under the disability of illiteracy would have found his own way, without some explicit guidance, to the use of Paint-Gon.. The supplier of the material to be used for the supplier’s business purposes is under a duty to pass along the manufacturer’s warning if he knew of it. Restatement, Torts, § 391. Accord, Tulpom v. Cantor, 87 N.J.L. 213, 93 A. 573 (E. & A. 1915); Ramsey v. Raritan Copper Works, 78 N.J.L. 474, 74 A. 437 (E. & A. 1909); Cf. Restatement, Torts, § 324, Comment b. In that, sort of situation it is clear that only Flying Tiger would have been negligent. Thus if Turco exercised reasonable care-to inform users of Paint-Gon of that product’s dangers, Bertone cannot recover from Turco; a fortiori there would be no call for indemnity of Turco by Flying Tiger.
But if the warning given by Turco to prospective users of Paint-Gon was not adequate, then Turco is liable-in negligence to persons in that class injured by use of the product. Assuming-that the proofs could demonstrate negligence by Turco and none by Flying Tiger, indemnity could be required of Flying Tiger only if Flying Tiger had contracted' expressly or implicitly to undertake such indemnification. See Yearicks v. City of Wildwood, 23 N.J.Super. 379, 92 A.2d 873 (1952). The pleadings, however, do not present the possibility of that type of' contract.
The only possible legal relationship between the three parties which remains unexplored, then, is that both Turco and' Flying Tiger acted negligently as to Ber-tone. Two theories of indemnity of Tur-co by Flying Tiger would seem to be possible there. The first of these is that if the warning given by Turco to prospective users of Paint-Gon was not calculated reasonably to afford notice of the danger, but that additional warning-meeting the requirements of adequacy was supplied to Flying Tiger by Turco, Flying Tiger could have come under a duty to Turco as well as to the prospective user to pass the additional information on to whomever Flying Tiger exposed to the product as the actual user. And if that were the fact then it is very possible that Turco itself could assert against Bertone the defense of the Workmen’s Compensation recovery by reason of its being in privity with Flying Tiger. Cf. Jacowicz v. Delaware, L. & W. R. Co., 87 N.J.L. 273, 92 A. 946 (E. & A. 1915). But cf. Yearicks v. City of Wildwood, supra. Turco could, under the supposed facts, also escape liability to Bertone by successfully showing that it was Flying Tiger’s supervening negligence in failing to relay the additional information making the warning adequate which had caused Bertone’s injury. Restatement, Torts, § 440.
Be that as it may the fact is that nothing has been pleaded in the third party complaint from which it would appear that there was any more adequate, specific, or detailed warning given to Flying Tiger. And even if there were, in order for Turco to be indemnified by Flying Tiger it would be necessary to show additionally that Flying Tiger, in receiving the product with any further instructions regarding precautions, had come under a duty to Turco, either expressly or by implication, to instruct its employees more adequately than Turco had undertaken to warn generally of the product’s dangerous qualities.
It remains for us to deal with the second theory by which Turco might seek recovery over from Flying Tiger, even though both were negligent as to Bertone. The fault of each as to Bertone is alleged to be a failure to convey to him the full information which each of them severally possessed concerning the dangers inherent in the use of Paint-Gon. This assumes that Turco gave some warning not amounting to a full disclosure, but that Flying Tiger wrongfully omitted to pass even the warning of which it was apprised on to Bertone. The further assumption here must be that Turco’s failure to warn was so slight in relation to the extent of the danger which could foreseeably stem from that failure, that Bertone’s injury was all but entirely caused by the neglect of Flying Tiger properly to instruct him in accordance with what information Turco had made available. The theory has been characterized as one where the passively negligent tortfeasor is entitled to recovery over against the active tortfeasor. As stated by Judge Hand in Slattery v. Marra Bros., 2 Cir., 1951, 186 F.2d 134, 139, that result is rationally possible only if the two are liable to the same person for a joint wrong. As Judge Hand has also pointed out, Slattery v. Marra Bros., supra, 186 F.2d at page 138, the doctrine may perhaps be accounted for as being an exception designed to mitigate the often harsh rule which denies contribution — of which indemnity is an extreme form — among joint tort-feasors.
For whatever reason it has come into the law of some jurisdictions, the doctrine is generally limited to situations where liability has been imposed upon a party by statute or because of his legal relationship to the actual wrongdoer, Detroit Edison Co. v. Price Brothers Co., 6 Cir., 1957, 249 F.2d 3, or for acts of omission where the negligence of the other tortfeasor has been an act of commission, Banks v. Central Hudson Gas & Electric Corp., 2 Cir., 1955, 224 F.2d 631. Whether or not the negligence of Turco — if negligence there was — could be characterized as merely passive need not detain us, for it appears that the active-passive negligence doctrine has not found favor in New Jersey, at least to an extent that would affect the result here. Public Service Electric & Gas Co. v. Waldroup, 38 N.J.Super. 419, 119 A.2d 172 (App.Div.1955). That was, indeed, Judge Hand’s conclusion in the Slattery case before Waldroup pronounced for the state courts the rule that is binding on the Federal courts in this diversity case. Both Slattery and Waldroup involved attempts by a third-party tortfeasor to im-plead the plaintiff's employer for contribution, even though the employer was liable to the injured employee under the provisions of the New Jersey Workmen’s Compensation statute and consequently thereby not subject to any other form of recovery by the employee. N.J.S.A. 34: 15-8. New Jersey, since 1952, ordinarily would permit contribution among joint tortfeasors. N.J.S.A. 2A:53A-3. “Joint tortfeasors” are there statutorily defined as being “* * * two or more persons jointly or severally liable in tort for the same injury * * Farren v. New Jersey Turnpike Authority, 31 N.J.Super. 356, 106 A.2d 752, 753 (App.Div. 1954) held that because the employee could not maintain an action against his employer, the employer is not one “liable in tort” and so therefore not subject to contribution, even though negligent, to a third party who is liable in tort to the employee. Any possible doubt that this would apply equally to a claim for indemnity was removed by Public Service Electric & Gas Co. v. Waldroup, supra. Thus, even if the active-passive doctrine were otherwise accepted in New Jersey it would not remove the bar to the assertion of remedies other than the Compensation statute against the employer. That bar continues against the third party liable in tort who seeks contribution to that liability from the employer who, absent the bar of the statute,, would also be liable in tort.
The judgment of the district court will be affirmed.
. N.J.S.A. 34:15-7 provides that where employer and employee have accepted the elective compensation provisions, compensation for personal injuries or death to the employee by accident arising out of and in the course of employment shall be made by the employer without regard to negligence by him according to the schedule set out in other sections of the same chapter.
N.J.S.A. 34:15-9 provides that in the absence of written notice from either employee or employer to the other before the occurrence of an accident to the effect that the elective provisions of Chapter 15, Title 34 are not intended to apply to any accident, it will be conclusively presumed that they have been accepted.
N.J.S.A. 34:15-8 provides that acceptance of the elective compensation provisions will be a surrender of any other remedies and will be binding on both.
. In Yearicks the employee who had recovered workmen’s compensation from his employer sued a third party tortfeasor. The third party sought indemnity from the employer who seems to have been a joint tortfeasor, but the indemnity was sought not on that ground but on the basis of a contract between the im-pleading third party and the impleaded employer. No attempt seems to have been made by the third party tortfeasors to assert that the workmen’s compensation payment was a discharge of all the joint tortfeasors if the employer was found as a matter of fact to have been in pari delicto with them. As it was Yea-ricks could have resulted in a recovery by the employee from the third party tortfeasor, who then by contract would have been indemnified by the employer. In effect the employer, by entering the contract of indemnification gave the employee in the case a right to elect the compensation recovery or the common law remedy, not only after the accident but after recovering judgments on both theories.
. The rule denying contribution has been warmly criticized as in reality not being the general rule but an exception which even as an exception has been unjustifiably enlarged. 13 Am.Jur. 35, § 37 Contribution, fn. 9, citing Restatement, Restitution pp. 386-388; Reath, Contribution Between Persons Jointly Charged for Negligence, 12 Harvard Law Review 176.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_certreason
|
K
|
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.
Manuel Jose LOZANO, Petitioner
v.
Diana Lucia MONTOYA ALVAREZ.
No. 12-820.
Supreme Court of the United States
Argued Dec. 11, 2013.
Decided March 5, 2014.
Syllabus*
When one parent abducts a child and flees to another country, the other parent may file a petition in that country for the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention). If the parent files a petition within one year of the child's removal, a court "shall order the return of the child forthwith." But when the petition is filed after the 1-year period expires, the court "shall... order the return of the child, unless it is demonstrated that the child is now settled in its new environment."
Respondent Montoya Alvarez and petitioner Lozano resided with their daughter in London until November 2008, when Montoya Alvarez left with the child for a women's shelter. In July 2009, Montoya Alvarez and the child left the United Kingdom and ultimately settled in New York. Lozano did not locate Montoya Alvarez and the child until November 2010, more than 16 months after Montoya Alvarez and the child had left the United Kingdom. At that point, Lozano filed a Petition for Return of Child pursuant to the Hague Convention in the Southern District of New York. Finding that the petition was filed more than one year after removal, the court denied the petition on the basis that the child was now settled in New York. It also held that the 1-year period could not be extended by equitable tolling. The Second Circuit affirmed.
Held : Article 12's 1-year period is not subject to equitable tolling. Pp. 1231 - 1236.
(a) The doctrine of equitable tolling, as applied to federal statutes of limitations, extends an otherwise discrete limitations period set by Congress. Thus, whether tolling is available is fundamentally a question of statutory intent. Because Congress "legislate[s] against a background of common-law adjudicatory principles," Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166, 115 L.Ed.2d 96, including equitable tolling, see Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 90 L.Ed. 743, equitable tolling is presumed to apply if the period in question is a statute of limitations and if tolling is consistent with the statute, Young v. United States, 535 U.S. 43, 49-50, 122 S.Ct. 1036, 152 L.Ed.2d 79. Pp. 1231 - 1232.
(b) In assessing whether equitable tolling applies to treaties, which are " 'compact[s] between independent nations,' " Medellín v. Texas, 552 U.S. 491, 505, 128 S.Ct. 1346, 170 L.Ed.2d 190, this Court's "duty [i]s to ascertain the intent of the parties" by looking to the document's text and context, United States v. Choctaw Nation, 179 U.S. 494, 535, 21 S.Ct. 149, 45 L.Ed. 291. The parties to the Hague Convention did not intend equitable tolling to apply to Article 12's 1-year period. Pp. 1232 - 1236.
(1) There is no general presumption that equitable tolling applies to treaties. Though part of the established backdrop of American law, equitable tolling has no proper role in the interpretation of treaties unless that principle is shared by the parties to the "agreement among sovereign powers," Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226, 116 S.Ct. 629, 133 L.Ed.2d 596. Lozano has identified no such shared principle among the Convention signatories, and the courts of several signatories have explicitly rejected equitable tolling of the Convention. Thus, the American presumption does not apply to this multilateral treaty. The International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610, which Congress enacted to implement the Convention, neither addresses the availability of equitable tolling nor purports to alter the Convention, and therefore does not affect this conclusion. Pp. 1232 - 1234.
(2) Even if the Convention were subject to a presumption that statutes of limitations may be tolled, Article 12's 1-year period is not a statute of limitations. Statutes of limitations embody a "policy of repose, designed to protect defendants," Burnett v. New York Central R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 13 L.Ed.2d 941, and foster the "elimination of stale claims, and certainty about a plaintiff's opportunity for recovery and a defendant's potential liabilities," Rotella v. Wood, 528 U.S. 549, 555, 120 S.Ct. 1075, 145 L.Ed.2d 1047. Here, the remedy the Convention affords the left-behind parent-return of the child-continues to be available after one year, thus preserving the possibility of relief for that parent and preventing repose for the abducting parent. The period's expiration also does not establish certainty about the parties' respective rights. Instead, it opens the door to consideration of a third party's interests, i.e., the child's interest in settlement. Because that is not the sort of interest addressed by a statute of limitations, the 1-year period should not be treated as a statute of limitations. Young,supra, at 47, 122 S.Ct. 1036, distinguished. Pp. 1233 - 1235.
(3) Without a presumption of equitable tolling, the Convention does not support extending the 1-year period during concealment. Article 12 explicitly provides for the period to commence on "the date of the wrongful removal or retention" and makes no provision for an extension. Because the drafters did not choose to delay the period's commencement until discovery of the child's location-the obvious alternative to the date of wrongful removal-the natural implication is that they did not intend to commence the period on that later date. Lozano contends that equitable tolling is nonetheless consistent with the Convention's goal of deterring child abductions, but the Convention does not pursue that goal at any cost, having recognized that the return remedy may be overcome by, e.g., the child's interest in settlement. And the abducting parent does not necessarily profit by running out the clock, since both American courts and other Convention signatories have considered concealment as a factor in determining whether a child is settled. Equitable tolling is therefore neither required by the Convention nor the only available means to advance its objectives. Pp. 1234 - 1236.
(4) Lozano contends that there is room for United States courts to apply equitable tolling because the Convention recognizes that other sources of law may permit signatory states to return abducted children even when return is not available or required by the Convention. But this contention mistakes the nature of equitable tolling, which may be applied to the Hague Convention only if the treaty drafters so intended. For the foregoing reason, they did not. P. 1236.
697 F.3d 41, affirmed.
THOMAS, J., delivered the opinion for a unanimous Court. ALITO, J., filed a concurring opinion, in which BREYER and SOTOMAYOR, JJ., joined.
Shawn P. Regan, New York, NY, for Petitioner.
Lauren A. Moskowitz, New York, NY, for Respondent.
Ann O'Connell, for the United States as amicus curiae, by special leave of the Court, supporting the Respondent.
Ryan A. Shores, Hunton & Williams LLP, Washington, DC, Shawn Patrick Regan, Counsel of Record, John R. Hein, Kristin M. Kramer, Michael B. Kruse, Hunton & Williams LLP, New York, NY, for Petitioner.
Lauren A. Moskowitz, Counsel of Record, Rachel G. Skaistis, Carrie R. Bierman, Cravath, Swaine & Moore LLP, New York, NY, Counsel for Respondent.
Justice THOMAS delivered the opinion of the Court.
When a parent abducts a child and flees to another country, the Hague Convention on the Civil Aspects of International Child Abduction generally requires that country to return the child immediately if the other parent requests return within one year. The question in this case is whether that 1-year period is subject to equitable tolling when the abducting parent conceals the child's location from the other parent. We hold that equitable tolling is not available.
I
To address "the problem of international child abductions during domestic disputes," Abbott v. Abbott, 560 U.S. 1, 8, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010), in 1980 the Hague Conference on Private International Law adopted the Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention), T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11 (Treaty Doc.). The Convention states two primary objectives: "to secure the prompt return of children wrongfully removed to or retained in any Contracting State," and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Art. 1, id., at 7.
To those ends, the Convention's "central operating feature" is the return of the child. Abbott, 560 U.S., at 9, 130 S.Ct. 1983. That remedy, in effect, lays venue for the ultimate custody determination in the child's country of habitual residence rather than the country to which the child is abducted. See id., at 20, 130 S.Ct. 1983 ("The Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence").
The return remedy is not absolute. Article 13 excuses return where, for example, the left-behind parent was not "actually exercising" custody rights when the abducting parent removed the child, or where there is a "grave risk" that return would "place the child in an intolerable situation." Hague Convention, Arts. 13(a)-(b), Treaty Doc., at 10. A state may also refuse to return the child if doing so would contravene "fundamental principles... relating to the protection of human rights and fundamental freedoms." Art. 20, id., at 11.
This case concerns another exception to the return remedy. Article 12 of the Convention states the general rule that when a court receives a petition for return within one year after the child's wrongful removal, the court "shall order the return of the child forthwith." Id., at 9. Article 12 further provides that the court,
"where the proceedings have been commenced after the expiration of the period of one year [from the date of the wrongful removal], shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Ibid.
Thus, at least in some cases, failure to file a petition for return within one year renders the return remedy unavailable.
The United States ratified the Hague Convention in 1988, and Congress implemented the Convention that same year through the International Child Abduction Remedies Act (ICARA). 102 Stat. 437, 42 U.S.C. §§ 11601-11610. That statute instructs courts to "decide the case in accordance with the Convention." § 11603(d). Echoing the Convention, ICARA further provides that "[c]hildren who are wrongfully removed... are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies." § 11601(a)(4). Finally, ICARA requires the abducting parent to establish by a preponderance of the evidence that Article 12's exception to return applies. § 11603(e)(2)(B).
II
Diana Lucia Montoya Alvarez and Manuel Jose Lozano are the parents of the girl at the center of this dispute.1 Montoya Alvarez and Lozano met and began dating in London in early 2004. Montoya Alvarez gave birth to a daughter in October 2005.
Montoya Alvarez and Lozano describe their relationship in starkly different terms. Lozano stated that they were "'very happy together,' " albeit with "normal couple problems." In re Lozano, 809 F.Supp.2d 197, 204 (S.D.N.Y.2011). Montoya Alvarez described a pattern of physical and emotional abuse that included multiple incidents of rape and battery. The District Court found insufficient evidence to make specific findings about domestic violence but determined that Lozano's claim that he never mistreated Montoya Alvarez was "not credible." Id., at 206.
The parties also differ as to the child's well-being during the first three years of her life. Lozano stated that he and the child had a very good relationship, and that the child was generally happy. Montoya Alvarez believed otherwise. In October 2008, Montoya Alvarez reported to the child's doctor that she refused to speak at the nursery she attended, cried often, and wet the bed. Montoya Alvarez also stated that the child refused to speak when Lozano was present. The child's nursery manager wrote that the girl was "'very withdrawn,' " and noted that the home " 'environment obviously had a negative effect' " on her. Id., at 207. The District Court found insufficient evidence that Lozano had physically abused the child, but did conclude that the child had seen and heard her parents arguing at home.
In November 2008, when the child was just over three years old, Montoya Alvarez went to New York to visit her sister Maria. During that time, the child remained in London with Lozano and his visiting mother. When Montoya Alvarez returned on November 18, she became acutely concerned about the child's fearful behavior around Lozano. The next day, Montoya Alvarez left with the child and never returned.
Montoya Alvarez and the child lived at a women's shelter for the next seven months. After Montoya Alvarez was unable to find suitable long-term accommodations in the United Kingdom, she and the child left for France on July 3, 2009, and then for the United States, arriving five days later. Since their arrival, Montoya Alvarez and the child have lived with Montoya Alvarez' sister Maria and her family in New York.
When they arrived in New York, Montoya Alvarez and the child began seeing a therapist at a family medical clinic. The therapist testified that, at first, the child was withdrawn and would wet herself. The therapist diagnosed her with posttraumatic stress disorder. Within six months, however, the therapist described her as " 'a completely different child,' " who had stopped wetting herself, was excited to play with friends, and was able to speak freely about her emotions. Id., at 212. When Montoya Alvarez and the child returned to the therapist after Lozano filed a petition for the child's return, the therapist noted that the child was doing well but did not wish to see her father.
In the meantime, Lozano attempted to find Montoya Alvarez and the child. Shortly after Montoya Alvarez left in November 2008, he called her sister Gloria in London, but eventually received legal advice not to speak with Montoya Alvarez' family. A mediation service also sent several letters to Montoya Alvarez on Lozano's behalf without receiving a response. In July 2009, Lozano filed an application for a court order in the United Kingdom " 'to ensure that he obtains regular contact with his [child] and plays an active role in [her] life.' " Id., at 210. He also sought court orders to compel Montoya Alvarez' sisters and legal counsel, the child's doctor and nursery, and various government offices in London to disclose the child's whereabouts.
On March 15, 2010, after determining that the child was not in the United Kingdom (and suspecting that the child was in New York), Lozano filed a form with the Hague Convention Central Authority for England and Wales seeking to have the child returned.2 The United States Central Authority-the Office of Children's Issues in the Department of State, see 22 CFR § 94.2 (2013)-received the application on March 23, 2010. After the Office of Children's Issues confirmed that Montoya Alvarez had entered the United States, Lozano located Montoya Alvarez' address in New York. On November 10, 2010, more than 16 months after Montoya Alvarez and the child left the United Kingdom, Lozano filed a Petition for Return of Child pursuant to the Hague Convention and ICARA, 42 U.S.C. § 11603, in the United States District Court for the Southern District of New York.
After a 2-day evidentiary hearing, the District Court denied Lozano's petition. 809 F.Supp.2d 197. The District Court concluded that Lozano had stated a prima facie case of wrongful removal under the Hague Convention. Id., at 219-220. Prior to her removal, the child was a habitual resident of the United Kingdom, see Hague Convention, Art. 4, and Lozano had custody rights that he was actually exercising at the time of removal, see Arts. 3(a)-(b).
Because the petition was filed more than one year after the child's wrongful removal, however, the District Court denied the petition on the basis that the child was now settled in New York. Id., at 230, 234. "Viewing the totality of the circumstances," the court found sufficient indicia of "stability in her family, educational, social, and most importantly, home life," id., at 233, to conclude that the child was settled in her current environment and that repatriation would be "extremely disruptive," id., at 234. Lozano argued that the child should be returned forthwith because the 1-year period in Article 12 should be equitably tolled during the period that Montoya Alvarez concealed the child. The court rejected that argument, holding that the 1-year period could not be extended by equitable tolling.3Id., at 228-229.
On appeal, the Second Circuit affirmed. 697 F.3d 41 (2012). The Court of Appeals agreed that the 1-year period in Article 12 is not subject to equitable tolling. According to the court, unlike a statute of limitations that would prohibit the filing of a return petition after one year, the 1-year period in Article 12 merely permits courts, after that period has run, to consider the interests of the child in settlement. Id., at 52. The Second Circuit concluded that allowing equitable tolling to delay consideration of the child's interests would undermine the purpose of the Hague Convention. Id., at 54.
We granted certiorari to decide whether Article 12's 1-year period is subject to equitable tolling. 570 U.S. ----, 133 S.Ct. 2851, 186 L.Ed.2d 907 (2013). Compare 697 F.3d, at 50-55 (equitable tolling not available); and Yaman v. Yaman, 730 F.3d 1, 12-16 (C.A.1 2013) (same), with Duarte v. Bardales, 526 F.3d 563, 568-570 (C.A.9 2008) (equitable tolling available); and Furnes v. Reeves, 362 F.3d 702, 723-724 (C.A.11 2004) (same). We hold that equitable tolling is not available, and therefore affirm.
III
Although this case concerns the application of equitable tolling to a treaty, we begin with a more familiar context: equitable tolling of federal statutes of limitations. As a general matter, equitable tolling pauses the running of, or "tolls," a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action. See, e.g.,Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Because the doctrine effectively extends an otherwise discrete limitations period set by Congress, whether equitable tolling is available is fundamentally a question of statutory intent. See, e.g., Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); Bowen v. City of New York, 476 U.S. 467, 479-480, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986); Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967).
As applied to federal statutes of limitations, the inquiry begins with the understanding that Congress "legislate[s] against a background of common-law adjudicatory principles." Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U.S. 104, 108, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). Equitable tolling, a long-established feature of American jurisprudence derived from "the old chancery rule," Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 90 L.Ed. 743 (1946), is just such a principle. See Young v. United States, 535 U.S. 43, 49-50, 122 S.Ct. 1036, 152 L.Ed.2d 79 (2002) ("Congress must be presumed to draft limitations periods in light of this background principle"); Bailey v. Glover, 21 Wall. 342, 349-350, 22 L.Ed. 636 (1875). We therefore presume that equitable tolling applies if the period in question is a statute of limitations and if tolling is consistent with the statute. Young, supra, at 49-50, 122 S.Ct. 1036 ("It is hornbook law that limitations periods are 'customarily subject to "equitable tolling,"'unless tolling would be 'inconsistent with the text of the relevant statute' " (citation omitted)).
IV
The Hague Convention, of course, is a treaty, not a federal statute. For treaties, which are primarily " 'compact[s] between independent nations,' " Medellín v. Texas, 552 U.S. 491, 505, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008), our "duty [i]s to ascertain the intent of the parties" by looking to the document's text and context, United States v. Choctaw Nation, 179 U.S. 494, 535, 21 S.Ct. 149, 45 L.Ed. 291 (1900); see also BG Group PLC v. Republic of Argentina, --- U.S. ----, ----, 134 S.Ct. 1198, 188L.Ed.2d 220, 2014 WL 838424 (2014).
We conclude that the parties to the Hague Convention did not intend equitable tolling to apply to the 1-year period in Article 12. Unlike federal statutes of limitations, the Convention was not adopted against a shared background of equitable tolling. Even if the Convention were subject to a presumption that statutes of limitations may be tolled, the 1-year period in Article 12 is not a statute of limitations. And absent a presumption in favor of equitable tolling, nothing in the Convention warrants tolling the 1-year period.
A
First, there is no general presumption that equitable tolling applies to treaties. Congress is presumed to incorporate equitable tolling into federal statutes of limitations because equitable tolling is part of the established backdrop of American law. Rotella v. Wood, 528 U.S. 549, 560, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000) ("[F]ederal statutes of limitations are generally subject to equitable principles of tolling"). It does not follow, however, that we can export such background principles of United States law to contexts outside their jurisprudential home.
It is particularly inappropriate to deploy this background principle of American law automatically when interpreting a treaty. "A treaty is in its nature a contract between... nations, not a legislative act." Foster v. Neilson, 2 Pet. 253, 314, 7 L.Ed. 415 (1829) (Marshall, C.J., for the Court); see also 2 Debates on the Federal Constitution 506 (J. Elliot 2d ed. 1863) (James Wilson) ("[I]n their nature treaties originate differently from laws. They are made by equal parties, and each side has half of the bargain to make..."). That distinction has been reflected in the way we interpret treaties. It is our "responsibility to read the treaty in a manner 'consistent with the shared expectations of the contracting parties.' " Olympic Airways v. Husain, 540 U.S. 644, 650, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004) (quoting Air France v. Saks, 470 U.S. 392, 399, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985); emphasis added). Even if a background principle is relevant to the interpretation of federal statutes, it has no proper role in the interpretation of treaties unless that principle is shared by the parties to "an agreement among sovereign powers," Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996).
Lozano has not identified a background principle of equitable tolling that is shared by the signatories to the Hague Convention. To the contrary, Lozano concedes that in the context of the Convention, "foreign courts have failed to adopt equitable tolling... because they lac[k] the presumption that we [have]." Tr. of Oral Arg. 19-20. While no signatory state's court of last resort has resolved the question, intermediate courts of appeals in several states have rejected equitable tolling. See Cannon v. Cannon, [2004] EWCA (Civ) 1330, [2005] 1 W.L.R. 32, ¶ 51 (Eng.), (rejecting the "tolling rule" as "too crude an approach" for the Convention); Kubera v. Kubera, 3 B.C.L.R. (5th) 121, ¶ 64, 317 D.L.R. (4th) 307, ¶ 64 (2010) (Can.) (equitable tolling "has not been adopted in other jurisdictions, including Canada"); see also HJ v. Secretary for Justice, [2006] NZFLR 1005, ¶ 53 (CA), appeal dism'd on other grounds, [2007] 2 NZLR 289; A.C. v. P.C., [2005] HKEC 839, 2005 WL 836263, ¶ 55, (Hong Kong Ct.1st Instance).4 The American presumption that federal statutes of limitations can be equitably tolled therefore does not apply to this multilateral treaty. Cf. Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 544-545, and n. 10, 111 S.Ct. 1489, 113 L.Ed.2d 569 (1991) (declining to adopt liability for psychic injury under the Warsaw Convention because "the unavailability of compensation for purely psychic injury in many common and civil law countries at the time of the Warsaw Conference persuades us that the signatories had no specific intent to include such a remedy in the Convention" (footnote omitted)).
It does not matter to this conclusion that Congress enacted a statute to implement the Hague Convention. See ICARA, 42 U.S.C. §§ 11601-11610. ICARA does not address the availability of equitable tolling. Nor does it purport to alter the Convention. See § 11601(b)(2) ("The provisions of [ICARA] are in addition to and not in lieu of the provisions of the Convention"). In fact, Congress explicitly recognized "the need for uniform international interpretation of the Convention." § 11601(b)(3)(B). Congress' mere enactment of implementing legislation did not somehow import background principles of American law into the treaty interpretation process, thereby altering our understanding of the treaty itself.
B
Even if the presumption in favor of equitable tolling had force outside of domestic law, we have only applied that presumption to statutes of limitations. See Hallstrom v. Tillamook County, 493 U.S. 20, 27, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989) (no equitable tolling of a 60-day presuit notice requirement that does not operate as a statute of limitations). The 1-year period in Article 12 is not a statute of limitations.
As a general matter, "[s]tatutes of limitations establish the period of time within which a claimant must bring an action." Heimeshoff v. Hartford Life & Accident Ins. Co., 571 U.S. ----, ----, 134 S.Ct. 604, 610, 187 L.Ed.2d 529 (2013). They characteristically embody a "policy of repose, designed to protect defendants." Burnett v. New York Central R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965). And they foster the "elimination of stale claims, and certainty about a plaintiff's opportunity for recovery and a defendant's potential liabilities." Rotella, supra, at 555, 120 S.Ct. 1075.
In Young, 535 U.S. 43, 122 S.Ct. 1036, we evaluated whether those characteristics of statutes of limitations were present in the "three-year lookback period" for tax liabilities in bankruptcy proceedings. The Bankruptcy Code favors tax claims less than three years old in two respects: Such claims cannot be discharged, and they have priority over certain others in bankruptcy proceedings. See 11 U.S.C. §§ 507(a)(8)(A)(i), 523(a)(1)(A). If the Internal Revenue Service "sleeps on its rights" by failing to prosecute those claims within three years, however, then those mechanisms for enforcing claims against bankrupt taxpayers are eliminated. Young, 535 U.S., at 47, 122 S.Ct. 1036. We concluded that the lookback period "serves the same 'basic policies [furthered by] all limitations provisions,' " ibid. (quoting Rotella, 528 U.S., at 555, 120 S.Ct. 1075),i.e., certainty and repose. We accordingly held that it was a limitations period presumptively subject to equitable tolling. 535 U.S., at 47, 122 S.Ct. 1036.
Unlike the 3-year lookback period in Young, expiration of the 1-year period in Article 12 does not eliminate the remedy the Convention affords the left-behind parent-namely, the return of the child. Before one year has elapsed, Article 12 provides that the court "shall order the return of the child forthwith." Treaty Doc., at 9. But even after that period has expired, the court "shall also order the return of the child, unless it is demonstrated that the child is now settled." Ibid. The continued availability of the return remedy after one year preserves the possibility of relief for the left-behind parent and prevents repose for the abducting parent.5 Rather than establishing any certainty about the respective rights of the parties, the expiration of the 1-year period opens the door to consideration of a third party's interests, i.e., the child's interest in settlement. Because that is not the sort of interest addressed by a statute of limitations, we decline to treat the 1-year period as a statute of limitations.6
C
Without a presumption of equitable tolling, the Convention does not support extending the 1-year period during concealment. Article 12 explicitly provides that the 1-year period commences on "the date of the wrongful removal or retention," and makes no provision for an extension of that period. Id., at 9. Further, the practical effect of the tolling that Lozano requests would be to delay the commencement of the 1-year period until the left-behind parent discovers the child's location. Commencing the 1-year period upon discovery is the obvious alternative to the commencement date the drafters actually adopted because the subject of the Hague Convention, child abduction, is naturally associated with the sort of concealment that might justify equitable tolling under other circumstances. See 697 F.3d, at 51, n. 8 ("It would have been a simple matter, if the state parties to the Convention wished to take account of the possibility that an abducting parent might make it difficult for the petitioning parent to discover the child's whereabouts, to run the period 'from the date that the petitioning parent learned [or, could reasonably have learned] of the child's whereabouts' " (alterations in original)). Given that the drafters did not adopt that alternative, the natural implication is that they did not intend the 1-year period to commence on that later date. Cf. Sebelius v. Auburn Regional Medical Center, 568 U.S. ----, ----, 133 S.Ct. 817, 184 L.Ed.2d 627 (2013). We cannot revisit that choice.
Lozano contends that equitable tolling is nevertheless consistent with the purpose of the Hague Convention because it is necessary to deter child abductions. In his view, "absent equitable tolling, concealment 'probably will' result in non-return," which will in turn encourage abduction. Reply Brief 14-15; see also Duarte, 526 F.3d, at 570.
We agree, of course, that the Convention reflects a design to discourage child abduction. But the Convention does not pursue that goal at any cost. The child's interest in choosing to remain, Art. 13, or in avoiding physical or psychological harm, Art. 13(b), may overcome the return remedy. The same is true of the child's interest in settlement. See supra, at 2; see also In re M, [2008] 1 A.C. 1288, 1310 (Eng. 2007) (opinion of Baroness Hale of Richmond) ("These children should not be made to suffer for the sake of general deterrence of the evil of child abduction world wide"). We are unwilling to apply equitable tolling principles that would, in practice, rewrite the treaty. See Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134-135, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989) (" '[T]o alter, amend, or add to any treaty by inserting any clause, whether small or great, important or trivial, would be... to make, and not to construe a treaty' " (quoting The Amiable Isabella, 6 Wheat. 1, 71, 5 L.Ed. 191 (1821) (Story, J., for the Court))).
Nor is it true that an abducting parent who conceals a child's whereabouts will necessarily profit by running out the clock on the 1-year period. American courts have found as a factual matter that steps taken to promote concealment can also prevent the stable attachments that make a child "settled." See, e.g., Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1363-1364 (M.D.Fla.2002) (children not settled when they "lived in seven different locations" in 18 months); Wigley v. Hares, 82 So.3d 932, 942 (Fla.App.2011) ("The mother purposely kept him out of all community activities, sports, and even church to avoid detection by the father"); In re Coffield, 96 Ohio App.3d 52, 58, 644 N.E.2d 662, 666 (1994) (child not settled when the abducting parent "was attempting to hide [child's] identity" by withholding child from school and other organized activities). Other signatories to the Hague Convention have likewise recognized that concealment may be taken into account in the factual determination whether the child is settled. See, e.g., Cannon, [2005
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_genstand
|
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 agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
INDEPENDENT NEWS CO., Inc., National Comics Publications, Inc., Superman, Inc. v. Harry WILLIAMS, Independent News Co., Inc., Appellant in No. 17,098, National Comics Publications, Inc., Appellant in No. 17,099, Superman, Inc., Appellant in No. 17,100.
Nos. 17098-17100.
United States Court of Appeals Third Circuit.
Argued Oct. 25, 1968.
Decided Dec. 4, 1968.
K. Robert Conrad, Pepper, Hamilton & Sheetz, Philadelphia, Pa., for appellants; (Gerard J. Carpency, Philadelphia, Pa., on the brief).
William R. Pomerantz, Pomerantz & Lacko, Philadelphia, Pa., for appellee.
Before HASTIE, Chief Judge, and SEITZ and ALDISERT, Circuit Judges.
OPINION OF THE COURT
SEITZ, Circuit Judge.
Plaintiffs appeal the dismissal of their complaint by the district court after final hearing.
Plaintiffs’ five count complaint seeking an injunction and damages was filed in 1960. Plaintiffs, Superman, Inc., and National Comics Publications, Inc. (“National”) own the copyright and trademark, and are the publishers of, inter alia, certain comic books. Plaintiff, Independent News Co., Inc. (“Independent”) is the sole and exclusive distributor of such comic books. Defendant, Harry Williams, is a Philadelphia distributor of second-hand books and magazines. We turn to the factual situation which gave rise to this lawsuit.
Plaintiffs’ complaint alleged that comic books published by National were distributed by its wholly owned subsidiary, Independent, to wholesalers, pursuant to a contract, and they, in turn, distributed to retailers. At the end of the sales period, all the unsold comic books were returned by the retailer to the wholesaler for full credit. The wholesaler, under the terms of its contract with Independent, returned to it only the cover of the comic or a part thereof, unless otherwise directed, and received full credit therefor. The wholesaler was obligated to “ * * * destroy or mutilate the remaining portions thereof so as to render them unsalable as publications.” He further agreed “ * * * that such destroyed or mutilated portions of return copies shall be disposed of or sold for no other purpose than waste paper, and that he will obtain a written commitment from the purchasers of such destroyed or mutilated return copies that the same will be used only for waste and will not be resold.” Plaintiffs’ complaint further alleged that defendant was found in 1960 to be in possession of a substantial number of plaintiffs cover-less comic books, was selling them in competition with plaintiffs’ covered comic books, and was not an authorized distributor or wholesaler of any of the plaintiffs’ comics.
Plamtlffs ñrst sou¡?ht a Preliminary injunction on six theories: conversion of the literary property m the comics, trademark infringement, copyright infnngement unfair competition, sales m violation of the legend appearing on each magazine, and an invasion of the right of privacy. The district court, m rejeetmg al six theories filed extensive and detailed findings of fact and conelusions of law and denied the motion for preliminary injunction. 184 F.Supp. 877 (E.D.Pa.1960). this court affirmed 293 F.2d 510 (1961).
The case lay dormant for almost seven years. It then came on for final hearing, apparently solely on the count of the complaint charging a conversion of the literary property in the comic books, After final hearing the district court made supplemental findings of fact and dismissed the complaint, but retained jurisdiction to deal with any conduct by defendant which might require in june-tive relief, such as knowingly encouraging wholesalers and/or waste dealers to violate their contractual obligations to plaintiffs.
In connection with its decision denying a preliminary injunction _ the district court had made the following findings:
“5. The defendant has never purchased returned copies, either cover-less copies or covered copies, of comic books from any wholesaler under contract with plaintiff-distributor.
“6. The defendant has obtained his comics primarily from wastepaper dealers.
“7. There is no evidence that the defendant had any knowledge that any of the wastepaper dealers from whom he purchased were obligated to sell their coverless comics as wastepaper only,
“8. There is no evidence that any of the wastepaper dealers from whom the defendant purchased coverless comics had> in faet) any contractual obligation to use such comics as wastepaper only.”
The district court concluded, as did this court on the preliminary injunction appeal> tbat under thege facts the defendant was not a converter but, on the contrary> obtained a complete right to the comic books. Short]y thereafter, in an attempt to correct these deficiencies in their cage> the pIaintiffS; as the dis. trict court found after fínal bearing in 1967> gave notice of the contractual restrietions to all wastepaper dealers known to be purchasing the remains of the plaintiffg, cover-removed comic books from plaintiffg- wholesalers. The district court found further that defendant wag aware since the 1960 hearing of the restrictions on use of the comic books, Plaintiffs contended, after final hearing, that these “notice” facts justified permanent injunctive relief. However, the district court made additional material findings which took into account defendant’s change of source since the 1960 hearing. The district court found:
“3. There is no evidence that the defendant has purchased any of the plaintiffs’ cover-removed comics from wastepaper dealers or wholesalers, or solicited such purchases for several years.”
The digtrict CQUrt did find that a gmall number Qf plaintiffs> cover.removed bookg arg gtm obtained when defendant purchases in bulk, but the court further found that it would be “difficult, unduly burdensome and not economically feasible” to require defendant to eliminate them. We think, contrary to plaintiffs’ contention, that none of these findings may be upset as being “clearly erroneous.”
But plaintiffs say there is no reason to assume on this record that defendant will not resume the practice in the future. They point out that defendant apparently withdrew because so many got in the business that it became unprofitable and because defendant’s sources had “dried up” by virtue of the notice given by plaintiffs, and not because he desired or intended to honor the contract provisions when he received notice of them in 1960. The truth of plaintiffs’ allegations as to the reasons for defendant’s withdrawal notwithstanding, it does not follow that plaintiffs are entitled to injunctive relief. Where an injunction is sought against a practice which has already been stopped, the trial court’s discretion in granting or denying it is necessarily broad, and it may consider many factors, such as the likelihood of the repetition. U. S. v. Article of Drug, etc., 362 F.2d 923, 928 (3rd Cir. 1966). While it did not make any specific finding as to the bona fides of defendant’s future intent with respect to resuming the complained of practice, the district court did find that defendant’s sources have dried up as a result of plaintiffs’ effective policing of their contracts and that the complained of practice has been discontinued for several years. It is a reasonable inference that the complained of practice cannot be resumed so long as plaintiffs continue policing the contracts. Therefore the likelihood of defendant’s being in a position, even if he so desired, to resume the practice is minimal at best, and we think that, in these circumstances, the district court was acting well within its prescribed discretionary limitations in refusing injunctive relief. U. S. v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1952); U. S. v. Article of Drug, etc., supra.
In reaching the conclusion that the district court correctly decided that plaintiffs were not entitled to an injunction on the conversion count, we have assumed without deciding that the contractual provision in question can be validly enforced against a party not in privity but with knowledge thereof.
Finally, we note that while the district court dismissed the complaint it purported to retain jurisdiction to deal with any conscious action by defendant “to encourage others to violate their contracts with the plaintiffs.” We think this purported reservation goes to a claim which, if pleaded, which we doubt, was not decided by the district court, viz., inducing breach of contract. We therefore think the provision in the order reserving jurisdiction was a nullity.
We therefore affirm the judgment of the district court dismissing the complaint but without the provision reserving jurisdiction.
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_casedisposition
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
NORFOLK MONUMENT CO., INC. v. WOODLAWN MEMORIAL GARDENS, INC., et al.
No. 1040.
Decided April 21, 1969.
Howard I. Legum and Louis B. Fine for petitioner.
Frederick S. Albrink for Woodlawn Memorial Gardens, Inc., William C. Worthington for Rosewood Memorial Park, Inc., et al., Jefferson B. Brown for Greenlawn Cemetery Park Corp., Bernard Glosser and Stuart D. Glosser for Roosevelt Memorial Park & Cemetery Corp., and William H. King for Jas. H. Matthews & Co. of Virginia et al., respondents.
Per Curiam.
The petitioner, a retailer of burial monuments and bronze grave markers, brought this action for damages and injunctive relief under §§ 4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U. S. C. §§ 15, 26, alleging that the respondents had violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2, by conspiring to monopolize and monopolizing the manufacture and sale of bronze grave markers. The respondents — Matthews, a manufacturer of such markers, and five operators of cemeteries (called “memorial parks”) that sell the markers — were charged with having jointly adopted various restrictive devices to prevent, restrict, and discourage sales of markers by the petitioner for installation in the cemeteries. After extensive pretrial discovery, the District Court granted the respondents’ motion for summary judgment, concluding that there was no material issue of fact and no evidence of conspiracy. 290 F. Supp. 1. The Court of Appeals affirmed. 404 F. 2d 1008.
We cannot agree that on the record before the District Court a jury could not have found that the respondents had conspired to exclude the petitioner from and monopolize the market for bronze grave markers. As Circuit Judge Craven pointed out in his dissenting opinion, the record disclosed the following conduct on the part of the respondents:
“(1) Despite the unskilled nature of the work, all of the memorial parks refuse to permit the plaintiff to install markers sold by it; all of them insist that the work be done by the cemeteries themselves.
“(2) None of the memorial parks charges lot owners a separate installation fee in the case of markers purchased from the cemeteries.
“(3) All of the memorial parks require the payment of an installation fee by the plaintiff for installing markers purchased from the plaintiff. The plaintiff plausibly maintains that the actual cost of installation comes to about $3. Yet, enormous installation fees are charged plaintiff ....
“(4) All of the memorial parks require a specific alloy content in the bronze markers installed, and reserve the right to reject non-conforming markers. The alloy content requirement happens to be the same as manufacturer Matthews’ markers and the same as is implicitly suggested in a pamphlet (‘Modern Cemeteries’) distributed by Matthews to its customers. All of the memorial parks except Roosevelt are customers of Matthews.
“(5) There is evidence that Greenlawn, Wood-lawn and Princess Anne have attempted to dissuade lot owners from purchasing markers from the plaintiff. The affidavit of plaintiff’s president states that numerous other incidents of this nature have occurred.
“(6) Defendant Matthews, in its pamphlet ‘Modern Cemeteries,’ suggests a number of practices which in effect erect competitive barriers to retailers other than the cemeteries themselves.
“(7) Many of these practices have been adopted by the memorial park defendants, as evidenced by affidavits in the record, and by the ‘rule books’ of Rosewood, Princess Anne and Greenlawn.
“(8) There is evidence of numerous visits to and conferences with the memorial parks by sales representatives of Matthews.” 404 F. 2d, at 1012-1014.
The District Court found that the rules relating to the alloy content and installation of the markers were reasonable “[i]n view of the continuing obligation of perpetual care imposed upon the cemeteries, in [their] contracts with lot owners . . . .” 290 F. Supp., at 3. But the business justification for these restrictive rules was disputed by the petitioner, which proffered evidence that the markers required very little permanent care and that, in any event, the funds for that purpose were already provided from another source. The reasonableness of the rules was a material question of fact whose resolution was the function of the jury and not of the court on a motion for summary judgment. The same is true of the inferences to be drawn from respondent Matthews’ pamphlet. The District Court dismissed it as without any possible significance because it was a mere “form book/’ which “specifically points out . . . that it contains suggested standards of fair and reasonable regulations which the cemetery would be advised to adopt but says that ‘. . . Jas. H. Matthews & Co. is not permitted to make recommendations and suggests that the reader consult his own attorney.’ ” 290 F. Supp., at 3. Again this self-serving disclaimer raised a question for the jury, and it surely did not alone conclusively rebut the petitioner’s contention that the pamphlet evidenced an agreement among the respondents to participate in the alleged restrictive practices.
Nor do the other findings of the District Court necessarily dispel the inferences which the jury would be asked by the petitioner to draw. The District Court found, for example, that there was “a wide divergence of prices” charged for installation “which would completely negative any systematic scheming or conscious parallelism.” 290 F. Supp., at 3. The petitioner’s complaint, however, was not that the respondent cemeteries were charging uniform fees but that they were charging deliberately “excessive and unreasonable” fees for the purpose of injuring the petitioner. The fact that the District Court appeared to consider dispositive of the conspiracy allegations was that the petitioner’s principal officer “admitted that he has no letters, agreements, correspondence, or any other testimonials to a conspiracy among the several defendants . . . .” 290 F. Supp., at 3. But it is settled that “[n]o formal agreement is necessary to constitute an unlawful conspiracy,” American Tobacco Co. v. United States, 328 U. S. 781, 809, and that “business behavior is admissible circumstantial evidence from which the fact finder may infer agreement.” Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U. S. 537, 540.
We express no opinion, of course, on the strength or weakness of the petitioner’s case, but hold only that the alleged conspiracy had not been conclusively disproved by pretrial discovery and that there remained material issues of fact which could only be resolved by the jury after a plenary trial. As we have cautioned before, “summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.” Poller v. Columbia Broadcasting System, 368 U. S. 464, 473.
The writ of certiorari is granted. The judgment is reversed, and the case is remanded for further proceedings in the District Court consistent with this opinion.
It is so ordered.
Mr. Justice Harlan, Mr. Justice Fortas, and Mr. Justice Marshall are of the opinion that certiorari should be denied.
Judge Craven noted that the reason for the disclaimer is that “Matthews is under an injunction prohibiting it from making any suggestions to memorial parks as to the quality of markers installed in the parks.” 404 F. 2d, at 1013, n. 6. The injunction was entered in one of the three consent decrees which have settled prior antitrust actions against Matthews. See 404 F. 2d, at 1014.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_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.
Manuel Joe CHAVEZ, Appellant, v. Fred R. DICKSON, Warden, California State Prison at San Quentin, California, Appellee. Clyde BATES, Appellant, v. Fred R. DICKSON, Warden, California State Prison at San Quentin, California, Appellee.
Nos. 16590, 16622.
United States Court of Appeals Ninth Circuit.
June 16, 1960.
Rehearing Denied Aug. 17, 1960.
Gladstein, Andersen, Leonard & Sib-bett, Richard Gladstein, Norman Leonard, San Francisco, Cal., for appellant Chavez.
Ruth Jacobs, San Francisco, Cal., for appellant Bates.
Stanley Mosk, Atty. Gen. for the State of California, Arlo E. Smith, Deputy Atty. Gen. of the State of California, for appellee.
Before MAGRUDER, HAMLEY and KOELSCH, Circuit Judges.
HAMLEY, Circuit Judge.
Manuel Joe Chavez and Clyde Bates, state prisoners under sentence of death, appeal from district court orders denying their applications for habeas corpus. Separate orders of denial were entered and separate appeals have been taken. The district court however, considered the applications together, and we will do likewise on these appeals.
Appellants were jointly tried in the Superior Court of Los Angeles County on six counts charging felony-murder in violation of California Penal Code, § 189, and one count charging wilful and malicious burning of a building not a parcel of a dwelling, contrary to California Penal Code, § 448a. Each was convicted on all counts, the convictions for violation of section 189 being designated by the jury as first degree murder. The convictions were thereafter affirmed by the California Supreme Court. People v. Chavez, 50 Cal.2d 778, 329 P.2d 907, cer-tiorari denied, Chavez v. California, 358 U.S. 946, 79 S.Ct. 356, 3 L.Ed.2d 353.
The charges and convictions grew out of an occurrence on April 4, 1957, when gasoline and lighted matches were thrown on the floor of the Mecca bar in Los Angeles. Six persons died in the resulting explosion and fire. The death sentences were imposed as a result of the convictions of first degree murder. One Manuel Hernandez was tried at the same time and convicted on similar counts. His sentence, however, was fixed at life imprisonment.
On these appeals it is contended that the district court erred in holding that each of the asserted grounds for relief set out in the respective applications for • writs of habeas corpus is without merit. It is also argued with respect to each such ground, except the first, that the district court erred in refusing to examine the state court record before ruling on the applications.
In this opinion we will discuss, seri-atim, the grounds for relief advanced in the applications. As to each such ground we will first consider whether the district court should have examined the record before ruling on such asserted ground. If it is concluded that such an examination was not required, we will then consider whether the trial court erred in holding such asserted ground for relief to be without merit.
The first asserted ground for relief set out in the applications is that California’s construction of the Penal Code sections under which appellants were convicted had the effect in this case of depriving them of certain federally protected rights.
Appellants were indicted and convicted for violations of California Penal Code, §§ 189 and 448a, in that each of them was responsible for setting fire to a bar in Los Angeles, as a result of which six persons perished. Section 189 defines as murder in the first degree all murder which is perpetrated by means of certain specified acts, including “arson.” Section 448a makes it a crime for a person to wilfully and maliciously burn any building not a parcel of a dwelling. The word “arson” does not appear in this section. In section 447a, however, it is. provided that any person who wilfully and maliciously sets fire to “any dwelling-house, or any kitchen, shop, barn, stable, or other outhouse that is parcel thereof, or belonging to or adjoining thereto. * * * shall be guilty of arson.”
In their appeals to the California Supreme Court appellants contended that only the offense proscribed by section 447a constitutes arson. Hence, it was argued, section 448a set forth a different offense which is not arson, and accordingly a violation of the latter section would not be an act of “arson” within the meaning of section 189 defining murder in the first degree. It was further pointed out that appellants could not have been found guilty of arson as defined in section 447a, since the Mecca bar was not a “dwelling” or any “outhouse-that is a parcel thereof, or belonging to or adjoining thereto.”
The California Supreme Court rejected this argument, holding that a violation of section 448a would be “arson” within the meaning of section 189 defining murder in the first degree. People v. Chavez, supra, 50 Cal.2d at pages 787-788, 329 P.2d 907. It is this construction of sections 189 and 448a which, according to appellants, has deprived them of certain federally protected rights.
As before noted, appellants do not here contend that the district court was required to examine the record of the state court proceeding before passing upon this first ground for relief asserted in the applications. We therefore turn at once to a consideration of the argument that California’s interpretation of sections 189 and 448a in this case has deprived appellants of certain constitutional rights.
First, it is argued, the construction which the California Supreme Court has placed upon these sections is arbitrary and unreasonable.” The contention here is that the meaning which that court has attached to the word “arson” as used in section 189 finds no support in either the common law or in the statutory law of California. Appellants disavow any contention that for this asserted reason we ought to reconstrue section 189 to mean something different than the California court says that it means. They nevertheless urge that the California construction of the statute is so unfounded that the result has been to deprive them of due process of law.
It is difficult to perceive how this court can consider whether the state construction of the statute is arbitrary and unreasonable without in effect reviewing the correctness of the state court’s interpretation of section 189. This, as noted in footnote 3, is not our function.
In any event the decision in People v. Chavez, supra, was reached with due regard to relevant considerations and materials. That court, speaking unanimously, based its interpretation of the statute upon its understanding of the legislative intent. The legislative intent was determined by analyzing the history of state legislation in this field and considering the interplay of other existing statutes. The court also cited its 1947 opinion in Ex parte Bramble, 31 C.2d 43, 187 P.2d 411, and quoted supporting language from the latter opinion. This is enough to convince us that whether right or wrong the interpretation placed upon section 189 in People v. Chavez, supra, was not arbitrary and unreasonable in any sense that could possibly have constitutional significance.
Under their second and third arguments based on the statutory question it is contended that the construction placed on section 189 whereby the term “arson” as therein used was held to embrace the crime defined in section 448a was announced for the first time in the decision handed down in People v. Chavez, supra, after appellants had been convicted. Thus, it is asserted, appellants did not at the time of the incident at the Mecca bar have notice that section 189 would be so construed. The result is, appellants argue, that California has increased the penalty to which appellants were actually subject when the alleged crimes were committed.
These arguments are necessarily predicated on the assumption that section 189 meant one thing from the date of its enactment to the date of the decision in People v. Chavez, supra, and something else thereafter. But to accept this view is to reject the interpretation which the California Supreme Court has placed upon the statute. That court undertook to construe the statute as of the date of enactment. We are bound to accept that construction as of that date. Hence, we are not free to hold that section 189 when enacted meant something different than the California court found it to mean in People v. Chavez. It follows that no ex post facto question could possibly arise.
Appellant’s fourth argument on this branch of the case is that California’s construction of sections 189 and 448a resulted in appellants’ conviction upon a charge not made against them. The point sought to be made is that appellants were really convicted of violations of section 447a, since this is the only statute relating to the setting of fires which uses the word “arson.”
Appellants were not charged with or convicted of violations of section 447a, but rather of section 448a. Appellants’ contention to the contrary is not based on the wording of the indictment or upon the nature of the evidence. The basis of the contention is that only a violation of section 447a could be “arson” as defined in section 189. The California Supreme Court has held to the contrary, and we are bound by that construction.
This brings us to the fifth and final argument advanced by appellants with regard to the question of statutory construction. It is contended that the construction of the term “arson” as used in section 189 to include the crime defined in section 448a renders section 189 so vague and indefinite as to deprive appellants of due procéss of law.
The principle here invoked, as stated in Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, is that “no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.” In United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 it was stated that “the Constitution has erected procedural safeguards to protect against conviction for crime except for violation of laws which have clearly defined conduct thereafter to be punished * * It was there pointed out that this rule against vagueness is met where the statutory language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.”
Any vagueness which may have inhered in the penal statutes here in question at the time of their enactment was. cured by the 1947 opinion of the California Supreme Court in Ex parte Bramble, supra. This being true, we need not decide whether prior to that decision section 189 was void for vagueness as applied to persons accused of murder resulting from the setting of a fire.
We conclude that California’s construction of the Penal Code sections in question did not have the effect of depriving appellants of any federally pro-r tected right. The district court did not. err in holding that this asserted ground: for granting relief under the applications is without merit.
Another ground asserted in the applications of Chavez and Bates why relief should be granted relates to asserted improper statements made to the jury by the district attorney and the trial judge. Excerpts from the trial record setting out these statements were attached to the Chavez application as exhibits C and D. It was contended in the applications that the making of these statements, considered separately or in connection with other asserted procedural errors, deprived appellants of due process of law.
In connection with the argument of this point before the district court, counsel for appellants urged the district judge to examine the record of the state court proceedings for the purpose of noting the context in which the statements of the district attorney and the trial Judge were made, and to inform himself as to the “climate” that was thereby created.
The district judge declined to examine the state court record or any part thereof. Nor was a hearing held for the purpose of receiving evidence pertaining to this or any other point raised in the applications. No such hearing had been requested. In passing on this and all other questions presented, the district judge relied exclusively upon the applications and attached papers and the returns thereto, the opinion of the Supreme Court of California in People v. Chavez, and the oral argument of counsel for appellants and appellee.
Appellants argue here that the district judge erred in not examining relevant portions of the state trial record prior to ruling on the question of whether the assertedly improper remarks of the prosecution and the trial court had deprived appellants of due process of law.
Where an application by a state prisoner and the return thereto raise an issue of fact which if resolved in favor of the applicant would entitle him to relief, it is ordinarily necessary for the district judge to adjudicate the fact issue on the basis of evidence received by him in a hearing called for that purpose. In Brown v. Allen, 344 U.S. 443, 463-465, 506-507, 73 S.Ct. 397, 97 L.Ed. 469, however, it was held that the district judge may rely upon the state court adjudication of such fact issue if he examines the state trial record and satisfies himself, that there is no “vital flaw” in the process of ascertaining such facts in the trial court. In People of the United States ex rel. Jennings v. Ragen, 358 U.S. 276, 79 S.Ct. 321, 3 L.Ed.2d 296, it was specifically held that reliance upon a state court adjudication of a fact issue may not be predicated upon an examination of the opinion of the state supreme court, but requires that the state court record be reviewed.
Appellee contends, however, that the question pertaining to the assertedly improper remarks of the prosecution and the state trial judge presented no fact issue concerning which the district judge was required to either hold a hearing or rely on a state court adjudication. If this contention is correct, there was no' occasion for the district judge to examine the state court record with regard to this particular point, and the failure to do so was not error.
Appellants do not question the statement in the opinion of the California Supreme Court in People v. Chavez, supra, 50 Cal.2d at page 793, 329 P.2d 907, 916, that no objection was taken to the challenged remarks of the trial judge or to some of the questioned argument by the prosecution. As to these remarks and argument, it was held in People v. Cha-^ vez that failure to voice an objection in the trial court precluded the point from being raised on appeal.
State remedies will not be deemed to have been exhausted within the meaning of 28 U.S.C.A. § 2254 if the failure to obtain a final state adjudication was due to inexcusable nonconformity with state procedural requisites. No reason was offered in the district court or in this court as to why appellants should be excused for their failure to make timely objection in the state trial court to the questioned remarks of the prosecution and trial judge.
It follows that as to the criticized remarks concerning which no objection was made in the trial court, relief by federal habeas corpus is unavailable. Hence, as to such remarks no factual issue was presented and the district court was required to deny relief as a matter of law. Accordingly, the failure of the district court to examine the state record with reference to these remarks was not error.
With regard to some of the questioned remarks of the prosecution, defense counsel did make timely objections at the trial and requested that the prosecuting attorney be cited for misconduct. The California Supreme Court held in People v. Chavez that the request to cite the prosecuting attorney for misconduct in making this statement was properly refused, since “the remarks were not evidence ‘but purely a matter of argument.’ ”
The disposition which the California Supreme Court made of this point indicates that the only objection taken to the remarks in question was that they contained recitals of fact which were not supported by evidence in the case. This is borne out by an examination of the briefs which were filed in the California Supreme Court in connection with People v. Chavez.
The conclusion of the state court that this prosecution argument did not neces-sítate reversal required no adjudication of fact but only a conclusion of law based upon an examination of the remarks in question. If the correctness of that conclusion may be reviewed in this habeas corpus proceeding, which we doubt, it is still true that no adjudication of fact is necessary in passing upon the question. It follows that there was no occasion for the district judge to examine the state court record with regard to this particular point, and the failure to do so was not error.
What is said above disposes of appellants’ contention on this appeal that in dealing with the point raised in the applications concerning certain remarks made during the trial by the prosecution and the trial judge the district court was required to examine the state court record. Apart from the matter of examining the state court record, however, there is appellants’ further contention that the district court erred in rejecting as a ground for relief the point regarding such remarks.
Concerning all of the questioned remarks of the trial judge and some of those of the prosecution, it has already been pointed out that appellants inexcusably failed to preserve the point for adjudication by the California Supreme Court, and so may not raise it here. As far as these remarks are concerned, therefore, the district judge could not have granted relief in these habeas corpus proceedings and did not err in declining to do so.
This leaves for consideration only those remarks of the prosecution which are quoted in footnote 12. As before noted, the only objection taken thereto at the trial was that in making them the prosecution went outside the record. The California Supreme Court held otherwise, stating in effect that the remarks did not purport to recite facts but were purely a matter of argument.
It is questionable whether this state court determination is subject to review in this habeas corpus proceeding, but, assuming that it is subject to review as a prelude to determining whether any resulting prejudice could have deprived appellants of due process, we are convinced that the state court determination is correct. Members of the jury could not reasonably have understood that in making the questioned remarks the prosecuting attorney was undertaking to testify as to the facts or to represent that there was evidence in the record supporting his reference to community sentiment.
But even if such remarks could' have been so interpreted, or assuming that the impropriety of the remarks in any other respect had been raised and should have been sustained, no prejudice-resulted which has constitutional significance. It is only where criminal trials in state courts are conducted in such a manner as amounts to a disregard of that fundamental fairness essential to the very concept of justice that due process-is offended and that federal court interference is warranted. Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166. In our opinion the remark of the prosecution quoted in footnote 12 did not result in a denial' of fundamental fairness essential to the concept of justice.
A third ground asserted in the applications of Chavez and Bates why relief should be granted has to do with the fact that a police officer was permitted over objection to read as evidence two statements transcribed from tape recordings of conversations between police officers and Hernandez and between police officers and one Oscar Brenhaug. Excerpts from these statements were attached as exhibits A and B to the application of Chavez.
Appellants argue that the district judge erred in not examining the trial record for the purpose of ascertaining the context in which they were read to the jury and the “climate” or prejudice which resulted. They also contend that apart from the asserted error in this regard the district court erred in holding that the reading of these statements to the jury did not entitle appellants to relief in these habeas corpus proceedings.
The Hernandez statement was received solely as to him, and the jury was instructed that it should not be used in any way as to Chavez or Bates. Appellants allege, however, that the statement was so prejudicial as to them that it should not have been received despite its relevance as to Hernandez. The California Supreme Court, presented with the same question, held that the statement was admissible in view of its relevance as to Hernandez and the instruction given by the trial court.
Where there is no question concerning a federally significant external event such as the voluntariness of a confession or the knowing use of perjured testimony, trial court rulings on the admissibility of evidence may not be questioned in a federal habeas corpus proceeding. See Eberhart v. United States, '9 Cir., 262 F.2d 421. The fact that certain evidence is prejudicial is immaterial if in fact it was admissible. No federal question of fact or law was raised as to the reading of Hernandez’ statement.
It follows that there was no occasion for the district judge to determine the extent of prejudice resulting from the reading of the Hernandez statement by examining the state record or otherwise. It likewise follows that the district court did not err in holding in effect that the question concerning the admissibility of this evidence, as discussed above, was not available to appellants in this habeas corpus proceeding.
The Brenhaug statement consisted of accusatory statements in response to questions put to him by the police in the presence of Chavez, Bates and Hernandez, together with the latters’ reactions when asked what they had to say concerning Brenhaug’s statement. The Brenhaug statement was received as to Hernandez and Bates, but not as to Chavez, and the jury was so instructed. Chavez alleges, however, that the statement was so prejudicial as to him that it should not have been received whether or not admissible as to Hernandez or Bates.
The California Supreme Court held that the statement was properly admitted as to Hernandez and that as to Chavez a proper cautionary instruction had been given. It follows that as to Chavez the reading of the Brenhaug statement presents no federal question of fact or law. Accordingly, as to him we reach the same conclusion as stated above with respect to the Hernandez statement.
With regard to Bates, however, the California Supreme Court held that it was error to read part of the Brenhaug statement. The reasoning behind this conclusion is set out in the opinion of that court, 50 Cal.2d at page 791, 329 P.2d 907, and need not be repeated here. The California Supreme Court further held, however, that error in this regard did not require reversal. That court stated in its opinion that Brenhaug testified to the same effect at the trial and was subjected to lengthy cross-examination. This and other evidence properly received, that court held, amply established the case against Bates. Moreover, the California Supreme Court stated, Bates’ position at the trial was not based on a denial of what happened on the night of the fire, but on the contention, rejected by the jury, that he was then so intoxicated that he must be deemed guiltless of the crime.
This reasoning by the California Supreme Court, did not involve any adjudication of fact concerning an external event. Nor do appellants here question any of the fact recitals in the state court’s opinions. The determination by the California Supreme Court that the trial court error was not prejudicial is a conclusion of law and not an adjudication of fact. See footnote 15.
We conclude that as to Bates the reading of the Brenhaug statement presents no issue of fact within the meaning of the Brown v. Allen rule.
A question of law is presented as to whether the trial court error was so prejudicial as to deprive Bates of due process of law. As to this the federal district court was not bound by the state court conclusion that the error was not prejudicial.
As before noted, the factual basis relied upon by the state supreme court in holding that the error as to Bates in permitting the Brenhaug statement to be read was not prejudicial has not been questioned by appellants. Adverting to that same factual basis, it is our view that the reading of that statement, which was error in so far as Bates is concerned, was not so prejudicial as to constitute a denial of fundamental fairness essential to the concept of justice. See Lisenba v. People of State of California, supra, and footnote 14.
Finally, with regard to the reading of the Hernandez and Brenhaug statements it is alleged that the transcribed statements were not accurate representations of the recorded conversations. Amplifying this allegation, counsel for Chavez told the district judge at the oral argument on these applications that the trial judge provided an opportunity for counsel to hear the tape recording from which the statements were transcribed. This was done before the statements were received in evidence. The trial judge did not himself listen to the recording.
Further amplifying this allegation, the district judge was told that when the statements were sought to be read to the jury, counsel for appellants represented to the trial judge that the transcriptions were not in accord with the tape recordings. The trial court was told that there were many places where the recordings were completely unintelligible and that there were glaring disparities between the recordings and the transcriptions. The state trial judge, according to appellants’ representations to the district judge, nevertheless declined to listen to the recordings. The state judge permitted the transcribed statements to be read to the jury on the police officer’s testimony that in so far as his information was concerned the statements were substantially correct.
The district judge was urged to call for the recordings and listen to them himself for the purpose of ascertaining the accuracy of the transcriptions and the extent of any prejudice arising from the use of inaccurate transcriptions. The judge declined to do so, holding in effect that he was entitled to rely upon the state trial court’s acceptance of the police officer’s testimony that the statements were substantially correct.
As stated earlier in this opinion, state court rulings on the admissibility of evidence are not subject'to review in federal habeas corpus proceedings where no question is presented concerning a federally significant external event. Here, however, the trial court ruling that the transcribed statements were admissible required that court to adjudicate the facts concerning an external event: the accuracy of the transcriptions. This external event has federal significance if the transcriptions were grossly inaccurate, to the substantial prejudice of appellants. In that event there would, in our opinion, be a denial of that fundamental fairness in the trial proceedings to which appellants were entitled under the Due Process Clause.
It follows that with respect to the contention that the transcribed statements were grossly inaccurate an issue of fact is raised which, if resolved in favor of appellants, would entitle them to relief. Concerning that issue of fact the district judge was required to make an adjudication of his own following a hearing at which evidence could be presented unless, under the circumstances outlined in Brown v. Allen, he chose to rely upon the state court adjudication of that fact. He followed neither course. As indicated in the Jennings, Rogers and Townsend eases, supra, it is therefore necessary to vacate the judgment and remand the case to the district court for further proceedings.
At such further hearing the tape recordings should be called for and listened to, and the trial court proceedings relative to the use of the transcribed statements should also be examined. The fact that parts of the recordings may be unintelligible and were therefore not included in the transcribed statement would not constitute a denial of due process unless it is apparent that substantial prejudice resulted therefrom. But a material variance between intelligible portions of the recordings and the transcribed statements substantially prejudicing appellants would require federal relief, provided that the point was properly raised and preserved at the trial.
The final ground asserted in the applications of Chavez and Bates why relief should be granted has to do with the introduction of certain photographs taken at the scene of the fire. Two of the photographs show the bodies of persons inside the premises. They were used in connection with the testimony of a fireman who was called as an arson expert to testify as to the point where the fire originated. The California Supreme Court held that their probative value outweighed the danger of prejudice to appellants and that the trial court accordingly did not abuse its discretion in permitting their introduction.
The other photographs showed the bodies of the victims after their removal from the premises. They were admitted to prove the degree of burns on certain bodies. Appellants, however, offered to stipulate to the cause of death and the identification of the victims. The California Supreme Court held that in view of this offered stipulation it was an abuse of discretion to overrule the objections to the latter photographs. That court held, however, that in view of the entire record, including the testimony as to the burned condition of several bodies, the error did not result in a miscarriage of justice, citing California Constitution, art. VI, § 4%.
As to the photographs taken at the premises, our discussion of the Hernandez statement is applicable. In view of the state court ruling that the probative value of the photographs outweighed the prejudice resulting from their introduction, no federal question of fact or law is presented. Hence, it was not incumbent upon the district court to call for and examine those photographs or to examine any part of the state court records. Nor did the district court err in holding that introduction of these photographs did not entitle appellants to relief in these habeas corpus proceedings.
With regard to the remaining photographs, the question presented in these habeas corpus proceedings is whether the erroneous introduction was so prejudicial as to deny appellants a fundamentally fair trial. In considering this issue no question of fact is presented in the sense used in Brown v. Allen, since the problem does not concern an event external to the trial or the credibility of narrators of such an event.
It is nevertheless true that appellants cannot adequately present the question of law as to the extent of prejudice unless the photographs are actually examined by the trial court. While it is not denied that they are gruesome and revolting, adjectives are a poor substitute for the visual evidence. Excerpts of the transcribed statements and challenged arguments and remarks could be attached as exhibits to the applications. This was not possible with regard to photographs received as exhibits at the state trial.
Since this cause is to be remanded for further proceedings in connection with the asserted inaccuracy of the transcribed statements, we think the district court should at the same time examine the photographs taken away from the premises as an aid in redetermining whether their introduction has deprived appellants of due process. The photographs will then be in the record of the habeas corpus proceedings in the event such proceedings again come before this court.
While not required by the rule of Brown v. Allen, the district court may find it advisable at the same time to consult any specific part of the trial proceedings to which its attention may be called by the parties as having a bearing upon this question of prejudice. It is to be noted that the California Supreme Court found it desirable to examine the trial proceedings in this connection. While that court in discussing the point made reference to “the entire record,” it took special note of certain testimony bearing upon the point. The district court is under no obligation to review the entire record in dealing with this question.
The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion. Should the orders entered after further proceedings lead to new appeals, they may be heard upon the present record and briefs, appropriately supplemented.
. In this court appellants filed separate opening briefs but joined in a reply brief. Appellee filed one brief dealing with both appeals.
. An examination of the record of the oral argument before the district court indicates that no such request was made.
. Federal courts are bound by the interpretation placed upon the statute of a state by its highest court. State of Minnesota ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 273, 60 S.Ct. 523, 84 L.Ed. 744; Daloia v. Rhay, 9 Cir., 252 F.2d 768, 771; Duffy v. Wells, 9 Cir., 201 F.2d 503, 505.
. As before noted, the California Supreme Court as early as 1947 had construed the word “arson” as used in § 189 as including the crime defined in § 448a. Ex parte Bramble, supra. It is true that Bramble was not a felony-murder case. But in reviewing the sufficiency of indictments charging the crime of “arson,” some of which made reference to fires in storebuildings rather than dwellings, the evolution of the word “arson” as used in California Statutes was reviewed in detail. It was specifically held in this connection that the crime defined in § 448a was appropriately designated in the indictments as “arson.”
. There was no evidence warranting a conviction under § 447a, since the Mecca bar was not a dwelling house or any “kitchen, shop, barn, stable or other outhouse that is a parcel thereof, or belonging to or adjoining thereto * *
. See Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 573, 62 S.Ct. 766, 86 L.Ed. 1031; Fox v. State of Washington, 236 U.S. 273, 277, 35 S.Ct. 383, 59 L.Ed. 573.
. It may be noted that the rule against vagueness is most stringently applied when the state penal statute in question is intertwined with limitations on free expression. See Winters v. People of State of New York, supra. There is no such factor in the instant case.
. The substance of the challenged statements and remarks is stated in the opinion in People v. Chavez, supra, 50 Cal.2d at pages 792-793, 329 P.2d 907.
. On the order of the court appellee had filed returns to the applications in which it was recited that Chavez and Bates were imprisoned and sentenced pursuant to valid judgments and commitments. At the same time the state had lodged with the district court a seventeen-volume transcript of the state trial proceedings consisting of the
Question: What is the total number of respondents in the case that fall into the category "natural persons"? 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.
Harold E. MARASCO et al., Plaintiffs, Appellants, v. COMPO SHOE MACHINERY CORPORATION, Defendant, Appellee.
No. 6139.
United States Court of Appeals First Circuit.
Dec. 26, 1963.
Robert B. Russell, Boston, Mass., with whom Russell, Chittick & Pfund, Boston, Mass., was on the brief, for appellants,
Robert L. Thompson, Boston, Mass., with whom Gerald Gillerman, Dike, Thompson, Bronstein & Mrose and Slater & Goldman, Boston, Mass., were on the brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
HARTIGAN, Circuit Judge.
. . , „ . , , , This is an appeal from a judgment of the United States District Court for the District of Massachusetts, entered April 5, 1963, declaring invalid all claims of U. S. Patent No. 2,962,736 issued to plaintiff-appellant Harold E. Marasco on December 6, 1960 on application filed February 19, 1959 and assigned by him to plaintiff-appellant Marasco Shoe Machinery Company. The four claims of the Patent were found by the lower court to have been anticipated by Italian Patent Ho. 547,479 granted August 30, 1956 to Alessandro Malverdi and by the “Ghini” machine which embodies the Malverdi patent and which was in use in this country in 1958.
Plaintiffs initially brought an action for infringement against defendantappellee Compo Shoe Machinery Corporation, contending that a split pad box used in the production of shoes and manufactored by Compo infringed the patent in issue. Defendant counterclaimed and asked the court to declare the Marasco patent invalid for (1) want of invention, (2) anticipation and (3) inoperativeness, Chief Judge Sweeney, properly deciding a issues before him, held that the Marasco patent for a split pad box constituted an invention over the conventional unitary pad box and that the patent disclosed an operative device. However, on the issue of anticipation he found the Marasco patent was invalid. The court further stated that if, on appeal, its judgment as to invalidity should be reversed, it finds all plaintiffs’ claims infringed by the defendant.
The pertinent background to this case has been set forth by the lower court and we quote it here:
“The patent in suit relates to a two-section pad box for use in making shoes having ‘Louis’ heels by the tabless process. The Louis heel, which is used on ladies’ shoes, is characterized, in part, by having applied to its front, or breast, a thin flap which is an integral part of the sole. Prior to the development of the tabless process, the sole would be applied to the shoe and cemented to the shoe with the use of a conventional pad box before the heel was attached. That part of the sole which becomes the breast of the heel, was split. The upper part, the part closest to the shoe, is known as the ‘tab’ while the other half, the breast of the heel, is the ‘leaf’. The tab was then also cemented to the shoe, the heel was loosely attached over the tab and the leaf, cemented to the heel by hand, in that order.
“In the tabless process (which was developed in Europe about 1955), as the name implies, the tab is eliminated. The heel is attached to shoe first, and sole and heel breast are cemented to the bottom of the shoe and to the heel in one operation. This requires a pad box by which pressure can be exerted in both directions at the same time.
“Marasco, who from 1933 to 1947 had been an employee of the defendant and a protege of its then president, in the early 1950’s started designing and making shoe machinery on his own and in 1953 he formed the Company. In 1957 a shoe manufacturer asked him to devise a pad box which could simultaneously cement the sole to the bottom of the shoe and the leaf to the breast of the heel.
“The conventional pad box is essentially an oval metal frame which holds a rubber diaphragm covered with leather. The lasted shoe is placed on the diaphragm and is held in place by the sole press while the diaphragm is inflated to exert pressure against the surface to be cemented. Marasco’s solution to the problem posed by the manufacturer was simply to cut a conventional pad box in two and bolt the two sections back together again in such a manner as to leave room for insertion of the heel. This two-part pad box employs two diaphragms with separate air intakes, one of which exerts pressure against the sole and breast of the heel while the other exerts a counter pressure against the back of the heel. This two-part pad box became, with a few refinements, the subject of the patent in suit.”
The “Ghini” machine, fashioned after the Malverdi patent, differs from the Marasco machine in that the rearpart pad section is pivoted to a lever-type handle immediately behind the rear pad which, when pulled back, allows the insertion of heels of various sizes and, when manually closed, pushes the rear-part pad section against the heel while lifting both rearpart and forepart sections against the sole press attached to the above frame. The shoe is then held securely in place while even pressure is applied against the heel from both sides to avoid breakage.
Once the handle has been pushed forward to its adjusted limit, the adjustment being dependent upon the thickness of the heel, it is not necessary for the operator to maintain pressure against the handle in order to keep it from popping out. The action of the linkage (the links controlled by the handle slightly passing the position of straight alignment so that they cannot fall back into an unlocked position) and the inflation of the pads maintain the entire device under pressure.
Where all the elements of a claimed invention are found in a previously constructed and used machine which is capable of performing the same functions as the claimed invention, then the latter has been anticipated by the former. Ranco, Inc. v. Gwynn, 128 F.2d 437 (6th Cir. 1942). Here, the leading elements or their equivalents of the Marasco patent are found in the prior patent of Malverdi. The machines constructed from the two patents are both equipped with complimentary forepart and rear-part pad box sections containing separate flexible pads with vertical portions for engaging opposite faces of an interposed heel. Both provide for equal pressure to be asserted against the heel and the pads to be inflated by means of fluid pressure inlets. The Marasco machine holds the pad sections stationary and in place against longitudinal pressure developed by inflation of the pads through the use of bolts connecting together the external lugs of the forepart and rearpart pads. The equivalent is found in Malverdi in the use of a linkage which becomes mechanically rigid during inflation and accomplishes the same function. Dr. Joseph Harrington, Jr., an expert witness whose qualifications were not objected to by the plaintiffs, successfully testified that all the elements or their equivalents contained in the four claims of Marasco were found by him to be contained in the Malverdi machine. The lower court correctly concluded that the only difference between the two patents was the movement of the rear pad box in Malverdi.
Plaintiffs attempt to overcome the obvious similarities in the two machines by claiming functional advantages due to their fixed two part pad box arrangement. But contrary to their assertion, there is no more adjustment involved in the operation of the “Ghini” machine than there is in the operation of the Marasco machine where the bolts must be unfastened and metal spacers added in order to provide for increases in heel sizes with various style changes. In fact, Marasco’s machine appears to be more of a regression in this area rather than an advance over the prior art. Nor do we find the “Ghini” machine to be more complicated than Marasco’s and plaintiffs fear that the operating handle of the “Ghini” machine can pop out in the operator’s face has already been laid to rest.
It is true that the Patent Examiner cited the Malverdi patent in allowing Marasco’s claims, but any presumption of validity to be gathered from that fact has been sufficiently overcome. Also, there is indication that the examiner’s judgment may not have been based on evidence completely accurate. We are referring to a letter sent to the examiner by Marasco’s attorney informing the examiner that the handle of the “Ghini” machine was held in operative position only by manpower. The text of the Italian patent, a translation of which was possessed by the plaintiffs, stated the exact opposite.
A judgment will be entered affirming the judgment of the district court.
Cementing, in fact, involves several steps, but in this context the word is used to denote only the last step, bolding in place the two parts to be united.
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_geniss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Appellee, v. John DOE, Defendant, Appellant.
No. 83-1836.
United States Court of Appeals, First Circuit.
Argued March 6, 1984.
Decided April 11, 1984.
Michael J. Dissette, with whom Thomas E. Eichman Associates, P.C., Haverford, Pa., was on brief, for defendant, appellant.
Joseph F. Savage, Jr., Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.
Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and GIERBOLINI, District Judge.
Of the District of Puerto Rico, sitting by designation.
LEVIN H. CAMPBELL, Chief Judge.
In 1978, John Doe pled guilty to two narcotics offenses, and was sentenced to the custody of the Attorney General for a term of six years pursuant to the Federal Youth Corrections Act (“FYCA”). 18 U.S.C. § 5005 et seq. Doe obtained an unconditional discharge from the United States Parole Commission in November 1982. This early, unconditional discharge had the effect of “automatically set[ting] aside” his two convictions, and the Parole Commission issued to Doe a certificate to that effect, as it was required to do under section 5021(a) of the FYCA. Doe thereafter petitioned the United States District Court for the District of Massachusetts to have all records of his arrest and conviction “expunged.” He now appeals from the district court’s refusal to grant that relief.
By “expunged” Doe indicated below that he meant “destroyed,” although his counsel has indicated to this court that, while destruction would remain preferable, Doe would rather have the arrest and conviction records sealed and segregated from general police files than have no action taken. Thus, the question before us is whether the FYCA requires the destruction of the arrest and conviction records of Doe, with a collateral question whether, assuming such destruction is not required, Doe is entitled to some more limited remedy such as segregation of these records, in addition to the conviction set-aside and the certificate which he already possesses.
I.
Turning first to the arrest record, we think the district court was clearly correct to refuse to order that it be either destroyed or sealed and segregated. Section 5021(a) says nothing about arrest records: it says that the conviction shall be “automatically set aside” and that the Commission shall issue to the offender a certificate to that effect.
To be sure, several district courts, see, e.g., United States v. Doe, 496 F.Supp. 650 (D.R.I.1980), have ordered that an arrest record, in addition to the record of conviction, be segregated from the general criminal files and sealed, to be opened only by law enforcement officials in the course of a bona fide investigation.- But we do not see how this relief can be granted without rewriting the statute, since the statute makes no reference to arrest records. Doe, moreover, does not suggest that there is authority for eradicating the arrest records of persons who are acquitted or not prosecuted: these records remain in the general police files. To destroy or segregate the present arrest records would leave a convicted person with a cleaner slate than an arrestee who was never found guilty.
We understand the argument that the rehabilitative purpose of the FYCA will be better accomplished by destroying or segregating arrest records. However, when confronted with the anomalous situation of giving the guilty a cleaner record than others merely accused, and a statute that nowhere mentions arrest records, we feel compelled to conclude that the statute grants no authority relative to arrest records. Accord Doe v. Webster, 606 F.2d 1226, 1230 (D.C.Cir.1979). It is the province of Congress, not the courts, to amend the statute.
II.
We turn next to the question of destroying or at least segregating the record of conviction. Doe would have it destroyed, arguing that nothing short of destruction can guarantee that the information will not be distributed to the detriment of his rehabilitation; he urges that this is particularly so in the computer age because information can often be retrieved with nothing more than an authorization code and the pressing of a button.
We start with the statutory language, see supra note 1, which, having declared that a discharged youth offender’s conviction be “automatically set aside,” states, by way of implementation, that a “certificate to that effect” be issued to the offender. Beyond that there is no direction that records be destroyed or, indeed, segregated. While destruction would certainly prevent detrimental dissemination, it is an extremely radical remedy which we are reluctant to infer from a silent statute. Thus, we have little difficulty ruling out destruction of Doe’s record of conviction. Not only does society have a legitimate need for maintaining accurate records of conviction to further bona fide criminal investigations, there are positions of trust to which accurate knowledge of a person’s past might be of critical importance. The statute and legislative history nowhere suggest, let alone advocate, the destruction of court files and dockets, with the attendant blotting out of the historical record. Such destruction has an Orwellian flavor which we find unpalatable in 1984 and which we are confident Congress did not enact into law in 1950.
A more palatable argument can be made that Doe is entitled to have the record of his conviction segregated and sealed as was ordered in Doe v. Webster. The question boils down to whether the phrase “set aside” should be construed to mean only elimination of all legal effects flowing from a conviction or, more broadly, to encompass the segregation and sealing of the record. The FYCA was primarily the work of the Judicial Conference and one of its committees, and some of the committee members described the set-aside provision in general terms not inconsistent with segregation and sealing. For example, Chief Judge Laws said in testimony before the Senate Judiciary Committee that “this law blots out their sentence and lets them go without any stigma on their life.” Hearings on S. 1114 and S. 2609 Before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st Sess. 19 (1949). Another Committee member, however, Judge Phillips, gave a*' more specific evaluation of the intended effects. Judge Phillips stated,
The purpose of [the set-aside provision] is to help him get a job and keep him from having to be turned down by a prospective employer because of the fact that he has had a conviction. It does not entirely remove the difficulty but he can say to the prospective employer, “I have gone through this thing. They think I am rehabilitated and have given me this clearance and I think I am rehabilitated and can make good.”
Id. at 70. Judge Phillips thus anticipated that prospective employers would learn of the conviction and that the employee would rely on the certificate to demonstrate that, in the eyes of the law, he had been cleared. It is precisely the type of speech to employers described by Judge Phillips that Doe hopes to render unnecessary: Doe wants the privilege to conceal his prior involvement with the law from prospective employers.
In Doe v. Webster the District of Columbia Circuit recognized that Judge Phillips’s statement could be read as indicating that the Act did not contemplate segregation and sealing of conviction records, but nonetheless construed the statute as requiring segregation and sealing. Judge Phillips’s remarks were discounted as merely addressing problems created by dissemination of information from arrest records, newspaper files, and the like. 606 F.2d at 1236 n. 41.
With all respect, we disagree. Senator Kilgore responded to Judge Phillips’s comments by recounting the story of a man who had three job offers from airlines, but could not be hired until his military discharge was changed from dishonorable to honorable. It seems to us, from the comments of Judge Phillips and Senator Kilgore, that the set-aside provision was not contemplated as a method of concealing the fact of conviction from employers but rather as a way of opening up job opportunities to youth offenders in positions which, for reasons of company policy, government regulation, or otherwise, would not be available for ex-convicts. We see nothing in the history, nor in the statute itself, to indicate that the draftsmen contemplated sealing off the historical record of conviction. Chief Judge Laws’s remarks about removal of “any stigma,” and general remarks of others in the same vein, are best understood as figurative. As Judge Laws well knew, there was no way literally to guarantee the absence of “any stigma,” since knowledge of a prior brush with the law could often be obtained from secondary sources quite apart from official records. If the draftsmen had meant to direct the sealing of records, an innovative and controversial step, one would have expected them to have said so, especially as sealing suggests the need for further statutory directions concerning when, if ever, and by whom, access may be had to the sealed documents. Judge Laws himself, during another part of the hearing, said only that the Act enabled youth offenders to have “their records cleared and all their civil rights restored”. Hearings at 14 (emphasis supplied). Thus, we read the set-aside provision as eliminating any legal disabilities that might flow from a conviction, but not as helping a youth offender conceal his past or lie to prospective employers.
Our view is strengthened by a passage of Justice Marshall’s, written for a unanimous Court, in Tuten v. United States, 460 U.S. 660, —, 103 S.Ct. 1412, 1415, 75 L.Ed.2d 359 (1983):
Congress recognized that a criminal conviction often carries with it numerous civil and social disabilities. For example, a conviction may result in the loss of the rights to vote, to hold a public office, to serve on a jury, and to practice various occupations and professions. As in this case, a conviction may also make an offender subject to increased penalties for subsequent convictions. Like various state expungement statutes, § 5021 enables an eligible youth offender to reenter society and conduct his life free from the disabilities that accompany criminal conviction.
In Tuten, the Court considered whether’a conviction which had been set aside could nonetheless serve as a basis for increased penalties for subsequent convictions, and held that it could not. Significantly, the facts of Tuten, as well as the examples given by Justice Marshall, present cases of a conviction being used to the legal detriment of the youth offender — cases in which a conviction prevented the offender from fully participating in society. Similarly, in Mestre Morera v. United States Immigration and Naturalization Service, 462 F.2d 1030 (1st Cir.1972), this court did not permit a conviction that had been set aside to serve as a basis for deportation of an alien, even though the Immigration and Naturalization Act provides that conviction of certain offenses can serve as a basis for deportation. The theme of Tuten, the examples contained therein, and Mestre Morera, is that the section 5021 directive setting aside the conviction prevents the fact of conviction from being used to the youth offender’s legal detriment. This consequence is, of course, greatly beneficial to the youth offender; no more need be read into the language to make it meaningful.
Whether court records showing a discharged youth offender’s conviction should also be physically segregated and sealed, so as to be shielded from public knowledge, raises a different question which section 5021 does not address. Even in a day when the distinction is becoming blurred, this is a matter for legislative, not judicial, action.
Affirmed.
. Section 5021(a) provides,
Upon the unconditional discharge by the Commission of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and the Commission shall issue to the youth offender a certificate to that effect.
. While Doe emphasized destruction of the records below, the lesser alternative of segregation and sealing was sufficiently raised to make it appropriate for us to deal now with both matters.
. Of the three circuit courts that have had the specific question of expungement before them, two have found that the FYCA does not require it. United States v. Doe, 556 F.2d 391 (6th Cir.1977); United States v. McMains, 540 F.2d 387 (8th Cir.1976). Only the District of Columbia Circuit has adopted such an approach. More recently, in dicta, the Tenth Circuit has indicated that it has already implicitly adopted the District of Columbia Circuit’s approach. Watts v. Hadden, 651 F.2d 1354, 1373 n. 3 (10th Cir.1981). There are numerous district court cases which go both ways.
. Our view that section 5021 does not direct "expungement” of the prior criminal record is strengthened by the Senate’s refusal to endorse that remedy for a youth offender in the Criminal Code Reform Act of 1979. In a prepared statement before the Senate Judiciary Committee, John J. Cleary of the Federal Defenders of San Diego, Inc., had urged the Senate to adopt an expungement requirement, citing the recently decided Doe v. Webster case. Hearings on S. 1722 and S. 1723 Before the Senate Committee on the Judiciary, 96th Cong., 1st Sess.1979. The Committee declined to go along with this recommendation, noting in its report that,
Section 4031 provides a more effective means of protecting both Federal and individual interests than does expungement, a solution to this problem that has sometimes been suggested. Expungement forces an offender to fabricate explanations for the “holes” in an employment record and may be ineffective in that supposedly expunged records would surface from secondary sources.
Report of the Senate Committee on the Judiciary accompanying S. 1722. The Senate bill instead provided, in sections 4031-32, that no person acting under color of federal law could impose a civil disability by reason of a conviction of certain specified offenses and on certain conditions; the bill also made it clear that such convictions could nonetheless be taken into account in certain situations such as admission to the bar of state or federal courts, applications for employment as a law enforcement officer, or federal positions that require security clearances. This Senate bill did not pass the House. The same matter was before the Senate during the first session of the 97th Congress as S. 1630, but did not come to a full floor vote. We understand that the matter is again under consideration, this time in the House, where Congressman Rodino, on November 18, 1983, introduced H.R. 4554 resolving that certain amendments to Title 18 be made, including repeal or modification of the Federal Youth Corrections Act. The matter is currently before the House Subcommittee on Criminal Justice. This subsequent legislative history suggests that Congress does not view section 5021 as an expungement statute. Further, it strongly suggests that many legislators may view "expungement" as a poor idea. Instead, Congress has been struggling to formulate alternative solutions to the problem of how best to mitigate the disabilities accompanying a conviction which has been set aside.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
sc_issue_1
|
22
|
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.
FRANCIS, WARDEN v. FRANKLIN
No. 83-1590.
Argued November 28, 1984
Decided April 29, 1985
BRENNAN, J., delivered the opinion of the Court, in which White, MARSHALL, Blackmun, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, post, p. 327. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and O’Connor, J., joined, post, p. 331.
Susan V. Boleyn, Assistant Attorney General of Georgia, argued the cause for petitioner. With her on the brief were Michael J. Bowers, Attorney General, James P. Googe, Jr., Executive Assistant Attorney General, Marion 0. Gordon, First Assistant Attorney General, and William B. Hill, Jr., Senior Assistant Attorney General.
Ronald J. Tabak argued the cause for respondent. With him on the brief was John Charles Boger.
Justice Brennan
delivered the opinion of the Court.
This case requires that we decide whether certain jury instructions in a criminal prosecution in which intent is an element of the crime charged and the only contested issue at trial satisfy the principles of Sandstrom v. Montana, 442 U. S. 510 (1979). Specifically, we must evaluate jury instructions stating that: (1) “[t]he acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted” and (2) “[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.” App. 8a-9a. The question is whether these instructions, when read in the context of the jury charge as a whole, violate the Fourteenth Amendment’s requirement that the State prove every element of a criminal offense beyond a reasonable doubt. See Sandstrom, supra; In re Winship, 397 U. S. 358, 364 (1970).
1 — 1
Respondent Raymond Lee Franklin, then 21 years old and imprisoned for offenses unrelated to this case, sought to escape custody on January 17, 1979, while he and three other prisoners were receiving dental care at a local dentist’s office. The four prisoners were secured by handcuffs to the same 8-foot length of chain as they sat in the dentist’s waiting room. At some point Franklin was released from the chain, taken into the dentist’s office and given preliminary treatment, and then escorted back to the waiting room. As another prisoner was being released, Franklin, who had not been reshackled, seized a pistol from one of the two officers and managed to escape. He forced the dentist’s assistant to accompany him as a hostage.
In the parking lot Franklin found the dentist’s automobile, the keys to which he had taken before escaping, but was unable to unlock the door. He then fled with the dental assistant after refusing her request to be set free. The two set out across an open clearing and came upon a local resident. Franklin demanded this resident’s car. When the resident responded that he did not own one, Franklin made no effort to harm him but continued with the dental assistant until they came to the home of the victim, one Collie. Franklin pounded on the heavy wooden front door of the home and Collie, a retired 72-year-old carpenter, answered. Franklin was pointing the stolen pistol at the door when Collie arrived. As Franklin demanded his car keys, Collie slammed the door. At this moment Franklin’s gun went off. The bullet traveled through the wooden door and into Collie’s chest killing him. Seconds later the gun fired again. The second bullet traveled upward through the door and into the ceiling of the residence.
Hearing the shots, the victim’s wife entered the front room. In the confusion accompanying the shooting, the dental assistant fled and Franklin did not attempt to stop her. Franklin entered the house, demanded the car keys from the victim’s wife, and added the threat “I might as well kill you.” When she did not provide the keys, however, he made no effort to thwart her escape. Franklin then stepped outside and encountered the victim’s adult daughter. He repeated his demand for car keys but made no effort to stop the daughter when she refused the demand and fled. Failing to obtain a car, Franklin left and remained at large until nightfall.
Shortly after being captured, Franklin made a formal statement to the authorities in which he admitted that he had shot the victim but emphatically denied that he did so voluntarily or intentionally. He claimed that the shots were fired in accidental response to the slamming of the door. He was tried in the Superior Court of Bibb County, Georgia, on charges of malice murder — a capital offense in Georgia— and kidnaping. His sole defense to the malice murder charge was a lack of the requisite intent to kill. To support his version of the events Franklin offered substantial circumstantial evidence tending to show a lack of intent. He claimed that the circumstances surrounding the firing of the gun, particularly the slamming of the door and the trajectory of the second bullet, supported the hypothesis of accident, and that his immediate confession to that effect buttressed the assertion. He also argued that his treatment of every other person encountered during the escape indicated a lack of disposition to use force.
On the dispositive issue of intent, the trial judge instructed the jury as follows:
“A crime is a violation of a statute of this State in which there shall be a union of joint operation of act or omission to act, and intention or criminal negligence. A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking or intention or criminal negligence. The acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted. A person will not be presumed to act with criminal intention but the trier of facts, that is, the Jury, may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted.” App. 8a-9a.
Approximately one hour after the jury had received the charge and retired for deliberation, it returned to the courtroom and requested reinstruction on the element of intent and the definition of accident. Id., at 13a-14a. Upon receiving the requested reinstruction, the jury deliberated 10 more minutes and returned a verdict of guilty. The next day Franklin was sentenced to death for the murder conviction.
Franklin unsuccessfully appealed the conviction and sentence to the Georgia Supreme Court. Franklin v. State, 245 Ga. 141, 263 S. E. 2d 666, cert. denied, 447 U. S. 930 (1980). He then unsuccessfully sought state postconviction relief. See Franklin v. Zant, Habeas Corpus File No. 5025 (Super. Ct. Butts Cty., Ga., Sept. 10, 1981), cert. denied, 456 U. S. 938 (1982). Having exhausted state postconviction remedies, Franklin sought federal habeas corpus relief, pursuant to 28 U. S. C. §2254, in the United States District Court for the Middle District of Georgia on May 14, 1982. That court denied the application without an evidentiary hearing. App. 16a.
Franklin appealed to the United States Court of Appeals for the Eleventh Circuit. The Court of Appeals reversed the District Court and ordered that the writ issue. 720 F. 2d 1206 (1983). The court held that the jury charge on the dis-positive issue of intent could have been interpreted by a reasonable juror as a mandatory presumption that shifted to the defendant a burden of persuasion on the intent element of the offense. For this reason the court held that the jury charge ran afoul of fundamental Fourteenth Amendment due process guarantees as explicated in Sandstrom v. Montana, 442 U. S. 510 (1979). See 720 F. 2d, at 1208-1212. In denying petitioner Francis’ subsequent petition for rehearing, the panel elaborated its earlier holding to make clear that the effect of the presumption at issue had been considered in the context of the jury charge as a whole. See 723 F. 2d 770, 771-772 (1984) (per curiam).
We granted certiorari. 467 U. S. 1225 (1984). We affirm.
I — H I
The Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U. S., at 364. This “bedrock, ‘axiomatic and elementary’ [constitutional] principle,” id., at 363, prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. Sandstrom v. Montana, supra, at 520-524; Patterson v. New York, 432 U. S. 197, 210, 215 (1977); Mullaney v. Wilbur, 421 U. S. 684, 698-701 (1975); see also Morissette v. United States, 342 U. S. 246, 274-275 (1952). The prohibition protects the “fundamental value determination of our society,” given voice in Justice Harlan’s concurrence in Winship, that “it is far worse to convict an innocent man than to let a guilty man go free.” 397 U. S., at 372. See Speiser v. Randall, 357 U. S. 513, 525-526 (1958). The question before the Court in this case is almost identical to that before the Court in Sandstrom: “whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of... state of mind,” 442 U. S., at 521, by creating a mandatory presumption of intent upon proof by the State of other elements of the offense.
The analysis is straightforward. “The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes.” Id., at 514. The court must determine whether the challenged portion of the instruction creates a mandatory presumption, see id., at 520-524, or merely a permissive inference, see Ulster County Court v. Allen, 442 U. S. 140, 157-163 (1979). A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.
Mandatory presumptions must be measured against the standards of Winship as elucidated in Sandstrom. Such presumptions violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense. Patterson v. New York, supra, at 215 (“[A] State must prove every ingredient of an offense beyond a reasonable doubt and... may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense”). See also Sandstrom, supra, at 520-524; Mullaney v. Wilbur, supra, at 698-701. A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved. Such inferences do not necessarily implicate the concerns of Sandstrom. A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. Ulster County Court, supra, at 157-163.
Analysis must focus initially on the specific language challenged, but the inquiry does not end there. If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole. Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption. Cupp v. Naughten, 414 U. S. 141, 147 (1973). This analysis “requires careful attention to the words actually spoken to the jury..., for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.” Sandstrom, supra, at 514.
A
Franklin levels his constitutional attack at the following two sentences in the jury charge: “The acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.” App. 8a-9a. The Georgia Supreme Court has interpreted this language as creating no more than a permissive inference that comports with the constitutional standards of Ulster County Court v. Allen, supra. See Skrine v. State, 244 Ga. 520, 521, 260 S. E. 2d 900, 901 (1979). The question, however, is not what the State Supreme Court declares the meaning of the charge to be, but rather what a reasonable juror could have understood the charge as meaning. Sandstrom, 442 U. S., at 516-517 (state court “is not the final authority on the interpretation which a jury could have given the instruction”). The federal constitutional question is whether a reasonable juror could have understood the two sentences as a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent once the State had proved the predicate acts.
The challenged sentences are cast in the language of command. They instruct the jury that “acts of a person of sound mind and discretion are presumed to be the product of the person’s will,” and that a person “is presumed to intend the natural and probable consequences of his acts,” App. 8a-9a (emphasis added). These words carry precisely the message of the language condemned in Sandstrom, 442 U. S., at 515 (“ ‘The law presumes that a person intends the ordinary consequences of his voluntary acts’”). The jurors “were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it. It is clear that a reasonable juror could easily have viewed such an instruction as mandatory.” Ibid, (emphasis added). The portion of the jury charge challenged in this case directs the jury to presume an essential element of the offense — intent to kill — upon proof of other elements of the offense — the act of slaying another. In this way the instructions “undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” Ulster County Court v. Allen, supra, at 156 (emphasis added). acknowledged that the instructions there challenged could have been reasonably understood as creating an irrebuttable presumption, 442 U. S., at 517, it was not on this basis alone that the instructions were invalidated. Had the jury reasonably understood the instructions as creating a mandatory rebuttable presumption the instructions would have been no less constitutionally infirm. Id., at 520-524.
An irrebuttable or conclusive presumption reheves the State of its burden of persuasion by removing the presumed element from the case entirely if the State proves the predicate facts. A mandatory rebuttable presumption does not remove the presumed element from the case if the State proves the predicate facts, but it nonetheless relieves the State of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding. A mandatory rebuttable presumption is perhaps less onerous from the defendant’s perspective, but it is no less unconstitutional. Our cases make clear that “[s]uch shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.” Patterson v. New York, 432 U. S., at 215. In Mullaney v. Wilbur we explicitly held unconstitutional a mandatory rebuttable presumption that shifted to the defendant a burden of persuasion on the question of intent. 421 U. S., at 698-701. And in Sandstrom we similarly held that instructions that might reasonably have been understood by the jury as creating a mandatory rebuttable presumption were unconstitutional. 442 U. S., at 524.
When combined with the immediately preceding mandatory language, the instruction that the presumptions “may be rebutted” could reasonably be read as telling the jury that it was required to infer intent to kill as the natural and probable consequence of the act of firing the gun unless the defendant persuaded the jury that such an inference was unwarranted. The very statement that the presumption “may be rebutted” could have indicated to a reasonable juror that the defendant bore an affirmative burden of persuasion once the State proved the underlying act giving rise to the presumption. Standing alone, the challenged language undeniably created an unconstitutional burden-shifting presumption with respect to the element of intent.
B
The jury, of course, did not hear only the two challenged sentences. The jury charge taken as a whole might have explained the proper allocation of burdens with sufficient clarity that any ambiguity in the particular language challenged could not have been understood by a reasonable juror as shifting the burden of persuasion. See Cupp v. Naughten, 414 U. S. 141 (1973). The State argues that sufficient clarifying language exists in this case. In particular, the State relies on an earlier portion of the charge instructing the jurors that the defendant was presumed innocent and that the State was required to prove every element of the offense beyond a reasonable doubt. The State also points to the sentence immediately following the challenged portion of the charge, which reads: “[a] person will not be presumed to act with criminal intention....” App. 9a.
As we explained in Sandstrom, general instructions on the State’s burden of persuasion and the defendant’s presumption of innocence are not “rhetorically inconsistent with a conclusive or burden-shifting presumption,” because “[t]he jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied.” 442 U. S., at 518-519, n. 7. In light of the instructions on intent given in this case, a reasonable juror could thus have thought that, although intent must be proved beyond a reasonable doubt, proof of the firing of the gun and its ordinary consequences constituted proof of intent beyond a reasonable doubt unless the defendant persuaded the jury otherwise. Cf. Mullaney v. Wilbur, 421 U. S., at 703, n. 31. These general instructions as to the prosecution’s burden and the defendant’s presumption of innocence do not dissipate the error in the challenged portion of the instructions.
Nor does the more specific instruction following the challenged sentences — “A person will not be presumed to act with criminal intention but the trier of facts, that is, the Jury, may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted,” App. 9a — provide a sufficient corrective. It may well be that this “criminal intention” instruction was not directed to the element of intent at all, but to another element of the Georgia crime of malice murder. The statutory definition of capital murder in Georgia requires malice aforethought. Ga. Code Ann. § 16-5-1(1984) (formerly Ga. Code Ann. § 26-1101(a)(1978)). Under state law malice aforethought comprises two elements: intent to kill and the absence of provocation or justification. See Patterson v. State, 239 Ga. 409, 416-417, 238 S. E. 2d 2, 8 (1977); Lamb v. Jernigan, 683 F. 2d 1332, 1337 (CA11 1982) (interpreting Ga. Code Ann. § 16-5-1), cert. denied, 460 U. S. 1024 (1983). At another point in the charge in this case, the trial court, consistently with this understanding of Georgia law, instructed the jury that malice is “the unlawful, deliberate intention to kill a human being without justification or mitigation or excuse.” App. 10a.
The statement “criminal intention may not be presumed” may well have been intended to instruct the jurors that they were not permitted to presume the absence of provocation or justification but that they could infer this conclusion from circumstantial evidence. Whatever the court’s motivation in giving the instruction, the jury could certainly have understood it this way. A reasonable juror trying to make sense of the juxtaposition of an instruction that “a person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts,” id., at 8a-9a, and an instruction that “[a] person will not be presumed to act with criminal intention,” id., at 9a, may well have thought that the instructions related to different elements of the crime and were therefore not contradictory — that he could presume intent to kill but not the absence of justification or provocation.
Even if a reasonable juror could have understood the prohibition of presuming “criminal intention” as applying to the element of intent, that instruction did no more than contradict the instruction in the immediately preceding sentence. A reasonable juror could easily have resolved the contradiction in the instruction by choosing to abide by the mandatory presumption and ignore the prohibition of presumption. Nothing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict. Had the instruction “[a] person... is presumed to intend the natural and probable consequences of his acts,” App. 8a-9a, been followed by the instruction “this means that a person will not be presumed to act with criminal intention but the jury may find criminal intention upon consideration of all circumstances connected with the act for which the accused is prosecuted,” a somewhat stronger argument might be made that a reasonable juror could not have understood the challenged language as shifting the burden of persuasion to the defendant. Cf. Sandstrom, 442 U. S., at 517 (“[GJiven the lack of qualifying instructions as to the legal effect of the presumption, we cannot discount the possibility that the jury may have interpreted the instruction” in an unconstitutional manner). See also Corn v. Zant, 708 F. 2d 549, 559 (CA11 1983), cert. denied, 467 U. S. 1220 (1984). Whether or not such explanatory language might have been sufficient, however, no such language is present in this jury charge. If a juror thought the “criminal intention” instruction pertained to the element of intent, the juror was left in a quandary as to whether to follow that instruction or the immediately preceding one it contradicted.
Because a reasonable juror could have understood the challenged portions of the jury instruction in this case as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the crucial element of intent, and because the charge read as a whole does not explain or cure the error, we hold that the jury charge does not comport with the requirements of the Due Process Clause.
I — I HH
Petitioner argues that even if the jury charge fails under Sandstrom this Court should overturn the Court of Appeals because the constitutional infirmity in the charge was harmless error on this record. This Court has not resolved whether an erroneous charge that shifts a burden of persuasion to the defendant on an essential element of an offense can ever be harmless. See Connecticut v. Johnson, 460 U. S. 73 (1983). We need not resolve the question in this case. The Court of Appeals conducted a careful harmless-error inquiry and concluded that the Sandstrom error at trial could not be deemed harmless. 720 F. 2d, at 1212. The court noted:
“[Franklin’s] only defense was that he did not have the requisite intent to kill. The facts did not overwhelmingly preclude that defense. The coincidence of the first shot with the slamming of the door, the second shot's failure to hit anyone, or take a path on which it would have hit anyone, and the lack of injury to anyone else all supported the lack of intent defense. A presumption that Franklin intended to kill completely eliminated his defense of 'no intent.’ Because intent was plainly at issue in this case, and was not overwhelmingly proved by the evidence... we cannot find the error to be harmless.” Ibid.
Even under the harmless-error standard proposed by the dissenting Justices in Connecticut v. Johnson, swpra, at 97, n. 5 (evidence “so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption”) (Powell, J., joined by Burger, C. J., and Rehnquist and O’Connor, JJ., dissenting), this analysis by the Court of Appeals is surely correct. The jury’s request for reinstruction on the elements of malice and accident, App. 13a-14a, lends further substance to the court’s conclusion that the evidence of intent was far from overwhelming in this case. We therefore affirm the Court of Appeals on the harmless-error question as well.
IV
Sandstrom v. Montana made clear that the Due Process Clause of the Fourteenth Amendment prohibits the State from making use of jury instructions that have the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of intent in a criminal prosecution. 442 U. S., at 521. Today we reaffirm the rule of Sandstrom and the wellspring due process principle from which it was drawn. The Court of Appeals faithfully and correctly applied this rule, and the court’s judgment is therefore
Affirmed.
The malice murder statute at the time in question provided:
“A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.... Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.” Ga. Code Ann. § 26-1101(a) (1978).
A mandatory presumption may be either conclusive or rebuttable. A conclusive presumption removes the presumed element from the ease once the State has proved the predicate facts giving rise to the presumption. A rebuttable presumption does not remove the presumed element from the case but nevertheless requires the jury to find the presumed element unless the defendant persuades the jury that such a finding is unwarranted. See Sandstrom v. Montana, 442 U. S. 510, 517-518 (1979).
We are not required to decide in this case whether a mandatory presumption that shifts only a burden of production to the defendant is consistent with the Due Process Clause, and we express no opinion on that question.
Intent to kill is an element of the offense of malice murder in Georgia. See Patterson v. State, 239 Ga. 409, 416-417, 238 S. E. 2d 2, 8 (1977).
Justice Rehnquist’s suggestion in dissent that our holding with respect to the constitutionality of mandatory rebuttable presumptions “extends” prior law, post, at 332, is simply inaccurate. In Sandstrom v. Montana our holding rested on equally valid alternative rationales: “[T]he question before this Court is whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner’s state of mind. We conclude that under either of the two possible interpretations of the instruction set out above, precisely that effect would result, and that the instruction therefore represents constitutional error.” 442 U. S., at 521 (emphasis added). In any event, the principle that mandatory rebuttable presumptions violate due process had been definitively established prior to Sandstrom. In Mullaney v. Wilbur, it was a mandatory rebuttable presumption that we held unconstitutional. 421 U. S., at 698-701. As we explained in Patterson v. New York:
“Mullaney surely held that a State... may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense.... Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.” 432 U. S., at 215.
An irrebuttable presumption, of course, does not shift any burden to the defendant; it eliminates an element from the case if the State proves the requisite predicate facts. Thus the Court in Patterson could only have been referring to a mandatory rebuttable presumption when it stated that “such shifting of the burden of persuasion... is impermissible.” Ibid. (emphasis added).
These portions of the instructions read:
“I charge you that before the State is entitled to a verdict of conviction of this defendant at your hands... the burden is upon the State of proving the defendant’s guilt as charged... beyond a reasonable doubt.” App. 4a.
“Now... the defendant enters upon his trial with the presumption of innocence in his favor and this presumption... remains with him throughout the trial, unless it is overcome by evidence sufficiently strong to satisfy you of his guilt... beyond a reasonable doubt.” Id., at 5a.
Because the jurors heard the divergent intent instructions before they heard the instructions about absence of justification, Justice Rehnquist’s dissent argues that no reasonable juror could have understood the criminal intent instruction as referring to the absence of justification. The dissent reproves the Court for reading the instructions “as a ‘looking-glass charge’ which, when held to a mirror, reads more clearly in the opposite direction.” Post, at 340. A reasonable juror, however, would have sought to make sense of the conflicting intent instructions not only at the initial moment of hearing them but also later in the jury room after having heard the entire charge. One would expect most of the juror’s reflection about the meaning of the instructions to occur during this subsequent deliberative stage of the process. Under these circumstances, it is certainly reasonable to expect a juror to attempt to make sense of a confusing earlier portion of the instruction by reference to a later portion of the instruction. The dissent obviously accepts this proposition because much of the language the dissent marshals to argue that the jury would not have misunderstood the intent instruction appears several paragraphs after the conflicting sentences about intent. Indeed much of this purportedly clarifying language appears after the portion of the charge concerning the element of absence of justification. See post, at 336 (Rehnquist, J., dissenting), quoting App. 10a.
It is puzzling that the dissent thinks it “defies belief” to suggest that a reasonable juror would have related the contradictory intent instructions to the later instructions about the element of malice. Post, at 339. As the portion of the charge quoted in the dissent makes clear, the later malice instructions specifically spoke of intent: “Malice... is the unlawful, deliberate intention to kill a human being without justification or mitigation or excuse, which intention must exist at the time of the killing.” App. 10a. See post, at 336 (Rehnquist, J., dissenting). A reasonable juror might well have sought to understand this language by reference to the earlier instruction referring to criminal intent.
Finally, the dissent’s representation of the language in this part of the charge as a clarifying “express statemen[t]... that there was no burden on the defendant to disprove malice,” post, at 340, is misleading. The relevant portion of the charge reads: “it is not required of the accused to prove an absence of malice, if the evidence for the State shows facts which may excuse or justify the homicide.” App. 10a. This language is most naturally read as implying that if the State’s evidence does not show mitigating facts the defendant does have the burden to prove absence of malice. Thus, if anything, this portion of the charge exacerbates the potential for an unconstitutional shifting of the burden to the defendant.
Justice Rehnquist’s dissent would hold a jury instruction invalid only when “it must at least be likely” that a reasonable juror would have understood the charge unconstitutionally to shift a burden of persuasion. Post, at 342. Apparently this “at least likely” test would not be met even when there exists a reasonable possibility that a juror would have understood the instructions unconstitutionally, so long as the instructions admitted of a “more ‘reasonable’” constitutional interpretation. Post, at 340-341. Apart from suggesting that application of the “at least likely” standard would lead to the opposite result in the present case, the dissent leaves its proposed alternative distressingly undefined. Even when faced with clearly contradictory instructions respecting allocation of the burden of persuasion on a crucial element of an offense, a reviewing court apparently would be required to intuit, based on its sense of the “tone” of the jury instructions as a whole, see ibid., whether a reasonable juror was more likely to have reached a constitutional understanding of the instructions than an unconstitutional understanding of the instructions.
This proposed alternative standard provides no sound basis for appellate review of jury instructions. Its m
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer:
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sc_casedisposition
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR v. RASMUSSEN et al.
No. 77-1465.
Argued November 28, 1978
Decided February 21, 1979
Rehnquist, J., delivered the opinion of the Court, in which all other Members joined except Powell, J., who took no part in the consideration or decision of the cases.
Kent L. Jones argued pro hac vice for petitioner in No. 77-1465. On the brief were Solicitor General McCree, Louis F. Claiborne, Laurie M. Streeter, and Joshua T. Gillelan II. Albert H. Sennett argued the cause for petitioners in No. 77-1491. With him on the brief was Frank B. Hugg.
James Buckley Ostmann argued the cause for respondents in both cases. With him on the brief was John R. Coyle.
Together with No. 77-1491, Geo Control, Inc., et al., v. Rasmussen et al., also on certiorari to the same court.
David Bonderman filed a brief for the American Insurance Assn, et al. as amici curiae urging reversal in both cases.
Mr. Justice Rehnquist
delivered the opinion of the Court.
In May 1973 William Rasmussen was employed as a hydrologist by Geo Control, Inc., which was under contract with the United States to perform work in South Vietnam. Rasmussen was fatally injured during the course of his employment when the vehicle in which he was riding was blown up by a land mine. His employment was within the coverage of the Defense Base Act, 42 U. S. C. § 1651 et seq., which incorporates the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq. (Act). It is undisputed that Rasmussen’s surviving widow and son, respondents here, are entitled to death benefits under § 9 of the Act, 33 U. S. C. § 909; the issue dividing the parties and the Courts of Appeals is whether death benefits payable under the Act are subject to the maximum limits expressly placed on disability payments by § 6 (b) (1). The Act’s language and legislative history persuade us that they are not.
I
Prior to passage of the Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972, 86 Stat. 1251, both disability and death benefits payable under the Act were subject to the same minimum and maximum limitations. Former § 6 (b) limited disability benefits to no more than $70 per week and no less than $18 per week. Death benefits were limited under § 9 (b) to 66%% of the deceased’s “average weekly wages,” which were “considered to have been not more than $105 nor less than $27_” 33 U. S. C. § 909 (e) (1970 ed.). Accordingly, weekly death benefits, like disability benefits, could not exceed $70 nor be less than $18. The $70 maximum on death and disability benefits, established in 1961, gradually lost real value as inflation exacted its annual toll, and in 1972 Congress moved to give covered workers added protection.
The basic formula for determining compensation for permanent total disability — 66%% of the employee’s average weekly wages — was left unchanged by the 1972 Amendments. The Amendments, however, replaced the $70 maximum limitation on disability benefits with an entirely new limitation scheme tied to the “applicable national average weekly wage.” New § 6 (b)(1) provides in pertinent part:
“[C]ompensation for disability shall not exceed the following percentages of the applicable national average weekly wage as determined by the Secretary...
“(A) 125 per centum or $167, whichever is greater, during the period ending September 30, 1973.
“(B) 150 per centum during the period beginning October 1, 1973, and ending September 30, 1974.
“(C) 175 per centum during the period beginning October 1, 1974, and ending September 30, 1975.
“(D) 200 per centum beginning October 1, 1975.” 33 U. S. C. §906 (b)(1).
The “applicable national average weekly wage” is determined annually by the Secretary of Labor. 33 U. S. C. § 906 (b) (3). The Senate Committee on Labor and Public Welfare estimated that approximately 90% of the disabled workers covered under the amended Act would receive benefits equal to a full 66%% of their average weekly wages. S. Rep. No. 92-1125, p. 5 (1972), Legislative History of the Longshoremen’s and Harbor Workers’ Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Labor and Public Welfare by the Subcommittee on Labor), p. 67 (1972) (hereinafter Leg. Hist.). The four-step phase-in of the section’s maximum limitation from 125% to 200% of the applicable national average weekly wage was designed to ease the impact on covered employers of the increase in compensation payments, which Congress expected to at least double for most covered workers. Ibid.
Section 9 (b) was amended in 1972 to increase death benefits to surviving spouses from 35% to 50% of the deceased’s average weekly wages. Death benefits to surviving children were increased from 15% to 16%% of the deceased’s average weekly wages. Total weekly death benefits payable to survivors, however, are still limited to 66%% of the deceased’s average weekly wage. 33 U. S. C. §909 (b). The 1972 Amendments deleted the specific dollar minimum and maximum limitations on average weekly wages and substituted in their place a provision dealing only with a minimum limitation, which was tied to the applicable national average weekly wage. Section 9 (e) now provides:
“In computing death benefits the average weekly wages of the deceased shall be considered to have been not less than the applicable national average weekly wage as prescribed in section 6 (b) but the total weekly benefits shall not exceed the average weekly wages of the deceased.” 33 U. S. C. § 909 (e).
Pursuant to § 9, respondents claimed combined death benefits of $532 per week, two-thirds of Rasmussen’s average weekly wages of $798. Geo Control, its insurance carrier, and the Director of the Department of Labor’s Office of Workers’ Compensation Programs (OWCP), petitioners here, contended that the limitations on disability payments contained in § 6 (b)(1) of the Act — initially $167 per week and now $396.50 per week — apply to death benefits in the same manner as to benefits for permanent total disability. The dispute was submitted to an Administrative Law Judge, who sustained respondents’ position. Petitioners appealed the adverse ruling to the Benefits Review Board, which affirmed. The legislative history of the 1972 Amendments convinced the Board that “elimination of the maximum benefit provision from Section 9 (e) of the Act... was done consciously and intentionally” and that “failure to substitute a new maximum was... a deliberate action.” App. to Pet. for Cert. in No. 77-1465, pp. 22A-23A. Petitioners appealed the Board’s order directly to the United States Court of Appeals for the Ninth Circuit. 33 U. S. C. § 921 (c). The Court of Appeals affirmed, largely adopting the reasoning of the Review Board. We granted certiorari to resolve a conflict among the Courts of Appeals on this issue, 436 U. S. 955 (1978), and we now affirm the judgment of the Court of Appeals for the Ninth Circuit.
IT
Petitioners’ case for incorporating the maximum limitations on disability benefits of §6 (b)(1) into the death benefit provisions of § 9 rests entirely on § 6 (d), which in pertinent part provides that “determinations” made under the section “shall apply to employees or survivors... receiving compensation for permanent total disability or death benefits....” 33 U. S. C. §906 (d). This subsection’s references to “survivors” and “death benefits” demonstrate, according to petitioners, that Congress intended death benefits to be limited by the compensation máximums contained in § 6 (b) (1). Anticipating the obvious question — why did not Congress, either expressly or by reference to §6 (b)(1), put the ceiling on death benefits back into the section of the Act dealing with death benefits — the Director of OWCP concedes that § 9 (e) was “[u]ndeniably, the most obvious place to stipulate a maximum on death benefits,” but suggests that Congress merely "overlooked” this fact when amending the death benefits provisions. Brief for Petitioner in No. 77-1465, pp. 28-29.
One need only state petitioners’ argument to recognize its flaws. They suggest, on the one hand, that Congress forgot to stipulate a maximum on death benefits when it amended § 9 (e), although that section had contained a fixed ceiling on death benefits since the Act’s initial passage in 1927. On the other hand, petitioners urge that Congress remembered the question of death benefit máximums while considering § 6, and rather than incorporate a death benefits ceiling in the section of the Act dealing with death benefits, Congress consciously decided to limit death benefits in the section dealing with disability compensation.
The logic of petitioners’ position is further weakened by the structure of § 6 itself, for if Congress had chosen that section as the vehicle for limiting death benefits, it would have been a simple matter to add the words “and death” after the word “disability” in the opening sentence of § 6 (b)(1). Nor does petitioners’ contention deal with the fact that Congress had the collective presence of mind to include a minimum limitation on death benefits in § 9 (e). The Director maintains that the path petitioners urge us to follow, while admittedly “tortuous,” ultimately leads to “what may be assumed to have been the congressional intent to avoid disparate treatment” of disability and death beneficiaries. Brief for Petitioner in No 77-1465, pp. 11, 32. We agree that petitioners’ suggested interpretation of the Act is tortuous, and believe that it is refuted by the plain language and legislative history of the pertinent provisions of the 1972 Amendments.
A
The language of § 9 (e) is unambiguous: the average weekly wages on which death benefits are calculated can be no less than the applicable national average weekly wage. In amending § 9 (e), Congress replaced specific minimum and maximum limitations on average weekly wages, and hence on death benefits, with a minimum limitation governed by the applicable national average weekly wage. That the omission of a maximum limitation on death benefits was inadvertent is disproved by the legislative history of the 1972 Amendments.
In 1971 two pairs of identical bills were introduced in the 92d Congress and considered by the Senate Committee on Labor and Public Welfare and the House Committee on Education and Labor. S. 525 and H. R. 3505 would have retained fixed dollar máximums for both disability and death benefits. In contrast, S. 2318 and H. R. 12006, which ultimately' formed the nucleus of the 1972 Amendments, proposed the elimination of fixed dollar ceilings on both disability and death benefits.
The difference in treatment of benefit máximums between the competing bills could hardly have gone unnoticed. Senator Eagleton opened hearings on S. 2318 and S. 525 before the Subcommittee on Labor of the Committee on Labor and Public Welfare, summarizing the intent of the competing bills as follows:
“S. 2318, which I cosponsored with Senator Williams, would eliminate the maximum payment limitations....
“The second bill, S. 525, introduced by the late Senator Prouty at the request of the administration, would also increase the benefits although retaining a maximum limitation.” Hearings on S. 2318 et ai. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 2 (1972) (hereinafter Hearings).
Supporters of both measures vigorously debated the virtues and vices of fixed ceilings on disability and death benefit payments. The provisions of S. 2318 and H. R. 12006 as reported by their respective Committees were identical and were ultimately enacted as the Longshoremen’s and Harbor Workers’ Act Amendments of 1972. The Committee Re-' ports accompanying the House and Senate bills clearly reflect the Committees’ understanding that the minimum and maximum limitations on death benefits of former § 9 (e) were being eliminated and that only a minimum benefit provision tied to the applicable national average weekly wage was being substituted in their place. In light of this evidence of congressional intent, we find it impossible to conclude that the absence of a fixed maximum limitation on death benefits in § 9 (e) was the result of inadvertence.
B
The benefit máximums contained in § 6 (b)(1) are plainly restricted to “compensation for disability.” Petitioners argue, however, that Congress made §6(b)(l)’s disability benefit máximums applicable to death benefits through § 6 (d). Close examination of the wording used by Congress in the latter provision persuades us otherwise.
Section 6 (d) provides:
“Determinations under this subsection with respect to a period shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period.”
Since there are no “determinations” made under § 6 (d), its reference to “this subsection” is plainly in error. The parties agree, and we conclude, that the words “this subsection” should read “this section.” The question thus becomes what “determinations... with respect to a period” did Congress have in mind when it enacted § 6 (d).
The operative words of the subsection, “determinations” and “period,” appear together in § 6 in only one other place. Paragraph (3) of § 6 (b) provides:
“As soon as practicable after June 30 of each year, and in any event prior to October 1 of such year, the Secretary shall determine the national average weekly wage for the three consecutive calendar quarters ending June 30. Such determination shall be the applicable national average wage for the period beginning with October 1 of that year and ending with September 30 of the next year. The initial determination under this paragraph shall be made as soon as practicable after [October 27, 1972].” 33 U. S. C. § 906 (b)(3). (Emphasis added.)
Elsewhere in § 6, both minimum and maximum limits on total disability benefits are tied to the “applicable national average weekly wage as determined by the Secretary under paragraph (3)....” 33 U. S. C. §906 (b)(1); see §906 (b)(2). Congress’ careful use of the word “determination” and its verb form strongly suggests that it intended the term to refer only to the Secretary of Labor’s annual determination under § 6 (b) (3) of the national average weekly wage, not to the mathematical computation of disability benefit máximums contemplated under § 6 (b)(1). This view of § 6 (d) is confirmed by the provision’s legislative history. The Senate Committee on Labor and Public Welfare, in its section-by-section analysis of S. 2318, stated:
“Subsection (d) states that determinations of national average weekly wage made with respect to a period apply to employees or survivors currently receiving compensation for permanent total disability or death benefits, as well as those who begin receiving compensation for the first time during the period.” S. Rep. No. 92-1125, p. 18 (1972), Leg. Hist. 80.
Because determinations of the national average weekly wage govern minimum death ‘benefits as well as both minimum and maximum total disability benefits, § 6 (d)’s reference to “survivors... receiving... death benefits” is not surprising. Congress intended increases in the national average weekly wage to be reflected by corresponding increases in minimum death benefits and both minimum and maximum total disability benefits. See S. Rep. No. 92-1125, supra, at 5-6, Leg. Hist. 67-68 We conclude that § 6 (d) does not render the maximum limitations contained in § 6 (b) (1) applicable to death benefits.
c
Finally, petitioners urge that, the Act’s language and legislative history notwithstanding, Congress could not have intended to place a “premium on death.” They cannot and do not dispute, however, that Congress did precisely that in situations in which the employee’s average weekly wages are less than the applicable national average weekly wage and he is survived by a spouse and one or more children. Congress may well have retained maximum benefit limitations in §6 (b)(1) to discourage feigned disability, a consideration wholly inapplicable to death benefits. Nor is it inconceivable that the financial needs of the disabled worker’s family could increase upon his death. The typical disabled worker, though no longer physically able to ply his trade, might be able to contribute to the family’s livelihood by assuming a variety of domestic responsibilities, thus releasing his spouse into the work force. The disabled worker’s death would under such circumstances rob the family of an economic asset.
Petitioners entreat us to interpret the 1972 Amendments “to avoid an absurd and discriminatory consequence.” Even if we agreed with petitioners’ characterization of Congress’ failure to put a ceiling on death benefits, we would be required to decline petitioners’ invitation, for our examination of the language and legislative history of the 1972 Amendments convinces us that the omission was intentional. Congress has put down its pen, and we can neither rewrite Congress’ words nor call it back “to cancel half a Line.” Our task is to interpret what Congress has said; so doing, we conclude that death benefits payable under the Act are not subject to the maximum limitations contained in §6 (b)(1). The judgment of the Court of Appeals is
Affirmed.
Mr. Justice Powell took no part in the consideration or decision of these cases.
Rasmussen’s surviving son is entitled to benefits until his 18th birthday, or, if he qualifies under the Act as a student, until his 23d birthday. See 33 U. S. C. §§ 902 (14), (18), and 909 (b).
Compare 567 F. 2d 1385 (case below), with Director, Office of Workers’ Comp. v. O’Keefe, 545 F. 2d 337 (CA3 1976), and Director, Office of Workers’ Comp. v. Boughman, 178 U. S. App. D. C. 132, 545 F. 2d 210 (1976).
Under former § 9 (b) a surviving widow was entitled to 35% of her deceased husband’s average wages and an additional 15% of the deceased’s wages for each surviving child, subject to a limit of 66%% of the deceased’s wages. Thus, a widow without children, although nominally entitled by former § 9 (b) to 35% of her deceased husband’s average weekly wages was actually entitled only to 35% of $105. A widow with three or more children, however, was entitled to the maximum aggregate percentage of weekly wages (66%), which would result in an award of $70 in weekly death benefits. The 1972 Amendments increased the percentage shares of surviving widows and children to 50 and 16%, respectively, although the maximum aggregate percentage limitation of 66% was retained.
According to 1972 congressional reports, the average weekly wage for private, nonagricultural employees was $135 a week, while longshoremen averaged over $200 per week in some ports. H. R. Rep. No. 92-1441, p. 1 (1972), Legislative History of the Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Labor and Public Welfare by the Subcommittee on Labor), p. 207 (1972) (hereinafter Leg. Hist.); S. Rep. No. 92-1125, p. 4 (1972), Leg. Hist. 66. The $70 limitation on death and disability benefits precluded most employees and their survivors from receiving 66%% of the employee’s average weekly wages, and in some cases the $70 maximum constituted as little as 30% of the employee’s average weekly wages. S. Rep. No. 92-1125, p. 5, Leg. Hist. 67.
The national average weekly wages determined by the Secretary of Labor since 1972, along with corresponding maximum benefit levels under §6 (b)(1), are as follows:
National Average Section 6(b)(1)
Effective Date Weekly Wage Maximum
11/26/72 $131.80 $167.00
10/1/73 140.36 210.54
10/1/74 149.14 261.00
10/1/75 159.19 318.38
10/1/76 171.27 342.54
10/1/77 183.61 367.22
10/1/78* 198.25 396.50
*Based on preliminary figures.
The dispute was initially litigated before the Deputy Commissioner for the Fifteenth Compensation District of the Department of Labor’s Office of Workers’ Compensation Programs (OWCP), who ruled that §6 (b)(1)’s limitations on compensation apply to death benefits as weE aa to benefits for permanent total disability. On appeal the Benefits Review Board vacated the decision on the ground that the Deputy Commissioner lacked authority to resolve the issue.
See n. 2, supra.
The original Act provided that compensation benefits for disability were not to exceed $25 per week. Act of Mar. 4, 1927, § 6 (b), 44 Stat. 1426. The maximum compensation benefit for death was 66%% of the employee’s average weekly wages, considered to be not more than $37.50 per week. § 9 (c), 44 Stat. 1430. Thus, the maximum weekly benefit for both disability and death was $25. Subsequent amendments raised benefit levels, but did not disturb the relationship between disability and death compensation máximums. See Act of June 24, 1948, ch. 623, §§ 1, 3, 62 Stat. 602; Act of July 26, 1956, ch. 735, §§ 1, 4, 70 Stat. 654, 655; Act of July 14, 1961, Pub. L. 87-87, §§ 1, 2, 75 Stat. 203.
S. 525, 92d Cong., 1st Sess., §§ 4 (a), 8 (e) (1971), Leg. Hist. 395, 399; H. R. 3505, 92d Cong., 1st Sess., §§ 4 (a), 8 (c) (1971), Leg. Hist. 417, 421.
Section 4 (a) of both the House and Senate bills provided in pertinent part: “Section 6 (b) of such Act is amended to read as follows:
“ ‘Compensation for disability shall not exceed $119 a week and compensation for total disability shall not be less than $35 per week....’”
Section 8 (e) of both bills would have amended § 9 (e) of the Act to read: “In computing death benefits the average weekly wages of the deceased shall be considered to have been not more than $178.50, nor less than $52.50, but the total weekly compensation shall not exceed the weekly wages of the deceased.”
S. 2318, 92d Cong., 2d Sess., §§ 4 (a), 10 (b) (1971), Leg. Hist. 6, 10; H. R. 12006, 92d Cong., 1st Sess., §§4 (a), 10 (b) (1971), Leg. Hist. 146, 149-150.
As originally introduced, § 10 (b) of both, the House and Senate bills would have amended §9 (e) of the Act to read: “In computing death benefits the average weekly wages of the deceased shall be considered to have been not less than $80 but the total weekly compensation shall not exceed the weekly wages of the deceased.” Original § 4 (a) of both bills contained a similar provision for disability benefits: “Section 6 (b) of such Act is amended to read as follows: '(b) Compensation for total disability shall not be less than $54 per week: Provided, however, That, if the employee’s average weekly wages as computed under section 10 are less than $54 per week, he shall receive as compensation for total disability his average weekly wages.’ ”
Witnesses representing workers covered by the Act generally supported removal of fixed ceilings on compensation payments. Witness Thomas W. Gleason, President of the International Longshoremen’s Association, APL-CIO, testified:
“We strongly support the enactment of S. 2318 as the most effective proposal to accomplish the long overdue increase in the benefit levels of injured longshoremen. First and foremost, that bill would eliminate the artificial and totally unrealistic restrictions on benefit amounts. This would enable compensation awards, for the first time, to reflect realistically the loss of earnings suffered by injured employees....
“The administration bill, S. 525, would also raise benefit levels. The proposed increase in maximum weekly compensation from $70.00 to $119.00 represents a substantial improvement, but one that is already obsolete....
“We urge that the Congress not adopt a benefit level grounded on built-in obsolescence. Far more equitable is the approach manifested in S. 2318.” Hearings 156-158.
See id., at 63 (testimony of Howard McGuigan, Legislative Representative, AFL-CIO), 133 (testimony of Patrick Tobin, Washington Representative, International Longshoremen’s and Warehousemen’s Union), 700 (testimony of Frank E. Fitzsimmons, General President, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America).
Not surprisingly, representatives of employers subject to the Act’s provisions were generally opposed to elimination of benefit máximums. Edward D. Vickery, representing the National Maritime Compensation Committee, opposed S. 2318, stating: “[W]e respectfully submit that it is not advisable to remove the monetary maximum benefits payable per week under the Longshoremen’s Act and therefore recommend that the provisions of Section 8 of S. 525 be retained in this regard.” Hearings 334.
Witness Ralph Hartman, an assistant manager in the Safety and Workmen’s Compensation Division of Bethlehem Steel Corporation, proposed a compromise position:
“[W]e endorse the basic concepts of S. 2318, and propose innovations or variations which we consider urgent and demanding, yet equitable to all concerned.
“Of major impact and importance to the industry are the proposals to increase weekly benefits. One such proposal would amend section 6 (b) of the act by increasing the minimum weekly rate from $18 to $54 and eliminating the present maximum weekly benefit rate of $70.
“We agreed that the minimum rate should be increased. However, this proposal leaves us with a weekly benefit rate of two-thirds of the employee’s average weekly earnings without limitation.
“We recognize the intent of the proposal, and we suggest for your consideration that the maximum weekly benefit be predicated upon the average weekly wage in the shipbuilding and ship repair industry, that it be 66 and two-thirds percent of the injured employee’s average weekly wage computed under section 10, subject to a maximum of 150 percent of the average weekly wage of the shipbuilding and ship repair industry.” Id., at 171-172.
It is inconceivable that Congress, with this debate on benefit máximums raging all about it, unwittingly omitted a death benefit ceiling in amended § 9 (b).
S. 2318 was passed by the Senate on September 14, 1972. 118 Cong. Rec. 30670, 30674. H. R. 12006 was passed by the House on October 14, 1972, 118 Cong. Rec. 36376, 36389, and returned to the Senate, which concurred in the identical House version. 118 Cong. Rec. 36265, 36274 (1972).
Precisely this understanding is expressed in the House Report which accompanied H. R. 12006:
“Subsection (d) of this section amends section 9 (e) of the Act, eliminating the dollar minimum and maximum set out under persent [sic] law for the average weekly wages of the deceased to be used in computing death benefits. The minimum substituted by this amendment is the applicable national average weekly wage as prescribed in section 6 (b) of the Act, except that the total weekly benefits may not exceed the actual average weekly wages of the deceased.” H. R. Rep. No. 92-1441, p. 19 (1972), Leg. Hist. 225.
Both the House and Senate Reports, in discussing the major provisions of the respective bills, deal expressly with the subject of minimum and maximum death benefits, noting that such benefits are "subject to a maximum of 66% percent of the [deceased’s] average weekly wages” and to “[a] minimum... tied to the applicable national average weekly wage-” S. Rep. No. 92-1125, p. 6 (1972), Leg. Hist. 68; H. R. Rep. No. 92-1441, p. 4 (1972), Leg. Hist. 210.
Section 6 (d)’s reference to “this subsection” apparently refers to subsection (a) of § 5 of the Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972, 86 Stat. 1252, and hence to §§ 6 (b)(d) of the Act. See Director, Office of Workers’ Comp. Programs v. O’Keefe, 545 F. 2d, at 344; Director, Office of Workers’ Comp. Programs v. Boughman, 178 App. D. C., at 137, 545 F. 2d, at 215.
Petitioners place heavy reliance on the following passage from the Senate Report accompanying S. 2318:
“To the extent that employees receiving compensation for total perma-nment [sic] disability or survivors receiving death benefits receive less than the compensation they would receive if there were no phase in, their compensation is to be increased as the ceiling moves to 200 percent.” S. Rep. No. 92-1125, p. 5 (1972), Leg. Hist. 67.
This language does indeed suggest that the gradual annual increase in maximum benefits from 125% to 200% of the national average provided in § 6 (b) (1) applies to survivors as well as to disabled employees. The quoted statement, however, is followed immediately in the Senate Report by a conflicting statement. In apparent reference to the combined effect of § 6 (b) (3) and § 6 (d), the Senate Report states: “The bill also requires an annual redetermination by the Secretary which will allow any increase in the national average weekly wage to be reflected by an appropriate increase in compensation payable under the Act.” S. Rep. No. 92-1125, supra, at 5-6, Leg. Hist. 67-68; see n. 17, infra. This latter statement is consistent with our reading of § 6, and to the extent the earlier statement is an indication of legislative intent, we agree with the Court of Appeals that “it is overwhelmingly outweighed by the contrary purport of the legislative history as a whole.” 567 E. 2d, at 1388 n. 5.
Petitioners maintain that interpreting § 6 (d) to refer to determinations of national average weekly wage would render the provision duplica-tive of § 10 (f). Added by the 1972 Amendments, § 10 (f) provides:
“Effective October 1 of each year, the compensation or death benefits payable for permanent total disability or death arising out of injuries sustained after [October 27,1972], shall be increased by a percentage equal to the percentage (if any) by which the applicable national weekly wage for the period beginning on such October 1, as determined under section 6 (b), exceeds the applicable national average weekly wage, as so determined, for the period beginning with the preceding October 1.”
This provision makes clear that, in cases of permanent total disability and death, benefits are adjusted upward each year that the national average wage rises. Although § 10 (f) gives the incremental increase in compensation payments to all beneficiaries in death and permanent total disability cases, including those unaffected by a statutory minimum or maximum, the incidental effect is partially to lift any ceiling and, to the same extent, any floor applicable to such benefits.
Although § 6 (d) and § 10 (f) overlap substantially, they are not entirely duplicative. The latter section applies only when benefits of a particular type are received in two consecutive years. If an employee receiving benefits for total and permanent disability in year 1 died in year 2, his survivors must look to § 6 (d) to determine whether the “applicable” national average weekly wage for purposes of computing minimum death benefits under § 9 (e) is the national average wage determined by the Secretary for year 1, when the employee’s injury occurred, or that determined for year 2, when the employee died. For example, suppose that a covered worker was permanently and totally disabled in year 1. Suppose further that at the time of the injury his average weekly wages were $90 and that the national average weekly wage was $100. The worker would be entitled under § 8 (a) to disability benefits of $60 per week (66%% of $90), significantly more than the minimum payment of $50 per week (50% of $100) provided under § 6 (b) (2). If the worker died during the following year, leaving a widow and one or more children, his survivors would be entitled to death benefits amounting to 66%% of the national average weekly wage. ‘Assuming the national average weekly wage had increased 5% in year 2, the question would arise whether the worker’s survivors were entitled to death benefits calculated on the higher national average weekly wage. Reference to § 6 (d) reveals that the worker’s widow and children, having been “newly awarded” death benefits during year 2, would be entitled to calculate their benefits on the higher national average weekly wage.
Further, the legislative history of the 1972 Amendments indicates that Congress was fully aware of the similarities between §§ 6 (d) and 10 (f). In its discussion of “maximum and minimum benefit amounts,” the Senate Report accompanying S. 2318 states:
“The bill also requires an annual redetermination by the Secretary which will allow any increase in the national average weekly wage to be reflected by an appropriate increase in compensation payable under the Act. A similar provision for upgrading benefits in future years for cases of permanent total disability or death benefits is contained in section 10 of the Act (Section 11 of the bill).” S. Rep. No. 92-1125, pp. 5-6 (1972), Leg. Hist. 67-68 (emphasis added).
A totally disabled employee is entitled to 66%% of his average weekly wages, 33 U. S. C. § 908 (a), or 50% of the national average weekly wage, 33 U. S. C. §906 (b)(2), whichever is greater. If the disabled employee dies, however, his surviving spouse and children are entitled to no less than 66%% of the national average weekly wage or 100% of the deceased employee’s average weekly wages, whichever is lesser. 33 U. S. C. § 909 (e). Thus, the death of a totally disabled employee whose average weekly wages were greater than half the national average weekly wage but less than the national average weekly wage would result in an increase in benefits payable under the Act. The Court of Appeals demonstrated this fact with the following examples:
“If we assume the Secretary has determined that the applicable national average weekly wage is $100, the compensation for an employee whose actual average weekly wage was $60 would be determined as follows:
“1. Total Disability Benefits
“Under [33 U. S. C.] § 908 (a) the
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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sc_decisiontype
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
PENNSYLVANIA v. MIMMS
No. 76-1830.
Decided December 5, 1977
Per Curiam.
Petitioner Commonwealth seeks review of a judgment of the Supreme Court of Pennsylvania reversing respondent’s conviction for carrying a concealed deadly weapon and a firearm without a license. That court reversed the conviction because it held that respondent’s “revolver was seized in a manner which violated the Fourth Amendment to the Constitution of the United States.” 471 Pa. 546, 548, 370 A. 2d 1157, 1158 (1977). Because we disagree with this conclusion, we grant the Commonwealth’s petition for certiorari and reverse the judgment of the Supreme Court of Pennsylvania.
The facts are not in dispute. While on routine patrol, two Philadelphia police officers observed respondent Harry Mimms driving an automobile with an expired license plate. The officers stopped the vehicle for the purpose of issuing a traffic summons. One of the officers approached and asked respondent to step out of the car and produce his owner’s card and operator’s license. Respondent alighted, whereupon the officer noticed a large bulge under respondent’s sports jacket. Fearing that the bulge might be a weapon, the officer frisked respondent and discovered in his waistband a .38-caliber revolver loaded with five rounds of ammunition. The other occupant of the car was carrying a .32-caliber revolver. Respondent was immediately arrested and subsequently indicted for carrying a concealed deadly weapon and for unlawfully carrying a firearm without a license. His motion to suppress the revolver was denied; and, after a trial at which the revolver was introduced into evidence, respondent was convicted on both counts.
As previously indicated, the Supreme Court of Pennsylvania reversed respondent’s conviction, however, holding that the revolver should have been suppressed because it was seized contrary to the guarantees contained in the Fourth and Fourteenth Amendments to the United States Constitution. The Pennsylvania court did not doubt that the officers acted reasonably in stopping the car. It was also willing to assume, arguendo, that the limited search for weapons was proper once the officer observed the bulge under respondent’s coat. But the court nonetheless thought the search constitutionally infirm because the officer's order to respondent to get out of the car was an impermissible “seizure.” This was so because the officer could not point to “objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety.” Since this unconstitutional intrusion led directly to observance of the bulge and to the subsequent “pat down,” the revolver was the fruit of an unconstitutional search, and, in the view of the Supreme Court of Pennsylvania, should have been suppressed.
We do not agree with this conclusion. The touchstone of our analysis under the Fourth Amendment is always “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Terry v. Ohio, 392 U. S. 1, 19 (1968). Reasonableness, of course, depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975).
In this case, unlike Terry v. Ohio, there is no question about the propriety of the initial restrictions on respondent’s freedom of movement. Respondent was driving an automobile with expired license tags in violation of the Pennsylvania Motor Vehicle Code. Deferring for a moment the legality of the “frisk” once the bulge had been observed, we need presently deal only with the narrow question of whether the order to get out of the car, issued after the driver was lawfully detained, was reasonable and thus permissible under the Fourth Amendment. This inquiry must therefore focus not on the intrusion resulting from the request to stop the vehicle or from the later “pat down,” but on the incremental intrusion resulting from the request to get out of the car once the vehicle was lawfully stopped.
Placing the question in this narrowed frame, we look first to that side of the balance which bears the officer’s interest in taking the action that he did. The State freely concedes the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior. It was apparently his practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation. The State argues that this practice was adopted as a precautionary measure to afford a degree of protection to the officer and that it may be justified on that ground. Establishing a face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements; this, in turn, reduces the likelihood that the officer will be the victim of an assault.
We think it too plain for argument that the State’s proffered justification — the safety of the officer — is both legitimate and weighty. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry v. Ohio, supra, at 23. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. “According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings — A Tactical Evaluation, 54 J. Crim. L. C. & P. S. 93 (1963).” Adams v. Williams, 407 U. S. 143, 148 n. 3 (1972). We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, 414 U. S. 218, 234 (1973). Indeed, it appears “that a significant percentage of murders of police officers occurs when the officers are making traffic stops.” Id., at 234 n. 5.
The hazard of accidental injury from passing traffic to an officer standing on the driver’s side of the vehicle may also be appreciable in some situations. Rather than conversing while standing exposed to moving traffic, the officer prudently may prefer to ask the driver of the vehicle to step out of the car and off onto the shoulder of the road where the inquiry may be pursued with greater safety to both.
Against this important interest we are asked to weigh the intrusion into the driver’s personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver’s seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a “serious intrusion upon the sanctity of the person,” but it hardly rises to the level of a “ ‘petty indignity.’ ” Terry v. Ohio, supra, at 17. What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.
There remains the second question of the propriety of the search once the bulge in the jacket was observed. We have as little doubt on this point as on the first; the answer is controlled by Terry v. Ohio, supra. In that case we thought the officer justified in conducting a limited search for weapons once he had reasonably concluded that the person whom he had legitimately stopped might be armed and presently dangerous. Under the standard enunciated in that case— whether “the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate” — there is little question the officer was justified. The bulge in the jacket permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of “reasonable caution” would likely have conducted the “pat down.”
Respondent’s motion to proceed in forma pauperis is granted. The petition for writ of certiorari is granted, the judgment of the Supreme Court of Pennsylvania is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Three judges dissented on the federal constitutional issue.
471 Pa., at 552, 370 A. 2d, at 1160.
We note that in his brief in opposition to a grant of certiorari respondent contends that this case is moot because he has already completed the 3-year maximum of the 1%- to 3-year sentence imposed. The case has, he argues, terminated against him for all purposes and for all time regardless of this Court’s disposition of the matter. See St. Pierre v. United States, 319 U. S. 41 (1943).
But cases such as Sibron v. New York, 392 U. S. 40, 53-57 (1968); Street v. New York, 394 U. S. 576 (1969); Carafas v. LaVallee, 391 U. S. 234 (1968); and Ginsberg v. New York, 390 U. S. 629 (1968), bear witness to the fact that this Court has long since departed from the rule announced in St. Pierre, supra. These more recent cases have held that the possibility of a criminal defendant’s suffering “collateral legal consequences” from a sentence already served permits him to have his claims reviewed here on the merits. If the prospect of the State’s visiting such collateral consequences on a criminal defendant who has served his sentence is a sufficient burden as to enable him to seek reversal of a decision affirming his conviction, the prospect of the State’s inability to impose such a burden following a reversal of the conviction of a criminal defendant in its own courts must likewise be sufficient to enable the State to obtain review of its claims on the merits here. In any future state criminal proceedings against respondent, this conviction may be relevant to setting bail and length of sentence, and to the availability of probation. 18 Pa. Cons. Stat. Ann. §§ 1321, 1322, 1331, 1332 (Purdon Supp. 1977); Pa. Rule Crim. Proc. 4004. In view of the fact that respondent, having fully served his state sentence, is presently incarcerated in the federal penitentiary at Lewisburg, Pa., we cannot say that such considerations are unduly speculative even if a determination of mootness depended on a case-by-case analysis.
Operating an improperly licensed motor vehicle was at the time of the incident covered by 1959 Pa. Laws, No. 32, which was found in Pa. Stat. Ann., Tit. 75, §511 (a) (Purdon 1971), and has been repealed by 1976 Pa. Laws, No. 81, § 7, effective July 1, 1977. This offense now appears to be covered by 75 Pa. Cons. Stat. Ann. §§ 1301, 1302 (Purdon 1977).
The State does not, and need not, go so far as to suggest that an officer may frisk the occupants of any car stopped for a traffic violation. Rather, it only argues that it is permissible to order the driver out of the car. In this particular case, argues the State, once the driver alighted, the officer had independent reason to suspect criminal activity and present danger and it was upon this basis, and not the mere fact that respondent had committed a traffic violation, that he conducted the search.
Contrary to the suggestion in the dissent of our Brother Stevens, post, at 122, we do not hold today that “whenever an officer has an occasion to speak with the driver of a vehicle, he may also order the driver out of the car.” We hold only that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.
392 U. S., at 21-22.
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
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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".
Roger Lee McQUEEN, Appellant, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellee.
No. 76-1926.
United States Court of Appeals, Eighth Circuit.
Submitted June 14, 1977.
Decided Aug. 23, 1977.
Rehearing Denied Sept. 26, 1977.
Michael A. Gross, Clayton, Mo., argued and on brief for appellant.
Neil MacFarlane, Asst. Atty. Gen. (argued), and John D. Ashcroft, Atty. Gen., Jefferson .City, Mo., on brief, for appellee.
Before BRIGHT, STEPHENSON and HENLEY, Circuit Judges.
STEPHENSON, Circuit Judge.
In McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974) (McQueen I), we held that appellant McQueen, a state prisoner, had been denied the effective assistance of counsel constitutionally required because of the failure of his counsel to make an adequate investigation prior to appellant’s trial for murder. We remanded for a determination of whether that failure prejudiced appellant’s defense to the extent that his conviction must be vacated. The district court, after conducting an evidentiary hearing, ultimately found that “the ineffective assistance of counsel rendered petitioner, did not prejudice his right to a fair trial,” and ordered the dismissal of McQueen’s application for a writ. We conclude that the district court’s finding is clearly erroneous and reverse.
After conducting the evidentiary hearing, the district court initially remanded this case to the Supreme Court of Missouri with the suggestion that the original Missouri trial judge, then retired, be appointed to serve as a special master to review the entire state and federal record and make findings with respect to whether defendant was denied a fair trial, these findings to be reviewable on appeal if unacceptable to either party.
McQueen thereafter made application for writ of mandamus to compel the district court to render a final determination of his pending application for a writ of habeas corpus. This court denied the petition for writ of mandamus holding it was within the discretion of the district court to send this case back to the state court for an initial determination of whether lack of investigation was harmless. United States ex rel. McQueen v. Wangelin, 527 F.2d 579 (8th Cir. 1975) (McQueen II). Subsequently, the district court on January 14, 1976, entered the following order:
It is now the directive of this Court that the State of Missouri commence appropriate proceedings to ascertain whether or not McQueen’s trial counsel was ineffective, and whether or not said ineffectiveness, if same existed, denied petitioner a fair trial. If the State of Missouri fails to make this inquiry and come to conclusion concerning this allegation, within six months from the date of this Order, then the judgment and conviction of petitioner is vacated.
Respondent-appellee Swenson appealed from the above order. This court' then ordered the district court to make factual findings based upon the evidence presented at the January 20, 1975, hearing and enter an appropriate order.
The district court on August 16, 1976, filed the memorandum which is the subject of the instant appeal. In substance the court found that appellant had failed to establish the existence of admissible evidence which his counsel could have uncovered, which would have proven helpful to the defendant in his original trial. More specifically, that:
The shoe horn allegedly used by the deceased in his purported attack on McQueen, turned out to be a flimsy, metallic, combination shoe horn and hair brush, which “weapon” was hardly needed by an alleged assailant some sixty-five pounds heavier than his target. It had no “carving knife handle” as alleged by petitioner in his state court trial. [2] The police report introduced at the hearing presented nothing that this Court found startlingly novel or helpful to defense. [3] The coroner’s report, introduced by petitioner, impressed this Court as being actually detrimental to petitioner’s cause. It revealed that the death of George Francis, the homicide victim of McQueen, was caused by three thirty-eight caliber gunshot wounds, any one of which could have been fatal.
McQueen v. Swenson, 425 F.Supp. 373, 374 (E.D.Mo.1976) (emphasis added).
In addition the district court discussed the reputation of McQueen’s trial counsel as a skilled criminal practitioner; counsel’s admitted failure to interview state witnesses because he was fearful of being accused of “tampering;” the somewhat common practice for skilled practitioners not to take state criminal witnesses’ depositions; trial tactics in waiting for the prosecutor to put on his case and not alerting him as to the defense; and finally, the strength of the state’s case against McQueen and the weakness of McQueen’s defense. Following the foregoing discussion the district court “makes an express finding that the ineffective assistance of counsel rendered petitioner, did not prejudice his right to a fair trial, and more certainly, did not reach constitutional inadequacy.” McQueen v. Swenson, supra, 425 F.Supp. at 376.
In McQueen I we stated, “In the circumstances of this case, we hold the lack of pretrial investigation amounts to ineffective assistance of counsel.” 498 F.2d at 213. That issue was closed in this case. We held, however, that a second determination must be made as to whether the failure to investigate prejudiced McQueen’s defense. See discussion, 498 F.2d 218-20. We remanded to the district court
for a hearing on the issue of whether or not prejudice flowed from the failure of counsel to make a reasonable investigation of this case. The petitioner, as we have already stated, must shoulder the initial burden of showing either prejudice or, alternatively, changed circumstances which would justify placing on the state the burden of proving the absence of prejudice.
498 F.2d at 220. We further stated:
We ought not to intervene in the criminal process unless and until it can be shown that the alleged error itself prejudiced the' petitioner in obtaining a fair trial. But this is not to say that, on remand, petitioner must prove his innocence even by so much as a preponderance of the evidence; nor should we be understood to suggest that the Court may trespass upon what properly would have been the jury’s province of weighing the truth or falsity of this evidence at the original trial. What we are saying is that, here, the petitioner must shoulder an initial burden of showing the existence of admissible evidence which could have been uncovered by reasonable investigation and which would have proved helpful to the defendant either on cross-examination or in his case-in-ehief at the original trial. Once this showing is made, a new trial is warranted unless the court is able to declare a belief that the omission of such evidence was harmless beyond a reasonable doubt. Cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
498 F.2d at 220.
We are satisfied from our review of the testimony and exhibits produced at the hearing conducted by the district court pursuant to our remand that its findings that errors of counsel were not prejudicial are clearly erroneous. Rice v. Wolff, 513 F.2d 1280, 1293 (8th Cir. 1975), reversed on other grounds sub nom., Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Parnell v. Wainwright, 464 F.2d 735, 737 (5th Cir. 1972); Shultz v. State of Nebraska, 353 F.2d 81, 82 (8th Cir. 1965).
A brief review of the specific items mentioned by the district court will demonstrate the existence of admissible evidence which appellant’s counsel could have uncovered by reasonable investigation and which would have proved helpful to McQueen either on cross-examination or in his case-in-chief.
Shoehorn
McQueen testified at trial that he shot the deceased, George Francis, as the latter made an assault on him with a long metal shoehorn approximately two feet in overall length. Several police officers who had investigated the scene at the deceased’s apartment testified in rebuttal that in searching the area they found no such shoehorn. The importance of this rebuttal testimony was recognized by us in McQueen I, 498 F.2d at 210. See also McQueen v. State of Missouri, 475 S.W.2d 111, 120-24 (Mo. 1971) (Seiler, J., dissenting). Appellee concedes the shoehorn would have been discovered by a reasonable investigation by appellant’s defense counsel, but contends it would not have been helpful because (1) the shoehorn produced did not fit the description given by appellant and thus was inadmissible; (2) even if admitted, it was cumulative of appellant’s version and would not have affected the jury’s decision; and (3) most importantly, the evidence indicates the shoehorn was hanging on the door at all times.
The shoehorn produced is substantially identical, except for the “carving knife handle,” to the description given by appellant at his trial. It is about two feet long, has a shoehorn on one end, and is constructed primarily of metal. Although not a lethal weapon in itself, in the hands of the deceased it could have been a formidable weapon and thus is corroborative of appellant’s , trial testimony. We cannot agree that the omission of this evidence was harmless beyond a reasonable doubt.
Police report
The district court found nothing in the police report “startlingly novel or helpful to the defense.” McQueen v. Swenson, supra, 425 F.Supp. at 374. We cannot agree.
The police report indicates that Donald Cole, a homosexual partner of the deceased for two years who spent the night preceding the murder with deceased at the apartment, left the next morning. He related that he could not say whether another white visitor who arrived during the night remained in the apartment when Cole left. He stated that he and deceased had not been drinking that night but could not account for the nearly empty bottle of vodka in the bedroom. As a frequent visitor he undoubtedly knew about the shoehorn and possibly the identity or at least a description of the visitor. He was also subject to impeachment because of conflicts with his trial testimony.
More importantly, the police report indicated that Conrad Zoeller originally told the police that his car had been stolen approximately two months prior to the homicide, at which time some of his shirts were missing. Zoeller’s explanation at trial was that some of his shirts were taken from his sister’s (Mary Zoeller’s) car. The state’s theory at trial was that appellant stole the murder weapon from Mary Zoeller’s car and used Zoeller’s shirts as corroboration. One shirt was in appellant’s possession and the other in the apartment. See McQueen I, 498 F.2d at 209. Appellant had told his counsel that the dentist, Conrad Zoeller, and deceased were acquainted. If Zoeller frequénted deceased’s apartment it may well have been that he left the weapon there. See McQueen v. State, supra, 475 S.W.2d at 122. It can be argued that this is speculation but attorney Brown after being informed by appellant of Zoeller’s acquaintanceship with deceased, McQueen I, 498 F.2d at 211, could have obtained information that would have made further inquiry fruitful. Instead at trial when Zoeller denied acquaintanceship with deceased that ended attorney Brown’s inquiry in this regard.
The police report further revealed that Christian Massey, who was deceased’s stepbrother and discovered the body at approximately 8:00 p. m. on October 23, originally stated to the police that he had seen deceased that morning about 8:00 a. m. in his mother’s apartment (just below deceased’s apartment). Massey later stated that he had not seen deceased at all that day before discovering the body. He gave no explanation for the change in his statement. Donald Cole and Christian Massey were not available for the remand hearing.
Coroner’s report
That part of the coroner’s report which included the pathologist’s examination indicating three bullet wounds were found in the body contained nothing new or helpful.
We recognize, as did the district court, that as a matter of strategy it was perfectly proper for appellant’s counsel to concentrate on the state’s lack of eyewitnesses and its doubtful ability to make a prima facie case. We suggest that some investigation revealing the existence of the shoehorn and the questionable circumstances with respect to Dr. Zoeller’s shirts being in the apartment and the possibility of the homicide gun being there would have lessened the strength of the state’s case-in-chief. In any event, attorney Brown testified that he knew there was a possibility that it would be necessary for appellant to testify and rely on his claimed self-defense. Some investigation, particularly with respect to the matters revealed to counsel by appellant, would have revealed the existence of admissible evidence which could have been uncovered by reasonable investigation and which would have proved helpful to appellant either on cross-examination or in his case-in-chief. The hearing on our remand confirms this. We cannot say that the omission of such evidence was harmless beyond a reasonable doubt. Appellant’s proof of prejudice should not be defeated by the district court’s low opinion of the credibility of relevant and admissible testimony. This is for the jury. Thomas v. Wyrick, supra, 535 F.2d 407, 417.
We therefore reverse and remand this case and direct the district court to issue the writ of habeas corpus discharging appellant, subject to the state, if it wishes to do so, to try him on the indictment here involved within 90 days of the issuance of our mandate.
Reversed and remanded.
. Appellant was found guilty by a jury of second-degree murder and sentenced to life imprisonment. The history of appellant’s appeals in state proceedings is set out in McQueen I, 498 F.2d at 208 n.1.
. This procedure for review was previously suggested by a dissenting judge of the Supreme Court of Missouri in McQueen v. State, 475 S.W.2d 111, 119-20 (Mo.1971) (Donnelly, J., dissenting).
. We note that this issue was foreclosed by McQueen I, 498 F.2d 207, which held that McQueen had been denied the effective assistance of counsel.
. We note that since our holding in McQueen I, 498 F.2d 207, the Ninth Circuit has joined the Sixth Circuit in holding that once ineffective assistance of counsel has been established harmless error tests do not apply. Cooper v. Fitzharris, 551 F.2d 1162, 1164-65 (9th Cir. 1977); Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974). We have continued to require a showing of prejudice where counsel’s failure to perform an essential duty has been established. United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976); Thomas v. Wyrick, 535 F.2d 407, 414 (8th Cir. 1976).
. The parties stipulated that the victim’s aunt, if called would testify that her residence was the same as that of the deceased, and that the day before the shooting the shoehorn was hanging on the back of a door in the victim’s apartment, and that when she returned a few days later the shoehorn again was on the back of the door. It was also argued that the deceased’s mother would testify in a similar fashion. Appellant’s trial attorney, Hale Brown, testified that appellant gave him the name of a woman to call about the shoehorn and that he had called but the person was reluctant to talk and “that was the end of it.”
. Appellee raises a question as to whether the various police reports attached to the coroner’s report up to a few days before trial were available before trial. The district court made no finding with respect to the issue of availability. The evidence indicates that several police reports were .included in the coroner’s file, each ..police report showing on the face of it that the coroner was on the distribution list. The coroner’s file was available for inspection by appellant’s counsel but he made no attempt to examine it before trial.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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songer_appel2_7_3
|
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.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the 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".
David Leslie GIBSON, Ronald O. Hope, and Angelo Rios, Plaintiffs-Appellants, v. AMERICAN BROADCASTING COMPANIES, INC., Robert Benson, Vice President, News & Sports, ABC Radio Network: Peter Flannery, General Manager of News Programming, ABC News Network; Richard Dressel, Domestic Assignments Manager, ABC Radio News Network; and Jeffrey Sprung, News Director, FM Radio News Network of American Broadcasting, Inc., Defendants-Appellees.
No. 22, Docket 89-7286.
United States Court of Appeals, Second Circuit.
Argued Oct. 10, 1989.
Decided Dec. 22, 1989.
Warner J. Bennia, New York City, for plaintiffs-appellants.
Philip M. Berkowitz, New York City (Rhonda J. Moll, Epstein Becker & Green, P.C., New York City, of counsel), for defendants-appellees.
Before FEINBERG and CARDAMONE, Circuit Judges, and METZNER, District Judge.
Hon. Charles M. Metzner, United States District Court for the Southern District of New York, sitting by designation.
CARDAMONE, Circuit Judge:
On this appeal from judgments summarily dismissing appellants’ complaints alleging discrimination in employment, the employer questions whether proof comparing appellants’ performance with that of other employees is admissible. The old adage that comparisons are odious, because so often they are not pertinent — making one thing a standard for another which has no relation to it — is no less true today. Nevertheless, as a form of proof in an employment discrimination case, we think relevant comparisons are properly considered.
BACKGROUND
The parties to this appeal are David L. Gibson, Ronald 0. Hope and Angelo Rios (plaintiffs or appellants) who brought suit against their employer American Broadcasting Companies, Inc. and four of its supervisory officials — defendants Robert Benson, Peter Flannery, Richard Dressel and Jeffrey Sprung (collectively ABC or ABC Radio News), for claimed employment discrimination. The instant action was instituted by plaintiffs in the United States District Court for the Southern District of New York (Daronco, J.) under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII), the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the New York Human Rights Law, N.Y. Exec. Law § 290 et seq. (McKinney 1982 & Supp.1989). Plaintiffs assert that defendants discriminated against them in the terms and conditions of their employment on the basis of their race, color, or national origin.
Gibson, a correspondent for ABC Radio News since 1976, asserts that he was consistently denied regularly scheduled weekends off because he is black. Hope, a newswriter with ABC Radio News also since 1976, alleges that his assignment to editorial duties was unfairly delayed because he is black. Rios, a former desk assistant with ABC Radio News from 1976 to 1985, claims he was wrongfully denied a newswriter job because he is Hispanic.
On May 4, 1988 Judge Richard Daronco granted summary judgment in favor of ABC on the claims of Gibson and Hope, Gibson v. American Broadcasting Companies, Inc., 687 F.Supp. 786 (S.D.N.Y.1988), but denied ABC’s motion for summary judgment in Rios’ case. Due to the unfortunate death of Judge Daronco, the matter was reassigned to Southern District Judge Robert W. Sweet who, on November 14, 1988, denied Gibson’s and Hope’s motions for reconsideration of Judge Daron-co’s decision. Gibson v. American Broadcasting Companies, Inc., 700 F.Supp. 707 (S.D.N.Y.1988). Judge Sweet conducted a non-jury trial with respect to Rios’ claims that began on February 3, 1989. After a four-day trial, the district judge rendered a decision from the bench on February 9, 1989 dismissing Rios’ complaint. Gibson, Hope and Rios subsequently filed this joint appeal.
DISCUSSION
I Law Applicable to Gibson’s and Hope’s Claims
Before discussing the merits of Gibson’s and Hope’s claims of discrimination, it is necessary to set forth the legal principles applicable to establishing a cause of action for employment discrimination; and, next, because plaintiffs’ complaints were dismissed on motions for summary judgment, to examine the proper use of summary judgment in this sort of case.
A. Cause of Action for Employment Discrimination
To prove that ABC discriminated in its employment decisions affecting them, Gibson and Hope first were required to prove a prima facie case. A prima facie case is established when a plaintiff shows that: (1) he or she is a member of a statutorily protected class; (2) he or she is qualified for the position applied for; (3) the employer denied plaintiff the job sought; and (4) after such denial the employer continued to seek applicants for the position with qualifications similar to plaintiff’s. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If plaintiff succeeds in establishing a prima facie case the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for turning plaintiff down. Assuming defendant gives a valid reason, plaintiff then must show by a preponderance of the evidence that defendant’s articulated reason was pretextual. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).
In the instant case both plaintiffs are black and as such are members of a racial minority statutorily protected. Gibson applied to be scheduled weekends off; Hope applied for acting editor assignments. They assert in their complaints that they were qualified for these employment opportunities which were denied them. Subsequent to plaintiffs’ requests, other ABC Radio News employees with similar qualifications obtained the assignments Gibson and Hope unsuccessfully sought.
Judge Daronco ruled that even assuming that Gibson and Hope had proved a prima facie case of disparate treatment, they had presented no evidence that ABC’s reasons for its employment decisions were pretextual. See 687 F.Supp. at 793. Because of the procedural posture of this case — dismissal on a summary judgment motion — we review the allegations de novo drawing all inferences in appellants’ favor because they are the nonmoving parties. See Burtnieks v. City of New York, 716 F.2d 982, 985-86 (2d Cir.1983). In reviewing whether plaintiffs initially stated a prima facie case, we assume that the allegations contained in the plaintiff’s respective complaints regarding their qualifications for the positions they sought are true. Thus, we are persuaded that these appellants made out a prima facie case.
It also seems clear that ABC Radio News articulated a legitimate nondiscriminatory reason for management’s decision in each case, namely, that neither Gibson or Hope were qualified for the positions they sought. After the employer has given a legitimate reason, for purposes of determining whether ABC’s reasons were pretextual, it may not be assumed — as it was in determining whether a prima facie case was stated — that appellants’ allegations that they were qualified are true. At this stage of the proceedings plaintiffs are held to the burden of proof ultimately needed to prevail at trial, and must submit proof on the issue of pretext by a preponderance of the evidence. There is an exception to this rule on burden of proof. If ABC Radio News’ decision is found to be a mixture of legitimate and illegitimate motives, that is to say, one with mixed motives, the employer then has the burden of proof by a preponderance of the evidence that it would have made the same employment decision, absent the discriminatory motive. See Price Waterhouse v. Hop kins, — U.S. -, 109 S.Ct. 1775, 1788-89, 1792, 104 L.Ed.2d 268 (1989). Here that proof would require ABC to show that race made no difference in ABC’s decisions. On remand, the district court should determine whether with respect to pretext this is a mixed motive case.
B. Summary Judgment
We turn next to the use of summary judgment generally, and in a Title VII case particularly. Summary judgment is a procedural device that may be used effectively to bring meritless litigation quickly to an end. Its application depends upon a showing “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). It is not the trial court’s function to weigh the evidence and resolve the factual issues, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); rather, its role on such a motion is to determine as a threshold matter whether there are genuine unresolved issues of material fact to be tried. Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir.1975). The definition of an unresolved factual issue is one that a reasonable factfinder could decide in favor of either party. See Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Because granting the motion deprives a party of its day in court and the right to present its cause to a jury, the district court in examining the record must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party.
The burden of demonstrating the lack of any genuine unresolved issues of fact rests on the moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Uncertainty as to the true state of any material fact defeats the motion. See Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). If upon examining the record in a light generous to the nonmoving party, a material issue is found to exist, the motion must be denied and the case proceed to trial. See United States v. One Tintoretto Painting Entitled “The Holy Family with Saint Catherine and Honored Donor”, 691 F.2d 603, 606 (2d Cir.1982).
The possibility that a material issue of fact may exist does not suffice to defeat the motion; upon being confronted with a motion for summary judgment the party opposing it must set forth arguments or facts to indicate that a genuine issue — not merely one that is colorable — of material fact is present. See Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) (per curiam); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985), modified on other grounds, 821 F.2d 121, cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987).
We apply those general guides to the instant case. In order to avoid the speedy end of their claims by summary judgment, it was necessary for Gibson and Hope to show that sufficient evidence existed in the record to support a reasonable finding of discrimination. Such evidence may be established directly by demonstrating that a discriminatory reason more likely than not motivated the employer, or indirectly by showing that the employer’s proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; see McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1824-25; Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-65 (2d Cir.1989); Dister v. Continental Group, Inc., 859 F.2d 1108, 1112 (2d Cir.1988).
In deciding whether Gibson and Hope made such a showing, we must determine whether defendants’ purported legitimate business reasons are actually such. Burdine, 450 U.S. at 259, 101 S.Ct. at 1097 (fact that court believes employer misjudged applicant’s qualifications does not itself demonstrate discrimination, but misjudgment is probative on whether articulated reason is pretext); Sweeney v. Research Foundation of St. Univ. of N.Y., 711 F.2d 1179, 1185 (2d Cir.1983) (employer’s articulated subjective evaluation of qualifications by itself not adequate because it may mask prohibited discrimination); Knight v. Nassau County Civil Service Comm'n, 649 F.2d 157, 161 (2d Cir.1981) (employer may not use wholly subjective and unarticulated standards to judge employee performance).
II Comparative Proof and Appellants’ Claims
Before discussing appellants’ claims, it is appropriate to consider the admissibility of comparative proof. ABC argues that comparative proof is not appropriate in a Title VII action. Appellants, on the other hand, rely on this kind of evidence to establish pretext with respect to ABC’s employment decisions. In Lieberman v. Gant, 630 F.2d 60 (2d Cir.1980), we upheld a trial court’s exclusion of the use of comparative evidence as direct evidence at trial. Id. at 67-68. Lieberman was a Title VII discrimination suit brought for denial of academic tenure at a state university allegedly on account of gender. When granted, tenure not only creates a long term commitment, but also involves as a distinct policy consideration, separate from other employment discrimination cases, “an important part of our long tradition of academic freedom.” Id. at 67.
Significantly, Lieberman also found the bulky folders of male professors irrelevant because none provided a complete comparison between the complainant and those granted tenure. The trial court’s ruling was further sustained as a proper exercise of its discretion in that case—it did not state as a matter of law that comparative proof is inadmissible in Title VII cases. Moreover, at trial the comparison folders were allowed to be used for purposes of cross-examining their author. Id. at 68. Thus, Lieberman does not stand for the proposition that comparative proof otherwise relevant is inadmissible in Title VII suits. In light of the strong remedial purposes expressed in the Civil Rights Act of 1964 and the 1972 Amendments to Title VII, where Congress aimed to give courts broad discretion, in the exercise of their equitable powers, to fashion the most complete relief possible for victims of discrimination, see Equal Employment Opportunity Comm’n v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1091 (6th Cir.1974) (reciting Legislative History of Title VII Amendments), we could hardly hold that relevant proof was inadmissible. Hence, comparative proof is generally admissible in a Title VII discrimination suit. Because it was necessary to establish both Gibson’s and Hope’s claims, it was properly considered in their cases, to which we now turn.
A. Hope
Hope began employment with ABC on June 15, 1976 as a vacation relief new-swriter after receiving a B.A. from Rutgers University with a major in communications in May 1974. Prior to joining ABC he had worked for several different radio stations. He alleged in his complaint that he had requested an opportunity to become an acting editor for ABC Radio News. When it granted summary judgment, the district court found that Hope was not qualified to receive acting editor assignments any sooner than he did (1050 days from his date of hire), and that he failed to present proof showing that ABC’s articulated nondiscriminatory reason was pretextual. We think contrary inferences to those drawn by the district court might be permissible. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam).
The only evaluative evidence of Hope’s qualifications consists of three discrete criticisms in his file. They concern log entries, handling of incoming news and news gathering. All are contemporaneous with the time of deficiency in performance, and do not differ in number, type or nature from similar criticisms found in the files of Caucasian newswriters Dauer, Dixon, Schoen-holtz and Tague. Each of them was upgraded to acting editor positions a good deal sooner than Hope. Thus, Dixon was upgraded to acting editor 190 days after his date of hire, while Schoenholtz and Ta-gue received favorable employer action within 17 and 38 days respectively. In contrast, Hope was not upgraded until 1050 days after his date of hire. Appellees’ response to this comparative proof is that Hope is presently receiving the acting editor assignment he originally sought. But, as appellant points out, he did not receive the increased pay in the past that he claims he was discriminatorily denied.
As a consequence, the record contains sufficient evidence to create a genuine issue of material fact on pretext. The granting of summary judgment dismissing Hope’s complaint should therefore be reversed and his discrimination claim should proceed to trial.
B. Gibson
Gibson’s affidavit details his 11 years as an on-air correspondent for the contemporary network of ABC Radio News. It notes that he is the only black correspondent and asserts that, save for vacation or compensation days, he has never been scheduled off on a Saturday or Sunday. Gibson claims that none of the Caucasian correspondents were similarly scheduled for weekend work and that ABC’s response that his performance has consistently been the weakest is pretextual. Appellant states that some employees not scheduled for full weekend work have since had their employment terminated, while he has remained an on-air correspondent continuously for 11 years.
The focus of Gibson’s complaint of discrimination spans a 28-month period from September 1, 1980 to December 31, 1982. On appeal, he offers three ABC employees for comparison: Berman, Snow and Myers. Myers is an inapt comparison because Gibson only points to her job performance in 1983-84, not the 1980-82 time period that is the subject of his claim of discrimination. Ms. Snow's situation is not comparable either because she negotiated a contract with ABC Radio News guaranteeing her Saturdays and Sundays off. Berman, the other comparison employee, was not regularly scheduled for a Saturday or Sunday off from September 1982 until February 1983 (when his employment was terminated). If these comparisons were Gibson’s only proof of pretext, appellees’ motion for summary judgment would have been properly granted. Cf. Lieberman, 630 F.2d at 67-68.
But there are two critical unresolved material facts that we believe require a trial. First, Richard Dressel, the News Manager at ABC Radio News who had hired Gibson and was directly responsible for his schedule, admits that from August 1980 through March 1982 every white contemporary network employee was scheduled off on either a Saturday or Sunday. Only Gibson was not so scheduled. Second, though the reason ABC Radio News gives for this differential treatment was because Gibson was consistently the weakest correspondent, it is conceded that the three recited comparison employees were all fired for incompetency and all were employed during the same time frame when appellant was allegedly the weakest employee. The incompetency argument is also undercut by Gibson’s assignment to the afternoon drive shift—the prime radio listening time—for a four-month period in 1980. These circumstances create a material issue of fact regarding whether the reason given for Gibson’s discriminatory schedule was pretextual. Accordingly, the grant of summary judgment dismissing Gibson’s complaint should be reversed and his case should also proceed to a trial on the merits.
C. Rios’ Claim
Unlike the appeals brought by Gibson and Hope, the appeal brought by Angelo Rios is based on findings of fact made by the district court after a trial on the merits.
Rios alleged in his complaint that from 1977 to 1981 he requested but was denied a newswriter position because of his Hispanic origin. He also alleges that he was discriminatorily denied—subsequent to an audition given to him during February, 1978—the further opportunity for tape and writing auditions, and that he did not receive training, teaching and direction, similar to that provided to Caucasians employed by ABC and applicants from outside ABC who became newswriters. Rios’ employment with ABC was terminated in 1985 for insubordination.
At trial and on appeal he attempts to show that the reasons given for not employing him as a newswriter were pretextual, and that four other applicants were hired without the previous radio experience he was told was a required qualification for the position.
The facts disclosed at the bench trial reveal that appellant worked for ABC Radio News as a desk assistant for nine years commencing in 1976 and ending in 1985. It is ABC’s policy to require applicants for newswriter positions to have several years of broadcast journalism experience in a major news market, though, in exceptional cases, individuals were considered for employment if they demonstrated sufficient skill and talent. ABC presented proof concerning the four individuals that Rios claimed were hired without the necessary qualifications. The proof indicated that the four individuals had either greater news experience, or more education (college degrees), or had demonstrated other outstanding attributes. Of the four comparison employees, two were hired on account of outstanding skill and/or talent; one of them was black and the other Hispanic. The evidence therefore presented a question of fact respecting pretext that Judge Sweet decided in favor of ABC Radio News.
Under Fed.R.Civ.P. 52(a), a finding of fact may only be set aside if it is clearly erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Judge Sweet’s determination that Rios was unqualified to be a newswriter is not clearly erroneous. Rios concedes that he did not have the required five years of major marketing experience, nor was he a college graduate. The evidence of pretext Rios presents is weak since ABC satisfactorily explained why the others with allegedly no greater experience were hired, and two of them were members of a minority. Because we think Judge Sweet’s assessment of the credibility of witnesses is plausible looking at the record as a whole, we see no reason to disturb his findings. Hence, we affirm the district court’s dismissal after trial of Rios’ complaint.
CONCLUSION
The appeal by Rios from a February 9, 1989 order of Judge Sweet is affirmed; the appeals of Gibson and Hope from the May 4, 1988 entry of summary judgment by Judge Daronco in favor of ABC is reversed and the cases are remanded for trials on the merits.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the 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:
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songer_circuit
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L
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
IRVIN INDUSTRIES CANADA, LTD., Appellant, v. UNITED STATES AIR FORCE, Appellee.
No. 89-5122.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 22, 1990.
Judgment Issued Jan. 23, 1990.
Lanny J. Davis, for appellant. Richard M. Stalbach also entered an appearance, for appellant.
John C. Martin, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., were on the brief, for appellee.
Before EDWARDS, Circuit Judge, ROBINSON, Senior Circuit Judge, and REVERCOMB, District Judge.
Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. § 292(a).
Opinion for the Court filed by Senior Circuit Judge SPOTTSWOOD W. ROBINSON, III.
SPOTTSWOOD W. ROBINSON, III, Senior Circuit Judge:
Irvin Industries Canada, Ltd., participated in competitive bidding for a contract to provide the United States Air Force with parachute releases. The Air Force awarded the contract to Scot, Incorporated, another bidder. Irvin protested unsuccessfully to the General Accounting Office and then sought relief in the District Court. After denying Irvin a preliminary injunction, the court granted summary judgment for the Air Force. Irvin challenged those rulings here, and we reversed and remanded with instructions to require the Air Force to afford all potential bidders an opportunity to submit new or amended proposals. We stated that this opinion would follow.
I
In 1987, the Air Force issued to prospective offerors a letter request for technical proposals respecting a parachute rip cord release meeting the exigencies of ejection from high-speed aircraft. This would be a “device[] connected to the parachutes of US Air Force crewmembers which [is] designed to ensure the automatic opening of the parachute under emergency conditions such as when the crewmember is unconscious or disabled.”
Procurement by federal executive agencies, including the military departments and defense agencies, is governed primarily by the Federal Acquisition Regulation, which permits two-step sealed bidding when specified conditions coexist. Electing this methodology, the Air Force in its letter request invited prospective offerors to submit technical proposals containing all pertinent information save price. The request stated that “[technical evaluation of the proposals shall be performed by a team of engineering personnel, equipment specialists, and technicians,” and that
[t]he following factors will be evaluated:
1. Technical
2. Schedule
3. Data
4. Manufacturing Capability.
The request called specifically for a critical design review within 30 days after the date of the contract award, and for delivery of first article test reports within 180 days after that date. Offerors were admonished to heed all requirements. In regard to step two, the request stated that “[c]on-tractors with acceptable technical proposals will then be required to submit Pricing information_” The scheme of the solicitation thus was to deal with non-price considerations in step one, and then “to have a price competition between technically acceptable offerors in step two.”
Irvin and three others responded with technical proposals. Irvin submitted a modified version of an off-the-shelf product which it was supplying to air forces of other nations, but it did not measure up to the Air Force’s specifications. Scot, which also lacked a suitable product, offered a design of a technically conforming parachute release, but one requiring more time to develop than the terms of the solicitation allowed.
After conducting its technical evaluation, the Air Force deemed Scot’s step-one proposal acceptable and turned down the remaining three. The Air Force acknowledged that Scot’s proposal “does not meet the delivery requirements as specified,” but felt that “the high confidence of success due to technical acceptability outweighs the delayed availability of the units.” Irvin's technical proposal was rejected as nonresponsive to the specifications of the purchase description.
The Air Force had envisioned a firm fixed-price proposal as the end result of step two of the solicitation. Although Scott did propose in that light, there was no meaningful price competition. This consideration contributed to the Air Force’s belief that it was “necessary to employ negotiation procedures to preclude excessive pricing.” What eventuated therefrom was the award to Scot, some seventeen months after the closing date for tender of technical proposals, of a contract deviating from the terms of the solicitation by allowance of 154 rather than 30 days for the critical design review and 526 rather than 180 days for delivery of first article reports, and by providing for payment on some line items on a cost-plus-fixed-fee basis.
Irvin protested to the General Accounting Office that the Air Force erred in finding its proposal technically unacceptable and, alternatively, that the Air Force was estopped from making such a determination because, Irvin said, the Air Force had indicated its satisfaction with a design earlier submitted by Irvin as an unsolicited proposal. The protest was denied on grounds that the Air Force was justified in turning Irvin's proposal down; that Irvin’s objections were untimely because “a protest relating to an alleged solicitation impropriety apparent on the face of the solicitation must be filed prior to the date for submission of offers;” and that the record did not support Irvin’s estoppel theory.
Irvin then brought an action in the District Court. There Irvin reasserted its claims of improper rejection and estop-pel, and assailed the Air Force’s decision to award the contract to Scot. Early on, Irvin moved for a preliminary injunction, which the court refused to grant. The court felt that the Air Force properly discarded Irvin’s proposal as deficient and that Irvin was not justified in relying upon alleged pre-solicitation representations by Air Force personnel as to acceptability of the Irvin product. Nor, in the court’s view, did
the post-qualification concessions to Scot on terms of delivery and compensation constitute irregularities, at least of a magnitude to require that the award be set aside, even temporarily. The record explains rationally why cost and delivery terms had become negotiable: only one company was willing to supply the product the Air Force really wanted, and the Air Force consequently had no market to shop. The cost-plus arrangement thus became a cost-conscious alternative to the arbitrarily high fixed price that Scot, as a monopolist, could have commanded otherwise.
Thereafter, on cross-motions for summary judgment, the court, for “essentially the reasons” persuading it to deny the preliminary injunction, ruled in favor of the Air Force. It is from this disposition that Irvin appeals.
II
Irvin, as an offeror adversely affected by the Air Force’s action, has standing to challenge the award of the contract to Scot. To do so successfully, however, Irvin “bear[s] a heavy burden of showing either that (1) the procurement official’s decisions on matters committed primarily to his own discretion had no rational basis, or (2) the procurement procedure involved clear and prejudicial violation of applicable statutes or regulations.” We find that Irvin has surmounted that hurdle.
The requirements to be satisfied by technical proposals respecting the parachute release were carefully detailed in documents accompanying the letter request communicated to prospective offerors. Additionally, a pre-proposal conference was conducted by the Air Force to enable offer-ors to obtain answers to any questions they had about the acquisition process. Hardly could the Air Force have done more to promote understanding of the demands to be met, yet, by the Air Force’s assessment, Irvin’s proposal did not comply with all of them. Irvin was accordingly notified that its proposal was unacceptable and that it could not be revised. Both the General Accounting Office and the District Court agreed with the Air Force, and Irvin now concedes the point.
The Federal Acquisition Regulation provides that “[a]ny proposal which modifies, or fails to conform to the essential requirements or specifications of, the request for technical proposals shall be considered non-responsive and categorized as unacceptable,” and the contracting officer is directed to inform the offeror that no revision of the proposal will be entertained. The principles demanding rejection of nonconforming proposals
rest upon and effectuate important public policies. “Rejection of irresponsive bids is necessary if the purposes of formal advertising are to be attained, that is, to give everyone an equal right to compete for Government business, to secure fair prices and to prevent fraud.” The requirement that a bid be responsive is designed to avoid unfairness to other contractors who submitted a sealed bid on the understanding that they must comply with all of the specifications and conditions in the invitation for bids, and who could have made a better proposal if they imposed conditions upon or variances from the contractual terms the government has specified. The rule also avoids placing the contracting officer in the difficult position of having to balance the more favorable offer of the deviating bidder against the disadvantages to the government from the qualifications and conditions the bidder has added.
The prohibition on post-opening revision of bids rests on an equally solid foundation: We sustain the Air Force’s determination that Irvin did not qualify for advancement to step two of the acquisition procedure.
Allowing a bidder to modify [or the Government to accept] a nonresponsive bid when, upon opening the bids, it appears that the variations will preclude an award, would permit the very kind of bid manipulation and negotiation that the rule is designed to prevent. Otherwise bidders would be encouraged to submit nonresponsive bids on terms favorable to the government but subject to certain conditions, in the hope that if their bids were the top ones, they could then negotiate about and retain some of their proposed changes. In this way they could obtain a contract that they could not have received had they complied with the specification in the invitation for bids.
After examining all of the technical proposals received, however, the Air Force erred grievously. Concluding that only Scot’s proposal was acceptable, the Air Force dealt with Scot exclusively, despite Irvin’s strenuous effort to stay in the running for the contract. It was in total elimination of Irvin and the other two unsuccessful offerors from the contest that the Air Force blundered fatally.
Contrary to the position shared by the Air Force and the District Court, Scot’s proposal was also nonresponsive to the technical requirements of the solicitation. The Federal Acquisition Regulation tells us that “the word ‘technical,’ ” as used in the context of two-step sealed bidding, “has a broad connotation and includes, among other things,... special testing techniques.” The Air Force’s request for technical proposals specified that a critical design review and demonstrations would be conducted 30 days after the contract was awarded and that during the review the contractor must demonstrate the capability of the release to meet the design, construction and performance characteristics contained in the purchase description. This stipulation was as much a technical requirement as any other term of the solicitation, and one that Scot’s proposal did not satisfy. Additionally, the request set a deadline for delivery of first article test reports, again one with which Scot could not comply.
These shortcomings cannot be regarded as inconsequential. True it is that contracting officers must either give bidders “an opportunity to cure any deficiency resulting from a minor informality or irregularity in a bid or waive the deficiency, whichever is to the advantage of the Government,” but the deficits of the Scot proposal were far from minor. The Federal Acquisition Regulation defines “[a] minor informality or irregularity” as “one that is merely a matter of form and not of substance,” including “some immaterial defect in a bid or variation of a bid from the exact requirements of the invitation that can be corrected or waived without being prejudicial to other bidders.” “The defect or variation is immaterial,” the regulation further states, “when the effect on price, quantity, quality, or delivery is negligible when contrasted with the total cost or scope of the supplies or services being acquired.”
Tested by these criteria, it is evident that the defects in Scot’s proposal were quite material. Scot tendered its readiness for a critical design review within 170 rather than 30 days, and for delivery of first article test reports within 526 days rather than 180 days. These deviations from the terms of the solicitation were much more than a mere matter of form. Almost a century ago, the Attorney General ruled that a bid offering to finish by June 1, 1894, work which the invitation required completion of by December 31, 1893, had to be rejected as nonresponsive. Down through the years since, the decisions have scrupulously observed the principle that a bid failing to meet delivery deadlines announced in the solicitation is non-responsive and must be rejected. To boot, indulgence of Scot in these changes was clearly prejudicial to the three other offerors, who were not given a chance to reshape their proposals in light of the new timetable.
When it became known that Scot’s design was the only one that satisfied the specifications advertised, the contracting officer consulted Air Force engineers to ascertain whether any other product offered was capable of being made compliant, but was informed that all of them had major discrepancies that would have necessitated significant redesign. Irvin and FXC Corporation, however, have insisted that had they been granted the same concessions yielded to Scot, they would have offered a new and different design conforming in all respects to the purchase description included in the request for technical proposals. So far as we are aware the Air Force does not contest these representations. Even if the Air Force had disputed the ability of the two companies to bring their respective products in line, the issue would have precluded the District Court from disposing of this case on summary judgment.
Indeed, none of the offerors complied with the schedule set forth in the request for proposals, and it seems to be common ground that it was well-nigh impossible for any of them to do so. As Scot was later to point out, “[i]t is not possible to be ready for a CDR within 30 days ARO for a device which does not exist and must meet the detailed solicitation requirements.” Other offerors, too, observed that the request for technical proposals sought to acquire too much in too short a period of time.
Though fully advertent to this nonconformity in Scot’s technical proposal, the Air Force labeled it “acceptable” and proceeded to negotiation with Scot alone. The Air Force has since explained that “the schedule did not affect the technical acceptability of individual design proposals,” on account of which “no offeror was eliminated on only this basis.” Rather, the Air Force said, “[a]t step one, the only basis for complete proposal rejection was noncompliance with the technical requirements of the purchase description.” Then, once the Air Force found itself “with only one acceptable technical proposal,” it “determined to use negotiated procurement procedures in accordance with FAR guidance.” We accept the Air Force’s reasoning that under the circumstances it might, in its discretion, elect negotiation in lieu of a new solicitation of proposals. But it is clear enough that the Air Force violated the Federal Acquisition Regulation when it confined the negotiation to Scot.
Ill
None of the four companies submitting technical proposals on the parachute release survived the first stage of the two-step bidding process. None of the proposals met the deadline for critical design review. None complied with the Air Force’s schedule for delivery. None but Scot’s conformed to the technical specifications of the release sought. It follows that all of the proposals were nonresponsive in some degree, and that none properly could be rated “acceptable” or, without more, advanced to step two.
That the Air Force seemingly recognized, for after examining the step-one proposals the contracting officer abandoned sealed bidding and went ahead with negotiation. That procedure, properly conducted, was entirely appropriate. “When step one results in no acceptable technical proposal or only one acceptable technical proposal,” the Federal Acquisition Regulation states, “the acquisition may be continued by negotiation,” but that did not authorize negotiation exclusively with Scot. With exceptions not pertinent here, full and open competition, to the extent and in a manner practicable, is the general requirement in negotiation as it is in sealed bidding. “Under [the] rule of ‘fair treatment,’ an agency cannot disregard the material changes of its RFP for only one offeror as this would be tantamount to not giving all offerors a fair and equal opportunity to compete on the same basis.” The Federal Acquisition Regulation provides specifically that when the acquisition process is converted from sealed bidding to negotiation, all who have submitted bids in response to the agency’s invitation must be given a reasonable opportunity to negotiate. A recent decision of the General Accounting Office well illustrates the operation of this provision.
In Cemco Products, Inc., an agency invited bids for insulated pipe and fittings to be used in providing water and sewer services. The invitation required samples for testing to determine compliance with specifications listed therein and warned that failure of samples to conform thereto would result in rejection of the bid. Cemco was one of two bidders, and the samples supplied by both bidders were nonconforming, whereupon the contracting officer called for new samples and indicated that no other change in the bids would be allowed. Cemco’s competitor submitted a new sample which passed the testing, but Cemco protested to the General Accounting Office instead. Cemco claimed that the contracting officer’s request for new samples was improper and argued that if both bids were nonresponsive, the agency should have cancelled the invitation for bids and either resolicited or converted the solicitation to a negotiated procurement. The agency’s response was that the contracting officer, faced with two nonconforming bids and insufficient time to cancel and reprocure, chose in effect to convert the procurement to a negotiated one. The agency admitted that the contracting officer erred in failing to secure a determination from the agency head before negotiating but argued that the error did not prejudice Cemco. GAO sided with Cemco:
We think that what [the agency] did here does not meet the test for conversion from sealed bidding to negotiation. FAR §§ 14.404-l(c)(6) & (e) and 15.103 provide that where no responsive bids are received from responsible bidders, an IBF may be canceled and the procurement completed through the use of negotiations, so long as all responsible bidders under the original IBF are given prior notice and a reasonable opportunity to negotiate. In our view, the protester was not given a reasonable chance to negotiate.
In the case at bar, Irvin was given no such chance whatsoever.
The Air Force contends that it stood on solid ground in negotiating schedule and price revisions with Scot alone because the proposals of the three remaining offerors were appropriately rejected as nonre-sponsive to the technical specifications of the parachute release. We are unable to agree. In its solicitation, the Air Force set deadlines for critical design review and first article test reporting. The Air Force also announced therein that its step-one “technical evaluation” would involve four factors, including “technical” and “schedule.” It gave no indication that any factor would be accorded more or less weight than any others, or that any would be ignored or altered. Receiving no offer meeting both the technical specifications and the time restraints set forth in the solicitation, the Air Force felt that the former outweighed the latter and became dominant.
The Air Force’s action ran contrary to applicable provisions of the Federal Acquisition Regulation, which declares that “[evaluations shall be based on the criteria in the request for proposals,” that “[a]ny proposal which... fails to conform to the essential requirements or specifications of... the request for technical proposals shall be considered nonresponsive and categorized as unacceptable,” and that “[t]o be considered for award, a bid must comply in all material respects with the invitation for bids.” These unambiguous provisions demand that responsiveness, and thus eligibility for award of a contract, be premised on an offeror’s full compliance with all material requirements of the solicitation.
IV
When the Air Force invited technical proposals for the parachute release, it envisioned an acquisition of a satisfactory product within a relatively short space of time. As things turned out, however, that did not occur; no one offered a product meeting both of those objectives. It then became evident that either the technical specifications or the schedule requirements would have to be relaxed; put another way, the Air Force was forced to decide whether it would accept a compromise product that it could obtain quickly, or whether it would insist upon a fully conforming product the development and production of which it would have to await. The schedule concessions granted Scot effectuated a decision to take the latter course, but the Air Force reshaped the contest in such manner that only Scot could win. Because the Air Force erred in doing so, we reversed the judgment of the District Court with instructions to require the Air Force to proceed, if at all, with a new contract solicitation.
. Irvin Indus. Canada, Ltd. v. United States Air Force, No. 89-5122 (D.C.Cir. Jan. 23, 1990).
. Letter Request for Technical Proposal, F41608-87-R-0806, [hereinafter Letter Request], Appendix (App.) 123-203. Attached thereto were a number of related documents, some of which we hereinafter cite individually.
. The Air Force explained:
Presently, the Air Force uses a combination of ballistic and mechanical parachute rip cord releases. In the past, the F-1B mechanical release has not been able to fulfill the requirements for high speed ejection aircraft. The F-1B timer control cannot be set below the 1 second as required. The ballistic releases, even though they are capable of meeting the requirements below 1 second, have demonstrated reliability below our expectations. On the other hand, the F-1B mechanical release has demonstrated high reliability. Therefore, there exists a need to develop a new mechanical release that meets our current requirements.
Statement of Work ¶ 1 at 1, App. 130.
. Affidavit of Col. Arthur E. Schmitt, Chief, Item Management Division, Directorate of Materiel Management, San Antonio Air Logistics Center (filed Feb. 17, 1989) ¶2, App. 234.
. The Federal Acquisition Regulations System was established in 1983 for the purpose of codifying and publishing uniform practices and procedures for acquisitions by all executive agencies. 48 C.F.R. § 1.101 (1989). The system consists of the Federal Acquisition Regulation, which is the primary document, and agency acquisition regulations implementing or supplementing it. Id. Such regulations for the military departments and defense agencies are issued subject to the authority of the Secretary of Defense. Id. § 1.301(d)(1). Neither litigant has referred to any agency regulation bearing on this case.
. The Federal Acquisition Regulation describes the process:
Two-step sealed bidding is a combination of competitive procedures designed to obtain the benefits of sealed bidding when adequate specifications are not available. An objective is the development of a sufficiently descriptive and not unduly restrictive statement of the government's requirements, including an adequate technical data package, so that subsequent acquisitions may be made by conventional sealed bidding. This method is especially useful in acquisitions requiring technical proposals, particularly those for complex items. It is conducted in two steps:
(a) Step one consists of the request for, submission, evaluation, and (if necessary) discussion of a technical proposal. No pricing is involved. The objective is to determine the acceptability of the supplies or services offered. As used in this context, the word "technical" has a broad connotation and includes, among other things, the engineering approach, special manufacturing processes, and special testing techniques. It is the proper step for clarification of questions relating to technical requirements. Conformity to the technical requirements is resolved in this step, but not responsibility as defined in 9.1.
(b) Step two involves the submission of sealed priced bids by those who submitted acceptable technical proposals in step, one. Bids submitted in step two are evaluated and the awards made in accordance with Subparts 14.3 and 14.4.
Id. § 14.501(a)-(b).
. See id. § 14.502. The propriety of two-step sealed bidding is not questioned in this case.
. See Letter Request, supra note 2, ¶¶ 3(a), 6, J. App. 123-124.
. Id. ¶ 7, App. 124.
. Id., App. 124.
. "Critical Design Review (CDR) configuration audit and demonstrations will be conducted 30 days after contract award. During the review, the contractor shall demonstrate the capability of the release to meet the design, contruction [stc ] and performance characteristics contained in the purchase description.” Statement of Work ¶ 2.2, App. 130. See Affidavit of Frank X. Chevrier, President and Chief Engineer, FXC Corporation (filed Feb. 24, 1989) ¶¶ 3, 5 [hereinafter Chevrier Affidavit], App. 59.
. Analysis of Grounds for Irvin Proposal Rejection at 5 [hereinafter Analysis], App. 219; Chev-rier Affidavit, supra note 11, ¶¶ 3, 5, App. 59.
. "It is strongly advised that the requirement of the technical proposal as outlined in the Statement of Work be strictly complied with in all respects. Offerors should make every effort to insure that their proposals are fully and clearly acceptable without additional explanation or information. However, the Government may, at its sole discretion, request additional information from offerors as specified in [Federal Acquisition Regulation] 14-503-1 for the purpose of clarifying or supplementing but not basically changing any technical proposal as submitted.” Letter Request, supra note 2, ¶ 6, App. 124.
. Letter Request, supra note 2, ¶ 3(c)(2), App. 123.
. Brief for Appellee at 8-9.
. Irvin Indus. Canada, Ltd. v. United States Air Force, Civ. No. 88-3574 (D.D.C.) (memorandum and order) (filed Mar. 22, 1989) at 2 [hereinafter Memorandum and Order}, App. 3.
. FXC Corporation, another bidder, similarly tendered an existing but technically nonconforming design. Chevrier Affidavit, supra note 11, ¶¶ 3-4, App. 59.
. Letter from Samuel Levin, Vice President, Quality Assurance and Administration, Scot, Incorporated, to Teresa Rendon, Directorate of Contracting and Manufacturing, San Antonio Air Logistics Center (May 29, 1987) [hereinafter Scot Letter], App. 61-62.
. Air Force Technical Evaluation Documents, Attachment 4, App. 74-75.
. Id., Attachments 1-3, App. 65-73, 76-77.
. Id., Attachment 4 at 1, App. 74. See also Affidavit of Teresa Rendon, Contract Negotiator, Directorate of Contracting and Manufacturing, San Antonio Air Logistics Center (filed Feb. 17, 1989) ¶ 19 [hereinafter Rendon Affidavit], App. 122; Affidavit of Yvonne Craig, Contract Negotiator, Directorate of Contracting and Manufacturing, San Antonio Air Logistics Center (filed Feb. 17, 1989) ¶ 7 [hereinafter Craig Affidavit], App. 231.
. Air Force Technical Evaluation Documents, Attachment 4 at 1, App. 74.
. Id., Attachment 3, App. 72-73.
. Rendon Affidavit, supra note 21, ¶ 13, App. 118.
. Id.
. Id., App. 118-119.
. See note 11 supra and accompanying text.
. See note 12 supra and accompanying text.
. Rendon Affidavit, supra note 21, ¶ 5, App. 118.
. The General Accounting Office is an arm of the Congress rather than the Executive. Delta Data Sys. Corp. v. Webster, 240 U.S.App.D.C. 182, 186 n. 1, 744 F.2d 197, 201 n. 1 (1984); Scanwell Laboratories, Inc. v. Thomas, 172 U.S. App.D.C. 281, 286 n. 5, 521 F.2d 941, 946 n. 5 (1975); M. Steinthal & Co. v. Seamans, 147 U.S. App.D.C. 221, 237, 455 F.2d 1289, 1305 (1971). Its bid protest procedures, 48 C.F.R. pt. 20 (1989), provide the means for a nonjudicial review of contract awards. Scanwell Laboratories, Inc. v. Thomas, supra. Resort to those procedures is not a precondition to judicial review, id.; Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 388, 424 F.2d 859, 876 (1970), and "the GAO's advise is not binding upon the agency, much less upon the courts." Delta Data Sys. Corp. v. Webster, supra, 240 U.S.App.D.C. at 186, 744 F.2.d at 201.
. Irvin Indus. Canada, Ltd., Comp. Gen. Dec. B-227375 (Sept. 24, 1987), 87-2 C.P.D. ¶294 at 4 (1987).
. Id. at 3-4.
. Id. at 4.
. Id. at 4-5.
. Irvin Indus. Canada, Ltd. v. United States Air Force, Civ. No. 88-3574 (D.D.C.) (filed Mar. 22, 1989).
. Complaint, Irvin Indus. Canada, Ltd. v. United States Air Force, Civ. No. 88-3574 (D.D.C.) (filed Dec. 15, 1988) ¶¶ 48-50, 55-62.
. Id. ¶¶ 52-53.
. Id. ¶¶ 64-75.
. Motion for Preliminary Injunction, Irvin Indus. Canada, Ltd. v. United States Air Force, Civ. No. 88-3574 (D.D.C.) (filed Dec. 15, 1988).
. Memorandum and Order, supra note 16, at 1-5, App. 2-6.
. Id. at 3-4, App. 4-5.
. Id. at 4, App. 5.
. Motion [of Air Force] for Summary Judgment, Irvin Indus. Canada, Ltd. v. United States Air Force, No. 88-3574 (filed Feb. 17, 1989); Motion of [Irvin Industries] for Partial Summary Judgment, Irvin Indus. Canada, Ltd. v. United States Air Force, Civ. No. 88-3574 (filed Feb. 24, 1989).
. Irvin Indus. Canada, Ltd. v. United States Air Force, Civ. No. 88-3574 (April 19, 1989) (order), App. 1.
. Gull Airborne Instruments, Inc. v. Weinberger, 224 U.S.App.D.C. 272, 275 & n. 2, 694 F.2d 838, 841 & n. 2 (1982); Kentron Hawaii, Ltd. v. Warner, 156 U.S.App.D.C. 274, 277, 480 F.2d 1166, 1169 (1973); Wheelabrator Corp. v. Chafee, 147 U.S.App.D.C. 238, 241, 455 F.2d 1306, 1309 (1971); Scanwell Laboratories, Inc. v. Shaffer, supra note 30. “A disappointed bidder that claims illegality in a procurement alleges an injury beyond its economic loss of the contract. The disappointed bidder may also claim injury to its right to a legally valid procurement process." National Maritime Union v. Commander, Military Sealift Command, 263 U.S.App.D.C. 248, 257, 824 F.2d 1228, 1237 (1987) (citations omitted).
. Kentron Hawaii, Ltd. v. Warner, supra note 45, 156 U.S.App.D.C. at 277, 480 F.2d at 1169 (footnotes omitted). Accord, Gull Airborne Instruments, Inc. v. Weinberger, supra note 45, 224 U.S.App.D.C. at 275, 694 F.2d at 841; Delta Data Sys. Corp. v. Webster, supra note 30, 240 U.S. App.D.C. at 189, 744 F.2d at 204; Wheelabrator Corp. v. Chafee, supra note 45, 147 U.S.App.D.C. at 241, 455 F.2d at 1312.
. See App. 127-202.
. See Letter Request, supra note 2, ¶ 3(b), App. 123; Pre-Proposal Conference, App. 203-211.
. See Letter from Yvonne M. Craig, Contracting Officer, Directorate of Contracting and Manufacturing, San Antonio Air Force Logistics Center, to Irvin Industries Canada, Ltd., (attachment), App. 212.
. Id., App. 212.
. See Irvin Indus. Canada, Ltd., supra note 31, 87-2 C.P.D. ¶ 294 at 4.
. Memorandum and Order, supra note 16, App. 4-5.
. Brief for Appellant at 33; Reply Brief for Appellant at 6.
. 48 C.F.R. § 14.503-l(e)(2) (1988).
. Id. § 14.503-l(g).
. Toyo Menka Kaisha, Ltd. v. United States, 597 F.2d 1371, 1377 ([220] Ct.Cl. [210] 1979) (quoting Prestex Inc. v. United States, 320 F.2d [367,] 372 [162 Ct.Cl. 620 (1963) ] (emphasis added)).
. Toyo Menka Kaisha, Ltd. v. United States, supra note 56, 597 F.2d at 1377.
. 48 C.F.R. § 14.01(a) (1988).
. See note 11 supra.
. The statement of work was an attachment to the letter request for technical proposals, which informed prospective offerors that "[t]he specific requirements” of the parachute release are detailed in the "Statement of Work,” Letter Request, supra note 2, ¶ 1, App. 123, and "strongly advised that the requirement of the technical proposal as outlined in the Statement of Work be strictly complied with in all respects.” Id. ¶ 6, App. 124. A set of instructions to prospective offerors reiterated that "[t]he requirements for the" parachute release "are in" four specifically-named “accompanying" documents, among which was the statement of work appended to the letter request. Technical Proposal Preparation Instructions for Automatic Mechanical Parachute Rip Cord Release ¶ 1.2, App. 127. The instructions also set forth “a recommended outline of areas we consider central to any proposal submitted,” and listed "Statement of Work (SOW) requirements" under the heading "Technical." Id. The call for critical design review within 30 days was repeated in similar language in a technical overview of the parachute release, Overview of Requirement [it'c] ¶ 2, App. 210, which was presented to attendees at the preproposal conference, Pre-Proposal Conference (minutes) ¶ 2, App. 204, among whom were representatives of all four submitters of technical proposals. App. 205.
. Scot’s master schedule, submitted at step one of the solicitation, indicated its ability to engage in a critical design review about 170 days after award of the contract. Letter from Samuel Levin, Vice President, Quality Assurance and Administration, Scot, Incorporated, to Directorate of Contracting and Manufacturing, San Antonio Air Logistics Center (May 29, 1987) at 1, App. 61.
. See note 12 supra and accompanying text.
. 48 C.F.R. § 14.405 (1989).
. Id. (giving examples of "minor informalities or irregularities”).
. Id.
. Id.
. See note 11 supra and accompanying text.
. See note 12 supra and accompanying text.
. 20 Op. Att’y Gen. 496 (1892).
. Sierra/Misco, Inc., Comp.Gen.Dec. B-216147 (Sept. 18, 1984), 84-2 C.P.D. ¶ 320, at 2 (where invitation for bids specified delivery within 45 days, bid stating that one-third of the items would be delivered within 60 days was nonre-sponsive); Arvie Mfg. & Supply Co., Comp.Gen. Dec. B-210114 (Jan. 4, 1983), 83-1 C.P.D. f 10, at 2 (where invitation called for delivery of partial quantity of wrenches within 180 days after award and balance within 210 days after award, bid offering delivery of entire quantity within 210 days after award was nonre-sponsive); Sunoptic, Inc., Comp.Gen.Dec. B-194722 (May 14, 1979), 79-1 C.P.D. ¶351, at 2 (contracting officer properly rejected as nonre-sponsive bid offering delivery in four to six weeks under solicitation requiring a 14-day delivery); 36 Comp.Gen. 181, 183 (1956) ("[t]o award a contract to a low bidder without regard to the terms and conditions of delivery advertised would discriminate against other bidders who may well have included overtime pay and other additional costs in order to meet the deadline”).
.In decisions affirming awards to nonre-sponsive bidders, the critical consideration has been a finding that, under the circumstances, acceptance of the nonconforming bid did not prejudice other bidders. E
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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sc_authoritydecision
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D
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS v. ZIPES et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 88-608.
Argued April 25, 1989
Decided June 22, 1989
Steven A. Fehr argued the cause for petitioner. With him on the briefs were William A. Jolley and Janae L. Schaeffer. Aram A. Hartunian argued the cause for respondents. With him on the brief were Robert M. Weissbourd and Kevin M. Forde.
Briefs of amici curiae urging reversal were filed for the United States et al. by Acting Solicitor General Bryson, Acting Assistant Attorney General Turner, Deputy Solicitor General Merrill, Deputy Assistant Attorney General Clegg, Dennis J. Dimsey, and Charles A. Shanor; for the Americans United for Life Legal Defense Fund by Edivard R. Grant and Clarke D. Forsythe; and for the International Association of Fire Fighters, AFL-CIO, by Thomas A. Woodley and Michael S. Wolly.
Colleen K. Connell, Harvey Grossman, John A. Powell, and Steven R. Shapiro filed a brief for the American Civil Liberties Union et al. as amici curiae.
Justice Scalia
delivered the opinion of the Court.
Section 706(k) of the Civil Rights Act of 1964, 42 U. S. C. §2000e-5(k), provides in relevant part that a “court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity] Commission or the United States, a reasonable attorney’s fee as part of the costs.” In this case we must determine under what circumstances § 706(k) permits a court to award attorney’s fees against in-tervenors who have not been found to have violated the Civil Rights Act or any other federal law.
I—
This controversy began in 1970 when respondents, female flight attendants of Trans World Airlines, brought this class action against TWA claiming that its policy of terminating flight attendants who became mothers constituted sex discrimination that violated Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq. Respondents were represented by petitioner’s predecessor union, the Air Line Stewards and Stewardesses Association (ALSSA). Soon after the suit was filed, TWA abandoned the challenged policy and entered into a settlement agreement with ALSSA. This agreement was approved by the District Court, but class members dissatisfied with certain of its terms appealed. Discerning a potential conflict between ALSSA’s obligations to respondents and its obligations to incumbent flight attendants, the Court of Appeals reversed the District Court’s judgment and ordered that ALSSA be replaced as the representative of respondents’ class. Air Line Stewards and Stewardesses Assn., Local 550, TWU, AFL-CIO v. American Air Lines, Inc., 490 F. 2d 636, 643 (CA7 1973). On remand the District Court granted summary judgment to respondents on the merits. The Court of Appeals affirmed the District Court’s determination that TWA’s policy violated Title VII. In re Consolidated Pretrial Proceedings in Airline Cases, 582 F. 2d 1142, 1144 (CA7 1978). However, holding that the timely filing of charges with the Equal Employment Opportunity Commission (EEOC) is a jurisdictional prerequisite to suit in federal court, the court went on to find that over 90% of the respondents’ claims were on that ground jurisdictionally barred. Id., at 1149-1150. Both parties filed petitions for certiorari; at their request we deferred consideration of the petitions pending the outcome of ongoing settlement negotiations. Sub nom. Zipes v. Trans World Airlines, Inc., 442 U. S. 916 (1979). The parties again reached a settlement, in which TWA agreed to establish a $3 million fund to benefit all class members and to credit class members with full company and union “competitive” seniority from the date of termination.
At this point petitioner, which had replaced ALSSA as the collective-bargaining agent for TWA’s flight attendants, sought permission to intervene in the lawsuit on behalf of incumbent flight attendants not affected by the challenged TWA policy and flight attendants hired since TWA’s termination of respondents’ employment. Petitioner objected to the proposed settlement on two grounds: first, that the District Court lacked jurisdiction to approve equitable relief for the time-barred respondents (designated by the District Court as “Subclass B”); second, that reinstatement of respondents with full retroactive “competitive” seniority would violate the collective-bargaining agreement between petitioner’s members and TWA. The District Court permitted petitioner’s intervention but rejected its objections, approving the settlement in all respects. The Court of Appeals affirmed. Air Line Stewards and Stewardesses Assn., Local 550 v. Trans World Airlines, Inc., 630 F. 2d 1164 (CA7 1980). Petitioner then filed a petition for certiorari, raising essentially the same objections to the settlement agreement that it had pressed in the two lower courts. This Court granted the petition and consolidated it with the earlier petition filed by respondents, consideration of which had been deferred. In Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 393 (1982), we agreed with respondents that the timeliness requirement of Title VII, 42 U. S. C. §2000e-5(c), was not jurisdictional and thus that the District Court had jurisdiction to approve the settlement even as to members of Subclass B. We also rejected petitioner’s second challenge to the settlement agreement, concluding that reinstatement of all respondents with full competitive seniority was a remedy authorized by Title VII and appropriate in the circumstances of the case. 455 U. S., at 398-400.
To come, finally, to the aspect of this lengthy litigation giving rise to the issues now before us: Respondents’ attorneys petitioned the District Court for an award of attorney’s fees against petitioner under § 706(k) of the Civil Rights Act of 1964, 42 U. S. C. §2000e-5(k). The District Court held that “[unsuccessful Title VII union intervenors are, like unsuccessful Title VII defendants, consistently held responsible for attorneys’ fees,” Airline Stewards and Stewardesses Assn., Local 550, TWU, AFL-CIO v. Trans World Airlines, Inc., 640 F. Supp. 861, 867 (ND Ill. 1986), and thus awarded respondents a total of $180,915.84 in fees against petitioner-in addition to approximately $1.25 million it had earlier awarded against TWA from the settlement fund. A divided panel of the Court of Appeals affirmed. Zipes v. Trans World Airlines, Inc., 846 F. 2d 434 (1988). We granted the union’s petition for certiorari, 488 U. S. 1029 (1989).
H h — I
In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975), this Court reaffirmed what has come to be known as the “American Rule.” Put simply, “[i]n the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” Id., at 247. At issue in this case is one of the congressionally created exceptions to that rule. As part of the Civil Rights Act of 1964, Pub. L. 88-352, Tit. VII, 78 Stat. 253, Congress enacted §706(k), 42 U. S. C. §2000e-5(k), which provides that a federal district court “in its discretion, may allow the prevailing party, other than the [EEOC] or the United States, a reasonable attorney’s fee.” Although the text of the provision does not specify any limits upon the district courts’ discretion to allow or disallow fees, in a system of laws discretion is rarely without limits. In the case of §706(k) and other federal fee-shifting statutes, just as in the case of discretion regarding appropriate remedies, we have found limits in “the large objectives” of the relevant Act, Albemarle Paper Co. v. Moody, 422 U. S. 405, 416 (1975), which embrace certain “equitable considerations,” Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 418 (1978). Thus, in Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402 (1968), we held that under § 204(b) of the Civil Rights Act of 1964, 42 U. S. C. §2000a-3(b), a prevailing plaintiff should “ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” We thought this constraint on district court discretion necessary to carry out Congress’ intention that individuals injured by racial discrimination act as “‘private attorney[s] general,’ vindicating a policy that Congress considered of the highest priority.” 390 U. S., at 402. See also Albemarle Paper Co., supra, at 415 (applying the Newman standard to §706(k)); Northcross v. Memphis Bd. of Education, 412 U. S. 427, 428 (1973) (applying the Newman standard to §718 of the Emergency School Aid Act, 20 U. S. C. § 1617).
Similarly, in Christiansburg Garment, supra, we held that even though the term “prevailing party” in §706(k) does not distinguish between plaintiffs and defendants, the principle of Newman would not be applied to a prevailing defendant. Unlike the Title VII plaintiff, we reasoned, the Title VII defendant is not “‘the chosen instrument of Congress,’” 434 U. S., at 418, quoting Newman, supra, at 402; and unlike the losing defendant, the losing plaintiff is not “a violator of federal law,” 434 U. S., at 418. We also rejected, however, the losing plaintiff’s argument that sound exercise of § 706(k) discretion would remand the prevailing defendant to the American Rule, providing attorney’s fees only if the plaintiff’s suit was brought in bad faith. Such an unequal disposition, we thought, “giving the private plaintiff substantial incentives to sue, while foreclosing to the defendant the possibility of recovering his expenses in resisting even a groundless action unless he can show that it was brought in bad faith,” would so “distort” the “fair adversary process” that Congress could not lightly be assumed to have intended it. Id., at 419. We thus concluded that the prevailing defendant could be awarded fees under § 706(k) against the plaintiff whose suit was brought in good faith, but only “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation,” id., at 421.
The dissent contends that construing § 706(k) in such fashion as to allow competing rights and equities to be taken into account “ignore[s] its express language,” post, at 771, in two ways: first, because “the only party mentioned in § 706(k) is ‘the prevailing party,”’ and thus, “when a district court decides whether to award fees, it must be guided first and foremost by the interests of the prevailing party,” ibid. This seems to us something less than an “express language” argument — and also a non sequitur. To say that only the prevailing party gets fees is not to say that the prevailing party’s interests are always first and foremost in determining whether he gets them. In any case, as discussed above, we decided long ago that in some circumstances the interests of the losing party trump those of the prevailing party under §706(k), so that the latter cannot obtain fees. See Chris-tiansburg Garment, supra. The second respect in which the dissent contends we ignore the “express language” of the statute is that we fail to give effect to its “hostility to categorical rules for the award of attorney’s fees,” post, at 771, supposedly enshrined in the language that the court “in its discretion, may allow” (emphasis added) a reasonable attorney’s fee. We have already described how the law in general, and the law applied to §706(k) in particular, does not interpret a grant of discretion to eliminate all “categorical rules.” In Newman, supra, at 402, we held that in absence of special circumstances a district court not merely “may” but must award fees to the prevailing plaintiff; and in Christians-burg Garment, supra, at 421, we held that unless the plaintiff’s action is frivolous a district court cannot award fees to the prevailing Title VII defendant. The prescriptions in those cases are no less “categorical” than the rule we set forth today.
Proceeding, then, to interpret the statute in light of the competing equities that Congress normally takes into account, we conclude that district courts should similarly award Title VII attorney’s fees against losing intervenors only where the intervenors’ action was frivolous, unreasonable, or without foundation. It is of course true that the central purpose of §706(k) is to vindicate the national policy against wrongful discrimination by encouraging victims to make the wrongdoers pay at law — assuring that the incentive to such suits will not be reduced by the prospect of attorney’s fees that consume the recovery. See Newman, supra, at 401-402. Assessing fees against blameless intervenors, however, is not essential to that purpose. In every lawsuit in which there is a prevailing. Title VII plaintiff there will also be a losing defendant who has committed a legal wrong. That defendant will, under Newman, be liable for all of the fees expended by the plaintiff in litigating the claim against him, and that liability alone creates a substantial added incentive for victims of Title VII violations to sue. In the present case, for example, TWA paid over $1.25 million in fees to respondents’ attorneys. Respondents argue that this incentive will be reduced by the potential presence of inter-venors whose claims the plaintiff must litigate without prospect of fee compensation. It is not clear to us that that consequence will follow. Our decision in Martin v. Wilks, 490 U. S. 755, 762-763 (1989), establishes that a party affected by the decree in a Title VII case need not intervene but may attack the decree collaterally — in which suit the original Title VII plaintiff defending the decree would have no basis for claiming attorney’s fees. Thus, even if we held that fees could routinely be recovered against losing intervenors, Title VII plaintiffs would still face the prospect of litigation without compensation for attorney’s fees before the fruits of their victory can be secure.
But even if the inability generally to recover fees against intervenors did create some marginal disincentive against Title VII suits, we would still have to weigh that against other considerations, as we did in Christiansburg Garment. Foremost among these is the fact that, in contrast to losing Title VII defendants who are held presumptively liable for attorney’s fees, losing intervenors like petitioner have not been found to have violated anyone’s civil rights. See Christiansburg Garment, 434 U. S., at 418. In this case, for example, petitioner became a party to the lawsuit not because it bore any responsibility for the practice alleged to have violated Title VII, but because it sought to protect the bargained-for seniority rights of its employees. Awarding attorney’s fees against such an intervenor would further neither the general policy that wrongdoers make whole those whom they have injured nor Title VII’s aim of deterring employers from engaging in discriminatory practices.
Our cases have emphasized the crucial connection between liability for violation of federal law and liability for attorney’s fees under federal fee-shifting statutes. In Kentucky v. Graham, 473 U. S. 159 (1985), the plaintiffs had brought suit under 42 U. S. C. § 1983 against police officers in their individual capacities, alleging that the officers had violated their constitutional rights. After settling with the officers, they sought attorney’s fees from the officers’ employer, the Commonwealth of Kentucky, under 42 U. S. C. § 1988. In rejecting that claim, we stated:
“Section 1988 does not in so many words define the parties who must bear these costs. Nonetheless, it is clear that the logical place to look for recovery of fees is to the losing party — the party legally responsible for relief on the merits. That is the party who must pay the costs of litigation . . . and it is clearly the party who should also bear fee liability under § 1988.” 473 U. S., at 164.
See also id., at 165 (“[Liability on the merits and responsibility for fees go hand in hand”); id., at 168 (“[F]ee liability runs with merits liability”); ibid. (“Section 1988 simply does not create fee liability where merits liability is nonexistent”); id., at 171 (“[F]ee and merits liability run together”). Cf. Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U. S. 719, 738 (1980) (holding that § 1988 fees were not recoverable against defendants immune from merits liability). We have also distinguished between wrongdoers and the blameless in the related area of constraints upon district courts’ discretion to fashion Title VII remedies. See, e. g., Ford Motor Co. v. EEOC, 458 U. S. 219, 239-240 (1982); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 399-400 (1982).
While innocent intervenors raising non-Title VII claims are not, like Title VII plaintiffs, “the chosen instruments] of Congress,” Christiansburg Garment, supra, at 418, neither are they disfavored participants in Title VII proceedings. An intervenor of the sort before us here is particularly welcome, since we have stressed the necessity of protecting, in Title VII litigation, “the legitimate expectations of . . . employees innocent of any wrongdoing,” Teamsters v. United States, 431 U. S. 324, 372 (1977). Even less with regard to an innocent intervenor than with regard to an allegedly lawbreaking defendant would Congress have wished to “distort” the adversary process, see Christiansburg Garment, supra, at 419, by giving the plaintiff a disproportionate advantage with regard to fee entitlement. Moreover, establishing such one-way fee liability against intervenors would foster piecemeal litigation of complex civil rights controversies — a result that is strongly disfavored. See Martin v. Wilks, supra, at 768. Adopting the regime proposed by respondents —that those who intervene in a Title VII suit are presumptively liable for fees, while those who take the alternative course of becoming plaintiffs in independent lawsuits attacking provisions of the decree are presumptively shielded from liability — would encourage interested parties to await the entry of judgment and collaterally attack remedial schemes. This would serve the interests of no one: not plaintiffs, not defendants, not intervenors.
Intervention that, is in good faith is by definition not a means of prolonging litigation, but rather of protecting legal rights — ranging from contract-based rights, see, e. g., Richardson v. Alaska Airlines, Inc., 750 F. 2d 763 (CA9 1984) (collective-bargaining agreement), to statutory rights, see, e. g., Prate v. Freedman, 583 F. 2d 42 (CA2 1978) (Title VII), to constitutional rights, see, e. g., Reeves v. Harrell, 791 F. 2d 1481 (CA11 1986) (Equal Protection Clause); Grano v. Barry, 251 U. S. App. D. C. 289, 783 F. 2d 1104 (1986) (Takings Clause) — which are entitled to no less respect than the rights asserted by plaintiffs in the subject suit. In this case petitioner intervened to assert the collectively bargained contract rights of its incumbent employees, rights that neither respondents nor TWA had any interest in protecting in their settlement agreement. Just this Term we recognized that competitive seniority rights — the specific interests asserted by petitioner — are among the most important ingredients in flight attendants’ collective-bargaining agreements. See Trans World Airlines, Inc. v. Flight Attendants, 489 U. S. 426, 428-430 (1989). While a labor union’s good-faith advocacy of its members’ vital interests was not the specific type of conduct § 706(k) was intended to encourage, it is certainly not conduct that the statute aimed to deter.
Of course, an intervenor may sometimes raise an argument that brings into question not merely the appropriateness of the remedy but the plaintiff’s very entitlement to relief. Here, for example, petitioner advanced one argument that would have prevented the District Court’s approval of any relief for Subclass B respondents. But that an intervenor can advance the same argument as a defendant does not mean that the two must be treated alike for purposes of fee assessments. The central fact remains that petitioner litigated (and lost) not to avoid liability for violation of the law but to prevent TWA’s bargaining away of its members’ seniority rights in order to settle with respondents. It was entitled, like any litigant, to pursue that legitimate end through arguments that go to the merits no less than through arguments that go only to the scope of the relief. It would hardly serve the congressional policy in favor of “vigorous” adversary proceedings, Christiansburg Garment, 434 U. S., at 419, to require intervenors to disguise or avoid their strongest arguments in order to escape liability for attorney’s fees. Moreover, it is often quite difficult to separate arguments directed to the appropriate remedy from arguments directed to the existence or extent of past violations, so that making fees turn upon that distinction would violate our admonition that “a request for attorney’s fees should not result in a second major litigation.” Hensley v. Eckerhart, 461 U. S. 424, 437 (1983).
* * *
Because the courts below incorrectly presumed that petitioner was liable for attorney’s fees to respondents, and accordingly made no inquiry as to whether petitioner’s intervention was frivolous, unreasonable, or without foundation, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Stevens took no part in the consideration or decision of this case.
“Competitive status” seniority is used “to allocate entitlements to scarce benefits among competing employees," Franks v. Bowman Transportation Co., 424 U. S. 747, 766 (1976), while “benefit” seniority is used “to compute noncompetitive benefits earned under the contract of employment,” ibid.
The language of §706(k) is substantially the same as § 204(b) of the Civil Rights Act of 1964, 42 U. S. C. § 2000a-3(b), which we interpreted in Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400 (1968), and 42 U. S. C. § 1988, which we interpreted in Hensley v. Eckerhart, 461 U. S. 424 (1983). We have stated in the past that fee-shifting statutes’ similar language is “a strong indication” that they are to be interpreted alike. Northcross v. Memphis Bd. of Educaticm, 412 U. S. 427, 428 (1973). See also Hanrahan v. Hampton, 446 U. S. 754, 758, n. 4 (1980) (noting that § 1988 was patterned on § 204(b) and § 706(k)); Hensley, supra, at 433, n. 7 (noting that the standards set forth in the opinion apply to all fee-shifting statutes with “prevailing party” language).
The dissent, post, at 772, n. 1, distorts our holding in United States v. Monsanto, ante, at 613, by describing it as “concludfing] that statutory construction that transforms the word ‘may' into the words ‘may not’ . . . impermissibly frustrates legislative intent.” What we plainly said there was that “may” cannot be transformed into “may not” in such fashion as to frustrate the legislative intent.
The dissent repeatedly implies that intervenors are no more than in-termeddlers who get in the way of tidy settlement agreements between Title VII plaintiffs and wrongdoers. See post, at 770, 774, 775, 777, 778, 779. That characterization might be understandable if our opinion addressed intervenors who are not themselves affected by the outcome of the lawsuit; but it does not. See infra, at 765. What is at issue here is only the liability of intervenors who enter lawsuits to defend their own constitutional or statutory rights. It seems to us that the dissent dismisses out of hand the legitimate claims of these people, not because they are intermed-dlers, but rather because the dissenters have established a judge-made ranking of rights, authorizing Title VII claims to prevail over all others. That is the essential difference between us. Whereas we think that the fee-award provision is subject to “the competing equities that Congress normally takes into account,” supra, at 761, the dissent believes that we “must be guided first and foremost by the interests of the prevailing party” (so long as that is the Title VII plaintiff and not the defendant, see Christiansburg Garment Co. v. EEOC. 434 U. S. 412 (1978)). post, at 771, and that the only criterion of our decision is that it “respect the objectives of Title VII," post, at 772. Those objectives must of course be respected. But nothing in the statute gives them hegemony over all the other rights and equities that exist in the world. Here as elsewhere, the judicial role is to reconcile competing rights that Congress has established and competing interests that it normally takes into account. See, e. g., Ford Motor Co. v. EEOC, 458 U. S. 219, 239-240 (1982). When Congress wishes Title VII rights to sweep away all others it will say so.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
EVANS et al. v. TECHE LINES, Inc.
No. 9463.
Circuit Court of Appeals, Fifth Circuit.
June 25, 1940.
Thomas Brady, T. P. Brady, and R. Pearce Phillips, all of Brookhaven, Miss., for appellants.
Hugh V. Wall, of Brookhaven, Miss., for appellee.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
FOSTER, Circuit Judge.
Appellants, plaintiffs below, are the. father and mother and five minor brothers and sisters of James C. Evans, who died as the result of a collision between a Ford automobile he was driving and a bus owned and operated by appellee. The suit was brought to recover damages of $50,000. The accident occurred on highway No. 51, about 2 miles south of Bryam, in Hinds County, Mississippi. At that point the highway runs approximately north and south and is straight. It is a double lane paved road with a mark down the centre to divide the lanes. The bus was travelling south and the Ford was travelling north. By the law of Mississippi each vehicle was required to stay in its own lane, which was to the right of the center as to each, the west side for the bus and the east side for the Ford. Code Supp.Miss.1938, § 1439 et seq. The negligence alleged is that the bus was operating at an excessive and dangerous speed of 60 to 65 miles per hour, was defective and just prior to the accident was driving on the east side of the road. The collision occurred on the west side of the road where the bus had the right to be. Evans, his wife, three other persons in the Ford and the driver of the bus were killed. Defendant answered, denying negligence and pleading contributory negligence. At the close of the evidence a verdict was directed in favor of defendant. Appellants assign error to that action of the court; to the refusal to permit them to take a voluntary non-suit; to the exclusion of part of the testimony of one witness, Dr. Moore; and to 1he refusal to grant a new trial.
Under the law of Mississippi the maximum legal rate of speed at the place where the accident occurred was 55 miles per hour. Code Supp.Miss. 1938, § 1434. There was evidence of seven persons who were passengers on the bus and two witnesses who were in another automobile, tending to show that the bus was on its right side óf the road prior to and at the time of the collision and that it was not running at a rate of more than 50 miles an hour. Defendant also offered proof tending to show that the bus was comparatively new and was equipped with a governor that prevented it from running at the rate of more than 50 miles an hour.
To show a conflict in the evidence requiring the case to be submitted to the jury, appellants rely on the testimony of a witness, Smith, and the evidence of Dr. Moore, which was excluded. Smith testified, in substance, that he first saw the bus when it crossed a bridge about 200 or 300 yards away. It was going about 40 miles an hour. It picked up speed to get over a rise in the road but he did not testify it was going at a greater rate of speed than 50 miles an hour. He did not see the accident but went to the scene aftér it occurred. The excluded evidence of Dr. Moore was, in substance that he stopped to pick up his wife and then went on in the same direction the bus was going and did not overtake it until after the accident although he drove at between 60 and 75 miles per hour. Appellants also rely on these facts. The day after the accident a large piece of sheet metal which might have been a drip pan under the bus was found on the side of the road and there were marks on the highway that might have been made by the end of a bolt or other objects attached to the bus. There was no evidence tending to connect these physical facts with the bus.
After the motion for a directed verdict was made, had been argued and the court had announced its intention to direct a verdict, appellants moved for a non-suit. This was denied. Later a new trial was sought and denied.
It is apparent the evidence of Smith, the excluded evidence of Dr. Moore and the physical facts also relied on by plaintiff had no probative force as tending to show that either the driver or owner of the bus was guilty of negligence causing or contributing to the accident. It is a well established rule in the courts of the United States that where the evidence is so overwhelmingly on one side as to leave no room for doubt as to what the facts are, the court should give a peremptory instruction to the jury. Atchison, Topeka, etc., R. Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281, 74 L.Ed. 896; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720.
Under the provisions of Rule 41 (b), Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, after issue is joined in a case, the action may not be dismissed at the plaintiff’s instance save upon order of the court upon such terms and conditions as the court deems proper. The granting of a motion of the plaintiff for a non-suit was within the sound discretion of the trial court. When the trial of the action had progressed as far as in the case at bar it can not be said there was an abuse of discretion by the court in refusing to permit a non-suit. The motion for a new trial was considered by the court and presented nothing new. It was within the sound discretion of the court to deny it, under the provisions of Rule 59, Rules of Civil Procedure.
The record presents no reversible error. The judgment is affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES of America, Appellee, v. Joseph Michael LINCOLN, a/k/a Mohammed Ali Ballagh Omer, Appellant.
No. 90-5172MN.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 16, 1990.
Decided Feb. 6, 1991.
Daniel M. Scott, Minneapolis, Minn., for appellant.
Henry J. Shea, Minneapolis, Minn., for appellee.
Before ARNOLD and MAGILL, Circuit Judges, and BENSON, Senior District Judge.
The Honorable Paul Benson, Senior United States District Judge for the District of North Dakota.
ARNOLD, Circuit Judge.
Joseph Lincoln appeals his convictions for arson and mail fraud. A jury found that he burned down his grocery store and then tried to collect on his insurance. The District Court sentenced Lincoln to ten years in jail for the arson and a year and nine months in jail for the mail fraud. Judge Murphy decided that the sentences should run consecutively. Lincoln was also fined $10,000 and ordered to make around $37,000 in restitution to his landlord and his landlord’s insurance company. Lincoln assigns two errors on appeal. He challenges a jury instruction on his aiding and abetting the arson, arguing that it was not grounded in the indictment, that he was unfairly surprised by it, and that it was not supported by the evidence. He also challenges his sentence. Lincoln contends that because his two criminal acts were part of one scheme, his sentences should have been concurrent instead of consecutive. We affirm the appellant’s convictions and sentence.
Early one morning in August of 1987, someone set fire to Lincoln’s Market — a neighborhood grocery store. Joseph Lincoln is the Lincoln of Lincoln’s Market. He was vacationing with his family in Manka-to, Minnesota, when the fire occurred. Soon thereafter, Lincoln filed a claim by mail with his insurance company for the loss of his grocery store’s contents. It does not appear from the record that his claim was ever paid. It was clear from the beginning that this was a case of arson. Gasoline had been spread around the building, and the fumes were ignited by the pilot light of the hot-water heater. The Market's contents were destroyed and the building damaged. Suspicion centered on Lincoln. He was indicted, pleaded not guilty, and a jury trial followed. Lincoln was convicted of both arson and mail fraud, and has now taken this appeal.
Lincoln first urges that the District Court erred in submitting an aiding-and-abetting instruction to his jury. The indictment charges Lincoln with actually burning down the grocery store himself. The appellant says all the government's proof and its theory of the case supported that explanation. At the last moment, however, and to his disadvantage, the government supposedly hedged its bet by convincing the District Court to instruct the jury on an alternative theory of guilt: Lincoln could be convicted if he participated in the arson in any way. The appellant seeks a new trial on this basis.
The government rightly notes, and Lincoln eventually concedes, that the law does not require amending an indictment to instruct a jury (or indeed convict a defendant) on the lesser offense of aiding and abetting the principal crime charged. See, e.g., United States v. Frye, 548 F.2d 765, 767 n. 4 (8th Cir.1977) (citing cases). The appellant's allegations of a constructively amended indictment, then, boil down to two different allegations of error: he found out about the aiding-and-abetting instruction so late in the day that his defense was harmed, and the evidence simply did not support the instruction.
We are unconvinced that the appellant deserves a new trial on this basis. The record demonstrates Lincoln had clear notice of the instruction before his trial began, and that ample evidence presented during the trial justified the instruction. A week before trial Lincoln received the government's proposed jury instructions-including an aiding-and-abetting instruction. In his opening statement the United States Attorney contended that Lincoln "actively participated in" and "orchestrated" the arson; he did not claim that the evidence would prove Lincoln started the fire. T. 1-81, 84. The ultimate decision regarding what role, if any, Lincoln actually played in the arson was left in the jury's hands. Moreover, the evidence supported alternative interpretations of that role. At least one government witness placed Lincoln at the crime scene. Other witnesses (including some defense witnesses) testified they saw several individuals-none of whom was Lincoln-around the Market before the fire erupted. Most importantly, gasoline cans found at the burned-out store were traced to a K-Mart store in Mankato, Minnesota. A man resembling Lincoln purchased similar cans there the day before the fire. In sum, the evidence supported a reasonable conclusion that Lincoln at least helped in the arson. This evidentiary foundation, and the fact that the defense had no good legal reason to be surprised by this theory of Lincoln's guilt, makes the aiding- and-abetting instruction proper.
Lincoln next argues that the District Court abused its discretion at sentencing. He does not challenge either his ten-year sentence for arson or his twenty-one month sentence for mail fraud. Rather, Lincoln presses us to conclude that his two sentences should be served concurrently instead of consecutively. The appellant's claim is complicated by the timing of his crimes. He burned down his store before the effective date of the federal Sentencing Guidelines, but he mailed his fraudulent insurance claim after the Guidelines took effect. If both of Lincoln's crimes had been pre-Guidelines offenses, as he concedes, he would not have much of an argument here; the choice between consecutive and concurrent sentences, like almost all aspects of the sentence, was within the sentencing court's discretion. United States v. Tucker, 404 U.S. 443, 446-47, 92 S.Ct. 589, 591-92, 30 L.Ed.2d 592 (1972). If both Lincoln's crimes were Guidelines offenses, he might have a stronger claim; the Guidelines carefully channel all sentencing discretion, including whether to impose concurrent or consecutive sentences for related crimes. U.S.S.G. § 3D1.2. Lin-coin’s case has one foot in each of these sentencing worlds, and we must decide what difference that makes.
We conclude that the posture of this case does not determine Lincoln’s sentence. We are guided to our decision by the well-reasoned opinions of two of our sister circuit courts which have already faced this straddle situation. See United States v. Watford, 894 F.2d 665 (4th Cir.1990) (Wilkins, J.); United States v. Garcia, 903 F.2d 1022 (5th Cir.), cert. denied, — U.S. —, 111 S.Ct. 364, 112 L.Ed.2d 327 (1990). The upshot of these cases is that while district courts may be guided in their decision by the Sentencing Guidelines, it is not an abuse of discretion to impose consecutive sentences when a defendant stands convicted of related pre-Guidelines and Guidelines offenses — even if the Guidelines would mandate concurrent sentences if both offenses were subject to them.
Both Watford and Garcia affirmed consecutive sentences that would have been concurrent under the Guidelines. We adopt their reasoning insofar as it applies to this case. Whether to impose concurrent or consecutive sentences was within Judge Murphy’s informed discretion. At sentencing she stated she had considered all the evidence at trial, the pre-sentence report, the nature of Lincoln’s crimes, and his potential victims. That she did not consider or follow the Guidelines in deciding to impose consecutive sentences on Lincoln does not impair her deliberations. We affirm her decision.
The result in this case would probably not change even if both of Lincoln’s crimes were within reach of the Sentencing Guidelines. We are not persuaded that his crimes are so closely related as to deserve concurrent sentences. They are surely parts of the same scheme. But the appellant's arson and mail fraud had different potential victims: the people who lived above the grocery store and the insurance company. The different harms Lincoln could have inflicted probably justify consecutive sentences even under the current regime. See U.S.S.G. § 3D1.2.
The appellant’s convictions and sentence are
Affirmed
. The Honorable Diana E. Murphy, United States District Judge for the District of Minnesota.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_casetyp1_7-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
PAGE v. RHODE ISLAND HOSPITAL TRUST CO.
No. 3184.
Circuit Court of Appeals, First Circuit.
Feb. 12, 1937.
Edward H. Horton, Sp. Asst, to Atty. Gen. (Robert H. Jackson, Asst. Atty. Gen., Sewall Key, Norman D. Keller, and Samuel E. Blackham, Sp. Assts. to Atty. Gen., and J. Howard McGrath, U. S. Atty., of Providence, R. I., on the brief), for appellant.
James F. Armstrong, of Providence, R. I. (Harold A. Andrews and Hinckley, Allen, Tillinghast & Wheeler, all of Providence, R. I., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
This is an appeal from a judgment of the District Court of Rhode Island in an action to recover alleged overpayment of income taxes by the plaintiff’s testator, Henry Pearce, Jr., for the year 1928.
Plaintiff’s testator had for several years prior to 1924 purchased and sold securities on the New York Exchange through Harriman & Co., as brokers, with whom he had what is termed in brokerage circles a “margin account.” During that time he was supposed to maintain with the brokers, either in the form of cash or securities, a margin equal to at least 10 per cent, of the cost of the securities purchased on his account.
For some reason, the brokers permitted the plaintiff’s testator to purchase securities to a large amount without requiring the customary margin, and as a result, in the falling market following the World War, plaintiff’s testator became indebted to his brokers in large amounts by reason of the sale of securities at less than cost.
In 1919 the excess of the cost over the selling price of securities carried for him by his brokers on his account and sold during that year was $125,030.33. In 1923 the excess of cost over the selling price of securities carried for him by his brokers and sold during that year was $124,363.50; and in 1924 the excess of cost over the selling price of securities carried for him and sold by his brokers was $19,525, or a total of $268,918.83.
During 1923 plaintiff’s testator reduced his account with his brokers by payments to the amount of $133,899.40. During the year 1924 his brokers purchased on his account 2,500 shares of Corn Products for the sum of $84,687.50, bringing his indebtedness to his brokers up to $218,409.05, for which he gave his brokers two promissory notes on six months’ time, one for $150,000 and the other for $68,-409.05.
These notes were- renewed at each maturity thereof until 1928, when the Corn Products stock was sold by his brokers to meet these notes for $217,912.50. To clo’se the account which had increased somewhat by reason of interest charges and an allowance of an agreed underpayment of income tax in the year 1926, the plaintiff’s testator paid to the brokers in addition to the amount received from the sale of Corn Products the sum of $4,074.-92.
The District Court found that it was not the usual type of “margin account” where the customer had kept his “margin” up to 10 per cent, of the cost of the stocks carried for him, but was a heavily “under-margined” account, and when the securities were sold in 1919, 1923, and 1924, there was no equity in any securities held on “margin” by the brokers for the customer to offset the loss on the sales, and the brokers were obliged to carry the customer as a debtor to the extent of approximately $134,500, which the District Court found the plaintiff’s testator was unable to discharge. The plaintiff’s testator gave his notes for this amount, plus the cost of the 2,500 shares of Corn Products stock, with an assignment of interest in a certain trust estate as collateral security for this debt.
The question is, with a customer’s account in which there was no equity to apply in settlement of any losses from the sale of securities, and the customer’s notes being given for the debt owing to the brokers, whether there was any deductible loss “paid or accrued”, within the meaning of section 43 of the 1928 Act (26 U.S.C.A. § 43 and note), until the final adjustment of the debt upon the sale of the Corn Products stock in 1928.
The plaintiff’s testator made his returns on a cash receipts and disbursements basis. While apparently he filed a return in 1919, 1923, and 1924 showing his losses by reason of the sales of securities, other losses offset all gains for each of these years, and the inclusion by the taxpayer of the losses above referred to for either of these years was error, inasmuch as they still remained an undischarged debt and not a deductible loss.
Nor did the giving of notes for these losses constitute a payment thereof so as to create a deductible loss. To be deductible a loss must be paid in cash or its equivalent. There must be an actual depletion of the property of the taxpayer. The giving of a note for losses is not sufficient to permit a deduction.
“If the note is never paid, the taxpayer has parted with nothing more than his promise to pay. A promise to pay is not cash, and a deduction * * * is permissible only in the taxable year in which 'the taxpayer pays cash.” Hart v. Commissioner (C.C.A.) 54 F.(2d) 848, 852.
“The mere existence of liability is not enough to establish a deductible loss. There is liability in the case of a breach of contract, but as the Court said in Lucas v. American Code Co., 280 U.S. 445, 450 [50 S.Ct. 202, 203, 74 L.Ed. 538 [67 A.L.R. 1010], ‘even an unquestionable breach does not result in loss, if the injured party forgives or refrains from prosecuting his claim.’ ” Burnet v. Huff et al., 288 U.S. 156, 160, 53 S.Ct. 330, 331, 77 L.Ed. 670.
In Eckert v. Burnet, 283 U.S. 140, 141, 142, 51 S.Ct. 373, 374, 75 L.Ed. 911, the court said:
“A deduction may be permissible in the taxable year in which the petitioner' pays cash. The petitioner says that it was definitely ascertained in 1925 that the petitioner would sustain the losses in question. So it was, if the petitioner ultimately pays his note.”
So in the instant case, it was apparent that the taxpayer sustained a loss, provided he paid his notes. He did not discharge his debt until the year 1928, and from the receipts of the sale of the Corn Products stock.
The cases of Osterloh v. Lucas (C.C.A.) 37 F.(2d) 277, North American Oil Consolidated v. Burnet, 286 U.S. 417, 52 S.Ct. 613, 76 L.Ed. 1197, Lucas v. Providence Coal Mining Co. (C.C.A.) 60 F.(2d) 86, 87, Insurance Finance Corporation v. Commissioner (C.C.A.) 84 F.(2d) 382, are all cases where the actual loss could be identified as occurring in one year, but it could not be deductible until a later year or years.
While, as claimed by the government, sales of stock are ordinarily sufficient to identify losses as occurring in a certain year, in the case of “grossly under-margined” account, as in this case, the loss merely represents a debt due a broker from the customer. Until there is a reimbursement of the broker, there is no certainty that the customer and taxpayer will ever actually suffer a loss within the purview of the Revenue Act, especially when the loss is carried along from year to year in the form of notes which may or may not ever be paid, or which the payee may never see fit to enforce.
Cases which merely hold that losses are deductible in the year in which they are identifiable, have no application to a case where, though they occurred in a certain year from the sale of securities by a broker., there is no margin account on which they can be recouped and there is no certainty that the customer will ever be able to make restitution to the broker for the loss in case of a “grossly undermargined” account. The mere liability for a loss is not sufficient to permit a deduction. Lucas v. American Code Company, supra. • It can only be deducted when the customer has in effect discharged the debt incurred by his broker in his behalf.
The government seeks to differentiate the above cases, but we think they clearly show that where the taxpayer •makes return on a cash receipts and disbursements basis, and the losses from the sale of securities have become merely an obligation of the customer, the customer cannot deduct such indebtedness as a loss until he has actually discharged it. In case of an “under-margined” account, the sale of the securities results in a loss to the broker, unless the customer at some later time is able to make good the indebtedness resulting. The usual case of broker and customer, where the broker has required that the customary 10 per cent, margin be maintained by the customer does not apply here. In such cases the loss on the sale of securities would be immediately charged against the “margin account” of the customer and as a result actual depletion of the customer’s property and a deductible loss would follow.
Here the loss on sale of securities is represented merely by the indebtedness of the customer, and in the form of notes. If paid, a deductible loss to the customer occurs as of the date of payment. If they should never be paid, as in case of bankruptcy, they become merely a bad debt of the broker which he may deduct in his return during the year when it is shown that it is uncollectible. In such case the customer should not also have the benefit of a deduction.
The judgment of the District Court is affirmed with costs of this court.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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sc_lcdisposition
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
NEBRASKA, et al., Petitioners
v.
Mitch PARKER, et al.
No. 14-1406.
Supreme Court of the United States
Argued Jan. 20, 2016.
Decided March 22, 2016.
James D. Smith, Solicitor General, for Petitioners.
Paul D. Clement, Washington, DC, for Private Respondents.
Allon Kedem, Washington, DC, for Federal Respondent.
Douglas J. Peterson, Nebraska Attorney General, James D. Smith, Solicitor General of Nebraska, Ryan S. Post, David A. Lopez, Assistant Attorneys General, Lincoln, NE, for the State of Nebraska.
Gene Summerlin, Marnie Jensen, Mark D. Hill, Husch Blackwell, LLP, Lincoln, NE, for Individual & Village Petitioners.
Donald B. Verrilli, Jr. Solicitor General, John C. Cruden, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Allon Kedem, Assistant to the Solicitor General, William B. Lazarus, Mary Gabrielle Sprague, Katherine J. Barton, Daron Carreiro, Attorneys, Department of Justice, Washington, DC, for the United States.
Maurice R. Johnson, Attorney General, Omaha Tribe of Nebraska, Macy, NE, Paul D. Clement, Jeffrey M. Harris, Subash S. Iyer, Bancroft PLLC, Washington, DC, Nora M. Kane, Stinson Leonard Street LLP, Mark J. Peterson, Peterson Law Office, LLC, Patricia A. Zieg, Patricia A. Zieg Law Offices, LLC, Omaha, NE, for Omaha Tribal Council Respondents.
Justice THOMAS delivered the opinion of the Court.
The village of Pender, Nebraska sits a few miles west of an abandoned right-of-way once used by the Sioux City and Nebraska Railroad Company. We must decide whether Pender and surrounding Thurston County, Nebraska, are within the boundaries of the Omaha Indian Reservation or whether the passage of an 1882 Act empowering the United States Secretary of the Interior to sell the Tribe's land west of the right-of-way "diminished" the reservation's boundaries, thereby "free[ing]" the disputed land of "its reservation status." Solem v. Bartlett, 465 U.S. 463, 467, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984). We hold that Congress did not diminish the reservation in 1882 and that the disputed land is within the reservation's boundaries.
I
A
Centuries ago, the Omaha Tribe settled in present-day eastern Nebraska. By the mid-19th century, the Tribe was destitute and, in exchange for much-needed revenue, agreed to sell a large swath of its land to the United States. In 1854, the Tribe entered into a treaty with the United States to create a 300,000-acre reservation. Treaty with the Omahas (1854 Treaty), Mar. 16, 1854, 10 Stat. 1043. The Tribe agreed to "cede" and "forever relinquish all right and title to" its land west of the Mississippi River, excepting the reservation, in exchange for $840,000, to be paid over 40 years. Id., at 1043-1044.
In 1865, after the displaced Wisconsin Winnebago Tribe moved west, the Omaha Tribe agreed to "cede, sell, and convey" an additional 98,000 acres on the north side of the reservation to the United States for the purpose of creating a reservation for the Winnebagoes. Treaty with the Omaha Indians (1865 Treaty), Mar. 6, 1865, 14 Stat. 667-668. The Tribe sold the land for a fixed sum of $50,000. Id ., at 667.
In 1872, the Tribe again expressed its wish to sell portions of the reservation, but Congress took a different tack than it had in the 1854 and 1865 Treaties. Instead of purchasing a portion of the reservation for a fixed sum, Congress authorized the Secretary of the Interior to survey, appraise, and sell up to 50,000 acres on the western side of the reservation "to be separated from the remaining portion of said reservation" by a north-south line agreed to by the Tribe and Congress. Act of June 10, 1872 (1872 Act), ch. 436, § 1, 17 Stat. 391. Under the 1872 Act, a nonmember could purchase "tracts not exceeding one hundred and sixty acres each" or "the entire body offered." Ibid . Proceeds from any sales would be "placed to the credit of said Indians on the books of the treasury of the United States." Ibid . But the proceeds were meager. The 1872 Act resulted in only two sales totaling 300.72 acres.
Then came the 1882 Act, central to the dispute between petitioners and respondents. In that Act, Congress again empowered the Secretary of the Interior "to cause to be surveyed, if necessary, and sold" more than 50,000 acres lying west of a right-of-way granted by the Tribe and approved by the Secretary of the Interior in 1880 for use by the Sioux City and Nebraska Railroad Company. Act of Aug. 7, 1882 (1882 Act), 22 Stat. 341. The land for sale under the terms of the 1882 Act overlapped substantially with the land Congress tried, but failed, to sell in 1872. Once the land was appraised "in tracts of forty acres each," the Secretary was "to issue [a] proclamation" that the "lands are open for settlement under such rules and regulations as he may prescribe." §§ 1, 2, id., at 341. Within one year of that proclamation, a nonmember could purchase up to 160 acres of land (for no less than $2.50 per acre) in cash paid to the United States, so long as the settler "occup[ied]" it, made "valuable improvements thereon," and was "a citizen of the United States, or ... declared his intention to become such." § 2, id., at 341. The proceeds from any land sales, "after paying all expenses incident to and necessary for carrying out the provisions of th[e] act," were to "be placed to the credit of said Indians in the Treasury of the United States." § 3, id., at 341. Interest earned on the proceeds was to be "annually expended for the benefit of said Indians, under the direction of the Secretary of the Interior." Ibid.
The 1882 Act also included a provision, common in the late 19th century, that enabled members of the Tribe to select individual allotments, §§ 5-8, id., at 342-343, as a means of encouraging them to depart from the communal lifestyle of the reservation. See Solem, supra, at 467, 104 S.Ct. 1161. The 1882 Act provided that the United States would convey the land to a member or his heirs in fee simple after holding it in trust on behalf of the member and his heirs for 25 years. § 6, 22 Stat. 342. Members could select allotments on any part of the reservation, either east or west of the right-of-way. § 8, id., at 343.
After the members selected their allotments-only 10 to 15 of which were located west of the right-of-way-the Secretary proclaimed that the remaining 50,157 acres west of the right-of-way were open for settlement by nonmembers in April 1884. One of those settlers was W.E. Peebles, who "purchased a tract of 160 acres, on which he platted the townsite for Pender." Smith v. Parker, 996 F.Supp.2d 815, 828 (D.Neb.2014).
B
The village of Pender today numbers 1,300 residents. Most are not associated with the Omaha Tribe. Less than 2% of Omaha tribal members have lived west of the right-of-way since the early 20th century.
Despite its longstanding absence, the Tribe sought to assert jurisdiction over Pender in 2006 by subjecting Pender retailers to its newly amended Beverage Control Ordinance. The ordinance requires those retailers to obtain a liquor license (costing $500, $1,000, or $1,500 depending upon the class of license) and imposes a 10% sales tax on liquor sales. Nonmembers who violate the ordinance are subject to a $10,000 fine.
The village of Pender and Pender retailers, including bars, a bowling alley, and social clubs, brought a federal suit against members of the Omaha Tribal Council in their official capacities to challenge the Tribe's power to impose the requirements of the Beverage Control Ordinance on nonmembers. Federal law permits the Tribe to regulate liquor sales on its reservation and in "Indian country" so long as the Tribe's regulations are (as they were here) "certified by the Secretary of the Interior, and published in the Federal Register." 18 U.S.C. § 1161. The challengers alleged that they were neither within the boundaries of the Omaha Indian Reservation nor in Indian country and, consequently, were not bound by the ordinance.
The State of Nebraska intervened on behalf of the plaintiffs, and the United States intervened on behalf of the Omaha Tribal Council members. The State's intervention was prompted, in part, by the Omaha Tribe's demand that Nebraska share with the Tribe revenue that the State received from fuel taxes imposed west of the right-of-way. In addition to the relief sought by Pender and the Pender retailers, Nebraska sought a permanent injunction prohibiting the Tribe from asserting tribal jurisdiction over the 50,157 acres west of the abandoned right-of-way.
After examining the text of the 1882 Act, as well as the contemporaneous and subsequent understanding of the 1882 Act's effect on the reservation boundaries, the District Court concluded that Congress did not diminish the Omaha Reservation in 1882. 996 F.Supp.2d, at 844. Accordingly, the District Court denied the plaintiffs' request for injunctive and declaratory relief barring the Tribe's enforcement of the Beverage Control Ordinance. The Eighth Circuit affirmed. Smith v. Parker, 774 F.3d 1166, 1168-1169 (2014). We granted certiorari to resolve whether the 1882 Act diminished the Omaha Reservation. 576 U.S. ----, 136 S.Ct. 27, 192 L.Ed.2d 998 (2015).
II
We must determine whether Congress "diminished" the Omaha Indian Reservation in 1882. If it did so, the State now has jurisdiction over the disputed land. Solem, 465 U.S., at 467, 104 S.Ct. 1161. If Congress, on the other hand, did not diminish the reservation and instead only enabled nonmembers to purchase land within the reservation, then federal, state, and tribal authorities share jurisdiction over these "opened" but undiminished reservation lands. Ibid .
The framework we employ to determine whether an Indian reservation has been diminished is well settled. Id., at 470-472, 104 S.Ct. 1161. "[O]nly Congress can divest a reservation of its land and diminish its boundaries," and its intent to do so must be clear. Id., at 470, 104 S.Ct. 1161. To assess whether an Act of Congress diminished a reservation, we start with the statutory text, for "[t]he most probative evidence of diminishment is, of course, the statutory language used to open the Indian lands." Hagen v. Utah, 510 U.S. 399, 411, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994). Under our precedents, we also "examine all the circumstances surrounding the opening of a reservation." Id ., at 412, 114 S.Ct. 958. Because of "the turn-of-the-century assumption that Indian reservations were a thing of the past," many surplus land Acts did not clearly convey "whether opened lands retained reservation status or were divested of all Indian interests." Solem, supra, at 468, 104 S.Ct. 1161. For that reason, our precedents also look to any "unequivocal evidence" of the contemporaneous and subsequent understanding of the status of the reservation by members and nonmembers, as well as the United States and the State of Nebraska. South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 351, 118 S.Ct. 789, 139 L.Ed.2d 773 (1998).
A
As with any other question of statutory interpretation, we begin with the text of the 1882 Act, the most "probative evidence" of diminishment. Solem, supra, at 470, 104 S.Ct. 1161 ; see, e.g., United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) ("The task of resolving the dispute over the meaning of [a statutory text] begins where all such inquiries must begin: with the language of the statute itself"). Common textual indications of Congress' intent to diminish reservation boundaries include "[e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests" or "an unconditional commitment from Congress to compensate the Indian tribe for its opened land." Solem, supra, at 470, 104 S.Ct. 1161. Such language "providing for the total surrender of tribal claims in exchange for a fixed payment" evinces Congress' intent to diminish a reservation, Yankton Sioux, supra, at 345, 118 S.Ct. 789 and creates "an almost insurmountable presumption that Congress meant for the tribe's reservation to be diminished," Solem, supra, at 470-471, 104 S.Ct. 1161. Similarly, a statutory provision restoring portions of a reservation to "the public domain" signifies diminishment. Hagen, 510 U.S., at 414, 114 S.Ct. 958. In the 19th century, to restore land to the public domain was to extinguish the land's prior use-its use, for example, as an Indian reservation-and to return it to the United States either to be sold or set aside for other public purposes. Id., at 412-413, 114 S.Ct. 958.
The 1882 Act bore none of these hallmarks of diminishment. The 1882 Act empowered the Secretary to survey and appraise the disputed land, which then could be purchased in 160-acre tracts by nonmembers. 22 Stat. 341. The 1882 Act states that the disputed lands would be "open for settlement under such rules and regulations as [the Secretary of the Interior] may prescribe." Ibid . And the parcels would be sold piecemeal in 160-acre tracts. Ibid. So rather than the Tribe's receiving a fixed sum for all of the disputed lands, the Tribe's profits were entirely dependent upon how many nonmembers purchased the appraised tracts of land.
From this text, it is clear that the 1882 Act falls into another category of surplus land Acts: those that "merely opened reservation land to settlement and provided that the uncertain future proceeds of settler purchases should be applied to the Indians' benefit." DeCoteau v. District County Court for Tenth Judicial Dist., 420 U.S. 425, 448, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975). Such schemes allow "non-Indian settlers to own land on the reservation." Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351, 356, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962). But in doing so, they do not diminish the reservation's boundaries.
Our conclusion that Congress did not intend to diminish the reservation in 1882 is confirmed by the text of earlier treaties between the United States and the Tribe. See Mattz v. Arnett, 412 U.S. 481, 504, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973) (comparing statutory text to earlier bills). In drafting the 1882 Act, Congress legislated against the backdrop of the 1854 and 1865 Treaties-both of which terminated the Tribe's jurisdiction over their land "in unequivocal terms." Ibid . Those treaties "ced[ed]" the lands and "reliquish [ed]" any claims to them in exchange for a fixed sum. 10 Stat. 1043-1044; see also 14 Stat. 667 ("The Omaha tribe of Indians do hereby cede, sell, and convey to the United States a tract of land from the north side of their present reservation ..." (emphasis added)). The 1882 Act speaks in much different terms, both in describing the way the individual parcels were to be sold to nonmembers and the way in which the Tribe would profit from those sales. That 1882 Act also closely tracks the 1872 Act, which petitioners do not contend diminished the reservation. The change in language in the 1882 Act undermines petitioners' claim that Congress intended to do the same with the reservation's boundaries in 1882 as it did in 1854 and 1865. Petitioners have failed at the first and most important step. They cannot establish that the text of the 1882 Act evinced an intent to diminish the reservation.
B
We now turn to the history surrounding the passage of the 1882 Act. The mixed historical evidence relied upon by the parties cannot overcome the lack of clear textual signal that Congress intended to diminish the reservation. That historical evidence in no way "unequivocally reveal[s] a widely held, contemporaneous understanding that the affected reservation would shrink as a result of the proposed legislation." Solem, 465 U.S., at 471, 104 S.Ct. 1161 (emphasis added); see also Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (describing the "often murky, ambiguous, and contradictory" nature of extratextual evidence of congressional intent).
Petitioners rely largely on isolated statements that some legislators made about the 1882 Act. Senator Henry Dawes of Massachusetts, for example, noted that he had been "assured that [the 1882 Act] would leave an ample reservation " for the Tribe. 13 Cong. Rec. 3032 (1882) (emphasis added). And Senator John Ingalls of Kansas observed "that this bill practically breaks up that portion at least of the reservation which is to be sold, and provides that it shall be disposed of to private purchasers." Id., at 3028. Whatever value these contemporaneous floor statements might have, other such statements support the opposite conclusion-that Congress never intended to diminish the reservation. Senator Charles Jones of Florida, for example, spoke of "white men purchas[ing] titles to land within this reservation and settl [ing] down with the Indians on it." Id., at 3078 (emphasis added). Such dueling remarks by individual legislators are far from the "clear and plain" evidence of diminishment required under this Court's precedent. Yankton Sioux, 522 U.S., at 343, 118 S.Ct. 789 (internal quotation marks omitted); see also Solem, 465 U.S., at 478, 104 S.Ct. 1161 (noting that it was unclear whether statements referring to a " 'reduced reservation' " alluded to the "reduction in Indian-owned lands that would occur once some of the opened lands were sold to settlers or to the reduction that a complete cession of tribal interests in the opened area would precipitate").
More illuminating than cherry-picked statements by individual legislators would be historical evidence of "the manner in which the transaction was negotiated" with the Omaha Tribe. Id., at 471, 104 S.Ct. 1161. In Yankton Sioux, for example, recorded negotiations between the Commissioner of Indian Affairs and leaders of the Yankton Sioux Tribe unambiguously "signaled [the Tribe's] understanding that the cession of the surplus lands dissolved tribal governance of the 1858 reservation." 522 U.S., at 353, 118 S.Ct. 789. No such unambiguous evidence exists in the record of these negotiations. In particular, petitioners' reliance on the remarks of Representative Edward Valentine of Nebraska, who stated, "You cannot find one of those Indians that does not want the western portion sold," and that the Tribe wished to sell the land to those who would " 'reside upon it and cultivate it' " so that the Tribe members could "benefit of these improvements," 13 Cong. Rec. 6541, falls short. Nothing about this statement or other similar statements unequivocally supports a finding that the existing boundaries of the reservation would be diminished.
C
Finally, we consider both the subsequent demographic history of opened lands, which serves as "one additional clue as to what Congress expected would happen once land on a particular reservation was opened to non-Indian settlers," Solem, 465 U.S., at 472, 104 S.Ct. 1161 as well as the United States' "treatment of the affected areas, particularly in the years immediately following the opening," which has "some evidentiary value," id., at 471, 104 S.Ct. 1161. Our cases suggest that such evidence might "reinforc[e]" a finding of diminishment or nondiminishment based on the text. Mattz, 412 U.S., at 505, 93 S.Ct. 2245 ; see also, e.g., Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 604-605, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977) (invoking subsequent history to reject a petitioner's "strained" textual reading of a congressional Act). But this Court has never relied solely on this third consideration to find diminishment.
As petitioners have discussed at length, the Tribe was almost entirely absent from the disputed territory for more than 120 years. Brief for Petitioners 24-30. The Omaha Tribe does not enforce any of its regulations-including those governing businesses, fire protection, animal control, fireworks, and wildlife and parks-in Pender or in other locales west of the right-of-way. 996 F.Supp.2d, at 832. Nor does it maintain an office, provide social services, or host tribal celebrations or ceremonies west of the right-of-way. Ibid.
This subsequent demographic history cannot overcome our conclusion that Congress did not intend to diminish the reservation in 1882. And it is not our role to "rewrite" the 1882 Act in light of this subsequent demographic history. DeCoteau, 420 U.S., at 447, 95 S.Ct. 1082. After all, evidence of the changing demographics of disputed land is "the least compelling" evidence in our diminishment analysis, for "[e]very surplus land Act necessarily resulted in a surge of non-Indian settlement and degraded the 'Indian character' of the reservation, yet we have repeatedly stated that not every surplus land Act diminished the affected reservation." Yankton Sioux, 522 U.S., at 356, 118 S.Ct. 789.
Evidence of the subsequent treatment of the disputed land by Government officials likewise has "limited interpretive value." Id., at 355, 118 S.Ct. 354. Petitioners highlight that, for more than a century and with few exceptions, reports from the Office of Indian Affairs and in opinion letters from Government officials treated the disputed land as Nebraska's. Brief for Petitioners 24-38; see also 996 F.Supp.2d, at 828, 830. It was not until this litigation commenced that the Department of the Interior definitively changed its position, concluding that the reservation boundaries were in fact not diminished in 1882. See id., at 830-831. For their part, respondents discuss late-19th-century statutes referring to the disputed land as part of the reservation, as well as inconsistencies in maps and statements by Government officials. Brief for Respondent Omaha Tribal Council et al. 45-52; Brief for United States 38-52; see also 996 F.Supp.2d, at 827, 832-833. This "mixed record" of subsequent treatment of the disputed land cannot overcome the statutory text, which is devoid of any language indicative of Congress' intent to diminish. Yankton Sioux, supra, at 356, 118 S.Ct. 789.
Petitioners' concerns about upsetting the "justifiable expectations" of the almost exclusively non-Indian settlers who live on the land are compelling, Rosebud Sioux, supra, at 605, 97 S.Ct. 1361 but these expectations alone, resulting from the Tribe's failure to assert jurisdiction, cannot diminish reservation boundaries. Only Congress has the power to diminish a reservation. DeCoteau, 420 U.S., at 449, 95 S.Ct. 1082. And though petitioners wish that Congress would have "spoken differently" in 1882, "we cannot remake history." Ibid.
* * *
In light of the statutory text, we hold that the 1882 Act did not diminish the Omaha Indian Reservation. Because petitioners have raised only the single question of diminishment, we express no view about whether equitable considerations of laches and acquiescence may curtail the Tribe's power to tax the retailers of Pender in light of the Tribe's century-long absence from the disputed lands. Cf. City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 217-221, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005).
The judgment of the Court of Appeals for the Eighth Circuit is affirmed.
It is so ordered.
Until this Court's 1903 decision in Lone Wolf v. Hitchcock, 187 U.S. 553, 566-568, 23 S.Ct. 216, 47 L.Ed. 299, the question whether Congress could unilaterally abrogate treaties with tribes and divest them of their reservation lands was unsettled. Thus, what the tribe agreed to has been significant in the Court's diminishment analysis. See, e.g., South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 351-353, 118 S.Ct. 789, 139 L.Ed.2d 773 (1998). Historical evidence of how pre-Lone Wolf sales of lands were negotiated has been deemed compelling, whereas historical evidence of negotiations post-Lone Wolf might be less so. See, e.g., Hagen v. Utah, 510 U.S. 399, 416-417, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994).
See, e.g ., Plaintiff's Brief in Support of Motion for Summary Judgment in No. 4:07-cv-03101 (D Neb.), pp. 31, 38 (defendants cannot "impose an alcohol tax and licensing scheme outside the boundaries of the Omaha Reservation"); Plaintiff Intervenor's Brief in Support of Plaintiff's Motion for Summary Judgment in No. 4:07-cv-03101 (D Neb.), pp. 1-2; see also Smith v. Parker, 996 F.Supp.2d 815, 834 (D.Neb.2014) ("In this case, I must decide whether Congress's Act of August 7, 1882 ... diminished the boundaries of the Omaha Indian Reservation, or whether the Act simply permitted non-Indians to settle within existing Omaha Reservation boundaries"); Smith v. Parker, 774 F.3d 1166, 1167 (C.A.8 2014) ("Appellants challenge the district court's determination that the Omaha Indian Reservation was not diminished by an 1882 act of Congress").
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Francis E. JACKSON, Appellant, v. UNITED STATES of America, Appellee.
No. 18144.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 14, 1964.
Decided Feb. 20, 1964.
Mr. James E. Hogan, Washington, D. C. (appointed by this court), for appellant.
Mr. Gerald A. Messerman, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Harold H. Titus, Jr., Asst. U. S. Attys., were on the brief, for appellee.
Before Bazelon, Chief Judge, and Bastian and Burger, Circuit Judges.
PER CURIAM.
Appellant was convicted on three counts of violation of narcotics laws; three concurrent sentences were imposed. At trial the principal defense was that appellant was not guilty by reason of insanity. Various errors in the conduct of the trial are asserted and we find that they are without merit save as to one contention, i. e., the claim of undue intervention in the trial by the judge in a manner prejudicial to the defendant.
The appellant’s brief of necessity takes utterances and questions of the trial judge out of context and there is no way to evaluate his claims of undue and prejudicial intervention except by an examination of the entire transcript of the trial, which we have done, in order to be sure that we “guard against the magnification on appeal of instances which were of little importance in their setting.” Even a close examination of a transcript cannot, as everyone experienced in litigation knows, truly reflect the trial itself. Sometimes a trial judge intercedes because of seeming inadequacy of examination or cross-examination of witnesses by counsel; sometimes to draw more information from reluctant witnesses or experts who are either inarticulate, less than candid or not adequately interrogated. This is permissible, of course.
At best it is difficult on appellate review to appraise the impact of intervention by the presiding judge and determine whether his participation exceeded permissible bounds. However this transcript reveals what seem to us an inordinate number of instances of extensive ■examination and cross-examination of witnesses and comments by the court. Fairly read, no single comment or question, or line of questioning, can be regarded as prejudicial, but the cumulative impact of all the trial judge's activist participation could well have been prejudicial at the very least and could have led jurors to give undue weight to points treated by the judge. In this case the responses elicited by the judge were largely adverse to appellant. In itself this does not render the judicial intervention impermissible but in it were the ■seeds of tilting the balance against the .accused and casting the judge, in the eyes of some jurors, on the side of the prosecution. This risk is always present when a presiding judge undertakes ■to interrogate witnesses at length. If a trial judge has definite ideas as to what lines of inquiry ought to be pursued, he is free to call both counsel to the bench, •or in chambers and suggest what he ■wants done. That the judge may be able to examine witnesses more skillfully or •develop a point in less time than counsel requires does not ordinarily justify such participation. That is not his function.
There are and can be no hard and fast rules as to how much questioning a judge may or should engage in because what would be appropriate in one setting would be otherwise in another. •One obvious general rule is that, since the judge is something more than a moderator, but always a neutral umpire, the interrogation of witnesses is ordinarily best left to counsel, who presumably have an intimate familiarity with the case. A presiding judge can control the trial without participating actively in examination of witnesses. In a non-jury case, as in an appellate court, needless or active interrogation by judges, although not always helpful, is rarely prejudicial. But in a jury case, a trial judge should exercise restraint and caution because of the possible prejudicial .consequences of the presider’s intervention. Cf. United States v. Paroutian, 299 F.2d 486 (2d Cir. 1962).
On the whole record we cannot say, with that degree of assurance required in a criminal case, that the activities of the trial judge may not have prejudiced the defendant, notwithstanding the strong evidence presented against him. Accordingly there must be a new trial.
Reversed and remanded for a new trial.
. Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 471, 86 L.Ed. 680 (1942).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_casetyp1_2-3-1
|
I
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - civil rights claims by prisoners and those accused of crimes".
Jackie E. UTZ et al., Appellants, v. Honorable Maurice CULLINANE.
No. 72-1116.
United States Court of Appeals, District of Columbia Circuit.
Argued June 10, 1975.
Decided Oct. 3, 1975.
Louis M. Seidman, Washington, D. C., was on the brief for appellants. William W. Taylor, III, Washington, D. C., entered an appearance for appellants.
David P. Sutton, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, Louis P. Robbins, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief for appellees.
Before WRIGHT and ROBINSON, Circuit Judges, and MERHIGE, District Judge.
Opinion for the Court filed by Circuit Judge J. SKELLY WRIGHT.
Of the United States District Court for the Eastern District of Virginia, sitting by designation pursuant to 28 U.S.C. § 292(d).
J. SKELLY WRIGHT, Circuit Judge:
Appellants in this case challenge on both constitutional and statutory grounds the Metropolitan Police Department’s policy of routinely transmitting to the Federal Bureau of Investigation the fingerprint cards and accompanying identification data of individuals who are arrested in the District of Columbia. Although we believe there is substantial merit to appellants’ constitutional contentions, we do not premise our holding on those grounds, for we believe there are narrower statutory grounds on which we must interdict this indiscriminate dissemination of arrest records in the absence of a specific FBI request for particular data to be used by the FBI or other law enforcement officials for strictly law enforcement purposes.
I
On January 7, 1971, shortly before the effective date of the District of Columbia Court Reform and Criminal Procedure Act of 1970, appellants — four individuals arrested for and charged with local criminal offenses — brought a class action for injunctive and declaratory relief to enjoin appellees — the Chief of Police and the Director of the Central Records Division of the Washington, D.C., Metropolitan Police Department— from transmitting appellants’ arrest records to the FBI and to request the return of those records already transmitted. Plaintiffs-appellants asserted that the Metropolitan Police lacked a statutory basis for engaging in this practice, which was also allegedly specifically prohibited by the “Duncan Ordinance,” a regulation promulgated by the District’s Board of Commissioners to govern the distribution of arrest records in this jurisdiction. Plaintiffs-appellants further asserted that the preconviction or post-exoneration dissemination of their arrest records abridged their constitutional rights to due process, privacy, and the presumption of innocence.
Appellant Utz was arrested on January 7, 1971 and was charged with possession of marijuana. Her case was subsequently “no papered” by the United States Attorney, and she allegedly represents the class of individuals ultimately exonerated of the charges lodged against them. Appellant Boyd was arrested on January 6, 1971 and was charged with petit larceny. At the time the complaint in this case was filed he had been released on a personal bond and was awaiting trial in the Court of General Sessions; although a nolle prosequi was entered on this charge before the District Court’s ruling in this case, he allegedly represents the class of individuals who have not yet been brought to trial and who are thus presumed to be innocent of charges pending against them. Appellant Leon M., a juvenile who brought his action by his mother and next friend, Jean M., was arrested on October 27, 1970 for unauthorized use of a motor vehicle, and he allegedly represents the class of juveniles charged in the Juvenile Branch of the Family Division of the Superior Court for the District of Columbia. The charge against Leon M. was dismissed on December 14, 1970, when he entered a plea of guilty to another traffic offense and he was sentenced to 60 days of court supervision and traffic school. Appellant Bolling was arrested on November 20, 1970 and charged with possession of numbers slips. He entered a plea of guilty to this charge on December 30, 1970 and was sentenced to one year of probation; he allegedly represents those individuals who are actually found guilty of the offenses for which they were arrested, and premises his challenge to the Metropolitan Police Department’s practices solely on statutory grounds.
Before the arrests which formed the predicate for this case, none of the named plaintiffs-appellants had a criminal record. Although they do not allege that their arrests were made without probable cause and thus do not seek ex-pungement of their arrest records, appellants contend that the dissemination of those records to the FBI, and inevitable nationwide redissemination by the FBI, will cause them irreparable injury. More particularly, appellants in their complaint maintain that fingerprint cards (containing data identifying the person arrested and information concerning the arrest) of all persons arrested and fingerprinted by the Metropolitan Police Department are routinely transmitted to the FBI, regardless of whether the charges are dismissed, “no papered,” “nollied,” reduced, or terminated through an acquittal, and that this dissemination normally transpires before a court disposes of the case. These data submitted to the FBI are allegedly added to the FBI’s Computerized Criminal History File (part of the FBI’s National Crime Information Center), from which a master “rap” sheet is prepared listing each person’s name, his identifying data, the date of the arrest, and the offense or offenses for which he was arrested; the “rap” sheet is allegedly disseminated upon request to over 14,500 public and private agencies including the United States Civil Service Commission, the Armed Services, banks, and state and local governments, which allegedly utilize that information adversely for employment and promotion purposes to the detriment of appellants and other individuals listed in the FBI’s criminal data bank.
Both plaintiffs-appellants and defendants-appellees moved for summary judgment and submitted the same affidavit of the Director of the Central Records Division of the Metropolitan Police Department describing the practice of that Department with respect to the dissemination of arrest records to the FBI. The Director averred that the Metropolitan Police Department “routinely” forwarded to the FBI the arrest records of all adults who are “charged with a felony or violation of laws against the United States” or “who because of the type of offense committed and/or records of arrest are likely to be wanted by other local or federal law enforcement agencies” or who are arrested for “participating in mass demonstrations,” as well as the arrest records of all juveniles “16 years or older who have been charged with a felony.” He also reported that as of October 1971, “all appropriate records forwarded to the FBI are subsequently supplemented with entries that reflect Court disposition.” The parties amplified on this affidavit by stipulating that the fingerprint cards of these arrestees are sent to the FBI “within several days of the arrest and generally before trial,” as are the arrest records of “most misdemeanants, excepting traffic violators], charged with violations of the D.C. Code and arrested by the Metropolitan Police.” It was also stipulated that the arrest records of appellants Leon M. and Bolling had already been submitted to the FBI, that the records of appellants Utz and Boyd would have been routinely sent to the FBI but for an agreement between counsel not to do so pending the outcome of this case, and that although the FBI will return these records to the Metropolitan Police Department at the latter’s request, the FBI will continue to keep and disseminate all records, regardless of court disposition, unless such a return of the records is requested by the Metropolitan Police.
With the case in this posture District Judge Gesell granted appellees’ motion for summary judgment, reasoning in an oral opinion that appellants’ constitutional arguments lacked “substantiality” and that the “Duncan Ordinance” was inapplicable to the relationship between the Chief of Police and the FBI.
II
In framing the constitutional question which appellants present, it is important to state with specificity what is and what is not involved in this case. First, appellants do not seek expunge-meat of the arrest records maintained by the Metropolitan Police Department. Since they do not contend that their arrests were constitutionally invalid, they admit that the mere maintenance of a record of that fact does not violate their right to due process or allow the Police Department to retain the tainted product of a Fourth Amendment violation. Indeed, appellants recognize that there are situations in which the fact of prior arrests — even those which did not culminate in a conviction — -may be legitimately employed in the criminal justice process, whether by police investigators, judicial officers, or probation or other law enforcement officials. In such situations, there are substantial procedural safeguards and significant judicial oversight which may check any potentially improper use of the information.
Second, appellants do not challenge the constitutional propriety of disseminating particular arrest records to the FBI when there is a specific law enforcement need for those data. They recognize that the constitutional interests of privacy and due process which they assert must be protected may nevertheless be balanced against legitimate and weighty state interests, and that there will likely be situations in which the latter will override an individual’s interest in preventing dissemination.
Finally, appellants do not suggest that the Metropolitan Police Department is prohibited from routinely disseminating more limited categories of data to the FBI. For example, routinely transmitting to the FBI the fingerprints or names (without identifying data) of individuals apprehended in this jurisdiction may subserve a legitimate state interest in that it might disclose whether the individual is a fugitive from or sought as a suspect in other jurisdictions on other crimes, and thus might facilitate a determination as to whether the individual should be held while that jurisdiction undertakes proceedings to effectuate a return of the arrestee.
Thus, appellants are interjecting a relatively narrow constitutional claim: that the routine preconviction or post-exoneration dissemination to the FBI of their arrest records- — including not only their fingerprints, but also data identifying the person arrested and information concerning the details and surrounding circumstances of the arrest — violates their constitutional rights to due process, privacy, and the presumption of innocence, at least as long as the FBI continues to redisseminate that data for other than law enforcement — and particularly for employment and licensing — purposes.
Nevertheless, in granting summary judgment for appellees in this case, the District Court dismissed appellants’ constitutional claims as “makeweight” which lacked “constitutional substantiality.” This view of the merits of the constitutional contentions was apparently expressed with the District Judge’s then-recent decision of Menard v. Mitchell, 328 F.Supp. 718 (1971), in mind. In Menard, Judge Gesell, exhibiting considerable sensitivity to the constitutional questions presented by the dissemination of information to non-federal and non-law enforcement recipients by the federal government, nevertheless refused to order the FBI to expunge Menard’s arrest record. Judge Gesell believed that those constitutional questions could be avoided by construing 28 U.S.C. § 534 (1970), the statute under which the FBI conducts its reciprocal exchange of criminal records, not to “authorize dissemination of arrest records to any state or local agency for purposes of employment or licensing.” Thus, Judge Gesell cast the constitutional question in the present case as one involving the power of the Chief of Police to disseminate arrest records to the FBI for law enforcement purposes, when the FBI might subsequently make that data available only to the District of Columbia or Federal government for employment purposes. Judge Gesell found himself
unable to see any constitutional substantiality to this contention. The period is limited. The law-enforcing needs appear to the Court to greatly transcend the inconvenience if any to individuals seeking jobs from the Federal Government while they are under indictment.
As I have indicated in Menard, I feel that there is substantial authority for the Federal Executive Branch, through the President, as he has by appropriate Executive Orders, to take action to regulate and examine into the qualifications of individuals seeking Federal employment.
* * * * * *
It is also clear that the concern in the complaint that indirectly through the FBI arrest record information would be disseminated to private employers in this city or elsewhere is mistaken inasmuch as the Bureau is operating consistent with the Court’s observation in Menard. The Court takes judicial notice of the fact that the Bureau is not disseminating information to private employers and is taking appropriate steps, as it has in the past, to police any inappropriate action by police departments who obtain information in the name of law enforcement and who may be tempted to pass it on to private employers.
Although we disagree with the District Court’s pronouncement that utilization, pursuant to presidential order in the name of national security, of unexpurgated arrest information by the Federal government for employment purposes raises no substantial constitutional questions, we are not faced with that comparatively limited constitutional inquiry. Rather, we note that Congress has legislatively overruled the limitations which Judge Gesell had found on the FBI’s power to disseminate information outside of law enforcement channels. Although the FBI, shortly after the District Court’s decision in Menard, issued a directive stating that. it would comply with that decision, Congress immediately responded with Pub.L. No. 92-184, 85 Stat. 627, 642 (1971), which provides that
[t]he funds provided in the Department of Justice Appropriation Act, 1972, for Salaries and Expenses, Federal Bureau of Investigation, may be used, in addition to those uses authorized thereunder, for the exchange of identification records with officials of federally chartered or insured banking institutions to promote or maintain the security of those institutions, and, if authorized by State statute and approved by the Attorney General, to officials of State and local governments for purposes of employment and licensing, any such exchange to be made only for the official use of any such official and subject to the same restriction with respect to dissemination as that provided for under the aforementioned Act.
The FBI, pursuant to this authorization, announced that it would resume its prior practice of disseminating arrest records to banks and state and local governments for employment and licensing purposes if permissible under state law and approved by the Attorney General. See Federal Bureau of Investigation, Letter to All Fingerprint Contributors, Jan. 20, 1972. Indeed, the Justice Department has now promulgated regulations which provide that
(a) Criminal history record information contained in any Department of Justice criminal history record information system will be made available:
* * * * * *
(3) Pursuant to Public Law 92-544 (86 Stat. 115) for use in connection with licensing or local/state employment or for other uses only if such dissemination is authorized by Federal or state statutes and approved by the Attorney General of the United States. When no active prosecution of the charge is known to be pending arrest data more than one year old will not be disseminated pursuant to this subsection unless accompanied by information relating to the disposition of that arrest.
Moreover, as we previously noted in Menard v. Saxbe, 162 U.S.App.D.C. 284, 498 F.2d 1017 (1974), which reversed Judge Gesell’s decision denying Mr. Menard’s attempt to have his records with the FBI expunged, the FBI does not, in fact, enforce its statutory mandate to exercise supervision and control over the propriety of the uses to which contributing agencies put the reciprocal information they receive from the FBI.
Appellants thus contend that they are irreparably injured when their preconviction or post-exoneration arrest records are disseminated to the FBI for nationwide redistribution for both law enforcement and employment and licensing purposes. We agree that there is a substantial bundle of constitutional rights which may be unnecessarily infringed when such arrest records are transmitted to the FBI with the knowledge that they will be retransmitted to a multitude of organizations for a multitude of purposes, all of which are susceptible of abuse.
In our constitutional scheme, we operate under the salutary principle that an individual is presumed innocent of the charges of which he stands accused unless he is found guilty via a process replete with substantial procedural safeguards. An arrest record, without more, is a fact which is absolutely irrelevant to the question of an individual’s guilt. As the Supreme Court has cautioned:
The mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. When formal charges are not filed against the arrested person and he is released without trial, whatever probative force the arrest may have had is normally dissipated.
Schware v. Board of Bar Examiners, 353 U.S. 232, 241, 77 S.Ct. 752, 757, 1 L.Ed.2d 796 (1957). And as one district court has eloquently observed:
Unresolved arrest records generally may well have significance for law enforcement purposes. They provide legitimate leads and questionable background information and may properly assist in resolving criminal actions. But charges resulting in acquittal clearly have no legitimate significance. Likewise, other charges which the government fails or refuses to press or which it withdraws are entitled to no greater legitimacy. They lose any tendency to show probable cause and should not be bootstrapped into any unearned and undeserved significance. Actually, a collection of dismissed, abandoned or withdrawn arrest records are no more than gutter rumors when measured against any standards of constitutional fairness to an individual and, along with records resulting in an acquittal are not entitled to any legitimate law enforcement credibility whatsoever.
Although the value of arrest records for law enforcement purposes has been generally, but not invariably, assumed despite the apparent conflict of this assumption with this constitutional presumption of innocence, here we are confronted with the government dissemination of arrest records in a situation in which it is known they will be utilized for employment and licensing purposes. Even if such records, as disseminated, were to include the actual disposition of the charges — and such dispositions frequently are not, in fact, included — the government knows that a derogatory inference will often nevertheless be drawn that the person who was arrested is also guilty of the crime charged. The mere fact of an arrest may impair or cloud a person’s reputation, and “[e]ven to be acquitted may damage one’s good name if the community receives the verdict with a wink and chooses to remember defendant as one who ought to be convicted.” Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 222, 93 L.Ed. 168 (1948). Recent decisions by this court have acknowledged the considerable barriers that an arrest record interposes to employment, educational, and professional licensing opportunities, and the regrettable fact that “so long as there exists an employable pool of persons who have not been arrested, employers will find it cheaper to make an arrest an automatic disqualification for employment”; available evidence suggests that “employers cannot or will not distinguish between arrests resulting in conviction and arrests which do not.” Indeed, appellees themselves imply that the fact of arrest should generally be taken as indicative of guilt:
There are myriad factors that may result in termination of the criminal process in a manner which in no way detracts from the proper use of the record of an arrest by law enforcement agencies. For example, witnesses may be incapacitated or unavailable, charges may be dismissed because of plea bargaining or considerations of leniency, and the government may have failed to preserve its evidence in a manner conducive to effective prosecution.
Of course, it is not inconceivable that the individual may also be absolutely innocent of any wrongdoing whatsoever. The problem is that the constitutionally improper inference of guilt will be the one frequently drawn. And even if, as the government contends, all such arrest records are nevertheless useful for law enforcement purposes, that does not necessarily justify their dissemination for employment or licensing purposes. Due process obligates the government to accord an individual the opportunity to disprove potentially damaging allegations before it disseminates information that might be used to his detriment. The proper forum for definitively adjudicating an individual’s guilt or innocence is a trial that conforms to constitutional strictures; if the government aborts that procedure or if the individual is otherwise vindicated at trial, the Constitution requires that he be treated as though he engaged in no criminal activity. For the government to disseminate an arrest record pertaining to the allegedly criminal episode, when it knows that employers may infer that the individual was guilty rather than innocent of the crime, effectively permits the government to inflict punishment despite the fact that guilt was not constitutionally established. And although it would be naive to proclaim that all individuals who are not found guilty are in fact innocent of wrongdoing, many — particularly those like appellants with no prior criminal record — will fall into the category of individuals erroneously caught up in the criminal process. “[T]here is [a] limit beyond which the government may not tread in devising classifications that lump the innocent with the guilty.” Yet in disseminating arrest records for use by banks and state and local governments for employment and licensing purposes, and in using them for its own employment purposes, the federal government would appear to be in effect lumping the innocent and guilty together, for all those arrested are likely to be denied opportunities open to individuals who have never run afoul of the law. “A government agency may not escape responsibility for improper use of material disseminated by it simply because the improper use is not mandatory and is in fact made by a third party”.
Whatever compelling interest the government might have in disseminating preconviction or post-exoneration arrest records for law enforcement purposes, it is difficult to divine any substantive interest — whether compelling or merely rational — that the government might have in disseminating such records to private or other government employers where there is no indication that the individual is in fact guilty of criminal conduct yet where it is likely that the prospective employer will utilize the mere fact of arrest to disqualify the individual from employment for which he is otherwise absolutely qualified. Indeed, one court, holding that a private employer’s practice of denying employment to individuals with arrest records violates Title VII of the Civil Rights Act of 1964 because “any policy that disqualifies prospective employees because, of having been arrested once, or more than once, discriminates in fact against [NJegro applicants,” Gregory v. Litton Systems, Inc., 316 F.Supp. 401, 403 (C.D.Cal.1970), modified on other grounds and affirmed as modified, 472 F.2d 631 (9th Cir. 1972), found as a matter of fact that
[t]here is no evidence to support a claim that persons who have suffered no criminal convictions but have been arrested on a number of occasions can be expected, when employed, to perform less efficiently or less honestly than other employees. In fact, the evidence in the case was overwhelmingly to the contrary. Thus, information concerning a prospective employee’s record of arrests without convictions, is irrelevant to his suitability or qualification for employment.
Id. at 402-403. If it is illegal for employers (including state and local government employers who are within the ambit of Title VII) to utilize arrest records not culminating in convictions to deny an individual opportunities open to those with no such records, it would appear to be just as illegal for the government to furnish the employer with the information on which such illegal actions may be based, at least when there is no legitimate law enforcement justification for providing the employer with the data.
However, to hold that appellees’ routine dissemination of preconviction and post-exoneration arrest records to the FBI, even when supplemented by disposition notations as they occur, transgresses appellants’ constitutional rights if the dissemination occurs with full knowledge that the FBI will redisseminate that information for other than law enforcement purposes, would in effect be to hold that Congress’ recent statute authorizing that practice of the FBI and the Justice Department’s implementing regulations are also unconstitutional. Thus, despite our severe doubts about the constitutionality of this practice, we are reluctant to base our decision on those grounds, particularly in the absence of the FBI as a party defendant and full briefing on the question from the Attorney General. However, appellants are also challenging the Metropolitan Police Department’s actions on statutory grounds, and there is a well-established judicial tenet that cases should be decided on available nonconstitutional grounds, as well as a sound principle that statutes should be construed, where possible, to avoid constitutional questions. Since the next section of this opinion will elaborate on the fact that the statute involved in this case — the District of Columbia’s “Duncan Ordinance” — may be construed, especially against this constitutional backdrop, to avoid these substantial questions, it is on those alternative statutory grounds that we therefore base our opinion.
Ill
On October 31, 1967, the “Duncan Ordinance,” which had been drafted by the select Committee to Investigate The Effect of Police Arrest Records on Employment Opportunities in the District of Columbia, was adopted by the District of Columbia Board of Commissioners. The Duncan Ordinance specifies:
1. That no record, copy, extract, compilation or statement concerning any record relating to any juvenile offender or relating to any juvenile with respect to whom the Metropolitan Police Department retains any record or writing, shall be released to any person for any purpose except as may be provided under D.C. Code, Section 11-1586; provided, that the release of such information to members of the Metropolitan Police Department, and the dissemination of such information by the Metropolitan Police Department to the police departments of other jurisdictions wherein juveniles apprehended in the District of Columbia may reside, shall be authorized; provided further, that the release of such information to individuals to whom the information may relate or to the parents or guardians or duly authorized attorneys of such individuals, shall be authorized in those cases in which applicants therefor present documents of apparent authenticity indicating need for such information for reasons other than employment. The term “employment”, in the context of this paragraph, shall not include military service.
2. That unexpurgated adult arrest records, as provided under D.C. Code, Section 4-134a, shall be released to law enforcement agents upon request, without cost and without the authorization of the persons to whom such records relate and without any other prerequisite, provided that such law enforcement agents represent that such records are to be used for law enforcement purposes. The term “law enforcement agent” is limited in this context to persons having cognizance of criminal investigations or of criminal proceedings, directly involving the individuals to whom the requested records relate. The term includes judges, prosecutors, defense attorneys (with respect to the records of their client defendants), police officers, Federal agents having the power of arrest, clerks of courts, penal and probation officers and the like. It does not include private detectives and investigators; personnel investigators, directors and officers; private security agents or others who do not ordinarily participate in the process involving the detection, apprehension, trial or punishment of criminal offenders.
3. That, subject to the foregoing, adult arrest records, as provided under D.C. Code, Section 4-134a, shall be released in a form which reveals only entries relating to offenses which have resulted in convictions or forfeitures of collateral.
4. That, subject to the foregoing, adult arrest records, as provided under D.C. Code, Section 4-134a, shall be released in a form which reveals only entries relating to offenses committed not more than 10 years prior to the date upon which such records are requested; except that, where an offender has been imprisoned during all or part of the preceding 10-year period, the record shall include entries relating to such earlier conviction.
5. That, subject to the foregoing, copies or extracts of adult arrest records, as provided under D.C. Code, Section 4-134a, or statements of the non-existence of such records shall be released to applicants therefor upon the payment of fees to be based upon the cost of editing and producing such copies, extracts or statements; provided, that applicants who are not the persons to whom such records may relate must, in addition to the required fees, present releases in appropriate form executed by the persons to whom the records may relate; provided further, that no fee shall be required with respect to any record solicited by any agent of the Federal or District of Columbia Government for a governmental purpose.
6. That Article 47 of the Police Regulations of the District of Columbia be amended to provide that it shall be an offense punishable by a fine not to exceed $50.00, for any person to require as a condition of employment the production of any arrest record or copy, extract or statement thereof at the expense of any employee or applicant for
employment to whom such record may relate.
As has been recognized in the past, the Duncan Ordinance establishes the guidelines which' control the dissemination of arrest records in this jurisdiction; as applied to the issue before us, it is clear that the Ordinance prohibits the practice to which appellants object.
Appellant Leon M. asserts that Section 1 of the Duncan Ordinance, which except for three narrow and explicit qualifications commands that juvenile arrest records shall not be released “to any person for any purpose,” prevents the routine dissemination of such records to the FBI. Since we believe that intervening developments have mooted appellant Leon M.’s ability to challenge the Metropolitan Police Department’s actions we need not address the contours of this provision or its interaction with D.C. Code § 16-2333(a) (1973).
Although the Duncan Ordinance appears on its face to accord adults less protection than it accords juveniles, it nevertheless prevents the routine dissemination of adult arrest records to the FBI. Section 2 of the Duncan Ordinance mandates that such records shall be released to “law enforcement officers” without any prerequisite such as "paying the costs of producing and editing the records or securing authorization from the individuals to whom the records relate. However, such release is only to be made “upon request.” The FBI does not request the records which it is provided by contributing agencies; indeed, when asked whether the federal government desired to protect through intervention any interest it might have in this proceeding, the United States Attorney stated:
The United States has no interest which it seeks to protect which would - require its intervention in to Utz v. Wilson * * *.
* * * [I]t is the position of the United States of America that whether the Metropolitan Police Department or any other law enforcement agency submits arrest fingerprints to the Federal Bureau of Investigation is a matter solely within the jurisdiction of the arresting agency. Submission of such records to the Federal Bureau of Investigation is a voluntary action on the part of the law enforcement agency and the Federal Bureau of Investigation does not request the submission of such records. * * * In short, adherence by the Metropolitan Police Department to the Duncan Ordinance is consistent with the position of the Federal Bureau of Investigation.
Moreover, when a law enforcement official requests unexpurgated adult arrest records, the Duncan Ordinance specifies that he must “represent that such records are to be used for law enforcement purposes.” However, it is clear that records disseminated to the FBI will also be used by state and local governments and federally insured banks, as well as by the federal government, for employment and licensing purposes in addition to any law enforcement purposes to which the records would be put.
Finally, even if the FBFs reciprocal data exchange program could be shoehorned into the term “request,” and the representation which must be made to receive the data were interpreted only to require that some law enforcement use be made of the data rather than that such utilization be exclusive, the FBI would not be a “law enforcement agent” within the narrow definition of Section 2 of the Duncan Ordinance. That term is explicitly “limited * * * to persons having cognizance of criminal investigations or of criminal proceedings directly involving the individuals to whom the requested records relate.’’ Thus, although transfer of an arrest record to the FBI would not contravene the Ordinance if that agency requested information possessed by the Metropolitan Police pertaining to individuals wanted in other jurisdictions or sought data that might be currently used in prosecutions or for sentencing recommendations, the FBI does not stand in that law enforcement role when it merely receives arrest data to store in its master “rap” sheet for potential use in such investigations or prosecutions, to say nothing of the employment' and licensing purposes for which those records are obtained.
Absent a specific law enforcement request that would satisfy Section 2 of the Duncan Ordinance, adult arrest records may only be disseminated pursuant to Sections 3 to 5 of the Ordinance. Section 3 limits disclosure of records to those offenses which have resulted in either a conviction or a forfeiture of collateral, and even those records, according to Section 5, may only be released to applicants who “present releases in appropriate form executed by the persons to whom the records may relate.” Thus, the routine and unconsented transmittal of the arrest records of all plaintiffs-appellants — including appellant Boyd, who was convicted of the crime for which he was arrested but who did not consent to dissemination of his arrest record for employment purposes — was accomplished in derogation of the apparently specific constraints of the Duncan Ordinance.
Nevertheless, despite this apparent clarity in the language of the Duncan Ordinance, the District Court held that the Ordinance did not extend to the relationship between the FBI and the Metropolitan Police Department:
The Court has examined with great care and frequently the report of the Committee to Investigate the Effect of Police Arrest Records on Employment Opportunities in the' District of Columbia, which is the so-called Duncan report that led to the enactment of the Duncan regulation. The Court is totally satisfied that the Duncan ordinance or Duncan regulation has as its essential and key purpose an effort to prevent the availability of arrest records locally to local private employers.
There is next to no discussion of the continuing necessary intimate relations between the Chief of Police and the FBI in this jurisdiction; and a host of extremely important and practical questions would be raised if the literal language of the Duncan ordinance were to be taken as a prohibition against the Chief of Police communicating on arrest record matters with the FBI.
There is such a lack of cognizance of this problem, such a lack of any precision in the ordinance, and so many uncertainties created by attempting to read the ordinance in that broad fashion that the Court has concluded as a matter of law that the Duncan regulation does not have anything to do whatsoever with the relations between the Chief of Police and the FBI with respect to the dissemination of arrest records and reliance on it by the Plaintiffs is erroneous.
In a similar vein, appellees assert that a “fair reading of the Duncan Ordinance will disclose that it is essentially designed to place limitations on the giving of arrest record data to specific private individuals requesting such data.”
We are unpersuaded by the argument that the Duncan Ordinance was not intended to have any impact whatsoever on the Metropolitan Police Department’s routine transmission of unexpurgated arrest data to the FBI. The language of the Ordinance is itself clear in limiting the dissemination of unexpurgated adult arrest records to “law enforcement agents” — defined as “persons having cognizance of criminal investigations or of criminal proceedings directly involving the individuals to whom the requested records relate” — who “request” the data and who “represent that such records are to be used for law enforcement purposes.” Routine dissemination to the FBI, which then acts as a “step-up transformer” to redisseminate the records widely to both law enforcement agencies and public and private employers, cannot be reconciled with this clear mandate.
Moreover, even if one looks to the Duncan Ordinance’s scant “legislative history” in an effort to determine whether the transmission of unexpurgated arrest records to the FBI was to continue unabated, there is no indication that this practice was to be exempted from the apparently comprehensive scope of the Ordinance. To be sure, the Committee which drafted the Duncan Ordinance was acutely concerned with the abuse of those records for employment purposes. However, it is also clear that the District Court is incorrect in stating that the Committee’s efforts were directed solely at preventing such abuse by local private employers. Section 5 of the Ordinance, in specifying that “no fee shall be required with respect to any record solicited by any agent of the Federal or District of Columbia Government for a governmental purpose,” indicates that such agents are subject to the other limitations of Section 5, including the necessity of obtaining approval from the individual to whom the records relate and the restriction of dissemination to those records where the arrest culminated in a conviction or forfeiture of collateral. Indeed, the language of the “Duncan Report” which accompanied the recommendations which eventually became the Ordinance was even more explicit that the Committee was concerned with governmental as well as private use of these records, and abuse in both employment and licensing areas. Furthermore, the Committee was cognizant of considerable testimony concerning the government’s improper use of arrest records for employment and licensing purposes. And although the most critical files of the Duncan Committee have apparently been misplaced by the Corporation Counsel, those which are still extant reveal a concern for governmental as well as private abuse of arrest data.
Appellees do not contend that the Duncan Ordinance would permit direct, routine and unconsented transmission of arrest records — even those arrest records which result in convictions — to federal or state and local government agencies for employment and licensing purposes. Yet they suggest that the Ordinance was intended to permit such transmission knowingly though indirectly through the FBI. In light of the substantial constitutional questions which we would be forced to decide if the Ordinance were to be construed in this matter, we would require more evidence than is currently available to attribute that intent to the draftsmen of the Ordinance or to the members of the District’s Board of Commissioners.
The District of Columbia sought to protect its own citizens through passage of the Duncan Ordinance. In light of the considerable obstacles which an arrest record poses to an individual’s pursuit of happiness and enjoyment of freedom and liberty, and the particularly heavy toll which such records have had on minorities in this country and in this city, such action was eminently reasonable. Of course, should the current City Council decide that “extremely important and practical questions” or any new policy considerations suggest that the literal language of the Duncan Ordinance was not or should no longer be intended to prevent the routine dissemination of arrest records to the FBI, it is free to act accordingly. Indeed, since recently promulgated Justice Department regulations concerning the dissemination of criminal history records mandate that compliance plans be
Question: What is the specific issue in the case within the general category of "civil rights - civil rights claims by prisoners and those accused of crimes"?
A. suit for damages for false arrest or false confinement
B. cruel and unusual punishment
C. due process rights in prison
D. denial of other rights of prisoners - 42 USC 1983 suits
E. denial or revocation of parole - due process grounds
F. other denial or revocation of parole
G. other prisoner petitions
H. excessive force used in arrest
I. other civil rights violations alleged by criminal defendants
Answer:
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songer_typeiss
|
C
|
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.
CONGRESS FINANCIAL CORPORATION v. STERLING-COIN OP MACHINERY CORPORATION et al., Appellant in No. 19531. Appeal of STERLING EQUIPMENT CORPORATION, No. 19532. Appeal of STERLING SUPPLY CORPORATION, No. 19533.
Nos. 19531-19533.
United States Court of Appeals, Third Circuit.
Argued Nov. 30, 1971.
Decided Feb. 2, 1972.
Seitz, Chief Judge, filed concurring opinion; Kalodner, Circuit Judge, concurred in result.
Lawrence Silver, Dilworth, Paxson, Kalish, Levy & Coleman, Philadelphia, Pa., for defendants-appellants; (Leonard J. Cook, Richard J. Gordon, on the brief.)
Edward Greer, Mesirov, Gelman, Jaffe & Levin, Philadelphia, Pa., for plaintiff-appellee; (Edward L. Snitzer, on the brief).
Before SEITZ, Chief Judge, KALOD-NER and GIBBONS, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
The defendant-appellants, Sterling-Coin Op Machinery Corporation, Sterling Equipment Corporation and Sterling Supply Corporation appeal from a judgment in the sum of $16,273.03 entered in favor of plaintiff-appellee, Congress Financial Corporation after a, non-jury trial. Sterling-Coin Op Machinery Corporation is in the business of selling coin-operated dry cleaning equipment. Congress Financial Corporation (Congress), a finance company, loans money on the security of installment paper. In 1962 Sterling-Coin Op Machinery Corporation entered into a financing contract with Congress. Sterling Equipment Corporation and Sterling Supply Corporation each unconditionally guaranteed the obligations of Sterling-Coin Op Machinery Corporation to Congress, and for purposes of this opinion the defendants will be referred to collectively as Sterling.
In October 1962 Sterling sold certain dry cleaning equipment to Marguerite Mueller and her husband Frederick Mueller for $28,051.33. Simultaneously with their execution of the conditional sale contract the Muellers executed a judgment note for $28,051.33 payable to Sterling’s order. The note contained a clause authorizing any attorney to confess judgment against them upon default for any unpaid balance.
In the general financing agreement between Congress and Sterling, Sterling undertook to repurchase on demand any installment paper sold to Congress upon which a default should occur. The Mueller conditional sale contract and judgment note were assigned to Congress by a separate written assignment, which in relevant part said:
“. . . [Sterling] warrants the payment when due of each sum payable thereunder and the payment on demand of the entire unpaid balance in the event of non-payment by the buyer of any monthly sum at its due date, or of any other default by the buyer without first requiring assignee to proceed against said buyer.
■X- * -X- -X- -X *
[Sterling] warrants compliance with all filing and recording requirements, hereby agreeing that any filing or recording or renewals thereof which [Congress] may undertake at [Sterling’s] request, or otherwise, shall be at [Sterling’s] expense and without responsibility whatsoever on [Congress’] part for any omission or invalid accomplishment thereof, whether through [Congress’] failure, neglect, or for any reason, and such omission or invalid accomplishment shall not relieve [Sterling] of any responsibility to [Congress].
******
The assignment shall be construed under the laws of the State of New York and none of the terms shall be modified except by a writing signed by an officer of assignee and notice of the acceptance thereof is hereby waived.”
The district court found that the quoted language of the assignment was intended by the parties to apply both to the conditional sale contract and to the judgment note. In a transmittal letter accompanying the assignment, conditional sale contract and judgment note, Sterling wrote:
“We are enclosing the Conditional Sale Contract on Bankers Commercial forms, covering a sale to Marguerite M. Mueller. Her husband has signed the guarantee on the back of Page 1.
You will also find enclosed a Judgment Note, endorsed to your order, with our recourse, signed by both husband and wife, which we ask you to record in the proper county, and send us the notice of recording.”
At the time they executed the judgment note in October of 1962 the Muellers owned certain real estate in Allegheny County, Pennsylvania. In March of 1963 they defaulted on the note. In December of 1963 they made a conveyance of the Allegheny County real estate. Congress did not record the judgment note in Allegheny County until September, 1964,( when it entered judgment against the Muellers in that county for $21,870.39.
Congress and Sterling pursued the Muellers and the transferee of the real estate. Eventually they agreed to a settlement with the Muellers whereby the latter paid $6,500 in cash and returned the equipment to Congress in exchange for a satisfaction of judgment and a release. Congress and Sterling ' agreed that the settlement was without prejudice to the rights and liabilities of either against the other. The $6,500 payment together with other payments which had been made by the Muellers left the outstanding balance on the original transaction at $12,517.73.
Congress sued Sterling for this amount. Sterling in its answer asserted the defense that Congress, as pledgee, had caused damage to the security and was thereby barred from recovery. Such damage, Sterling asserted, occurred because Congress failed to record the judgment note, and thereby failed to perfect a lien on the Muellers’ real estate, prior to the Muellers’ alienation of that property in December of 1963. An appraisal in evidence suggests that in December of 1963, just prior to transfer, the Muellers had an equity in the transferred real estate of about $25,000. Sterling filed a counterclaim for $1,900.50, the legal fees which it had expended in pursuing the Muellers for the $6,500 settlement. The district court entered judgment for Congress in the amount of $12,517.73 plus interest, and against Sterling on its counterclaim.
Sterling relies upon § 9-207(1) of the Uniform Commercial Code which provides;
“A secured party must use reasonable care in the custody and preservation of collateral in his possession. In the ease of an instrument or chattel paper reasonable care includes taking necessary steps to preserve rights against prior parties unless otherwise agreed.” N.Y.U.C.C. § 9-207(1) (McKinney 1964); Pa.Stat.Ann. Tit. 12A § 9-207(1) (1970).
It is common ground between Sterling and Congress that the duty to “[take] necessary steps to preserve rights against prior parties” ordinarily would include the duty to record an instrument at an appropriate time. Cf. Siedman v. Merchants Bank of New York, 7 U.C.C. R.S. 881 (1970). Under § 9-207(3) a secured party must bear any loss caused by its failure to meet any obligation imposed by § 9-207(1). Thus, says Sterling, Congress must shoulder the total loss caused by its failure to record the judgment note including the cost of collecting the $6,500 settlement.
Congress, relying on the language of the assignment quoted above and on the last three words in § 9-207(1) “unless otherwise agreed,” says that it had no duty in this case to take any steps to record. Certainly the language quoted from the assignment specifically purports to relieve the assignee of any liability for failing to record.
Sterling, however, argues that the quoted language is void under another section of the code, § 1-102(3):
“The effect of provisions of this Act may be varied by agreement, except as otherwise provided in this Act and except that the obligations of good faith, diligence, reasonableness and care prescribed by this Act may not be disclaimed by agreement but the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable.”
N.Y.U.C.C. § 9-102(3) (McKinney 1964); Pa.Stat.Ann. Tit. 12A § 9-102(3) (1970).
Both parties take comfort from this provision. Sterling claims that the exculpatory clause in the assignment amounts to a disclaimer of the duty of reasonableness and care expressly prohibited by § 1-102(3). Congress says that the clause is merely a determination by agreement of the standard of reasonable care imposed by § 9-207(1).
If the assignment contained the language “the assignee shall have no duty to record the judgment note” we would have no difficulty in holding that loss here must fall on Sterling. Siedman v. Merchants Bank of New York, supra. But an agreement to that express effect cannot be found in the instrument. If there is such an agreement it arises by implication from the warranty by Sterling of compliance with all filing and recording requirements. Yet the exculpatory clause itself obviously implies that in some circumstances Congress may undertake to record. Accepting ar-guendo that the warranty language is by necessary implication an agreement, within the meaning of the second sentence of § 9-207(1), that reasonable care does not require that the assignee record the judgment note, then the balance of the clause must disclaim a duty other than the simple obligation of a secured party to preserve collateral through rec-ordation. It would then operate in situations where a secured party, despite having contracted out of his ordinary duty to record, nevertheless undertook to record and did so without exercising care, thereby reducing the value of the collateral. So construed the exculpation from liability seeks to deprive the assignor in an action brought by the as-signee of any defense predicated upon the assignee’s careless impairment of the security.
It is not, however, in the light of all the papers, a necessary implication of the language of the recording clause in the assignment that Congress defined recording out of its § 9-207(1) duty of reasonable care. The assignment is on a printed form prepared by Congress and evidently intended to cover various kinds of commercial paper. Most such paper could and should be recorded at the outset. Other such paper, the judgment note here involved, for example, might not be recorded until after a default. The district court assumed that the judgment note could be recorded before a default, but that there might be sound reasons for waiting until after such had occurred. As we read the Pennsylvania cases, the note could be properly recorded only after a default, but, in any event, recordation after default was a reasonable alternative. This alternative puts in context the request by Sterling in the October 22, 1962 transmittal letter that Congress record the note in the proper county and send it notice of the recording. Under the circumstances it is certainly arguable that Sterling’s warranty of compliance with all filing and recording requirements is simply inapplicable to the judgment note, and that there is no agreement addressed specifically to § 9-207(1). If the assignment is read thus, the balance of the clause is not a definition of a standard of reasonable care, but an exculpation from liability for lack of reasonable care in performing a duty which may in fact have been undertaken. Such an exculpation is prohibited by § 1-102(3).
Even if we assume the first hypothesis — that the language of warranty by Sterling of compliance with all filing and recording requirements by itself would imply an agreement that the as-signee had no duty to record the judgment note — a question of contract interpretation remains.
Here Congress received an unrecorded judgment note together with a letter from Sterling indicating that the latter was looking to Congress for recordation. Congress contends that the letter of transmittal must be divorced from the note and assignment when determining its undertaking, but that the exculpation clause in the assignment must be construed as applicable to the judgment note. A more reasonable interpretation of the agreement, we think, would involve looking to all three documents for the intention of the parties. Taking this approach one is compelled to the conclusion that there was no agreement negating Congress’ duty under § 9-207(1), and perhaps even an undertaking, implied from the receipt and retention of the transmittal letter and the note, that Congress would record. Assuming this interpretation of the agreement, the attempted exculpation from liability for failing to perform the undertaking is void under § 1-102(3).
But even if we resolve all questions of contract interpretation in favor of Congress, holding that the assignment negates its pledgee’s § 9-201(1) duty to record, it fares no better. It is one thing to say that a pledgee who has contracted out of a duty with respect to collateral is not liable for losses caused by failure to record. It is quite another to say that a pledgee who having so contracted, undertakes nevertheless to act may by contract exculpate himself from his own lack of reasonable care and thus avoid application of the impairment defense.
Sterling’s letter clearly indicated that it was relying on Congress to record the judgment note. The uncontradicted testimony of Mr. Podgur, Sterling’s Treasurer, was that he first learned that the note had not been recorded when Muel-lers’ attorney in July of 1964 informed him the Muellers had sold their home and were insolvent. He investigated, and protested to Congress. By then the res had fled and both parties began the pursuit which produced only $6,500.
Congress took possession of the note, which by its nature was both the evidence of indebtedness and a form of collateral security, with full knowledge that additional steps were required in order to perfect the security against the Muellers, and with full knowledge that the pledgor, Sterling, was relying on it to take those steps.
Assuming that Sterling’s warranty of recordation shall be construed as an agreement that Congress had no § 9-207(1) duty, that agreement was one which it could properly waive. By its silence in the face of Sterling’s reliance as evidenced by the text of the transmittal letter it must be deemed to be es-topped from disavowing such a waiver. The question then is the effectiveness of the exculpation clause to protect Congress against a defense based upon a § 9-207(1) duty gratuitously undertaken, despite a contrary agreement, and relied upon by Sterling. Nothing in § 1-102(3) or in any other provision of the U.C.C. suggests that such a clause may be validated. If Congress waived the agreement limiting its § 2-907(1) duty then the duty to use reasonable care in preserving rights against third parties was operable, and the attempted exculpation was void.
Thus on any construction of the papers which was open to the district court the loss resulting from the loss of value of the collateral must fall on Congress. § 9-207(3).
There remains the question on liability to Sterling for the attorneys fees incurred in collecting from Muellers the $6,500 which after default was collected. Here, we think, Congress does fare better. The district court found that once the default occurred both parties were attempting to collect from the Muellers for their mutual benefit and that “[ujnder the circumstances the defendants were at least as negligent as the plaintiff in failing to take steps to verify the existence of the judgment lien.” That finding is not clearly erroneous (Fed.R.Civ.P. 52(a)) and Sterling’s contributory negligence bars its recovery from the negligent pledgee. Siedman v. Merchants Bank of New York, supra at 885. The district court should properly have left the parties where it found them. Code. Section 9-207(1) thereof provides:
A brief comment on the governing law is appropriate. In this diversity case we must look to Pennsylvania law as the source of our choice of law rule. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L. Ed. 1477 (1941). The assignment contained a choice of law clause designating New York law as controlling. Pennsylvania courts would give effect to such a clause (Pa.Stat.Ann. Tit. 12A § 1-105 (1970)) and under Klaxon we must do the same.
New York and Pennsylvania have enacted identical versions of §§ 1-102(3) and 9-207(1). We have been referred to no case directly in point decided by the courts of either of these states and, in fact, to no such case decided in any state. Our examination of the few New York authorities bearing on the pledg-ee’s duty of reasonable care for the collateral convinces us that a New York court would decide the case as we have. See Siedman v. Merchants Bank of New York, supra, Grace v. Sterling, Grace & Co., 30 A.D.2d 61, 289 N.Y.S.2d 632 (1968). Cf. Reed v. Central National Bank, 421 F.2d 113 (10 Cir. 1970). And see Willets v. Hatch, 132 N.Y. 41, 30 N. E. 251 (1892).
The judgment of the district court will be reversed. The judgment in favor of Congress on Sterling’s counterclaim will be affirmed.
. This sum includes interest.
. Under Pennsylvania law recordation of the judgment in Allegheny County would have perfected a lien upon all of the Muellers’ real property located within that country. Pa.Stat.Ann. Tit. 12 § 861 (1953).
. For a discussion of the choice of law considerations involved in this case see pp. 456-457 infra of this opinion.
. N.Y.U.C.C. §§ 9-302, 9-304(1) (McKinney 1964); Pa.Stat.Ann. Tit. 12A §§ 9-302, 9-304(1).
. The court below expressed the opinion that immediate recordation of the judgment note might exhaust the underlying warrant of attorney thereby necessitating that the Muellers he personally served in order to perfect the lien resulting from judgment.
. Rose v. Cohen, 193 Pa.Super. 454, 165 A. 2d 264 (1960) strongly suggests that the judgment note in this case could not he recorded until after default since it authorized confession of judgment only after such had occurred. In the absence of limitations as to the time of confession, Pennsylvania judgment notes have been immediately recordable. O’Maley v. Pugliese, 272 Pa. 356, 116 A. 308 (1922). The continuing validity of such practice in light of Swarb v. Lennox, 314 F.Supp. 1091 (D.C.1970) is of no relevance here, for Swarb limited its own force to prospective application.
. Cf. 1 S. Williston, A Treatise on the Law of Contracts § 140 at 614 (1958) ; 5A A. Corbin, Contracts § 1240 at 565-66 (1964). See N.Y.U.O.C. § 1-103 (McKinney 1964); Pa.Stat.Ann. Tit. 12A § 1-103 (1970). Neither party attempts to argue that any usage of trade should affect the outcome of this case. See N.Y.U.O.C. § 1-205 (McKinney 1964) ; Pa.Stat.Ann. Tit. 12A § 1-103 (1970).
. N.Y.U.C.C. f§ 1-102(3), 9-207(1) (McKinney 1964); Pa.Stat.Ann. Tit. 12A §§ 1-102(3), 9-207(1) (1970).
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_bank_r1
|
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.
Your task is to determine whether or not the first listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt.
In re CEDAR TIDE CORPORATION, Debtor. CEDAR TIDE CORPORATION, Plaintiff-Appellee, v. CHANDLER’S COVE INN, LTD., Defendant-Appellant.
No. 675, Docket 87-5035.
United States Court of Appeals, Second Circuit.
Argued Feb. 4, 1988.
Decided Oct. 17, 1988.
Charles E. Morrison, New York City, for defendant-appellant.
Robert S. Arbeit, Hauppauge, N.Y. (Pinks, Brooks, Stern & Arbeit, Haup-pauge, N.Y., of counsel), for plaintiff-appel-lee-debtor.
Before TIMBERS, WINTER and ALTIMARI, Circuit Judges.
WINTER, Circuit Judge:
The burgeoning record in this bankruptcy case includes an extraordinary number of unresolved contradictions, apparent obfuscations, and unanswered allegations of fraud amounting to criminal conduct by and against both parties. Difficult as it is to piece together a coherent tale from the record, traces of serious misconduct appear, although doubt surrounds who is responsible. Nevertheless, for purposes of this appeal, we need dispose of only two comparatively narrow questions: (i) whether the original appeal from the bankruptcy court was properly before the district court despite the fact that the attorney who filed and perfected it had not been authorized to do so; and (ii) whether the federal courts have jurisdiction over a Chapter 11 petition filed by a corporation previously dissolved by New York State for nonpayment of franchise taxes. Because we answer these questions in the affirmative, we conclude that the bankruptcy court did not err in granting summary judgment nullifying the post-petition transfer of substantially all the assets of Cedar Tide Corporation (“Cedar Tide”), a Chapter 11 debtor-in-possession, to Chandler’s Cove Inn, Ltd. (“CCI”) where the transfer was made without notice and a hearing as required by 11 U.S.C. § 363(b)(1) (1982 & Supp. IV 1986).
BACKGROUND
We note at the outset that the record in this appeal contains serious lacunae, some of which may reflect grave improprieties. Nevertheless, the record is sufficient to allow us to resolve the merits of the appeal.
The underlying dispute concerns forty largely undeveloped waterfront acres in Suffolk County, New York (“the Land”). The Land, which is apparently worth at least one and perhaps as much as six million dollars, has been owned, directly or indirectly, for about fifty years by Elizabeth Chandler, now approximately ninety years old. From 1969 onward, the record owner of the Land was Cedar Tide, a corporation formed in that year with the Land as its main, if not sole, asset. Although Cedar Tide’s stock may never have been issued, it apparently was intended that Elizabeth would be the majority stockholder and her son Frederick the minority stockholder. At least we know of nothing indicating that anyone else has an ownership interest. Cedar Tide was dissolved by New York State in December 1979 for nonpayment of franchise taxes.
At some point, Cedar Tide borrowed money from The Mint Factors, Inc. with the Land as security. The loan terms were disputed in a state court action in which a stipulation of settlement was entered in 1983. In 1984, The Mint Factors brought a state court action against Cedar Tide and Elizabeth Chandler to enforce the settlement, and, in the alternative, to foreclose on the Land. In an opinion dated October 11, 1985, the state court ruled that The Mint Factors was entitled to specific performance of the stipulated settlement. However, the state court judgment appears never to have been carried out. In the wake of this attempt by The Mint Factors to foreclose on the Land, Cedar Tide filed for reorganization under Chapter 11 on December 10, 1985.
Frederick Chandler authorized the December 1985 Chapter 11 filing, alleging that he was a director and fifty percent shareholder of Cedar Tide Corporation, and that he had been authorized to file the petition. Frederick’s claim of fifty percent ownership contradicted testimony given in the state court in August 1985 by Elizabeth, who testified that there were 200 shares in Cedar Tide outstanding and that she owned 125 and her son Frederick owned 75. The filing did not mention the dissolution of Cedar Tide. Harold Spivack, the attorney who filed the petition, attests that he did not know that the corporation had been dissolved at the time of filing, and that he discovered this fact only at the end of January 1986. After the Chapter 11 filing, Cedar Tide paid its back taxes under an amnesty program. The corporation received an official notice of reinstatement in February 1986 and appears to have been formally reinstated no later than May 1986.
CCI, the other claimant to the Land in the present proceeding, did not file its certificate of incorporation until January 3, 1986, some weeks after Cedar Tide’s Chapter 11 filing. A series of transactions followed that incorporation. On January 18, 1986, Elizabeth transferred all of her interest in Cedar Tide and the Land to Frederick. On March 24, 1986, Stanley Kommi-sar, as vice-president of Cedar Tide, executed a deed transferring the Land to CCI. This may have been a cameo performance because Kommisar is otherwise unknown. Sidney Mintz, an attorney, witnessed the deed and apparently took possession of the corporate records of both Cedar Tide and CCI. A Charlotte Mintz is a principal of The Mint Factors, but whether she is related to Sidney is not reflected in the record. The deed was registered with the Suffolk County Clerk on March 27, 1986.
On April 16, 1986, Elizabeth Chandler and Cedar Tide filed an action in New York State court seeking to set aside the deed transferring the Land to CCI. In alleging that she was the sole shareholder in Cedar Tide, she failed to mention the transfer of all of her interest to Frederick in January or her earlier testimony that Frederick was either a minority or fifty percent shareholder. The complaint also neglected to mention the fact that Cedar Tide already had a Chapter 11 petition pending in the bankruptcy court. Mintz appeared for CCI. On May 22, 1986, while its state court action was still pending, Cedar Tide filed an adversary proceeding in bankruptcy court seeking to set aside the March 24, 1986 deed transferring the property to CCI. Judge Goetz issued a temporary restraining order enjoining CCI from transferring the property on May 23, 1986. CCI, represented by attorney Douglas A. Durnin, moved to dismiss the adversary proceeding on the grounds that: (1) the bankruptcy court lacked jurisdiction because Cedar Tide was a dissolved corporation when it filed Chapter 11; (2) Cedar Tide lacked authority to bring the action because it was controlled by CCI, which possessed seventy-five percent of its stock; (3) Cedar Tide’s filings were insufficient as a matter of law; and (4) the pending state action precluded any transfer of the property in any event, so no injunction would lie.
The bankruptcy court held a hearing on Cedar Tide’s motion for a preliminary injunction and CCI’s motion to dismiss on June 4, 1986. No one at the hearing had access to the corporate records of either Cedar Tide or CCI, which apparently were in the possession of Sidney Mintz. Robert S. Arbeit, Cedar Tide’s counsel, admitted that he did not know exactly what was going on (a refreshing touch of candor in a record shrouded in deliberate or negligent obfuscation), including what Frederick’s interest was, but he indicated that Frederick and Elizabeth were willing to swear that they had not transferred the Land to anyone or authorized its transfer (although the complaint alleged lack of authority only upon “information and belief”). Durnin appeared for CCI, and indicated that Shari Scott, a second-grade school teacher and part-time real estate broker, was a seventy-five percent owner of CCI. Frederick apparently was the owner of the remaining twenty-five percent interest in the company and its agent for service of process. Shari’s husband Paul Scott and her adult daughter Susan Scott Fortuna were also somehow involved with the company.
Durnin indicated that he believed that Frederick was the sole owner of Cedar Tide and had authorized the transfer of the Land to CCI. He did not dispute that Cedar Tide was in Chapter 11 when the transfer took place or that Cedar Tide continued as debtor-in-possession at that time. He claimed that Frederick received consideration for the transfer but produced only an unsigned memorandum between Frederick and Shari Scott. Judge Goetz granted the injunction and denied CCI’s motion to dismiss on the grounds that a dissolved New York corporation may seek Chapter 11 protection.
Cedar Tide moved for summary judgment on September 9,1986. On September 26, 1986, while that motion was pending before Judge Goetz, CCI, whose sole asset appears to have been its claim to the Land, filed a voluntary Chapter 7 petition in the United States Bankruptcy Court in the Southern District of New York. The case was assigned to Judge Buschman, who appointed Isaac Nutovic interim trustee for CCI. On September 30, 1986, Cedar Tide’s motion for summary judgment was argued before Judge Goetz, and Durnin appeared for CCI. After that hearing, Judge Goetz granted summary judgment for Cedar Tide. That judgment was entered on October 16, 1986. Durnin filed a notice of appeal on October 26, 1986. Durnin claims not to have known of CCI’s filing of the Chapter 7 petition at the time he filed the notice of appeal and claims to have discovered this fact only after he received a creditor’s notice. Nevertheless, he perfected the appeal in March 1987.
CCI’s Chapter 7 case was transferred from the Southern District to Judge Goetz in the Eastern District in December 1986. On January 6, 1987 Robert L. Pryor was appointed to replace Nutovic as interim trustee. Neither he nor Nutovic ever filed or authorized the filing of an appeal from Judge Goetz’s grant of summary judgment, although Pryor did request by letter an extension of the date scheduled for oral argument in the district court so that he could inform himself about the case. While later statements by Pryor indicate that he never believed that the appeal had merit, he did nothing to stop Durnin from perfecting it. Meanwhile, it appears that Pryor’s efforts to learn the underlying facts were stymied by CCI’s purported principals. Mintz refused to cooperate with him, and the Scotts were unforthcom-ing to say the least. CCI repeatedly petitioned the bankruptcy court for Pryor’s removal. At one point Pryor spoke to Lisa Scott, Paul and Shari’s 13-year old daughter, on the phone, in an effort to locate Susan Scott Fortuna, who had been designated to provide corporate information. After this ten-minute phone call, Lisa quickly got into the spirit of things and filed a $10,000,000 suit against Pryor in state court for intentional infliction of emotional distress. Pryor answered and counterclaimed and then removed the suit to the bankruptcy court.
On April 24, 1987, while Durnin’s appeal was pending, CCI converted its case to a Chapter 11. Pryor was automatically discharged. Paul Scott, on behalf of CCI, then moved for a nunc pro tunc retention order for Durnin. In a Memorandum Decision and Order dated May 28, 1987, Judge Goetz denied the petition. In the meantime, on May 12, 1987, Mintz had been authorized to act as general counsel for CCI and moved in the bankruptcy court to reargue the denial of Durnin’s appointment.
According to Mintz and the docket sheet for CCI’s case in the bankruptcy court (which is not a part of the record on appeal), the motion to reargue the denial of the nunc pro tunc retention of Durnin was granted by Judge Goetz, and on June 22, 1987, Judge Goetz reversed herself and authorized Durnin’s retention. Judge Goetz ordered CCI to submit an order to that effect. According to Mintz, the order was submitted on June 29, 1987.
On that day, however, the docket sheet indicates that Judge Goetz withdrew from all matters relating to Cedar Tide and CCI. The case was then transferred to Judge Holland, who already had been assigned to other matters relating to the two debtors. Durnin attests that on July 14, 1987, he was informed over the telephone by one “Shafferman” in the bankruptcy court that the retention order had been signed by Judge Holland the previous day. Judge Holland, however, never signed the retention order. Durnin argued the appeal before then Chief Judge Weinstein on July 15, 1987. Judge Weinstein dismissed the appeal without opinion “on procedural grounds and on the merits” on August 6, 1987. A transcript of the hearing before him is not part of the record on appeal.
DISCUSSION
A. The District Court’s Dismissal on Procedural Grounds
Because Judge Weinstein dismissed the appeal both “on procedural grounds and on the merits,” the threshold question is whether the appeal was properly before the district court. As with everything else in this case, the resolution of this depends upon the unraveling of a web of procedural and substantive irregularities and omissions.
The notice of appeal to the district court in this case was filed and perfected by an attorney, Durnin, who had not been authorized to do so by the interim Chapter 7 trustee who has full authority to represent the estate and in whom all of the bankrupt’s claims had vested. See Collier on Bankruptcy § 541.02 at 541-15 (L. King ed. 15th ed. 1988); cf In re Teltronics Servs., 762 F.2d 185, 189 (2d Cir.1985) (vesting in trustee of all claims of a corporate bankrupt “elementary” under old Bankruptcy Act). Durnin claims not to have known that his pre-petition client was in bankruptcy. He also claims that he did not seek prior court approval to perfect the appeal after he learned of the existence of the Chapter 7 filing because he did not know that such permission was required. However, Pryor, the interim Chapter 7 trustee for CCI after the case was transferred to the Eastern District, was aware of the existence of the appeal and even requested a 45-day extension of the date of argument so that he might investigate its merit. It is clear, then, that Pryor never repudiated Durnin’s appeal, and appears to have at least acquiesced in it prior to his automatic dismissal upon conversion of the case to Chapter 11. His acquiescence is significant. Cf. In re Martin-Trigona, 760 F.2d 1334, 1341 (2d Cir.1985) (even if person who filed voluntary Chapter 11 petition had no authority to do so, corporation and its principal who acquiesced and ratified act by their ongoing participation in proceedings bound by act). After CCI’s petition was converted to Chapter 11, CCI as debtor-in-possession repeatedly moved for a nunc pro tunc order approving Dur-nin’s retention as special counsel so that he might argue the appeal. While Judge Goetz initially denied CCI’s motion, she apparently changed her mind just prior to recusing herself from the case and ordered CCI to submit an order authorizing Dur-nin’s nunc pro tunc retention. Unfortunately, the order Judge Goetz asked CCI to submit was never signed by Judge Holland. Nevertheless, Durnin did argue the appeal before Judge Weinstein, who reached the merits. In these highly unusual (and hopefully not to be repeated) circumstances, we think that Pryor’s acquiescence in the pend-ency of the appeal, the eagerness of CCI to have Durnin argue the appeal, Judge Goetz’s docketed decision to grant a nunc pro tunc special retention order, and Judge Weinstein’s dismissal of it on the merits as well as upon procedural grounds all support the conclusion that we should reach the merits of the case. Cf. Brown v. General Motors Corp., 722 F.2d 1009, 1011 (2d Cir.1983) (reluctantly reaching merits of discharged attorney’s claim on his own behalf that he was entitled to fees under the Civil Rights Attorney’s Fees Awards Act despite fact that attorney lacked standing because matter outside record indicated that party to the action had consented to claim and the district court had reached merits); Oguachuba v. I.N.S., 706 F.2d 93, 97-98 (2d Cir.1983) (reaching merits where original application for attorney’s fees under Equal Access to Justice Act was filed by attorney without standing but district court had reached merits and party to action had filed notice of appeal to the court of appeals).
B. Jurisdiction Over a Dissolved Corporation
In the hearing on Cedar Tide’s motion for a preliminary injunction and in its papers before Judge Weinstein and before us, CCI has argued that Cedar Tide’s bankruptcy petition and the adversary proceeding brought against CCI must be dismissed because the bankruptcy court lacked subject matter jurisdiction over a corporation dissolved by New York State for failure to pay taxes. According to CCI, a dissolved corporation is not an entity which may seek reorganization under Chapter 11. We disagree.
Under New York Tax Law § 203-a(3) (McKinney 1986), the secretary of state may dissolve a corporation by proclamation for failure to pay corporate franchise taxes. Under New York Business Corporation Law § 1006(a) (McKinney 1986),
[a] dissolved corporation ... may continue to function for the purpose of winding up the affairs of the corporation in the same manner as if the dissolution had not taken place.... In particular ... [t]he corporation may sue or be sued in all courts and participate in actions and proceedings, whether judicial, administrative, arbitrative or otherwise, in its corporate name, and process may be served by or upon it.
Under New York Tax Law § 203-a(7) a dissolved corporation will be reinstated nunc pro tunc upon the filing with the department of state a certificate that all franchise taxes, penalties and interest charges have been paid and the payment of a fee to the secretary of state.
There is no case law that clearly disposes of the question whether a New York corporation dissolved for non-payment of taxes may file a petition for reorganization under Chapter 11. Matter of Luftek, Inc., 6 B.R. 539 (B.Ct.E.D.N.Y.1980) held that a dissolved corporation may be a debtor under Chapter 7. However, the Luftek court based its conclusion upon its belief that “bankruptcy liquidation is not inconsistent with continued existence under section 1006 of the [Business Corporation Law] for purposes of winding up the affairs of the corporation.” 6 B.R. at 542 n. 3 (emphasis added). Neither Luftek nor the cases it relied on addressed the question of jurisdiction where the dissolved corporation seeks reorganization under Chapter 11 rather than liquidation under Chapter 7. Nor do the New York state cases cited by the parties provide a definite answer. It is true that language in Independent Investor Protective League v. Time, Inc., 50 N.Y.2d 259, 263, 428 N.Y.S.2d 671, 673, 406 N.E.2d 486, 488 (1980), to the effect that “a corporation continues to exist as a legal entity after dissolution in New York, at least for the purposes of actions and proceedings,” provides some support for a finding of federal jurisdiction, but this language does not inexorably lead to the conclusion that “actions and proceedings” include reorganization under Chapter 11.
However, in In re Martin-Trigona, 760 F.2d 1334, 1342-43, we addressed the question of whether a Connecticut corporation dissolved by the secretary of state by forfeiture could file for Chapter 11 protection. The Connecticut statutory scheme with regard to dissolved corporations in Connecticut General Statutes §§ 33-375 to 33-379, 33-387 and 33-388 (1987) is very similar to New York’s. Under Connecticut law, once the secretary of state has dissolved a corporation “by forfeiture” by filing a certificate of dissolution by forfeiture pursuant to Connecticut General Statute § 33-387, the corporation may either seek reinstatement or proceed with winding up its affairs. See Conn.Gen.Stat. §§ 33-388, 33-379; see also In re Martin-Trigona, 760 F.2d at 1342. After dissolution, the corporation may still sue or be sued, Conn.Gen. Stat. § 33-379, and within three years after dissolution by forfeiture, reinstatement is automatically effective nunc pro tunc if the corporation files a certificate of reinstatement accompanied by certain payments and documents. Conn.Gen.Stat. § 33-388(a), (e).
In In re Martin-Trigona, we carefully reviewed the Connecticut statutory scheme and found nothing that prevented a dissolved corporation from seeking “the added protections of the federal bankruptcy code” rather than winding up its corporate affairs under state law. In re Martin-Trigona, 760 F.2d at 1342. Indeed, we concluded that “denying the dissolved corporation] the benefits of reorganization or liquidation under the federal bankruptcy law would be contrary to the central purpose of the federal code.” Id. We then explicitly held that “the filing by the Secretary of State of a certificate of forfeiture which effected a dissolution of the debtor corporation ... did not deprive the bankruptcy court of jurisdiction over the voluntary Chapter 11 reorganization proceeding filed” four months after the dissolution. Id. at 1342-43. Given the fact that New York’s statutory scheme is substantially similar to Connecticut’s (and even arguably less restrictive in that it does not require a dissolved corporation to seek reinstatement within three years), CCI’s claim that the bankruptcy court lacked jurisdiction was properly rejected by the bankruptcy court.
C. The Merits
Not surprisingly, neither Cedar Tide’s nor CCI’s filings on the motion for summary judgment fully complied with Fed.R.Civ.P. 56 or Rule 22 of the Local Rules of the Bankruptcy Court for the Eastern District of New York. Nevertheless, the bankruptcy court and the district court apparently were satisfied that the factual elements of Cedar Tide’s claims were established solely through reference to the bankruptcy court’s own docket sheet and by admissions of CCI’s counsel. So are we, and we conclude that the bankruptcy court did not err in granting summary judgment for Cedar Tide.
Section 363(b)(1) prohibits the use, sale or leasing of property of the estate out of the ordinary course of business without notice and a hearing. 11 U.S.C. § 363(b)(1) (1982 & Supp. IV 1986). In practice, the factual issues that a bankruptcy court must consider in ruling on a summary judgment motion under section 363(b) are few: whether the property in question was “property of the estate” under section 541; and whether the transfer in question was “in the ordinary course of business.” Here, it is undisputed that the deed was executed after the filing of the petition and without notice and a hearing. Although CCI argues that the property was not property of the estate subject to section 363(b)(1), it is undisputed that title to the property resided in Cedar Tide at the time of the filing (if it did not, CCI’s deed would be meaningless in any event), and as such the property was estate property under 11 U.S.C. § 541(a)(1) (1982 & Supp. IV 1986). Indeed, CCI does not dispute that it did not even exist at the time Cedar Tide filed its Chapter 11 petition. The Land could hardly, at the time of Cedar Tide’s filing, have been property of a non-existent corporation.
Moreover, even if CCI had existed at the time of the filing, section 363 would not authorize the transfer in question. Clearly, the sale of all or substantially all of a debtor’s assets implicates the full range of procedures provided for by the Code. The process of reorganization cannot be evaded by labeling a sale as being “in the ordinary course of business.” Cf. In re First Int’l Servs. Corp., 25 B.R. 66 (B.Ct.D.Conn. 1982); In re the White Motor Credit Corp., 14 B.R. 584 (B.Ct.N.D.Ohio 1981). We do not, of course, mean to imply that challenges to the propriety of a Chapter 11 filing can never be raised. We hold only that such challenges may not be raised as affirmative defenses to the avoidance of a transfer of estate property. As a practical matter, bankruptcy courts must be able to assemble the property of a given estate in comparatively summary fashion, disposing of a minimum of factual and legal disputes. Avoidance of transfers constitutes less an adjudication of rights than an assertion of jurisdiction over the property in question. Thus, CCI’s various charges against Cedar Tide and claims of right (along with its demand for a jury trial) had no place on the motion for summary judgment before Judge Goetz.
CONCLUSION
The present matter appears to be only the tip of the iceberg, with numerous other appeals percolating up from the bankruptcy court. We have already noted the impression created by the record that serious misconduct by someone has occurred. We also note that we have on other occasions imposed sanctions on litigants who abuse the protection of the bankruptcy courts. See e.g. In re Cosmopolitan Aviation Corp., 763 F.2d 507, 517 (2d Cir.), cert. denied sub nom. Rothman v. N.Y. State Dep’t ofTransp., 474 U.S. 1032, 106 S.Ct. 593, 88 L.Ed.2d 573 (1985). In view of the unresolved allegations of criminal conduct, we believe this entire matter ought to be reviewed by the appropriate authority to decide what, if any, action should be taken. With that in mind, the Clerk is directed to serve a copy of this decision on the Honorable Andrew J. Maloney, United States Attorney for the Eastern District of New York.
The judgment of the district court is affirmed on the merits.
. Judge Goetz also noted that the motion to dismiss was not properly before her inasmuch as it was directed at the petition itself, but failed to indicate that there had been notice to creditors as required under the bankruptcy code. Bankr.R. 2002(a).
. On June 19, 1987, Mintz also filed a motion before Judge Weinstein seeking, inter alia, to extend the time for perfecting the appeal six months. He failed to appear at the hearing held on his motion, which was ultimately denied by Judge Weinstein.
. As we noted in In re Martin-Trigona, 760 F.2d at 1340, such an attack is more properly described as directed against the personal, rather than subject matter, jurisdiction of the bankruptcy court.
. Cedar Tide claims CCI’s jurisdictional argument is not properly before the court because CCI never appealed Judge Goetz's denial of their motion to dismiss. A denial of a motion to dismiss on jurisdictional grounds is not, however, normally appealable prior to the entry of final judgment, see In re United States Catholic Conference, 824 F.2d 156, 164 (2d Cir.1987), rev’d on other grounds, — U.S. -, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)), and under the circumstances of this case, we do not think that the bankruptcy court's inclusion of the denial of the motion to dismiss in the same order that granted the preliminary injunction imposed upon CCI the duty immediately to appeal the denial or waive the argument.
In a separate motion, CCI has asked us to certify to the New York, courts the question of whether a New York corporation dissolved for non-payment of taxes may file a petition for reorganization under Chapter 11. In light of our decision in In re Martin Trigona, 760 F.2d 1334, discussed infra, we see no need to certify the question.
Question: Is the first listed respondent bankrupt?
A. Yes
B. No
Answer:
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songer_crmproc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited.
RAILROAD CREDIT CORPORATION v. HAWKINS et al. FRUIT GROWERS EXPRESS CO. v. SAME.
Nos. 3954, 3955.
Circuit Court of Appeals, Fourth Circuit.
Jan. 6, 1936.
Richard H. Wilmer, of Washington, D. C. (Daniel Willard, Jr., of Washington, D. C., on the brief), for Railroad Credit Corporation.
Carl H. Richmond, of Washington, D. C. (Gardner L. Boothe, of Alexandria, Va., and W. G. Brantley, Jr., of Washington, D. C., on the brief), for Fruit Growers Express Co.
William B. Rodman, of Norfolk, Va. (Claude M. Bain, of Norfolk, Va., on the brief), for receivers, Norfolk Southern R. Co.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
PARKER, Circuit Judge.
These are two appeals in a controversy 'which has arisen in the receivership of the Norfolk Southern Railroad Company, with respect to the right to certain dividends on 1,572 shares of stock in the Fruit Growers Express Company, owned by the Norfolk Southern Railroad, Company, and pledged by that company as collateral security to the Railroad Credit Corporation to secure a loan. There were four of these dividends, two in 1932 and fwo in 1933. The court below, affirming the report of a special master, held that the first of these, in the amount of $6,288, was owing to the railroad company and might be set off by the express company against its indebtedness to the railroad company; that the second, in the amount of $9,432, was owing, without interest, to the receivers of the railroad company; and that the third and fourth, in the amount of $6,288 and $3,144, respectively, should be paid, without interest, to the credit corporation.
Both the credit corporation and the express company appealed from the decree of the lower court based on the above holdings. The appeal of the credit corporation complains that the court was without jurisdiction to determine the right to the dividends in question, that the credit corporation was entitled to all four of the dividends, and that it was entitled to interest on the dividends from the dates on which they were respectively payable. The appeal of the express company complains that it was not allowed the right of set-off with respect to the second dividend, as well as the first, and that the credit corporation was held entitled to the third and fourth dividends. Another contention which it raises on the appeal, viz., that the court should have passed upon certain claims which it had filed against the receivers before giving the receivers a judgment against it for the second dividend, becomes immaterial in the view which we take as to' the right to the second dividend.
The facts out of which the controversy arises are as follows: On March 28, 1932, the railroad company borrowed from the credit corporation the sum of $290,000, being a part of the fund which that corporation had collected under the marshaling and distributing plan of 1931 as approved by the Interstate Commerce Commission in the Fifteen Per Cent Case, Ex Parte No. 103, 178 I.C.C. 539, 179 I.C.C. 215. To secure this loan, the railroad company executed to the credit corporation its promissory note in this amount, payable September 28, 1933, and bearing interest at the rate of 3 per cent, per annum from date payable semiannually, and pledged with it the 1,572 shares of express company stock, the rents and income under a lease to the Virginia Electric & Power Company, and certain other property. The note contained the following language with respect to the pledge, viz.:
“And said railroad company has pledged and does hereby pledge to the Railroad Credit Corporation (its successors or assigns) as security for the payment of this note (both principal and interest), the following property: 1,572 shares Fruit Growers Express Company; 533 shares Atlantic & North Carolina Railroad Company; 10 shares Princess Anne Power Company. The rents and income under a certain lease and contract of joint use of certain properties in Princess Anne and Norfolk Counties, Virginia, from Norfolk Southern Railroad Company to Virginia Electric & Power Company, dated March 1, 1930, pledged and assigned under a certain written contract of assignment of this date, attached hereto and made a part hereof.”
The note contained the following language as to the rights of the credit corporation on default:
“Upon the non-payment of the principal of or interest on this note according to its terms, the Railroad Credit Corporation (its successors or assigns) is hereby authorized to collect and enforce or to sell, assign, and deliver the whole or any part of the above-named security, or any substitute therefor, at any public or private sale at any time or times, without demand, advertisement or notice; and upon'such sale the Railroad Credit Corporation (its successors or assigns) may become the purchaser of the whole or any part of said security, free from any right of redemption, and no notice of any adjournment of any such sale shall ^e required. In case of such sale, after deducting all legal or other costs and expenses for collection, sale and delivery, the Railroad Credit Corporation (its successors or assigns) may apply the residue of the proceeds of such collection, sale, or sales, to the payment hereof, and of any or all said liabilities, returning the overplus, if any, to the railroad company.”
As further security for this note, the railroad company executed at the same time an assignment of the rent which it was entitled to receive under a lease of property to the Virginia Electric & Power Company. This assignment contained the following condition:
“And upon the further condition, that until railroad company shall make default in the payment of principal or interest or some part of either principal or interest of said loan, Railroad Company shall be entitled to collect and receive the rents, income and yield from said lease of March 1, 1930, and convert the same to its own use, without accountability to Credit Corporation, and until such default as above set out shall have occurred, Credit Corporation shall not be entitled to collect or receive said rents, income or yield.”
On April 4, 1932, the credit corporation wrote a letter to the express company giving notice that the stock of the railroad company had been pledged to it as collateral security; and by letter of April 14th the express company acknowledged receipt of the notice.
On June 30, 1932, the first of the dividends here involved was declared by the express company, payable July 15, 1932. The dividend to which the stock pledged with the credit corporation was entitled under this declaration of dividend was not paid to any one, however; and shortly after it became payable, viz., on July 28, 1932, the railroad company was placed in receivership. On application of the receivers, they were authorized to pay and did pay the installment of interest due September 28, 1932, on the note held by the credit corporation, and thereby prevented a default on that note until March 28, 1933. in the meantime, the second dividend was declared on October 4, 1932, payable December 30, 1932. No further interest was paid on the note and default accordingly occurred with respect to the payment of interest due March 28, 1933. The third and fourth dividends on the stock were declared subsequent to that date; and for that reason the special master and the court below held that the credit corporation was entitled to. them, construing the provisions of the note which we have quoted as entitling the pledgee to dividends on the stock pledged only after default.
With respect to the right of set off urged by the express company, the special master found that the railroad company was indebted to the express company at the time of the appointment of the receivers in the sum of $14,894.58, and it is against this indebtedness that the first dividend was set off. An employee in the office of counsel for the express company testified that, shortly after being notified of the pledge of the express company stock by the railroad company to the credit corporation, he made inquiry of some one whom he understood to be treasurer of the credit corporation as to what disposition would be made of dividends on pledged collateral, and was told by him that it was not the intention of the credit corporation at the time to collect dividends until after the default in either principal or interest on the loan, and that, if confirmation of this in writing was desired, he would confirm it. The witness was furnished at the time a blank form of the note used by the credit corporation, but asked no release of dividends on the stock pledged by the railroad company. The treasurer of the credit corporation denied all recollection of any such conversation, and testified that the custom with respect to releasing dividends was to consider each case on its own merits where application for release of dividends was made. There is no evidence that any credit was extended the railroad company by the express company in reliance upon the statement as to dividends, or that the express company paid dividends to the railroad company or to any one else in reliance upon such statement. On the contrary, it is admitted that none of the dividends in question has as yet been paid to any one, although since November 9. 1932, the credit corporation has been demanding that they be paid to it.
On October 26, 1932, both the credit corporation and the express company filed claims with the receivers of the railroad company. The claim of the credit corporation, in addition to setting forth the amount of its claim and the collateral by which it was secured, contained the following statement: “Claim is herewith asserted, as pledgee, to all increases of the pledged property including dividends paid and to be paid, directly or indirectly, to said defendant and/or the receivers.” The claim of the express company asked a finding by the court with respect to dividends on the pledged stock in the following note appearing on its proof of claim: “Note.— On June 30, 1932, a dividend was declared upon the capital stock of Fruit Growers Express Company, payable July 15, 1932, to stockholders of record July 1, 1932. Norfolk Southern Railroad Company was the holder of 1,572 shares of said stock of record July 1, 1932, and the dividend thereon amounts to $6,288.00. It is understood that this stock was on March 28, 1932, pledged to the Railroad Credit Corporation to secure a loan -of $290,000 to the Norfolk Southern, and that said stock still remains so pledged. If the Norfolk Southern is entitled to the dividend upon said stock our claim against it will be correspondingly reduced; and. if not so entitled our claim against it remains as herewith filed. We ask a finding of facts by the court and a ruling that the dividend is a legal set-off to our claim against the Norfolk Southern Railroad Company.” While this note referred to the first dividend only, which was the only one which had then been declared, subsequent dividends were reported to the receivers as declared and the express company made the same claim with respect to them as it made with respect to the first dividend. (See record 148.)
While the case was pending before the special master, the receivers, with the approval of the court below, agreed with the credit corporation on a settlement of the matters in controversy, reserving, however, the questions as to the right to the dividends in controversy and the jurisdiction of the'court to determine that matter, the reservation as to the question of dividends being in the following language: “The question of the right, and the party ultimately entitled to the dividends heretofore declared on said stock of the Fruit Growers Express Company, as set out in said application, is expressly left open to be determined by proper judicial proceedings, it being the intent of the settlement and of this order that if the Railroad Credit Corporation, as pledgee, at the several rimes said dividends were payable, was entitled at law or in equity, under the pledge, to receive and hold such dividends, or any part thereof, it shall receive and retain the same as an additional payment under the settlement; on the other hand, if it was not so entitled to receive and hold any such dividends the settlement will be complete without them.”
Upon these facts, the following questions arise for our determination: (1) Was there jurisdiction in the court below to determine the rights of the parties as to the dividends in controversy? (2) Is the credit corporation, as pledgee of the stock, entitled to dividends declared and payable thereon prior to default by the railroad company in making payments under the note for which the stock was pledged? (3) If so, is the express company entitled to offset against any of the dividends on the stock the amount due it by the pledgor, the railroad company? And (4) is the express company chargeable with interest on the dividends for which it is liable to the credit corporation? We shall consider these questions in the order named.
1. The Question of Jurisdiction.
Little need be said as to the jurisdiction of the court below to determine the rights of the parties with respect to the dividends in controversy. It was necessary that the question which had arisen with respect thereto be settled in passing upon the claim of the credit corporation, and that corporation, in. making its claim, expressly covered dividends “paid and to be paid” on the pledged stock. The express company, in its claim, admitted its liability for the dividends, but expressly asserted the right to set off its account as filed against dividends for which it was liable, and asked a finding of facts and ruling by the court with respect to the matter. Whether the proceeding to determine the rights in the dividends be regarded as in rem, as determining rights with respect to an admitted debt of a party before the court, or in personam, as determining the rights of the claimants and receivers against each other, there can be no question as to the court’s having jurisdiction both of the subject-matter and of the parties under the claims as filed with it. Elkins v. First Nat. Bank (C.C.A.4th) 43 F.(2d), 777, 779; Schwartz v. Randolph (C.C.A.4th) 72 F.(2d) 892, 893, 96 A.L.R. 480; Alexander v. Hillman (C.C.A.4th) 75 F.(2d) 451; Id. (U.S.) 56 S.Ct. 204, 209, 80 L.Ed. -. As said by the Supreme Court in the case last cited:
“Respondents appropriately presented their claims and became entitled to adjudication without petition for intervention, any formal pleading, or commencement of suit. Unquestionably, they submitted themselves to the court’s jurisdiction in respect of all defenses that might be made-by the receivers and of all objections that other claimants might interpose to the validity, amounts, or priorities of their claims. And they put themselves in position, should their interest warrant, to challenge the receivers’ acts and the demands of others claiming as creditors.”
And, of course, the jurisdiction of the court below was in no wise affected by reason of the fact that the credit company, after the filing of its claim in that court,, instituted a suit against the express company in the District of Columbia for the. recovery of the dividends in controversy; and the appellate court of the District very .properly directed that proceedings in the suit before it be stayed pending the final disposition of the questions pending before the court below. Railroad Credit Corporation v. Fruit Growers’ Express Company, 63 App.D.C. 208, 71 F.(2d) 218. The suit in the District was strictly in person-am and was instituted after claim had been filed and jurisdiction acquired by the court below with respect to the .same subject-matter; and, even if the proceedings in the court below were in personam, as intimated by the Court of Appeals of the District, it was proper under the circumstances for the latter court to stay proceedings in the suit last instituted until the issue there involved could be determined by the court which had first acquired jurisdiction to determine it. As said by this court, speaking through Judge Soper, in Schwartz v. Randolph, supra, a case in which suit was commenced in New York, after claim had been filed with a receiver in Maryland:
“The filing of the claim in Maryland was itself a submission of the matter to the determination of the court, and it was none the less significant that it was done in response to a notice to creditors necessarily given by the court in the usual manner to expedite the settlement of the estate. We have then in effect the filing of two suits in personam, involving the same subject-matter, in separate jurisdictions foreign to one another. The power of the courts in such a contingency is clear. The mere pendency of the action in one court prior to the rendering of judgment does not oust the jurisdiction of the other. [Citing cases.] Circumstances may indeed arise in which the court of one jurisdiction, in the exercise of its discretion, may stay its hand pending the action of the court in the other, and the abuse of this discretion in hearing or refusing to hear a case may be the proper subject of an appeal.”
2. The Right to the Dividends.
We think it clear that the credit corporation was entitled to the first and second dividends on the stock in controversy, as well as to the third and fourth. Under a form note carefully prepared by the credit corporation for use throughout the United States, the stock was pledged to it without any reservation of dividends on the part of the pledgor; and the law is well settled in such case that the dividends belong to the pledgee. The rule is thus stated in Fletcher’s Cyclopedia of Corporations, vol. 6, § 3704: “In the absence of agreement to the contrary, a pledge of shares of stock as collateral security carries with it, as an incident of the pledgee’s special ownership, the right to receive dividends afterwards declared, to be applied on the debt, or held in trust for the pledg- or. * * * If the transfer has been registered on the books of the company, or although not so registered, if the corporation has notice thereof, it will be liable to the pledgee if it pays such dividends to the pledgor. As between the parties the failure to register the transfer on the books of the corporation does not affect the right of the pledgee to dividends.” And, as supporting this statement of the rule, see National Bank of Commerce v. Equitable Trust Co. (C.C.A.8th) 227 F. 526; Detroit Trust Co. v. First National Bank-Detroit (D.C.) 7 F.Supp. 117; Whetsel v. Forgey, 323 Mo. 681, 20 S.W.(2d) 523, 67 A.L.R. 476; Gemmell v. Davis, 75 Md. 546, 23 A. 1032, 32 Am.St.Rep. 412; Guarantee Co. v. East Rome Town Co., 96 Ga. 511, 23 S.E. 503, 51 Am.St.Rep. 150; Maxwell v. National Bank of Greenville, 70 S.C. 532, 50 S.E. 195, 3 Ann.Cas. 723; Meredith Village Savings Bank v. Marshall, 68 N.H. 417, 44 A. 526; 7 R.C.L. 293; 14 C.J. 732; and notes in 67 A.L.R. 485, and 3 Ann.Cas. 725, and cases there cited.
And we do not think, as did the court below, that there is anything in the paragraph of the note which we have quoted, relating to rights upon default, which in any way limits the rights of the pledgee with respect to dividends. The purpose of that paragraph was dearly to enlarge, not to restrict, the rights of the pledgee. It dealt with the rights of the pledgee to realize on the security pledged in case of default, not with the nature of the pledge or limitations thereon. It was evidently intended to make clear (1) that, upon default, the pledgee should have the right either to sell or to collect (or otherwise enforce) collateral pledged to secure the note, which was a form note intended for general use by the credit corporation; (2) that pledgee should have this right as well where there was a default in the payment of interest; as where there was default in payment of principal; and (3) that pledgee should have the right to purchase at its own sale if it should exercise the power given it to sell the collateral pledged. The suggestion that there was no right in the pledgee to collect dividends until after default because of the use of the word “collect” in this default and foreclosure paragraph would lead, if adopted, to the absurd conclusion that, in the case of coupon bonds pledged to secure a note of this character, the credit corporation would be without power to collect either bonds or coupons upon maturity unless there were a default under the note for the payment of which they had been pledged.
And we are not impressed with the argument that because the credit corporation was organized to assist weak and defaulting railroads, its contracts should not be interpreted in the same way as the contracts of any other corporation. It was not an eleemosynary institution, but a private corporation doing business on business principles. It was requiring security for money loaned; and the corporations with which it was dealing were represented by counsel learned in the law and well versed in the meaning of legal language and the legal effect of a pledge of securities. If it had been intended that, until default, the debtor roads and not the lender should be entitled to the dividends on stock pledged as collateral, this would have been set forth in connection with the' pledge, not left to be inferred, by attenuated reasoning, from language contained in the default and foreclosure clause. In the matter of the assignment of the rentals under the Virginia Electric & Power Company lease, it was intended that, until default under the note, these rentals should continue to go to the railroad company; and this was clearly set forth. If it had been intended that notwithstanding the pledge, dividends should be paid to the railroad company until default, this too should, and we think would, have been clearly set forth in the note. In the absence of such provision, it is not for the courts to strip the lender of security to which he is clearly entitled under the law as an incident of the pledge.
3. The Question of Set-Off.
As the dividends in controversy belong to the credit corporation and not to the railroad company, there would seem to be little difficulty about the question of set-off.- A corporation declaring a.dividend is “entitled, ordinarily, to set off a dividend owing to a stockholder against a debt due it by the stockholder at the time the dividend is declared; but, as we have seen, the dividends here were not owing to the railroad company, but to the credit corporation, as the pledgee of the stock. The stock had been pledged and the express company notified of the pledge before any of the dividends were declared. Under such circumstances, the law is well settled that the dividends may not be set off against debts due by the pledgor. 7 R.C.L. 295; Sargent v. Franklin Ins. Co., 8 Pick. (Mass.) 90, 19 Am.Dec. 306; Gemmell v. Davis, 75 Md. 546, 23 A. 1032, 1034, 32 Am.St.Rep. 412. The rule is thus well stated by Judge 'McSherry in the case last cited:
“As in every other case to which this doctrine of set-off is applicable, the debt— that is, the dividend — due by the corporation'must be payable by it to the person from whom the obligation to the corporation is demandable. If the stock has passed into the hands of a third party before the dividend has been declared, the right of set-off is gone, because a dividend declared after a transfer of stock has been made belongs to the assignee, and not the assignor. * * * As between vendor and vendee or pledgor and pledgee of stock, a transfer on the books of the company is not essential to perfect an equitable title in the vendee or pledgee. Noble v. Turner, 69 Md. 519, 16 A. 124; Baltimore, etc., Brick Co. v. Mali, 65 Md. [93], 96, 3 A. 286 [57 Am.Rep. 304]; Cecil Nat. Bank v. Watsontown Bank, 105 U.S. 217 [26 L.Ed. 1039]; Johnston v. Laflin, 103 U.S. 800 [26 L.Ed. 532], * * * As between vendor and vendee of shares of stock it is the settled rule that the vendee is entitled to all the dividends on the stock which are declared after the sale of the stock. In other words, dividends belong to the person entitled - to the stock when the dividends are declared. Abercrombie v. Riddle, 3 Md.Ch. 320. Even though the transfer has not been recorded, the transferee has a right to the dividends, as against the transferer. Cook, Stocks, § 541. A pledgee is protected in the same way as a purchaser of stock (Id. § 432), and consequéntly dividends declared during the continuance of the pledge belong to him, though he is not registered as owner on the corporate books (Id. § 468). Hill v. Newichawanick Co., 8 Hun [N.Y.] 459, affirmed in 71 N.Y. 593.”
And we do not think that the case is affected by the inquiry which the express company contends was made by a member of its legal staff as to the intention of the credit corporation with respect to dividends, and the response to such inquiry that it was not the intention of the credit corporation at the time to collect dividends in the absence of default. It does not appear who made the statement or that it was anything more than a statement as to policy which was subject to change at any time. If it had been shown that it was made by the treasurer or other responsible officer of the corporation, and that, in reliance thereon, credit had been extended to the express company by the railroad company or dividends had been paid to it, a different question would be presented. But the record does not show that any credit was extended to the railroad company because of the statement and certainly no dividends on the stock in controversy were paid to it or to anyone else. There is no basis, therefore, for the application of the doctrine of estoppel; and we do not think that the credit corporation should be held to have waived its rights to the dividends because of a general statement of some unidentified person in its office with respect to the general policy of the corporation, especially as the express company did not attach sufficient importance to the statement to request that it be put in writing, or ask that a waiver be given with respect to the dividends here involved, as was customary in cases where the corporation was willing to waive its right to dividends. “The expression of an intention to do a thing,” as said in Stewart v. Reckless, 24 N.J.Law, 427, 430, “is not a promise to do it. An intention is but the purpose a man forms in his own mind; a promise is an express undertaking, or agreement to carry the purpose into effect.”
We do not understand that the express company grounds any right upon the theory of waiver or estoppel, but relies upon the statement in question as an interpretation of the contract by an official of the credit corporation; but as the contract is in our opinion free of ambiguity, it cannot be considered for that purpose.
4. The Question of Interest.
There can be no question, we think, but that the credit corporation is entitled to recover interest on the dividends from the time that they were payable, except that on the first dividend interest should run only from the date of demand, which was November 9, 1932. For the reasons heretofore stated, the credit corporation was entitled to collect the dividends. It notified the express company of its rights and demanded payment which was refused. The express company not only has failed to pay the dividends to the credit corporation, as it should have done, but also has been asserting the right to set them off against indebtedness owing to it by the railroad company. While the receivers of the railroad have been claiming the dividends, their claim was not well founded, as we have seen; and the express company has at no time offered to pay the money into court to abide its determination. On the contrary, it has retained' the money which it should have paid the credit corporation and has had the use of it for all of this time, whereas the credit corporation, which was entitled to the money, has been deprived of the use of it. Under such circumstances, we see no reason why the express company should not be chargeable with interest on the first dividend from November 9, 1932, and on the others from the date on which they were payable, at the rate of 6 per cent, per annum, the rate prevailing both in the state of the forum and in the District of Columbia where the money was payable.
It is well settled that where a stockholder demands payment of a dividend, and it is refused, he is entitled to recover interest from the time of such demand and refusal. Keppel v. Petersburg R. Co., 14 Fed.Cas. page 357, at page 372, No. 7,722 (Per Circuit Justice Chase); 14 C.J. 826; Fletcher’s Cyclopedia of Corporations, vol. 6, p. 6139, and cases there cited. And we see no reason why any different rule should be applied in the case of a pledgee of stock from whom dividends have been wrongfully withheld. Interest is awarded in any case where it is not covered by express contract, because such award is necessary to place the injured party in the position which he would have occupied if the party in default had fulfilled his duty in the premises. As said by the Supreme Court in Miller v. Robertson, 266 U.S. 243, 257, 45 S.Ct. 73, 78, 69 L.Ed. 265:
“Compensation is a fundamental principle of damages, whether the action is in contract or in tort. Wicker v. Hoppock, 6 Wall. 94, 99, 18 L.Ed. 752. One who fails to perform his contract is justly bound to make good all damages that accrue naturally from the breach; and the other party is entitled to be put in as good a position pecuniarily as he would have been by performance of the contract. Curtis v. Innerarity, 6 How. 146, 154, 12 L.Ed. 380. One who has had the use of money owing to another justly may be required to pay interest from the time the payment should have been made. Both in law and in equity, interest is allowed on money due. Spalding v. Mason, 161 U.S. 375, 396, 16 S.Ct. 592, 40 L.Ed. 738.”
For cases illustrating how the principle of awarding interest to afford adequate compensation for the withholding of money justly due has been applied under varying circumstances, see United States v. Creek Nation, 295 U.S. 103, 111, 55 S.Ct. 681, 79 L.Ed. 1331; Seaboard Air Line Ry. v. United States, 261 U.S. 299, 306, 43 S.Ct. 354, 67 L.Ed. 664; Brame v. Keystone Credit Corporation (C.C.A.4th) 76 F.(2d) 328, 331; Standard Accident Ins. Co. v. Simpson (C.C.A.4th) 64 F.(2d) 583, 589; New Amsterdam Casualty Co. v. United States Shipping Board, etc. (C.C.A.4th) 16 F.(2d) 847, 852. And that the principle of awarding interest by way of affording adequate compensation where there has been default in the payment of money due is one of great antiquity, and recognized by the Roman Law. See Buckland Roman Law (2d Ed.) 551.
The point is made that under the agreement of settlement between the credit corporation and the receivers interest on the dividends was not left open to adjudication, but the dividends only. We do not so interpret the agreement, the purpose of which was to withhold from the settlement the question which had been raised as to the right to the dividends, and which provided .that, if it should be determined in the litigation that the credit corporation was entitled to the dividends, that corporation should have the recovery in addition to what had been received by it under the settlement. As pointed out by the Supreme Court in Stewart v. Barnes, 153 U. S. 456, at page 462, 14 S.Ct. 849, 38 L.Ed. 781, the right to recover interest by way of damages is not an independent cause of action, but is a right incidental to the right to recover the principal debt; and, as we hold the credit corporation entitled to recover the principal amount of the dividends wrongfully withheld from it, we think that it is entitled to interest by way of damages as' an incident of the relief granted. We do not think that the settlement between the credit corporation and the receivers was intended to affect in any way the right to recover interest as an in-cident to the recovery of the dividends; and certainly the express company ought not be allowed to avoid its liability because of an agreement between the credit corporation and the receivers unless this was clearly contemplated by the agreement.
For the reasons stated, the decree of the court below will be reversed on the credit corporation’s appeal in so far as it relates to the first and second dividends and the awarding of interest. The questions raised by the express company’s appeal become immaterial, except those relating to the awarding of the third and fourth dividends to the credit corporation, as to which the judgment is affirmed. On both appeals the cause is remanded with directions that decree be entered for the credit corporation for all four dividends, with interest on each from the date payable at the rate of 6 per cent, per annum, except that interest shall run on the first only from November 9, 1932. On the credit corporation’s appeal the cost will be taxed half against the receivers and half against the express company. On the express company’s appeal the costs will be taxed against it as appellant.
No. 3954, reversed in part and remanded with directions.
No. 3955, affirmed in part and remanded with directions.
Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
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sc_caseorigin
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040
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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.
FRY v. PLILER, WARDEN
No. 06-5247.
Argued March 20, 2007
Decided June 11, 2007
Scalia, J., delivered the opinion for a unanimous Court as to all but footnote 1 and Part II-B. Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined that opinion in full; Stevens, Souter, and Ginsburg, JJ., joined it as to all but Part II-B; and Breyer, J., joined as to all but footnote 1 and Part II-B. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Souter and Ginsburg, JJ., joined, and in which Breyer, J., joined in part, post, p. 122. Breyer, J., filed an opinion concurring in part and dissenting in part, post, p. 126.
Victor S. Haltom, by appointment of the Court, 549 U. S. 1165, argued the cause for petitioner. With him on the briefs was John R. Duree, Jr.
Ross C. Moody, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Manuel M. Medeiros, State Solicitor General, Gerald A. Engler, Senior Assistant Attorney General, Donald E. de Nicola, Deputy Solicitor General, and Peggy S. Ruffra, Supervising Deputy Attorney General.
Patricia A. Millett argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, Jonathan L. Marcus, and Joel M. Gershowitz.
Lori R. E. Ploeger, Maureen P Alger, and Matthew D. Brown filed a brief for the Innocence Network as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Missouri et al. by Jeremiah W. (Jay) Nixon, Attorney General of Missouri, James R. Layton, State Solicitor, and Heidi C. Doerhojf and Ronald S. Ribaudo, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Dustin McDaniel of Arkansas, John W. Suthers of Colorado, Joseph R. Biden III of Delaware, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Gregory D. Stumbo of Kentucky, Michael A Cox of Michigan, Jim Hood of Mississippi, Mike McGrath of Montana, Wayne Stenehjem of North Dakota, TV A Drew Edmondson of Oklahoma, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Greg Abbott of Texas, Mark L. Shurtlejf of Utah, and Darrell V. McGraw, Jr., of West Virginia; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.
Justice Scalia
delivered the opinion of the Court.
We decide whether a federal habeas court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the “substantial and injurious effect” standard set forth in Brecht v. Abrakamson, 507 U. S. 619 (1993), when the state appellate court failed to recognize the error and did not review it for harmlessness under the “harmless beyond a reasonable doubt” standard set forth in Chapman v. California, 386 U. S. 18 (1967).
I
After two mistrials on account of hung juries, a third jury convicted petitioner of the 1992 murders of James and Cynthia Bell. At trial, petitioner sought to attribute the murders to one or more other persons. To that end, he offered testimony of several witnesses who linked one Anthony Hurtz to the killings. But the trial court excluded the testimony of one additional witness, Pamela Maples, who was prepared to testify that she had heard Hurtz discussing homicides bearing some resemblance to the murder of the Bells. In the trial court’s view, the defense had provided insufficient evidence to link the incidents described by Hurtz to the murders for which petitioner was charged.
Following his conviction, petitioner appealed to the California Court of Appeal, arguing (among other things) that the trial court’s exclusion of Maples’ testimony deprived him of a fair opportunity to defend himself, in violation of Chambers v. Mississippi, 410 U. S. 284 (1973) (holding that a combination of erroneous evidentiary rulings rose to the level of a due process violation). Without explicitly addressing petitioner’s Chambers argument, the state appellate court held that the trial court had not abused its discretion in excluding Maples’ testimony under California’s evidentiary rules, adding that “no possible prejudice” could have resulted in light of the “merely cumulative” nature of the testimony. People v. Fry, No. A072396 (Ct. App. Cal., 1st App. Dist., Mar. 30, 2000), App. 97, n. 17. The court did not specify which harmless-error standard it was applying in concluding that petitioner suffered “no possible prejudice.” The Supreme Court of California denied discretionary review, and petitioner did not then seek a writ of certiorari from this Court.
Petitioner next filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of California, raising the aforementioned due process claim (among others). The case was initially assigned to a Magistrate Judge, who ultimately recommended denying relief. He found the state appellate court’s failure to recognize error under Chambers to be “an unreasonable application of clearly established law as set forth by the Supreme Court,” App. 180, and disagreed with the state appellate court’s finding of “no possible prejudice.” But he nevertheless concluded that “there ha[d] been an insufficient showing that the improper exclusion of the testimony of Ms. Maples had a substantial and injurious effect on the jury’s verdict” under the standard set forth in Brecht. App. 181-182. The District Court adopted the Magistrate Judge’s findings and recommendations in full, and a divided panel of the United States Court of Appeals for the Ninth Circuit affirmed. We granted certiorari. 549 U. S. 1092 (2006).
II
A
In Chapman, supra, a case that reached this Court on direct review of a state-court criminal judgment, we held that a federal constitutional error can be considered harmless only if a court is “able to declare a belief that it was harmless beyond a reasonable doubt.” Id., at 24. In Brecht, supra, we considered whether the Chapman standard of review applies on collateral review of a state-court criminal judgment under 28 U. S. C. § 2254. Citing concerns about finality, comity, and federalism, we rejected the Chapman standard in favor of the more forgiving standard of review applied to nonconstitutional errors on direct appeal from federal convictions. See Kotteakos v. United States, 328 U. S. 750 (1946). Under that standard, an error is harmless unless it “‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht, supra, at 631 (quoting Kotteakos, supra, at 776). The question in this case is whether a federal court must assess the prejudicial impact of the unconstitutional exclusion of evidence during a state-court criminal trial under Brecht even if the state appellate court has not found, as the state appellate court in Brecht had found, that the error was harmless beyond a reasonable doubt under Chapman.
We begin with the Court’s opinion in Brecht The primary reasons it gave for adopting a less onerous standard on collateral review of state-court criminal judgments did not turn on whether the state court itself conducted Chapman review. The opinion explained that application of Chapman would “underminfe] the States’ interest in finality,” 507 U. S., at 637; would “infring[e] upon [the States’] sovereignty over criminal matters,” ibid.; would undercut the historic limitation of habeas relief to those “ ‘grievously wronged,’ ” ibid.; and would “impos[e] significant ‘social costs,’ ” ibid. (quoting United States v. Mechanik, 475 U. S. 66, 72 (1986)). Since each of these concerns applies with equal force whether or not the state court reaches the Chapman question, it would be illogical to make the standard of review turn upon that contingency.
The opinion in Brecht clearly assumed that the Kotteakos standard would apply in virtually all §2254 cases. It suggested an exception only for the “unusual case” in which “a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct, . . . infect[s] the integrity of the proceeding.” 507 U. S., at 638, n. 9. This, of course, has nothing to do with whether the state court conducted harmless-error review. The concurring and dissenting opinions shared the assumption that Kotteakos would almost always be the standard on collateral review. The former stated in categorical terms that the “Kotteakos standard” “will now apply on collateral review” of state convictions, 507 U. S., at 643 (Stevens, J., concurring). Justice White’s dissent complained that under the Court’s opinion Kotteakos would apply even where (as in this case) the state court found that “no violation had occurred,” 507 U. S., at 644; and Justice O’Connor’s dissent stated that Chapman would “no longer appl[y] to any trial error asserted on habeas,” 507 U. S., at 651. Later cases also assumed that Brechfs applicability does not turn on whether the state appellate court recognized the constitutional error and reached the Chapman question. See Penry v. Johnson, 532 U. S. 782, 795 (2001); Calderon v. Coleman, 525 U. S. 141, 145 (1998) (per curiam).
Petitioner’s contrary position misreads (or at least exaggerates the significance of) a lone passage from our Brecht opinion. In that passage, the Court explained:
“State courts are fully qualified to identify constitutional error and evaluate its prejudicial effect on the trial process under Chapman, and state courts often occupy a superior vantage point from which to evaluate the effect of trial error. For these reasons, it scarcely seems logical to require federal habeas courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review.” 507 U. S., at 636 (citation omitted).
But the quoted passage does little to advance petitioner’s position. To say (a) that since state courts are required to evaluate constitutional error under Chapman it makes no sense to establish Chapman as the standard for federal habeas review is not at all to say (b) that whenever a state court fails in its responsibility to apply Chapman the federal habeas standard must change. It would be foolish to equate the two, in view of the other weighty reasons given in Brecht for applying a less onerous standard on collateral review— reasons having nothing to do with whether the state court actually applied Chapman.
Petitioner argues that, if Brecht applies whether or not the state appellate court conducted Chapman review, then Brecht would apply even if a State eliminated appellate review altogether. That is not necessarily so. The federal habeas review rule applied to the class of case in which state appellate review is available does not have to be the same rule applied to the class of case where it is not. We have no occasion to resolve that hypothetical (and highly unrealistic) question now. In the case before us petitioner did obtain appellate review of his constitutional claim; the state court simply found the underlying claim weak and therefore did not measure its prejudicial impact under Chapman. The attempted analogy — between (1) eliminating appellate review altogether and (2) providing appellate review but rejecting a constitutional claim without assessing its prejudicial impact under Chapman — is a false one.
Petitioner contends that, even if Brecht adopted a categorical rule, post-Brecht developments require a different standard of review. Three years after we decided Brecht, Congress passed, and the President signed, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), under which a habeas petition may not be granted unless the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States . . . .” 28 U.S.C. § 2254(d)(1). In Mitchell v. Esparza, 540 U. S. 12 (2003) (per curiam), we held that, when a state court determines that a constitutional violation is harmless, a federal court may not award habeas relief under §2254 unless the harmlessness determination itself was unreasonable. Petitioner contends that § 2254(d)(1), as interpreted in Esparza, eliminates the requirement that a petitioner also satisfy Brechts standard. We think not. That conclusion is not suggested by Esparza, which had no reason to decide the point. Nor is it suggested by the text of AEDPA, which sets forth a precondition to the grant of habeas relief (“a writ of habeas corpus ... shall not be granted” unless the conditions of § 2254(d) are met), not an entitlement to it. Given our frequent recognition that AEDPA limited rather than expanded the availability of habeas relief, see, e. g., Williams v. Taylor, 529 U. S. 362, 412 (2000), it is implausible that, without saying so, AEDPA replaced the Brecht standard of “‘actual prejudice,”’ 507 U. S., at 637 (quoting United States v. Lane, 474 U. S. 438, 449 (1986)), with the more liberal AEDPA /Chapman standard which requires only that the state court’s harmless-beyond-a-reasonable-doubt determination be unreasonable. That said, it certainly makes no sense to require formal application of both tests (AEUTA/Chapman and Brecht) when the latter obviously subsumes the former. Accordingly, the Ninth Circuit was correct to apply the Brecht standard of review in assessing the prejudicial impact of federal constitutional error in a state-court criminal trial.
B
Petitioner argues that, even if Brecht provides the standard of review, we must still reverse the judgment below because the exclusion of Maples’ testimony substantially and injuriously affected the jury’s verdict in this case. That argument, however, is not fairly encompassed within the question presented. We granted certiorari to decide a question that has divided the Courts of Appeals — whether Brecht or Chapman provides the appropriate standard of review when constitutional error in a state-court trial is first recognized by a federal court. Compare, e. g., Bains v. Cambra, 204 F. 3d 964, 976-977 (CA9 2000), with Orndorff v. Lockhart, 998 F. 2d 1426, 1429-1430 (CA8 1993). It is true that the second sentence of the question presented asks: “Does it matter which harmless error standard is employed?” Pet. for Cert. I. But to ask whether Brecht makes any real difference is not to ask whether the Ninth Circuit misapplied Brecht in this particular case. Petitioner seems to have understood this. Only in a brief footnote of his petition did he hint that the Ninth Circuit erred in its application of the Brecht standard. Pet. for Cert. 23, n. 19. Indeed, if application of the Brecht standard to the facts of this case were encompassed within the question presented, so too would be the question of whether there was constitutional error in the first place. After all, it would not “matter which harmless error standard is employed” if there were no underlying constitutional error. Unlike the dissenting Justices, some of whom would reverse the decision below on the ground that the error was harmful under Brecht, and one of whom would vacate the decision below on the ground that it is unclear whether there was constitutional error in the first instance, we read the question presented to avoid these tangential and factbound questions, and limit our review to the question whether Chapman or Brecht provides the governing standard.
* * *
We hold that in §2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the “substantial and injurious effect” standard set forth in Brecht, supra, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the “harmless beyond a reasonable doubt” standard set forth in Chapman, 386 U. S. 18. Since the Ninth Circuit correctly applied the Brecht standard rather than the Chapman standard, we affirm the judgment below.
It is so ordered.
As this case comes to the Court, we assume (without deciding) that the state appellate court’s decision affirming the exclusion of Maples’ testimony was an unreasonable application of Chambers v. Mississippi, 410 U. S. 284, 302 (1973). We also assume that the state appellate court did not determine the harmlessness of the error under the Chapman standard, notwithstanding its ambiguous conclusion that the exclusion of Maples’ testimony resulted in “no possible prejudice.”
We do not agree with petitioner’s amicus that Brecht’s concerns regarding the finality of state-court criminal judgments and the difficulty of retrying a defendant years after the crime “have been largely alleviated by [AEDPA],” which “sets strict time limitations on habeas petitions and limits second or successive petitions as well.” Brief for Innocence Network 7. Even cases governed by AEDPA can span a decade, as the nearly 12-year gap between petitioner’s conviction and the issuance of this decision illustrates.
The question presented included one additional issue: “[I]f the Brecht standard applies, does the petitioner or the State bear the burden of persuasion on the question of prejudice?” Pet. for Cert. I. We have previously held that, when a court is “in virtual equipoise as to the harmlessness of the error” under the Brecht standard, the court should “treat the error ... as if it affected the verdict . . . .” O’Neal v. McAninch, 513 U. S. 432, 435 (1995). The majority opinion below did not refer to O’Neal, presumably because the majority harbored no grave doubt as to the harmlessness of the error. Neither did the dissenting judge refer to O’Neal, presumably because she did not think the majority harbored grave doubt as to the harmlessness of the error. Moreover, the State has conceded throughout this §2254 proceeding that it bears the burden of persuasion. Thus, there is no basis on which to conclude that the court below ignored O’Neal.
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
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
212. United States Supreme Court
Answer:
|
songer_r_natpr
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of 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.
George D. GLAUNER and George D. Brown, Appellants, v. Charles MALONE and Norma Malone, and Donald Maxwell, Intervenor.
No. 14131.
United States Court of Appeals Third Circuit.
Argued at Christiansted Jan. 30, 1963.
Decided April 3, 1963.
Francis J. Carey, Jr., Philadelphia, Pa., for appellant.
William W. Bailey, St. Thomas, Virgin Islands, for intervenor appellee, Donald Maxwell.
William H. D. Cox, St. Thomas, Virgin Islands, for appellees, Malone.
Before MARIS, WOODBURY and HASTIE, Circuit Judges.
HASTIE, Circuit Judge.
This is an appeal by the original plaintiffs from a judgment in favor of an intervening claimant in an action for specific performance of a contract to sell real property.
Charles and Norma Malone, the defendants, are the owners of the parcel in question which adjoins their home site. Both the appellants and the intervenor, Maxwell, claim to have valid contracts with the Malones for the purchase of the land. The Malones recognize that they are obligated to sell to someone and that the essential terms of the alleged contracts with appellants and with the intervenor are the same. We have to decide which of the rival claimants is entitled to buy the property.
The district court’s findings of fact, supplemented by undisputed testimony and exhibits, disclose the following course of events. On May 19,1961, the Malones signed and sent to the plaintiffs a proposed contract to sell Parcel 21B, Estate Mandahl, for a consideration upon which the parties had already agreed in informal negotiation. On May 31, 1961, the plaintiffs signed the agreement but did not inform the Malones of this action pending further discussion of the purchasers’ right to accelerate mortgage payments and their desire to provide in advance for the future release of part of the land from the mortgage after payment of a certain amount of the purchase price. On June 12, 1961, the parties and their attorneys met and reached an agreement on these points, which were to be covered by a separate letter agreement without altering the contract of sale. However, at that meeting the plaintiffs’ attorney stated that he had learned of a recorded agreement between the Malones and a former owner of land adjoining the Malones’ holdings which, among other things, purported to give the neighboring landowner, E. Nicholas Sargent, and his heirs and assigns, an option in the form of a first refusal for the purchase of land which included Parcel 21B. After discussion of this discovery the attorneys parted with a view to further investigating the matter.
The court below found that during the discussion on June 12th, counsel for the Malones expressed the thought that “any further negotiations” between the Malones and the plaintiffs “would have to be discontinued” pending determination of their situation under the Sargent agreement. On this basis the court concluded as a matter of law that “the offer [to sell] was withdrawn * * * or at least was suspended” pending determination of third-party rights.
We think that what was said and done at the June 12th meeting was neither intended nor understood by those who were present to mean that the offer to sell had been revoked. Except for clearing up the question of the option, no further negotiations between the Malones and the plaintiffs were needed. The basic contract had already been signed by the Malones and delivered to the plaintiffs, and the two outstanding matters which had been carried over to the meeting had been resolved, with the parties agreeing to incorporate their understanding in a letter of amendment to the contract of sale. At no time before the bringing of the present suit did the Malones request that the contract be returned or did their counsel offer to return a $2,400 check which had been deposited with him as earnest. Both at the June 12th meeting and in subsequent communications the Malones or their agents expressed continuing willingness to sell to the plaintiffs on the terms which had been mutually agreed. The lawyer who represented the plaintiffs at the June 12th meeting testified, under cross-examination by counsel for the Malones, that he remembered that “the essence of what you said and what I said was that we could not proceed to close until we have resolved the situation with respect to this option and right of way”. We recognize that “to close”, in the context of real property transactions, means to make the formal transfer of title. Finally, the Malones’ attorney took the stand and testified that during the course of the discussion, he said to one of the plaintiffs, “ ‘Well, Doctor Glauner, you certainly don’t want to buy yourself a lawsuit, and here you’ve got a situation which can result in a lawsuit.’ Well, he said he didn’t, and it was agreed that I would try to straighten it out.” There was no evidence of anything said or done which would have led the plaintiffs to believe that the deal was off; on the contrary, the evidence concerning the June 12th meeting clearly indicates that if the plaintiffs wanted to go ahead in spite of whatever litigation they might incur, the Malones’ offer was still outstanding for them to accept.
Thereafter, the Malones’ attorney communicated with the intervenor, to whom Dr. Sargent’s rights under his agreement had been assigned, and learned that the intervenor would like to buy the Malone property on the terms already offered to plaintiffs. Concerned by the course the matter was taking, the plaintiffs demanded that the Malones consummate the proposed sale to them and on August 21, 1961, recorded the contract of sale which they had signed on May 31st. Finally, on September 5th, the Malones and the intervenor, with notice of the plaintiffs’ recorded contract of sale, signed a contract of sale for the same property on essentially the same terms.
To resolve this controversy we must examine the terms and the history of the Sargent agreement. Parcel 21B and other land of the Malones lies between Parcel 22, formerly owned by E. Nicholas Sargent, and a public road. An agreement between these adjoining landowners, executed in April 1957 and amended in June 1957, provided that “in consideration of the promise of Dr. E. Nicholas Sargent, his heirs and assigns to cut, bulldose, and construct a dirt road, at their own expense, from the public road into Plot No. 21 of Estate Mandahl * * * to provide access to Parcel No. 22 of Estate Mandahl”, the Malones undertook to grant Dr. Sargent a perpetual right of way over the new road he was to construct. In addition the right of the owners of Parcel 21 to enjoy the use of the new road was expressly reserved. It was further provided that “for the same consideration, the undersigned, Charles Malone, hereby give [sic] and grant [sic] unto Dr. E. Nicholas Sargent, his heirs and assigns, an Option to Buy the said Plot No. 21 of Estate Mandahl for such price as shall be offered to me by any bona fide purchaser”.
This agreement is clear and explicit in making the construction of a road for the benefit of both parcels of land the performance required in exchange for a first refusal of the Malone land. Four years elapsed between the execution of this agreement in mid-1957 and the emergence of the present controversy in 1961. In the meantime, Dr. Sargent had sold his land without building the proposed access road. His successors took no steps to that end. In this suit the intervenor does not contend that either he or any predecessor in title has ever undertaken to perform the obligation of Sargent under the 1957 agreement. Certainly such non-action over a four year period is an unreasonable delay in the performance of the promise to build a new road.
Here we think is the plainest failure of consideration. The intervenor is asserting a right to the performance of the Malones’ promise to Sargent despite the total failure of either Sargent or his successors to perform or tender performance of the reciprocal promise which was the sole consideration for the Malones’ undertaking. It is clear that under such circumstances the Malones’ promise is unenforceable. Restatement, Contracts, § 274; see 6 Corbin, Contracts, 1962, §§ 1252, 1253, 1255. They were free to sell to any prospective purchaser without according Dr. Sargent or his successor a first refusal.
In these circumstances the contract of sale executed by the plaintiffs and the Malones, as recorded on August 21st, was fully effective. The intervenor could acquire nothing under his subsequent contract, executed on September 5th with notice of the plaintiffs’ prior claim and of the Malones’ obligation to honor it.
The judgment will be reversed and the cause remanded for the entry of an appropriate judgment for the plaintiffs.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
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.
BELTRAN v. MYERS, DIRECTOR, CALIFORNIA STATE DEPARTMENT OF HEALTH, et al.
No. 80-5303.
Argued March 24, 1981
Decided May 18, 1981
Gill Deford argued the cause for petitioner. With him on the briefs was Neal S. Dudomtz.
Richard J. Magasin, Deputy Attorney General of California, argued the cause for respondents. With him on the brief were George Deukmejian, Attorney General, Thomas E. War-riner, Assistant Attorney General, and Anne 8. Pressman and Donald A. Robinson, Deputy Attorneys General.
Robert Abrams, Attorney General of New York, Shirley Adelson Seigel, Solicitor General, Clifford A. Royael, and Stephen H. Sachs, Attorney General of Maryland, filed a brief for the Attorney General of New York et al. as amici curiae urging affirmance.
Per Curiam.
We granted a writ of certiorari, 449 U. S. 951 (1980), to review a decision of the United States Court of Appeals for the Ninth Circuit, holding that California’s “transfer-of-assets” statute applicable to “medically needy” recipients of Medicaid benefits does not conflict with governing federal law. Dawson v. Myers, 622 F. 2d 1304 (1980). Petitioner is an individual considered “medically needy” under California’s Medicaid plan, who represents the class of all such persons who have been denied Medicaid benefits because of previous transfers of assets for less than full consideration. She argues that this exclusion is impermissible because it is based on a rule applicable only to “medically needy” recipients, and could not apply under federal law to “categorically needy” recipients.
After our grant of certiorari on November 3, 1980, Congress passed § 5 of Pub. L. 96-611, 94 Stat. 3567 (Dec. 28, 1980) (the “Boren-Long Amendment”), which made material changes in the law in this area. This section creates a presumption that assets disposed of for less than full consideration within the preceding 24 months should be included in the resources of an applicant for SSI benefits. The applicant can overcome this presumption with “convincing evidence to establish that the transaction was exclusively for some . . . purpose” other than establishing eligibility. § 5 (a) (amending § 1613 of the Social Security Act, 42 U. S. C. § 1382b). This section goes on to allow state Medicaid plans to apply similar rules to Medicaid recipients — including both the categorically needy and the medically needy. Pub. L. 96-611, § 5 (b), 94 Stat. 3568 (amending § 1902 of the Social Security Act, 42 U. S. C. § 1396a). It states that if the state plan includes a transfer-of-assets rule, it shall specify a procedure for implementing the denial of benefits “which, except as provided in paragraph (2), is not more restrictive than the procedure specified” for SSI. Paragraph (2) provides that where the uncompensated value of the disposed-of resources exceeds $12,000, the States may impose a period of ineligibility exceeding 24 months, as long as this period bears “a reasonable relationship to such uncompensated value.”
In sum, it would appear that in the future the States will be permitted to impose transfer-of-assets restrictions generally similar to that of California. This change will take effect on July 1, 1981, Pub. L. 96-611, § 2, 94 Stat. 3567 — a matter of weeks from now. This raises the question whether it is appropriate for the Court to decide the merits of the underlying dispute as considered by the Court of Appeals.
We have determined that the change caused by the recent statutory amendment requires reconsideration of the decision below by the Court of Appeals. Because of the statutory change, the federal standards governing state plans with respect to transfer-of-asset rules have been altered significantly. Although it is fair to say that Congress generally endorsed rules like California’s, the detailed provisions recently enacted may require some changes in the California rule. We note in particular that California seems to include the residence of the claimant among the assets that may not be given away without a corresponding loss in Medicaid coverage. Under the Boren-Long Amendment, however, arguably such an asset must be excluded. Petitioner should have the opportunity to argue the validity of the California law under the new federal law — an issue that was not addressed by the parties in this Court.
We vacate the decision below, and remand this case to the Court of Appeals for reconsideration of its decision in light of the recent statutory change.
It is so ordered.
“Medically needy” persons are included in the categories of Medicaid recipients — aged, blind, disabled, or dependent children — which are derived from Social Security welfare programs. They have income levels, however, that are too high to qualify for regular income assistance under the Supplemental Security Income (SSI) or Aid to Families with Dependent Children programs, and for this reason are distinguished from “categorically needy” recipients. 42 CFR §435.4 (1980).
The California rule is set out in Cal. Welf. & Inst. Code Ann. § 14015 (West 1980). This statute provides in part:
“[A]ny transfer of the holdings by gift or, knowingly, without adequate and reasonable consideration, shall be presumed to constitute a gift of property with intent to qualify for assistance and such act shall disqualify the owner for further aid for a period determined under standards established by the director, and in no event for less than half of the period that the capital value of the transferred property would have supplied the person’s maintenance needs based on his circumstances at the time of his transfer plus the cost of any needed medical care.”
See n. 1, supra. The categorically needy receive Medicaid benefits merely by virtue of their eligibility for income assistance under the SSI or AFDC programs. Since that eligibility has not, until recently, been conditioned on a person’s retention of existing assets, States could not apply a transfer-of-assets disqualification to the categorically needy.
Petitioner’s claim here is that she must be accorded the same treatment under the terms of 42 U. S. C. §§ 1396a (a)(10)(C), (17) (B). See also 42 CFR §435.401 (1980).
Petitioner herself was penalized by California for a gift of her home to relatives.
The amendment to § 1613 of the Social Security Act, 42 U. S. C. § 1382b, in § 5 (a) of Pub. L. 96-611, 94 Stat. 3567, provides for consideration in the SSI program of any disposed of resources “(but subject to the exclusions under subsection (a)).” Subsection (a) of §1613, 42 U. S. C. § 1382b (a), provides for exclusion from consideration of a claimant’s home, household effects, and certain other items. If the new law has the effect of allowing uncompensated disposal of these excluded items without corresponding reductions in SSI benefits, it may also have the effect of requiring States to ignore transfer of these same assets in administering Medicaid. See Pub. L. 96-611, § 5 (b), 94 Stat. 3568 (providing that the state plan’s “procedure” cannot be more restrictive than the rules applicable to SSI, except that the period of ineligibility may be longer than 24 months if the value of the assets exceeds $12,000). See also 126 Cong. Rec. 33928 (1980) (Sen. Long) (“Generally, State [Medicaid] rules could not be more restrictive than the Federal SSI rule except that the period of disqualification could be longer than 24 months in cases where a very large disposal of assets — more than $12,000 — is involved”). But see Senate Committee on Finance, Spending Reductions: Recommendations Required by the Reconciliation Process in Section 3 (a) (15) of H. Con. Res. 307, the First Budget Resolution for Fiscal Year 1981, 96th Cong., 2d Sess., 20 (Comm. Print 1980) (analysis of an identical amendment of the SSI statute included in S. 2885, 96th Cong., 2d Sess., § 511 (1980)) (“the committee amendment would require that any resources which an individual has given away or sold for less than fair market value would still be considered as available for his support, during the 2 years following the transfer of the asset”) (emphasis added).
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_summary
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
FIRST COMMODITY TRADERS, INC., Plaintiff-Appellant, v. HEINOLD COMMODITIES, INC., and Vern Pherson, Defendants-Appellees, v. FIRST COMMODITY TRADERS, INC., Robert Gardner, Bruce Zins, and Robert Blankoph, Counterdefendants-Appellants.
No. 84-2437.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 16, 1985.
Decided June 21, 1985.
Sidney Rosenfeld, Soloman, Rosenfeld, Elliott & Stiefel & Glovka, Ltd., Chicago, 111., for plaintiff-appellant.
William J. Nissen, Sidley & Austin, Chicago, III, for defendants-appellees.
Before WOOD and FLAUM, Circuit Judges, and GRANT, Senior District Judge.
The Honorable Robert A. Grant, Senior District Judge for the Northern District of Indiana, is sitting by designation.
GRANT, Senior District Judge.
• Appellants, First Commodity Traders, Inc., Robert Gardner, Bruce Zins, and Robert Blankoph appeal from an order granting partial summary judgment to defendants, Heinold Commodities, Inc. and Yern Pherson. The district court’s order is reported at 591 F.Supp. 812 (N.D.I11.1982). Appellants also challenge the district court’s reduction of their request for attorneys’ fees, and the court’s award of attorneys’ fees to appellees. For the reasons set forth below, this court AFFIRMS the judgment and order of the district court.
Facts
On September 1, 1978, appellant, First Commodity Traders, Inc. [hereinafter referred to as FCT] entered into a contract with appellee, Heinold Commodities, Inc. [hereinafter referred to as Heinold] in which FCT agreed to operate a branch office for Heinold for the purpose of selling commodities futures. Appellants, Gardner, Zins and Blankoph, signed as guarantors of the obligations of FCT under the contract. The contract required FCT to solicit brokerage business for Heinold and to comply with all rules, regulations and policies of Heinold, the Commodities Futures Trading Commission and various commodities exchanges. Heinold agreed to split the net profits of this business with FCT. The contract contained no definite termination date; however, either party could terminate it for a breach of any paragraph. Illinois law governed the agreement.
Over the course of the relationship, various exchanges found that FCT’s principals had violated exchange rules. In November 1979, appellee Vern Pherson became manager of Heinold’s New York office. In December 1980, Pherson recommended termination of Heinold’s relationship with FCT. At trial, Pherson testified that he had several reasons for his recommendation, including fear of potential harm to Heinold’s reputation following disciplinary actions by several commodities exchanges against FCT’s principals.
In a January 7, 1981 letter, Heinold told FCT that the agreement would be terminated thirty days later. Heinold later extended the termination date to March 20, 1981. Heinold told FCT’s attorney that it considered the contract terminable at will. After termination, an accountant reviewed monthly statements Heinold had sent to FCT during the life of the agreement. The accountant concluded that Heinold had un-dercredited FCT for clearing house rebates by $166,186.17. 591 F.Supp. at 825.
FCT filed an eleven-count complaint against Heinold in the Supreme Court of New York alleging unjust enrichment, breach of contract, and tortious interference with economic relationships. FCT sought an equitable accounting and the recovery of customer deficits and attorneys’ fees. Heinold counterclaimed against FCT for breach of contract and alternatively for an accounting. Following removal of the ease to the United States District Court for the Southern District of New York, pursu- ■ ant to 28 U.S.C. § 1441(c), the parties agreed to transfer the case to the Northern District of Illinois.
After two years of pretrial discovery, the district court granted Heinold summary judgment on nine counts of the complaint. Heinold withdrew its counterclaim for breach of contract and an accounting, and conceded liability to FCT for customer deficits in the amount of $11,549.34. Accordingly, the district court dismissed the first nine counts of FCT’s complaint and awarded FCT $11,549.34 as recovery of customer deficits and $3,850 in attorneys’ fees. The court awarded Heinold $39,042 in attorneys’ fees and dismissed the remainder of Heinold’s counterclaim. FCT appeals from the district court’s judgment. This Court has jurisdiction under 28 U.S.C. § 1291.
FCT raises five questions on appeal:
I. Whether the district court properly granted summary judgment to Hei-nold on FCT’s claim for an equitable accounting;
II. Whether the district court properly granted summary judgment dismissing FCT’s claim of unjust enrichment;
III. Whether the district court properly granted summary judgment to Hei-nold on FCT’s claim of breach of contract;
IY. Whether the district court properly granted summary judgment on FCT’s claim for the recovery of customer deficits for two customer accounts; and
V. Whether the district court properly awarded attorneys’ fees?
I. Whether the district court properly granted summary judgment to Hei-nold on FCT’s claim for an equitable accounting?
FCT requested an equitable accounting covering all transactions that occurred between the parties during the entire life of the agreement. FCT sought to show by the accounting that Heinold had failed to properly reimburse FCT for commissions and money expended for customers’ clearance fees. Heinold answered that an account had already been stated between the parties for each month of their contractual relationship.
The district court dismissed FCT’s claim for an equitable accounting because it found: 1) FCT had failed to raise a genuine issue of fact in support of opening the accounts stated; and 2) FCT had failed to show that its remedy at law was inadequate. 591 F.Supp. at 825.
Because an accounting is an equitable remedy, a court has broad discretion to determine whether it is appropriate to order an accounting. Netisingha v. End of the Line, Inc., 107 Ill.App.3d 275, 278, 63 Ill.Dec. 208, 210, 437 N.E.2d 857, 859 (1982). A court may refuse to award an equitable accounting to a party who has an adequate remedy at law. Medtronic, Inc. v. Intermedics, Inc., 725 F.2d 440, 443 (7th Cir.1984). FCT has made no showing why its claims for monies owed could not be identified as damages under its breach of contract claim. 591 F.Supp. at 825. During discovery, FCT had full access to Heinold’s records and could ascertain the correct amount of compensation to which FCT was entitled. FCT had an adequate remedy at law and could not resort to the equitable remedy of an accounting.
The district court found that a monthly account had been stated between the parties during the period of the agreement. 591 F.Supp. at 823. Heinold sent FCT monthly income and expense statements. FCT acquiesced in the correctness of those statements by failing to object to them within a reasonable time. That acquiescence is sufficient to establish an account stated between the parties. Protestant Hospital Builders Club, Inc. v. Goedde, 98 Ill.App.3d 1028, 1032, 54 Ill.Dec. 399, 403, 424 N.E.2d 1302, 1306 (1981).
A court will not open an account stated absent a showing of fraud, omission or mistake. Meeker v. Fowler, 35 Ill.App.3d 313, 318, 341 N.E.2d 412, 415 (1976). FCT offered two affidavits as grounds for opening the accounts stated. Both of those affidavits merely support FCT’s allegations by offering conclusory statements unsupported by specific facts. 591 F.Supp. at 825. Conclusory statements in affidavits opposing a motion for summary judgment are not sufficient to raise a genuine issue of material fact. Hall v. Printing and Graphic Arts Union, 696 F.2d 494, 500 (7th Cir.1982). FCT has not raised a genuine issue of fact in support of reopening the accounts stated.
II. Whether the district court properly granted summary judgment dismissing FCT’s claim of unjust enrichment?
After Heinold terminated the contract, it retained many of FCT’s customers. FCT claimed that retention of those customers unjustly enriched Heinold because Heinold no longer divided its sales- commissions with FCT. The district court dismissed FCT’s unjust enrichment claim because it found this form of quasi-contractual relief to be inappropriate. 591 F.Supp. at 822.
Unjust enrichment is a quasi-contractual theory of recovery. Under Illinois law, a plaintiff may not state a claim for unjust enrichment when a contract governs the relationship between the parties. LaThrop v. Bell Federal Savings & Loan Ass’n, 68 Ill.2d 375, 391, 12 Ill.Dec. 565, 572, 370 N.E.2d 188, 195 (1977), cert. denied, 436 U.S. 925, 98 S.Ct. 2818, 56 L.Ed.2d 768 (1978).
The fact that the agreement between Heinold and FCT did not explicitly provide for allocation of customers or commissions upon termination does not allow FCT to now invoke a quasi-contract remedy. Gordon v. Matthew Bender & Co., Inc., 562 F.Supp. 1286, 1298 (N.D.Ill.1983). In entering into the agreement, FCT assumed the risk of losing customers to Heinold in return for Heinold’s trading services. FCT could have, but did not provide for the allocation of this-risk under the terms of the contract. FCT may not unilaterally alter the terms of the contract by now claiming unjust enrichment. Industrial Lift Truck Service Corp. v. Mitsubi shi Int’l Corp., 104 Ill.App.3d 357, 60 Ill. Dec. 100, 104, 432 N.E.2d 999, 1003 (1982).
III. Whether the district court properly granted summary judgment to Hei-nold on FCT’s claim for breach of contract?
The district court dismissed FCT’s breach of contract claim, finding first: that the contract was terminable at will; and second: that even if the contract had not been terminable at will, Heinold had terminated for cause. FCT challenges both findings.
A. Whether the contract was terminable at will?
Under Illinois law, contracting parties may terminate at will if their contract contains no specific term of duration. Mann v. Ben Tire Distributors, Ltd., 89 Ill.App.3d 695, 44 Ill.Dec. 869, 870, 411 N.E.2d 1235, 1236 (1980). When no termination date is specified in a contract, courts must look to surrounding circumstances to discover the intention of the parties. Adkisson v. Ozment, 55 Ill.App.3d 108, 112, 12 Ill.Dec. 790, 793, 370 N.E.2d 594, 597 (1977). “[A] contract may be construed to continue until the happening of a specific event, if that appears to have been the intention of the parties.” Ricke v. Ricke, 83 Ill.App.3d 1115, 1120, 39 Ill.Dec. 598, 603, 405 N.E.2d 351, 356 (1980). If a contract is terminable upon the occurrence of some event, neither party may terminate at will. Consolidated Laboratories, Inc. v. Shandon Scientific Co., 413 F.2d 208, 212 (7th Cir.1969).
Paragraph 17 of the agreement between FCT and Heinold provides that “[e]ither party may unilaterally terminate this Agreement for a breach of any of the paragraphs of this Agreement.” 591 F.Supp. at 816. This paragraph sets forth a specific event upon which the contract may be terminated: breach. The circumstances and nature of the agreement indicate the parties’ intent to create a relationship terminable for breach, rather than terminable at will. Several other contracts executed between Heinold and FCT’s principals, prior to termination of the contract at issue in this case, include specific “at will” termination clauses. Heinold and FCT could have included an “at will” clause in this contract. Instead, the parties provided for termination upon breach. ’ This court may fairly imply from the nature of the contract that the parties did not intend the contract to be terminable at will. Because the contract was not terminable at .will, FCT may maintain an action against Heinold for breach of contract if Heinold’s termination did not comport with the terms of the agreement.
B. Heinold’s defense of breach.
Although the agreement was not terminable “at will,” Heinold’s termination comported with the terms of the contract because FCT had breached the agreement. The agreement required FCT to comply fully with all rules, regulations and policies of various commodity exchanges and government agencies that relate to the commodity futures and options brokerage business. The district court found that FCT, through its principals, had violated the rules of commodity exchanges on at least four occasions. 591 F.Supp. at 819. FCT does not dispute that the violations occurred. Because FCT breached the terms of the agreement, Heinold was entitled to terminate pursuant to Paragraph 17 of the agreement.
FCT claims that Heinold waived its right to rely on FCT’s exchange rules violations as legally adequate cause for termination of the contract. Heinold’s termination letters do not specify any reason for termination. In its Answer to the First Amended Complaint, Heinold denied that FCT had performed all the terms of the agreement and denied that Heinold had breached the agreement. Throughout the litigation, Heinold consistently maintained that Heinold terminated the agreement only after FCT’s breach. Heinold did not waive its right to rely on the rules violations because it raised that defense at the outset of the litigation.
FCT misconstrues the rule in Danberg v. Langman, 318 Ill. 266, 149 N.E. 245 (1925). Danberg precludes a defendant in a breach of contract action from altering the grounds of his defense after the litigation has begun. In Danberg, the defendant’s answer alleged that he terminated his contract to buy land because the plaintiff’s chain of title was defective. Later, at trial, the defendant sought to prove that the plaintiff held title to only half of the land described in the deed. The court held that the defendant was estopped from shifting his defense at trial. 149 N.E. at 247. Similarly, in Larson v. Johnson, 1 Ill.App.2d 36, 116 N.E.2d 187 (1953), the defendants answered a breach of contract claim by alleging fraud in the execution. After a master found that there had been no fraud in the contract’s execution, the defendants sought to shift their position, and claimed that the contract was too indefinite to be enforced. The court held that: “Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and a different consideration.” 116 N.E.2d at 189 (emphasis added) (citations omitted) (quoting Railway Company v. McCarthy, 96 U.S. (6 Otto) 258, 267, 24 L.Ed. 693 (1877)). In Larson v. Johnson, the court restricted the defendants to their initial defense of fraud. 116 N.E.2d at 192.
Although Illinois law requires a defendant in a breach of contract claim to stand by the first defense raised after the litigation has begun, the law does not require that the defense be asserted at the time the contract is terminated. Ordinarily, the party terminating the contract need not explain his reason therefor at the time of termination, provided that some legally adequate reason exists. Sterling Emery Wheel Co. v. Magee, 40 Ill.App. 340, 343 (1891). If the legal excuse for nonperformance exists at the time of termination, the terminating party may rely on the excuse in a breach of contract action even though he was unaware that the excuse existed at the time he terminated. College Point Boat Corp. v. United States, 267 U.S. 12, 15-16, 45 S.Ct. 199, 200-201, 69 L.Ed. 490 (1925). For example, in Kantzler v. Grant, 2 Ill.App. 236 (1878), the defendant breached his contract to marry the plaintiff. The defendant offered no reason for his breach. At trial, the defendant pleaded and proved that the plaintiff suffered from venereal disease. The Illinois Court of Appeals upheld the defendant’s right to raise that defense at trial. The court held: “If facts exist which in law constitute a perfect defense to an action, it is not perceived why a defendant may not avail himself thereof for the first time, if you please, on the trial of the cause.” 2 Ill.App. at 238.
Heinold raised the issue of FCT’s breach at the outset of the litigation, preserving its right to rely on that defense. Therefore, Heinold did not waive its right to rely on that defense by failing to give that reason when it terminated the contract and the district court properly dismissed FCT’s breach of contract claim.
IY. Whether the district court properly granted summary judgment on FCT’s claim for recovery of customer deficits for two customer accounts?
The district court granted summary judgment to Heinold on FCT’s claim for the recovery of deficits paid by FCT on the accounts of two customers, Weiss and York. The court found that after the agreement was made, FCT signed a letter in which it accepted responsibility for 80% of the Weiss deficit, and entered into an oral settlement of the York deficit. 591 F.Supp. at 825-26. The district court found that FCT failed to raise an issue as to the validity of either of these two settlement agreements. 591 F.Supp. at 826. Reviewing the record in the light most favorable to FCT, this Court finds no genuine issue as to the validity of the two settlement agreements. Accordingly, this Court must affirm the summary judgment. Thornton v. Evans, 692 F.2d 1064, 1074 (7th Cir.1982).
V. Whether the district court properly awarded partial attorneys’ fees to each party?
FCT and Heinold both sought attorneys’ fees pursuant to Paragraph 15 of the agreement, which provides: “15) Should any action or claim be brought under the terms hereof, for arbitration or in any court, the parties agree that the nonprevail-ing party shall fully reimburse the prevailing party for all costs incurred with regard to such claim or action including reasonable attorneys’ fees.”
FCT prevailed on Counts X and XI of the first amended complaint. The district court dismissed Counts I through IX of the first amended complaint. The district court awarded some attorneys’ fees to each of the parties, on the premise that each was a prevailing party because each had “prevailed” on part of the action. The court awarded $3,850 in attorneys’ fees to FCT and $39,042 in attorneys’ fees to Hei-nold. Those figures represent a percentage of actual fees incurred equivalent to the ratio of counts prevailed upon to total number of counts. The court found that the fees were customary fees charged by the parties’ attorneys and that neither party disputed the number of hours worked.
FCT now claims that it was the only prevailing party under Paragraph 15 and should recover all of its attorneys’ fees. FCT’s attorneys’ fees for prosecuting this case total $47,757.17.
Because this is a diversity action, the question whether attorneys’ fees may be awarded must be decided under Illinois law. - Tryforos v. Icarian Development Company, S.A., 518 F.2d 1258, 1265 (7th Cir.1975). Under Illinois law, a successful litigant may not recover attorneys’ fees “in the absence of a statute, agreement or stipulation specifically authorizing the allowance of such costs.” Evink v. Pekin Insurance Company, 122 Ill.App.3d 246, 77 Ill.Dec. 647, 650, 460 N.E.2d 1211, 1214 (1984). In this case, the parties agreed that in the event of a dispute, attorneys’ fees would be awarded to the “prevailing party.” This Court must construe that agreement according to the rules of construction within Illinois contract law. Merrill Tenant Council v. United States Department of Housing and Urban Development, 638 F.2d 1086, 1092 (7th Cir.1981).
Paragraph 15 of the agreement distinguishes between “claims” and “actions.” In this one action, FCT brought seven separate claims. It is not clear from the terms of the agreement whether the parties intended this distinction to authorize an award of attorneys’ fees to the “prevailing party” on a count by count basis. Where the terms of an agreement are not clear, the court will construe the contract to give effect to the intent of the parties. Ricke v. Ricke, 39 Ill.Dec. at 601, 405 N.E.2d at 354. “The intention of the parties will be ascertained by an examination of all the facts and circumstances manifested by the evidence, including ... the purpose or object for which [the contract] was created.” Id. When ascertaining intent, the court may construe the words used in the contract according to their “ordinary, natural and commonly accepted meaning unless it clearly appears that the parties intended to ascribe to them a peculiar or unusual meaning.” First National Bank of LaGrange v. Mid-States Engineering & Sales, Inc., 103 Ill.App.3d 572, 574, 59 Ill.Dec. 295, 296, 431 N.E.2d 1052, 1053 (1981).
In this case, the district court ascertained the intended meaning of “prevailing party” in Paragraph 15 by examining the purpose for which Paragraph 15 was created. The purpose of Paragraph 15 is to reimburse a party for the expense of enforcing the agreement through arbitration or suit. The paragraph forces the party in error to bear the cost of that enforcement. The paragraph explicitly includes attorneys’ fees in the definition of costs.
The purpose of Paragraph 15 is similar to the purpose of Rule 54(d) of the Federal Rules of Civil Procedure, which provides: “Costs shall be allowed as of course to the prevailing party unless the court otherwise directs.” Fed.R.Civ.P. 54(d). Rule 54(d) does not itself authorize awards of attorneys’ fees as costs. Nevertheless, the commonly accepted meaning of “prevailing party” is the meaning it is given within the context of Rule 54(d).
As used in Rule 54(d), “prevailing party” means a party who has obtained some relief in an action, even if that party has not sustained all of his or her claims. Holcomb v. United States, 78 F.R.D. 527, 529 (E.D.Wis.1978), aff'd, 622 F.2d 937 (7th Cir.1980). Nevertheless, this court has held that under Rule 54(d) the “prevailing party” is the party who prevails “as to the substantial part of the litigation.” Best Medium Publishing Company, Inc. v. National Insider, Inc., 385 F.2d 384, 386 (7th Cir.), cert. denied, 390 U.S. 955, 88 S.Ct. 1052, 19 L.Ed.2d 1150 (1967). Under Rule 54(d), “[w]here there is a dismissal of an action, even where such dismissal is voluntary and without prejudice, the defendant is the prevailing party.” 6 J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice j[ 54.70[4] (2d ed. 1985).
FCT was not the prevailing party according to the commonly accepted definition of prevailing party from Rule 54(d). FCT cannot be said to have prevailed on a substantial part of the litigation. FCT prevailed on only one of its seven separate claims. The district court dismissed the other six claims. Therefore, Heinold was the prevailing party on six of the seven claims in the action.
Under Rule 54(d), the trial court retains wide discretion to determine and award reasonable costs. Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1281 (7th Cir.1983). When awarding fees pursuant to Rule 54(d), “courts must give considerable attention to the ‘relationship between the extent of success and the amount of the fee award,’ ... especially when the plaintiff has succeeded on only some of her claims.” Id. (citation omitted) (quoting Hensley v. Eckerhart, 461 U.S. 424, 438, 103 S.Ct. 1933, 1942, 76 L.Ed.2d 40 (1983)).
Applying Rule 54 standards to this award of attorneys’ fees, the district court properly considered the extent of each party’s success to determine fee awards that would be reasonable under Paragraph 15. The district court did not abuse its discretion when it reduced FCT’s award of attorneys’ fees in proportion to the extent of FCT’s success on one of the seven claims. Furthermore, the district court did not abuse its discretion when it awarded attorneys’ fees to Heinold in proportion to Hei-nold’s success on six of the seven claims.
Conclusion
For the above reasons, this court AFFIRMS the judgment of the district court for Heinold on Counts I through IX of the First Amended Complaint, and the judgment for FCT on Counts X and XI.
Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_interven
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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.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
BOOSTER LODGE NO. 405, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, The Boeing Company, Intervenor. The BOEING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, Intervenor.
Nos. 24687, 24744.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 15, 1971.
Decided Feb. 3, 1972.
Mr. Bernard Dunau, Washington, D. C., with whom Messrs. Plato E. Papps, Washington, D. C., and C. Paul Barker, New Orleans, La., were on the brief, for petitioner in No. 24,687 and intervenor in No. 24,744.
Mr. C. Dale Stout, New Orleans, La., for petitioner in No. 24,744 and interve-nor in No. 24,687.
Mr. Glen M. Bendixsen, Atty., National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Washington, D. C., at the time the brief was filed, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Stanley R. Zirkin, Atty., National Labor Relations Board, were on the brief, for respondent.
Before MacKINNON and WILKEY, Circuit Judges, and GOURLEY, Senior District Judge for the Western District of Pennsylvania.
Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).
MacKINNON, Circuit Judge:
In this case, we are called upon to examine the right of a labor organization, consonant with the provisions of the National Labor Relations Act (N.L.R.A.), to discipline those members who have crossed its picket line to work during an authorized strike. We must determine the effect which a member’s resignation from the union, before, during, or after such conduct, has upon the union’s disciplinary authority. We are also requested to consider the legal implications of the “reasonableness” of the fines imposed, where the union has threatened enforcement thereof, or has actually sought collection through legal means.
The essential facts are not in dispute. Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO (hereinafter sometimes referi’ed to as the Union), and The Boeing Company, (hei’einafter sometimes referred to as the Company), were parties to a collective bargaining agreement which was effective from May 16, 1963, through September 15, 1965. Upon the expiration of the contract, the Union commenced a lawful strike against Boeing at its Michoud plant, as well as at various other locations. This work stoppage lasted 18 days. On October 2, 1965, a new bargaining agreement was signed, and the economic strikers returned to work the following day. Both the expired agreement and the newly executed contract contained maintenance-of-membership clauses, which required all new employees to notify both the Union and the Company within 40 days of their acceptance of employment if they elected not to become Union members. It also required those who were Union members to retain their membership during the contract term.
During the strike period, approximately 143 employees, of the 1900 production and maintenance employees represented by the Union at the Michoud plant, crossed the picket line and reported to work. All of these persons had been Union members during the 1963-1965 contract period. Some of the employees who worked during the strike made no attempt to resign from the Union during the strike. The remaining 119 submitted their voluntary resignations, in writing, to both the Union and the Company. About 61 of the employees who resigned did so before they crossed the picket line and returned to work. Another 58 resigned during the course of the strike, but after they had crossed'the picket line in order to work. All resignations were submitted after the expiration of the 1963-1965 contract, and before the execution of the new agreement, and all wei’e submitted prior to the imposition of any Union discipline. Union members had not been warned prior to the strike that disciplinary measures could, or would, be taken against those who ei-ossed the picket line to woi’k, nor had any such discipline been imposed on members by Booster Lodge 405 prior to this time.
In late October or early November of 1965, the Union notified all members and former members who had crossed the picket line to work during the strike that charges had been preferred against them under the International Union Constitution, for “Improper Conduct of a Member” due to their having “accept[ed] employment... in an establishment where a strike exist [ed].” They were advised of the dates of their Union trials, which were to be held even in their absence if they did not appear, and they were notified of their right to be represented by any counsel who was a member of the International Association of Machinists and Aerospace Workers. Pursuant to the International Union Constitution provision which permitted the imposition of disciplinary measures, including “reprimand, fine, suspension, or expulsion from membership, or any lesser penalty or combination,” where a member had been found guilty of misconduct after notice and a hearing, fines were imposed on all employees who had worked during the strike. No distinction was drawn between those persons who had resigned from the Union during the course of the strike and those who had remained Union members.
Employees who did not appear for trial before the Union Trial Committee and those who appeared but were found guilty were fined $450.00 each, the amount determined by the membership, and they were barred from holding a Union office for a period of 5 years. The fines of about 35 employees who appeared for trial, apologized, and pledged loyalty to the Union, were reduced to 50 percent of the earnings they received during the strike. In some of these cases the time period during which these persons were prohibited from holding Union office was decreased to a period based upon the number of days of strikebreaking activity each respective person had engaged in. None of the disciplined individuals processed intra-Union appeals.
Although none of the $450.00 fines has been paid, reduced fines have been paid in some instances. The Union has sent out written notices that the matter has been referred to an attorney for collection, that suit will be filed if the fines remain unpaid, and that reduced fines will be reinstated to $450.00 in the event of nonpayment. The Union has also filed suit against nine individual employees to collect the fines (plus attorney’s fees and interest). None of these suits has yet been resolved.
On February 18, 1966, the Company filed a charge with the N.L.R.B., alleging that the Union had violated Section 8(b) (1) (A) of the N.L.R.A., and a complaint was issued by the General Counsel. The Labor Board decided that the Union violated section 8(b) (1) (A): (1) by fining those employees who had resigned from the Union before they returned to work during the strike; and (2) by disciplining those employees who had resigned after returning to work, to the extent that the fines were imposed for their working during the strike after their resignations. The Board further found that the Union did not violate the Act (3) by fining members for crossing the picket line to work, and by fining those employees who had resigned after returning to work during the strike, for work.they performed during the strike prior to their resignations.
Finally, the Board determined (4) that it was not the intention of Congress to have the N.L.R.B. regulate the size of such disciplinary fines and establish standards with respect to their reasonableness, and it dismissed the claim that otherwise legal fines may be rendered violative of the N.L.R.A. if unreasonably large. A cease and desist order was issued, and the Union was ordered to refund any fines collected from employees who had resigned before returning to work. The Union was also required to refund a pro rata portion of those fines collected from employees who had resigned after first engaging in work during the strike, so that the part of the fines retained would only reflect pre-resignation conduct.
Booster Lodge 405 challenges the Board’s conclusion that a mid-strike resignation from a union relieves an individual from the burden of union discipline with respect to his post-resignation activity, while The Boeing Company contends that the N.L.R.B. should have examined the reasonableness of the fines imposed by the Union. The Board seeks enforcement of its order.
Part I of this opinion discusses the legality of the imposition of the disciplinary fines by the Union in response to the strikebreaking by the approximately 143 employees involved. Part II considers the effect the reasonableness of the fines has upon their propriety under the N.L.R.A., and the proper function of the N.L.R.B. in this area. Finally, Part III deals with the propriety of the Board’s remedial order.
I
The Legality of the Disciplinary Fines A. The Employees Who Did Not Resign
As early as 1954, in Minneapolis Star and Tribune Co., 109 NLRB 727 (1954), the Labor Board held that a union did not violate Section 8(b) (1) (A) of the Act by imposing a fine on a member for his failure to perform picket duty during the course of an authorized strike. The Board declared that the proviso to 8(b) (1) (A) precluded any interference by it with the internal affairs of a labor organization in such a situation. In N.L.R.B. v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967), a divided Supreme Court similarly determined that a union did not violate the N.L.R.A. when it imposed, and attempted to enforce through court action, reasonable fines against members for their failure to honor an authorized picket line. Instead of relying upon the express language of the proviso, however, the Supreme Court carefully analyzed the entire legislative history of Section 8(b) (1) (A), and it concluded that Congress did not intend to prohibit such internal union discipline by the prohibition against “restraint” or “coercion.” See 388 U.S. at 183-195, 87 S.Ct. 2001. The Court noted:
National labor policy has been built on the premise that by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining for improvements in wages, hours, and working conditions. The policy therefore extinguishes the individual employee’s power to order his own relations with his employer and creates a power vested in the chosen representative to act in the interests of all employees. “Congress has seen fit to clothe the bargaining representative with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents...”
388 U.S. at 180, 87 S.Ct. at 2006. See J. I. Case Co. v. N.L.R.B., 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944). The Court further stated:
Integral to this federal labor policy has been the power in the chosen union to protect against erosion [of] its status under that policy through reasonable discipline of members who violate rules and regulations governing membership. That power is particularly vital when the members engage in strikes. The economic strike against the employer is the ultimate weapon in labor’s arsenal for achieving agreement upon its terms, and “[t]he power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent ft
388 U.S. at 181, 87 S.Ct. at 2007.
In more recent decisions, the Supreme Court has reaffirmed the right of a union to impose and enforce reasonable fines against members who engage in strikebreaking activities. In Scofield v. N.L.R.B., 394 U.S. 423, 428-430, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969), the Court emphasized the right of a union to enforce a properly adopted rule which reflects a legitimate union interest, impairs no statutory labor policy, and is reasonably enforced against union members. See N.L.R.B. v. Industrial Union of Marine etc. Workers, 391 U.S. 418, 423, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968). See also Rocket Freight Lines Co. v. N.L.R.B., 427 F.2d 202, 205-206 (10th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 241, 27 L.Ed.2d 246 (1970); Silard, Labor Board Regulation of Union Discipline After Allis-Chalmers, Marine Workers and Scofield, 38 Geo.Wash.L. Rev. 187 (1969). In light of these developments, it is clear that the Union acted within the sphere of its lawful authority when it decided to impose fines on the 24 strikebreaking members who did not resign from the Union. Similarly, the Union’s threats to enforce these fines, as well as its actual efforts to achieve court enforcement thereof, were not prohibited by the N.L.R.A. However, a more difficult question arises with respect to the 119 employees who resigned from the Union during the strike period.
B. The Employees Who Did Resign
As the Supreme Court recognized in Allis-Chalmers, when Section 8(b) (1) (A) was enacted, “Congress was operating within the context of the ‘contract theory’ of the union-member relationship which widely prevailed at that time.” N.L.R.B. v. Allis-Chalmers Mfg. Co., supra, 388 U.S. at 192, 87 S. Ct. at 2013. See International Association of Machinists v. Gonzales, 356 U.S. 617, 618, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958). Under this theory union membership was deemed in effect to create a “contract” between the labor organization and the member which imposed certain obligations on the member, and the decision emphasized “that ‘The courts’ role is but to enforce the contract.’ ” 388 U.S. at 182, 87 S.Ct. at 2008. See Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L.J. 175, 180 (1960). It is, therefore, obvious that membership in the labor organization is the sine qua non to the authority of a union to impose disciplinary burdens upon the employees it represents. This has been widely recognized.
In Allis-Chalmers, the Court expressly limited its holding to “reasonable discipline of members who violate rules and regulations governing membership.” N.L.R.B. v. Allis-Chalmers Mfg. Co., supra, 388 U.S. at 181, 87 S.Ct. at 2007 (emphasis supplied). See also id. at 195-196. The Labor Board specifically recognized this indispensable prerequisite in Scofield, 145 NLRB 1097, 1104 (1964), where it noted that “[a] union rule that a member is subject to a fine if he [violates a valid union rule] does not mean that he is subject to such a fine as an employee.” (Emphasis in original.) This membership requirement for union disciplinary authority was affirmed by the Supreme Court in Scofield v. N.L.R.B., 394 U.S. 423, 429, n. 5, 89 S.Ct. 1154, 1157, 22 L.Ed.2d 385:
As an employee, [an individual] may be a “good, bad, or indifferent” member so long as he meets the financial obligations of the union security contract. * * * But as a union member, so long as he chooses to remain one, he is subject to union discipline. (Emphasis supplied.)
See 394 U.S. at 435, 89 S.Ct. at 1160. Thus the Court recognized that “union members... are free to leave the union and escape the [union] rule.” Id. at 430, 89 S.Ct. at 1158. It is therefore apparent that Booster Lodge U05 only had the authority to discipline those employees who were in fact Union members at the time they engaged in the complained of activity.
Approximately 58 of the employees who worked during the strike submitted their resignations to the Union after they had already engaged in some of the conduct proscribed by the International Union Constitution. In light of the above discussion regarding union authority over action undertaken by full members, we must concur in the Board’s determination that the Union did not violate Section 8(b) (1) (A) so far as its imposition of disciplinary fines concerned this preresignation conduct. The fact that the fines were not officially imposed for these pre-resignation breaches of Union regulations until after the strikebreakers had resigned, in no way negated the authority of the Union over these persons with respect to these acts, as the N.L.R.B. properly recognized.
The provisions of a contract are enforceable, and a cause of action can be brought upon them, even after the expiration or termination of the agreement. The rights and duties created by an agreement are extinguished only prospectively by the termination thereof. Thus the termination of some employees’ membership here did not affect the Union’s subsequent assertion of rights which had accrued to the Union during their earlier period of membership, such as the right to discipline the employees for prior strikebreaking. The effect of these employees’ resignations was only to extinguish the Union’s future authority over them.
Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, 185 NLRB No. 23, 1970 CCH NLRB ¶ 22,259, at p. 28,693 (1970).
C. Fines Imposed for Post-resignation Conduct
An extremely difficult question is presented with respect to the fines which were imposed upon employees for their posi-resignation conduct. Booster Lodge 405 has made a sophisticated argument which would expose persons who were members at the commencement of a particular strike to union discipline with respect to any strikebreaking action undertaken during that specific work stoppage. Although it concedes that such a restriction is not contained in any of the express language of the International Union Constitution or Bylaws, the Union urges this court to “flesh out” such documents by imposing such an obligation by implication. We must decline this invitation.
It must be emphasized that in situations like this, while “the function of the court is to determine, as far as is possible, the intention of the contracting parties and to give legal effect thereto,” it is generally recognized that courts will not usually imply offenses not specified in a union’s constitution or by-laws. We believe that this latter consideration is controlling with respect to the instant case. As the union recognizes, there is nothing in the record which evidences any intention on the part of the approximately 119 persons who resigned during the strike in question that their initial acceptance of Union membership would impose upon them the type of continuing obligation which Booster Lodge 405 now asks this court to impose. Furthermore, the very fact that they resigned during this period, in an obvious attempt to escape the disciplinary authority of the Union, belies this proposed line of reasoning.
In addition, an extremely important national labor policy militates against the imposition of such an implied obligation. Section 7 of the N.L.R. A. expressly protects the right of any employee to refrain from any or all of the concerted activities guaranteed to employees under the Act. While Allis-Chalmers and Scofield recognized the legality of certain express union provisions limiting an employee’s freedom where he had voluntarily accepted full union membership, nothing in those decisions supports the Union’s theory of implied, post-resignation restrictions. In fact, language in Scofield expressly indicates otherwise. The Supreme Court only recognized the right of a union “to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule.” Scofield v. N.L.R.B., supra, 394 U.S. at 430, 89 S.Ct. at 1158 (emphasis supplied). As the Board properly concluded below, after resignation, “[b]oth the member’s duty of fidelity and the union’s corresponding right to discipline him for breach of that duty are extinguished.” Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, supra, 1970 CCH NLRB ¶ 22,259, at p. 28,692.
The Union has relied heavily upon the First Circuit’s holding in N.L.R.B. v. Granite State Joint Board, Textile Workers Union, Local 1029, 446 F.2d 369 (1st Cir.1971), but we believe that the decision is inapposite to the present fact situation. Although the court in Granite State upheld the right of the union involved to impose fines on strikebreakers for post-resignation activity, it emphasized that a specific set of facts was present which it believed rendered such a result equitable, and it specifically recognized that these considerations were not present with respect to the instant Booster Lodge 405 case. In Granite State, the Board conceded that all of the fined employees had voted in favor of the strike in question. It is also important to note that the fines had not been imposed pursuant to a general provision in the union constitution, as here, but rather in accordance with a specific proclamation which had been unanimously adopted by the membership after the work stoppage commenced. See 446 F.2d at 370, 372 n. 5. Furthermore, all of those who were disciplined in Granite State had been expressly pre-warned of possible punishment for strikebreaking, while the employees with whom we are herein concerned received no such pre-strikebreaking notification. Because of these distinguishing facts, we refuse to apply the rationale of Granite State to the instant factual situation. The strong equities which weighed in favor of the union there, are clearly not present here. In fact, their very absence powerfully supports the result which we have accepted.
Since the International Union Constitution and By-laws contained no express restriction upon a member’s right to resign it is clear that the strikebreaker/employees were free to resign at will, subject only to their being bound by any permissible collective bargaining agreement provision limiting this right. Local Union 621, United Rubber, Cork, Linoleum and Plastic Workers of America, 167 NLRB 610 (1967); Communications Workers v. N.L.R.B., 215 F.2d 835 (2d Cir.1954); N.L.R.B. v. Mechanical and Allied Produc tion Workers, Local 444, 427 F.2d 883 (1st Cir.1970). Furthermore, since the resignations all occurred after the termination of the 1963-1965 agreement and before the execution of the new contract, the maintenance-of-membership provision was not applicable to limit this right either. N.L.R.B. v. Mechanical and Allied Production Workers, Local 444, supra, 427 F.2d at 884-885; N.L.R.B. v. Granite State Joint Board, Textile Workers Union, Local 1029, supra, 446 F.2d at 372. Under these circumstances we concur in the reasoning of the Second Circuit in Communications Workers v. N.L.R.B., supra, 215 F.2d at 838:
We agree that the proviso [to § 8(b) (1) (A)] protects the Union’s right to make its own rules with respect to membership, but assuming, arguendo, that a rule wholly prohibiting voluntary resignations would be valid, we think that in the absence of any rule on the subject of voluntary resignation, the proviso is inapplicable. Concededly the Union Constitution and by-laws are absolutely silent as to whether a member can voluntarily resign. Hence we think that the common law doctrine on withdrawal from voluntary associations is apposite. Under that doctrine, a member of a voluntary association is free to resign at will, subject of course to any financial obligations due and owing the association, [citations omitted]
For the reasons set out above, we conclude that the Labor Board correctly determined that “the Union’s right to discipline employees terminated upon the employees’ submission of their letters of resignation [, thus t]he attempted imposition of discipline for subsequent conduct was beyond the powers of the Union.” Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO, supra, 1970 CCH NLRB ¶ 22,259, at p. 28,692. We therefore affirm the Board’s finding that the Union violated Section 8(b) (1) (A) of the N.L.R.A. by imposing fines upon employees, and by threatening or attempting enforcement of such fines, because of those employees’ post-resignation conduct in working at the Company plant during the authorized work stoppage. Since the imposition of fines under such circumstances violated the policies underlying the N.L.R.A. and had effects outside the area of internal Union affairs, they were clearly “coercive” within the meaning of Section 8(b) (1) (A). See N.L.R.B. v. Industrial Union of Marine etc. Workers, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968); District 50, Local 12419, 176 NLRB No. 89, 71 LRRM 1311 (1969); Local 138, International Union of Operating Engineers, AFL-CIO, 148 NLRB 679 (1964). See also International Molders and Allied Workers, Local 125, 178 NLRB 208, 72 LRRM 1049 (1969), enfd., 442 F.2d 92 (7th Cir.1971). We thus grant enforcement of the N.L.R.B.’s cease and desist order so far as it concerns the imposition of fines for post-resignation conduct.
II
The Board’s Duty to Determine the Reasonableness of Fines
In its decision below, the N.L.R.B. relied upon a companion case, International Association of Machinists and Aerospace Workers, Local 504 [Arrow Development Co.], 185 NLRB No. 22, 75 LRRM 1008 (19 70), in concluding that a fine’s "reasonableness” has no effect upon its legality under the N.L. R.A. This conclusion was based upon the Board’s belief that Congress did not intend to empower the Labor Board with the authority to examine the severity of union discipline when ascertaining its legality, and it indicated that it thought that local courts were the most logical tribunals for the establishment of standards of reasonableness. The Board therefore refused to examine the question of reasonableness in the present case, despite an express determination by the Trial Examiner that the imposed fines were impermissibly excessive. We reject the position of the Board, and remand the case for further proceedings in conformity with the views set out below.
The Board’s belief that it does not have the obligation of examining the reasonableness of union fines in Section 8(b) (1) (A) proceedings is based upon a clear misconception of the law and the Supreme Court’s relevant decisions. In Allis-Chalmers, the Court stated:
It is no answer that the proviso to § 8(b) (1) (A) preserves to the union the power to expel the offending member. Where the union is strong and membership therefore valuable, to require expulsion of the member visits a far more severe penalty upon the member than a reasonable fine.
N.L.R.B. v. Allis-Chalmers Mfg. Co., supra, 388 U.S. at 183, 87 S.Ct. at 2008 (emphasis supplied). The Court further recognized that “the proviso preserves the rights of unions to impose fines, as a lesser penalty than expulsion...” 388 U.S. at 191-192, 87 S.Ct. at 2012 (emphasis supplied). This implicitly recognized that, for a disciplinary fine to be less coercive than expulsion from the union, the fine imposed must be a “reasonable” one, for it is intuitively obvious that enforcement of a grossly excessive fine might visit a far greater burden upon an individual than would mere expulsion. The Supreme Court also expressly recognized this fact in its recent Scofield decision, wherein it concluded that the enforcement of a proper union rule “by reasonable fines does not constitute the restraint or coercion proscribed by § 8(b) (1) (A).” Scofield v. N.L.R.B., supra, 394 U.S. at 436, 89 S.Ct. at 1161 (emphasis supplied). The Scofield Court emphasized that under Allis-Chalmers, “[a] union rule, duly adopted and not the arbitrary fiat of a union officer, forbidding the crossing of a picket line during a strike [is]... enforceable against voluntary union members by expulsion or a reasonable fine.” 394 U.S. at 428, 89 S. Ct. at 1157 (emphasis supplied). In light of the Court’s emphasis on the requ i remen t of “reasonable fines” if a union is to avoid a violation of the Act in these circumstances, we must conclude that the imposition of an unreasonably large fine, at least where the union threatens or actually attempts court enforcement of the fine, may be coercive and restraining within the meaning of section 8(b) (1) (A).
Since the imposition of an unreasonably excessive disciplinary fine is violative of Section 8(b) (1) (A), it is clearly the obligation of the N.L.R.B. to resolve the question of reasonableness where such an issue is appropriately raised. The Board asserts that such a result might cause conflicts between it and state courts which attempt to examine the reasonableness issue in actions to collect such fines. However, we do not believe that this possible problem detracts from the Board’s obligation under the N.L.R.A.
We recognize that “state courts have been adjudicating internal union disputes for more than 60 years.” Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L. J. 175 (I960). We further acknowledge the fact that “the state courts, in reviewing the imposition of union discipline, find ways to strike down ‘discipline, [which] involves a severe [monetary] hardship.’ ” However, these considerations do not relieve the N.L.R. B. of its duties under the N.L.R.A. “[T]he business of the Board, among other things, is to adjudicate and remedy unfair labor practices. Its authority to do so is not ‘affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise...’ § 10(a),... 29 U.S.C. § 160(a).” N.L.R.B. v. Strong, 393 U.S. 357, 360, 89 S.Ct. 541, 544, 21 L.Ed.2d 546 (1969). See Office and Professional Employees International Union, Local 425 v. N.L.R.B., 136 U.S.App.D.C. 12, 15-16, 419 F.2d 314, 317-318 (1969). Furthermore, the fact that some state courts might not permit enforcement of excessive fines in a collection action by the union, does not detract from their coerciveness, or the need for N.L.R.B. action. N.L.R. B. v. American Bakery and Confectionery Workers, Local 300, 411 F.2d 1122, 1126 (7th Cir.1969). See Local Union No. 167, Progressive Mine Workers of America v. N.L.R.B., 422 F.2d 538, 542 (7th Cir.), cert. denied, 399 U.S. 905, 90 S.Ct. 2198, 26 L.Ed.2d 560 (1970).
Other factors also support the conclusion that Board intervention is authorized in this very limited area, despite the historical activity of state courts and the reluctance of the 80th Congress to interfere in the internal affairs of unions. There is something to be said for having the reasonableness of fines determined by standards that are as nearly uniform as national standards promulgated by the N.L.R.B. can be. Furthermore, access to the Labor Board is more readily available than meaningful access to state courts. Before the Board, the employee is represented by the General Counsel, and the agency bears the expense of the litigation. If the same employee wants a complete resolution of the reasonableness issue in a state court collection action brought by the union, he must be prepared to accept at least some financial burden. “The danger that the legal rights of a disciplined member will go by default because of the cost of asserting them in court is obvious... ” Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L.J. 175, 220 (1960). We therefore reject the argument that the N.L.R.B. is required to defer to state tribunals with respect to the reasonableness issue. Such “reverse preemption” would not, in our view, be consonant with the principles underlying the N.L.R.A.
Although the Board has not previously had to examine the reasonableness of union fines, it is not without experience in a related area. Under Section 8(b) (5), it is required to determine whether initiation fees required by a labor organization under a union-security agreement are excessive. The fact that Section 8(b) (1) (A) does not provide the Board with specific standards to be applied in determining the reasonableness of a union fine, while Section 8(b) (5) does include several express standards, does not detract from the N.L.R.B.’s authority under 8(b) (1) (A). See N.L.R.B. v. Radio and Television Broadcast Engineers Union, 364 U. S. 573, 582-583, 81 S.Ct. 330, 5 L.Ed.2d 302 (1961). “Experience and common sense will supply the grounds for the performance of this job,” which we have concluded was implicitly entrusted by Congress to the Board. 364 U.S. at 583, 81 S.Ct. at 336.
The Board must remember that a fine imposed for the violation of a legitimate union rule should be viewed as presumptively protective, and therefore privileged, when the amount of the fine, taking into account the character and importance of the ends served by the rule being enforced, is reasonably related to the need for protection. On the other hand, if the amount of the fine is such as to be inordinately disproportionate to the needed protection, an inference is warranted that the fine was imposed upon the member, not in vindication of a legitimate union interest, but rather as a reprisal for his having exercised a statutorily protected right. In the latter situation, as we have previously indicated, the fine would be “coercive” within the meaning of Section 8(b) (1) (A) of the Act. In determining whether an imposed fine is privileged or prohibited, due to its size, many factors may properly be considered by the Board. We shall mention several obvious factors which might be considered on remand, along with others the Board may consider to be applicable.
The reasonableness of a fine would necessarily have to be determined in light of the circumstances- leading to its imposition. Such factors as the compensation received by the strikebreakers, the level of strike benefits made available to the striking employees, the individual needs of the persons being disciplined, the detrimental effect of the strikebreaking upon the effectiveness of the strike effort, the length of time of the work stoppage, the strength of the particular union involved, the availability of other less harsh union remedies, and many other similar considerations would clearly be relevant.
One additional consideration is worthy of mention. In its original Scofield decision, 145 NLRB 1097, 1104 (1964), the Board expressly indicated that a union had no right to impose any penalty which would “impair the member’s status as an employee.” This prohibition against union disciplinary action adversely affecting an employee’s employment status has been approved by the Supreme Court. See N.L.R.B. v. Allis-Chalmers Mfg. Co., supra, 388 U.S. at 195, 87 S.Ct. 2001; Scofield v. N.L.R.B., supra, 394 U.S. at 423, 428, 89 S.Ct. 1154. While this principle clearly prohibits a union from seeking the suspension or termination of an employee by his employer due to his strikebreaking, its implications may have further application which might be relevant to the present case. Where a disciplinary fine is unreasonably excessive, it may possibly affect the employee’s employment status as adversely — and possibly even more adversely — as an illegally obtained employment suspension.
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
|
songer_origin
|
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 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.
Thomas A. BEARDSHALL and Annamae Beardshall, his wife v. MINUTEMAN PRESS INTERNATIONAL, INC., Appellant.
No. 81-1387.
United States Court of Appeals, Third Circuit.
Argued Oct. 14, 1981.
Decided Nov. 17, 1981.
Rehearing and Rehearing In Banc Denied Dec. 22, 1981.
Robert L. Potter (argued), Titus Marcus & Shapira, Pittsburgh, Pa., for appellant; Andre Weitzman, Braiterman & Johnson, P. A., Baltimore, Md., of counsel.
Maurice A. Nernberg, Jr. (argued), Nernberg & Laffey, Pittsburgh, Pa., for appellees.
Before HUNTER, ROSENN, and WEIS, Circuit Judges.
OPINION OF THE COURT
ROSENN, Circuit Judge.
The twin issues on appeal in this diversity case stem from the instructions of the trial court to the jury. The plaintiffs, Thomas A. Beardshall. and his wife Annamae, brought suit in the United States District Court for the Western District of Pennsylvania charging the defendant, Minuteman Press International, Inc. (Minuteman), a nationwide franchisor, with having committed common law fraud under Pennsylvania law when it entered into a franchise agreement with the Beardshalls. The jury returned a verdict for plaintiffs in the sum of $70,000. The defendant filed a motion for a new trial and the plaintiffs filed a motion for a new trial on damages. The district court denied both motions and Minuteman has appealed. We reverse.
I.
In March 1978 Thomas Beardshall attended a start-your-own-business trade show in Pittsburgh where he spoke to a Minuteman representative. Beardshall, a college graduate, testified at trial that the representative gave him promotional literature, told him of the opportunities in the printing business, and showed him a financial statement of a company operated store which the representative described as a “typical mid-range operation.” The company representative further informed Beardshall that a Minuteman franchise would carry its own operating expenses from the start, and should turn a profit in three to six months and provide a reasonable income within six to twelve months. Subsequently, Beards-hall communicated with Minuteman’s offices in Pittsburgh and visited a recently opened franchise in the area with another Minuteman representative who reviewed Beardshall’s projected calculations on volume and profit.
The Beardshalls indicated their interest in obtaining a franchise in Pittsburgh, signed a preliminary agreement and made a deposit. Later, they decided to move to Savannah, Georgia. Minuteman officials tried to discourage them because they thought a Pittsburgh location had better potential. The Beardshalls, however, pressed for a location in Savannah and ultimately executed a franchise agreement with Minuteman for a Savannah location. After a two week training period they opened for business on July 31, 1978.
Dissatisfied with their first month’s business and their projections as to future earnings, the Beardshalls wrote to Minuteman on September 5,1978, and sought rescission of the agreement. Minuteman refused. The Beardshalls closed the shop on November 23, 1978, and returned to Pittsburgh. They thereupon instituted this lawsuit against Minuteman.
H.
In his instructions to the jury, the trial judge charged, inter alia, that the plaintiffs bore the burden of proving their case “by a fair preponderance of the evidence.” He defined at length what was meant by this burden of proof and also instructed the jury fully on the common law of fraud. Defense counsel at the time, replaced on this appeal, took no exceptions and stated that he had no objections to the charge. After a full day of deliberation, the jury informed the court that it was “hung.” The court released the jurors for the day with instructions to resume their deliberations the next morning. The following morning the jury sent this message to the court: “Could you repeat the six points of fraud we are supposed to go by? In writing? ” The trial judge thereupon had a statement typed containing the jury’s question and the six elements of fraud, displayed it to counsel for the parties, and advised them that he intended to submit the document to the jury. Defense counsel objected to the submission on the ground that repetition of a section of the charge might emphasize an aspect which could be prejudicial to the defendant, especially if in writing. Despite the objection, the court had the writing delivered to the jury. Shortly thereafter, it returned its verdict for the plaintiffs.
On appeal, Minuteman contends that the district court reversibly erred in two aspects of its instructions. First, the court committed plain and fundamental error in instructing the jury that the plaintiffs must prove their case by a preponderance of the evidence when, under the applicable Pennsylvania common law, they were obligated to meet the much higher standard of proving fraud “by clear and convincing evidence.” Second, it erred when, having given entirely oral instructions to the jury, it submitted to them over defendant’s objection a typewritten, highly condensed statement of the substantive law of fraud which necessarily emphasized plaintiffs’ theory of the case.
III.
In determining whether the instructions on the burden of proof warrant reversal, we must first decide what burden Pennsylvania law places on those attempting to prove fraud. Then, if the charge was erroneous, we must determine whether the defendant can on this record raise the error on appeal and whether the error is so grave as to justify reversal.
In a recent decision the Supreme Court of Pennsylvania held that fraud or intent to defraud must be proved by “ ‘evidence that is clear, precise and convincing.’ ” Snell v. Pennsylvania, 490 Pa. 277, 281, 416 A.2d 468, 470 (1980) (citations omitted). In earlier cases the terminology varied. For example, in Gerfin v. Colonial Smelting & Refining Co., 374 Pa. 66, 73, 97 A.2d 71, 74 (1953), two formulations for the burden of proof were used, “clear and convincing or ... clear, precise and indubitable.” Whatever the formulation, it is evident that under Pennsylvania law fraud must be proved by a higher standard than the preponderance of the evidence standard charged by the trial judge.
The plaintiffs contend that the “clear, precise, and convincing” standard enunciated by the cases is one only to be applied by the trial judge in deciding whether the case should be submitted to the jury. Once it is submitted to the jury, argue the plaintiffs, the jury’s sole function is to determine which evidence is true. Therefore, the trial court having submitted this case to the jury, the plaintiffs conclude it committed no error when it instructed the jury that the plaintiffs had to prove their case by a fair preponderance of the evidence. This argument is implausible and must be rejected. Plaintiffs misread the cases they cite. Those cases stand only for the proposition that the trial judge must decide as a matter of law before he submits a case to the jury whether plaintiffs’ evidence attempting to prove fraud is sufficiently clear, precise and convincing to make out a prima facie case; they do not hold that once that burden is met, the jury may apply a lesser standard of proof in determining which evidence is true. Thus, if the trial judge determines there is sufficient evidence from which the jury could reasonably find that the plaintiffs have proven fraud according to this standard of proof, the judge may then submit the case to the jury. “ ‘Whether the evidence is true is a question of fact ... but whether it meets the required standard which justifies its submission to the jury ... is always a question of law ....’” Aliquippa National Bank ex rel. Woodlawn Trust Co. v. Harvey, 340 Pa. 223, 231, 16 A.2d 409, 414 (1940), quoted in Gerfin v. Colonial Smelting & Refining Co., 374 Pa. 66, 68, 97 A.2d 71, 72 (1953); M. H. Davis Estate Oil Co. v. Sure Way Oil Co., 266 Pa.Super. 64, 68, 403 A.2d 95, 97 (1979). The trial judge still has the duty to instruct the jury as to the proper burden of proof which plaintiffs must meet under the applicable law.
The elements of fraud were central to this case and the proper standard of proof to be applied was critical. Thus, the district court’s erroneous jury instructions would normally require reversal. The troublesome question posed by the plaintiffs, however, is that counsel for Minuteman did not raise the issue of the erroneous charge during the trial; he took no exceptions and in fact acquiesced in the charge. The plaintiffs, therefore, assert that the defendant is precluded by Federal Rule of Civil Procedure 51 from raising it now. Rule 51 reads in part, “No party may assign as error the giving or the failure to give an instruction 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.”
There is, however, a judicially created exception to Rule 51, the “plain error” doctrine, which this circuit recognizes. For example, in McNello v. John B. Kelly, Inc., 283 F.2d 96 (3d Cir.1960), this court found that the trial court in its jury instructions had failed to explain the application of the principles of law to the various possible factual conclusions. The court determined that Rule 51 did not preclude the raising of this issue on appeal, though no objection had been made to the trial court’s instructions, because the error was fundamental. This court’s application of the plain error doctrine was explicated in United States v. 564.54 Acres of Land, 576 F.2d 983, 987 (3d Cir. 1978) (footnote omitted), rev’d on other grounds, 441 U.S. 506, 99 S.Ct. 1854, 60 L.Ed.2d 435 (1979):
[W]e have the discretion to review instructions sua sponte if the error is fundamental and highly prejudicial or if the instructions are such that the jury is without adequate guidance on a fundamental question and our failure to consider the error would result in a miscarriage of justice.
Plaintiffs’ argument that the error in the charge is not plain or fundamental error is refuted by this court’s ruling in Ratay v. Lincoln National Life Insurance Co., 378 F.2d 209 (3d Cir.), cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967). In Ratay, we unequivocally held the trial judge’s charge that under Pennsylvania law the elements of fraud must be proved by a preponderance of the evidence was fundamental error. Although counsel at trial had taken a general exception to the charge, we observed that his failure to object specifically to the erroneous burden of proof would under Rule 51 ordinarily have barred consideration of that error on appeal. But because the error related to a critical issue, as it does here, and because it did not affirmatively appear from the record that the error was not prejudicial, this court determined that a new trial was necessary. Applying this reasoning to the instant case compels us to reach the same result.
Plaintiffs, however, assert that because the Pennsylvania Supreme Court in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1976), abandoned the plain error doctrine, this court may no longer apply the doctrine in cases governed by Pennsylvania substantive law. But at least three circuits have indicated that the failure to object to jury instructions and the consequences thereof are procedural and are to be governed by federal law. In Stewart v. Ford Motor Co., 553 F.2d 130, 139-40 n.9 (D.C.Cir.1977), Judge Skelly Wright, in writing for the court, noted:
It is well established that, in federal courts, allegations of failure to object to jury instructions and the consequences of such failures are procedural and not substantive issues and, accordingly, are to be governed by federal law. Batesole v. Stratford, 505 F.2d 804, 807 (6th Cir. 1974); Lester v. John R. Jurgensen Co., 400 F.2d 393 (6th Cir. 1968); McNamara v. Dionne, 298 F.2d 352, 355 (2d Cir. 1962).
We agree with the characterization of the failure to object to the instruction as procedural and hold that a new trial is necessary because of fundamental error committed in the charge on the burden of proving fraud.
IV.
Because this case must be remanded to the district court for a new trial, we believe that we should offer some guidelines on the second issue raised by the defendant, the supplemental condensed written instruction. In the oral charge on the elements of common law fraud, the court laid down the six elements and- then carefully explained them. His explanation set forth qualifications to the elements of fraud and these embodied the defendant’s theory of its case. For example, the oral charge carefully explained the distinction between factual misrepresentation, which may be actionable, and statements of opinion or mere “puffery” or salesmanship. The written submission merely set forth a skeletal, abstract outline of the elements of fraud; it made no allusion to qualifications or the defendant’s theory of the case. Minuteman complains that inclusion of the explanatory material would have been necessary to avoid misleading the jury. The defendant further hypothesizes that the written instruction tended to mute the oral instruction in the memory of the jury and thus effectively displaced the explanation of terms of art and the defendant’s theory found in the oral instructions, thereby prejudicing the defendant’s case.
Giving supplemental instructions to the jury is usually a delicate and sensitive task requiring the exercise of judgment and skill. The task becomes even more delicate when the principal charge is oral and the supplemental instructions are in writing because of the risk of accentuating a segment of the charge by reducing it to writing. But as the plaintiffs argue, the court has a duty to respond to a jury’s request for specific instructions and the form and extent of supplemental instructions are within the sound discretion of the court. In Price v. Glosson Motor Lines, Inc., 509 F.2d 1033, 1037 (4th Cir. 1975), cited by the plaintiffs, the court noted that supplemental instruction, when requested by the jury in whole or in part, “seems to be almost universally upheld in the Courts of Appeals.” The court further held that the failure of the district court to respond to the jury’s question as to the effect of plaintiff’s contributory negligence on defendant’s liability in a personal injury action was reversible error. But in so holding, the court explained some of the precautions to be observed which are of relevance here.
An aspect of an overall charge can be amplified and explained, in response to a jury’s inquiry, without prejudicially emphasizing any one aspect of the case. Ordinarily the district judge need not repeat the entire charge. He can remind the jury of the other aspects of the case covered by his charge and he should caution them that the aspect of the charge which he amplifies and explains should not be given undue weight and should be considered in the light of his other instructions.
Id. at 1037 (emphasis supplied).
In First Virginia Bankshares v. Benson, 559 F.2d 1307, 1315 (5th Cir. 1977), cert. denied, 435 U.S. 952, 98 S.Ct. 1580, 55 L.Ed.2d 802 (1978), the court found no error in a written supplemental outline to the jury of the elements which the plaintiff had to prove in his case. The court, however, noted that it found no reversible error because the district court had “specifically and repeatedly instructed the jury ... that the elements written down were contested and constituted only an outline of those items on which [the plaintiff] bore the burden of proof.” Id. The court thus implied that had the district court failed to qualify and explain the skeletal nature of the instructions, the resulting prejudice to the defendant could have constituted reversible error.
In the case at bar, the written statement to the jury listing seriatim the “bare bones” elements of fraud contained no qualifying instructions and lacked the amplification of the original oral charge. As submitted, the writing listed the elements of the Beardshalls’ case and, therefore, emphasized their theory of the case. Furthermore, there is the risk that the jury might have used the writing as a checklist, relying solely on its language for content and ignoring the more elaborate and explanatory oral instructions. Although we do not disapprove a limited supplemental instruction to the jury in writing, especially when the jury requests that it be in writing, the practice has risks. If it is used, trial courts should avoid prejudicial emphasis on part of the case by carefully reminding the jury of other aspects of the original charge and cautioning them that the segment of the charge which is amplified or explained should be considered in the light of the other instructions and is not to be given undue weight.
The judgment of the district court will be reversed and the case remanded to the district court with directions to award the defendant a new trial.
. The plaintiffs are Pennsylvania citizens residing in Pittsburgh. The defendant is a corporation chartered under the laws of New York which has its principal offices in Farmingdale, New York.
. The trial court applied Pennsylvania law. On appeal, the parties agree that Pennsylvania law governs.
. The pertinent portion of defense counsel’s objection to the written supplementary instruction was:
I’m objecting to the submission of a written answer to the plaintiffs’ questions. I, also, object to a portion of the Court’s charge being singled out and repeated, and repeated in writing. I think it’s possibly prejudicial. It may highlight some particular point or section of the charge that I don’t think is proper to highlight, and I’m objecting to the submission of this written answer by the Court.
. The cases cited by plaintiffs are Highmont Music Corp. v. J. M. Hoffmann Co., 397 Pa. 345, 155 A.2d 363, 366 (1959); Gerfin v. Colonial Smelting & Refining Co., 374 Pa. 66, 97 A.2d 71, 72 (1953); Greenwood v. Kadoich, 239 Pa. Super. 372, 357 A.2d 604, 606 (1976); Edelstein v. Carole House Apartments, Inc., 220 Pa.Super. 298, 286 A.2d 658, 661 (1971).
. On remand the district court, relying on an intervening state court opinion, again applied the “fair preponderance of the evidence” rule. On subsequent appeal, this court held that the district court had misread the intervening decision of the Supreme Court of Pennsylvania and reaffirmed the principle that fraud in the making of a contract must be established by proof which is “clear, precise and indubitable.” We noted that the Supreme Court of Pennsylvania recognized the basic difference between the two standards of proof and indicated, as we had held, that “in Pennsylvania the difference between the two standards of proof is a matter of substantial significance and not a mere verbal variation.” Ratay v. Lincoln Nat’l Life Ins. Co., 405 F.2d 286, 290 (3d Cir. 1968).
. The Fifth Circuit disapproves of the practice of furnishing the jury with a written copy of the court’s instructions. United States v. Perez, 648 F.2d 219 (5th Cir. 1981); United States v. Hooper, 575 F.2d 496 (5th Cir.), cert. denied, 439 U.S. 895, 99 S.Ct. 256, 58 L.Ed.2d 242 (1978). The Seventh Circuit apparently approves of the practice. United States v. Brighton Bldg. & Maintenance Co., 598 F.2d 1101 (7th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 79, 62 L.Ed.2d 52 (1979).
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:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellant, v. CENTRAL CAROLINA BANK AND TRUST COMPANY, Trustee, and Luther R. Veasey, Appellees.
No. 14725.
United States Court of Appeals, Fourth Circuit.
Oct. 2, 1970.
William L. Osteen, U. S. Atty., Jerris Leonard, Asst. Atty. Gen., Gerald W. Jones and Dorothy E. Mead, Attys., Department of Justice, on brief for appellant.
Lillard H. Mount and Richard M. Hut-son, II, Durham, N. C., on brief for ap-pellees. ,
Before HAYNSWORTH, Chief Judge, and SOBÉLOFF and BOREMAN, Circuit Judges. ,
HAYNSWORTH, Chief Judge:
The Attorney General has moved for summary reversal of the District Court’s order denying a preliminary injunction in the Government’s suit to require the defendants .to desegregate their golfing facility. We reverse and remand for entry of a preliminary injunction pending final determination of the action.
The defendant bank is the trustee of the Durham Foundation, which operates Hillandale Golf Course, located in Durham, North Carolina. Hillandale was established pursuant to a 1939 deed granting certain realty to the Foundation to “be used for general recreational purposes by the white citizens of Durham, City and County *■ * * ” The individual defendant is the manager of Hillandale; he is also the proprietor of the Hillandale pro shop, which is located on the premises of Hillandale and which he operates under lease from the trustee. The pro shop sells golfing equipment, much of which is manufactured out of North Carolina. In addition it rents electric golf carts to Hillandale patrons. These carts are assembled in North Carolina, but components representing approximately 35 per cent of their finished value come from out of the state. At the time the action was commenced there was a snack bar located in the pro shop, but it was discontinued and all food service equipment was removed some two weeks after the complaint was filed.
From the time of its inception, Hillan-dale has been open to white residents of North Carolina on payment of a greens fee. Negroes are uniformly excluded.
This action was instituted by the Attorney General, as authorized by the Civil Rights Act of 1964 (42 U.S.C. § 2000a-5). He contends that the Act requires Hillandale to admit persons to its facilities without regard to race, arguing that it is a place of public accommodation both as an establishment having on its premises a food service facility under § 2000a(b) (2), and as a place of entertainment under § 2000a(b) (3). We consider here only the question of Hillandale’s coverage as a place of entertainment affecting commerce.
The record indicates that, although they may be separate in a business sense, Hillandale and the pro shop are so intertwined in operation that they may properly be considered a single enterprise. Both are owned by the Foundation; the pro shop is located on the golf course premises and is leased and operated by the golf course manager. The shop contains a lounge and locker rooms which are used by patrons of the golf course and which do not appear to be intended for any other purpose. It offers golfing equipment for sale, much of which is doubtless used at Hillandale. In addition, the shop owns forty electric golf carts which are rented to Hillandale patrons for use on the golf course. In short, the pro shop appears to exist solely as an adjunct to Hillandale to provide its patrons with products and services normally expected to be available at such an establishment. Without the golf course, there appears no reason for the pro shop, as such, to exist. It is possible, though unlikely, that a golfer might come to the pro shop at Hillandale to purchase balls and clubs which he intended to use exclusively elsewhere. It is not even imaginable, however, that the electric carts rented by the shop could serve any purpose other than to provide a convenience to Hillandale’s patrons. The pro shop, therefore, is an integral part of the place of entertainment, which Hillandale unquestionably is. Daniel v. Paul, 395 U.S. 298, 89 S.Ct. 1697.
If the products and services provided by the pro shop are “sources of entertainment which move in commerce,” 42 U.S.C. § 2000a(c) (3), Hillandale is a covered establishment and is subject to the Act’s requirement of non-discrimination. Under Daniel v. Paul, supra, there can be little question but that they are. The products and services furnished by the pro shop bear a closer relationship to the total operation at Hillandale than did the sources of entertainment held to result in coverage of the facility in Daniel. The connection with interstate commerce is as great. Of the golfing equipment sold by the pro shop, it is undisputed that more than half was manufactured outside of North Carolina. Although the electric golf carts are assembled in North Carolina, most of their essential parts are manufactured in other states. Since each cart represents an investment of about $1,000, approximately $14,000 of the total $40,000 investment in carts represents components originating out of North Carolina.
On the facts discussed above, the plaintiff has shown a high probability that he will ultimately be entitled to the relief sought.
While there are no private plaintiffs involved in this action, this does not mean that the requirement that irreparable injury be shown should be so construed as to defeat the plain statutory language authorizing the Attorney General to seek, and the courts to grant, preliminary relief when a sufficient case has been made. This authorization for preliminary relief without the intervention of an individual aggrieved party implies that the forbidden discrimination itself constitutes irreparable injury.
Under these circumstances, a requirement that Hillandale admit golfers without regard to race pending final determination of the action will result in less injury, if any, to it than would result to others from its continued discrimination against and affront to those Negroes who wish to use its facilities. The preliminary injunction should have been granted.
Reversed and remanded.
. The Attorney General contends that admission has in fact been generally open to non-residents of North Carolina, and urges that this fact constitutes an additional ground of coverage. However, this contention is based on factual allegations which are sharply disputed and which have not been ruled on by the District Court. Under these circumstances it would be inappropriate for us to attempt to base any decision on this ground.
. It is clear that, under the decision in Daniel v. Paul, 395 U.S. 298, 89 S.Ct. 1697, 23 L.Ed.2d 318, the presence of the snack bar, which served food and drink originating out of North Carolina, would have made Hillandale a covered establishment under 42 U.S.C.A. § 2000a (b) (4) (A) (ii) and (B). Because there is another adequate ground for decision, we need not face the difficult question of whether the status of an establishment as covered under the Act is “frozen” by institution of an action to desegregate it, even though the establishment discontinues the performance of all services on which its coverage is based.
. The facility under consideration in Daniel was Lake Nixon, Arkansas, a diversified 232-acre operation providing swimming, boating, sun bathing, picknicking, miniature golf, dancing facilities, and a snack bar. A jukebox manufactured outside of Arkansas and sixteen paddle boats purchased or leased from an Oklahoma company furnished sufficient basis for the Supreme Court to hold that Lake Nixon furnished sources of entertainment that moved in commerce.
. Components which are manufactured in other states include the motors, wheel assemblies, batteries, chargers, solenoids, seats and steering assemblies.
. There is a distinction between the definition of “affecting commerce” applied to food service establishments under § 2000a (b) (2) and that applied to places of entertainment under § 2000a (b) (3). The former affect commerce if a substantial portion of the food served has moved in interstate commerce; thus it is proper to consider the origin of individual ingredients in locally processed food items. Daniel v. Paul, supra. Places of entertainment affect commerce only if their “sources of entertainment” move in commerce. Whether this distinction means that a locally manufactured source of entertainment, assembled in part from out-of-state components, as the golf carts in this case are, does not “move in commerce” within the meaning of § 2000a (c) (3), is a question which need not be decided at this time. The majority of the items of equipment sold by the pro shop to Hillandale patrons, such as balls and clubs, are admittedly manufactured entirely outside of North Carolina.
. “[T]he Attorney General may bring a civil action in the appropriate district * * * requesting such preventive relief, including an application for a permanent or temporary injunction, restraining order or other order * * * as he deems necessary to insure the full enjoyment of the rights herein described.” 42 U.S.C. § 2000a-5(a).
. See United States v. Hayes International, 5 Cir., 415 F.2d 1038, 1045.
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_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.
Punt SISUNG and Gus Fitzgerald, Appellants, v. TIGER PASS SHIPYARD CO., Inc., Appellee.
No. 19346.
United States Court of Appeals Fifth Circuit.
May 16, 1962.
Francis Emmett, New Orleans, La., for appellants.
William S. Stone, Paul A. Gaudet, New Orleans, La., for appellee.
Before HUTCHESON, WISDOM and BELL, Circuit Judges.
BELL, Circuit Judge.
This appeal is from the dismissal on the merits of a libel in personam brought by appellants, owners of the crewboat Rhea III, for damages to the vessel while it was moored at the shipyard of appellee.
The shipyard is located near Venice, Louisiana, on the east bank of Tiger Pass, which runs in a southeasternly direction from the Mississippi River to the Gulf of Mexico and is the sole establishment in that vicinity on the east side. It is located in the straight reach of the Pass which at that point is approximately two hundred feet in width. The docks and facilities of Humble Oil Company and others are opposite the shipyard on the west bank of Tiger Pass. There is heavy traffic in the Pass, both day and night.
The shipyard had a bulkhead running parallel to the bank of the Pass but no slips. The bulkhead was described as a retaining wall, and was six to eight feet out, the high ground gradually sloping into it.
The Rhea III was a white woodhull crewboat approximately thirty two feet in length and ten feet wide with a draft, of three feet. She was jointly owned by appellants but was in the charge of Fitzgerald.
Appellant Sisung was president and' majority stockholder in appellee Shipyard but was not active in the management of it. Appellant Fitzgerald at one time owned a twenty five percent interest in it but had sold out prior to the casualty with which we are here concerned. Edwin Joseph Chauvin was vice president and manager of the shipyard while Antoine J. Cunningham was an employee living in a trailer one hundred fifty to two hundred feet from the Rhea III on the night of the casualty. These were the central characters on the trial, indeed the only witnesses.
The Rhea III was brought to the shipyard early in May for repairs and a month later, the repairs having been completed, Sisung visited the yard while she was still on blocks to inspect her. He approved the repairs and directed Chauvin to put her over in derrick slings for a sufficient time to be sure she was not leaking and then to moor her at the downstream end of the yard’s bulkhead, considered by all to be the safest place at the yard for mooring. He signed the repair invoice, directed Chauvin to notify Fitzgerald that she was ready and to request Fitzgerald to pick her up.
Chauvin, following these instructions, launched the vessel and held her in the derrick slings for a sufficient time for her underwater planking to swell and to make certain that she was not leaking. He then had her moored at the location selected by Sisung with her bowline secured to a willow stump on the bank. No stern line was used. She was headed up current, port side to the channel, snug against the bank with from one quarter to one half (two and one half to five feet) of her width extending channel-ward of the bulkhead. The velocity of the current was between five and seven miles per hour and sufficient according to the witnesses to hold a vessel, moored as she was with a bowline only, snug against the bank.
Between four thirty and five o’clock that afternoon Chauvin telephoned Fitzgerald that the Rhea III was ready and was moored downstream of the bulkhead and asked him to pick her up. Hei~e appears the first conflict in evidence. Fitzgerald testified several times that he told Chauvin he could not pick the vessel up until the next day but on cross-examination he admitted that he was not certain of this. He admitted that he knew the vessel had been launched and that he intended sending for her that afternoon if he got around to it. He denied knowing exactly where she was moored. Chauvin denied the statement of Fitzgerald that he would not come for her until the next day but admitted that Fitzgerald stated to him that he could not come for the vessel until later. Chauvin left the shipyard immediately after the telephone conversation and left no instructions with anyone concerning the vessel.
Cunningham, an employee of two days duration at- the shipyard, lived on the grounds in a trailer. He remained at the shipyard that evening but had no duties as a watchman. He helped moor the vessel that afternoon and saw her at eight thirty o’clock p. m. when she appeared to be in good condition with her starboard side flush against the bank. He went to bed about nine p. m. and between then and eleven p. m. was awakened by an unusual noise described by him as a “cracking sound”. At eleven p. m. he got up and went outside to smoke a cigarette and go to the outside toilet. He saw that the Rhea III was leaning to port. He looked up and down the Pass for a vessel underway. He testified that he neither saw nor heard a vessel underway and went back to bed without making any further investigation.
Upon inspection the next morning it was discovered that she had been rammed by an unknown boat or object during the night and was pushed onto the bank. She was hit midship on the portside, almost cut in two, and was an agreed constructive total loss.
There were no lights placed or lighted on the vessel but the derrick at the shipyard was equipped with three flood lights to illuminate the yard and these were kept burning day and night, one light being on the boom and one on each side of the derrick. They contained 300 and 500 watt bulbs. The testimony was that they lighted the whole working area of the shipyard and one threw light on the Rhea III and fifty feet beyond her. Cunningham testified that he could see her snug against the bank before he went to bed and leaning to port when he observed her at eleven although he was one hundred fifty to two hundred feet away from her. One of the lights was within seventy five feet of her.
Cunningham testified that on the previous two nights he had been awakened many times by noises from traffic in Tiger Pass. He testified that down-bound vessels would frequently swing the heads of their tows into the bank of the wooded area a hundred feet or so below the shipyard so that the current would swing them about to head upstream and thereby facilitate entering the slips on the west bank of the Pass across from the shipyard.
Chauvin discovered the damage early the next morning. Sisung inspected the damage that morning. He testified that she was where he had directed Chauvin to moor her except that she had been forced up the slope of the bank. He was also a deputy sheriff and along with other deputies searched for the object that rammed the Rhea III but without success. Sisung also testified that he contemplated that Chauvin would moor her with a bowline only and that he considered the vessel to be at owner’s risk when it was launched and moored according to his directions. Fitzgerald was familiar with the facilities at the shipyard, was in charge of skippers for this vessel and others and both Sisung and Fitzgerald knew that no night watchman was employed at the yard.
Appellants contend that appellee was the bailee of the Rhea III at the time of her destruction and failed to overcome the presumption or inference of negligence arising under such circumstances, and alternatively, that appellee was negligent in leaving the vessel in an exposed position on navigable waters, in improperly mooring her, and in leaving her moored without a watch aboard or in her vicinity, all of which negligence proximately contributed to the loss.
The trial court in a memorandum opinion stated that it did not find that the bailment ceased after the boat was launched and moored in accordance with the directions of Sisung and when Fitzgerald was notified of such action and gave no instructions for overnight care, but stated that the court would so hold if it was necessary so to do. We will dispose of this question first.
Whether the bailment had ceased or not is relatively unimportant since the relation of bailor and bailee, stricti juris, was not necessary in order to impose the duty óf reasonable care on the shipyard to protect the vessel still in its possession. New York Trap Rock Corporation v. Christie Scow Corporation, 2 Cir., 1947, 162 F.2d 624; C. F. Harms Company v. Erie Railroad Company, 2 Cir., 1948, 167 F.2d 562. Of course, there could have been constructive delivery to appellants through the action of Sisung in directing the mooring but his further instruction was to call appellant Fitzgerald and tell him to pick her up and Fitzgerald was at least unclear as to when he would send for her. Even assuming without deciding that the bailment had ended, we hold that there was a failure of the minds to meet on the time of delivery with the consequent duty on the shipyard, in the meantime, to use reasonable care in protecting the vessel as a part of the delivery. Continental Insurance Company v. Himbert, La.App., 1948, 37 So.2d 605. But this standard of care did not run to the place of mooring as we shall hereinafter discuss because it was moored there at the direction of Sisung.
The rule in bailment cases is that the bailee may overcome the inference of negligence arising against it because of delivery in good condition and return in damaged condition by telling all that it knows of the casualty, and that it exercised ordinary care in all that it did with respect to the vessel. This burden, unlike that of persuasion which rested at all times on appellants, simply required appellee to go forward with evidence sufficient to show that it had no more knowledge of the cause of the casualty than was available to appellants and that it exercised ordinary care. At this juncture the burden of going forward would shift back to appellants to ultimately persuade the trier of the facts of negligence on the part of appellee proximately causing the casualty. This rule as it applies to bailments is “but a particular application of the doctrine of res ipsa locquilur.” Commercial Molasses Corp. v. New York Tank Barge Corp., 1941, 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89. And it is to be noted that this case also points out that a bailee is not an insurer. Cf. Indamer Corp. v. Crandon, 5 Cir., 1952, 196 F.2d 5.
As it happens the proof here is the same, whether it be of use of ordinary care by appellee to overcome the inference of negligence cast on it as a bailee, or to show negligence on the part of appellee, if the bailment rule is inapplicable, or to show negligence if it is applicable and the burden of persuasion has shifted back to appellants.
The trial court made findings as to subsidiary facts and as to negligence and the use of ordinary care. And the findings of the trial court in Admiralty are binding on us, insofar as they relate to facts as distinguished from conclusions requiring the application of legal standards, unless clearly erroneous. McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; C. J. Dick Towing Co. v. The Leo, 5 Cir., 1953, 202 F.2d 850. And we must approach the findings of fact by applying the rule that “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” McAllister, supra.
The trial court found that the mooring of the vessel by only one line was sufficient in view of the undisputed current in the Pass sufficient to hold a boat tight against the bank. He found the lighting adequate, and denied the request to invoke The Pennsylvania rule, 1873, 86 U.S. 125, 22 L.Ed. 148, of presumptive negligence based on statutory violation, holding that Title 33, § 80.16a, Code of Federal Regulations, regulating lights on certain vessels to be inapplicable. He also denied the contention that there was a duty on appellee to provide a watchman. We affirm these findings and conclusions.
The trial court also found that the type of damage sustained by the vessel and the fact that she was struck mid-ship and driven up on the bank demonstrated that she was not hit while floating out in the channel. He found that she was protruding slightly in the navigable stream beyond the bulkhead and there subject to the hazards of traffic including tugs permitting tows to hit against the wooded bank but that the physical damage did not suggest this type or cause of collision. On the issue of ordinary care he found that it was not unreasonable for appellee to have left the vessel where she was moored in view of the acts of piracy on the docks across the Pass and the fact that Fitzgerald might have called for the vessel after the yard was closed.
While it is our opinion that the exercise of ordinary care required appellee, as the one in possession of the vessel as bailee or during delivery to have ascertained if the vessel would be left overnight, and to move it to a place of safety in the event it was to be left overnight, this failure here was not negligence in view of the undisputed fact that appellee moored the vessel exactly where it was instructed to moor it by appellant Sisung. The shipyard would be liable, even in the absence of negligence, in the event of damage if it had disobeyed this instruction. 6 Am. Jur., Bailments, § 228. Furthermore, where the owner maintains some dominion over the vessel, as Sisung did by selecting the place of mooring, there is a corresponding limitation on the duty of the bailee or one in possession. Cf. Stegemann v. Miami Beach Boat Slips, Inc., 5 Cir., 1954, 213 F.2d 561.
Appellants, through Sisung, were the authors of their own misfortune and should not be permitted to recover. The judgment is
Affirmed.
. She could have been safely moored in one of the Humble slips but there was danger of pilfering.
. This action was brought by appellants for their underw .iters who had previously paid the loss.
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:
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songer_counsel2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Ferd SCHNEIDER v. DUMBARTON DEVELOPERS, INC., a D.C. Corporation, d/b/a Clermont Partnership, et al., Clermont Tenants Association, Inc., a D.C. Non-Profit Corp., d/b/a Clermont Partnership, Appellant. Ferd SCHNEIDER v. DUMBARTON DEVELOPERS, INC., a D.C. Corporation, d/b/a Clermont Partnership, et al., 2106 F Street Associates, Appellant. Ferd SCHNEIDER v. DUMBARTON DEVELOPERS, INC., a D.C. Corporation, d/b/a Clermont Partnership and Clermont Corporation, a D.C. Corporation, Appellants, Clermont Tenants Association, Inc., a D.C. Non-Profit Corp., d/b/a Clermont Partnership, et al. Ferd SCHNEIDER, Appellant, v. DUMBARTON DEVELOPERS, INC., a D.C. Corporation, d/b/a Clermont Partnership, et al.
Nos. 83-2075 to 83-2078.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 13, 1984.
Decided July 23, 1985.
Kate Abbott Martin, Washington, D.C., with whom David N. Webster and William R. Robertson, Washington, D.C., were on the brief for 2106 F Street Associates and Clermont Tenants Ass’n appellants in No. 83-2075 and 83-2076 and cross-appellees in No. 83-2077.
Reuben B. Robertson, III, Washington, D.C., for Dumbarton Developers, Inc., et al., appellant in No. 83-2077 and cross-appellees in Nos. 83-2075, 83-2076 and 83-2078.
Howard H. Stahl, Washington D.C., for Ferd T. Schneider appellee in No. 83-2078 and cross-appellant in Nos. 83-2075, 83-2076 and 83-2077. Loren Kieve, Washington, D.C., also entered an appearance for Schneider.
Before MIKVA, GINSBURG and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
MIKVA, Circuit Judge:
This appeal and cross appeal (as well as the related case District-Realty Title Insurance Corp. v. Ensmann, 767 F.2d 1018, also released today) arise frbm appellee Ferd Schneider’s abortive attempt to sell the appellants the Clermont apartment building, located at 2106 F Street, N.W., in Washington. This court has jurisdiction on the basis of diversity of citizenship. See 28 U.S.C. § 1332 (1982).
The legal questions raised are straightforward, but the facts are convoluted. The district court’s findings consume almost twenty pages of small type. We repeat only the more salient findings here.
On February 10, 1981, Schneider agreed to sell his building to appellants, Clermont Tenants Association, Inc., (“CTA”), a District of Columbia nonprofit corporation and Dumbarton Developers, Inc. (“Dumbarton”), a District of Columbia corporation, co-partners t/a Clermont Partnership, (collectively, the purchaser) (see Land Purchase Agreement, reprinted in Record Excerpts (“R.E.”) at 319-36). Dumbarton apparently had been recruited by CTA as a developer partner; its role was to obtain the funds necessary to buy the property and make certain payments of cash and notes to CTA members. Under the terms of the Land Purchase Agreement, settlement was to have been completed 120 days following execution of the agreement. At the purchaser’s request, however, settlement was postponed twice. Finally, Schneider announced that unless “full settlement [was] made on or before 3:00 P.M., May 17, 1982,” he would consider the Land Purchase Agreement terminated. On May 17, Schneider did all that the Agreement required of him, but the purchaser failed to make settlement. Schneider then brought suit seeking a declaratory judgment that the agreement was terminated. This suit was settled under an “Agreement of Settlement and Release,” dated August 4, 1982 (“August 4 Settlement Agreement”, reprinted in R.E. at 108-13).
Under the August 4 Settlement Agreement, purchaser agreed to “consummate settlement of the Agreement on or before October 4, 1982, time being of the essence.” Apart from seven exceptions not pertinent to this appeal, the time for settlement could not be further extended for “any reason whatsoever.” The agreement further provided:
[I]n the event it fails to consummate settlement as aforesaid, the deposit in the amount of Fifty Thousand Dollars ... shall be forfeited to Schneider as liquidated damages, the Agreement will thereupon be terminated and of no further force or effect, and the parties relieved of all further liability or obligation thereunder. Clermont, Dumbarton, and Corporation agree that in the event settlement is not consummated in accordance with the terms of Paragraph 1, they shall thereupon have waived and relinquished any and all interest in or rights to purchase the property.
Thus, the purchaser was given two months — from August 4, 1982, until October 4 — to consummate settlement. Schneider was ready, willing, and able to make settlement at all times during that period, but the purchasers designated the very last day, October 4, 1982, as the earliest date at which they would be ready to make settlement.
Unbeknownst to Schneider, Dumbarton had entered into a financing arrangement with West German investor Rudolf Ensmann for the purchase and development of the property. Since early September 1982, moreover, Ensmann’s attorneys had been attempting — without success — to persuade Dumbarton to let Ensmann take title to the property at the closing. Having failed to persuade Dumbarton, Ensmann’s attorneys had begun pressing CTA to exercise its contractual option to buy out Dumbarton’s share of the partnership. As of daybreak on October 4, however, no agreement had been reached.
The events of October 4, 1982, and the days immediately following are a tangled web of mix-ups, mistakes, and miscalculations.
On the morning of October 4, Ensmann’s attorneys finally concluded an “Agreement for Assignment and Disbursement” with CTA under which CTA was to assign all of the Clermont Partnership’s right, title, and interest in the apartment building to Ensmann and do everything in its power to ensure that Ensmann perfected title to the property. Schneider was not told of this agreement. At about noon, 2106 F Street Associates (“2106”) was created as a limited partnership 99% owned by Ensmann. Schneider was not told about this development either.
Schneider and his attorney arrived at the title company at about 2:00 P.M. and had completed their part of the transaction by about 2:20 P.M. At that time, one of Dumbarton’s attorneys informed Schneider that it “might be necessary” to change the name of the grantee on the deed. Schneider’s lawyer replied that his client had no objection provided he “gets his money.” The possible new grantee was not named, and Schneider was still not informed of the agreement which had been concluded that morning.
Schneider asked the settlement officer for his payment, but was told it was not yet available. Schneider asked “when will I get my money” and was told to call the title company on Wednesday, October 6. Having fulfilled all his obligations under the Land Purchase Agreement and the August 4 Settlement Agreement, Schneider left the title company’s offices at about 2:30 P.M. At about 4:00 P.M., Schneider’s attorney phoned the title company and was informed that the purchaser had not completed settlement. He was still not informed, however, of the assignment or of the creation of 2106.
Between 4:00 and 5:00 P.M., CTA delivered to Dumbarton a document that purported to exercise CTA’s option to buy out Dumbarton’s interest in the Clermont Partnership. Dumbarton immediately informed CTA that Dumbarton was not in default as to any of its obligations, considered the purported exercise of the option invalid, and would contest it.
At about 6:00 P.M., lawyers for CTA and for 2106 delivered escrow instructions and three checks totalling $1,405,000 to the title company. Dumbarton had never authorized or joined in the escrow instructions. The instructions were defective in a number of other respects as well.
Schneider’s attorney called the title company’s offices at about 6:30 P.M. and was again told nothing except that settlement had not been completed.
At about 8:30 P.M., new escrow instructions were delivered to the title company, this time by CTA, 2106 and Dumbarton. The title company was unable to comply with the mandate of the instructions because they contained several preconditions which could not be satisfied. Specifically, the instructions required certain payments to Dumbarton, CTA, and others, for which the sums then deposited with the title company were insufficient. The instructions also required delivery to the title company of certain documents — CTA’s assignment of its interests to 2106 and Ensmann’s release of a lawsuit against Dumbarton— which either had not been delivered or had not been fully executed.
At about 10:00 A.M. on October 5, 1982, Schneider’s lawyer called the title company and learned that settlement had still not been made. At 11:00 A.M., representatives of Dumbarton, CTA, and 2106 (Ensmann) arrived at the title company, delivered more money, and began drawing up still more instructions. At 2:00 P.M., Schneider’s attorney called again. After learning that settlement was still not complete because the title company could not comply with the latest escrow instructions, Schneider decided to terminate the Land Purchase Agreement. Schneider and his lawyer appeared at the title company at about 2:50 P.M. and, upon being informed by the settlement officer that no substantial progress has been made, tendered a letter terminating the agreement and claiming the $50,000 deposit as liquidated damages. Schneider’s attorney instructed the title company to return ail documents submitted in connection with the settlement.
After Ensmann’s attorneys learned that Schneider had terminated the agreement, they drafted yet another set of escrow instructions and directed that the title company issue a check for the adjusted purchase price to Schneider.
On the morning of October 6, Schneider’s attorney received from the title company, not the documents whose return he had requested, but instead the check, a copy of a new deed naming 2106 as grantee, and a new District of Columbia Real Estate Deed Recordation Tax and Real Property Tax Return. This was the first that Schneider’s attorney had heard of 2106. The title company had forwarded a copy of CTA’s assignment of its rights to 2106; it had forwarded nothing indicating a similar assignment by Dumbarton. Schneider’s attorney was aware of disputes among Dumbarton, CTA, and their financial backer and, consequently, was leary of assuming Dumbarton’s acquiescence. He asked a lawyer who was acting for both Ensmann and 2106 whether she could obtain Dumbarton’s consent to the exercise of the option and was told that that would be “impossible.” Ensmann’s attorneys offered to indemnify Schneider for any resultant litigation.
Schneider’s attorney advised that the proffered indemnification was inadequate to protect Schneider from lawsuits claiming he had wrongfully transferred property. Thus, on October 7, 1982, Schneider returned the check and filed suit in district court, seeking a declaratory judgment that the Land Purchase Agreement was terminated, $50,000 in liquidated damages, and attorney fees. Dumbarton and CTA counterclaimed for specific performance. The district court found for Schneider, declaring the agreement terminated and holding all the defendants jointly and severally liable in the amount of $50,000, but ordered the parties to bear their own costs and fees. Defendants appealed; Schneider cross-appealed for attorney fees. We affirm all aspects of the district court’s judgment except the conclusion that 2106 is jointly and severally liable with the other defendants for the $50,000 liquidated damages.
Substantial Performance:
The appellants contend that their actions on October 4 and the two days immediately following constituted substantial performance under the contracts. Although the district court may have overstated the holding of Drazin v. American Oil Company, 395 A.2d 32 (D.C.App.1978), in asserting that the doctrine of substantial performance can never apply where time is of the essence, the district judge reached the correct result.
In Drazin, the District of Columbia Court of Appeals considered whether a unilateral act by one party could add a “time is of the essence” provision to a real estate contract that initially had not had one. The court concluded it could and denied appellant Drazin’s claim for specific performanee, noting that he had failed to meet the deadline that the defendant had imposed.
The court did not address the question of whether Drazin’s performance had been substantial or whether the substantial performance doctrine in general could apply where time is of the essence. We too need not decide whether the substantial performance doctrine has any proper application to time is of the essence contracts because it is evident that the appellants did not substantially perform. The appellants’ acts on October 4 were not sufficient to constitute substantial performance and their acts after that date may not properly be considered.
Under District of Columbia law, “time is of the essence” provisions are taken seriously and occasion a departure from the ordinary rules governing time limitations in land contracts. Generally, the time set in a real estate contract is looked upon as “an approximation of what the parties regard as a reasonable time.” Drazin, 395 A.2d at 34; Doering v. Fields, 187 Md. 484, 490, 50 A.2d 553, 555-56 (1947). Normally, neither party is held strictly to the time limit although the limit is “not nugatory” and the seller has “a right to expect that the vendees [will] be ready at about that time.” Drazin, 395 A.2d at 34. Such laxity ceases, however, where time is of the essence. In contracts for sale of land
equity treats the [time] provision as formal rather than essential, and permits the purchaser who has suffered the period to elapse to make payment after the prescribed date, and to compel performance by the vendor notwithstanding the delay, unless it appears that time is of the essence of the contract by express stipulation, or by inference from the conduct of the parties, the special purpose for which the sale was made, or other circumstances surrounding the sale.
Id.; Kasten Construction Co. v. Maple Ridge Construction Co., 245 Md. 373, 379, 226 A.2d 341, 345 (1967) (both quoting Soehnlein v. Pumphrey, 183 Md. 334, 338, 37 A.2d 843, 845 (1944)).
Given that the August 4 Settlement Agreement stated not only that “time is of the essence” but also that “the time for settlement may not be further extended for any reason whatsoever,” acts performed after the October 4 deadline may not be considered in determining whether there was substantial performance. The appellants actions before the October 4 deadline, however, do not constitute substantial performance.
As commentators have noted, see, e.g., Corbin on Contracts § 704, substantial performance is not susceptible of simple definition. It is generally conceded to exist, however, when a contracting party has failed to render full performance but the defects are, all considered, minor. Although it most often applies to construction contracts (and some cases have even limited it to that context, see, e.g., Corbett v. Freedman & Sons, 161 N.E. 415, 263 Mass. 391 (1928)), the general view is that the doctrine may apply to any contract, see Corbin on Contracts § 701. Whether a particular tender of performance is ‘substantial’ depends on the facts of the case.
Where the line is to be drawn between the important and the trivial cannot be settled by a formula. In the nature of the case, precise boundaries are impossible. The same omission may take on one aspect or another according to its setting ... Nowhere will change be tolerated, however, if it is so dominant or pervasive as in any real or substantial measure to frustrate the purpose of the contract____ The question is one of degree, to be answered ... if the inferences are certain, by the judges of the law. We must weigh the purpose to be served, the desire to be gratified, the excuse for deviation from the letter, the cruelty of enforced adherence.
Jacob & Youngs v. Kent, 129 N.E. 889; 230 N.Y. 239 (1921) (Cardozo, J.). Important factors are the character of the performance promised, the purposes and interests it was expected to serve, and the extent to which nonperformance has defeated those purposes and ends. Another key consideration is the actual receipt and enjoyment of benefits by the defendant. In short, substantial performance does not contemplate full performance but does contemplate performance of all important parts of the contract. See Corbin on Contracts § 712.
Turning to the facts at hand, we find that the performance tendered by the appellants cannot be considered substantial. The central purpose of the contract was to effect a transfer of real estate. To realize this purpose, the appellants had to pay the full purchase price to the title company (which would then issue a check to Schneider) and agree to a transfer to the entities named in the original agreement or their lawful substitutes. Neither of these acts was performed on October 4.
That the appellants paid ‘substantial’ sums of money over to the title company was of no benefit to Schneider because the appellants’ escrow instructions prevented the title company from releasing the funds. We reject appellants’ contention that the unfulfilled preconditions in the escrow instructions were merely minor details, devoid of real significance. Since the title company would not release any funds to Schneider until the full amount was deposited, these ‘minor details’ prevented Schneider from receiving any payment whatsoever on the date due, let alone the full payment to which he was entitled under the contract.
Equally important, the appellants failed to make proper provisions for the transfer of title. Schneider was contractually bound to deliver the property to the Clermont Partnership, but the partnership’s financial backer, Ensmann, was insisting upon transfer to a new entity called 2106. This controversy was not resolved on October 4, nor, so far as the record discloses, at any point thereafter.
Ensmann was able eventually to present a legally effective assignment from CTA to 2106 but admitted that it would be “impossible” to obtain a similar document from Dumbarton. The best Ensmann could do was make a lame offer to indemnify Schneider if Dumbarton sued for wrongful transfer. Indemnity is not performance and cannot be cavalierly substituted for performance. Nor is the distinction a mere technicality. Ensmann in essence had conditioned payment on the issuance of a new deed not in accordance with the Land Purchase Agreement. Such “performance” is not “substantial”; indeed under District of Columbia law, it is of no effect whatsoever. Ferguson v. Caspar, 359 A.2d 17, 24 (D.C. 1976), holds that “a tender of performance by the purchaser which contains conditions other than those specified in the contract between the parties is ineffectual.”
In sum, the August 4 Settlement Agreement made timely compliance a key term of the contract by stating both that “time is of the essence” and that the time for compliance could not be extended for “any reason whatsoever.” When we further recall the history of the case — the original provision for settlement within 120 days of the execution of the Land Purchase Agreement, the two postponements at the appellants’ request, Schneider’s ultimatum that payment be made by May 17, 1982 or the contract would terminate and appellants’ failure to meet the deadline, Schneider’s original suit for declaratory judgment and the August 4 Settlement Agreement providing the appellants with one last chance to buy the property — we have no difficulty discerning that stricter adherence to the deadline was intended than is generally the case in real estate transactions. The parties bargained for the strict construction that Schneider urges and it would be improper for the courts to put any other interpretation on the “time is of the essence” clause.
It would therefore be improper to include acts performed after October 4 in considering substantial performance. Turning to the events of October 4, we find that the appellants failed to pay the seller any money and failed also to resolve a dispute as to which entity would take title. Both of these failures go to the heart of the contract. They are material; indeed it is difficult to imagine anything more material.
Reviewing all the circumstances of the present case, we conclude that the district judge was correct in ruling that the appellants had not substantially performed their obligations under the contract within the time allotted.
Notice and Opportunity to Cure:
The appellants argue that under the terms of the Land Purchase Agreement, they were entitled to notice of default and a five-day opportunity to cure the default, which entitlements were improperly denied by Schneider’s filing suit only three days after the scheduled settlement date. The appellants suggest that the contract’s notice and cure provision applied to any and all defaults, even the most grievous. We need not determine whether this interpretation — which in effect provides an automatic extension whenever settlement is not made — is correct. We agree with the district judge that the August 4 Settlement Agreement effectively eliminated the grace period provision from the agreement between the parties.
The August 4 Settlement Agreement, reached in compromise of a lawsuit that had been filed solely because of excessive delays in making settlement under the contract to purchase, essentially provided for one last chance to complete the deal. The agreement not only asserted that “time is of the essence” but also emphatically stated that “the time for settlement may not be further extended for any reason whatsoever.”
Settlement agreements are in high judicial favor. See, e.g., Williams v. First National Bank, 216 U.S. 582, 595, 30 S.Ct. 441, 445, 54 L.Ed. 625 (1910); Autera v. Robinson, 419 F.2d 1197, 1199 (D.C.Cir. 1969). They enable the parties to avoid the expense and delay involved in full litigation of the issues and spare the court the burden of trial. The District of Columbia partakes of the general view that such an agreement voluntarily entered into cannot be repudiated by either party and will be enforced summarily by the court. See, e.g., Autera v. Robinson, 419 F.2d at 1200; see also Kelly v. Greer, 365 F.2d 669, 671 (3rd Cir.1966), cert. denied, 385 U.S. 1035, 87 S.Ct. 772, 17 L.Ed.2d 682 (1967); Cummins Diesel Michigan, Inc. v. The Falcon, 305 F.2d 721, 723 (7th Cir.1962).
A settlement agreement resolving a contract dispute is said to operate as a substituted contract, cancelling or modifying the prior contract to the extent that the two are inconsistent. See Sirota v. Econo-Car, International, Inc., 556 F.2d 676, 681 (2d Cir.1977); Jersey Central Power and Light Co. v. Local 327, IBEW, 508 F.2d 687, 703 & n. 44 (3rd Cir.1975); Restatement of Contracts § 408 (1932 & Supp. 1979); 6 Corbin on Contracts § 1293 (1962). Whether the provisions of a subsequent contract are deemed to supersede the provisions of a prior contract turns on the parties’ intent which is ascertained from the contracts themselves when they are unambiguous. See Jersey Central Power & Light Co., 508 F.2d at 703.
We find that the August 4 Settlement Agreement clearly meant for October 4, to be the last and final opportunity to settle and that an automatic five-day extension is inconsistent with the intent of the Settlement Agreement. We conclude that the settlement contract eliminated the grace period provision and that, consequently, the appellants’ claim of entitlement is without merit.
Waiver:
The appellants assert that even if Schneider had a right to demand payment on October 4, his actions on that day constituted a waiver. The appellants point to Schneider’s failure to terminate the agreement when first informed that the title company would not pay out his money before October 6 and Schneider’s apparent willingness to provide a new deed if necessary. We reject appellants’ waiver argument.
Under District of Columbia law, which we are bound to apply in this diversity case, a written contract specifying that time is of the essence can only be modified in writing. See Landow v. Georgetown-In land West Corp., 454 A.2d 310, 313 (D.C. 1982). In Landow, the District of Columbia Court of Appeals rejected arguments remarkably similar to those advanced by the appellants here. The buyer had contended that as long as he was making good faith efforts to consummate the transaction, the settlement date should be extended notwithstanding a “time is of the essence” clause. The court rejected the buyer’s argument as “without legal foundation” and “commercially impracticable.” Id.
The court noted that in a written contract where time is not of the essence, strict compliance with the date of performance may be waived orally. Where time is stated to be of the essence, however, a different rule applies. Modification of the date of settlement is then regarded as a material change which cannot be effected without a writing. Since no one here contends that Schneider’s right to demand adherence to the October 4 deadline was ever waived in writing, whether Schneider’s actions suggested a willingness to dispense with the deadline is and should be irrelevant.
A different rule would be inconsistent with public policy. Were we to adjudge acts as equivocal as Schneider’s sufficient to constitute a binding waiver of material contractual rights, we would discourage the negotiations and minor, reasonable accommodations which are the norm in the business world. The consequence would be a decrease in flexibility and an increase in litigation. Such a rule would be as unwise as it would be unprecedented in District law. Consequently, we affirm the trial court’s conclusion with respect to waiver.
Attorney Fees:
Schneider has cross-appealed from the district court’s denial of attorney fees. We affirm the district court. The cases Schneider cites fail to establish his entitlement to fees. Under the American rule, parties normally bear their own costs and fees. A fee award is an extraordinary remedy which the court grants only where specially authorized by contract or statute or where the conduct of the losing party was exceptionally bad. See, e.g., Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 249-70, 95 S.Ct. 1612, 1617-28, 44 L.Ed.2d 141 (1975); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717-19, 87 S.Ct. 1404, 1406-07, 18 L.Ed.2d 475 (1967); Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d 34, 37 (D.C.1979).
Schneider, rather than the appellants, initiated this lawsuit in the district court, and although the legal position of the appellants was weak and they have pursued their cause here without success, we are not convinced that they have acted “in bad faith, vexatiously, wantonly, or for oppressive reasons.” Cf. Wisconsin Avenue Associates, Inc. v. 2720 Wisconsin Avenue Cooperative Association, Inc., 385 A.2d 20, 24 (D.C.App.1978); 1901 Wyoming Avenue Cooperative Association v. Lee, 345 A.2d 456, 465 (D.C.App.1975); F.W. Berens Sales Co. v. McKinney, 310 A.2d 601, 603 (D.C.App.1973).
Nor do we accept Schneider’s claim that he is entitled to fees on a breach of contract theory. He asserts that the August 4 Settlement Agreement was a contract and that a major goal of the agreement was to avoid litigation; by forcing him to sue for declaratory judgment and then pursuing this appeal, appellants, he contends, deprived him of the benefit of his bargain. A settlement agreement is, of course, a contract, see Bullard v. CurryCloonan, 367 A.2d 127, 131 (D.C.App. 1976), and litigation in defiance of a promise not to sue could constitute a breach. But no such situation presents itself here. The August 4 Settlement Agreement contains no explicit covenant not to sue. Even if we were to find such a covenant by implication, as the law permits us to do, the covenant would go only to the merits of the controversy settled — not to the existence or terms of the Settlement Agreement itself. See Winchester Drive-In Theatre, Inc. v. Warner Bros. Pictures Distributing Corp., 358 F.2d 432, 436 (9th Cir.1966). Since we find that this suit arose from genuine disputes as to the terms and import of the settlement agreement, we reject Schneider’s breach of contract theory.
Where the trial court exercises its discretion to award or deny attorney fees, our role on review is restricted to determining whether discretion was abused. See Trilon Plaza Co., 399 A.2d at 38; Panos v. Nefflen, 205 A.2d 600, 602 (D.C.App.1964) (quoting Shima v. Brown, 140 F.2d 337, 337 (D.C.Cir.1943)). Here we have little difficulty in concluding that the trial court exercised its discretion soundly. Indeed, as indicated above, we are unaware of any precedent which would authorize the award of fees in the circumstances of this case.
Liability of 2106 F Street Associates:
Appellant 2106 objects on both procedural and substantive grounds to its being held jointly and severally liable for the $50,000 liquidated damages. 2106 contends that because it appeared as an intervenor and Schneider never amended his complaint to include specific claims against the intervenor, 2106 had neither adequate notice of nor reasonable opportunity to defend against the liquidated damages liability. 2106 further contends that it assumed no liability for damages under the agreements between it and Dumbarton and CTA. We find the first contention without merit, but agree with the second.
When a party intervenes, it becomes a full participant in the lawsuit and is treated just as if it were an original party. See District of Columbia v. Merit Systems Protection Board, 762 F.2d 129, 132 (D.C.Cir.1985); Marcaida v. Rascoe, 569 F.2d 828, 831 (5th Cir.1978). The intervenor renders itself “vulnerable to complete adjudication by the federal court of the issues in litigation between the intervenor and the adverse party.” United States v. Oregon, 657 F.2d 1009, 1014 (8th Cir.1981) (quoting 3B Moore’s Federal Practice ¶ 24.16[6] (2d ed. 1981)). It is said to assume the risk that its position will not prevail and that an order adverse to its interests will be entered. See 7A C. Wright & A. Miller, Federal Practice & Procedure § 1920, at 611 (1972). As we said recently, “the possibility that the plaintiff will be able to obtain, relief against the intervenor-defendant” is part of the “price” paid for intervention. District of Columbia, at 132.
As an intervenor, 2106 subjected itself to the plaintiff’s claims against the defendant, notwithstanding plaintiff’s failure to amend his complaint to include reference to 2106. 2106 entered the lawsuit with full awareness of the nature of Schneider’s claims against the defendants and participated actively. It argued vehemently that it was the lawful substitute for the original parties and had the right to take title to the property under the contracts negotiated by the original parties. It was aware, moreover, that Schneider’s trial brief asked for “judgment against the defendants CTA, Dumbarton, and 2106 FSA, and each of them, in the amount of $50,000” (emphasis added). Although 2106 may not have anticipated that the court would hold it liable, unpleasant surprise is not the same as unfair surprise and certainly does not constitute a due process violation in circumstances such as these. The district court therefore reasonably rejected 2106’s claim of inadequate notice and opportunity to defend. See Order, Civ. Action No. 82-2876 (D.C.D.C. Sept. 27, 1983); cf. Memorandum of Points and Authorities in Support of 2106 F Street Associates’ Motion for Reconsideration, Schneider v. Dumbarton Developers, Inc., Civ. Action No. 82-2876.
The district court erred, however, when it concluded that 2106 was jointly and severally liable for the liquidated damages. Given that appellants failed to make settlement and that Schneider lawfully terminated the contract, 2106 was under no further obligation. It was not the defendants’ assignee unless settlement was made and even if it had been, under District of Columbia law, the terms of the assignments were insufficient to impute an assumption of liability to 2106.
The agreement between 2106 and CTA, see R.E. at 122-26, and the agreement between 2106 and Dumbarton, see id. at 141-51, were drafted at the eleventh hour when the danger that the deal would fall through must have been apparent. They are structured so as to terminate if settlement is not consummated. The agreement with CTA stated:
Provided that Ensmann is able to acquire the Property at the closing, Ensmann will indemnify and hold CTA harmless from and against any and all loss, cost, damage, expenses or attorneys fees arising from any claims by any person, firm, [or] corporation____ If [however] Ensmann is not able to acquire title to the Property pursuant to the Dumbarton Agreement at Closing for any reason, this Agreement shall be void and of no further force and effect, the Title Company shall return the funds provided ... to Ensmann and neither party hereto shall have any obligation or liability to the other under this Agreement.
See id. at 124-25 (emphasis added). The agreement with Dumbarton contained a similar provision. See id. at 147. Since the district court properly found that settlement was neither made nor consummated, the assignments terminated and CTA and Dumbarton (or their successors) must bear the burden of the liquidated damages.
Even if assignments had not terminated, we would still conclude that 2106 was not liable. Under District of Columbia law an assignee is responsible only for those obligations of the assignor that he contracts to undertake. He is only liable for past breaches if he has “expressly assume[d] any duties correlative with the right assigned, there being no implication of assumption by the mere assignment.” Rittenberg v. Donohoe Construction Co., 426 A.2d 338, 341 (D.C.1981). Since the district court properly found that 2106 v/as not an assignee on October 4, it became one only after October 4, if at all; 2106 never assumed liability for the damages in question.
Schneider has contended that 2106 is attempting to “have it both ways” and should be equitably estopped from refusing to accept liability. We disagree. There can be no question that the arrangement 2106 negotiated was highly advantageous to it, but driving a hard bargain is not grounds for estoppel. We do not consider 2106’s position internally inconsistent. 2106 has argued that the purchasers are entitled to specific performance of the Land Purchase Agreement and that 2106 should take title as the assignee. If, as the district court properly determined, however, Schneider was within his rights in terminating the agreement, 2106 contends that its relationship with Dumbarton and CTA is severed and 2106 has no further obligations to either in connection with this matter. In other words, the assignment was good only for the purposes of a successful transfer of the apartment building, and, failing that, is of no further purpose or effect.
Conclusion:
Because we find that the assignments, in effect, allocated the risk of nonsettlement to Dumbarton and CTA (or their successors), we conclude that the trial court erred in holding 2106 jointly and severally liable for the liquidated damages. We reverse the trial court’s ruling on that issue. In all other respects, we affirm.
It is so ordered.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_genapel1
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
STATE OF ALASKA et al., Appellants, v. Cecil D. ANDRUS et al.
No. 76-1829.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 17, 1977.
Decided Feb. 24, 1978.
Rehearing Denied April 24, 1978.
Appeal from the United States District Court for the District of Columbia (D.C.Civil 76-0368).
Sanford Sagalkin, Asst. Atty. Gen. of Alaska, Juneau, Alaska, Supreme Court of Alaska pro hac vice by special leave of Court and Bruce J. Terris, Washington, D. C., with whom Avrum M. Gross, Atty. Gen. of Alaska, Juneau, Alaska, was on the brief, for appellants.
Kathryn A. Oberly, Atty., Dept, of Justice, Washington, D. C., with whom Peter R. Taft, Asst. Atty. Gen., Raymond N. Zagona and William M. Cohen, Attys., Dept, of Justice, Washington, D. C., were on the brief, for federal appellees. Edmund B. Clark, Atty., Dept, of Justice, Washington,
D. C., also entered an appearance for federal appellees.
E. Edward Bruce, Washington, D. C., for appellees, Western Oil & Gas Ass’n, et al.
Before BAZELON, Chief Judge, and LEVENTHAL and WILKEY, Circuit Judges.
Opinion for the Court filed by Chief Judge BAZELON.
BAZELON, Chief Judge:
On April 13, 1976, the Department of the Interior (DOI) offered for bid over one million acres of oil and gas leases in the Gulf of Alaska (GOA) Outer Continental Shelf (OCS). Appellants challenge the legality of that lease sale and seek to have it set aside. They argue both that the Environmental Impact Statement (EIS) prepared by DOI in connection with the sale does not satisfy the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and that the Secretary of the Interi- or’s decision to proceed with the sale in April, 1976 was itself a violation of the Act, because of the alleged inadequacy of the information available to the Secretary at that time. Appellants originally sought to enjoin the sale; however, the district court denied their motion for a preliminary injunction, and this court refused to grant appellants an injunction pending appeal. DOI was thus able to conduct the sale on April 13 as planned. Thereafter, the parties agreed to submit the case on the merits to the district court on the basis of the record compiled at the preliminary injunction stage of the proceedings; the district court concluded that the appellees had complied with all applicable statutes, and entered a final judgment dismissing the complaint.
We have determined that, on the facts of this case, it would be inappropriate for us to set aside the lease sale and to enjoin the exploratory drilling now underway in the Gulf of Alaska. However, this is on the premise that the Secretary’s undertaking prior to the sale, to confine environmental damage through departmental operating orders governing exploration and drilling, will be given meaningful effect through prompt reconsideration of the operating orders already issued, with an environmental impact statement that presents discussion of alternatives.
I. BACKGROUND OF LEASE SALE NO. 39
On January 23, 1974, former President Nixon announced that as part of “Project Independence” he was directing the Secre-
tary of the Interior to increase the acreage leased on the Outer Continental Shelf to 10 million acres beginning in 1975, more than tripling what had originally been planned.” The President ordered the Secretary, in carrying out this directive, “to ensure that... environmental safeguards are observed.” In addition, the President pointed out that there would be “no decision on leasing on the Outer Continental Shelf in the Atlantic and in the Gulf of Alaska until the Council on Environmental Quality [CEQ] completes its current environmental study of those areas.”
The CEQ study to which the President referred was released on April 18, 1974. That study concluded that the environmental risks associated with OCS development varied from region to region but that of the regions studied, development in the Eastern Gulf of Alaska would post the highest level of environmental risks. Indeed, CEQ con-eluded that the “conditions in the Gulf of Alaska are more severe than the [oil and gas] industry has yet experienced anywhere in the world.”
On October 18, Interior published a draft programmatic EIS (PEIS) analyzing the President’s proposed acceleration of OCS leasing to 10 million acres per year. The Environmental Protection Agency (EPA) reviewed the draft and informed Interior that “in accordance with the EPA rating system for environmental statements, we have classified this statement as Category 3, Inadequate.” The statement, in EPA’s view, had failed to address “key policy options and managerial issues pertaining to an accelerated OCS oil and gas leasing program.” EPA was especially critical of the proposed inclusion of Alaskan OCS areas in the leasing schedule:
The CEQ Task Force on the OCS, in which DOI participated, states that the petroleum industry would encounter a higher environmental risk in the development of the Gulf of Alaska than in any,other area. DOI has not been able to demonstrate that the benefit in oil development outweighs the environmental cost. In fact, DOI’s own data. show conclusively that because of material constraints, there is no relative advantage to leasing Alaskan OCS areas at this time despite the magnitude of Alaska’s reserves. EPA’s position is therefore that leasing in Alaskan waters should not be considered at this time and that substantial technical and biological research is required. Although we expect that as a result of that research, exploration and subsequent production will be feasible at some point in the future, EPA believes that the point cannot be predicted at this time. In our opinion, it is therefore neither necessary nor prudent for Alaskan OCS areas to be placed on the leasing schedule at this time. We think that the future decision should be based on (1) baseline and biological effects research, most of which has not been funded or planned at this time, (2) coastal zone planning, and (3) assessment of operating experience with advanced technologies which can be tested in other OCS areas.
In response to these comments from EPA, and to comments from the State of Alaska and others, Interior indicated that it fully concurred in CEQ’s analysis of the relative environmental risks associated with OCS development in various regions, and agreed that development in the Gulf of Alaska would be “highly hazardous.” “The Gulf of Alaska,” it said, “is a high risk area.” Nonetheless, Interior’s “Proposed Planning Schedule,” issued in November, 1974, scheduled the Gulf of Alaska for leasing earlier than any of the other lower-risk areas examined in the CEQ Study.
A draft “site-specific” EIS (EIS or Sale No. 39 EIS) focusing on this proposed sale in the GOA, was next prepared. The following steps were taken in the preparation of that EIS:
a. On November 27, 1974, notice of a call for nominations of tracts suitable for oil and gas leasing in the Northern Gulf of Alaska was published in the Federal Register..
b. In this same notice, Interior requested comments from all interested parties on possible oil and gas leasing in the general area of the call for nominations. Interior asked that such comments include, but need not be limited to, environmental, technical, and socioeconomic aspects of potential oil and gas leasing and development in the area.
c. After receipt of numerous nominations and comments pursuant to this notice, the BLM [Bureau of Land Management] Alaska OCS Office and the U.S. Geological Survey (USGS) field office prepared joint tentative tract recommendations.
d. On March 20, 1975, the Secretary publicly announced that certain identified tracts, totaling 3.5 million acres, had been tentatively selected for further environmental study to be made in connection with the Department’s on-going consideration of a possible OCS lease sale offshore the Northern Gulf of Alaska in 1975.
e. Studies and analyses of potential oil and gas leasing and development of the proposed sale area were undertaken to provide an information base for a draft EIS. BLM’s Alaska OCS Office then prepared a draft EIS for proposed lease sale No. 39, which was submitted to the Council on Environmental Quality (CEQ) and made available to federal, state, and local agencies and interested members of the public on June 27, 1975..
f. In the course of its consideration of the OCS oil and gas lease sale proposal in the Northern Gulf of Alaska, the Department involved the State of Alaska in the various procedures followed by the Department in considering that lease sale. State and local agencies and citizens groups were invited to designate experts to work with BLM’s staff in the preparation of the draft EIS for the lease sale.
Findings of Fact by the District Court, J.A. at 44 — 45.
Public hearings were held on the draft site-specific EIS in Anchorage, Alaska. Government officials, environmental groups, and members of the public were invited to testify and to submit written comments on the draft EIS. Pursuant to this request, comments were received from a number of departments of the State of Alaska. Id. at 46. In its comments on the draft, EPA again stressed the lack of reliable information on the environmental hazards that would be encountered in the GOA, and urged that exploration and development in that region be delayed:
In view of the substantial environmental risks of proceeding at this time with the proposed sale, we strongly urge the Department to more actively consider delaying the proposed action while, at the same time pursuing the biological baseline studies and other studies which would provide a better information base for designing and implementing technology to mitigate the environmental hazards. We believe the sale should be delayed at least until the biological baseline work is completed....
The baseline studies referred to by EPA include, in particular, a major environmental research program undertaken in the GOA in mid-1974 by the National Oceanic and Atmospheric Administration (NOAA), in cooperation with BLM. This research program was described by CEQ as “[t]he principal vehicle for improved understanding of frontier OCS regions...” J.A. at 241. The study was designed as a four-to-five year research effort. J.A. at 381. However, at the time the Secretary made his decision to proceed with Sale No. 39, there had been only one full year of field research. J.A. at 241. Accordingly, the data available from the program at that time were “quite limited.” Id. CEQ indicated in January, 1976, that “the environmental/oceanographic data base for tract selection and operations regulation can be substantially improved by at least two more years of work under” the NOAA program. Id. Interior indicated in the EIS that “[a] delay of approximately lh to IV2 years would allow for completion of all preoperational phases of the environmental studies program.... A delay of up to 4 years would allow for completion of the longer term or ‘ecological relationship’ studies.” EIS, Vol. II, at 678.
Following the hearings and comment period, the Department revised the site-specific draft EIS in light of the comments received. J.A. at 46.
On November 18, 1975, the Bureau of Land Management (BLM) published a final EIS for the lease sale in the Northern Gulf of Alaska. In addition to the final EIS, BLM prepared a Program Decision Option Document (PDOD) for the lease sale, which discussed the major issues to be considered by the Secretary and identified the alternative courses of action that were available. The PDOD explained the advantages and disadvantages of several alternatives, which ranged from a lease sale of 1.8 million acres to more restricted lease sales to no sales at all. Id. at 47.
The final EIS for the lease sale makes note of EPA’s recommendation that the sale be delayed, and includes a brief discussion of the “alternative” of delaying the sale “pending completion of studies in the Northern Gulf of Alaska concerning the potential environmental impacts of offshore minerals development.” This final EIS was once again submitted to EPA, pursuant to § 309 of the Clean Air Act Amendments of 1970, 42 U.S.C. § 1857h — 7. That provision requires the Administrator of EPA to “review and comment in writing on the environmental impact” of federal actions to which NEPA applies. If the Administrator should determine that a proposed action is environmentally “unsatisfactory,” § 309(b) requires him to publish his determination and refer the matter to CEQ. On December 18, the Administrator informed the Secretary that EPA had
concluded that the action as proposed and presently scheduled is unsatisfactory from the standpoint of environmental quality based on its potentially harmful effects to the environment and on the fact that potential operational and technical safeguards which might be utilized may not adequately protect the environment from hazards arising from this action.
EPA again argued that the sale should be delayed in order to allow, inter alia, the completion of the environmental studies. Accordingly, under the terms of § 309(b), the Administrator referred the question of Sale No. 39 to CEQ.
Following this § 309 referral, the Council, Interior, EPA, and other interested agencies engaged in an “intensive review of the objections raised by Administrator Train.. ” Based on this review, CEQ informed the Secretary that it agreed with EPA that “it would be most desirable, from an environmental point of view, to delay the sale.... ” However, while CEQ urged the Secretary to “give careful consideration to that opinion,” it also suggested an alternative, fallback position, in the event that the Secretary should decide that “a blanket delay of the sale is not in the national interest....” The Council acknowledged that it was the Secretary who had to make the “final decision” and who had to balance “the environmental benefits” of delay against “the costs of postponing potential oil and gas production and revenues.” But, if after conducting such a balancing, the Secretary concluded that some sale was required immediately, CEQ “strongly urge[d] that the sale be limited to those tracts that, relative to other tracts in the original proposal, appear to represent the lowest possible degree of risk of environmental damage.” Specifically, CEQ urged that any sale be restricted to “a contiguous block” of tracts “in the north-easternmost zone of the original sale proposal,” comprising a total of some.15 million acres. This area, in CEQ’s view, was both “highly promising in oil and gas potential and relatively low in vulnerability to environmental damage.”
The Secretary’s staff subsequently prepared a Status Report and Decision Paper on the CEQ recommendations, which served as a supplement to the PDOD. It contained both a discussion of the advantages and disadvantages of the CEQ recommendations and alternatives to them. J.A. at 48. Interior also prepared a third option paper called the Tract Selection Option Paper. This document supplemented the PDOD by posing additional options for tract offerings in the event the Secretary decided to proceed with the lease sale. The options included the recommendation of CEQ. Id.
Upon consideration of these materials and consultation with the CEQ, EPA, the National Oceanographic and Atmospheric Administration and the Federal Energy Administration, the Secretary concluded, on February 17, 1976, that sufficient information was available to identify and reduce environmental risks from exploration and production in the Sale No. 39 area, and thus decided to proceed with the sale.
On that date, the Secretary informed CEQ of his decision to proceed with the sale as scheduled. In response to the suggestions that the sale be delayed, the Secretary indicated that, in his “considered judgment,”
delays of. [several years] in the lease sale would not gain us enough to be worth the cost in postponement of development of the resources. I am convinced that we already know what the major hazards are in oil and gas development of the Gulf of Alaska; further studies will refine that knowledge, but they are unlikely to change it fundamentally. I am further convinced that the operating orders, safety requirements, and lease stipulations developed by the Bureau of Land Management and the U.S. Geological Survey will reduce those hazards to levels which are acceptable.
Although the Secretary indicated that he had decided to reduce the amount of acreage to be offered for leasing from the 1.8 million acres originally proposed to some 1.1 million acres, he rejected the CEQ suggestion of a sale restricted to.15 million acres of contiguous tracts in one limited area of the Gulf. The Secretary stated that the.7 million acres he had eliminated from the sale removed
by far the most risky tracts..., that the remaining overall probability of damaging accidents is low, and that the potential value to the Nation of discoveries in this area is very high. If we are to make sizeable discoveries, we must make sizeable acreage available for exploration. Unwarranted risks should not be taken, and in my judgment the tracts I have included in the offering can all be developed with a favorable balance of benefits to risks.
On February 25, 1976, CEQ sent to the Secretary its final evaluation of the sale decision. The Council indicated that it was “greatly disappointed” with the Secretary’s decision “to proceed with a sale of such magnitude and such wide dispersion of tracts.” Such a sale would, in its view, pose “unwarranted risks to the natural resources and environment of the northern Gulf of Alaska and to the communities bordering it;” accordingly, the council expressly affirmed EPA’s determination, made pursuant to § 309 of the Clean Air Act, that the sale was “environmentally unsatisfactory.” The Council argued that Interior had “consistently failed to recognize the truly unique environmental conditions of the Gulf of Alaska,” and it reiterated its view that “the information available simply does not justify” the Secretary’s decision:
[I]n our view, the OCS program for the Northern Gulf of Alaska has not progressed to the point where the information is adequate for making sound leasing decisions or conducting operations beyond the limited area we recommended and under the most tightly controlled conditions.
On April 6, 1976, after receipt of new data, the Secretary withdrew an additional 92,000 acres from the sale area, by deleting all tracts west of Kayak Island, which had been identified by CEQ as an area of particular environmental concern. The remaining 189 tracts, comprising approximately one million acres, were offered for sale on April 13, 1976. Of these 189 tracts, only 81 received bids. The Secretary then rejected five of those 81 bids and accepted the remaining high bids for 76 tracts. These tracts comprised approximately 410,000 acres. J.A. at 49.
II. THE ISSUES
A. The Alternative of Delay
Appellants make two related arguments with respect to the Secretary’s decision not to delay the sale. They argue, first, that the information available to the Secretary in April, 1976, was insufficient, as a matter of law, to permit a decision to proceed with the sale at that time. They argue, second, that even if this lack of information did not absolutely preclude a sale in April, 1976, the Secretary’s response to the suggestions that the sale be delayed was inadequate; they contend, in other words, that the analysis in the EIS of the “alternative of delay” was insufficient, and that the Secretary failed to articulate (either in the EIS or elsewhere) the reasons that led him to reject the advice of EPA, CEQ, and others.
We discuss each of these arguments in turn.
1.
The district court concluded that “[t]he information and the studies which were available to the Secretary were sufficient to permit the preparation of an EIS which meets the requirements of NEPA...” Conclusion of Law No. 7, J.A. at 56. Appellants strenuously disagree. They argue that even though the EIS may have been based on the best information available as of the date of its preparation, under NEPA the “best available information” may not be good enough. They contend that NEPA imposes on agencies affirmative information-gathering obligations; and until those obligations have been satisfactorily carried out — until, that is, sufficient data has been amassed “to provide a factual basis for responsible impact prediction or mitigation,” Appt.’s Br. at 31 — NEPA imposes an absolute bar to proceeding with a given project. Id. at 31-2.
Appellants conceded, of course, that these information-gathering obligations, like an agency’s other NEPA obligations, are necessarily bounded by a “rule of reason;” but they contend that Interior’s action here was clearly “unreasonable.” They agree that agencies need not “wait forever to fathom the unfathomable, or arrive at definitive answers on questions far beyond the existing state of scientific or technological ability.” Appt. Br. at 35. Where, however, the data deficiencies are substantial, and where the present level of scientific ability is adequate to cure those deficiencies within a reasonable period of time, appellants contend that those deficiencies must be rectified before the project may be allowed to proceed. Thus, in the present case, appellants argue that the Secretary really had no discretion to reject the suggestions of CEQ and others that the sale be delayed in order to allow further progress in the ongoing environmental research program. The data to be obtained from that additional research were, in appellants’ view, an essential prerequisite to the Secretary’s lease-sale decision.
As a preliminary matter, we note that NEPA does, unquestionably, impose on agencies an affirmative obligation to seek out information concerning the environmental consequences of proposed federal actions. Indeed, this is one of NEPA’s most important functions. As this court has held, “the basic thrust of an agency’s responsibilities under NEPA is to predict the environmental effects of proposed action before the action is taken and those effects fully known.” Scientists’ Institute for Public Information, Inc. v. AEC (SIPI), 156 U.S.App.D.C. 395, 408, 481 F.2d 1079, 1092 (1973). And prediction — or, at least, informed prediction — is only possible after an agency has conducted a thorough inquiry into all aspects of the contemplated project and the area to be affected.
Predictions, however, by their very nature, can never be perfect; and the information available to an agency could always be augmented. The question in each case is, “How_much information, is enough?” And that is not a question to which NEPA provides a clear, firm answer. Certainly, NEPA cannot be
read as a requirement that complete information concerning the environmental impact of a project must be obtained before action may be taken. If we were to impose a requirement that an impact statement can never be prepared until all relevant environmental effects were known, it is doubtful that any project could ever be initiated.
Some element of “speculation” is “implicit in NEPA.” And just as agencies may not be allowed “to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as ‘crystal ball inquiry,’ ” so also agencies may not be precluded from proceeding with particular projects merely because the environmental effects of that project remain to some extent speculative. NEPA simply does not specify the quantum of information that must be in the hands of a decision-maker before that decisionmaker may decide to proceed with a given project. Rather,
NEPA was intended to ensure that decisions about federal actions would be made only after responsible decisionmakers had fully adverted to the environmental consequences of the actions, and had decided that the public benefits flowing from the actions outweighed their environmental costs.
One of the costs that must be weighed by decisionmakers is the cost of uncertainty — i. e., the costs of proceeding without more and better information. Where that cost has been considered, and where the responsible decisionmaker has decided that it is outweighed by the benefits of proceeding with the project without further delay, the courts may not substitute their judgment
for that of the decisionmaker and insist that the project be delayed while more information is sought. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976).
We thus hold that the Secretary was not required, as a matter of law, to await the results of the ongoing studies before deciding to proceed with the lease sale. Even though the “alternative of delay” was vigorously advocated by CEQ, EPA, and others, it is the Secretary of the Interior who has been charged by Congress with the responsibility for deciding whether, and when, to lease portions of the OCS; in making those decisions, the Secretary did have the discretion to reject the advice that had been offered to him.
2.
While the Secretary was thus not required to accept the “alternative of delay,” he was required to give full and careful consideration to that alternative prior to reaching his decision. Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), specifies that an EIS must contain a “detailed statement” of “alternatives to the proposed action.” And § 102(2)(E) of the Act requires agencies to “study, develop, and describe appropriate alternatives to recommended courses of action....” As noted supra, the final Sale No. 39 EIS does make note of EPA’s recommendation that the sale be delayed, and includes a brief discussion of the “alternative of delay.” Appellants argue, however, that that discussion is insufficient to satisfy the requirements of NEPA.
As this court and others have frequently pointed out, NEPA requires agencies to engage in a “finely tuned and ‘systematic’ balancing analysis,” in which the environmental costs of proposed projects are compared to and balanced against their economic and other benefits. Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 146 U.S.App.D.C. 33, 37, 449 F.2d 1109, 1113 (1971). The requirement that agencies prepare “detailed” environmental impact statement aids this broader purpose in several ways. First, the statement aids the agency’s own decisionmaking process, by ensuring that the agency has before it “all possible approaches to a particular project. which would alter the environmental impact and the cost-benefit balance.” Id., 146 U.S.App.D.C. at 38, 449 F.2d at 1114. Moreover, the statement provides evidence that “the mandated decision making process has in fact taken place....” Id. Finally, and most importantly, the statement makes it possible for “those removed from the initial process” — in other agencies, in Congress, and in the public — “to evaluate and balance the factors on their own.” Id.; NRDC v. Morton, supra, 148 U.S.App.D.C. at 11, 458 F.2d at 833.
The “detailed statement” of “alternatives to the proposed action” called for by § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), has been aptly characterized as “the linchpin of the entire impact statement.” Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 697-8 (2d Cir. 1972); NRDC v. Callaway, 524 F.2d 79, 92-3 (2d Cir. 1975). This statement must not simply list possible alternatives; instead, it must contain a “detailed and careful analysis of the relative environmental merits and demerits of the proposed action and possible alternatives....” NRDC v. Callaway, supra at 92; NRDC v. Morton, supra, 148 U.S.App.D.C. at 12, 458 F.2d at 834. The CEQ’s Guidelines on the Preparation of Environmental Impact Statements indicate that the statement should include a “rigorous exploration and objective evaluation of the environmental impacts of all reasonable alternative actions,” including “the alternative of taking no action pending further study....” 40 C.F.R. § 1500.8(4). The statement’s analysis “should be sufficiently detailed to reveal the agency’s comparative evaluation of the environmental benefits, costs and risks of the proposed action and each reasonable alternative.” Id. The discussion of alternatives “must go beyond mere assertions” if it is to fulfill its vital role of “exposing the reasoning and data of the agency proposing the action to scrutiny by the public and by other branches of the government.” Callaway, supra at 93, 94; Silva v. Lynn, 482 F.2d 1282, 1286-7 (1st Cir. 1973). An agency may not, in other words, “keepO its thought processes under wraps.” Ely v. Velde, 451 F.2d 1130, (4th Cir. 1971).
The discussion of the “alternative of delay” in the Sale No. 39 EIS is brief — consisting of three pages out of 1700 in the final EIS. See EIS Vol. II at 676-79. The statement discusses the benefits of delay in general terms. It notes that “a delay of approximately lh to IV2 years would allow for completion of all preoperational phases of the environmental studies program in the northern Gulf of Alaska....” Id. at 678. And the statement concedes that “[t]he information obtained from the completion of these studies prior to holding the proposed sale would provide a greater degree of confidence than presently exists concerning the leasing of any given OCS area and the siting of offshore facilities, including pipelines, in relation to geologic, oceanographic, and biotic parameters.” Id. However, the statement contains no information whatsoever as to the costs of such a delay.
NEPA’s requirement that an agency discuss “alternatives to the proposed action” is subject to a “rule of reason,” and that rule of reason necessarily governs both which alternatives the agency must discuss, and the extent to which it must discuss them. Here the EIS does not even avert to the costs of delay in terms of lost oil production opportunities, and makes no attempt to quantify the benefits to be expected from delay. Nor can quantitative estimates of the costs and benefits of delay be found in any of the documents prepared by DOI after publication of the final EIS, including the Secretary’s letter of February 17, 1976 to the Chairman of the CEQ, informing him of the decision to proceed with the sale as scheduled.
The question is, was it reasonable to proceed without quantitative estimates? Appellants to not indicate how the Secretary could have made a quantitative estimate of benefits to be expected from delay. We can assume for discussion that the Interior Department had data that would permit some quantitative estimate of crude oil that might be available from the lease sites, and the time frame of delivery. There still remains the question whether and to what extent NEPA requires, in these circumstances, something in the nature of a quantitative cost-benefit analysis. Often such analyses are misleading, since the difficulty of assigning quantitative values to environmental considerations tends to minimize their significance. In the last analysis the decisionmaker is left with a comparison of non-commensurable entities — damage to the environment versus added energy resources. We recognize that it is a central purpose of NEPA to compel an agency to make such comparisons. Yet the agency retains, under NEPA, reasonable discretion to decide when it has sufficient information to choose intelligently between alternative courses of action that affect the environment. The Secretary’s letter to the chairman of CEQ stated that this was an “especially difficult instance of the problem of balancing two of the Nation’s highest priorities, energy supply and environmental protection” but that he had become convinced “that on balance it is in the National interest to move ahead with the lease sale.”
For the present, we find it unnecessary to decide whether the Secretary’s rejection of the alternative of delay represents a reasonable exercise of this discretion. The period of delay originally recommended by EPA and CEQ has by now very nearly elapsed. It would obviously be somewhat anomalous to set the sale aside now, so that the Secretary could reconsider whether, in early 1976, he should have postponed a sale decision until mid-1977. More importantly, however, although the Secretary decided not to delay a sale decision pending the results of the studies in the Gulf, those studies have been continuing. Accordingly, most, if not all, the data that CEQ considered necessary for the initial sale decision have by now presumably been gathered; and these data will obviously be available to the Secretary when he considers, on remand, whether to change the operating orders.
B. The Operating Orders
The OCS Lands Act, 43 U.S.C. § 1331 et seq., grants to the Secretary of the Interior broad responsibility for administering an oil and gas leasing program on the OCS. That responsibility has in turn been divided between two subdivisions of the Interior Department (subject, of course, to the Secretary’s ultimate supervisory authority). The Bureau of Land Management is charged with the primary responsibility for administering the actual leasing of particular tracts. See 43 C.F.R. § 3300 et seq.; see also Affidavit of Stanley Doremus, Deputy Assistant Secretary of the Interior for Program Development and Budget (Doremus Affidavit), J.A. at 649-650. It is thus BLM that conducted Lease Sale No. 39, and that authored the EIS challenged here. On the other hand, the United States Geological Survey (USGS) has the primary responsibility for supervising and regulating the lessees’ operations on the leased tracts. See 30 C.F.R. § 250.1 et seq. and EIS, Vol. II, at 553; see also EIS, Vol. Ill, at 164. In carrying out this supervisory authority, USGS both enforces the operating regulations set forth at 30 C.F.R. § 250.1 et seq., and promulgates detailed “operating orders” (hereinafter, Orders) for each region in which drilling operations are contemplated. These Orders govern the manner in which exploration and development may be carried out, and specify, inter alia, the safety and environmental standards that lessees will be required to meet. See 30 C.F.R. §§ 250.2(j); 250.11; 250.12(a). USGS published draft Orders for the Gulf of Alaska on January 6, 1975; these Orders were adopted, with some revisions, effective March 1, 1976.
The draft Orders are attached as an appendix to the EIS published November 18, 1975. The contents of the Orders is described briefly in a section of the EIS entitled “Mitigating Measures Included in the Proposed Action.” Appellants argue that more was required. They note that decisions regarding how OCS operations are to be conducted, which are incorporated in the Orders, may be at least as significant as decisions regarding whether to allow OCS development at all in a particular region. Appellants' Br. at 10. Accordingly, they contend that Interior was required to prepare a “detailed” evaluation of the environmental impact of the Orders, either in a separate EIS focusing on the Orders themselves, or as a part of the Sale No. 39 EIS. In particular, they argue that Interior was required to evaluate alternatives to those Orders that were actually adopted.
As a preliminary matter, we agree with the district court that the Secretary was not required to prepare a separate EIS on the Orders, and that “[i]t was within the discretion of the Secretary to consider the OCS Orders within the context of the EIS for Sale No. 39.” While the Orders may have considerable impact on the environment, that impact can arise only after a lease sale has been held and drilling operations have commenced under the terms of the Orders. The promulgation of the Orders cannot, by itself, affect the environment in any way. Cf. NRDC v. NRC, 178 U.S.App.D.C. 336, 356 n.57, 547 F.2d 633, 653 n.57 (1976), cert. granted sub nom. Vermont Yankee Nuclear Power Corp. v. NRDC, 429 U.S. 1090, 97 S.Ct. 1098, 51 L.Ed.2d 535 (1977). The Secretary was, of course, free to prepare a separate EIS on the Orders; and such a course might well have been desirable, since the Orders do extend to a much broader geographical area than any individual lease sale. Nonetheless, we cannot say that his decision to defer consideration of the impact of the Orders until a particular sale was contemplated was unreasonable.
While the Secretary could thus consider the impact of the Orders within the context of the Sale No. 39 EIS, the more important issue is whether the “consideration” given to the Orders in that EIS was adequate. We conclude that it was not. As noted supra, the EIS merely describes the Orders that had been proposed and adopted; there is no attempt to evaluate the environmental impact of those Orders, as opposed
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_casesource
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021
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
WILLIAMS et al. v. AUSTRIAN et al., TRUSTEES.
No. 850.
Argued April 10,11, 1947. —
Decided June 16, 1947.
Milton Pollack argued the cause for petitioners. With him on the brief were Emery H. Sykes, Horace R. Lamb, Lewis L. Delafield, John F. Dooling, Jr. and William Piel, Jr.
Carl J. Austrian argued the cause for respondents. With him on the brief were Saul J. Lance and Isadore H. Cohen.
Acting Solicitor General Washington, Roger S. Foster, Robert S. Rubin and Arnold R. Ginsburg filed a brief for the Securities and Exchange Commission, as amicus curiae, urging affirmance.
Mr. Chief Justice Vinson
delivered the opinion of the Court.
Section 2 (a) of the Bankruptcy Act confers upon all bankruptcy courts “such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in proceedings under this Act... to... (7) Cause the estates of bankrupts to be collected, reduced to money and distributed, and determine controversies in relation thereto, except as herein otherwise provided...” The exception has reference to § 23 (b), which requires that “Suits by the receiver and the trustee shall be brought or prosecuted only in the courts where the bankrupt might have brought or prosecuted them if proceedings under this Act had not been instituted, unless by consent of the defendant, except as provided in sections 60, 67, and 70 of this Act.” Congress, however, in the Chandler Act of 1938 declared the inapplicability of § 23 in reorganization proceedings under Chapter X; and it is upon the signifi-canee of this action to the jurisdiction of the federal courts that this case turns.
Respondents were appointed trustees for the Central States Electric Corporation, a Virginia Corporation in reorganization in the District Court of the United States for the Eastern District of Virginia. Following an investigation under § 167 of the’ Act, respondents were authorized to institute suit against petitioners, who are past and present officers and directors of the debtor and others having connection therewith. This suit was then filed against petitioners in the District Court of the United States for the Southern District of New York, alleging a conspiracy to misappropriate corporate assets and asking an accounting and other relief. There was no allegation of diversity and jurisdiction was rested upon "the Constitution of the United States (Article I, Section 8, Clause 4, and Article III, Section 2), the Act of Congress relating to Bankruptcies (U. S. Code Title 11), and... the provisions of Section 24 (1), (19) of the Judicial Code
The District Court dismissed for lack of jurisdiction; but the Circuit Court of Appeals reversed, holding that since the governing provisions of § 23, to which the “except" clause of § 2 (a) (7) refers, were suspended in Chapter X proceedings, jurisdiction to hear this plenary suit could be rested upon the general language of § 2. Other alleged grounds for jurisdiction were not considered. 159 F. 2d 67(1946).
1. Petitioners construe “proceedings under this Act,” within which the jurisdictional grant contained in § 2 is confined, as extending only to matters proper for summary disposition, and interpret the suspension of § 23 in Chapter X cases, without providing a substitute therefor, as removing from the Act an affirmative grant to federal courts of jurisdiction to hear plenary suits, rather than as an action aimed at expanding that jurisdiction. But these views rest, in the main, upon what we think is an erroneous appraisal of the history of §§ 2 and 23.
Section 2 is substantially identical with § 1 of the Bankruptcy Act of 1867, Babbitt v. Butcher, 216 U. S. 102, 107 (1910); and cases dealing with that Act, while recognizing that certain suits brought by bankruptcy assignees should proceed in plenary, rather than summary, fashion, held that § 1 gave jurisdiction to the bankruptcy courts to proceed in both ways. And although certain aspects of a bankruptcy proceeding could be handled only by the court in which the adjudication was had, § 1 conferred upon all ban&ptcy courts jurisdiction to hear plenary suits brought by bankruptcy assignees against adverse claimants or against debtors of the bankrupt.
Lathrop v. Drake, 91 U. S. 516 (1875), viewed the jurisdiction of the district courts in this manner and, we think, contrary to the statements later made in Bardes v. Hawarden Bank, 178 U. S. 524 (1900), and Schumacher v. Beeler, 293 U. S. 367 (1934), upon which petitioners rely, considered the jurisdiction of the district courts over plenary suits to rest upon § 1 of the 1867 Act.
Section 2 of the Bankruptcy Act of 1898 substantially repeated the broad grant of jurisdiction contained in § 1 of the 1867 Act. The bankruptcy courts were given “such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy proceedings....” But § 2 (7), while granting to all bankruptcy courts jurisdiction to collect and to hear controversies relating to the estate of the bankrupt, appended the words “except as herein otherwise provided.” The exception had reference to § 23, which, in the clause applicable to the district courts, provided that, unless by the consent of the defendant, suits by the bankruptcy trustee should be brought only in the courts where the bankrupt might have brought them if bankruptcy proceedings had not been instituted. In sharp contrast to the broad language of § 2 (7) and to the practice under the 1867 Act, § 23, in the interest of litigants and witnesses, deliberately directed to the state courts most of a bankruptcy trustee’s plenary suits.
Some lower federal courts, however, immediately held that § 23 did not apply to suits brought to recover certain transfers of the bankrupt’s property and, relying upon § 2, upheld the jurisdiction of federal courts. Bardes v. Hawarden Bank, supra, checked this trend and gave full scope to the language of § 23. Suits to recover fraudulent transfers, like other plenary suits, were to be tried in the state courts. It was in the Bardes case unnecessary to explore the scope of § 2; for whatever the grant of jurisdiction there made, the interpretation given § 23 would have required the result reached. In any event, the construction of § 2, standing alone and without regard for the influence of § 23, as being confined to summary matters rested to a great extent upon a reading of Lathrop v. Drake, supra, with which, as has been indicated, we cannot agree.
Congressional reaction to the Bardes case was almost immediate. Wishing to allow the trustee to resort to federal courts in recovering fraudulent transfers and preferences, Congress in 1903 created exceptions to § 23 in favor of suits brought under §§60 (b) and 67 (e); and, being doubly cautious, Congress also inserted in §§60 (b) and 67 (e) clauses giving any bankruptcy court jurisdiction to hear plenary suits brought under those sections. It was explained at the time by the House judiciary committee that § 2 (7) would probably have been ample basis for the jurisdiction of the bankruptcy courts, and that it was only to remove all doubt that §§ 60 (b) and 67 (e) had also been amended.
Where §§60 (b), 67 (e), and 70 (e) were not involved, the Bardes rule continued to be applied where plenary proceedings were required, as in cases relating to property adversely held and suits upon choses in action belonging to the bankrupt’s estate. Left for summary disposition under § 2 were those proceedings in which the controversy related to property in the possession or constructive possession of the court or to property held by those asserting no truly adverse claim.
From its inception, § 23 contained a clause seemingly mitigating the rigors of the jurisdictional requirements imposed. A trustee, “unless by consent of the proposed defendant,” could bring suit only in courts where the bankrupt could have sued. Subsequent to the Bardes case some lower federal courts held that, eyen with the consent of a defendant, some independent ground for federal jurisdiction must be present. The conflict was resolved in Schumacher v. Beeler, supra. It was held that in § 23 Congress had exercised its bankruptcy powers to confer upon federal courts jurisdiction conditioned upon a defendant’s consent and that, given consent, no independent ground for federal jurisdiction was required. The case turned upon the meaning of the consent clause in § 23. The remarks offered concerning § 2 were unnecessary and, in any event, were based upon the similar statements made in Bardes v. Hawarden Bank, supra.
The Beeler decision, like that in the Bardes case, does not direct a conclusion that § 2, in the absence of § 23, confers only a summary jurisdiction; for it was because of the limitations of § 23 that plenary suits had been excluded from the otherwise broad scope of § 2. Cases construing the latter in the presence of the overriding prohibitions of § 23 are not persuasive in a situation where, for the first time, § 23 has been declared inoperative.
2. To accept petitioner’s reading of § 2 would produce consequences affording peculiar explanations for the express elimination of § 23 in Chapter X cases. For one thing, there would be destroyed the consent basis for federal jurisdiction of plenary suits brought by a trustee; and, for another, diversity jurisdiction would depend upon the citizenship of the trustee rather than upon that of the debtor. The latter is a formal change of no obvious value, and the former puts a greater limitation upon the jurisdiction of a Chapter X court than has been placed upon an equity receivership, 77B, or ordinary bankruptcy court, a result in obvious contrast to discernible trends in reorganization law.
The committee reports and Congressional debates do not elaborate upon the decision to eliminate § 23, and the hearings reveal only that § 23 was one of several sections which the National Bankruptcy Conference desired to eliminate, and which might be held applicable if not expressly deleted. However, the action occurred in the process of developing a workable reorganization technique and should be viewed in that context. While an equity-receivership court had dependent jurisdiction, regardless of diversity or other independent grounds for federal jurisdiction, to hear plenary suits related to the estate of the debtor, under § 77B, which made reorganization of non-railroad corporations a part of the bankruptcy scheme, it was believed in some quarters that § 23 would have its traditional effect upon the jurisdiction of federal courts to hear plenary suits, even though the reorganization court was given the “powers” of an equity receivership court. Other commentators, thinking that § 77B should not provide a less efficient procedure than the equity receivership, considered § 23 inapplicable to 77B cases and regarded the reorganization courts as having jurisdiction to hear plenary suits. The controversy had not been settled when congressional committees were considering the bill which became the Chandler Act of 1938, and such a background for the suspension of § 23 in Chapter X cases obviously raises no inference of a desire to restrict, rather than to expand, the jurisdiction of the federal courts.
To interpret the elimination of § 23 in Chapter X cases as restricting the access of the trustee to the federal courts would not be in harmony with other provisions contemporaneously written into Chapter X and defining anew the position and functions of the reorganization trustee. The appointment of a disinterested trustee was made mandatory in appropriate cases, his qualifications were prescribed, and upon him were devolved functions aimed at eliminating the abuses of previous reorganization schemes. It was his duty to prepare the reorganization plan, and there were conferred upon him investigative powers and duties which not only contemplated the discovery of wrongs done the debtor by its former management, but also insured the “prosecution of all causes of action” which might “add to the assets of corporations in reorganization.” These provisions were “of paramount importance in the revision of section 77B.” and are hardly indicative of a congressional desire to restrict the trustee’s choice of a forum in which to litigate plenary suits. On the contrary, the conclusion more in accord with the purposes of Chapter X and with the pivotal position in which the' trustee was placed is that Congress intended by the elimination of § 23 to establish the jurisdiction of federal courts to hear plenary suits brought by a reorganization trustee, even though diversity or other usual ground for federal jurisdiction is lacking.
The decision of the Circuit Court of Appeals is in entire harmony with the foregoing considerations. The language of § 2, in its ordinary sense and no longer limited by § 23, easily comprehends the present type of suit; and so to hold directly and effectively subserves Congressional desires as revealed in the plain policy of Chapter X and in the express elimination of § 23, which has, since its enactment in 1898, been viewed as a sharp restriction upon the jurisdiction theretofore exercised by bankruptcy courts and as a strong preference for state courts. Since all reorganization courts are the objects of the jurisdiction conferred by § 2, the District Court for the Southern District of New York has jurisdiction to hear the present suit, which is brought by reorganization trustees and which charges misappropriation of the assets of a Chapter X debtor. “This seems to be the only logical conclusion to be derived from the fact that § 23 has no application under Chapter X.”
3. Respondents in the alternative argue that the equity-receivership powers conferred by § 115 include jurisdiction to hear plenary suits and that all reorganization courts may exercise the jurisdiction so conferred. Petitioners would, in any event, confine the effects of § 115 to the reorganization court in which the reorganization petition has been approved. We need not pass on these contentions; for, assuming that § 115 is jurisdictional and that it extends only to the primary court, jurisdiction in the present case may still be rested upon § 2. That section, in the absence of § 23, supports the jurisdiction of all district courts to hear plenary suits brought by a reorganization trustee, a result consistent with the aims of Chapter X and with the elimination of a section which is itself applicable to all district courts. Congress could have carved out of § 23 only a narrow exception in favor of the court in which the reorganization proceedings are pending and thereby left unchanged the jurisdiction of other courts over a trustee’s plenary suits. Limited exceptions are familiar in the history of § 23. But Congress went further and eliminated § 23 entirely in Chapter X proceedings. Because of the countrywide ramifications of corporate debtors placed in Chapter X reorganization, it is as usual as not for the trustee to resort to foreign jurisdictions for the disposition of plenary suits. Allowing the primary court to hear these suits will not change this situation, if it is true that the process of a reorganization court does not run nationwide in plenary cases. Congressional policy would receive only limited recogni- | tion if the suspension of § 23 is interpreted as allowing | the trustee access to only the appointing court and as - restricting his access to all other district courts.
4. Our holding is, of course, that Congress in 1938 extended the jurisdiction of the reorganization courts beyond that exercised by ordinary bankruptcy courts. Section 2 of the 1898 Act contained the broad language borrowed from § 1 of the Act of 1867. But the exception to § 2 (a) (7) acknowledged the overriding limitations of § 23, which was the embodiment of Congressional policy to exclude from the bankruptcy courts many of the trustee’s plenary suits. That same meaningful section was expressly eliminated in 1938 in the process of perfecting a chapter of the Bankruptcy Act dealing with the distinctive and special proceedings in corporate reorganizations. Cf. Continental Bank v. Rock Island R. Co., 294 U. S. 648, 676 (1935). This negation of long-standing policy should be given effect consistent with the aims of Chapter X and should not be hedged by judge-made principles not in accord with those aims. Congress need not document its specific actions in elaborate fashion in order to direct this Court’s attention to statutory policy and purpose. The failure to provide appropriate fanfare for the suspension of § 23 in Chapter X cases, and for the consequent expansion of federal jurisdiction, hardly invites our opinion as to the advisability of the action which Congress has taken. Judicial drives to limit the jurisdiction of federal courts should not lead to decision falling short of complete effectuation of statutory scheme. With the limitations of § 23 suspended, § 2 confers jurisdiction upon all reorganization courts to hear plenary suits brought by a Chapter X trustee.
5. Petitioners insist that certain consequences, which they term undesirable, will flow from this decision. It is said, for example, that the state courts will automatically be deprived of jurisdiction to hear a trustee’s plenary suits. But whether or not this and other suggested consequences will follow we leave for consideration in cases presenting such issues for decision.
The decision of the Circuit Court of Appeals is
Affirmed.
The Chandler Act of 1938, 52 Stat. 840, generally revised the Bankruptcy Act of 1898, 30 Stat. 544, as amended. Section 2 in its original form was substantially as set out in the text except that jurisdiction was conferred “in bankruptcy proceedings,” instead of “in proceedings under this Act.” The change in language was made in 1938.
Section 23 in full provides as follows: “JurisdictioN op United States and State Courts. — a. The United States district courts shall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings under this Act, between receivers and trustees as such and adverse claimants, concerning the property acquired or claimed by the receivers or trustees, in the same manner and to the same extent as though such proceedings had not been instituted and such controversies had been between the bankrupts and such adverse claimants.
“b. Suits by the receiver and the trustee shall be brought or prosecuted only in the courts where the bankrupt might have brought or prosecuted them if proceedings under this Act had not been instituted, unless by consent of the defendant, except as provided in sections 60, 67, and 70 of this Act.”
Section 23 (a), as originally enacted, related to the circuit courts, which were abolished in 1911 by § 289 of the Judicial Code. 36 Stat. 1167. Formal amendment to § 23 (a) was made in 1926. 44 Stat. 664.
Chapter X, containing the reorganization provisions, superseded § 77B. Section 102 of Chapter X provides: “The provisions of chapters I to VII, inclusive, of this Act shall, insofar as they are not inconsistent or in conflict with the provisions of this chapter, apply in proceedings under this chapter: Provided, however, That section 23, subdivisions h and n of section 57, section 64, and subdivision f of section 70, shall not apply in such proceedings unless an order shall be entered directing that bankruptcy be proceeded with pursuant to the provisions of chapters I to VII, inclusive. For the purposes of such application, provisions relating to 'bankrupts' shall be deemed to relate also to - 'debtors’, and ‘bankruptcy proceedings’ or ‘proceedings in bankruptcy’ shall be deemed to include proceedings under this chapter.”
The investigation was made pursuant to the decision in Committee for Holders v. Kent, 143 F. 2d 684 (1944).
Petitioners also based their motion to dismiss on the applicable statute of limitations; but the District Court indicated that if there had been jurisdiction to proceed, the motion to dismiss would otherwise have been denied, because of factual issues which first required determination:
“Proceedings under this chapter,” referred to in §§ 101 and 102 of Chapter X, is similarly construed.
According to this view there would, in Chapter X cases, be no provisions in the Bankruptcy Act conferring jurisdiction upon federal courts to hear plenary suits other than in §§ 60, 67, and 70. A reorganization trustee would be left, where he could, to take advantage of the ordinary grounds for federal jurisdiction.
14 Stat. 517. Section 1 gave the bankruptcy courts original jurisdiction “in all matters and proceedings in bankruptcy” which extended “to all cases and controversies arising between the bankrupt and any creditor or creditors who shall claim any debt or demand under the bankruptcy; to the collection of all the assets of the bankrupt...
Sherman v. Bingham, 21 Fed. Cas. 1270, No. 12,762 (1872); Goodall v. Tuttle, 10 Fed. Cas. 579, No. 5,533 (1872). The requirement of plenary proceedings, though not expressly appearing in the Act, was well recognized. Marshall v. Knox, 16 Wall. 551 (1872); Smith v. Mason, 14 Wall. 419 (1871).
Sherman v. Bingham, 21 Fed. Cas. 1270, No. 12,762 (1872); Goodall v. Tuttle, 10 Fed. Cas. 579, No. 5,533 (1872).
The references to the Act contained in the discussion of the jurisdiction of the district courts obviously referred to § 1; and Sherman v. Bingham, 21 Fed. Cas. 1270, No. 12,762 (1872), which expressly based upon § 1 the jurisdiction of the district courts to hear plenary suits, was cited with unreserved approval. The pertinent passage in the Lathrop case is as follows:
“The language conferring this jurisdiction of the district courts is very broad and general. It is, that they shall have original jurisdiction in their respective districts in all matters and proceedings in bankruptcy. The various branches of this jurisdiction are afterwards specified; resulting, however, in the two general classes before mentioned.... Each court within its own district may exercise the powers conferred; but those powers extend to all matters of bankruptcy, without limitation.... But the exclusion of other district courts from jurisdiction over these proceedings does not prevent them from exercising jurisdiction in matters growing out of or connected with that identical bankruptcy, so far as it does not trench upon or conflict with the jurisdiction of the court in which the case is pending. Proceedings ancillary to and in aid of the proceedings in bankruptcy may be necessary in other districts where the principal court cannot exercise jurisdiction; and it may be necessary for the assignee to institute suits in other districts for the recovery of assets of the bankrupt. That the courts of such other districts may exercise jurisdiction in such cases would seem to be the necessary result of the general jurisdiction conferred upon them, and is in harmony with the scope and design of the act. The State courts may undoubtedly be resorted to in cases of ordinary suits for the possession of property or the collection of debts; and it is not to be presumed that embarrassments would be encountered in those courts in the way of a prompt and fair administration of justice. But a uniform system of bankruptcy, national in its character, ought to be capable of execution in the national tribunals, without dependence upon those of the States in which it is possible that embarrassments might arise. The question has been quite fully and satisfactorily discussed by a member of this court in the first circuit, in the case of Shearman v. Bingham, 7 Bank. Reg. 490; and we concur in the opinion there expressed, that the several district courts have jurisdiction of suits brought by assignees appointed by other district courts in cases of bankruptcy.” 91 U. S. 516, 517-18.
Section 2 created the courts of bankruptcy and invested them “with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy proceedings... to... (7) cause the estates of bankrupts to be collected, reduced to money and distributed, and determine controversies in relation thereto, except as herein otherwise provided....”
First Nat. Bank v. Title and Trust Co., 198 U. S. 280, 289 (1905); Bryan v. Bernheimer, 181 U. S. 188, 194 (1901); Bardes v. Hawarden Bank, 178 U. S. 524, 535 (1900). Section 23 (b), as originally enacted, provided: “Suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt, whose estate is being administered by such trustee, might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant.”
“A construction of the statute of 1898 which would deprive the federal courts of jurisdiction of the suits in question [trustee’s suit to recover property] would make the act of 1898 unprecedented among bankrupt acts.” In re Hammond, 98 F. 845, 853 (1899).
When S. 1035, which eventually became the Act of 1898, reached the House, the judiciary committee recommended striking out all after the enacting clause and substituting the committee’s own bill. Section 23 of the House version, 31 Cong. Rec. 1781 (1898), survived both debate and conference action and became § 23 of the Act of 1898. In reviewing the bill preliminary to debate, the chairman of the House judiciary committee explained:
“The jurisdiction of State courts to try controversies between the trustees of bankrupt estates and parties claiming adverse interest is not in any way interfered with.
“Suits by the trustee shall only be brought in the courts where the bankrupt might have brought them' except for the misfortune of his bankruptcy, unless by the consent of the proposed defendant.
“Under the last bankruptcy law the litigation incident to the settlement of estates was conducted almost wholly in United States courts. The result was great inconvenience and much expense to a majority of the people interested in such litigation as principals, witnesses, and attorneys. Such will not be the effect under this bill. It is proper that such should not be the case, speaking generally, in behalf of the administration of justice.” 31 Cong. Rec. 1785 (1898).
In re Woodbury, 98 F. 833 (1900); In re Hammond, 98 F. 845 (1899); Louisville Trust Co. v. Marx, 98 F. 456 (1899).
32 Stat. 798-9.
Id. at 799-800. Congress likewise amended §70 (e), but
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
|
songer_circuit
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
John Daniel FERRELL, Plaintiff-Appellant, v. SELECTIVE SERVICE LOCAL BOARD NO. 38 OF WALNUT RIDGE, ARKANSAS, Col. Willard A. Hawkins, and Transfer Board of the New York City Headquarters, Selective Service System, Defendants-Appellees.
No. 383, Docket 35502.
United States Court of Appeals, Second Circuit.
Argued Oct. 29, 1970.
Decided Oct. 30, 1970.
Michael N. Pollet, New York City (Marvin M. Karpatkin, Karpatkin, Ohrenstein & Karpatkin, New York City, of counsel), for plaintiff-appellant.
Daniel H. Murphy, II, Asst. TJ. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for the Southern District of New York, of counsel), for defendantsappellees.
Before MOORE, FRIENDLY and ADAMS, Circuit Judges.
Of the Third Circuit, sitting by designation.
FRIENDLY, Circuit Judge:
Plaintiff, who will attain the age of 26 on November 15, 1970, held student deferments until he completed law school in June, 1969. He was then reclassified I-A and was ordered to report for a preinduction physical examination on July 23. He did not appeal his reclassification but obtained postponements of his physical examination until January 30, 1970. Having passed this, he was ordered by his local draft board in Arkansas on May 20, 1970, to report for induction on June 9.
On May 26 Ferrell, who had moved to New York City, applied to the board for conscientious objector classification, saying that as a result of thought during the last few days he had come to realize that participation in war or in noncombatant service would conflict with his deepest religious beliefs and training. The board mailed him SSS Form 150, which he filled out and returned. This recited long activity in Baptist church affairs and opposition to the Viet Nam war, said that his views with respect to conscientious objection theretofore “had not fully crystallized” but asserted that upon receiving the notice of induction his ideas “finally crystallized” and he realized he “really was a conscientious objector.” He submitted supporting letters from his wife and parents, which were attached to his affidavit in support for an injunction and one from a friend, which was not. The wife’s letter tracked the application but the parents’ letter, written from Arkansas, said that Ferrell’s objection to the draft “is not a new thing with him as he has told us many times that he did not want to kill people who were not attacking our homes.” The board granted him a 25 minute interview on July 21, with three members present. A summary shows that Ferrell responded in line with his Form 150 but that the board determined not to reopen the classification “feeling that his claim was not based on moral, religious, or ethical principles but rests instead on expediency. The expediency being to avoid the draft.” By letter dated July 22, 1970, the board’s executive secretary, who had attended the interview, advised Ferrell that the members had determined there was no change in his status resulting from circumstances over which he had no control and that his classification was not reopened.
A month later Ferrell began this action for an injunction in the District Court for the Southern District of New York and obtained a temporary restraining order against his induction. The Government contested the court’s power to grant relief in light of § 10(b) (3) of the Selective Service Act, 50 U.S.C. App. § 460(b) (3). Alternatively it urged denial on the merits. Judge Mansfield, in a well-considered opinion, sustained the latter position but did not discuss the former, very likely because, as will later be seen, the two issues have some tendency to merge. Upon plaintiff’s filing a notice of appeal, the district court granted a stay of induction pending application here, and this court granted a further stay. Plaintiff has been notified of a new order requiring him to report for induction on October 29.
The interpretation of § 10(b) (3) in light of applicable Supreme Court decisions has recently provoked a division of opinion within another panel of this court. Fein v. Selective Service System Local Board No. 7, 430 F.2d 376 (2 Cir., 1970). We need not traverse that territory again in this case, for two reasons. We are bound by the majority’s decision, and we do not believe any different result would be called for under Chief Judge Lumbard’s dissent. Ferrell argues that the local board’s action was “blatantly lawless,” see Oesterreich v. Selective Service Board, 393 U. S. 233, 238-239, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), because under Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970), the board was required to reopen since Ferrell had made a prima facie case. In the first place, this ignores that, as this court has pointed out in United States v. Jones, 433 F.2d 1292, 1293 n. 6 (2 Cir. 1970), the Supreme Court “was concerned there [in Mulloy] with reopenings prior to receipt of the induction notice.” Even if that should be wrong, as appellant claims —and in view of the care taken by the Court to make the limited character of its holding entirely clear, see 398 U.S. at 411 n. 1 and at 414-415 and n. 2, 90 S. Ct. 1766, we do not see how it can be — there would still remain the question whether the registrant had made a prima facie case. It would be open to fair debate whether Ferrell’s statements, largely unsupported by outside sources and seemingly contradicted with respect to late crystallization by his parents’ letter, would qualify even under that test. Finally even if the board had acted without full regard to the teachings of Mulloy, this would not be “blatantly lawless.” If any meaning is to be left to § 10(b) (3), it must cover determinations such as these.
If we should be in error about this, we would affirm the denial of injunctive relief on the merits. We have little to add on this score to Judge Mansfield’s opinion and what we have already said. Ferrell made no such impressive showing of an approach toward conscientious objection which reflection after the notice of induction might have matured into a full fledged objection as in Capobianco v. Laird, 424 F.2d 1304 (2 Cir. 1970), and Paszel v. Laird, 426 F.2d 1169 (2 Cir. 1970). The thinness of his own statements, the lack of substantial corroboration, the seeming contradiction of recent crystallization in his parents’ letter, and his demeanor at the hearing, see United States v. Simmons, 213 F.2d 901, 904 (7 Cir. 1954), rev’d on other grounds, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955), constituted a sufficient basis in fact for a finding that he had not sustained the burden of showing that he had become a conscientious objector after receiving his notice of induction. Although the board could have expressed its views with greater precision, the summary and the secretary’s letter leave no doubt that was what it meant.
We affirm the denial of a temporary injunction and vacate the stay of induction. The mandate shall issue forthwith.
. United States ex rel. Brown v. Resor, 429 F.2d 1340 (10 Cir. 1970), is not to the contrary. The court recognized the more stringent standards for reopening after notice of induction under “the exacting language of the regulations” but faulted the board because it had merely noted “No change warranted” without explaining why. This also was the decision in Scott v. Volatile, 431 F.2d 1132 (3 Cir. 1970).
. We thus have no occasion to consider the question which divided Judge Hays and Chief Judge Lumbard in Fein, and on which Judge Blumenfeld did not pass, namely, whether a bare allegation that more than $10,000 is in controversy meets the requirements of 28 U.S.O. § 1331 in cases of this sort.
. Ferrell’s brief on appeal contends that minutes of the local board, not contained in the record transmitted to us, disclose that it did not vote upon his request for reopening as 32 C.F.R. § 1604.52a(d) requires. No such claim was made in the comidaint or moving affidavit or in Ferrell’s brief in the district court, where the Government would have had an opportunity to answer. Since the summary of Ferrell’s interview indicates that the three members present concurred in the decision, this would appear to be at worst an informality affecting no substantial rights.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_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".
HALL v. COMMISSIONER OF INTERNAL REVENUE.
No. 4121.
Circuit Court of Appeals, Fourth Circuit.
April 6, 1937.
William D. Whitney, of New York City (Richard H. Wilmer, of Washington, D. C., and George G. Tyler and Cravath, De-Gersdorff, Swaine & Wood, all of New York City, on the brief), for petitioner.
John J. Pringle, Jr., Sp. Asst, to Atty. Gen. (Robert H. Jackson, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for respondent.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
PARKER, Circuit Judge.
This is a petition to review a decision of the Board of Tax Appeals; and the question involved is whether a payment of $50,-000 made to taxpayer was a gift or additional compensation for services rendered. Taxpayer is a patent attorney who over a period of years had rendered services to the Universal Oil Products Company, a corporation whose chief property, consisted of certain patents and patent rights. In 1931 the stockholders of that corporation sold their stock for $25,000,000 to the United Gasoline Corporation. Shortly prior to the transfer, however, and in accordance with the terms of sale, the Universal Oil Products Company transferred liquid assets to the value of $4,100,000 to the Unopco Company, a corporation whose stock was held by the stockholders of Universal in the same proportion in which they held the stock of the latter corporation. Within a few days after the sale and transfer, the $50,000 in question was paid to taxpayer by the Unopco Company pursuant to resolutions of its directors and stockholders appropriating $607,500 to be distributed as a “bonus” to sixty-four former and present employees, attorneys, and experts of Universal “in recognition of the valuable and loyal services of said employees, attorneys and experts” to Universal, in sitch amounts to each employee, attorney, and expert as the board of directors of Unopco should determine.
The foregoing resolutions of the directors and stockholders of Unopco were adopted pursuant to a suggestion made at a meeting of those who had been stockholders of Universal and were then stockholders of Unopco, to the effect that they show their appreciation of the loyalty and support of some of the employees of Universal by making them a “gift” or “honorarium”; and when checks were delivered to those to whom the directors determined that distribution should be made, the recipients thereof were notified that the amounts thus received were gifts or gratuities and were not subject to income tax. It appears that no claim was made, either by Unopco or Universal, for any deduction for income tax purposes on account of the distribution made pursuant to the resolutions, and that no return of same a's income was made by any of the recipients.
The Board of Tax Appeals held that the payments made pursuant to the resolution were additional compensation in consideration of services rendered to Universal, and not tax free gifts.-B.T.A.-. Its decision has been affirmed by the Circuit Courts of Appeals of the First and Second Circuits, one judge dissenting in each case, on the hearing of petitions for review filed on behalf of the estate of William H. Walker, and by Arthur G. Bogardus, Walker, and Bogardus having received the sum of $10,000 each from Unopco pursuant to the resolutions to which we have referred. Walker v. Com’r (C.C.A.lst) 88 F.(2d) 61; Bogardus v. Helvering (C.C.A.2d) 88 F. (2d) 646.
We think that the finding of the Board is amply supported by the testimony. The stockholders of Unopco were the same persons who had been stockholders in Universal when the persons to whom payments were made rendered services to that corporation, and they held the same proportionate interests in the stock of Unopco that they had held in the stock of Universal. The assets of Unopco had been transferred to it by Universal, and the payments made from these assets were not essentially different in character from what they would have been if they had been made from Universal’s assets before the transfer of the stock. In other words, Universal had niade large profits while in the hands of the original stockholders, in part, we may assume, as a result of the services of those to whom the payments in question were made; those who had profited felt that’ additional compensation should be paid to those who had served the corporation in the making of the profits; and such additional compensation did not lose its character as such merely because it was paid by a corporation owned by the original stockholders of Universal to which a part of the assets of that corporation had been transferred, instead of being paid by Universal itself. If the payments had been made by Universal before the transfer to Unopco, the assets transferred to the latter corporation would have been less by the amount of the payments; and we cannot see that it makes any difference that they were made from 'the assets of Unopco after the transfer instead of from the assets of Universal beforehand. Where motive and intent are determining factors, we should look to the substance of transactions and not to the form in which the parties have clothed them.
The case is not different in principle from Bass v. Hawley (C.C.A.5th) 62 F. (2d) 721, 723, where the additional compensation there in question was paid by a holding company of the employing corporation, and where in holding that the payment thus received was not to be treated as a gift but as taxable income the Circuit Court of Appeals of the Fifth Circuit, speaking through Judge Sibley, said:
“Again it is objected that the employer was not the Holding Company or its stockholders, but was the Railroad Company, and that the Railroad Company alone could make additional compensation; that a voluntary payment by any one else is necessarily a gift. The objection would have force where the third person had no interest in the employment and no cause to feel obligated to compensate the service. But in this case although the stockholders authorized the payment, it was made out of funds really belonging to the Holding Company as the proceeds of the sale of its assets, and the Holding Company was the sole owner of the Railroad Company. If the additional compensation was fairly due, and should have been paid out of the Railroad Company’s assets, it would have come to the same thing in settling with the Southern Pacific Company. The situation produced by the sale made it inevitable that whatever was paid should eventually be the loss of the stockholders. In determining the incidence of taxation, corporate organization of taxpayers is not ordinarily to be disregarded. Burnet, Commissioner, v. Commonwealth Improvement Co. [287 U.S. 41S], 53 S.Ct. 198, 77 L.Ed. [399]; Burnet, Commissioner, v. Clark [287 U.S. 410], 53 S.Ct. 207, 77 L.Ed. [397], decided December 12, 1932; Planters’ Cotton Oil Co. v. Hopkins, Collector (C.C.A.) 53 F.(2d) 825. But in a case like this where neither corporation nor stockholder is the taxpayer, and motive and intent is the question, the substance of the matter should be looked to.”
Another case applying the same .principle in the case of additional compensation paid by a holding company is Schumacher v. United States (Ct.Cl.) 55 F.(2d) 1007, 1011, where the court said:
“It is immaterial that the payment received by the plaintiff was made by the holding company rather than by the company for which he had rendered services. The entire capital stock of the railroad company was owned by the holding company. The economic interests of the two companies were identical. The purchase price received from the sale of the railroad company went to the holding company. That the money received by the plaintiff was not paid directly by the railroad company but was paid by the stockholder’s committee of the holding company does not change the essential character of the transaction, and make a gift out of what was intended to be, and in fact was, additional compensation for services rendered.”
When the complication introduced by the fact that the payment was made by Unopco instead of by Universal is thus resolved, the case presents no difficulty. What we have is clearly not a gift but additional compensation paid former employees and attorneys, differing in no material particular from ordinary bonus payments made on account of services. It is true that the evidence shows that the former president of Universal, who was also the president of Unopco, introduced the subject of making the payments at a meeting of the former stockholders of Universal by way of a suggestion that the former employees be given a gift or honorarium, and that when the payments were made to the recipients they were advised that such payments were gifts not subject to income tax; but it also appears that the reason given by the president for making the “gifts” was the loyal services of the employees and the fact that the stockholders had profited so greatly therefrom. His proposal and the reaction of the stockholders thereto is thus described in the record by one who was present at the meeting, viz.: “We had reason to congratulate ourselves on our very great good fortune in this company which started with nothing, to all intents and purposes, and had been built up in this phenomenal way; and we had all profited very largely; and during these years while we were struggling and moving forward, we had had the loyal support of a number of employees most particularly, and he thought it would be a nice and generous thing for us to show our appreciation and to remember them in the form of a gift or honorarium; and he suggested that that be considered; and all of the stockholders acquiesced and were glad to do it; and the result was that it was understood that we would come forward and make these presents or gifts to these employees that were to be slated for it.” In other words, the stockholders were cutting a larger melon than they had anticipated and felt that certain faithful employees who had contributed greatly to its growth should be given a larger share than had theretofore been allotted them. That the stockholders understood .and intended that the payments should be additional compensation for services rendered appears from the face of the resolution authorizing them, which is as follows :
“That the sum of Six Hundred Seven Thousand Five Hundred Dollars ($607,-500.) be appropriated, paid and distributed as a bonus to sixty-four (64) former and present employes, attorneys and experts of Universal Oil Products Company (the corporation of that name referred to in the meeting of this Corporation held on the fifth and sixth days of January, 1931), in recognition of the valuable and loyal services of said employees, attorneys and experts to said Universal Oil Products Company; such sum to be distributed among said sixty-four (64) employees, attorneys and experts in such amounts to each employee, attorney and expert as the Board of Directors of this corporation shall determine.” (Italics ours.)
The case falls squarely within the principle laid down by us in Noel v. Parrott (C.C.A.4th) 15 F. (2d) 669, 671. The distributions were made, not without consideration, but in consideration of services rendered in the past. That there was no obligation on the part of either Universal or Unopco to make the additional distribution is immaterial. “The payment for services, even though entirely voluntary, was nevertheless compensation within the statute.” Old Colony Trust Co. v. Com’r of Int. Rev., 279 U.S. 716, 724, 730, 49 S.Ct. 499, 504, 73 L.Ed. 918, approving Noel v. Parrott, supra. As pointed out in Bass v. Hawley, supra, cases to the contrary, some of which are relied on by the petitioner here, are without even persuasive force since the decisions of the Supreme Court in the Old Colony Case, supra, and Lucas v. Ox Fibre Brush Co., 281 U.S. 115, 50 S.Ct. 273, 74 L.Ed. 733, in the latter of which it was held that additional compensation, reasonable in amount, could be claimed as a deduction by the corporation paying it, even though there was no obligation to pay same. See, also, Botchford v. Com’r (C.C.A.9th) 81 F.(2d) 914; Levey v. Helvering, 62 App. D.C. 354, 68 F.(2d) 401; Fisher v. Com’r (C.C.A.2d) 59 F.(2d) 192; Weagant v. Bowers (C.C.A.2d) 57 F.(2d) 679.
While for the above reasons we approve of the conclusion reached by the Board of Tax Appeals, we think that, as there was unquestionably substantial evidence supporting the conclusion, we are bound by it in any event. Elmhurst Cemetery Co. v. Commissioner (U.S.) 57 S.Ct. 324, 81 L.Ed.-; Lougee v. Commissioner (C.C.A.1st) 63 F.(2d) 112; Walker v. Commissioner, supra; Bogardus v. Helvering, supra.
For the reasons stated, the decision of the Board of Tax Appeals will be affirmed.
Affirmed.
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_genresp2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
DREW BROWN LIMITED, Plaintiff, Appellant, v. JOSEPH RUGO, INC., et al., Defendants, Appellees.
No. 7713.
United States Court of Appeals, First Circuit.
Jan. 12, 1971.
Thomas F. Needham, Bangor, Me., with whom Stearns, Finnegan & Need-ham, Bangor, Me., was on the brief, for appellant.
John W. Philbrick, Portland, Me., with whom Howard H. Dana, Jr., and Verill, Dana, Philbrick, Putnam & Williamson, Portland, Me., were on the brief, for appellees.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
In October 1966, defendant, Joseph Rugo, Inc., a Massachusetts general contractor, entered into an agreement with Husson College, Bangor, Maine, for the construction of six campus buildings. The contract with the college was to be fully performed by April 9, 1968. On November 28, 1966, plaintiff, Drew Brown Limited (Brown), a Canadian corporation, subcontracted with Rugo to furnish and erect all the reinforcing steel required for the project at $240 a ton.* The subcontract provided that Brown was to submit a progress estimate by the sixth day of each month indicating the work it had completed by the end of the previous month. Rugo would then pay Brown “this estimate less a deduction for all previous payments and less a ten percent (10%) reserve.” Each monthly payment became due and payable no later then the twenty-fifth day of the month that the estimate was submitted. The reserve was payable on the thirtieth day of the month after the subcontract was completed.
Between November 1966 and May 31, 1968, Brown delivered 814 tons of reinforcing steel to the job site, of which it erected 777 tons. Pursuant to a collateral agreement between the parties, Rugo erected 27 tons between January 31 and May 1, 1968. On May 31, 1968, before the subcontract was fully completed, Brown quit the job, claiming that Rugo had breached the subcontract. Up to that point, Brown had billed Rugo $198,163.05 for the 814 tons, plus authorized extras, although under an accurate estimate it should only have billed for the 777 tons delivered and erected. Rugo had paid Brown a total of $170,-600.90, withholding the ten percent reserve ($19,816.30). The unpaid difference of somewhat less than $8,000 was one of the reasons cited by Brown for its repudiation of the contract.
From the inception of its work, Brown continuously requested that Rugo furnish an advance schedule or schedules for the performance of Brown’s work. Brown felt that it needed such scheduling in order to arrange the material at the job site and adjust the size of its crew to the construction plan. But no such schedule was ever supplied. When the completion deadline of April 9, 1968, had passed, Brown wrote to Rugo stating that it no longer felt bound by the subcontract. It further stated that the long overdue back balance ($7,969.42) alone gave it every right to terminate the contract. However, at Brown’s request, the parties met on May 14, 1968. At this meeting Brown offered a novation of the subcontract so that it could complete the reinforcing steel work and confirmed this proposal by letter dated May 21, 1968. Not having received a reply, Brown then wrote to Rugo,
“As we have not had a reply to our proposal presented to you on May 14th, 1968 and our letter of May 21st, 1968, you leave us no other alternative but to remove our personnel from the project, as of Friday, May 31st, 1968.
“In spite of your promises, our long overdue account amounting to $7,969.-42 has not been paid, therefore, we consider our contract with you to be terminated.”
After Brown left the project, Rugo completed Brown’s work at a cost of some $31,000.
Brown bought this diversity suit against Rugo to collect the balance of $27,562.15 allegedly due on the subcontract. Rugo counterclaimed for $35,000 damages sustained by reason of Brown’s failure to complete its subcontract. The cage was tried to the district court sitting without a jury. The court found that Rugo did not breach the subcontract; that Brown’s reasons for quitting the job were insufficient to justify its termination; and that Brown was liable to Rugo for $63.03 on its counterclaim. Brown appealed.
In this court Brown contends that Rugo’s failure to coordinate and schedule the work entitled Brown to treat the subcontract as terminated and recover the unpaid balance thereof. In support of this contention it argues (1) that time was of the essence as regards the performance of both Rugo and Brown, and (2) that Rugo as general contractor was responsible for the overall direction of the work. Accordingly, Brown concludes that Rugo had a duty to exercise some overt action such as scheduling so that Brown would have a better chance to complete its work by the April 9 deadline. But this argument assumes too much. While time was of the essence with respect to Rugo’s obligations to Husson College, this right did not extend to a subcontractor. Moreover, Rugo’s failure to prosecute the work did not make Brown liable to Hus-son College for such delay. Nor did Rugo’s responsibilities to Brown as enumerated in the subcontract include the advance scheduling of work for the latter’s convenience. Furthermore, Brown was unable to prove that scheduling was a custom of the trade. While we might agree that Rugo’s failure to provide such scheduling was ungenerous, the irritation to Brown caused by such failure was not a breach of the subcontract. Cf. Brunswick Diggers, Inc. v. Anthony Grace and Sons, Inc., 159 Me. 21, 25, 187 A.2d 391, 393 (1963); accord, Godburn v. Meserve, 130 Conn. 723, 37 A.2d 235 (1944). Moreover, it was specifically provided in the subcontract that Brown was to see the plans and specifications for the buildings, and, in signing the subcontract, Brown agreed that it had reviewed those plans and familiarized itself “with the conditions under which said work is to be performed.” Brown inserted many amendments in the subcontract, and it seems to us that, if it felt that schedules were that important, it should have added a clause requiring the same.
The district court found that Brown terminated its subcontract “because of Rugo’s failure to agree to revised terms for completing the contract which had been proposed by Drew Brown and because of Rugo’s failure to pay an outstanding balance of $7,969.42, against which Rugo was claiming back charges of $8,504.16.” The court further found that Brown’s termination was unjustified. In this appeal Brown no longer claims that it could terminate because Rugo failed to renegotiate the contract; Rugo had no duty to do so, in any event. Brunswick Diggers, supra, 159 Me. at 29, 187 A.2d at 395. Brown does contend, however, that it was entitled to terminate the work for Rugo’s failure to make payments as required by the subcontract. In the circumstances of this case, we must disagree. First of all, we note that, prior to Brown’s termination, the parties had entered into a collateral agreement whereby Rugo would erect some of the steel and Brown would reimburse Rugo for this expense. On May 31, 1968, Brown knew that it owed Rugo for at least nine tons of steel erected by Rugo under the collateral agreement although it disputed the amount owed. Secondly, Brown billed Rugo for 814 tons of steel estimated as delivered and erected, although in fact Brown never erected more than 777 tons during the whole job. Finally, Brown brought its men back to work on the site at a time when it claimed Rugo was in arrears. This shows that the lack of payment was not hampering Brown in the fulfillment of its contract. Taking these circumstances into account, in our opinion Brown had no right to terminate the contract over such a collateral issue. Wilson v. Wilson, 157 Me. 119, 130, 170 A.2d 679, 685 (1961); Clifford L. Swan Co. v. Dean, 151 Me. 359, 362, 118 A.2d 890, 892 (1955); Wright v. Haskell, 45 Me. 489, 492 (1858); Restatement, Contracts §§ 274-275, 397 (1932); see also Lynch v. Stebbins, 127 Me. 203, 206, 142 A. 735, 736 (1928); 6 Corbin, Contracts § 1253, at 10-11 (1962).
We conclude, therefore, that the district court did not err in holding that Brown’s termination of the subcontract was unjustified and that Rugo could counterclaim for damages for its breach.
Affirmed.
., The codefendant, Maryland Casualty I Company, is surety on the payment bond furnished by Rugo to Husson College.
. The exact amount of reinforcing steel required was not set forth in the subcontract, but the price of $240 a ton was conditioned on a minimum of 896 tons being supplied. In the event the total tonnage required was less than said amount, a deficiency payment of $20 per ton was to be made to Brown for the difference between 896 tons and the lower amount.
. During this period Brown’s work crew was not on the job site. They returned to the job between May 3 and May 31, 1968.
. In May 1968 Brown claimed that $7,-969.42 of its bill had been due and owing since December 1967 and that the only amount Rugo had a right to withhold was the ten percent reserve.
. Brown stated that this proposal “is the basis of our completing the placing of the reinforcing steel on the Husson College project as of this date.”
. In its complaint Brown also complained that it was entitled to additional damages of $71,944.80 for Rugo’s failure to schedule the work properly. The district court dismissed this claim at the conclusion of plaintiff’s case for failure to show a breach by Rugo or damages ■ suffered by Brown. ¡ Fed.R.Civ.P. 41(b).
. Brown argues on appeal that the terms of the general contract were “incorporated” into the subcontract. To the extent that this is so, certainly it was not intended that Rugo would be responsible to Brown for deadlines which were set for the benefit of Husson College. Moreover, Brown was obligated to “carry to completion the work undertaken by the agreement as the progress of the work requires.” The fact that the April 9 deadline .had passed added nothing to Brown’s rights.
. See, e. g., Joseph Lande & Son v. Wellsco Realty, 131 N.J.L. 191, 197, 34 A.2d 418, 422 (1943) ; Cox v. Curnutt, 271 P.2d 342, 344 (Okl.1954).
. The district court found that Brown actually owed Rugo for erecting 27 tons under the collateral agreement and approved the lump sum of Rugo’s cost estimates for the steel erected both before and after Brown quit the job. Rugo estimated the erection of the 27 tons at $8,-780.48, although in the May 14th negotiations with Brown it claimed only $8,-504.16.
. We note that neither party objected to the calculation of damages in the counterclaim.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_appel1_7_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Charles D. NYMAN, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare, Appellee.
No. 10150.
United States Court of Appeals Fourth Circuit
Argued Jan. 4, 1966.
Decided Jan. 10, 1966.
James W. Harman, Jr., Tazewell, Va., for appellant.
Harvey L. Zuckman, Attorney, Department of Justice (John W. Douglas, Asst. Atty. Gen., and Kathryn H. Baldwin and Robert J. Vollen, Attorneys, Department of Justice, and Thomas B. Mason, U. S. Atty., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and BRYAN and J. SPENCER BELL, Circuit Judges.
PER CURIAM:
We have examined the record in this case. We find the evidence sufficient to support the Secretary's finding that the claimant was not disabled within the critical period of this application. The summary judgment of the district court is affirmed.
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_state
|
26
|
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".
SUMMERS v. TRAVELERS INS. CO. et al.
No. 11533.
Circuit Court of Appeals, Eighth Circuit.
Feb. 28, 1940.
R. K. Schurr, of St. Louis, Mo. (God-frey, Anderson, Schurr & Taylor, of St. Louis, Mo., on the brief), for appellant.
James C. Jones, Jr., of St. Louis, Mo. (William G. O'Donnell, James C. Jones, and Jones, Hocker, Gladney & Grand, all of St. Louis, Mo., on the brief), for appellees.
Before GARDNER and WOODROUGH, Circuit Judges, and MOORE, District Judge.
GARDNER, Circuit Judge.
This was a proceeding brought by the ap-pellees, as plaintiffs below, against Christopher F. Callahan and Robert E. Summers as defendants, seeking an adjudication that a public liability and property damage policy of insurance issued by them to Christopher F. Callahan, in which they agreed, among other things, and subject to the terms and conditions therein contained, to pay on behalf of the insured, within limits specified, all sums which the insured should become obligated to pay by reason of the liability imposed upon him by law for damages because of bodily injuries at any time resulting therefrom sustained by any person, caused by accident occurring between July 24, 1937, and July 24, 1938, and arising out of the ownership, maintenance and use of a Pontiac coupe, 1935 model, owned by said insured, had been cancelled.
Under the issues as framed, the question for determination by the lower court was whether the policy had been cancelled prior to the 25th of June, 1938, at which time the insured, while operating the automobile covered by the policy, struck and injured the defendant Robert E. Summers. The lower court held that the policy had been cancelled prior to that date, and entered judgment enjoining the defendants from asserting any claim against the plaintiffs thereunder. The insured has not appealed but the defendant Summers, who claims the right to recover damages against the insured by reason of the injuries received, prosecutes this appeal.
The policy contains provision as follows: “This policy may be cancelled by the Company by mailing written notice to the named insured at the address shown in this policy stating when, not less than five days thereafter, such cancellation shall be effective, and upon demand the Company shall refund the excess of premium paid by such insured above the pro rata premium for the expired term. The mailing of notice, as aforesaid, shall be sufficient proof of notice and the insurance under this policy, as aforesaid, shall end on the effective date and hour of cancellation stated in the notice.”
On the 21st of February, 1938, plaintiffs mailed to the insured, at his address, a written notice stating that his policy was can-celled in accordance with its terms, and that such cancellation would become effective on March 1, 1938, which notice was received by the insured on or about the 21st of February, 1938. The unearned premium amounting to $27.78 was not tendered with the notice, but was paid to the insured upon his demand on or about July 18, 1938. It is the contention of the defendant Summers that a cancellation of the policy had not been effected prior to the date of his receiving his injuries because the unearned premium had not been actually returned to the insured. The plaintiffs. contend that since the policy expressly provided for its cancellation by the insured upon five days’ previous written notice to the insured and that upon the demand of the insured the company would return the unearned premium, the return of the unearned premium was not a condition precedent to the right of the insurer to cancel the policy and that there was a valid cancellation of the policy on March 1, 1938.
The policy also contained provision that: “If required by statute in the state where this policy is issued, refund of premium due to the named insured shall be tendered with notice of cancellation when the policy is cancelled by the company and refund of premium due to the named insured shall be made upon computation thereof when the policy is cancelled by the named insured.”
No statute of Missouri has been called to our attention, and we assume there is none, which requires the tender or refund of the unearned premium with notice of cancellation as a condition precedent to the right of cancellation. The parties were therefore at liberty to contract on this subject, and as there is no ambiguity in the contract, it must be given effect as written. As has often been said, “Courts are without authority to rewrite contracts.” Prange v. International Life Ins. Co., 329 Mo. 651, 46 S.W.2d 523, 526, 80 A.L.R. 950. The equitable rule with reference to rescission or cancellation of contracts, requiring a restoration of the status quo as a condition precedent to such rescission or cancellation, is not here applicable because the parties have a right by contract to determine the conditions upon which a cancellation may be had. Here, the parties have, by unambiguous language, stipulated how such cancellation shall be effected. The right to the unearned premium upon cancellation is a matter of concern only to the insured and in the absence of a statute providing otherwise the insured has a right to agree that such unearned premium shall be payable to him upon demand. That this was the intention of the parties can not be doubted. The policy contains provision that, “ * * * upon demand the Company shall refund the excess of premium paid by such insured above the pro rata premium for the expired term.”
The policy also contains provision that, “If required by statute in the state where the policy is issued, refund of premium due to the named insured shall be tendered with notice of cancellation * * *. ”
These provisions are entirely inconsistent with the thought that the cancellation of the policy could not be effected until and unless the unearned premium was first received by the insured. It would do violence to the elementary rules of construction to disregard them. As said by the Supreme Court of Missouri in Mathews v. Modern Woodmen of America, 236 Mo. 326, 139 S.W. 151, 155, Ann.Cas.1912D, 483, “The just interpretation of a contract arises on the whole subject-matter. It must be viewed from end to end and corner to corner, and all its terms pass in review; for one clause may modify, limit, or illuminate the other. Taking its words in their ordinary and usual meaning, no substantive clause must be allowed to perish by construction, unless insurmountable obstacles stand in the way of any other course.”
The return of the unearned premium was not under this contract of insur-anee a condition precedent to the company’s right to cancel. Webb v. Granite State Fire Ins. Co., 164 Mich. 139, 129 N.W. 19; Phoenix Mutual Fire Ins. Co. v. Brecheisen, 50 Ohio St. 542, 35 N.E. 53; Davidson v. German Ins. Co., 74 N.J.L. 487, 65 A. 996, 13 L.R.A.,N.S., 884, 12 Ann.Cas. 1065; Parsons v. Northwestern National Ins. Co., 133 Iowa 532, 110 N.W. 907; Mangrum v. Law Union Ins. Co., 172 Cal. 497, 157 P. 239, L.R.A.1916F, 440, Ann.Cas.1917B, 907; Smith v. Travelers Ins. Co., 163 Misc. 579, 296 N.Y.S. 365; Molyneaux v. Royal Exchange Assur. Co., 235 Mich. 678, 209 N.W. 803; Hastalis v. Firemen’s Ins. Co., 117 W.Va. 211, 185 S.E. 419; Schwarzschild & Sulzberger Co. v. Phoenix Ins. Co., 2 Cir., 124 F. 52; Damen & Jarvis Bldg. Corp. v. Mechanics’ Ins. Co., 7 Cir., 83 F.2d 793. The giving of notice under the provisions of the policy terminates the insurance. The unearned premium is to be returned to the insured as a consequence of cancellation and not as a condition precedent to such cancellation.
The Supreme Court of Missouri has had no occasion to construe the cancellation clause of a policy similar to the clause here involved, and no decision of that court is cited in appellant’s brief in support of his contention that a return of the unearned premium was a condition precedent to the right of cancellation. Certain decisions of the intermediate appellate courts of Missouri are cited, which it is contended support this view. We do not find it necessary to consider whether they lend support to appellant’s contention or not because we are bound by the decisions of the highest court of the state and not by the decisions of the intermediate courts. Hudson, et al. v. Maryland Casualty Co., 8 Cir., 22 F.2d 791; Federal Lead Co. v. Swyers, 8 Cir., 161 F. 687; Turner v. New York Life Ins. Co., 8 Cir., 100 F.2d 193.
The reasonableness of this clause of the insurance contract is not controlling, yet it is of passing interest. In Richards, The Law of Insurance, Sec. 271, the author, among other things, says: “A company has a fixed habitation and is solvent, else the insurance department would not allow it to transact business. Upon cancellation of a policy the insurer is as much entitled to a surrender of the policy as the fissured is to a return of the unearned premium. The insured are scattered all over the country. Sometimes several notices must be sent before the right party can be found. Legal tender can be made only in cash. Rates of premium are so low that no company can afford, in general, to make personal tender. It is not safe to send cash by mail, and though the assured receive the remittance, if unscrupulous, he may deny it, and, though honest, after getting his cash he will seldom take the trouble to return the policy until it is demanded. The framers of the New York standard fire policy of 1886, therefore inserted the seemingly unambiguous statement that the notice by itself shall cancel, but that the unearned premium shall be returned on surrender of this policy or last renewal."
It is next contended that the notice of cancellation received by the insured failed to comply with the provisions set out in the policy with reference to cancellation, because, it is said, it failed to state that the unearned premium would be paid by the company to the insured upon demand. The notice contained the following: “The provisions of the Policy or Policies respecting premium adjustment upon cancellation are applicable.”
The notice described the policy by number and date. It must be borne in mind that the insured was in possession of the policy, and by this notice its provisions were made a part of the notice. The policy, as, has been pointed out, plainly provides that upon its cancellation by the company, the unearned premium would be returned to the assured upon his demand. It was therefore unnecessary again to advise the insured in this notice of cancellation that the company would return the unearned premium to him upon his demand. It plainly did so by referring to the terms of the policy.
The unearned premium was in fact returned to and accepted and retained by the insured, but it is contended by Summers that because the insured, when he made demand upon the St. Louis office for return of the unearned premium on July 16, was referred to the Crane Agency through whom he had procured the policy, which agency returned the unearned premium to him on July 18, the unearned premium was not returned on demand as provided in the policy. The right of Summers to recover against the insurance company is dependent .upon that of the insured. In other words, he can acquire no greater right than that existing in favor of the insured. General Casualty & Surety Co. v. Kierstead, 8 Cir., 67 F.2d 523. There was no denial of the right of the insured to the unearned premium, and he was simply referred to the proper channels for securing its return. The insured received, accepted and retained this unearned premium as being paid him by the insurance company. Clearly, the insured would be estopped from asserting that the unearned premium had not been returned to him, and Summers can assert no greater right.
It is finally urged that cancellation was not effected so as to avoid liability because of Section 5898 of the Missouri Statute on cancellation, Mo.St.Ann. § 5898, p. 4499. This statute provides that whenever a loss occurs on account of the casualty covered by a contract of insurance, the liability of the insurance company shall become absolute and shall not depend upon the satisfaction by the insured of a final judgment against him for loss or damage. The statute also provides that, “No such contract of insurance shall be canceled or annulled by any agreement between the insurance company and the assured after the said assured has become responsible for such loss or damage, and any such cancellation or annulment shall be void.”
The accident here did not occur until June 25, 1938, substantially four months after this policy was cancelled. The statute manifestly has no application to the situation here presented. This statute inhibits the cancellation of the insurance contract after the occurrence of the accident or loss which is covered by the policy.
The judgment appealed from is therefore affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_jurisdiction
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
SLOCHOWER v. BOARD OF HIGHER EDUCATION OF NEW YORK CITY.
No. 23.
Argued October 18-19, 1955.
Decided April 9, 1956.
Ephraim London argued the cause and filed a brief for appellant.
Daniel T. Scannell argued the cause for appellee. With him on the brief were Peter Campbell Brown, Seymour B. Quel and Helen R. Cassidy.
Osmond K. Fraenkel and Emanuel Redfield filed a brief for the New York Civil Liberties Union, as amicus curiae, urging reversal.
Mr. Justice Clark
delivered the opinion of the Court.
This appeal brings into question the constitutionality of § 903 of the Charter of the City of New York. That section provides that whenever an employee of the City utilizes the privilege against self-incrimination to avoid answering a question relating to his official conduct, “his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.” Appellant Slochower invoked the privilege against self-incrimination under the Fifth Amendment before an investigating committee of the United States Senate, and was summarily discharged from his position as associate professor at Brooklyn College, an institution maintained by the City of New York. He now claims that the charter provision, as applied to him, violates both the Due Process and Privileges and Immunities Clauses of the Fourteenth Amendment.
On September 24, 1952, the Internal Security Subcommittee of the Committee on the Judiciary of the United States Senate held open hearings in New York City. The investigation, conducted on a national scale, related to subversive influences in the American educational system. At the beginning of the hearings the Chairman stated that education was primarily a state and local function, and therefore the inquiry would be limited to “considerations affecting national security, which are directly within the purview and authority of the subcommittee.” Hearings Before the Subcommittee to Investigate the Administration of the Internal Security Act and Other Internal Security Laws of Senate Committee on the Judiciary, 82d Cong., 2d Sess. 1. Professor Slochower, when called to testify, stated that he was not a member of the Communist Party, and indicated complete willingness to answer all questions about his associations or political beliefs since 1941. But he refused to answer questions concerning his membership during 1940 and 1941 on the ground that his answers might tend to incriminate him. The Chairman of the Senate Subcommittee accepted Slochower’s claim as a valid assertion of an admitted constitutional right.
It had been alleged that Slochower was a Communist in 1941 in the testimony of one Bernard Grebanier before the Rapp-Coudert Committee of the New York Legislature. See Report of the Subcommittee of the Joint Legislative Committee to Investigate Procedures and Methods of Allocating State Moneys for Public School Purposes and Subversive Activities, Legislative Document (1942), No. 49, State of New York, at 318. Slochower testified that he had appeared twice before the Rapp-Coudert Committee, and had subsequently testified before the Board of Faculty relating to this charge. He also testified that he had answered questions at these hearings relating to his Communist affiliations in 1940 and 1941.
Shortly after testifying before the Internal Security Subcommittee, Slochower was notified that he was suspended from his position at the College; three days later his position was declared vacant “pursuant to the provisions of Section 903 of the New York City Charter.” []
Slochower had 27 years’ experience as a college teacher and was entitled to tenure under state law. McKinney’s New York Laws, Education Law, § 6206 (2). Under this statute, appellant may be discharged only for cause, and after notice, hearing, and appeal. § 6206 (10). The Court of Appeals of New York, however, has authoritatively interpreted § 903 to mean that “the assertion of the privilege against self incrimination is equivalent to a resignation.” Daniman v. Board of Education, 306 N. Y. 532, 538, 119 N. E. 2d 373, 377. Dismissal under this provision is therefore automatic and there is no right to charges, notice, hearing, or opportunity to explain.
The Supreme Court of New York, County of Kings, concluded that appellant’s behavior fell within the scope of § 903, and upheld its application here. 202 Misc. 915, 118 N. Y. S. 2d 487. The Appellate Division, 282 App. Div. 718, 122 N. Y. S. 2d 286, reported sub nom. Shlakman v. Board, and the Court of Appeals, reported sub nom. Daniman v. Board, supra, each by a divided court, affirmed. We noted probable jurisdiction, 348 U. S. 935, because of the importance of the question presented.
Slochower argues that § 903 abridges a privilege or immunity of a citizen of the United States since it in effect imposes a penalty on the exercise of a federally guaranteed right in a federal proceeding. It also violates due process, he argues, because the mere claim of privilege under the Fifth Amendment does not provide a reasonable basis for the State to terminate his employment. Appellee insists that no question of “privileges or immunities” was raised or passed on below, and therefore directs its argument solely to the proposition that § 903 does not operate in an arbitrary or capricious manner. We do not decide whether a claim under the “privileges or immunities” clause was considered below, since we conclude the summary dismissal of appellant in the circumstances of this case violates due process of law.
The problem of balancing the State’s interest in the loyalty of those in its service with the traditional safeguards of individual rights is a continuing one. To state that a person does not have a constitutional right to government employment is only to say that he must comply with reasonable, lawful, and nondiscriminatory terms laid down by the proper authorities. Adler v. Board of Education, 342 U. S. 485, upheld the New York Feinberg Law which authorized the public school authorities to dismiss employees who, after notice and hearing, were found to advocate the overthrow of the Government by unlawful means, or who were unable to explain satisfactorily membership in certain organizations found to have that aim. Likewise Garner v. Los Angeles Board, 341 U. S. 716, 720, upheld the right of the city to inquire of its employees as to “matters that may prove relevant to their fitness and suitability for the public service,” including their membership, past and present, in the Communist Party or the Communist Political Association. There it was held that the city had power to discharge employees who refused to file an affidavit disclosing such information to the school authorities.
But in each of these cases it was emphasized that the State must conform to the requirements of due process. In Wieman v. Updegraff, 344 U. S. 183, we struck down a so-called “loyalty oath” because it based employability solely on the fact of membership in certain organizations. We pointed out that membership itself may be innocent and held that the classification of innocent and guilty together was arbitrary. This case rests squarely on the proposition that “constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.” 344 U. S., at 192.
Here the Board, in support of its position, contends that only two possible inferences flow from appellant’s claim of self-incrimination: (1) that the answering of the question would tend to prove him guilty of a crime in some way connected with his official conduct; or (2) that in order to avoid answering the question he falsely invoked the privilege by stating that the answer would tend to incriminate him, and thus committed perjury. Either inference, it insists, is sufficient to justify the termination of his employment. The Court of Appeals, however, accepted the Committee’s determination that the privilege had been properly invoked and it further held that no inference of Communist Party membership could be drawn from such a refusal to testify. It found the statute to impose merely a condition on public employment and affirmed the summary action taken in the case. With this conclusion we cannot agree.
At the outset we must condemn the practice of imputing a sinister meaning to the exercise of a person’s constitutional right under the Fifth Amendment. The right of an accused person to refuse to testify, which had been in England merely a rule of evidence, was so important to our forefathers that they raised it to the dignity of a constitutional enactment, and it has been recognized as “one of the most valuable prerogatives of the citizen.” Brown v. Walker, 161 U. S. 591, 610. We have reaffirmed our faith in this principle recently in Quinn v. United States, 349 U. S. 155. In Ullmann v. United States, 350 U. S. 422, decided last month, we scored the assumption that those who claim this privilege are either criminals or perjurers. The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. As we pointed out in Ullmann, a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances. See Griswold, The Fifth Amendment Today (1955).
With this in mind, we consider the application of § 903. As interpreted and applied by the state courts, it operates to discharge every city employee who invokes the Fifth Amendment. In practical effect the questions asked are taken as confessed and made the basis of the discharge. No consideration is given to such factors as the subject matter of the questions, remoteness of the period to which they are directed, or justification for exercise of the privilege. It matters not whether the plea resulted from mistake, inadvertence or legal advice conscientiously given, whether wisely or unwisely. The heavy hand of the statute falls alike on all who exercise their constitutional privilege, the full enjoyment of which every person is entitled to receive. Such action falls squarely within the prohibition of Wieman v. Updegraff, supra.
It is one thing for the city authorities themselves to inquire into Slochower’s fitness, but quite another for his discharge to be based entirely on events occurring before a federal committee whose inquiry was announced as not directed at “the property, affairs, or government of the city, or . . . oficial conduct of city employees.” In this respect the present case differs materially from Garner, where the city was attempting to elicit information necessary to determine the qualifications of its employees. Here, the Board had possessed the pertinent information for 12 years, and the questions which Professor Slochower refused to answer were admittedly asked for a purpose wholly unrelated to his college functions. On such a record the Board cannot claim that its action was part of a bona fide attempt to gain needed and relevant information.
Without attacking Professor Slochower’s qualification for his position in any manner, and apparently with full knowledge of the testimony he had given some 12 years before at the state committee hearing, the Board seized upon his claim of privilege before the federal committee and converted it through the use of § 903 into a conclusive presumption of guilt. Since no inference of guilt was possible from the claim before the federal committee, the discharge falls of its own" weight as wholly without support. There has not been the “protection of the individual against arbitrary action” which Mr. Justice Cardozo characterized as the very essence of due process. Ohio Bell Telephone Co. v. Commission, 301 U. S. 292, 302.
This is not to say that Slochower has a constitutional right to be an associate professor of German at Brooklyn College. The State has broad powers in the selection and discharge of its employees, and it may be that proper inquiry would show Slochower’s continued employment to be inconsistent with a real interest of the State. But there has been no such inquiry here. We hold that the summary dismissal of appellant violates due process of law.
The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Mr. Justice Black and Mr. Justice Douglas join the Court’s judgment and opinion, but also adhere to the views expressed in their dissents in Adler v. Board of Education, and Garner v. Los Angeles Board, supra, and to their concurrences in Wieman v. Updegraff, supra.
The full text of § 903 provides:
“If any councilman or other officer or employee of the city shall, after lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.”
[Reporter’s Note: A sentence which was reported in the Preliminary Print at p. 554, lines 13-18, was deleted by an order of the Court entered May 28,1956, 351 U. S. 944.]
Thirteen other individuals brought suit for reinstatement after their dismissal for pleading the privilege against self-incrimination in the same federal investigation. We dismissed the appeal of these individuals “for want of a properly presented federal question.” Daniman v. Board, 348 U. S. 933. See Daniman v. Board, 307 N. Y. 806, 121 N. E. 2d 629, where the New York Court of Appeals declined to amend its remittitur to state that a federal question had been presented and passed on as to these appellants, but did so amend its remittitur as to Slochower.
Mr. Justice Black and Mr. Justice Douglas dissented. Mr. Justice Frankfurter dissented on grounds of standing and ripeness.
Mr. Justice Black and Mr. Justice Douglas dissented. Mr. Justice Frankfurter and Mr. Justice Burton concurred in this aspect of the case, but dissented from other portions of the decision in separate opinions.
Mr. Justice Black and Mr. Justice Frankfurter concurred in separate opinions in which Mr. Justice Douglas joined. Mr. Justice Burton concurred in the result.
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
|
songer_casetyp1_2-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights".
Cullen Reed PEPPERS, Plaintiff-Appellee, v. Bobby F. COATES, Jr., Defendant-Appellant, Buster Williams, et al., Defendants.
No. 88-8557.
United States Court of Appeals, Eleventh Circuit.
Nov. 13, 1989.
Nina Hickson Perry, Sharon D. Stokes, Asst. U.S. Attys., Atlanta, Ga., for defendant-appellant.
Frank J. Beltran, Beltran & Buckley, Atlanta, Ga., Simone R. Siex, Atlanta, Ga., for plaintiff-appellee.
Before FAY and HATCHETT, Circuit Judges, and ALLGOOD , Senior District Judge.
Honorable Clarence W. Allgood, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation.
FAY, Circuit Judge.
This action arose from a series of events which involved the Secret Service and plaintiff-appellee, Cullen Peppers, and eventually led to the arrest of several defendants allegedly involved in a counterfeiting scheme. Peppers filed a Bivens action alleging a plethora of violations of his rights against several Secret Service agents, including defendant-appellant, Bobby Coates. Coates challenges the district court’s order denying defendants’ motion for summary judgment on the basis of qualified immunity, asserting that Peppers has failed to raise a genuine issue of material fact with respect to Coates’ involvement in any allegedly unlawful conduct in violation of Peppers’ rights. Peppers argues that this court lacks jurisdiction because the district court’s order denying Coates’ motion for summary judgment turns on an issue of fact and therefore is not immediately appealable. Further, Peppers argues that he has raised questions of fact sufficient to withstand a motion for summary judgment. For the reasons set forth in this opinion we hold that this court has jurisdiction to review the district court’s order denying Coates’ motion for summary judgment, and we REVERSE and REMAND with instructions to grant summary judgment in favor of Coates.
1. BACKGROUND
In 1983, Peppers’ brother, Anthony Peppers, became aware of a counterfeiting scheme and offered to assist the Secret Service in undercover operations to expose the scheme. When Anthony Peppers was unable to obtain samples of the counterfeit currency, he solicited assistance from his brother, plaintiff, Cullen Peppers. Plaintiff alleges that George Sexton, a Secret Service agent, knew of his involvement in the undercover operations, and actually authorized him to obtain samples of the counterfeit currency. Defendants deny this allegation. In any event, on April 28, 1983, Peppers obtained the samples and relinquished them to the Secret Service.
At a meeting on April 25, 1983, defendant Hal Ewing and another agent inquired as to how Peppers obtained the counterfeit currency. Peppers alleges that these agents threatened, coerced, and intimidated him at this meeting so that he would monitor the counterfeiters’ activity. The agents assert that all they told Peppers at the April 25th meeting was that he violated the law, and that they would turn the information they had over to the United States Attorney’s office.
On April 27, 1983, defendant Guy Hinton and another Secret Service agent met with Peppers. Peppers alleges that at this meeting Hinton failed to advise Peppers of his Miranda rights and threatened to arrest him if he refused to sign a statement. Furthermore, Peppers alleges that Hinton denied Peppers’ request to confer with counsel and intimidated, coerced, and threatened Peppers so that he would assist the Secret Service in a “buy bust” with the counterfeiters. Defendants deny any threats, coercion, or intimidation.
On April 28,1983, defendant Bob Francis installed electronic surveillance equipment in Peppers’ van in preparation for the “buy bust.” Furthermore, it is uncontroverted that on April 28, 1983, defendant Bobby Coates authorized the agents to use the office television set to purchase the counterfeit currency in the “buy bust.” The only other involvement of Coates in these events was that the agents conducting the investigation briefed him on the developments in the case. Later that day, the “buy bust” occurred and Secret Service agents simulated the arrest of Peppers in order to protect his cover. Peppers alleges that the agents used excessive force in simulating his arrest.
On May 13,1983, Assistant United States Attorney Mary Jane Stewart and Agent Ewing appeared before a federal grand jury to present evidence against Peppers and others involved in the counterfeiting scheme. Peppers was indicted for violations of law as a result of his April 23,1983 actions in obtaining counterfeit currency samples. Charges against Peppers were dismissed voluntarily at his criminal trial.
On July 3, 1985, Peppers filed his complaint alleging that the actions of the agents, including Bobby Coates, during the interviews and simulated arrest violated his constitutional rights. Defendant Coates and other defendants filed a motion to dismiss and, in the alternative, for summary judgment, which was denied by the district court. Following discovery, defendants filed two motions for reconsideration of their motion for summary judgment. The district court requested clarification of the first motion for reconsideration and denied, on the merits, defendants’ renewed motion for reconsideration. Coates now appeals to this court the district court’s denial of his renewed motion for reconsideration of his motion for summary judgment.
II. JURISDICTION
Initially, we must determine whether this court has jurisdiction to hear Coates’ appeal from the trial court’s order denying him summary judgment on the basis of qualified immunity. Except in certain instances, this court is without jurisdiction to hear appeals from interlocutory orders of the district courts. The purpose of restricting interlocutory appeals is to prevent “the debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical consequence, but a single controversy.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974). However, the Supreme Court has created an exception to the finality requirement. The Court realized the existence of a small class of decisions which “finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Court has since clarified the so-called “collateral order doctrine,” setting forth three criteria for review of interlocutory orders. “[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978).
Having established the requirements for invoking the collateral order doctrine, the Supreme Court has approved of its use specifically in cases where a trial court has denied a defendant’s motion to dismiss or for summary judgment on the basis of qualified immunity. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). In Mitchell, the Court painstakingly applied the criteria promulgated in Cohen to such a case. The Court reasoned that because the essence of qualified immunity is to relieve a public official of having to answer for his conduct in a civil damages action, later review of an order denying summary judgment on the basis of qualified immunity would prove futile. Mitchell, 472 U.S. at 526-27, 105 S.Ct. at 2815-16. Furthermore, the Court held that the “court’s denial of summary judgment finally and conclusively determines the defendant’s claim of right not to stand trial on the plaintiff's allegations-” Id. at 527, 105 S.Ct. at 2816 (emphasis in original). Lastly, the Court stated, “a question of immunity is separate from the merits of the underlying action for purposes of the Cohen test even though a reviewing court must consider the plaintiff’s factual allegations in resolving the immunity issue.” Id. at 528-29, 105 S.Ct. at 2816-17. Thus, Mitchell has approved the application of the collateral order doctrine to appeals from a district court’s denial of a claim of qualified immunity, to the extent that it turns on a question of law. Id. at 530, 105 S.Ct. at 2817.
In adhering to the standards explicated in Mitchell, we hold that in order to invoke the appellate jurisdiction of this court immediately after denial of defendant’s motion for summary judgment on the basis of qualified immunity, defendant must establish that plaintiff has failed to raise a genuine issue of fact material to the qualified immunity defense. In Mitchell, the Court stated that in resolving a claim for qualified immunity, the district court may grant a motion to dismiss “[u]nless the plaintiff’s allegations state a claim of violation of clearly established law,” and even if plaintiff survives a motion to dismiss, “defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts.” Id. at 526, 105 S.Ct. at 2815. In the context of the Mitchell opinion these standards go only to one element of the Cohen collateral order doctrine, namely that the order be effectively unre-viewable after final adjudication of the case. Id. We believe that a decision denying summary judgment on the basis of qualified immunity is effectively unreviewable only if defendant has a “right” not to stand trial. See Id. at 525, 527, 105 S.Ct. at 2815, 2816. And defendant may legitimately claim this “right” only if plaintiff fails to raise sufficient questions of fact regarding defendant’s qualified immunity defense. See Goddard v. Urrea, 847 F.2d 765 (11th Cir.1988); Riley v. Wainwright, 810 F.2d 1006 (11th Cir.1986), reh. denied (1987). Consequently, it is our position that if plaintiff has raised a genuine issue as to whether defendant committed acts in violation of plaintiff’s rights, an order denying defendant’s motion for summary judgment is reviewable after final adjudication of the case, and the collateral order doctrine cannot be invoked prematurely to confer immediate jurisdiction upon this court. Defendant must, in such circumstances, go to trial and may appeal to this court only after final judgment.
This case, however, is not one in which defendant must await a final judgment to appeal. Here, the facts regarding Coates’ involvement in any allegedly unlawful conduct are undisputed. He merely authorized an office television set for use in the “buy bust” and was briefed intermittently on the status of the counterfeiting investigation. Since these facts are undisputed and discovery has concluded, our determination as to the validity of Coates’ qualified immunity claim turns solely on a question of law. Accordingly, we may assume jurisdiction of this appeal.
III. SUMMARY JUDGMENT ON THE BASIS OF QUALIFIED IMMUNITY
Having assumed jurisdiction over this appeal, we next address whether Peppers has raised a question of fact sufficient to defeat Coates’ motion for summary judgment based on his qualified immunity claim. Under Fed.R.Civ.P. 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). The party moving for summary judgment is entitled to judgment as a matter of law if the nonmov-ing party fails to show sufficiently an essential element of the case to which the nonmoving party has the burden of proof. Everett, 833 F.2d at 1510.
Of course, we must view the evidence produced by Peppers, and all factual inferences arising from it, in the light most favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Everett, 833 F.2d at 1510; Barnes v. Southwest Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir.1987). However, when a motion for summary judgment is made and supported according to Rule 56, the nonmoving party’s response must set forth specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e). If the party’s response consists of nothing more than a repetition of his conclusory allegations, the district court must enter summary judgment in the moving party’s favor. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.1981), cert. denied, 456 U.S. 1010, 102 S.Ct. 2303, 73 L.Ed.2d 1306 (1982).
Applying the summary judgment standard to the facts of this case, we are unable to conclude that Peppers has raised a genuine issue of material fact. In order to withstand Coates’ motion for summary judgment on the basis of qualified immunity, Peppers must produce sufficient evidence to at least raise the issue of whether a reasonable person in the position of Coates would have known that his actions violated Peppers’ clearly established constitutional or statutory rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986) (“As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent_”). Coates, as a government official, is entitled to immunity as long as his actions “could reasonably have been thought consistent with the rights [h]e was alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987); Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir.1989).
The facts regarding Coates’ involvement in the allegedly unlawful events are undisputed and show only that Coates, as the Special Agent-In-Charge of the Atlanta Field Office of the Secret Service, was briefed on developments in the counterfeiting case and authorized use of an office television set in the “buy bust.” While we must view the inferences to be drawn from the underlying facts in the light most favorable to Peppers, we do not believe that a jury could reasonably infer from these facts that Coates should have known that his conduct violated Peppers’ constitutionally protected rights.
Nowhere in the record has Peppers adduced evidence establishing that Coates was involved personally in any of the alleged harassment, coercion, or use of excessive force. Peppers’ only evidence of Coates’ involvement in the “buy bust” was Coates’ authorization of use of the television set. This evidence is simply insufficient to support the proposition that a reasonable person in the position of Coates should have known that his conduct was unlawful. According to the facts that Peppers has presented, Coates’ connection with the allegedly unlawful acts that occurred during the “buy bust” is far too attenuated to subject him to the rigors of trial.
Furthermore, Peppers has failed to establish that Coates acquiesced, with an opportunity to intervene, in the other allegedly unlawful activities of the agents. Peppers has discovered, and Coates plainly acknowledges, that Coates was briefed on the developments in the counterfeiting case. The sole fact that Coates was briefed on the progress of the investigation, however, does not, within reason, inferentially lead to the conclusion that a reasonable person in the position of Coates should have known that his conduct violated Peppers’ clearly established rights. Coates probably routinely briefs his superiors on developments in the Atlanta Field Office. However, that fact, standing alone, would not raise a triable issue of fact regarding such supervisory personnel being involved in the allegedly unlawful conduct of the defendants in this case. As a matter of law, on the facts of this case, Coates cannot be denied summary judgment pursuant to his claim for qualified immunity.
IV. CONCLUSION
We believe that the evidence Peppers provided in response to Coates’ motion for summary judgment has failed to set forth specific facts showing that there is a genuine issue for trial. There is no genuine dispute about a material fact concerning Coates’ involvement in the counterfeiting case, and according to the facts of record, no jury rationally could find that a reasonable person in the position of Coates should have known that his conduct violated Peppers’ constitutional or statutory rights. To subject Coates to trial on this set of facts would unduly interfere with his official responsibilities and unjustifiably discourage him from vigorously exercising his official authority. See Harlow, 457 U.S. at 807, 102 S.Ct. at 2732.
Accordingly, we hold that we have jurisdiction of this appeal, and we REVERSE the district court’s order denying defendant’s motion for summary judgment and REMAND with instructions to enter summary judgment in favor of defendant Bobby Coates.
. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court granted injured plaintiffs the right to bring claims for money damages against federal officials for violations of constitutional rights.
. Originally, the notice of appeal was filed on behalf of five defendants: Bobby Coates, Harold Ewing, Robert Cozart, George Sexton, and Guy Hinton (R2-66). However, this appeal proceeded only on behalf of Bobby Coates. (Appellants’ Brief at 4).
. Peppers v. Coates, 694 F.Supp. 1562 (N.D.Ga.1988).
. 28 U.S.C. § 1291 (1982) provides in pertinent part:
The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States ... except where a direct review may be had in the Supreme Court.
28 U.S.C. § 1292 (1982 & Supp.1987) provides for interlocutory appeals under limited circumstances, none of which are applicable to the instant case.
. In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Court rejected a subjective “good faith” standard in determining whether a public official would be entitled to qualified immunity. Rather, because the subjective standard prevented the dismissal of spurious litigation before trial due to inherent questions of fact as to defendant's intent, the Court adopted an objective standard. As the Court recognized in Mitchell, this change evinces the Supreme Court’s reluctance to force public officials through the rigors of trial when a legitimate immunity defense exists. Hence, allowing appeal of a denial of summary judgment on the basis of immunity only after trial would subvert the policies espoused in Harlow. Mitchell, 472 U.S. at 526-27, 105 S.Ct. at 2815-16.
. The Court analogized a public official’s claim of right not to stand trial to a criminal defendant’s "double jeopardy” right not to stand trial. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).
. We recognize that other circuits accept jurisdiction over an appeal from a denial of a claim of qualified immunity before determining whether a plaintiff has raised a sufficient question of fact to withstand such a claim. Krohn v. United States, 742 F.2d 24 (1st Cir.1984); McSurely v. McClellan, 697 F.2d 309 (D.C.Cir.1982); see also Emery v. Holmes, 824 F.2d 143 (1st Cir.1987) (affirming district court’s order rather than dismissing appeal because plaintiff raised genuine factual issue regarding immunity claim). We believe, however, that this court may not assume jurisdiction over the appeal, unless plaintiff has failed to raise a question of fact material to defendant’s claim of qualified immunity. Goddard v. Urrea, 847 F.2d 765 (11th Cir.1988); Riley v. Wainwright, 810 F.2d 1006 (11th Cir.1986), reh. denied (1987); see also Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817 (‘‘[A] district court's denial of a claim of qualified immunity, to the extent that it'turns on an issue of law, is an appealable 'final decision’_”); Evans v. Dillahunty, 711 F.2d 828 (8th Cir.1983) (appellate jurisdiction if essential facts undisputed and immunity question solely a matter of law).
This choice seems to be merely the result of a struggle with difficult concepts, and apparently has no bearing on the ultimate outcome of the appeal. On the one hand, the appellate court assumes jurisdiction if defendant has legitimately claimed qualified immunity, and affirms the trial court’s order denying such claim if plaintiff raises a genuine issue as to defendant’s commission of acts in violation of plaintiff’s clearly established rights. On the other hand, the appellate court dismisses the appeal if plaintiff has uncovered facts creating a genuine issue regarding defendant’s commission of acts in violation of plaintiff’s clearly established rights. Thus, while courts differ in their approach to the jurisdictional problems arising from qualified immunity claims, a plaintiff may defeat a defendant’s motion for summary judgment on the basis of qualified immunity if plaintiff can raise a genuine issue of fact material to defendant’s claim for qualified immunity.
. Peppers does not contend that the trial court failed to allow him complete discovery. We will assume, therefore, that he is unable to accumulate further evidence regarding Coates’ involvement in the allegedly unlawful harassment and simulated arrest.
. In fact, in the order denying Coates’ motion for summary judgment, the district judge stated:
Although plaintiff may not be able to get past a motion for directed verdict on his allegations that defendant Coates took or failed to take any actions which resulted in a violation of plaintiffs constitutional rights, the Court at this stage cannot say that plaintiff has not raised a genuine issue of material fact as to Coates' liability.
Peppers v. Coates, 694 F.Supp. 1562, 1564 (N.D.Ga.1988). We believe the trial judge was correct as to his statement regarding a motion for directed verdict. Necessarily, however, the trial judge was incorrect regarding the motion for summary judgment insofar as the standards for a directed verdict and summary judgment are identical — whether a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
. Peppers does not argue that Coates is liable for the allegedly unlawful conduct of his subordinates under a respondeat superior theory. In any event, we believe that such a theory of recovery would fail in this case. Lojuk v. Quandt, 706 F.2d 1456, 1468 (7th Cir.1983, cert. denied, Lojuk v. Johnson, 474 U.S. 1067, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986); see also Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688-89, 69 S.Ct. 1457, 1460-61, 93 L.Ed. 1628 (1949); Saine v. Hospital Authority of Hall County, 502 F.2d 1033, 1036-37 (5th Cir.1974) (If the official's conduct can be attributed to the sovereign, then sovereign immunity will bar suit.).
Question: What is the specific issue in the case within the general category of "civil rights"?
A. civil rights claims by prisoners and those accused of crimes
B. voting rights, race discrimination, sex discrimination
C. other civil rights
Answer:
|
songer_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.
ROGERS et ux. v. COMMISSIONER OF INTERNAL REVENUE.
No. 8256.
Circuit Court of Appeals, Sixth Circuit.
May 8, 1940.
Theodore B. Benson, of Washington, D. C. (Theodore B. Benson, of Washington, D. C., and H. H. Timmering, of Louisville, Ky., on the brief), for petitioners.
Harry Marselli, of Washington, D. C. (James W. Morris, Sewall Key, and Helen R. Carloss, all of Washington, D. C., on the brief), for respondent.
Before ALLEN, HAMILTON, and ARANT, Circuit Judges-.
ALLEN, Circuit Judge.
Petitioners appeal from a decision of the Board of Tax Appeals (38 B.T.A. 16), assessing deficiencies in income tax and penalties, as follows:
Year
Tax
25% Penalty
50% Penalty
1932 $1,004.93 $363.73 $ 545.68
1933 6,955.03 3,477.52
1934 663.41 298.91
The deficiency for 1934 and the 25% penalty assessed because the return for 1932 was delinquent are not contested.
Petitioners, Charles A. Rogers and Louise Rogers, are husband and wife, residing at Owensboro, Kentucky. They own one-half of the outstanding stock of the M & R Canning Company. During the period in controversy Rogers was also engaged in farming, and was city clerk and tax collector of Owensboro. From time to time both petitioners received money or checks from the Canning Company, which was credited to them on the company books.
The first question is whether the Commissioner erred in including in petitioners’ gross income for the years 1932 and 1933 certain credits to their accounts on the books of the company. The Commissioner gave credit to petitioners for all such charges on the company books which had been explained, but regarded as income to petitioners all credits less the explained charges, and refused to allow petitioners to deduct from income the unexplained charges. In its opinion, the Board said: “Petitioners concede that all amounts added to income by respondent, representing unexplained credits and bank deposits, constitute taxable income derived by them from legitimate sources, with the exception of three items * * *.”
Two of the three items were decided by the Board in favor of petitioners, and that conclusion is not here attacked. The remaining item consists of the amount of $12,000 credited to Rogers’ account on the books of the Canning Company and added to income for 1933.
The Canning Company borrowed $12,-000 from the Ontario Warehouse Company of Chicago, evidenced by check payable to the Canning Company dated November 29, 1933, which was endorsed by Rogers as president of the Canning Company, and further endorsed by him as tax collector and cashed by him through that office. Rogers received the $12,000 and testified that he used it to reimburse the tax collector’s office for funds taken from it by him to pay bills of the Canning Company and to take up his personal checks which he had substituted for the cash taken from the collector’s office. Petitioners assert that the $12,000 is part of a credit to Rogers on the books of the Canning Company of $17,-582.59, entered December 31, 1933, to offset - advances made to the company by Rogers to pay its bills and should not be included in petitioners’ income. The Commissioner urges that Rogers personally received the $12,000, and that the burden is on petitioners to prove that it was used to pay corporate expenses.
We think the Board did not err as to this item. The finding of the Commissioner is prima facie correct, and petitioners have the burden of proving what part of the amount determined to be a deficiency is not due. Welch v. Helvering, 290 U.S. 111, 54 S.Ct. 8, 78 L.Ed. 212; United States v. Peabody Co., 6 Cir., 104 F.2d 267; Commissioner v. Volunteer State Life Ins. Co., 6 Cir., 110 F.2d 879, decided March 12, 1940. Petitioners have not sustained this burden. The records of the company were loosely kept, in that Rogers instructed the bookkeeper what entries to make. Petitioners kept no personal records. Evidence as to their income consists of sketchy memoranda, and information emanating from the uncertain memory of Charles A. Rogers. Rogers’ testimony on the point is confused and evasive. He made references to memoranda which were not produced, and stated that he did not know where they were. It was Rogers who directed that the journal entry of December 31, 1933, of $17,582.59, be made. Rogers at the time of the hearing was serving sentence for conviction of embezzlement of city funds. The Board found that there was nothing in the record to show that the check for $12,000 has any relation to the credit of $17,582.59 on the books of the Canning Company. The Board’s finding is a determination of a question of fact, and if supported by the record, should be affirmed unless clearly erroneous. Helvering v. National Grocery Co., 304 U.S. 282, 294, 58 S.Ct. 932, 82 L.Ed. 1346; Elmhurst Cemetery Co. of Joliet v. Commissioner, 300 U.S. 37, 40, 57 S.Ct. 324, 81 L.Ed. 491; Helvering v. Rankin, 295 U.S. 123, 131, 55 S.Ct. 732, 79 L.Ed. 1343; Commissioner v. Johnston, 6 Cir., 107 F.2d 883; Gamble v. Commissioner, 6 Cir., 101 F.2d 565.
Petitioners also contend that the Board erred in holding that petitioners were subject to the 50% penalties for the years 1932, 1933, and 1934, under § 293(b) of the Revenue Acts of 1932 and 1934, 47 Stat. 169, and 48 Stat. 680, 26 U.S.C.A.Int.Rev. Code, § 293(b), which provides for a penalty of 50% of a deficiency to be assessed where any part of the deficiency is due to fraud with intent to evade the tax. The facts as found by the Board clearly show gross discrepancies for all the years in question, as follows:
Year
Returned Income
Net Income
1932 $8,913.78 $18,748.58
1933 1,942.11 44,352.26
1934 6,205.98 12,978.98
Fraud cannot be lightly inferred, but must be established by clear and convincing proof. Duffin v. Lucas, 6 Cir., 55 F.2d 786. It is conceivable that taxpayers may make minor errors in their tax returns, or, owing to different or contradictory theories of tax computation, calculate returns which differ greatly in result from the Commissioner’s assessments. Here petitioners do not have that excuse. Discrepancies of 100% and more between the real net income and the reported income for three successive years strongly evidence an intent to defraud the Government. The Board did not err in deciding that 50% penalties should be assessed.
The Board was entitled to consider as a part of the evidence Rogers’ conviction for embezzlement of city funds. Wood v. United States, 16 Pet. 342, 10 L.Ed. 987; Castle v. Bullard, 23 How. 172, 16 L.Ed. 424; Butler v. Watkins, 13 Wall. 456, 20 L.Ed. 629; Malone v. United States, 7 Cir., 94 F.2d 281. It is a fair inference that a man who will embezzle funds in his charge will not hesitate to understate his income with intent to defraud the Government. The fact that Rogers was a convicted embezzler had bearing as affecting his credibility. The Board’s finding is one of fact, and, if supported by clear and convincing evidence, should be affirmed. Such clear and convincing evidence existed here.
Petitioners’ final contention is that they are not jointly and severally liable for the deficiencies and penalties for the years in question, but that each is liable for his or her own individual income tax, and that the assessments should have been allocated by the Commissioner. We think the Board was correct in holding that petitioners are jointly and severally liable.
All the returns were joint returns. The return for 1932 was not voluntarily filed, but was prepared for petitioners in 1935 by a deputy collector and was signed by both petitioners. The return for 1934 was also signed by both. While the 1933 return was signed only by Rogers, it was stated to be a joint return for himself and wife.
Cases relied upon by the petitioners are inapplicable for the reason that in them the source and amount of each spouse’s income was definite and certain and the tax was clearly allocable as to each. In the instant case, the credits to each petitioner appearing on the books of the Canning Company and regarded by the Commissioner as income have no relation to the amount of stock of the company owned by each spouse. Mrs. Rogers owned twice as much stock as her husband, but in 1932 the credits to her account were approximately the same in amount as those of her husband, and in 1933 Rogers was credited with an amount greatly in excess of that of his wife. A proper allocation of the tax is impossible from the information furnished to the Commissioner by petitioners.
The decision is 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:
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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.
Billy D. BLUE, Billy Ed Blue, Appellees, v. Don ROSE, Phillip Rose, Mike Rose, Lynn Rose, d/b/a Rose Bros., Donna Sue Rose, Patti R. Rose, Appellants, and Rose Cattle Company.
No. 85-1579.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 15, 1985.
Decided March 12, 1986.
Rehearings Denied April 22, 1986.
Mark E. Fitzsimmons, Springfield, Mo., for appellants.
Gerard D. Eftink, Kansas City, Mo., for appellees.
Before ARNOLD and WOLLMAN, Circuit Judges, and GUNN, District Judge.
The Honorable George F. Gunn, Jr., United States District Judge for the Eastern District of Missouri, sitting by designation.
GUNN, District Judge.
Don Rose, Donna Sue Rose, Phillip Rose, Lynn Rose, Mike Rose, and Patti R. Rose appeal from a final judgment in the amount of $18,800 actual damages and $150,000 punitive damages entered against them in the District'Court for the Western District of Missouri. Judgment was entered upon a jury verdict in favor of Billy D. Blue and Billy Ed Blue, breeders of registered Holstein cattle, for fraud incident to the sale of cattle to them by appellants doing business as a partnership or joint enterprise. For reversal, appellants argue that the district court erred in: (1) failing to grant a directed verdict in favor of the three women appellants; (2) giving the jury an instruction on the issue of joint venture; (3) refusing to allow a witness to testify; (4) misstating the measure of damages in the jury instructions; and (5) entering judgment for a single amount of punitive damages against all defendants. For the reasons discussed below, we affirm the judgment of the district court.
The six defendants in this case are all related: Don and Donna Sue Rose are the parents of Phillip and Mike Rose who are married to Lynn and Patti respectively. Together they operate a dairy farm in Missouri. In October 1981 appellees, Texas cattlemen, saw an advertisement in The Holstein World, a trade journal, announcing an auction of Holstein cattle at the Rose farm. Appellees sent an agent to Missouri with instructions to buy registered Holstein cows at the auction. On October 17, 1981, appellees’ agent purchased thirty-four (34) head of cattle from the Roses at the auction. Each cow was represented in the auction sale catalog and by the auctioneer as being of certain lineage and as being registered or capable of being registered in the Holstein-Friesian Association of America (HFAA). The agent paid a total purchase price of $33,-340.00 and was told that certificates of registry would be furnished. The money from the sale was deposited into an account of the Rose Cattle Co., and the cattle were transported to appellees’ farm in Texas.
Several weeks later, concerned that the registration papers had not arrived, appellees telephoned appellant Don Rose to inquire about the papers and told Mr. Rose that if the cows were not registered Holsteins, the sale was rescinded.
Appellees were subsequently notified by the HFAA that the accuracy of the Rose farm’s registration records was under investigation. An examination of the records and blood-typing tests revealed that the lineage of all but one of the cows purchased by appellees was not as represented, and the registration of these cows was expunged by the HFAA. Appellees resold all thirty-four cows purchased at the auction.
By special interrogatory the jury found that the six appellants were members of a partnership or joint venture which was responsible for the October 17, 1981 auction. The jury found in favor of appellees on the issue of fraud and awarded $18,800 in actual damages and $150,000 in punitive damages against all appellants jointly. Judgment was entered accordingly and this appeal taken.
SUFFICIENCY OF EVIDENCE
Appellants do not challenge the sufficiency of the evidence to support the jury finding of fraud. Rather, the three women appellants argue that the trial court committed reversible error in overruling their motion for a directed verdict at the close of plaintiffs’ case for the reason that the evidence was insufficient to support a finding that they were members of the partnership or joint venture which committed the fraud.
Under Missouri law, a partnership is “a relationship arising out of contract express or implied whereby two or more parties agree to engage in a common enterprise, each contributing capital or services and each sharing in the profits and losses.” Troy Grain & Fuel Co. v. Rolston, 227 S.W.2d 66, 68 (Mo.Ct.App.1950). A partnership agreement may be implied from conduct and circumstances. Id. There is no essential difference between a partnership and a joint venture; they are factual relationships between two or more persons who conduct a business enterprise together. Grissum v. Reesman, 505 S.W.2d 81, 86 (Mo.1974). The parties to a partnership are not required to know and fully understand all of the legal incidents of the relationship. “Parties ‘entering into agreements and transactions which, by the law of the land, constitute them partners, whatever they may please to say or think about it, or by whatever name they may choose to call it’ will be held to be partners.” Troy Grain & Fuel Co. v. Rolston, 227 S.W.2d at 68, quoting Meyers v. Field, 37 Mo. 434, 439 (1866).
In the present case appellant Don Rose testified that the six appellants were authorized to draw checks on the Rose Cattle Co. bank account. Testimony of Donna Rose, given at another hearing and admitted in evidence at the behest of appellants’ counsel, was that the six appellants operated the farm together as a partnership and that each member performed services for the enterprise. Donna Rose testified directly that these statements were true. She also testified that she and her two daughters-in-law “ran the tickets” at the October 17, 1981 auction. It was stipulated that the gross receipts for all livestock sales in 1981 by any member of the Rose family were divided three ways among the three families.
It is obvious, then, that the evidence supports a jury question on the issue of whether all six appellants were members of a partnership or joint venture. The district court therefore did not err in denying appellants’ motion for a directed verdict. We further hold that the district court properly instructed the jury on this issue and that the special interrogatory was a fair and accurate statement of the law.
EXCLUSION OF WITNESS
Appellants next argue that the district court erred in refusing to allow the testimony of an individual whom appellants had not listed as a witness. In appellees’ case-in-chief, evidence was presented that a certain registered Holstein bull owned by the Roses and listed as the sire of several of the cattle purchased by appellees was in fact impotent. Appellants sought to present the testimony of the former owner of the bull that it had sired several calves. The district court ruled that the witness would not be permitted to testify as he had not been listed by the defendants as required by the court’s pretrial order and local court rule. Appellants now argue that this ruling was reversible error.
It is fundamental that it is within the trial court’s discretionary power whether to allow the testimony of witnesses not listed prior to trial. Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 897-98 (8th Cir.1978); United States v. Pirnie, 472 F.2d 712, 713 (8th Cir.1973) (per curiam); see also Rule 37(b)(2)(B), Fed.R.Civ.P. A ruling by the district court pertaining to this matter will be overturned only if there is a clear abuse of discretion. Id.
In the present case, there was no credible support for appellants’ contention that they were “surprised” by appellees’ evidence on the bull’s physical condition. No reason is offered and none appears why appellants could not have timely identified their witness. It is clear that the district court did not abuse its discretion in excluding the witness in question.
MEASURE OF DAMAGES
Appellants contend that the damages instruction did not correctly set forth the measure of damages. In the damages instruction, the jury was told that if it found for the plaintiffs it should award them the difference between the fair market value of the cattle and the fair market value of the cattle if they had been as represented, plus such sum as would compensate for any other damages plaintiffs sustained as a direct result of the misrepresentation. Appellants argue that this instruction erroneously permitted the jury to award both “benefit-of-the bargain” and “out-of-pocket” damages.
Under Missouri law, a defrauded party may recover the difference between the actual value of the purchased property and its value had it been as represented, as well as special damages, incurred solely by reason-of the fraud. Fong v. Town & Country Estates, Inc., 600 F.2d 179, 182 n. 3 (8th Cir.), cert. denied, 444 U.S. 942, 100 S.Ct. 298, 62 L.Ed.2d 309 (1979); Miller v. Higgins, 452 S.W.2d 121, 125 (Mo.1970).
In this case plaintiffs introduced evidence that the difference between the real and represented value of the cattle purchased from defendants was between $11,-000 and $15,000. In addition, plaintiffs introduced evidence of the following expenditures incident to the fraudulently induced transaction:
$600.00 —cost of having their agent attend the auction
$850.00 —the commission paid for the purchase of the cattle
$7,917.00 — cost of feeding and caring for the cattle from the time of purchase until time of resale
Under the facts and circumstances of this case, these expenditures were proper items of special damages, and the district court properly instructed the jury as to the measure of actual damages applicable to the issues and the evidence of the case. We also hold that the verdict of actual damages returned was fully supported by the evidence.
PUNITIVE DAMAGES
Appellants’ final point on appeal is that the district court erred in authorizing the jury to award punitive damages in one sum against all defendants, rather than in different amounts against each defendant.
In Smith v. Counter, 575 S.W.2d 199, 209-10 (Mo.Ct.App.1979), the Missouri Court of Appeals held that where two partners’ liability for punitive damages was entirely vicarious, based upon the tortious acts of an employee of the partnership, a verdict form which did not allow the jury to find different amounts of punitive damages against each partner was proper. The court, however, did not reach the question presented here as to whether such a verdict form is appropriate where liability for punitive damage is based upon one or more partners’ own conduct.
Under Missouri law, members of a partnership are liable for torts committed by any member acting in the scope of the partnership’s business, even if they do not participate in or have knowledge of the tort. Mo.Ann.Stat. § 358.130 (Vernon 1968); Martin v. Yeoham, 419 S.W.2d 937, 951 (Mo.Ct.App.1967).
Specifically, Martin v. Yeoham states: A necessary foundation for the liability of partners * * * for the tortious act of a copartner is that the act shall be performed in the line of the copartnership business, and if the injury results from a wanton or wilful act of one of the parties committed outside the agency or common business, then the person doing the act and causing the injury is alone responsible, unless the act which constituted the tort was authorized by the members of the partnership or subsequently ratified by them, the act itself having been done in their behalf and interest. * * * [T]he true test is not the illegality or the malicious and willful character of the wrong, but whether it was done within the scope of the wrongdoing partner’s authority; and such determination must necessarily rest on the facts of the particular case.
419 S.W.2d at 951.
Accordingly, the verdict and judgment for compensatory damages against partners liable for the wilful torts of copartners must be in one amount against all jointly sued partners. State v. Cook, 400 S.W.2d 39, 40 (Mo.1966) (en banc).
The above principles are applicable where an award of punitive damages is based upon actions by one or more partners acting within the scope of authority and in furtherance of the partnership business, as in the present case. In such a situation, under the general principles of agency and partnership law, all the partners could be held jointly liable for the punitive damages, and a single sum verdict is warranted. We recognize that in some cases the evidence might support separate findings of punitive damages in varying amounts against partners jointly sued and that the jury should be instructed accordingly. See State v. Cook, 400 S.W.2d at 42 (where evidence supports such a procedure, individual wealth of each defendant is admissible).
We conclude that the evidence in this case does not support such a submission, because, as stated above, the tortious acts were clearly performed within the scope of partnership authority and business. Thus, the single sum verdict and judgment as to punitive and compensatory damages was proper. It is appropriate to note that there was no evidence at trial of the individual wealth of the separate defendants. Such evidence is, of course, inadmissible when a single submission as to punitive damages is made, as is the circumstance here.
The judgment is affirmed.
. The Honorable Russell G. Clark, United States District Judge for the Western District of Missouri.
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_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.
PLANT ECONOMY, INC., Appellant, v. MIRROR INSULATION COMPANY, Inc., Appellee.
No. 14101.
United States Court of Appeals Third Circuit.
Argued July 16, 1962.
Decided Sept. 26, 1962.
Philip G. Hilbert, New York City, for appellant.
Albert Sperry, Trenton, N. J., for ap-pellee.
Before BIGGS, Chief Judge, and HASTIE and GANEY, Circuit Judges.
BIGGS, Chief Judge.
The defendant, Mirror, has filed a motion to docket and dismiss an appeal by the plaintiff, Plant, from a final judgment in defendant’s favor. The motion alleges that the appeal was not taken within thirty days after the entry of the judgment as required by rule 73(a), Fed.R. Civ.Proc., 28 U.S.C., and that the order of the court below extending the period for taking the appeal was void and of no effect. Since the appeal has now been docketed , we consider only whether the appeal must be dismissed.
The judgment appealed from was entered on March 30, 1962, and, being final, was appealable. 28 U.S.C. § 1291. The notice of appeal was filed in the District Court on May 28, 1962. This was long after the expiration of the 30-day appeal period fixed by 28 U.S.C. § 2107 and Rule 73(a).
On May 8, 1962, however, Plant filed a motion, supported by affidavits, in the court below for an extension of the appeal period to May 29, 1962, on the ground that its failure to file a timely appeal was due to excusable neglect since it was not until May 3, 1962 that it learned of the entry of the judgment. On May 8, 1962, without prior notice to Mirror of the filing of the motion or of any hearing in respect to it, the extension was granted and an order was entered. It recited that Plant's motion had been made “for good cause and that plaintiff’s failure to [appeal] within the period originally prescribed was the result of excusable neglect”. A copy of the order was mailed to Mirror on the same day and was received by it in due course.
The order of May 8, 1962 was ineffective to extend the appeal period. An extension of time for the taking of an appeal, granted ex parte after the expiration of the original appeal period, is inconsistent with provisions of Rule 6(b) and Rule 6(d). Before the expiration of the original thirty-day period, the court could have extended the appeal period with or without motion or notice. But since no order extending the appeal period was made until after the thirty-day period had expired, the court was without authority to act ex parte. This was the conclusion reached in North Umberland Mining Co. v. Standard Acc. Ins. Co., 193 F.2d 951, 952 (9 Cir. 1952) based upon reasons which appear to us to be unassailable. Cf. Swindell-Dressler Corp. v. Dumbauld et al., 308 F.2d 267 (3 Cir. 1962). It follows that the appeal filed on May 29 was too late unless something done thereafter in the court below ■cured the infirmity.
On June 4 Mirror filed a motion in the court below to dismiss the appeal upon the ground that it had not been filed in time and that the ex parte order of May 8 was void and of no effect. This motion was heard, after notice to plaintiff, on June 25. During the argument the court acknowledged that it should have held a hearing before entering the order extending the period of appeal, but said that if its order was “void ab initio” as was held in North Umberland Mining Co. v. Standard Acc. Ins. Co., supra, then the filing of the notice of appeal was a nullity and was ineffective to divest the District Court of jurisdiction to proceed further in the case. Accordingly, the court stated that it would rectify any possible error in the granting of the ex parte extension order by proceeding to hear counsel for both parties argue whether plaintiff’s failure to take an appeal within the initial thirty-day appeal period was due to excusable neglect warranting an extension of the time to appeal. The court then found, as we have stated, that failure to appeal within the original thirty-day period was due to excusable neglect. It concluded the hearing by saying: “Gentlemen, submit an order that we deny defendant’s motion for attorneys’ fees, and that since defendant has shown excusable neglect, an appeal should be allowed in the Plant Economy decision.”
No written order allowing an appeal out of time was made by the court below. The court spoke no words of such a kind as would suggest an intention on its part that its opinion should serve as an order. Cf. United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232-233, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). On the contrary the court by the very words quoted above made it plain that an order should be submitted by counsel. No order remained on the record but the void order of May 8, 1962, entered ex parte. But even if the court below had entered a written order on June 25, 1962 purporting to allow Plant to appeal out of time it would have been without the jurisdiction, the power, to have entered a valid order of extension. The time limits prescribed by Rule 73(a) are precise and definite. It authorizes a trial court to “extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed.” See note 2, supra. Final judgment was entered, as we have said on March 30, 1962. Eighty-seven days elapsed before the court below on June 25, 1962, indicated that it would extend Plant’s time for taking its appeal. The court was then without power to enter a valid order of extension. It follows that nothing which was done after the filing of the appeal on May 29 cured its then existing infirmity of untimeliness.
The views which we have expressed make it unnecessary for us to consider whether the failure of the Plant to take an appeal was due to excusable neglect based upon its failure to learn of the entry of the judgment appealed from.
We recognize that the Federal Rules of Civil Procedure must be construed liberally to bring about a just, speedy and inexpensive determination of every action. Any requirement of compliance with barren technical formalities is to be avoided. But it cannot be denied that certain formalities are indispensable if litigation is to be just, speedy and inexpensive. This fundamental and most important objective can be achieved only by adherence to rather than rejection of the rules. Healy v. Pennsylvania R. Co., supra, 181 F.2d at pp. 934, 937.
Since notice of appeal was not filed until after the expiration of thirty days from the entry of the judgment appealed from, and no effective action was taken in the court below to extend the appeal period, we do not possess the power to entertain the appeal. Consequently, it will be dismissed for lack of jurisdiction.
. The appeal was docketed on July 6, 1962, the same date on which the present motion was filed upon the payment of the required fee by Plant.
. Rule 73(a), Fed.R.Civ.Proc., 28 U.S.C., states in part:
“When an appeal is permitted by law from a district court to a court of appeals the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from * * * except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed. * * * ” 28 U.S.C. § 2107 is substantially similar.
. While the motion makes no mention of either 28 U.S.C. § 2107 or Rule 73(a), they were undoubtedly the basis of plaintiff’s action. See footnote 2, supra.
. The docket entry of May 8, 1962 reads:
“Order extending time to appeal to May 29, 1962, filed (Lane) Notice mailed.”
In the brief of Mirror it is stated at p.3:
“The first knowledge of the Court’s action in connection with such motion, which was received by appellee, was gained upon the receipt of the'order of the Court dated May 8, 1962 granting said motion.”
. Rule 6 (b) states:
“When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under rules 25, 50(b), 52(b), 59(b), (d) and (e), 60(b), and 73(a) and (g), except to the extent and under the conditions stated in them.”
Rule 6(d) states:
“A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time.”
. The District Court, at the hearing held on June 25, 1962, which is discussed later in the opinion, admitted the incorrectness of entering the extension order ex parte. Speaking of its action it said (Transcript p. 12): “I think I should have held a hearing.”
Speaking of the order the District Court stated: “[I]t is ab initio defective. I have already said that. I realize that.”
. It is a general rule, subject to some qualifications, that an appeal suspends the power of the court below to proceed further in the case. Hovey v. McDonald, 109 U.S. 150, 157, 3 S.Ct. 136, 27 L.Ed. 888 (1883). One exception, in both civil and criminal cases is that the jurisdiction of the lower court to proceed in a cause is not lost by the taking of an appeal from an order or judgment which is not appealable. Riddle v. Hudgins, 58 F. 490, 493 (Sth Cir.1893); Euziere v. U.S., 266 F.2d 88 (10th Cir.1959), reversed on other grounds 364 U.S. 282, 80 S.Ct. 1615, 4 L.Ed.2d 1720 (1960); Resnik v. La Paz Guest Ranch, 289 F.2d 814, 818 (9th Cir.1961); U. S. v. Orescent Amusement Co., 323 U.S. 173, 177-178, 65 S.Ct. 254, 89 L.Ed. 160 (1944). Cf. Healy v. Pennsylvania R. Co., 181 F.2d 934, 936-937 (3d Cir.1950), cert. den. 340 U.S. 935, 71 S.Ct. 490, 95 L.Ed. 674 (1951). An appeal from a non-appealable judgment or order is sometimes characterized as a “nullity”. U. S. v. Crescent Amusement Co., supra, 323 U.S. p. 177, 65 S.Ct. p. 256; Euziere v. U. S., supra, 266 F.2d p. 91.
Because of our views about the proceedings on June 25, later expressed in the text of the opinion, it is unnecessary to decide whether the filing of the abortive notice of appeal on May 29 deprived the trial court of jurisdiction to proceed further. Resnik v. La Paz Guest Ranch, supra, 289 F.2d p. 818, intimates that jurisdiction is lost only when the appeal is timely.
. This motion had also been heard on June 25, 1962 immediately prior to the motion of defendant to dismiss the appeal.
. As stated in the body of this opinion no written order was made by the court after its oral opinion was rendered. This would not necessarily have deprived its oral opinion from having the effect of an order provided the court clearly intended its opinion to be its final act in adjudicating or disposing of the matter before it. See United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232-233, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). But the court’s request for the submission of an order allowing the appeal indicated that it did not intend that its opinion should have the status of an order.
In the federal courts an opinion is not a part of the record proper. A statement in an opinion of the conclusion reached by a court, even though couched in mandatory terms, should not serve as an order or judgment of the court. It is most desirable in order to avoid the confusion so apparent in the present record that a definitive order or judgment be made and entered in the court’s docket. In re D’Arcy, 142 F.2d 313, 315 (3 Cir. 1944). Since no order was made on the opinion, the court made no effective disposition of the matter before it. Healy v. Pennsylvania R. Co., 181 F.2d 934, 936 (3 Cir.1950), cert. den. 340 U.S. 935, 71 S.Ct. 490, 95 L.Ed. 674 (1951).
The entry which was made in the docket on June 25 does not affect our views. That entry reads: “6-25-62 Hearing on Motion to Dismiss Notice of Appeal * * * Ordered Motion denied”.
The making of a docket entry was an erroneous ministerial act of the clerk. United States v. Rayburn, 91 F.2d 162, 164 (8th Cir.1937). Since, in fact, no order had been made denying defendant’s motion, the docket entry possesses no legal effect.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_circuit
|
I
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Plaintiff-Appellee, v. Franklin Neil BRADY, Defendant-Appellant.
No. 86-5305.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 6, 1987.
Decided June 10, 1987.
Nancy L. Worthington, Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Nancy L. Worthington, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.
Ezekiel E. Cortez, Barbara Duey, San Diego, Cal., for defendant-appellant.
Before SNEED, KOZINSKI and THOMPSON, Circuit Judges.
SNEED, Circuit Judge:
Appellant claims that the district court ought to have suppressed certain statements he made to a police officer and the physical evidence to which the statements led. We disagree. Therefore, we affirm appellant’s conviction for possession of a controlled substance with intent to distribute, 21 U.S.C. § 841(a)(1).
I.
FACTS AND PROCEEDINGS BELOW
About 6:00 p.m. on May 29, 1986, two policemen were called to investigate a report of a man beating a woman. The first officer to arrive on the scene, Officer Triv-iz, talked to a girl seated in the passenger seat of a parked car. She said there was nothing wrong, but appeared nervous. A young couple approached Triviz and said that a man had struck a woman on the head, had forced her into a black Thunderbird, and had driven away. They provided a license plate number. Another passerby corroborated the story, except for one digit of the car’s license plate. Officer Johnson, who had arrived in the meantime, drove around the block and looked in vain for the Thunderbird. Shortly thereafter, the young man who had been talking to Triviz said, “There he is.” Appellant Franklin Brady approached in a black Thunderbird and slowed down. Triviz backed his patrol car toward the Thunderbird. A woman, Caroline Roseborough, got out of the Thunderbird and ran toward Johnson.
Triviz, shielded by the patrol car’s door, drew his gun and ordered Brady to get out of the Thunderbird. After Brady complied, an officer frisked him and found no weapons. Triviz was concerned, among other reasons, because he saw a suspected motorcycle gang member carrying a knife among the group of people who had gathered. Triviz asked Brady for permission to search the Thunderbird. Brady replied ambiguously. Triviz also asked Brady if he had a gun in the car. Brady indicated that he had a gun in the trunk. Triviz searched the trunk of the Thunderbird and the containers within it. He found a revolver, two speed loaders, ammunition, seal bombs, an electronic scale, a bag of what appeared to be methamphetamine, and a powder that appeared to be a cutting agent.
The three witnesses who testified at the suppression hearing gave conflicting testimony about the circumstances of Triviz’s conversation with Brady. Triviz testified that he spoke with Brady before putting him in his caged patrol car, and that he handcuffed Brady only after putting him in the car. Reporter’s Transcript (R.T.) at 15-16, 33-34. According to Johnson, Triviz both handcuffed Brady and seated him in the back of his patrol car before asking for permission to search. R.T. at 106, 116. Roseborough testified that Triviz handcuffed Brady immediately after the pat-down, then questioned him, but did not put Brady in the patrol car until some time after that. R.T. at 53-55.
A grand jury indicted Brady for possession of a controlled substance with intent to distribute. Brady moved to suppress physical evidence. After a hearing, the district court denied this motion and Brady’s oral motion to suppress his statements. Brady entered a guilty plea conditioned upon his right to appeal. That appeal is now before us. The district court sentenced Brady to five years’ imprisonment, a special parole term of three years, and a $50 penalty assessment.
II.
STANDARD OF REVIEW
We review findings of fact at a suppression hearing for clear error. United States v. Feldman, 788 F.2d 544, 550 (9th Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). Whether a person was in custody and whether he was interrogated are questions of fact. United States v. Poole, 806 F.2d 853, 853 (9th Cir.), amending 794 F.2d 462 (9th Cir.1986). No Ninth Circuit case defines the standard of review for a district court’s finding that a threat to public safety temporarily suspends the obligation to give Miranda warnings. Because this is a mixed question of fact and law that implicates constitutional rights, we hold that it is subject to de novo review. See United States v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
III.
DISCUSSION
Brady contends that Triviz violated Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), by asking him whether he had a gun. Consequently, Brady continues, Triviz could not rely on Brady’s response to the question to establish probable cause to search the Thunderbird. Brady concludes that the evidence found in the trunk should be suppressed.
A. Custodial Interrogation.
Miranda requires the police to give certain warnings to a person in custody before interrogating him. 384 U.S. at 444-45, 86 S.Ct. at 1612-13. A person is in custody if he is under arrest, or if his freedom of movement is restrained to a degree associated with formal arrest. New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 2631, 81 L.Ed.2d 550 (1984). If the police stop a person, a court should inquire whether the "stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights." Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 3149, 82 L.Ed.2d 317 (1984). If a stop is brief, public, and not dominated by the police, a Miranda warning is not required. Id. at 437-39, 104 S.Ct. at 3148-50.
Courts in this circuit apply an objec-five reasonable person test to determine whether a person is in custody. United States v. Crisco, 725 F.2d 1228, 1231 (9th Cir.), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984). Ordinarily, we defer to a district court's finding on this question. However, in this case the district court made no exrlicit finding as to whether Brady was in custody. The government urges us to assume that Brady was not in custody, while Brady asserts that the district court implicitly found that he was in custody by its Miranda rulings.
Where necessary, we will independently examine facts, findings, and the record to determine whether constitutional rights have been respected. United States v. Walczak, 783 F.2d 852, 855 (9th Cir.1986). On balance, we conclude that Brady was in custody. Two officers stopped him at gunpoint. Two witnesses said Brady was handcuffed before being questioned, The circumstances in which Brady was questioned resemble the circumstanèes in Quarles, 467 U.S. at 652, 655, 104 S.Ct. at 2629, 2631. There the Supreme Court held that the accused, Quarles, was in custody. We reach the same conclusion here.
Moreover, Triviz's conversation with Brady constituted interrogation. "[T]he term `interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980) (footnotes omitted), cited with approval in Arizona v. Mauro, - U.S. -, 107 S.Ct. 1931, 1934, 95 L.Ed.2d 458 (1987). By asking Brady whether he had a gun, Triviz opened the way to Brady's admission that he had one. This response could incriminate Brady in several ways. For example, it could indicate that Brady was violating state statutes that regulate possession of firearms. Thus, we conclude that Triviz's conversation with Brady amounted to on-the-scene custodial interrogation.
B. The Quarles Exception.
The district court held that this case falls within the public safety exception to the Miranda requirement. In Quarles, the Supreme Court held that Miranda need not "be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety." 467 U.S. at 656, 104 S.Ct. at 2632. Inasmuch as the Miranda warning requirement is not a constitutional right, id. at 654, 104 S.Ct. at 2630, but rather a "prophylactic" measure, exceptions are constitutionally permissible. The Quarles exception rests on the ease with which "police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.” Id. at 658-59, 104 S.Ct. at 2632-33. Our review draws its substance from the same distinction. Under the circumstances of this case, we hold that Triviz’s questions were not designed to elicit testimonial evidence. That is, they were not investigatory.
Triviz had to control a dangerous situation. A crowd was gathering on the public street where Brady’s Thunderbird stood with its door open and the keys in the ignition. This was a rough neighborhood, and it was growing dark. If Brady had a gun in the passenger compartment of his car, a passerby or accomplice could seize it. R.T. at 146-47. In order to neutralize this danger, Triviz properly asked Brady whether he had a gun.
Brady emphasizes the factual differences between this case and Quarles. In Quarles, the police “were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket.” 467 U.S. at 657, 104 S.Ct. at 2632. By contrast, Triviz had much less reason to believe that Brady had disposed of a gun in a place where it posed an immediate public danger. In Quarles, an eyewitness told police that Quarles was armed. No one said Brady was armed. In Quarles, the arresting officer saw Quarles’ empty holster. There was no similar indication that Brady possessed a weapon. In Quarles, the officer had reason to believe that Quarles had disposed of his gun where it posed a public danger. Triviz had no reason to think that Brady had placed an unguarded weapon in a public place.
The questions posed to Quarles also differed from the questions posed to Brady. In Quarles, the officer asked, “Where is the gun?” This question was immediate, spontaneous, and urgent. By contrast, the colloquy between Triviz and Brady was more extended. Also, there is conflicting testimony about exactly what Triviz and Brady said. See supra note 1. But it appears that Triviz asked more than one question, and that he tried to obtain Brady’s consent to search before Brady mentioned the gun in his car trunk.
Although we acknowledge these differences, we do not believe that the Supreme Court in Quarles intended to limit its ruling to the particular facts of that case. The case before us falls between the polar cases of Quarles, which illustrates questioning exempt from Miranda, and Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), which illustrates questioning subject to Miranda. In Orozco, police arrested the suspect in his bedroom at 4:00 a.m. to ask him about his whereabouts at the time of a murder and whether he owned a pistol. 394 U.S. at 325, 89 S.Ct. at 1096. The questions were investigatory and sought to elicit testimonial evidence. They were not aimed at controlling an immediate threat to public safety. Therefore Orozco was entitled to a Miranda warning.
Triviz’s questions to Brady arose from his concern with public safety, his desire to obtain control of what could be a dangerous situation. They were not designed to obtain evidence of a crime. Therefore Quarles, not Orozco, applies. Brady was not entitled to a Miranda warning, and we will not suppress his statements. The only remaining issue is whether Brady’s answers gave Triviz probable cause to search his car trunk. To that we now turn.
C. Probable Cause to Search.
After Brady said he had a gun in the trunk, Triviz had probable cause to think that Brady was violating California Penal Code § 12025, which prohibits carrying a concealed firearm in a vehicle without a permit. Under United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982), Triviz could search Brady’s car and containers within it that might conceal a firearm. R.T. at 158-59 (district court’s holding).
Alternatively, Triviz derived authority for the search from California Penal Code § 12031(e). Section 12031 prohibits carrying a loaded firearm in a vehicle in a public place, and subsection (e) authorizes the police to examine a firearm to determine whether it is loaded. Some California courts have held that the police must have probable cause to believe that a firearm is loaded before they may inspect it. See, e.g., People v. Kern, 93 Cal.App.3d 779, 782-83, 155 Cal.Rptr. 877, 879 (1979). However, the prevailing view is that the police may inspect a firearm which they know is in a vehicle, regardless of whether they have probable cause to believe that it is loaded. People v. Azevedo, 161 Cal.App.3d 235, 244, 207 Cal.Rptr. 270, 275-76 (1984) (following People v. Zonver, 132 Cal.App.3d Supp. 1, 183 Cal.Rptr. 214 (1982)); People v. Greer, 110 Cal.App.3d 235, 238-39, 167 Cal.Rptr. 762, 764 (1980); People v. DeLong, 11 Cal.App.3d 786, 791, 90 Cal.Rptr. 193, 195-96 (1970).
Therefore the search of the trunk was valid. Triviz found the drugs in plain view. Thus, both statements and drugs clear the barriers of Miranda as well as the Fourth and Fifth Amendments. We uphold the district court’s decision to deny Brady’s motions to suppress physical evidence and statements.
AFFIRMED.
. The three witnesses at the suppression hearing gave different accounts of the conversation between Triviz and Brady. The district court found, contrary to Triviz’s testimony, that Triviz asked Brady if he had a gun. Reporter’s Transcript (R.T.) at 144, 156, 159. The district court also assumed that Triviz asked for permission to search the car in general, and that it was Brady who mentioned the trunk in particular. R.T. at 145-46, 148. The transcript of each witness’s testimony reads as follows:
Officer Triviz.
A. I believe I said, "Do you mind if I search your car?’’
Q. When you asked the defendant that question, did he give you a response?
A. Yeah. He looked a little dejected and hung his head and said, "No. No, I don’t want you to search it. I have a gun in the trunk.”
R.T. at 16; see R.T. at 36-37 (cross-examination).
Mr. Roseborough.
A. Okay, when they were waiting for the warrant check to come back, I believe, Officer Triviz asked, he goes, "Do you mind if I look in your car?” He said that to Frank.
And Frank kinda said, "Well, not really, but I guess it’s okay if you look in it.” And Officer Triviz said, "Oh — ” Frank, said something about, that he couldn’t search — couldn’t search the trunk, and Officer Triviz goes, "Well, why? Do you have a gun?”
Q. What did Frank say?
A. Frank said yes.
R.T. at 55; see R.T. at 59-60 (cross-examination).
Officer Johnson.
A. After Mr. Brady had sat in the car, Officer Triviz asked him, "Hey, what’s going on?” Mr. Brady said, “I don’t know what you’re talking about.” Officer Triviz says, “Have you got any weapons in your car?” And he says, "No."
He said, “Do you mind if I look?” He says,
‘Well, I don't want you to look because I have a gun in the car,” or something to that general statement. That’s not an exact quote.
R.T. at 107; see R.T. at 116-17 (cross-examination).
. Contrary to the government's argument, even if Triviz could search the interior of the car for weapons under Michigan v. Long, 463 U.S. 1032, 1049-5 1, 103 S.Ct. 3469, 3480-82, 77 L.Ed.2d 1201 (1983), that would not imply that he could ask Brady if he had a gun. Questioning can be more intrusive than a search because it can evoke an incriminating response in a situation where a lawful search would uncover nothing.
. Triviz’s subjective motivation does not affect whether Quarles applies. 467 U.S. at 656, 104 S.Ct. at 2631. Rather, we ask whether there was "an objectively reasonable need to protect the police or the public from any immediate danger.” Id. at 659 n. 8, 104 S.Ct. at 2633 n. 8 (emphasis added).
. In Quarles, a woman alleged that an armed man had raped her and had entered a store. An officer went into the store, saw a man matching the woman’s description, and pursued him to the back of the store. When he apprehended the suspect, the officer noticed that the suspect's shoulder holster was empty. The officer asked where the gun was. The suspect nodded toward some empty cartons and said, "the gun is over there.” It was. The Supreme Court held that neither the statement nor the gun need be suppressed.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_respond1_8_3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
MITCHELL v. NELSON et al. (two cases). In re LOUCKES.
(Circuit Court of Appeals, Fourth Circuit.
January 11, 1927.)
Nos. 2532, 2543.
1. Chattel mortgages <©=>196 — In Maryland unrecorded chattel mortgages were void against subsequent creditor without notice, and he could acquire superior lien.
Under law of Maryland, where bankrupt’s creditor had no knowledge of prior chattel mortgages having legal status of unrecorded incumbrances because recorded in wrong counties, they w.ere void as to him, and he could by judgment and execution or by attachment acquire lien superior to mortgage liens, though he knew of mortgages when he began legal proceedings.
2. Chattel mortgages <©==153 — Holders of prior unrecorded' chattel mortgages and subsequent creditor without notice, who took mortgage with notice, held entitled to share ratably.
Where ■ bankrupt’s creditor, when he became such, had no knowledge of two prior chattel mortgages having status of unrecorded incumbrances because recorded in wrong counties, but learned thereof before he took chattel mortgage, held that, as all three mortgagees were simple contract creditors, they were, as between themselves, entitled to share ratably in proceeds of mortgaged property.
3. Bankruptcy <©=>440 — Adjudication awarding proceeds of property to prior unrecorded incumbrancers to exclusion of subsequent creditor without notice held reviewable by appeal, and not petition to revise.
Adjudication awarding proceeds on sale of property to holders of prior unrecorded chattel mortgages to exclusion of subsequent creditor without notice, who took chattel mortgage with notice, held reviewable by appeal, and not by petition to revise, where review proceedings were commenced by such creditor before amendatory Bankruptcy Act of 1926 (44 Stat. 662) became effective.
On Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States for the District of Maryland, at Baltimore, in Bankruptcy; Morris A. Soper, Judge.
Appeal from the District Court of the United States for the District of Maryland, at Baltimore, in bankruptcy'; Morris A. Soper, Judge.
In the matter of Frank I. Louekes, bankrupt, in which Norman T. Nelson was appointed trustee in bankruptcy. On petition of Guy K. Mitchell, executor of Annie W. Mitchell, deceased, to superintend and revise in matter of law, and on appeal from, proceedings of the District Court awarding proceeds of sale of propex*ty to West Baltimore Bank and another to the exclusion of petitioner.
Petition to revise dismissed. Decree reversed and remanded.
Charles S. Hayden, of Baltimore, Md., for petitioner and appellant.
Clarence A. Tucker, of Baltimore, Md. (Knapp, Tucker & Thomas, Jacob F. Mux*bach, and Wendell D. Allen, all of Baltimore, Md., on the brief), for respondents and appellees.
Before WADDILL, ROSE, and PARKER, Circuit Judges.
ROSE, Circuit Judge.
Upon a petition filed February 16,1925, Frank I. Louekes was on that date adjudicated a bankrupt. Among his assets were a crane and a steam shovel, both covered by a duly executed and recorded chattel mortgage to one Mitchell. This mortgage dated and recorded on September 18, 1924, secured a debt of $1,760.40 contracted between February 29 and May 14, 1924. On the 16th of March, 1923, the bankrupt had mortgaged the crane and other property to the West Baltimore Bank, and on the 28th. of February 1924, in like fashion he mortgaged the shovel to the Fidelity Trust Compaq ny. These last two mortgages were recorded in the wrong county and had the legal status of unrecorded incumbrances. When Mitchell became a creditor of the bankrupt, he was in entire ignorance of these instruments, but he-learned of their existence just before he took his own mortgage.
By agreement the crane and shovel were sold by the trustee in bankruptcy. Neither of them brought enough to satisfy the unrecorded mortgage upon it and the net proceeds of' both together did not equal the balance due-on that to Mitchell. The referee and the District Court held that the trustee in bankruptcy was not entitled to any of the money-coming from either of them because the mortgage to Mitchell had been made and recorded more than four months before the filing of the petition in bankruptcy. He was awarded the proceeds of .such property as was covered by either of the unrecorded mortgages but was not mentioned in that to Mitchell because, as he represented creditors who had trusted the bankrupt, without having any notice of the unrecorded instruments, his rights were not affected by them. It was, however, adjudged that the mortgagees in them should be preferred to Mitchell because when he took his mortgage, he knew of the existence of the other two. In substance, it was ruled that while the mortgage to Mitchell gave him nothing, it was effectual to take from the trustee money which would otherwise have gone to him.
It was thought that this somewhat peculiar result was required by the Maryland decisions and especially by the comparatively recent ease of Roberts v. Robinson, 141 Md. 37, 118 A. 198. In it a bankrupt had entered into an unrecorded agreement with Robinson. This agreement the court construed to be at once a conditional sale of cans with reservation of title to them and the creation of a lien upon whatever the bankrupt put into them. In either aspect, it was held to be altogether ineffectual as against the trustee in bankruptcy representing subsequent creditors. The proceeds of the sale of the cans and their contents amounting to some $9,000, would therefore have gone to him had there been nothing in the case other than this unrecorded agreement. It so happened, however, that after its execution, and with the knowledge of its existence, and before the bankruptcy, Roberts actually advanced some $8,500 to the bankrupt and took actual possession of the cans and their contents ás security therefor. As the loan was for present consideration, it was said it was good as against the trustee in bankruptcy, but that, as Roberts knew of the prior agreement when he made it, he would not be allowed to profit by what the law said was his fraudulent act. It was consequently ruled that, while his advance of $8,500 was to that amount effectual to defeat the claim of the trustee, it profited him nothing as against Robinson.
In point of fact, the Roberts advance of $8,500 was treated as having, so far as it went, made good against the world Robinson’s otherwise void lien, and the latter was held entitled to the proceeds of the canned goods in which, but for it, he would have had the rights of an unsecured creditor only. The sum of less than $500, which represented the difference between the value of the cans and their contents and the advance of Roberts, was all that was allotted to the trustee.
In the instant ease, not only has the trustee refrained from appealing, but he has expressly disclaimed all interest in the controversy. We intimate no opinion as to whether he was or was not well advised in so doing, or as to what we should have held his rights to have been had he here challenged the decree below. Under the circumstances our review is limited to the relative pretensions of Mitchell and of the holders of the unrecorded instruments. The position of Mitchell differs from that of Roberts in the case referred to, in that, when Roberts made his advance, he knew of Robinson’s prior equitable lien. When the bankrupt became indebted to the former, he knew nothing of these prior papers, and under the law of Maryland they were void as to him. Nelson v. Hagerstown Bank, 27 Md. 52; Carson v. Phelps, 40 Md. 73; Sixth Ward Building Association v. Willson, 41 Md. 506; Dyson v. Simmons, 48 Md. 209; Pfeaff v. Jones, 50 Md. 263; Stanhope v. Dodge, 52 Md. 485; Brown v. Maryland Mining & Manufac. Co., 55 Md. 547; Nally v. Long, 56 Md. 567; Hoffman v. Gosnell, 75 Md. 577, 24 A. 28; Textor v. Orr, 86 Md. 392, 38 A. 939; Davis v. Harlow, 130 Md. 165, 100 A. 102; Roberts v. Robinson, supra. By judgment and execution thereon, or by process of mesne attachment, if circumstances justified, he could have acquired a lien upon the property covered by the prior mortgages, superior to any which their holders could assert, although at the time he began legal proceedings he knew of them. Pfeaff v. Jones, supra; Brown v. Maryland M. & M. Co., supra.
Why, then, might he not secure by mortgage rights which the courts would have given him for the asking ? Because he could not get a mortgage unless the bankrupt gave him one, and that was something which both he and the bankrupt then knew the latter had no moral right to give. However ineffective the prior mortgages were as against Mitchell, they were binding on the conscience of the man who had executed and delivered them, and Mitchell could not profit by the bankrupt’s breach of faith. 2 Pomeroy’s Equity Jurisprudence, § 688. Does it follow that the decree below was right? We think not. Mitchell, it is true, took nothing by his mortgage, but we do not see that he lost anything by it. Before it was given him, the unrecorded mortgages were void as to him. As far as he was concerned their holders, like himself, were simple contract creditors, and, if he was the only other person entitled to share in the proceeds of the mortgaged property, as the trustee concedes he is, such proceeds would have been distributed among the mortgagees and Mitchell in proportion to their respective claims. We see no reason why the same rule should not now apply. To hold otherwise would be, not only to set aside the mortgage to Mitchell as we do, but to forfeit that to which, but for it, he was entitled.
It follows that Mitchell, to the extent of his claim, after crediting upon it whatever he has received from the property mortgaged to him and not covered by either of the prior mortgages, should participate ratably with the prior mortgagees in the net avails of the crane and the shovel. The sum going to him should be deducted proportionately from the net proceeds of the crane and the shovel respectively. The balance remaining of each should be paid to the holder of the unrecorded mortgage upon the article from which it was derived.
The proceedings to secure a review were begun before the going into effect of the amendatory Bankruptcy Act of 1926 (44 Stat. 662). Mitchell has brought his ease before us both by petition to superintend and revise and by appeal. The latter appears to us to be the proper remedy. It follows that the petition to superintend and revise, in case No. 2532 on our docket, will be dismissed, with costs, and in No. 2543 the decree below will be reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.
Case No. 2532, dismissed.
Case No. 2543, reversed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
In re UNIVERSITY MEDICAL CENTER, Debtor. UNIVERSITY MEDICAL CENTER, et al. v. Louis W. SULLIVAN, Secretary of the United States Department of Health and Human Services, et al. Louis W. Sullivan, Appellant No. 91-1407, Trustee in Bankruptcy on behalf of University Medical Center and the Unsecured Creditors Committee, Appellants No. 91-1438.
Nos. 91-1407, 91-1438.
United States Court of Appeals, Third Circuit.
Argued Feb. 3, 1992.
Decided Aug. 24, 1992.
Rehearing and Rehearing In Banc Denied Oct. 21, 1992.
Stuart M. Gerson, Asst. Atty. Gen., Michael M. Baylson, U.S. Atty., William Ranter, Mark B. Stern, and Jeffrey Clair (argued), U.S. Dept, of Justice, Civ. Div., Appellate Staff, Washington, D.C., for appellant/ cross-appellee.
Mark H. Gallant (argued), James M. Mat-our, Todd L. Silverberg, and Howard A. Kirkwood, Jr., Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for appel-lees/cross-appellants.
Before: BECKER, ROTH, Circuit Judges, and McCUNE, District Judge.
. Honorable Barron P. McCune, United States District Court Judge for the Western District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
ROTH, Circuit Judge:
These consolidated cross-appeals by plaintiffs, University Medical Center (“UMC”) and the Official Creditors’ Committee, and defendant Louis W. Sullivan, Secretary of Health and Human Services, require us to delineate the appropriate relationship between a Medicare provider and the Department of Health and Human Services (“HHS” or “the Department”) from the time of the provider’s bankruptcy petition filing until its cessation of business — a relationship shaped by the intersection of the Medicare Act and the Bankruptcy Code. Specifically, UMC raises the question of whether HHS, seeking to recover pre-petition Medicare provider reimbursement overpayments, may withhold payments for Medicare services rendered post-petition without controverting the Bankruptcy Code’s automatic stay. The Secretary appeals the order of the district court, affirming the bankruptcy court’s finding that HHS violated the automatic stay by withholding such payments. UMC has filed a cross-appeal based on the district court’s reversal of the bankruptcy court’s award of attorneys’ fees and costs to UMC. The district court'found that the Department’s violation of the automatic stay was not “willful,” as is required for such an award under Bankruptcy Code section 362(h).
We agree with the district court that the Secretary’s withholding of UMC’s Medicare reimbursement, due for services rendered post-petition, in an attempt to recover pre-petition Medicare overpayments, violated the Bankruptcy Code’s automatic stay. We further find that this violation was not willful as required for a section 362(h) award of attorneys’ fees and costs. We will, therefore, affirm.
I. STATUTORY AND REGULATORY BACKGROUND
UMC was a participant in the Medicare program, 42 U.S.C. §§ 1395-1395cec (1988 & Supp. I 1989), which provides health insurance for the elderly and disabled. As a general care hospital, UMC serviced Medicare beneficiaries pursuant to a “provider agreement” filed with HHS. This agreement, executed in 1966 between the Broad Street Hospital and the Secretary of Health, Education and Welfare, the predecessors in interest to UMC and HHS respectively, is similar to provider agreements entered into by hospitals and health care facilities across the country. Through executing the provider agreement, Broad Street Hospital became eligible to receive reimbursement payments, in accordance with the terms of the Medicare statute, for services rendered to Medicare beneficiaries. In exchange, the hospital agreed to charge these beneficiaries only as allowed by statute and to comply with certain civil rights laws in providing these services.
Medicare reimbursement of inpatient hospital services is governed by the Prospective Payment System (“PPS”). Under PPS, each discharged patient is classified into a Diagnosis Related Group (“DRG”). Providers are paid most reimbursable expenses pursuant to predetermined, national and regional rates that are fixed for each DRG. See 42 U.S.C. § 1395ww(d). HHS makes these reimbursements through fiscal intermediaries, such as the Blue Cross Association. To insure that providers are paid promptly, the Medicare statute requires that payments be made at least monthly and otherwise at the discretion of HHS. 42 U.S.C. § 1395g(a). Under the usual reimbursement procedure, periodic interim payments, which are estimates of actual expenditures, are made by the intermediary upon application of a provider at the discharge of each Medicare patient. Providers are also entitled to receive additional estimated payments based on their actual costs for capital expenses, outpatient services, and certain other costs. 42 C.F.R. § 412.113 (1991). Actual expenditures of each provider are audited by the intermediary annually to determine whether the provider has been over or underpaid for that cost-year. HHS then adjusts the provider’s subsequent Medicare reimbursement payments to account for prior over or underpayments. 42 U.S.C. § 1395g(a). Such adjustments are mandated by Medicare’s PPS.
. II. FACTS AND PROCEDURAL HISTORY
On January 1, 1988, UMC filed a voluntary petition under Chapter 11 of the Bankruptcy Code. 11 U.S.C. §§ 101-1330 (1988 & Supp. II 1990). After this filing UMC continued to serve Medicare patients as a debtor-in-possession. One week later, on January 8, 1988, Blue Cross of Greater Philadelphia (“Blue Cross”), UMC’s fiscal intermediary, informed UMC by letter that the hospital had been overpaid $276,042 for Medicare services provided in 1985. This letter stated that Blue Cross would begin 100% withholding of interim reimbursement payments unless UMC made repayment or agreed to a long-term repayment schedule. UMC did not respond. On February 8, 1988, Blue Cross sent a second letter, again stating that 100% withholding of interim payments would begin unless other arrangements for return of the overpayment were made. Blue Cross subsequently withheld a $58,000 payment on February 18.
Prompted by this action, UMC officials met with a Blue Cross representative and orally agreed to provide Blue Cross with documentation detailing UMC’s need for an extended repayment schedule. In the interim, UMC agreed to repay the 1985 overpayment at a rate of $15,000 per month over a period of 18 months. The UMC officials apparently consented to this arrangement in order to maintain the hospital’s flow of Medicare reimbursement, which it required to meet its payroll obligations. On March 4, 1988, UMC remitted $15,000 to Blue Cross, after which Blue Cross released the $58,000 it had withheld. However, UMC neither sought court approval of this arrangement nor advised any other interested party, including the Creditors’ Committee, of this repayment plan. UMC failed to supply Blue Cross with the documentation needed to formalize the repayment agreement. On March 28, 1988, Blue Cross announced that it would resume 100% withholding. Three days later, UMC closed its doors and ceased doing business.
HHS, through Blue Cross, withheld from UMC a total of over $312,000 in reimbursement for Medicare services provided by UMC after it filed its petition in bankruptcy. Meanwhile, Blue Cross determined that, in addition to the 1985 overpayment, UMC had been overpaid by $470,894 in 1986 and by $65,447 in 1987.
On June 17, 1988, UMC brought an adversary proceeding against HHS in the Bankruptcy Court for the Eastern District of Pennsylvania, alleging that the Department’s actions, in demanding payment for pre-petition Medicare overpayments and in withholding post-petition reimbursement to recover the amounts overpaid, violated the automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362. UMC requested turnover of these funds, pursuant to Bankruptcy Code sections 542 and 543, and an award of attorneys’ fees and costs under Code section 362(h). HHS answered by claiming the affirmative defense of contractual recoupment.'On July 8, 1988, HHS filed a separate motion for relief from the automatic stay.
The bankruptcy court held that HHS had violated the Bankruptcy Code’s automatic stay provision. This conclusion was based upon the court’s finding that UMC had not assumed its provider agreement and that as a consequence the Department’s demand that UMC repay the pre-petition over-payments as a condition of receiving future Medicare reimbursement constituted the type of governmental discrimination against debtors prohibited by the anti-discrimination provision of the Bankruptcy code, 11 U.S.C. § 525(a). In re University Medical Center, 93 B.R. 412, 416-417 (Bankr.E.D.Pa.1988). In reaching this decision, the bankruptcy judge relied heavily on his opinion in an unrelated case, In re St. Mary Hospital, 89 B.R. 503 (Bankr.E.D.Pa.1988), which was decided while the present action was pending. Because the bankruptcy court held the withholding to be impermissible under section 525(a), it also refused to grant relief from the stay under 11 U.S.C. § 362(d). and ordered HHS both to return the $15,000 payment made by UMC in accord with the tentative repayment agreement and to pay UMC the amount due for post-petition Medicare services. University Medical Center, 93 B.R. at 417-18. In addition, the court awarded UMC prejudgment interest, attorneys' fees, and costs, on the ground that the Department’s decision to press this litigation after that court’s decision in St. Mary Hospital amounted to a willful violation of the automatic stay. Id. at 418-19.
HHS appealed this decision to the United States District Court for the Eastern District of Pennsylvania. In a published opinion, the district court affirmed the holding that HHS had violated the automatic stay but disavowed the reasoning of the bankruptcy court, adjudging the record inadequate to support a finding of discrimination in violation of Bankruptcy Code section 525(a). University Medical Center v. Sullivan, 122 B.R. 919 (E.D.Pa.1990). Instead, the district court anchored its af-firmance on its conclusions (1) that UMC had not assumed the provider agreement because, as an executory contract, assumption of that' agreement had to receive formal court approval, (2) that the Department’s withholding did not fall within the equitable doctrine of recoupment because the pre-petition overpayments arose from different transactions than did the post-petition Medicare reimbursement, and (3) that equity controls the relationship between debtor and creditor if, during the period between a bankruptcy filing and the assumption or rejection of an executory contract, performance under the contract continues. However, the district court reversed the bankruptcy court’s award of attorneys’ fees and costs to UMC, finding that the Department’s violation of the automatic stay was not willful as is required for such an award made under Bankruptcy Code section 362(h). The district court also denied the parties’ motions for reconsideration. University Medical Center v. Sullivan, 125 B.R. 121 (E.D.Pa.1991). Judgment was stayed pending appeal.
Both parties filed timely notices of appeal to this court. We review the district court’s decision under the same standards employed by the district court in reviewing the bankruptcy court’s decision. Thus our review of the district court’s conclusions of law is plenary. We review findings of fact under the clearly erroneous standard. In re Nelson Co., 959 F.2d 1260, 1263 (3d Cir.1992).
III. JURISDICTION
The Secretary now takes issue with our ability to exercise jurisdiction over this case and contends that neither the bankruptcy court nor the district court properly had jurisdiction over UMC’s claims. In particular, he contends that UMC’s claims arise under the Medicare statute and points to 42 U.S.C. § 405(h), made applicable to Medicare claims by 42 U.S.C. § 1395Ü, which precludes judicial review of any “claim arising under” the Medicare statute prior to the exhaustion of administrative remedies. Because we agree with UMC that the Bankruptcy Code supplies an independent basis for jurisdiction in this case, we reject the Secretary’s arguments and find that-the district and bankruptcy courts properly had jurisdiction under 28 U.S.C. §§ 157, 158 and 1334 and that we may properly exercise jurisdiction over this appeal under 28 U.S.C. §§ 158(d) and 1291.
The Medicare Act establishes an administrative channel of redress for health care providers dissatisfied with their reimbursement determinations. If a provider disputes an intermediary’s final determination of the reimbursement due for a fiscal year and the amount, in controversy exceeds $10,000, the provider can, within 180 days, request a hearing before the Provider Reimbursement Review Board. 42 U.S.C. § 1395oo (a). The Board’s decision is then subject to review by the Secretary. After exhausting these procedures, a provider may seek judicial review of the final agency determination. 42 U.S.C. § 1395oo (f)(1). See, e.g., Abington Memorial Hosp. v. Heckler, 750 F.2d 242, 244 (3d Cir.1984), cert. denied, 474 U.S. 863, 106 S.Ct. 180, 88 L.Ed.2d 149 (1985). Prior to the exhaustion of this administrative channel of review, no court has jurisdiction over claims arising under the Medicare Act.
Neither party contends that these administrative procedures were in fact exhausted in this case. Our ability to exercise jurisdiction over this appeal thus turns on whether UMC’s claims actually arise under the Medicare statute. The Supreme Court has construed the “claim arising under” language of section 405(h) broadly to encompass any claims in which “both the standing and the substantive basis for the presentation” of the claims is the Medicare Act. Heckler v. Ringer, 466 U.S. 602, 615, 104 S.Ct. 2013, 2022, 80 L.Ed.2d 622 (1984) (quoting Weinberger v. Salfi, 422 U.S. 749, 760-61, 95 S.Ct. 2457, 2464-65, 45 L.Ed.2d 522 (1975)). According to the Secretary, both requirements are satisfied in this case: the complaint seeks a money judgment in payment for health care services provided by UMC to Medicare beneficiaries and the reimbursement sought by UMC conforms to the rates established by the Medicare Act.
UMC responds that the administrative review channel set forth in the Medicare Act and regulations is available only for claims brought by a provider when dissatisfied with final reimbursement determinations of the fiscal intermediary. See 42 C.F.R. § 405.1841 (1991) (a request for a Board hearing “must identify the aspects of the determination with which the provider is dissatisfied, explain why the provider believes the determination is incorrect in such particulars, and be accompanied by any documenting evidence the provider considers necessary to support its position”). This case, however, does not raise that type of claim, because the parties do not dispute the amount of reimbursement due for any cost reporting period. In fact, the parties stipulated both to the amounts of the over-payments made to UMC and to the separate pursuit of any substantive dispute concerning these amounts through the normal administrative processes set forth in the Medicare statute. Due to the fact that its adversary proceeding was based on the contention that HHS violated the automatic stay provision of the Bankruptcy Code, UMC maintains that its claims arose under the Bankruptcy Code, not the Medicare Act. Thus, the mandate of section 405(h) that the Medicare Act’s administrative review procedures be exhausted before judicial review is sought simply does not apply to this case.
We agree with UMC. Its challenge to the Secretary’s attempt to recover pre-petition overpayments through post-petition withholding is not inextricably intertwined with any dispute concerning the fiscal intermediary’s reimbursement determinations. If UMC had not filed for bankruptcy, there would be no dispute concerning the monies due to HHS or the method for recovering them. Neither party questions the amount of pre-petition overpayments made to UMC nor any other determination of the fiscal intermediary that might be appealed to the Provider Reimbursement Review Board. Nor does either party take issue with the procedure by which the statute provides for making routine adjustments with a non-bankrupt provider for prior over or underpayments. See 42 U.S.C. § 1395g(a). This issue is only before us because UMC filed for bankruptcy and now claims that the withholding violated the automatic stay. We find, therefore, that UMC’s claim arises under the Bankruptcy Code and not under the Medicare statute.
In doing so, we recognize that a broad reading of section 405(h) might accord with Congress’ intent to allow “the Secretary in Medicare disputes to develop the record and base decisions upon his unique expertise in the health care field. The misfortune that a provider is in bankruptcy when he has a reimbursement dispute with the Secretary should not upset the careful balance between administrative and judicial review.” In re St. Mary Hosp., 123 B.R. 14, 17 (E.D.Pa.1991). However, a finding that jurisdiction is proper in this case does not impinge upon this authority of the Secretary protected by section 405(h). Indeed, there is no danger of rendering the administrative review channel superfluous, for there is no system of administrative review in place to address the issues raised by UMC in its adversary proceeding. Thus we agree with the Ninth Circuit that “where there is an independent basis for bankruptcy court jurisdiction, exhaustion of administrative remedies pursuant to other jurisdictional statutes is not required.” In re Town & Country Home Nursing Servs. Inc., 963 F.2d 1146, 1154 (9th Cir.1991). This conclusion advances the congressionally-endorsed objective of “the effective and expeditious resolution of all matters connected to the bankruptcy estate.” Id. at 1155. See also H.R.Rep. No. 595, 95th Cong., 1st Sess. 43-48, reprinted in 1978 U.S.C.C.A.N. 5787, 5963, 6004-08. The Secretary’s attack on the ability of the judicial system to resolve UMC’s claims thus fails.
IV. DISCUSSION
Having determined that we do have jurisdiction to hear this appeal, we must next consider whether the Department’s withholding of UMC’s post-petition payments violated the automatic stay provision of the Bankruptcy Code. To resolve this question we undertake a multiple-step analysis. First, does the automatic stay apply to government entities. Second, if it does, did UMC, after it filed for bankruptcy, assume its provider agreement. An important aspect of this second issue is whether formal court approval is a prerequisite to assumption of an executory contract pursuant to section 365 of the Bankruptcy Code. Third, even if the automatic stay is applicable and the agreement was not assumed, did HHS’s withholding fall within the scope of the recoupment doctrine. Finally, if we find that the recoupment doctrine does not apply, does equity control the post-petition relationship between UMC and HHS; and, if it does, is HHS permitted under the provisions of the Medicare Act to reimburse a provider without making adjustments for past overpayments.
A. The Automatic Stay
The automatic stay is one of the fundamental debtor protections supplied by the Bankruptcy Code. In re Atlantic Business & Community Corp., 901 F.2d 325, 327 (3d Cir.1990). Codified in section 362, the stay “prohibits, inter alia, the commencement or continuation of a judicial or administrative proceeding against the debt- or that could have been initiated before the petition was filed, or to recover on a claim that arose pre-bankruptcy.” United States v. Nicolet, Inc., 857 F.2d 202, 207 (3d Cir.1988). The stay
gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits a debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy.
In re Schwartz, 954 F.2d 569, 571 (9th Cir.1992) (quoting H.R.Rep. No. 595, 95th Cong., 1st Sess. 340 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5963, 6296-97). Thus, it is designed to replace the “unfair race to the courthouse” with orderly liquidation that treats all creditors equally. Nicolet, 857 F.2d at 207.
In drafting the Bankruptcy Code, Congress subjected the government, acting as creditor, to the limitations of the automatic stay provision. By its terms, section 362(a) applies to “all entities.” 11 U.S.C. § 362(a). The Bankruptcy Code defines the term “entity” as including governmental units. 11 U.S.C. § 101(14). See, e.g., In re Pearsori, 917 F.2d 1215, 1216 (9th Cir. 1990), cert, denied, — U.S.-, 112 S.Ct. 1291, 117 L.Ed.2d 514 (1992); In re Parr Meadows Racing Ass’n, 880 F.2d 1540, 1545 (2nd Cir.1989), cert, denied, 493 U.S. 1058, 110 S.Ct. 869, 107 L.Ed.2d 953 (1990); Penn Terra Ltd. v. Department of Envtl. Resources, 733 F.2d 267, 271-72 (3d Cir. 1984) (“the fact that Congress created an exception to the automatic stay for certain actions by governmental units itself implies that such units are otherwise affected by the stay”). Government agencies are only excepted from the reach of the automatic stay when proceeding “to enforce such governmental unit’s police or regulatory power.” 11 U.S.C. § 362(b). Congress intended this exception to apply
where a governmental unit is suing a debtor to prevent or stop violation of fraud, environmental protection, consumer protection, safety, or similar police or regulatory laws, or attempting to fix damages for violation of such law.
H.R.Rep. No. 595, 95th Cong., 1st Sess. 343 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6299; S.Rep. No. 989, 95th Cong., 2d Sess. 52, reprinted in 1978 U.S.C.C.A.N. 5787, 5838. Neither the language of section 362(b) nor its legislative history indicates that this exception was intended to permit government agencies to enforce contractual rights against a debtor without first seeking relief from the automatic stay. See In re Corporacion de Servicios Medicos Hospitalarios, 805 F.2d 440, 445 (1st Cir.1986). The Department’s withholding of UMC’s Medicare payments certainly did not fall within this police power exception to the stay, and the Secretary does not contend as much. Thus, unless we can conclude either that UMC assumed its provider agreement or that HHS was entitled to recoup the pre-petition over-payments through withholding UMC’s post-petition reimbursement, HHS was constrained by the automatic stay.
B. Assumption of the Provider Agreement
Bankruptcy Code section 365 empowers a trustee or debtor in possession, “subject to the court’s approval,” to “assume or reject any executory contract or unexpired lease of the debtor.” 11 U.S.C. § 365(a). This section is designed to “allow[ ] the trustee or debtor in possession a reasonable time within which to determine whether adoption or rejection of the exec-utory contract would be beneficial to an effective reorganization.” In re Whitcomb & Keller Mortg. Co., 715 F.2d 375, 379 (7th Cir.1983). During this period, the terms of an executory contract are temporarily unenforceable against the debtor. NLRB v. Bildisco & Bildisco, 465 U.S. 513, 532, 104 S.Ct. 1188, 1199, 79 L.Ed.2d 482 (1984).
Assumption of the executory contract requires the debtor to accept its burdens as well as permitting the debtor to profit from its benefits. Consequently, if UMC assumed its provider agreement, there is no question that HHS could withhold UMC’s post-petition reimbursement in order to recover pre-petition overpayments without violating the automatic stay. Through executing a provider agreement, a hospital accepts the “burden” of allowing HHS to recover the amount of prior over-payments from Medicare reimbursement currently due. Rejection, on the other hand, both cuts off any right of the contracting creditor to require the estate to perform the remaining executory portions of the contract and limits the creditor’s claim to breach of contract. Leasing Serv. Corp. v. First Tennessee Bank Nat’l Ass’n, 826 F.2d 434, 436 (6th Cir.1987). The district court concluded that formal court approval is required to effect an assumption of an executory contract in accord with the terms of section 365. Because UMC never sought court approval of its assumption of the provider agreement, the court found that this agreement was never assumed and, as a result, that its reimbursement overpayment provisions could not be enforced against UMC. We agree with this conclusion.
The Secretary contends, however, that, due to the detailed Medicare statutory scheme, a provider agreement is a unique type of executory contract that a debtor should be deemed to assume in accord with section 365 whenever performance under the agreement is continued beyond the filing of a bankruptcy petition, regardless of whether formal court approval is sought. Because, in the Secretary’s view, court approval was not required to effect UMC’s assumption of its provider agreement, the over-payments to UMC were properly withheld; UMC impliedly assumed the agreement, and a debtor that assumes the benefits of an executory contract cannot escape shouldering the burdens of that contract as well.
To buttress this argument, the Secretary points to the text of the Medicare statute and its implementing regulations. These state that a provider agreement remains in effect until either the provider ceases to do business or the agreement is formally terminated by the provider or the Secretary. This requirement, the Secretary explains, is designed to ensure that important Medicare interests are not compromised by uncertainty concerning a hospital’s status as a Medicare provider and to preserve the Department's statutory authority to enforce prescribed standards covering patient care, quality control, reimbursement, and coverage.
We cannot agree that the complexity of the Medicare scheme mandates a finding that court approval is unnecessary for the assumption of a provider agreement pursuant to section 365. By its terms, section 365 “includes all executory contracts except those expressly exempted.” Bildisco, 465 U.S. at 521, 104 S.Ct. at 1194. No express exemption exists for contracts formed with the government, and courts often have assumed, without discussion, that the ability of a debtor to assume or reject an executory contract pursuant to section 365 extends equally to contracts formed with the government. See, e.g., United States Dep’t of Air Force v. Carolina Parachute Corp., 907 F.2d 1469, 1472 (4th Cir.1990) (analyzing the government’s contract with the debtor under section 365); In re West Electronics, Inc., 852 F.2d 79, 82 (3d Cir.1988) (commenting, in the context of a debtor’s contract with the government, that “in general... under 11 U.S.C. § 365 West as a debtor in possession could assume an executory contract with court approval”); In re Harris Management Co., 791 F.2d 1412, 1414 (9th Cir.1986) (same).
Moreover, to circumscribe a debt- or’s power of assumption Congress has legislated special treatment for the assumption and rejection of collective bargaining agreements, 11 U.S.C. § 1113, and for the rejection of certain real property leases, 11 U.S.C. § 365(h). See, e.g., Sharon Steel Corp. v. National Fuel Gas Distrib. Corp., 872 F.2d 36, 40 (3d Cir.1989). Congress’ failure to legislate special treatment for the assumption or rejection of Medicare provider agreements indicates that assumption of these agreements, like that of other executory contracts, should be deemed subject to the requirements of section 365, unless and until Congress decides otherwise. Cf. Bildisco, 465 U.S. at 522, 104 S.Ct. at 1194 (concluding that because Congress did not draft an exclusion for collective bargaining agreements from the terms of section 365, Congress intended section 365 apply to those agreements). Thus, a provider agreement can only be assumed by a debtor hospital in accord with the terms of section 365. But see In re Advanced Professional Home Health Care, Inc., 94 B.R. 95, 97 (E.D.Mich.1988) (holding that through continuing to serve Medicare patients a debtor hospital obviates the need for strict compliance with the terms of § 365).
We have generally treated court approval as a prerequisite to a debtor’s assumption of an executory contract. See e.g., Counties Contracting & Constr. Co. v. Constitution Life Ins. Co., 855 F.2d 1054, 1060 (3rd Cir.1988) (finding court approval “mandated for effective assumption under [§ 365(a) ]”). Formal court approval of assumption of the provider agreement was neither sought nor granted in this case. As a result, UMC maintains that the agreement was never assumed but that such approval is necessary to effect the purpose of section 365(a). UMC’s position is consistent with the interpretation we have given to section 365(a) in cases such as Counties Contracting. In order to insure that a debtor has the opportunity to assess the advantages and disadvantages of assuming a contract, assumption must be approved. It cannot be presumed. As will be developed below, we acknowledge that the interests articulated by the Secretary are integral to the Medicare system and cannot merely be jettisoned in the wake of a provider’s filing in bankruptcy. At the same time, however, there are definite interests protected by Bankruptcy Code section 365 that HHS completely discounts.
In particular, the Secretary asserts that no purpose contemplated by Congress is advanced by requiring court approval of the assumption of a provider agreement when the debtor, without objection from creditors, voluntarily continues to render Medicare services. By so doing, the debtor hospital manifests its decision that continuation of the agreement is in the best interest of the estate. Thus, the Secretary contends, no further opportunity is needed for the exercise of the debtor’s business judgment in deciding whether the contract is beneficial. Moreover, the Secretary opines that creditors would suffer no discernible prejudice if continued performance by a debtor hospital were adjudged an implied assumption of the agreement. Rather than removing money from the estate and thus decreasing the funds available for distribution to a hospital’s creditors, the assumption of a provider agreement insures that additional Medicare revenues will flow into the estate. For these reasons, the Secretary claims that creditors are in no way harmed by such an assumption.
These arguments misapprehend the interests of creditors that can be implicated through the assumption of a provider agreement. Indeed, it is conceivable that creditors of a debtor hospital may well benefit from a decision to reject such an agreement. Rejection or assumption of an executory contract determines the status of the contracting creditor’s claim, namely whether “it-is merely a pre-petition obligation of the debtor, or is entitled to priority as an expense of administration of the estate.” Leasing Serv. Corp., 826 F.2d at 437. Prior to assumption, HHS is. in a position equivalent to general unsecured creditors: its recovery of pre-petition debt depends upon the amount left in the bankrupt’s estate after secured and priority creditors.are satisfied, and so is unlikely to be one hundred cents on the dollar. In contrast, if the provider agreement.is assumed, HHS, like other parties to assumed executory contracts, effectively “gains an administrative priority” against the estate. 1 COLLIER BANKRUPTCY MANUAL § 365.01, at 365-2 (Lawrence P. King ed., 3rd ed. 1992). See also, In re Taylor, 913 F.2d 102, 106-07 (3d Cir.1990).
In this case, HHS has asserted a right to recover overpayments to UMC totaling more than $800,000 for the period 1985 through 1987. However, after UMC negotiated the oral repayment arrangement with HHS on February 18, 1988, UMC survived as a going concern for only six weeks. Given UMC’s precarious financial position in February of 1988, the realistic result of an assumption of the provider agreement might have been to enhance temporarily UMC’s post-petition coffers by a few hundred thousand dollars. At the same time, this assumption would significantly improve the status of the Secretary’s pre-petition debts at the direct expense of all other unsecured creditors. Alternatively, though a rejection of the agreement would preclude the receipt of long-term future Medicare revenues, HHS still would have been required to pay for any services rendered post-petition. Moreover, HHS then would have been treated in a manner equal to other unsecured creditors in the asset - distribution for pre-petition debts. Thus, it is disingenuous to conclude that the interests of UMC’s other creditors would not be affected if a provider agreement is automatically assumed when a debtor hospital continues to treat Medicare patients after filing for bankruptcy.
Furthermore, such a holding would thrust a Medicare provider contemplating bankruptcy into a dilemma. Immediately upon filing a bankruptcy petition and without the benefit of a reasonable period for financial reflection as contemplated by section 365, a hospital would be forced to decide whether to assume or reject its provider agreement. If the provider chooses to continue service of Medicare patients for any period of time, regardless of its prospects for a successful reorganization, it would be deemed to have assumed the provider agreement, thereby assuring HHS an administrative priority over all general creditors. Alternatively, the provider could choose to terminate Medicare services and immediately reject the agreement, thereby in all likelihood abandoning any hope for a successful reorganization. Despite the Secretary’s protestations, we cannot deem such a result to be mandated by the Medicare statutory scheme; nor is it one contemplated by the Bankruptcy Code. Accord In re Memorial Hosp. of Iowa County, 82 B.R. 478, 484 (W.D.Wis.1988) (“Recognition of an exception to the requirement of court approval of assumption of exec-utory contracts nullifies • the clear and unambiguous statutory language of sections 362 and 365”).
We also find it significant that Bankruptcy Code section 365(d)(2) enables a creditor, at any time after a bankruptcy petition is filed, to move the court to compel the debtor’s assumption or rejection of an exec-utory contract. Congress intended this provision to “prevent parties in contractual or lease relationships with the debtor from being left in doubt concerning their status vis-a-vis the estate.” S.Rep. No. 989, 95th Cong., 2d Sess. 59 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5845. Here the district court specifically noted that HHS never moved the bankruptcy court to compel UMC either to assume or reject the provider agreement. See University Medical Center, 125 B.R. at 124. Particularly in this situation, where the creditor has failed to avail itself of the procedure supplied by the Bankruptcy Code for compelling a debtor’s decision on an executory contract, we find it inappropriate to announce a new rule that a debtor hospital’s continued treatment of Medicare patients results in an implied assumption of its provider agreement. Thus, we conclude that UMC did not assume its provider agreement at any time after filing its petition in bankruptcy. As a result, the Department’s withholding of UMC’s post-petition reimbursement did violate the automatic stay.
C. Recoupment
HHS contends, however, that under the equitable doctrine of recoupment, it still should be able,
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_source
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
UNITED STATES of America, Appellant, v. 174 CASES, MORE OR LESS, each containing 24 10-ounce packages of an article labeled in part: (package) “DELSON THIN MINTS CHOCOLATE COVERED * * * Delson Candy Co. * * * New York, N. Y. * * *".
No. 13904.
United States Court of Appeals Third Circuit.
Argued March 20, 1962.
Decided April 16, 1962.
William W. Goodrich, Washington, D. C. (Herbert J. Miller, Jr., Asst. Atty. Gen., Harold P. Shapiro, Duane Nelson, Attys., Dept, of Justice, David M. Satz, Jr., U. S. Atty., Clair A. Cripe, Atty., Dept, of Health, Education, and Welfare, on the brief), for appellant.
Richard P. Brown, Jr., Philadelphia, Pa., for appellee.
J. Wesley Oler, Philadelphia, Pa. (Morgan, Lewis & Bockius, Philadelphia, Pa., on the brief), for appellee, Delson Candy Co.
Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
PER CURIAM.
This is an appeal from a decision of the District Court for the District of New Jersey dismissing a libel against a number of cases of chocolate-covered mints manufactured by the Delson Candy Company. The libel is based upon the charge that the packaging of Delson Mints is so slack that the purchasing public is deceived and that the packaging used by Delson does not serve such functional usefulness as to justify the form of package adopted.
The case has been here once before. See United States v. 174 Cases, etc., 3 Cir., 287 F.2d 246 (1961). The opinion of the Court, by Chief Judge Biggs, outlined the manner in which a trial court could and should make findings of fact on the issues involved. The case was sent back to the trial court for this purpose.
The trial court, pursuant to the directions of this Court, did make findings and made them in detail. The conclusion based on those findings is that the libel should be dismissed. 195 F.Supp. 326 (1961).
Bearing in mind that our function in such a case is not to reverse the trial court unless the fact conclusions are clearly erroneous, we shall affirm in this instance. The findings were responsive to the questions involved. They were based upon consideration of a large amount of testimony. Whether we would agree with each one had we the initial responsibility is not the point here. The sustaining of the findings because not clearly erroneous is, of course, no foundation for a similar conclusion in cases presenting other questions of fact.
The judgment of the district court will be affirmed.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_typeiss
|
C
|
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.
Albert D. JOHNSON, Appellant, v. C.F. ASHBY, M.D., and J.E. Stitcher, M.D., Appellees.
No. 86-1214.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 17, 1986.
Decided Jan. 7, 1987.
James R. Welsh, Omaha, Neb., for appellant.
Robert T. Grimit and James A. Snowden, Lincoln, Neb., for appellees.
Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.
ARNOLD, Circuit Judge.
This medical-malpractice diversity action, brought by plaintiff Albert Johnson in the United States District Court for the District of Nebraska, comes to us on appeal from a judgment entered on a jury verdict for the defendants, Drs. C.F. Ashby and J.E. Stitcher. Johnson argues that the District Court abused its discretion and denied his right to a fair trial by imposing in advance of trial a strict time limit on the presentation of evidence. Because Johnson made no timely objection to the District Court’s time limitation, we affirm.
I.
Johnson’s complaint, filed May 18, 1984, alleged that he had come under the care of defendants Ashby and Stitcher on October 10, 1982, when he was admitted to the Fillmore County Hospital in Geneva, Nebraska, suffering from an abdominal injury, and that he had remained under their care until October 16, 1982, when he transferred to another hospital. Johnson alleged that the defendants had negligently failed to provide an immediate medical evaluation of his condition, failed to provide adequate and timely medical treatment, failed to perform exploratory surgery, and failed to refer the plaintiff to an appropriate medical specialist.
At a pretrial conference on August 28, 1985, the parties informed the District Court that they believed the trial would take five to seven days, and that it would most likely take six days. On November 19, 1985, a magistrate entered an order scheduling jury selection for December 2, 1985, and setting the case for a six-day trial beginning on Friday, December 13, 1985. Jury selection took place as scheduled.
Then, on December 13, immediately before trial was to begin, counsel for all the parties met with the District Court in chambers. This conference was not recorded; instead, the only knowledge we have from the record of what transpired in this December 13 conference comes from a later, on-the-record discussion between the Court and counsel that occurred on December 20, just after a conference on jury instructions. See Tr. 526-531. Apparently, at the December 13 conference the Court informed counsel that because the days following the six reserved for trial were filled with other trials, it wished to ensure that the case would actually be completed in six days. The Court proposed to establish an hourly time limit; under this plan, each side would be allotted roughly half the hours available for trial to divide as it wished between its opening statement, direct and cross-examination, and closing argument, and the clerk would keep track of the time expended by each side.
When Johnson’s counsel objected to this plan, someone suggested as an alternative that Johnson be given the first three days of trial, December 13, 16, and 17, to present his case, that the defendants be given the next two days, December 18 and 19, and two hours on the last day, December 20, to present their case, and that the remainder of the last day be reserved for closing arguments and jury deliberations. Johnson’s counsel informed the Court that he did not expect one of his witnesses until December 18, and that he thought he would take until noon of that day to complete his case; nonetheless, he did not object when the Court determined to adopt this second plan. After the conference, the Court entered an order that, inter alia, incorporated this second plan for time limitations, and added that normal trial hours might be slightly enlarged when possible to accommodate witnesses and counsel.
. After the December 13 conference ended, trial began. On each of the three days allotted for the presentation of his case, Johnson was granted additional time. The defendants completed cross-examination of the final witness Johnson presented early in the morning on December 18. At this point, Johnson simply rested his case, making no objection or motion aimed at extending his time so that he might present further evidence, no attempt to introduce further evidence, and, accordingly, no offer of proof as to what further evidence he wished to present.
At the close of all the evidence, in the December 20 conference discussed above, Johnson’s counsel for the first time argued that the time limit had improperly prevented him from presenting evidence. In particular, Johnson’s attorney contended that he had been forced to forego examining his second expert witness, Dr. Bralliar, on the issue of liability, restricting his examination to the issue of damages, and that he had been precluded from presenting the testimony of a third expert witness, Dr. Mark Smith, the witness whom he had told the Court, in the December 13 conference, he did not expect until December 18. Johnson’s attorney conceded that he had made no objection in this regard before the close of the evidence, but suggested that such an objection would have been futile. In response, the Court acknowledged that in the face of such an objection it would still have imposed “some kind” of time limit on the plaintiff. Johnson’s counsel did not attempt to introduce the evidence at this point as rebuttal testimony, or even suggest that he would be able to do so; he also made no motion for mistrial in this conference, contenting himself instead with simply having made the arguments noted above. After this conference, the attorneys delivered their closing arguments and the case was submitted to the jury, which later returned a verdict in the defendants’ favor.
After trial, Johnson moved for judgment notwithstanding the verdict or, in the alternative, for a new trial, based principally upon the time limitation on the presentation of his case. The Court denied this motion, and Johnson appealed.
II.
Trial courts have discretion to place reasonable limits on the presentation of evidence to prevent undue delay, waste of time, or needless presentation of cumulative evidence. See Fed.R.Evid. 403, 611; MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081, 1171 (7th Cir.), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983); United States v. Article of Drug Consisting of 572 Boxes, More or Less, 415 F.2d 390, 392 (5th Cir.1969). “[I]n this era of crowded district court dockets federal district court judges not only may but must exercise strict control over the length of trials.” Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463, 473 (7th Cir.1984). Nonetheless, it may be an abuse of the trial court’s discretion to exclude probative, non-cumulative evidence simply because its introduction will cause delay, and any time limits formulated in advance of trial must be fashioned with this in mind. Such limits should be “sufficiently flexible to accommodate adjustment if it appears during trial that the court’s initial assessment was too restrictive.” MCI, 708 F.2d at 1171 (footnote omitted).
Accordingly, we join the Seventh Circuit in disapproving rigid hour limits such as those initially suggested here. See Flaminio, 733 F.2d at 473 (disapproving a rigid hour limitation involving a time-keeping method “almost as complicated as in a professional football game.”) We further think that limits like those ultimately adopted by the District Court, if too strictly adhered to, would also be improper.
Here, however, Johnson sacrificed any challenge he might have made to the District Court’s time limits by failing to make a timely objection to those limits and an offer of proof as to the evidence he was unable to introduce. See Fed.R.Evid. 103(a); Flaminio, 733 F.2d at 473. See also Molever v. Levenson, 539 F.2d 996, 1003 (4th Cir.), cert. denied, 429 U.S. 1024, 97 S.Ct. 643, 50 L.Ed.2d 625 (1976). Because Johnson lodged no objection to the time limits until after the close of the evidence, and never attempted to introduce the evidence, it is far from clear that the District Court would have refused to grant more time and excluded the evidence; we know only that the Court would have maintained “some kind” of time limit on the plaintiff’s case. While a party may believe that it would be futile, so far as the trial court is concerned, to make an objection, and that the objection may irritate the Court, it is still incumbent upon the party to make the objection in order to preserve the issue for appeal.
Affirmed.
. The Hon. Warren K. Urbom, United States District Judge for the District of Nebraska.
. The Fillmore County Hospital was named a defendant in Johnson’s complaint but was dismissed before trial.
. Of course, even where there has been no timely objection, we may still review for "plain error.” Rogers v. Rulo, 712 F.2d 363, 367-68 (8th Cir.1983), cert. denied, 464 U.S. 1046, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984). But this is not an ‘“exceptional case”' involving a “‘miscarriage of justice’” meriting reversal on plain-error grounds. Id. at 368, quoting Johnson v. Houser, 704 F.2d 1049, 1051-52 (8th Cir.1983) (per curiam). The use of the plain-error exception to the normal rules of appellate practice must be confined to the most compelling cases, especially in civil, as opposed to criminal, litigation.
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_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.
SWISHER, STATE’S ATTORNEY FOR BALTIMORE CITY, et al. v. BRADY et al.
No. 77-653.
Argued March 29, 1978
Decided June 28, 1978
Bueger, C. J., delivered the opinion of the Court, in which Stewart, White, BlacicmuN, Rehnquist, and SteveNs, JJ., joined. Marshall, J., filed a dissenting opinion, in which BreNNan and Powell, JJ., joined, post, p. 219.
George A. Nilson, Deputy Attorney General of Maryland, argued the cause for appellants. With him on the brief were Francis B. Burch, Attorney General, and Clarence W. Sharp and Alexander L. Cummings, Assistant Attorneys General.
Peter S. Smith, by appointment of the Court, 434 IT. S. 1007, argued the cause for appellees. With him on the brief were Adrienne E. Volenik, Phillip G. Dantes, and Bruce A. Gilmore
David C. Howard filed a brief for the National Juvenile Law Center as amicus curiae urging affirmance.
Paul Halvonik, pro se, and Laurance S. Smith filed a brief for the State Public Defender of California as amicus curiae.
Mr. Chief Justice Burger
delivered the opinion of the Court.
This is an appeal from a three-judge District Court for the District of Maryland. Nine minors, appellees here, .brought an action under 42 U. S. C. § 1983, seeking a declaratory judgment and injunctive relief to prevent the State from filing exceptions with the Juvenile Court to proposed findings and recommendations made by masters of that court. The minors’ claim was based on an alleged violation of the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment. The District Court’s jurisdiction was invoked under 28 U. S. C. §§ 1343, 2281, and 2284 (as then written); this Court’s jurisdiction, under 28 U. S. C. § 1253.
I
In order to understand the present Maryland scheme for the use of masters in juvenile court proceedings, it is necessary to trace briefly the history both of antecedent schemes and of this and related litigation.
Prior to July 1975, the use of masters in Maryland juvenile proceedings was governed by Rule 908 (e), Maryland Rules of Procedure. It provided that a master “shall hear such cases as may be assigned to him by the court.” The Rule further directed that, at the conclusion of the hearing, the master transmit the case file and his “findings and recommendations” to the Juvenile Court. If no party filed exceptions to these findings and recommendations, they were to be “promptly . . . confirmed, modified or remanded by the judge.” If, however, a party filed exceptions — and in delinquency hearings, only the State had the authority to do so — then, after notice, the Juvenile Court judge would “hear the entire matter or such specific matters as set forth in the exceptions de novo.”
In the city of Baltimore, after the State filed a petition alleging that a minor had committed a delinquent act, the clerk of the Juvenile Court generally would assign the case to one of seven masters. In the ensuing unrecorded hearing, the State would call its witnesses and present its evidence in accordance with the rules of evidence applicable in criminal cases. The minor could offer evidence in defense. At the conclusion of the presentation of evidence, the master usually would announce his findings and contemplated recommendations. In a minority of those cases where the recommendations favored the minor’s position, the State would file exceptions, whereupon the Juvenile Court judge would try the case de novo.
In 1972, a Baltimore City Master concluded, after a hearing, that the State had failed to show beyond a reasonable doubt that a minor, William Anderson, had assaulted and robbed a woman. His recommendation to the Juvenile Court judge reflected that conclusion. The State filed exceptions. Anderson responded with a motion to dismiss the notice of exceptions, contending that Rule 908 (e), with its provision for a de novo hearing, violated the Double Jeopardy Clause. The Juvenile Court judge ruled that juvenile proceedings as such were not outside the scope of the Double Jeopardy Clause. He then held that the proceeding before him on the State’s exceptions would violate Anderson’s right not to be twice put in jeopardy and, on that basis, granted the motion to dismiss. The judge granted the same relief to similarly situated minors, including several who later initiated the present litigation.
The State appealed and the Court of Special Appeals reversed. In re Anderson, 20 Md. App. 31, 315 A. 2d 540 (1974). That court assumed, for purposes of its decision, that jeopardy attached at the commencement of the initial hearing before the master. It held, however:
“ [T]here is no adjudication by reason of the master’s findings and recommendations. The proceedings before the master and his findings and recommendations are simply the first phase of the hearing which continues with the consideration by the juvenile judge. Whether the juvenile judge, in the absence of exceptions, accepts the master’s findings or recommendatipns, modifies them or remands them, or whether, when exceptions are filed, he hears the matter himself de novo, there is merely a continuance of the hearing and the initial jeopardy. In other words, the hearing, and the jeopardy thereto attaching, terminate only upon a valid adjudication by the juvenile judge, not upon the findings and recommendations of the master.” Id., at 47, 315 A. 2d, at 549 (footnotes omitted; emphasis added).
On this basis, the court concluded that the de novo hearing was not a second exposure to jeopardy.
On appeal by the minors, the Court of Appeals affirmed, although on a rationale different from that of the intermediate appellate court. In re Anderson, 272 Md. 85, 321 A. 2d 516 (1974). It held that “a hearing before a master is not such a hearing as places a juvenile in jeopardy.” Central to this holding was the court’s conclusion that masters in Maryland serve only as ministerial assistants to judges; although authorized to hear evidence, report findings, and make recommendations to the judge, masters are entrusted with none of the judicial power of the State, including the sine qua non of judicial office — the power to enter a binding judgment.
In November 1974, five months after the Court of Appeals’ decision, nine juveniles sought federal habeas corpus relief, contending that by taking exceptions to masters’ recommendations favorable to them the State was violating their rights under the Double Jeopardy Clause. These same nine minors also initiated a class action under 42 U. S. C. § 1983 in which they sought a declaratory judgment and injunctive relief against the future operation of Rule 908 (e). The sole constitutional basis for their complaint was, again, the Double Jeopardy Clause. A three-judge court was convened to hear this matter, and it is the judgment of that court we now review.
Before either the three-judge District Court or the single judge reviewing the habeas corpus petitions could act, the-Maryland Legislature.,enacted legislation which, for the first time, provided a statutory basis for the use of masters in juvenile court proceedings. In doing so, it modified slightly the scheme previously operative under Rule 908 (e). The new legislation required that hearings before a master be recorded and that, at their conclusion, the master submit to the Juvenile Court judge written findings of fact, conclusions of law, and recommendations. Either party was authorized to file exceptions and could elect a hearing on the record or a de novo hearing before the judge. The legislature specified that the master’s “proposals and recommendations . . . for juvenile causes do not constitute orders or final action of the court.” Accordingly, the judge could, even in the absence of exceptions, reject a'master’s recommendations and conduct a de novo hearing or, if the parties agreed, a hearing on the record. Md. Cts. & Jud. Proc. Code Ann. § 3-813 (Supp. 1977).
In June 1975, within two months of the enactment of § 3-813 and before its July 1, 1975, effective date, the single-judge United States District Court held that the Rule 908 (e) provision for a de novo hearing on the State’s exceptions violated the Double Jeopardy Clause. Aldridge v. Dean, 395 F. Supp. 1161 (Md. 1975). In that court’s view, a juvenile was placed in jeopardy as soon as the State offered evidence in the hearing before a master. The court also concluded that to subject a juvenile to a de novo hearing before the Juvenile Court judge was to place him in jeopardy a second time. Accordingly, it granted habeas corpus relief to the six petitioners already subjected by the State to a de novo hearing. The petitions of the remaining three, who had not yet been brought before the Juvenile Court judge, were dismissed without prejudice as being premature.
In response to both the enactment of § 3-813 and the decision in Aldridge v. Dean, supra, the Maryland Court of Appeals, in the exercise of its rulemaking power, promulgated a new rule, and the one currently in force, Rule 911, to govern the use of masters in juvenile proceedings. Rule 911 differs from the statute in significant aspects. First, in order to emphasize the nonfinal nature of a master’s conclusions, it stresses that all of his “findings, conclusions, recommendations or . . . orders” are only proposed. Second, the State no longer has power to secure a de novo hearing before the Juvenile Court judge after unfavorable proposals by the master. The State still may file exceptions, but the judge can act on them only on the basis of the record made before the master and “such additional [relevant] evidence ... to which the parties raise no objection.” The judge retains his power to accept, reject, or modify the master’s proposals, to remand to the master for further hearings, and to supplement the record for his own review with additional evidence to which the parties do not object
Thus, Rule 911 is a direct product of the desire of the State to continue using masters to meet the heavy burden of juvenile court caseloads while at the same time assuring that their use not violate the constitutional guarantee against double jeopardy. To this end, the Rule permits the presentation and recording of evidence in the absence of the only officer authorized by the state constitution, see In re Anderson, 272 Md., at 104-105, 321 A. 2d, at 526-527, and by statute, § 3-813, to serve as the factfinder and judge.
After the effective date of Rule 911, July 1, 1975, the plaintiffs in the § 1983 action amended their complaint to bring Rule 911 within its scope. They continued to challenge the state procedure, however, only on the basis of the Double Jeopardy Clause. Other juveniles intervened as the ongoing work of the juvenile court brought them within the definition of the proposed class. Their complaints in intervention likewise rested only on the Double Jeopardy Clause.
The three-judge District Court certified the proposed class under Fed. Rule Civ. Proc. 23 (b) (2) to consist of all juveniles involved in proceedings where the State had filed exceptions to a master’s proposed findings of nondelinquency. That court then held that a juvenile subjected to a hearing before a master is placed in jeopardy, even though the master has no power to enter a final order. It also held that the Juvenile Court judge’s review of the record constitutes a “second proceeding at which [the juvenile] must once again marshal whatever resources he can against the State’s and at which the State is given a second opportunity to obtain a conviction.” 436 F. Supp. 1361, 1369 (Md. 1977). Accordingly, the three-judge District Court enjoined the defendant state officials from taking exceptions to either a master’s proposed finding of nondelinquency or his proposed disposition.
We noted probable jurisdiction solely to determine whether the Double Jeopardy Clause prohibits state officials, acting in accordance with Rule 911, from taking exceptions to a master’s proposed findings. 434 U. S. 963 (1977).
II
The general principles governing this case are well established.
“A State may not put a defendant in jeopardy twice for the same offense. Benton v. Maryland, 395 U. S. 784. The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal. The public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though The acquittal was based upon an egregiously erroneous foundation.’ ... If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair.
“Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant’s Valued right to have his trial completed by a particular tribunal.’ . . . Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.” Arizona v. Washington, 434 U. S. 497, 503-505 (1978) (footnotes omitted).
In the application of these general principles, the narrow question here is whether the State in filing exceptions to a master’s proposals, pursuant to Rule 911, thereby “require [s] an accused to stand trial” a second time. We hold that it does not. Maryland has created a system with Rule 911 in which an accused juvenile is subjected to a single proceeding which begins with a master’s hearing and culminates with an adjudication by a judge.
Importantly, a Rule 911 proceeding does not impinge on the purposes of the Double Jeopardy Clause. A central purpose “of the prohibition against successive trials” is to bar “the prosecution [from] another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks v. United States, 437 17. S. 1, 11 (1978). A Rule 911 proceeding does not provide the prosecution that forbidden “second crack.” The State presents its evidence once before the master. The record is then closed, and additional evidence can be received by the Juvenile Court judge only with the consent of the minor.
The Double Jeopardy Clause also precludes the prosecutor from “enhanc[ing] the risk that an innocent defendant may be convicted,” Arizona v. Washington, supra, at 504, by taking the question of guilt to a series of persons or groups empowered to make binding determinations. Appellees contend that in its operation Rule 911 gives the State the chance to persuade two such factfinders: first the master, then the Juvenile Court judge. In support of this contention they point to evidence that juveniles and their parents sometimes consider the master “the judge” and his recommendations “the verdict.” Within the limits of jury trial rights, see McKeiver v. Pennsylvania, 403 U. S. 528 (1971), and other constitutional constraints, it is for the State, not the parties, to designate and empower the factfinder and adjudicator. And here Maryland has conferred those roles only on the Juvenile Court judge. Thus, regardless of which party is initially favored by the master’s proposals, and regardless of the presence or absence of exceptions, the judge is empowered to accept, modify, or reject those proposals.
Finally, there is nothing in the record to indicate that the procedure authorized under Rule 911 unfairly subjects the defendant to the embarrassment, expense, and ordeal of a second trial proscribed in Green v. United States, 355 U. S. 184 (1957). Indeed, there is nothing to indicate that the juvenile is even brought before the judge while he conducts the “hearing on the record,” or that the juvenile’s attorney appears at the “hearing” and presents oral argument or written briefs. But even if there were such participation or appearance, the burdens are more akin to those resulting from a judge’s permissible request for post-trial briefing or argument following a bench trial than to the “expense” of a full-blown second trial contemplated by the Court in Green.
In their effort to characterize a Rule 911 proceeding as two trials for double jeopardy purposes, appellees rely on two decisions of this Court, Breed v. Jones, 421 U. S. 519 (1975), and United States v. Jenkins, 420 U. S. 358 (1975).
In Breed, we held that a juvenile was placed twice in jeopardy when, after an adjudicatory hearing in Juvenile Court on a charge of delinquent conduct, he was transferred to adult criminal court, tried, and convicted for the same conduct. All parties conceded that jeopardy attached at the second proceeding in criminal court. The State contended, however, that jeopardy did not attach in the Juvenile Court proceeding, although that proceeding could have culminated in a deprivation of the juvenile’s liberty. We rejected this contention and also the contention that somehow jeopardy “continued” from the first to the second trial. Breed is therefore inapplicable to the Maryland scheme, where juveniles are subjected to only one proceeding, or “trial.”
Appellees also stress this language from Jenkins:
“[I]t is enough for purposes of the Double Jeopardy Clause . . . that further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand. Even if the District Court were to receive no additional evidence, it would still be necessary for it to make supplemental findings .... [To do so] would violate the Double Jeopardy Clause.” 420 TJ. S., at 370 (emphasis added).
Although we doubt that the Court’s decision in a case can be correctly identified by reference to three isolated sentences, any language in Jenkins must now be read in light of our subsequent decision in United States v. Scott, 437 U. S. 82 (1978). In Scott we held that it is not all proceedings requiring the making of supplemental findings that are barred by the Double Jeopardy Clause, but only those that follow a previous trial ending in an acquittal; in a conviction either not reversed on appeal or reversed because of insufficient evidence, see Burks v. United States, supra; or in a mistrial ruling not prompted by “manifest necessity,” see Arizona v. Washington, 434 U. S. 497 (1978). A Juvenile Court judge’s decision terminating a Rule 911 proceeding follows none of those occurrences. Furthermore, Jenkins involved appellate review of the final judgment of a trial court fully empowered to enter that judgment. Nothing comparable occurs in a Rule 911 proceeding. See n. 15, supra.
To the extent the Juvenile Court judge makes supplemental findings in a manner permitted by Rule 911 — either sua sponte, in response to the State’s exceptions, or in response to the juvenile’s exceptions, and either on the record or on a record supplemented by evidence to which the parties raise no objection — he does so without violating the constraints of the Double Jeopardy Clause.
Accordingly, we reverse and remand for further proceedings consistent with this opinion.
It is so ordered.
Rule 908 (e) was the sole authority for the use of masters in juvenile causes. The practice was not treated in Maryland statutes.
Maryland, like 39 other States, defines a delinquent act as one that, if committed by an adult, would violate a criminal statute. See statutes collected at McCarthy, Delinquency Dispositions Under the Juvenile Justice Standards: The Consequences of a Change of Rationale, 52 N. Y. U. L. Rev. 1093 n. 2 (1977).
The official name of the court is Circuit Court of Baltimore City, Division for Juvenile Causes.
In 1974, of 5,345 delinquency hearings conducted in the Juvenile Court, 5,098 were held before masters. The remaining 247 were assigned in the first instance to the judge.
In 1974, the Juvenile Court judge conducted 80 de novo, or “exceptions,” hearings in delinquency matters. All hearings before the judge were recorded.
When the minors appealed here from this decision, we dismissed for want of a substantial federal question, Epps v. Maryland, 419 U. S. 809 (1974), and also denied certiorari, Anderson v. Maryland, 421 U. S. 1000 (1975).
At the time of its promulgation, the new Rule was numbered 910. As a result of recent nonsubstantive amendments and recodification, it received the 911 designation, by which it is referred to throughout this opinion.
The juvenile, after filing exceptions, can still elect either a de novo hearing or a hearing on the record.
Rule 911, in its entirety, provides:
“a. Authority.
“1. Detention or Shelter Care.
“A master is authorized to order detention or shelter care in accordance with Rule 912 (Detention or Shelter Care) subject to an immediate review by a judge if requested by any party.
“2. Other Matters.
“A master is authorized to hear any cases and matters assigned to him by the court, except a hearing on a waiver petition. The findings, conclusions and recommendations of a master do not constitute orders or final action of the court.
“b. Report to the Court.
“Within ten days following the conclusion of a disposition hearing by a master, he shall transmit to the judge the entire file in the ease, together with a written report of his proposed findings of fact, conclusions of law, recommendations and proposed orders with respect to adjudication and disposition. A copy of his report and proposed order shall be served upon each party as provided by Rule 306 (Service of Pleadings and Other Papers).
“c. Review by Court if Exceptions Filed.
“Any party may file exceptions to the master’s proposed findings, conclusions, recommendations or proposed orders. Exceptions shall be in writing, filed with the clerk within five days after the master’s report is served upon the party, and shall specify those items to which the party excepts, and whether the hearing is to be de novo or on the record. A copy shall be served upon all other parties pursuant to Rule 306 (Service of Pleadings and Other Papers).
“Upon the filing of exceptions, a prompt hearing shall be scheduled on the exceptions. An excepting party other than the State may elect a hearing de novo or a hearing oil the record. If the State is the excepting party, the hearing shall be on the record, supplemented by such additional evidence as the judge considers relevant and to which the parties raise no objection. In either case the hearing shall be limited to those matters to which exceptions have been taken.
“d. Review by Court in Absence of Exceptions.
“In the absence of timely and proper exceptions, the master's proposed findings of fact, conclusions of law and recommendations may be adopted by the court and the proposed or other appropriate orders may be entered based on them. The court may remand the case to the master for further hearings, or may, on its own motion, schedule and conduct a further hearing supplemented by such additional evidence as the court considers relevant and to which the parties raise no objection. Action by the court under this section shall be taken within two days after the expiration of the time for filing exceptions.”
Defendants, appellants here, are the State’s Attorney for Baltimore City, the operations chief of the State’s Attorney’s Office for Baltimore City, the Chief State Attorney assigned to the Baltimore City Juvenile Court, and the Clerk of that court.
The State did not contend, either in the District Court or here, that appellees’ suit for injunctive relief should be dismissed under the abstention doctrine of Younger v Harris, 401 U. S. 37 (1971). In these circumstances, we are not inclined to examine the application of the doctrine sua sponte. See Ohio Bureau of Employment Services v. Hodory, 431 U. S. 471, 477-480 (1977) (“If the State voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the case back into the State’s own system”).
There is also a mootness question in this case. At the time of final argument before the District Court, Fields, the last in a series of intervening plaintiffs, was the only named plaintiff with a live controversy against the State. By that time, the State had either withdrawn its exceptions against the other named plaintiffs or completed the adjudicatory process by securing a ruling, one way or the other, from the Juvenile Court judge. After final argument, but before the District Court announced its decision, the State withdrew its exceptions to the master’s proposals respecting Fields. Nevertheless, the District Court, at the outset of its decision, granted Fields’ motion to intervene and certified the class. 436 F. Supp., at 1362.
We conclude that under the principles announced in Sosna v. Iowa, 419 U. S. 393 (1975), the State’s action, with respect to the original named plaintiffs and the intervenors, did not deprive the District Court of the power to certify the class action when it did and that, accordingly, a live controversy presently exists between the unnamed class members and the State. In Sosna, we observed:
“[T]here may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether the certification can be said to ‘relate back’ to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review.” Id., at 402 n. 11.
Here the rapidity of judicial review of exceptions to masters’ proposals creates mootness questions with' respect to named plaintiffs, and even perhaps with respect to a series of intervening plaintiffs appearing thereafter, “before the district court can reasonably be expected to rule on a certification motion.” Ibid.
In cases such as this one where mootness problems are likely to arise, district courts should heed strictly the requirement of Fed. Rule Civ. Proc. 23 (c)(1) that “[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” (Emphasis added.)
The State contends that jeopardy does not attach at the hearing before the master. Our decision in Breed v. Jones, 421 U. S. 519 (1975), however, suggests the contrary conclusion. “We believe it is simply too late in the day to conclude . . . that a juvenile is not put in jeopardy at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years.” Id., at 529. The California juvenile proceeding reviewed in Breed involved the use of a referee, or master, and was not materially different — for purposes of analysis of attachment of jeopardy— from a Rule 911 proceeding. See generally In re Edgar M., 14 Cal. 3d 727, 537 P. 2d 406 (1975); cf. Jesse W. v. Superior Court, 20 Cal. 3d 893, 576 P. 2d 963 (1978).
It is not essential to decision in this ease, however, to fix the precise time when jeopardy attaches.
The District Court noted that Rule 911 differs from § 3-813, see supra, at 210-211, but concluded that under Maryland decisional law the Rule governs. 436 F. Supp., at 1365. The parties do not dispute the District Court’s reading of state law. Accordingly, like the District Court, we consider only Rule 911 in resolving the constitutional challenge.
It is not usual in a criminal proceeding for the evidence to be presented and recorded in the absence of the one authorized to determine guilt. But if there are any objections to such a system, they do not arise from the guarantees of the Double Jeopardy Clause.
Appellees also rely on Keener v. United States, 195 U. S. 100 (1904). There a Manila lawyer was charged with embezzling the funds of his client. He was tried before the judge of a “court of first instance” and acquitted. The United States took an appeal to the Philippine Supreme Court, which, after reviewing the record, entered a judgment of guilty and imposed sentence. This Court held that an Act of Congress, which extended double jeopardy guarantees to the Philippines, required reversal of the conviction.
The differences between the present case and Keener are material. There the trial judge was authorized to try serious criminal cases and to enter judgment, either of acquittal or conviction. The Philippine trial judge did not serve as an “assistant” or master of the Philippine Supreme Court for the purpose of making proposed findings to the appellate judges. Id., at 115, 121, 133. Mr. Justice Brown in dissent accurately characterized the Philippine trial judge’s role as embracing “the great and dangerous power of finally acquitting the most notorious criminals.” Id., at 137. The Philippine Supreme Court’s role was appellate, and its jurisdiction was invoked by the Government’s decision to appeal an otherwise binding judgment.
See also Trono v. United States, 199 U. S. 521 (1905). its rales relating to the use of masters, see ante, at 209-210, the record before us indicates that the character of the hearing has not materially changed since that decision.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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sc_adminaction_is
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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.
AMERICAN FARM LINES v. BLACK BALL FREIGHT SERVICE et al.
No. 369.
Argued February 25, 1970
Decided April 20, 1970
Joseph A. Calif ano, Jr., argued the cause for appellant in No. 369. With him on the briefs were John D. Hawke, Jr., and William L. Peterson, Jr. Arthur J. Cerra argued the cause for appellant in No. 382. With him on the brief were Solicitor General Griswold, Assistant Attorney General McLaren, Deputy Solicitor General Springer, John H. D. Wigger, and Robert W. Ginnane.
William H. Dempsey, Jr., argued the cause for appel-lees in both cases and filed a brief for appellees Consolidated Freightways Corp. et al. In both cases Ed White filed a brief for railroad appellees; William B. Adams, Peter T. Beardsley, and Nelson J. Cooney filed a brief for certain motor carrier appellees, and James W. Wrape and Robert E. Joyner filed a brief for Dealers Transit, Inc., et al.
Together with No. 382, Interstate Commerce Commission v. Black Ball Freight Service et al., on appeal from the same court.
Mr. Justice Douglas
delivered the opinion of the Court.
The Interstate Commerce Commission has statutory power to grant motor carriers temporary operating authority “without hearings or other proceedings” when the authority relates to a “service for which there is an immediate and urgent need” and where there is “no carrier service capable of meeting such need.” Interstate Commerce Act § 210a, 52 Stat. 1238, as amended, 49 U. S. C. § 310a. The ICC processes applications for such authority under rules promulgated in 1965. 49 CFR pt. 1131. Among other things, those rules require that an applicant accompany his application with supporting statements of shippers that contain information “designed to establish an immediate and urgent need for service which cannot be met by existing carriers.” Id., § 1131.2 (c). Each such supporting statement “must contain at least” 11 items of information including the following:
“(8) Whether efforts have been made to obtain the service from existing motor, rail, or water carriers, and the dates and results of such efforts.
“(9) Names and addresses of existing carriers who have either failed or refused to provide the service, and the reasons given for any such failure or refusal.”
Appellant American Farm Lines (AFL) filed an application for temporary operating authority. The application was accompanied by a supporting statement of the Department of Defense (DOD). The ICC Temporary Authorities Board denied the application on the ground that the “applicant has not established that there exists an immediate and urgent need for any of the service proposed.” Division I of the ICC (acting as an Appellate Division) reversed the Board and granted AFL temporary authority. Protesting carriers sought review of this action in the United States District Court for the Western District of Washington. A single judge of the District Court temporarily restrained the operation of the ICC order and the ICC thereupon ordered postponement of the operation of its grant. At that time numerous petitions for reconsideration were pending before the Commission and the stay order did not direct the Commission to stay its hand with respect to them. The record was indeed not filed with the court until much later. Meanwhile, the Commission granted the petitions and reopened the proceeding to receive a further supporting statement of DOD. This took the form of the verified statement of Vincent F. Caputo, DOD Director for Transportation and Warehousing Policy, which was submitted as a purported reply to the pending petitions for reconsideration. Based upon this statement, the ICC entered a new order granting the AFL application. A single judge of the District Court restrained the operation of the new order. Thereafter a three-judge District Court conducted a full hearing on the merits. The ICC admitted at that stage that its first order “may not have been based upon evidence to support its conclusion,” but argued that there was no infirmity in the new order. The three-judge court set aside both orders. 298 F. Supp. 1006. Both AFL and ICC appealed to this Court and we noted probable jurisdiction. 396 U. S. 884.
I
The first alleged error in the case is the failure of the Interstate Commerce Commission to require strict compliance with its own rules. The rules in question, unlike some of our own, do not involve “jurisdictional” problems but only require certain information to be set forth in statements filed in support of applications of motor carriers for temporary operating authority.
The Caputo statement asserted that part of the tremendous volume of traffic that DOD moved in the territories involved had to be moved “in the most expeditious manner possible,” and that, since air transport was prohibitively expensive “except in the most extreme emergencies,” there was an “imperative” need for the most expeditious motor carrier service. The need for this expeditious transport did not rest merely on a desire to obtain the most efficient service, but in addition rested on the need to coordinate arrival times of shipments with factory production schedules and with ship-loading or airlift times for overseas shipments. The particular inadequacies in existing service were pointed out, namely, the delays inherent in joint-line service, regular-route service, and the use of single drivers. The statement did not assert that none of the existing carriers provided sufficiently expeditious service to meet DOD needs; rather it claimed that the carriers providing satisfactory service in the territories in question were so few in number that the additional services of AFL were required to meet DOD’s transportation needs.
Concededly, the Caputo statement did not give the dates of DOD’s efforts to secure service from other existing carriers, or a complete list of the names and addresses of the carriers who failed or refused to provide service, as required by the terms of subsections (8) and (9), 49 CFR § 1131.2 (c). Such a complete listing of this information, given the volume of traffic involved, would indeed have been a monumental undertaking.
The failure of the Caputo statement to provide these particular specifics did not prejudice the carriers in making precise and informed objections to AFL’s application. The briefest perusal of the objecting carriers’ replies, which cover some 156 pages in the printed record of these appeals, belies any such contention. Neither was the statement so devoid of information that it, along with the replies of the protesting carriers, could not support a finding that AFL’s service was required to meet DOD’s immediate and urgent transportation needs. In our view, the District Court exacted a standard of compliance with procedural rules that was wholly unnecessary to provide an adequate record to review the Commission’s decision.
The Commission is entitled to a measure of discretion in administering its own procedural rules in such a manner as it deems necessary to resolve quickly and correctly urgent transportation problems. It is argued that the rules were adopted to confer important procedural benefits upon individuals; in opposition it is said the rules were intended primarily to facilitate the development of relevant information for the Commission’s use in deciding applications for temporary authority.
We agree with the Commission that the rules were promulgated for the purpose of providing the “necessary information” for the Commission “to reach an informed and equitable decision” on temporary authority applications. ICC Policy Release of January 23, 1968. The Commission stated that requests for temporary authority would be turned down “if the applications do not adequately comply with [the] . . . rules.” Ibid. (Emphasis added.) The rules were not intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion as in Vitarelli v. Seaton, 359 U. S. 535; nor is this a case in which an agency required by rule to exercise independent discretion has failed to do so. Accardi v. Shaughnessy, 347 U. S. 260; Yellin v. United States, 374 U. S. 109. Thus there is no reason to exempt this case from the general principle that “[i]t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it. The action of either in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party.” NLRB v. Monsanto Chemical Co., 205 F. 2d 763, 764. And see NLRB v. Grace Co., 184 F. 2d 126, 129; Sun Oil Co. v. FPC, 256 F. 2d 233; McKenna v. Seaton, 104 U. S. App. D. C. 50, 259 F. 2d 780.
We deal here with the grant of temporary authority similar to that granted in Estes Express Lines v. United States, 292 F. Supp. 842, aff’d, 394 U. S. 718. There the grant of temporary authority was upheld even though there may not have been literal compliance with subsections (8) and (9) of the Commission’s rules. That result was in line with § 210a (a) of the Act which was designed to provide the Commission with a swift and procedurally simple ability to respond to urgent transportation needs. That functional approach is served by treating (8) and (9) not as inflexible procedural conditions but as tools to aid the Commission in exercising its discretion to meet “an immediate and urgent need” for services where the existing service is incapable of meeting that need. Unlike some rules, the present ones are mere aids to the exercise of the agency’s independent discretion.
II
After the Commission issued its first order, petitions for reconsideration were filed and before they were passed upon, some carriers filed suit and a single judge temporarily restrained operation of that first order. It was after that order issued and over a month before the case was argued to the three-judge court that the Commission granted the petitions for rehearing and reopened the record and received the Caputo verified statement.
The District Court held that the pendency of the review proceedings deprived the Commission of jurisdiction to reopen the administrative record.
Congress has provided as respects some regulatory systems that the agency may modify any finding up until the record is filed with a court. Such is the provision of the National Labor Relations Act, as amended, 61 Stat. 147, 29 U. S. C. § 160 (d) and § 160 (e), which provides that any subsequent changes in the record will be made only at the direction of the court. A similar provision is included in § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U. S. C. § 45 (c) and in § 11. of the Clayton Act, 38 Stat. 734, as amended, 15 U. S. C. § 21 (c). And a like provision is included in the review by the courts of appeals of orders of other designated federal agencies. 28 U. S. C. §2347 (c) (1964 ed., Supp. IV). But there is no such requirement in the Interstate Commerce Act. It indeed empowers the Commission “at any time to grant rehearings as to any decision, order, or requirement and to reverse, change, or modify the same.”
The power of the Commission to grant rehearings is not limited or qualified by the terms of 49 U. S. C. § 17 (6) or § 17 (7). Thus in § 17 (6) it is said, “Rehearing, reargument, or reconsideration may be granted if sufficient reason therefor be made to appear.” And § 17 (7) provides that if after rehearing or reconsideration the original decision, order, or requirement appears “unjust or unwarranted,” the Commission may “reverse, change, or modify” the same. These broad powers are plainly adequate to add to the findings or firm them up as the Commission deems desirable, absent any collision or interference with the District Court.
Unless Congress provides otherwise, “[wjhere a motion for rehearing is in fact filed there is no final action until the rehearing is denied.” Outland v. CAB, 109 U. S. App. D. C. 90, 93, 284 F. 2d 224, 227. In multi-party proceedings, such as the present one, some may seek judicial review and others may seek administrative reconsideration. “That both tribunals have jurisdiction does not mean, of course, that they will act at cross purposes.” Wrather-Alvarez Broadcasting, Inc. v. FCC, 101 U. S. App. D. C. 324, 327, 248 F. 2d 646, 649. The concept “of an indivisible jurisdiction which must be all in one tribunal or all in the other may fit” some statutory schemes, ibid., but it does not fit this one.
This power of the Commission to reconsider a prior decision does not necessarily collide with the judicial power of review. For while the court properly could provide temporary relief against a Commission order, its issuance does not mean that the Commission loses all jurisdiction to complete the administrative process. It does mean that thereafter the Commission is “without power to act inconsistently with the court’s jurisdiction.” Inland Steel Co. v. United States, 306 U. S. 153, 160. When the Commission made the additional findings after its first order was stayed by the court, it did not act inconsistently with what the court had done. It did not interfere in the slightest with the court’s protective order. What the Commission did came before the court was ready to hear arguments on the merits and before the record was filed with it. Moreover, the Commission in light of the District Court's stay, by express terms, directed AFL not to perform operations under the first order and made the second order effective only on further order of the Commission. Since by the Act the Commission never lost jurisdiction to pass on petitions for rehearing, and since the stay order did not forbid it from acting on those pending petitions, it was not necessary for the Commission to seek permission of the court to make those rulings.
The Commission reopened the record merely to remedy a deficiency in it before any judicial review of the merits had commenced and fully honored the stay order of the District Court. It therefore acted in full harmony with the court’s jurisdiction.
Reversed.
Section 210a(a) provides in part:
“To enable the provision of service for which there is an immediate and urgent need to a point or points or within a territory having no carrier service capable of meeting such need, the Commission may, in its discretion and without hearings or other proceedings, grant temporary authority for such service by a common carrier or a contract carrier by motor vehicle, as the case may be. 2
49 CFR § 1131.4 (b) (2) defines the statutory term “immediate and urgent need” as follows:
“An immediate and urgent need justifying a grant of temporary authority will be determined to exist only where it is established that there is or soon will be an immediate transportation need which reasonably cannot be met by existing carrier service. Such a showing may involve a new or relocated plant, different method of distribution, new or unusual commodities, an origin or destination not presently served by carriers, a discontinuance of existing service, failure of existing carriers to provide service, or comparable situations which require new motor carrier service before an application for permanent authority can be filed and processed.”
See 49 CFR § 1131.2(c).
AFL is a federation of agricultural marketing cooperatives created in 1964 to provide transportation for its members. By-virtue of § 203 (b) (5) of the Interstate Commerce Act, 54 Stat. 921, as amended, 49 U. S. C. §303 (b)(5), AFL may transport freight for its members without obtaining a certificate of convenience and necessity from the ICC. In 1965 § 203 (b) (5) was construed to exempt from the certification requirement any freight transportation by an agricultural cooperative for shippers other than its own members to the extent that such nonmember transportation is incidental and necessary to its principal transportation activities. See Northwest Agricultural Cooperative Assn. v. ICC, 350 F. 2d 252. The next year, AFL began transporting freight for DOD. In 1968-1969 AFL’s ability to continue serving DOD was restricted by two events. First, certain competing carriers obtained injunctions prohibiting AFL from making two consecutive movements for DOD and from transporting freight for any nonmember except when going to pick up, or returning from delivery of, a member’s freight. Munitions Carriers Conference, Inc. v. American Farm Lines, 415 F. 2d 747. Second, § 203 (b) (5) was amended to restrict the exemption for agricultural cooperatives to those whose transportation for nonmembers does not exceed 15% of their total annual interstate transportation, measured by tonnage. See 82 Stat. 448, 49 U. S. C. §303 (b)(5) (1964 ed., Supp. IV). AFL had transported 74,155,685 pounds for DOD between December 1966 and June 1968, and, in an effort to continue providing this service, applied to the ICC in May 1968 for temporary operating authority. The authority sought was to transport general commodities, including Class A and B explosives moving on government bills of lading over irregular routes between points in Kentucky, Indiana, Illinois, Missouri, Arkansas, Louisiana, Texas, Oklahoma, and Kansas on the one hand, and points in Washington, California, Nevada, Utah,, and Arizona on the other.
AFL has applied to the ICC for a certificate of permanent authority. It was estimated at oral argument that final action on this application will not be taken by ICC before mid-1971. Meanwhile the ICC may extend the temporary authority. Pan-Atlantic Steamship Corp. v. Atlantic Coast Line R. Co., 353 U. S. 436.
The precise chronology of these events is shown in n. 9, infra.
ICC is not appealing from the District Court's decision setting aside' the first order.
It was once proposed that the same requirement be written into the law respecting those orders of the Commission reviewed by the courts of appeal as distinguished from the three-judge district courts. See H. R. Rep. No. 1619, 80th Cong., 2d Sess., 4. But the ICC was deleted from the measure. Id., at 1. And the Act as approved covered only other designated agencies. 28 U. S. C. §2342 (1964 ed., Supp. IV).
See Baldwin v. Scott County Milling Co., 307 U. S. 478, 484.
The District Court’s stay was issued October 2, 1968. On October 9, the Commission stayed the effective date of its first order “until further order of the Commission.” On November 5, 1968, the Commission reopened the proceeding before it and directed AFL, in light of the District Court's order, “not to perform” any operations under its first order “until further order of the Commission.” On November 12, 1968, the Commission advised the District Court of its action. On December 20, 1968, the Commission entered its second order which authorized commencement of service by AFL only on further notice by the ICC. On December 31, 1968, a supplemental complaint was filed in the District Court challenging the Commission’s second order. On January 6, 1969, a single judge of the District Court stayed that order. On March 26, 1969, the District Court entered its judgment now being reviewed.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Odie HILL, Appellant, v. MORGAN POWER APPARATUS CORPORATION, Appellee (two cases).
Nos. 18357, 18358.
United States Court of Appeals Eighth Circuit.
Nov. 22, 1966.
Henry Woods, of McMath, Leather-man, Woods & Youngdahl, Little Rock, Ark., for appellant.
William H. Sutton, of Smith, Williams, Friday & Bowen, Little Rock, Ark., for appellee.
Before VOGEL, Chief Judge, GIBSON, Circuit Judge, and REGISTER, District Judge.
PER CURIAM.
Plaintiff-appellant, a citizen of Arkansas, was injured on October 24, 1964, in an accident in Arkansas while using a defective swivel manufactured by defendant-appellee, a Washington corporation. Two separate actions were commenced by plaintiff-appellant, one in warranty and one in tort, alleging that the swivel was defective and was the cause of plaintiff-appellant’s injury. In each case plaintiff-appellant attempted to obtain jurisdiction over the defendantappellee by virtue of provisions of Ark. Stat.Ann. § 27-2502:
“Bases of personal jurisdiction ovei persons outside this state.”
In interpreting the Arkansas statute, Judge Young found it inapplicable and accordingly quashed the service in both cases. Judge Young’s opinion is published in D.C., 259 F.Supp. 609. Because he has arrived at a permissible conclusion with reference to Arkansas law and a conclusion with which we are in complete accord, we affirm on the basis of his opinion as published.
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_stateclaim
|
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 dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" 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".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action.
DAVIDSON GROCERY CO. v. LUCAS, Commissioner of Internal Revenue.
Court of Appeals of District of Columbia.
Argued November 15, 1920.
Decided January 6, 1930.
No. 4927.
George E. H. Goodner, of Washington, D. C., for appellant.
Mabel W. Willebrandt, Asst. Atty. Gen., and C. M. Charest, Sewall Key, and E. E. Mitchell, all of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
ROBB, Associate Justice.
Appeal from a decision of the Board of Tax Appeals affirming the Commissioner’s determination of a deficiency in income and profits taxes for the year 1920 in the amount of $6,063.03.
Appellant taxpayer is an Idaho corporation engaged in the wholesale grocery business, with its principal offices at Boise.
The.findings of faet, which are not disputed, are as follows: At the close of the year 1920 appellant had outstanding the following accounts:
W. C. Martin..................$7,477.45 Silver Creek Mercantile Co....... 4,953.88 E. M. Small.................... 8,068.50 J. T. Poster.-.......... 2,584.08 Byrne Brothers................. 7,048.15 D. H. Clare & Son..............'. 1,635.00
On November 1, 1920, Martin was adjudged a bankrupt, and the first meeting of creditors was held on November 18th following. On final settlement in 1921, his creditors were paid a little over 48 per. cent, of their claims; appellant’s claim, as proven, being $7,423.58. Upon learning the amount of Martin’s assets and the claims which had been proven against him, the president of appellant company determined that at least $3,000 of its claim would never be paid, and authorized the bookkeeper to charge off this amount to profit and loss on December 31, 1920. The ultimate loss was greater than the amount charged off.
The Silver Creek Mercantile Company made an assignment on November 27, 1920. Appellant’s claim was $4,953.05, of which it ultimately recovered $2,211.52. Upon exam-, ining the assets and liabilities of this customer, the president of appellant company authorized the bookkeeper to charge off at the end of 1920 $2,500 as a determined loss, no part of which has ever been received.
Small made an assignment on November 17, 1920. Appellant’s claim was $8,068.50; of which he has received less than $6,000. After ascertaining the assets and liabilities of Small, appellant, on December 31, 1920, charged off $1,000 of this account as being uncollectible. .
In the same manner appellant determined, on or prior to December 31, 1920, that only a portion of the accounts of Poster, Byrne Brothers, and Clare & Son could be collected, and authorized the bookkeeper to charge off to profit and loss $1,000, $3,000; and $500, respectively.
The losses actually sustained on all of these accounts proved to be greater than the amounts charged off in 1920. According to the Board, “the determination of petitioner (appellant) as to the amount of the losses which would be sustained upon all of these accounts was made by the president of the petitioner corporation upon the basis of the assets and liabilities of the several debtors.”
Appellant, before the Commissioner and the Board, unsuccessfully claimed as a deduction from gross income for the year 1920 the foregoing amounts charged off as losses or bad debts.
Section 234(a) of the Revenue Act of 1918 (40 Stat. 1057, 1078) declared that in computing the net income of a corporation there shall be allowed as deductions from gross income “(4) Losses sustained during the taxable year and not compensated for by insurance or otherwise; (5) Debts ascertained to be worthless and charged off within the taxable year.”
The Internal Revenue Commissioner and the Board construed these clauses as mutually exclusive, and that “debts ascertained to be worthless” relates to debts that are wholly worthless, so that no deduction may be taken in the year when a debt is ascertained to be partially worthless; and that assuming the two clauses to be mutually exclusive, clause (4) must cover losses not arising under clause (5) .
The question here involved was carefully considered by the Circuit Court of Appeals for the Second Circuit in Sherman & Bryan v. Blair, 35 F.(2d) 713, 716. The court there first suggested that the words, “debts ascertained to be worthless” (clause (5) of section 234(a), reasonably may be construed to mean “indebtedness ascertained to be worthless” and to permit a charge-off of such part of a claim as was proven to be uncollectible by so definite an event as seizure of the debt- or’s property by a receiver. The court then stated that under the facts proved the issue of law became the deduetibility of so much of the debt as was proved worthless; that,^ assuming the inapplicability of clause (5), “there would seem to be no inconsistency in allowing the partial loss as a deduction under clause (4), even if the two clauses be deemed mutually exclusive.” After a review of pertinent authorities, the court expressed the view that it has not been authoritatively determined that these clauses are mutually exclusive. The court then said: “The seizure of the debtor’s property by a receiver prevents collection, and definitely fixes the loss to be the difference between the face of the debt and whatever dividend the receivership may pay. The Commissioner’s position leads to the conclusion that, if any dividend is likely, no loss can be deducted until the receivership is wound up, which may be many years later. Business men.do not carry on their books at face value, claims against a debtor in receivership, and it cannot be supposed that the Revenue Act of 1918 was intended to require them to do so. When a creditor’s debtor goes into receivership, and the creditor believes the debt to be ■worthless and charges it off, he recognizes that he has sustained a loss at least to the extent that the receivership, dividend which may thereafter be declared leaves the debt unpaid. Presumptively the taxpayer’s decision that a debt is worthless, and so charged off, measures his loss. If the Commissioner surcharges his return because of a mistake as to the amount of the loss, we think he should not surcharge for so much of the loss as he admits has been suffered. No judicial decision has been found which contradicts this view.”
In the Sherman & Bryan Case, as in this, counsel for the government attached importance to the fact that in the Revenue Act of 1921 (42 Stat. 227, 255, § 234(a) (5), Congress expressly gave permission for a partial charge-off of a debt recoverable only in part. On this point, the court observed: “But such subsequent legislation is not conclusive that the construction claimed for the earlier act must be accepted” — citing Russell v. United States, 278 U. S. 181, 188, 49 S. Ct. 121, 73 L. Ed. 255.
We are impressed with the reasoning and conclusions of the court in the Sherman & Bryan Case. Where losses “are fixed by identifiable events, such as tbe sale of property * * * or caused by its destruction or physical injury * “ * or, in the ease of debts, by tbe occurrence of such events as prevent their collection” (United States v. S. S. White Dental Mfg. Co., 274 U. S. 398, 47 S. Ct. 598, 600, 71 L. Ed. 1120), there is no apparent reason either in fact or in law why a deduction from' gross income should not be made in tbe year in which such losses are fixed. As observed by the court in the Sherman & Bryan Case, if it subsequently develops that the taxpayer has overestimated his loss, the amount or amounts received may be treated as income in the year in which they are received. In the instant ease, the taxpayer in good faith fixed his aggregate loss by identifiable events at $11,000'. It was in fact greater than that, and yet under the ruling appealed from appellant was compelled to include that amount as gross income for the year 1920, and the. rate and amount of its income tax were affected accordingly. We are of the view that such a result was not contemplated by section 234(a) of the Act of 1918 (40 Stat. 1077). In our view, the amendment in the later act specifically authorizing a partial charge-off of a debt recoverable only in part amounts to nothing more than a clarification of the earlier act, and may not be regarded as inconsistent with the interpretation placed upon that act in the Sherman & Bryan Case. .
The question whether the taxpayer in a given ease has established a proper basis for the deduction from gross income of losses or bad debts is primarily for tbe determination of the Commissioner of Internal Revenue. In the instant case, no question has been raised as to the good faith of the taxpayer, and, under the interpretation we have placed upon the law, and on the showing made by Mm, he was clearly entitled to the deduction claimed. As observed in United States v. S. S. White Dental Mfg. Co., 274 U. S. 398, 403, 47 S. Ct. 598, 600, 71 L. Ed. 1120, “The taxing act does not require the taxpayer to- be an incorrigible optimist.” In other words, he is required only to exercise good faith and to establish as a basis for his deduction facts upon which a prudent business man would act.
Decision reversed.
Reversed.
Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?
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.
TEXAS HOTEL SECURITIES CORPORATION v. WACO DEVELOPMENT CO.
No. 8192.
Circuit Court of Appeals, Fifth Circuit.
Dec. 28, 1936.
Rehearing Denied Jan. 30, 1937.
See, also, In re Waco Development Co. (D.C.) 15 F.Supp. 478.
Robert Allen Ritchie and Nathaniel Jacks, both of Dallas, Tex., and E. Y. Boynton and Wm. E. Terrell, both of Waco, Tex., for appellants.
J. D. Williamson, of Waco, Tex., and Claude P. Berry, of St. Louis, Mo., for appellee.
Before SIBLEY and HUTCHESON, Circuit Judges, and STRUM, District Judge.
Writ ofl certiorari denied Waco Development Co. v. Rupe, 57 S. Ct. 671, 81 L. Ed. —.
SIBLEY, Circuit Judge.
Waco Development Company on May 17, 1935, filed a petition for reorganization under Bankruptcy Act, § 77B (11 U. S.C.A. § 207), on the ground that it was unable to meet its debts as they matured. Besides a little cash it owned only the Roosevelt Hotel in Waco, Tex., and its equipment, put at a value depreciated to $602,361 but now fixed at $725,000; and its indebtedness besides taxes was an issue of negotiable gold notes or bonds secured by a mortgage on the hotel of $413,000 principal. Notes for $465,000 were originally issued, but $52,000 which matured prior to November 15, 1932, had been paid. $61,000 maturing since were in default. All of the notes are to mature by November 15, 1937. A plan of reorganization was put forth in the petition, of which it is enough for present purposes to say that it involves a lease of the hotel to Central Texas Hotel Company, the establishment of a sinking fund from the income of the hotel, the reduction of interest on the unpaid notes from 6 per cent, to 5 per cent, for five years beginning retroactively November 15, 1934, and a postponement of their maturity until November 15, 1944. This plan, after slight modification, was approved by the District Judge. Its approval turned on the acceptance of it by the class of gold note holders. More than a third of the gold notes, to wit, $149,100, were held by Texas Hotel Securities Corporation. That company, joined by the holder of $12,500 other notes, totaling 39 per cent, of the whole, dissented from the plan. The holders of 8 per cent, failed to appear and vote. The holders of $221,-000, or 53 per cent, of the whole, voted for the plan. The judge held that Texas Hotel Securities Corporation, although entitled to prove its notes and to participate in the results of the plan, had acquired them with the intent of preventing the debtor’s reorganization, and could not vote on the plan, and that its notes were not to be counted as in the class entitled to vote, so that the $221,000 of notes which were voted for the plan were two-thirds of. the whole voting class; but if otherwise that the judge had the right to confirm the plan as fairly and equitably providing protection to the nonassenting minority under section 77B (b) (5) (d) of the act. (11 U.S.C.A. § 207 (b) (5) (d).
Texas Hotel Securities Corporation, joined by the other dissenting note-holder, has taken an appeal as of right under section 25 (a), as amended by Act Mav 27, 1926, § 10, 44 Stat. 665 (11 U.S.C.A. § 48 (a), and also applied for one in the discretion of this court under section 24 (b), as amended by Act May 27, 1926, § 9, 44 Stat. 664 (11 U.S.C.A. § 47 (b). The appellee, Waco Development Company, moves to dismiss the former and opposes the grant of the latter. The judgment appealed from decrees, among other things, “that Texas Hotel Securities Corporation is not entitled on its said bonds and its said claim of $149,100 for the purpose of voting to be considered a creditor whose claim has been allowed, or to vote or use its said claim as an allowed claim in the consideration and determination of the amount of each class of claims which has accepted said plan of reorganization; but the Texas Hotel Securities Corporation is entitled to participate on its bonds in the sum of $149,100 under the plan of reorganization on the same basis as other creditors of the same class”; and it decrees approval and confirmation of the plan. The decree is in the main one approving a plan of reorganization, and as such is not appealable as of right but only in the discretion of this court for revision in matters of law under section 24 (b). Meyer v. Kenmore Hotel Co., 297 U.S. 160, 56 S.Ct. 405, 80 L.Ed. 557. In so far as it deals with the claim of Texas Hotel Securities Corporation, proof of which in due form had been filed pursuant to the order of the court made when the debtor’s petition was approved, it recognizes the claim as true and correct for beneficial purposes, but holds that it cannot be counted or voted in determining the acceptance of the plan. This is not a judgment “rejecting a claim of $500 or over” fully appealable as of right under section 25 (a). It allows the claim but denies it the consequential right to vote on a plan. A ruling as to whether a creditor may vote his claim is incidental to the approval of the plan rather than to the allowance of the claim, and is to be reviewed in connection with the action taken on the plan. When a claim is offered to be proven its right to vote in some subsequent procedure is not the question, but only whether the claimant is actually a creditor, for how much, and with what if any securities, and the like. In ordinary bankruptcy the right to vote the claim for a trustee, or on accepting a composition, or on any other question in creditors’ meeting, would be considered only when those matters were reached for action. So under section 77B the proof of the claim as to ownership, amount, and nature should first be made, and after its allowance and classification its right to vote if challenged should be considered in connection with the approval of the plan. The right to vote on a plan is not a fixed incident of every allowed claim, but exists only when its class is affected by the plan and may vary as the plan is changed or modified. Determination of its voting rights depends upon the terms of the particular plan and is incidental to its approval or rejection, and is to be reviewed therewith by appeal under section 24 (b) rather than as the allowance or rejection of the claim under section 25 (a). The claimants 'here in addition to filing proofs of their claim intervened to assert them and to oppose the plan. The interventions were wholly unnecessary. The self-styled intervenors were creditors entitled to have their claims allowed and thereby to become full parties to the bankruptcy proceeding and to take any proper action as such. The interventions do not change the nature of the questions presented or of the rulings made, nor alter the remedy on appeal. The appeal under section 25 (a) is dismissed, and that under section 24 (b) is allowed.
The denial of votability to the claim of Texas Hotel Securities Corporation is based on the purpose with which it ac-. quired its bonds. The special master who heard the witnesses testify found that the purpose of Hilton, who owns and controls the Securities Corporation, was “to exercise sufficient influence and control in the adoption of any plan for the reorganization of Waco Development Company to have the plan formulated along lines that would afford him an opportunity to recoup certain losses which the Hilton interests had sustained in the Waco-Hilton Hotel (the Roosevelt Hotel) ; that it was the intention of Hilton and his interests in purchasing said bonds to have the bonds accorded the same treatment as other bonds- and in addition thereto, if possible, to profit in some way as above set out; that the total cost to intervenor (the Securities Corporation) of notes now held by it was at least their par value.” On exception to' this finding the judge found that the Securities Corporation had legal title and that value was paid for the notes, but “with the intention and for the purpose of using-same to prevent and thwart the effort of the debtor Waco Development Company from accomplishing approval and confirmation, of any plan of reorganization under section 77B * * * by voting such block of 33i/2% of outstanding notes-against any plan proposed and submitted by the debtor.” The substituted finding is. attacked here as unsupported by evidence. The direct evidence of intention is given, by Hilton, who conducted the negotiations,, and by the president and vice president of the Securities Company, who participated.. They all testify that several months before the filing of this petition, in order to recoup in some way a loss that they felt had been unjustly visited upon the Hilton interests in connection with the hotel, they set about buying at least a third of these mortgage notes in view of a possible reorganization proceeding, and three days before the petition was filed, in co-operation with a capitalist, Greenwood, they bought the notes in controversy at prices ranging from 70 to 85, taking them over from. Greenwood a few days later, and beside-reimbursing Greenwood paying him as had been agreed an old debt of $25,000 which, he claimed. They all say that they did not intend to block any and all plans, but hoped to force one that would give them: again the operation of the hotel or otherwise reestablish an interest that they felt: they justly had in the property. The circumstances do not authorize a different conclusion. They are these: Waco Development Company in 1928 deeded to-Waco-Hilton Hotel Company (wholly owned by Texas Hotel Securities Corporation) a lot valued at $180,000. The Hotel Company built and furnished the Roosevelt Hotel with $465,000 raised on the mortgage gold notes here in controversy and abour $200,000 additional. The hotel but not the furniture was deeded back to Waco Development Company, which assumed the gold notes, and the Hotel Company took a ninety-nine year lease on the hotel. It made further extensive improvements not required by the lease. All went well till in 1932 patronage fell off due to the business depression and the lease got in default and a cancellation was threatened. The lessee sought relief in the state court under a Texas moratorium statute on March 20, 1934. A hearing was appointed for April 9th, on which day, upon a cross-petition, the lease was decreed canceled and an arrearage of $17,000 in rents established, with a foreclosure against the furniture. This swift justice was affirmed, Waco-Hilton Hotel Co. v. Waco Development Co. (Tex.Civ.App.) 75 S.W.(2d) 968, and in consequence the lessee lost all to the Waco Development Company. Subsequent negotiations by Hilton for reinstatement of the lease or other recognition were rebuffed. But Waco Development Company having bought everything in, found it necessary to reorganize, and after delay in proceedings before the Federal Securities Commission and in efforts to get a federal loan the present bankruptcy proceeding was begun. The plan of refinancing put forward by Waco Development Company before the Securities Commission and before the court included a long lease of the hotel, the hope being that better times would enable it to carry and pay the bonds as before 1932. It would be possible and not unlawful for the Hilton interests to be again the lessee. Hilton considered that Waco Development Company had been unjustly enriched, although within the law, by the misfortunes of “his hotel company, and may have thought as he says that some other recognition of his moral right might be agreed on and approved by the court. We do not think it can be held in the face of the testimony of himself and his associates that the intent was wholly obstructive, as found by the Judge, rather than hopeful of a lawful advantage to be openly gained, as found by the master. The evidence requires the finding made by, the master, and it was error in matter of law to overrule it.
Therefore Texas Hotel Securities Corporation, which felt that it had a moral right in the hotel properties or perhaps an equity arising out of oppression, in contemplation of this proceeding bought up over one-third of a class of claims m order to have a veto on plans of reorganization; not, however, in malice or to embarrass justice, or surreptitiously to sell its vote, but to force recognition of a supposed right. We are of opinion that this does not authorize the disregarding of these notes as a part of the class to be affected. A debtor corporation, whether insolvent or merely unable to meet its debts as they mature, is not guaranteed by section 77B a right to a reorganization. It is given only the right to present a plan to its creditors and stockholders for their acceptance, with the advantage that the prescribed majorities in the classes affected can control unwilling minorities. No legal wrong is done the debtor if it cannot secure the required consents and is held to its original engagements, for that is but leaving to the creditors their original rights. Nor is it unlawful to transfer claims in anticipation of bankruptcy or during bankruptcy, and the transfer usually does not deprive the claim of any of its incidents. Shropshire v. Bush, 204 U.S. 186, 27 S.Ct. 178, 51 L.Ed. 436; In re Comstock (D.C.) 154 F. 747; In re Page Motor Car Co. (D. C.) 251 F. 318. Section 77B does not prohibit such transfer, nor put transferred claims in a peculiar class. The provision here important, paragraph (e) (1), § 77B (11 U.S.C.A. § 207 (e) (1), is: “A plan of reorganization shall not be confirmed until it has been accepted in writing * * * by or on behalf of creditors holding two thirds in amount of the claims of each class whose claims have been allowed and would be affected by the plan.” The voting class enbraces holders of allowed claims without requirement as to when or how they became holders. Allowance is, as we have held, a matter to be previously settled, subject to an appeal as of right; and the term “accepted” involves only the idea of consent and no duty of impartiality of decision as to the fairness of the plan. There is only a question of its acceptability to the creditor, and not of the justice or validity of his reasons. But the act fairly implies some cleanness of motive on the part of the affirmative majority since their will is not to be imposed on the minority unless the judge finds both that the plan is fair and equitable, and under paragraph (f) (6), § 77B (11 U.S.C.A. § 207 (f) (6), that “the plan and its acceptance are in good faith and have not been made or procured by any means or promises forbidden by this 'title.” .Also in paragraph (e) (1), § 77B (11 U.S.C.A. § 207 (e), is this requirement: “With súch acceptance there shall be filed a statement * * * showing what, if any, claims and shares of stock have been purchased or transferred by those accepting the plan after the commencement or in contemplation of the proceeding, and the circumstances of such purchase or transfer.” These provisions indicate that the information is to be considered by the judge in testing the fairness and good faith of the accepting majority, but they do not say that any creditor is to be deprived of his right .to accept or reject, or that the non-acceptors are to be investigated at all. The provision at the end of paragraph (b), § 77B (11 U.S.C.A. § 207 (b) about scrutinizing depository agreements and the like and limiting claims filed by committees and agents to the actual consideration paid for them has no application to the outright owner of notes, and would not limit the present claim because par value was paid. The precedents in common bankruptcy where transferred claims have been denied a vote involved securing affirmative action by tad faith votes, as in procuring the election of a trustee or the acceptance of a composition. In re Weintrob (D.C.) 240 F. 532; Fairbanks v. Amoskeag Nat. Bank (C.C.) 38 F. 630; In re Sawyer, 21 Fed.Cas. p. 559, No., 12,395. Contrast Ex parte Jewett, 13 Fed.Cas. p. 580, No. 7,303. Section 77B in order to impose a plan on dissenters requires an acceptance by two-thirds in amount of the affected class of creditors. Less than two-thirds cannot become two-thirds because some of the dis-' senters may be badly disposed.
The act, paragraph (b) (5), § 77B (11 U.S.C.A. § 207 (b) (5), however, does recognize an exception to the requirement that two-thirds in amount of an affected class of creditors shall accept the plan when the plan “provide [s] adequate protection for the realization by them of the value of their interests, claims, or liens.” Several means by which such protection is afforded are mentioned which do not obtain here, and finally paragraph (b) (5) (d), § 77B (11 U.S.C.A. § 207 (b) (5) (d), “By such method as-will in the opinion of the judge, under and consistent with the circumstances of the particular case, equitably and fairly provide such protection.” The decree under review is finally rested on this provision. We do not construe it to authorize the judge to approve any plan which he thinks fair and equitable. If this were intended, the statute could have been made much simpler and shorter. In this case he thought it fair and equitable to reduce the interest, even retroactively, and to extend for seven years or more the maturity of this mortgage debt. But if there had been a single unwilling mortgagee, that plan could not have been constitutionally imposed. Louisville Joint Stock Bank v. Radford, 295 U. S. 555, 55 S.Ct. 854, 79 L.Ed. 1593, 97 A. L.R. 1106. No more could it be on an unwilling class of mortgagees. It is the consent of the specified majority that by a sort of democratic rule is made to be a consent for all which enables this act to control the will of dissenting minorities. The judge is not given the power, if it could be done, to substitute his judgment for the acceptance of a class of mortgage creditors. The words “such protection” refer back to the words “adequate protection for the realization by them 'of the value of their interests, claims, or liens.” Realization implies that what was in prospect has come to hand. Payment of the face of the claim in cash is the perfect realization of a money chose in action. But realization of the value of a claim or interest may be adequately secured by sale or appraisal of the thing which gives it value with the proportionate part of the value paid, or else the thing may be segregated and divided out in kind, or else left unaffected for the holder of the claim to proceed according to his unchanged contract. Such are the instances specially mentioned as adequate in subparagraphs (a), (b), and (c), par. (b) (5), § 77B (11 U.S.C.A. § 207 (b) (5) (a-c). There may be other cases of special circumstances in which adequate protection for realization of value can be worked out as contemplated by subparagraph (d). But when as here the property mortgaged is found to be worth nearly double the mortgage debt and the debtor is found to be solvent, it cannot be said that realization is adequately provided by scaling down the past and future interest and postponing the maturity of the principal for seven years. Compare Louisville Joint Stock Bank v. Radford, supra, 295 U. S. 555, at pages 594, 597, 55 S.Ct. 854, 865, 866, 79 L.Ed. 1593, 97 A.L.R. 1106. Thus interpreting subparagraph (d), par. (b) (5), § 77B (11 U.S.C.A. § 207 (b) (5) (d); and refusing to apply it in this case, we have no need to consider whether it would be constitutional if interpreted and applied as in the District Court. Tennessee Publishing Co. v. American National Bank, 299 U.S. 18, 57 S.Ct. 85, 81 L.Ed. —.
We are therefore of opinion that the claim of Texas Hotel Securities Corporation has been allowed, and cannot be excluded for voting purposes from the class of gold noteholders because of any fact that has been established; that two-thirds in amount of the allowed claims in that class have not accepted the plan proposed; and that the plan does not provide such adequate protection for the realization of the value of claims of that class as will warrant dispensing with their consent.
The judgment confirming the plan is reversed for further proceedings according to law and not inconsistent with this opinion.
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:
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songer_state
|
22
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES, Appellee, v. James CHAMBERS, Defendant, Appellant.
No. 91-1956.
United States Court of Appeals, First Circuit.
Heard May 7, 1992.
Decided May 29, 1992.
Charles P. McGinty, Federal Defender Office, Boston, Mass., for defendant, appellant.
Elizabeth Keeley, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for appellee.
Before BREYER, Chief Judge, ALDRICH and COFFIN, Senior Circuit Judges.
BREYER, Chief Judge.
A jury convicted James Chambers of six counts of bank robbery, 18 U.S.C. § 2113(a), and the district judge sentenced him to 216 months in prison and thirty-six months of supervised release. Chambers appeals his convictions, claiming that the district court prejudiced his case when it permitted a joint trial of the six counts, under Fed.R.Crim.P. 8(a), and when it denied his motion to sever the counts, under Fed.R.Crim.P. 14. We find no error on the part of the trial judge, and we affirm the convictions.
The court permitted the counts to be joined pursuant to Fed.R.Crim.P. 8(a), which provides that
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character ...
We review joinder under Rule 8(a) de novo, as a question of law. See United States v. L’Allier, 838 F.2d 234, 240 (7th Cir.1988). In this case, we find that the similarities among the six charged offenses are more than adequate to meet the Rule’s standard. Each of the six robberies involved a similar institutional victim — a federally insured bank. All the robberies occurred in a short period, between May 1 and July 14, 1989, and in a limited area, the greater Boston area. The six tellers who were robbed testified at trial, and each described a similar modus operandi during the robberies, with the robber always wearing a hat or cap, always threatening violence with a bomb or gun, and always giving the teller a handwritten note demanding money in basically the same language. In such a case, involving similar counts, institutional victims, mode of operation and time period, joinder is proper. See United States v. Gray, 958 F.2d 9, 14 (1st Cir.1992).
Chambers insists that, even if joinder were not improper under Rule 8(a), he was severely prejudiced by the district judge’s denial of his motion to sever under Fed.R.Crim.P. 14. That Rule provides, in relevant part:
If it appears that a defendant or the government is prejudiced by a joinder of offenses ... the court may order an election or separate trials of counts, ... or provide whatever other relief justice requires.
We review the district court’s denial of this motion for abuse of discretion. See United States v. Olivo-Infante, 938 F.2d 1406, 1409 (1st Cir.1991). Chambers has failed to make a strong showing of prejudice. See United States v. Font-Ramirez, 944 F.2d 42, 45 (1st Cir.1991); United States v. Scivola, 766 F.2d 37, 41 (1st Cir.1985); United States v. Clayton, 450 F.2d 16, 18 (1st Cir.1971). He asserts that he was prejudiced by the fact that none of the bank tellers made an in-court identification of him, and that the jurors were therefore left to evaluate the counts collectively, and to cumulate evidence illegitimately on the various counts.
Each of the tellers, however, gave a similar general description of the robber which matched Chambers’s appearance. Three of the tellers identified Chambers from surveillance photos taken during the robberies, and two of them picked his picture from photo line-ups prepared by law enforcement agents. Moreover, when the prosecution introduced four of the robber’s notes to the tellers, it accompanied them with expert testimony that assessed each note separately. Experts from the Federal Bureau of Investigation identified the fingerprints on two of the recovered notes as Chambers’s, and a handwriting expert, comparing the handwriting on the four notes with known samples of Chambers’s writing, said they were all written by Chambers. Furthermore, the district judge was careful to instruct the jury that the prosecution had to prove each element of each count beyond a reasonable doubt, and that the jury was to consider the evidence on each count separately. Cf. L’Allier, 838 F.2d at 242.
Given the evidence and the instructions, there was no real danger that the jury would be confused or would illegitimately cumulate the evidence. See Gray, 958 F.2d at 14-15; see also Clayton, 450 F.2d at 19; United States v. Johnson, 820 F.2d 1065, 1071 (9th Cir.1987).
The convictions are
Affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_authoritydecision
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
LIMBACH, TAX COMMISSIONER OF OHIO v. HOOVEN & ALLISON CO.
No. 83-96.
Argued February 22, 1984
Decided April 18, 1984
Blackmun, J., delivered the opinion for a unanimous Court.
Richard C. Farrin, Assistant Attorney General of Ohio, argued the cause for petitioner. With him on the briefs was Anthony J. Celebrezze, Jr., Attorney General.
Michael A. Nims argued the cause for respondent. With him on the brief was Charles H. Moellenberg, Jr
James F. Gossett filed a brief for the International Association of Assessing Officers as amicus curiae urging reversal.
Justice Blackmun
delivered the opinion of the Court.
In Hooven & Allison Co. v. Evatt, 324 U. S. 652 (1945) (Hooven I), this Court passed upon the constitutionality of Ohio’s application of a nondiscriminatory ad valorem personal property tax to imported fibers still in their original packages. The result there was unfavorable to the State. In this case, the Tax Commissioner of Ohio asks us to sustain the application of the same nondiscriminatory ad valorem personal property tax to like fibers, still in their original packages, imported by the same manufacturer. The case thus presents, primarily, an issue of preclusion framed in terms of collateral estoppel.
I
The Hooven & Allison Company (Hooven) is a domestic manufacturer of cordage products made from natural fibers. These fibers — hemp, sisal, jute, manila, and the like — are not grown in the United States and must be imported. Upon their arrival in this country, the imported fibers are transported by rail to Hooven’s plant in Xenia, Ohio, where they are stored in their original packages for future use in Hooven’s manufacturing process.
In accord with Ohio Rev. Code Ann. §5711.16 (1980), Hooven timely filed personal property tax returns for 1976 and 1977. In those returns, Hooven listed these original-package imported fibers as “imports,” but deducted their value from the total value of its manufacturing inventory. The following written explanation was given:
“The inventories represent fibers imported by the taxpayer from foreign countries, held in the original packages in its warehouses in Xenia prior to being used in manufacturing cordage, and when they are removed therefrom or placed in the production line in the factory, such imported fibers so used, or removed from the original package, are thereupon transferred to the Goods in Process and are included in the taxable inventories in Xenia City.” Joint Record in the Supreme Court of Ohio 11.
In taking this deduction, Hooven relied expressly on this Court’s 1945 decision in Hooven 1. In that decision, the Court, by a closely divided vote, ruled that subjecting Hooven’s imported original-package raw materials to Ohio personal property taxation would be in violation of the Import-Export Clause of the United States Constitution, Art. I, § 10, cl. 2.
The Tax Commissioner of Ohio, however, for each of the two years in question, disallowed the deduction and added back into Hooven’s taxable manufacturing inventory the imported raw materials held for future use in manufacturing. Hooven’s asserted property tax liability for each of those years, accordingly, was increased.
Upon application for review, the Tax Commissioner sustained the increased assessments. She rejected federal constitutional arguments advanced by Hooven, as well as an additional argument that, by the decision in Hooven I, she was collaterally estopped from levying the increased assessments. The Tax Commissioner in so ruling relied on Michelin Tire Corp. v. Wages, 423 U. S. 276 (1976).
Hooven then appealed to the Ohio Board of Tax Appeals, advancing the same collateral-estoppel and federal constitutional issues. That Board reversed the Tax Commissioner. App. to Pet. for Cert. A-10. It ruled that the Commissioner was collaterally estopped by the decision in Hooven I. It noted that the parties were the same as those in Hooven I; that the issue as to the taxability of original-package raw materials was also the issue in Hooven I; that the raw materials and the type of taxation were identical to those involved in Hooven I; that Hooven I has not been “reversed” by this Court “and thus, has the force and effect of law”; and that, under the doctrine of collateral estoppel, litigation of the issue was barred “and the exemption from taxation was improperly held to be unavailable.” App. to Pet. for Cert. A-23. The Board rejected the Tax Commissioner’s argument that the decision in Michelin implicitly had overruled Hooven I. The Board did not reach or consider the constitutional issues, observing that it lacked jurisdiction to do so. App. to Pet. for Cert. A-20; see S. S. Kresge Co. v. Bowers, 170 Ohio St. 405, 166 N. E. 2d 139 (1960), appeal dism’d, 365 U. S. 466 (1961).
Hooven and the Tax Commissioner each filed a notice of appeal to the Supreme Court of Ohio, the taxpayer doing so in order to preserve the constitutional issues, and the Tax Commissioner pressing the collateral-estoppel issue. The Supreme Court of Ohio affirmed the ruling of the Ohio Board of Tax Appeals. Hooven & Allison Co. v. Lindley, 4 Ohio St. 3d 169, 447 N. E. 2d 1295 (1983). That court, in a unanimous per curiam opinion, ruled that principles of collateral estoppel prohibited the Tax Commissioner from assessing personal property taxes upon Hooven’s imported raw materials held in the original containers for future use in manufacturing. It acknowledged the presence of Michelin but noted that this Court had not overruled Hooven I in Michelin, although it had not hesitated expressly to overrule Low v. Austin, 13 Wall. 29 (1872). Thus, the Ohio court observed, this Court’s “action — or inaction — must be accorded conclusive effect, at least in regard to its intent in reappraising its earlier ruling in Hooven 4 Ohio St. 3d, at 172, 447 N. E. 2d, at 1298. The court then “decline[d] to address the [federal] constitutional issues raised by Hooven in its appeal.” Id., at 173, 447 N. E. 2d, at 1299.
We granted certiorari. 464 U. S. 813 (1983).
HH HH
In Low v. Austin, supra, this Court, in an opinion by Justice Field, unanimously enunciated the “original-package” doctrine, although perhaps not for the first time, see Brown v. Maryland, 12 Wheat. 419, 442 (1827). It held that, under the Import-Export Clause, goods imported from a foreign country are not subject to state ad valorem property taxation while remaining in their original packages, unbroken and unsold, in the hands of the importer.
In Michelin Tire Corp. v. Wages, supra, an importer challenged the assessment of Georgia’s nondiscriminatory ad valorem property tax upon an inventory of imported tires and tubes maintained at a wholesale distribution warehouse. This Court rejected the challenge to the state tax on the imported tires. It found that in the history of the Import-Export Clause, there was nothing to suggest that a tax of the kind imposed on goods that were no longer in import transit was the type of exaction that was regarded as objectionable by the Framers. The tax could not affect the Federal Government’s exclusive regulation of foreign commerce since it did not fall on imports as such. Neither did the tax interfere with the free flow of imported goods among the States. The Clause, while not specifically excepting nondiscriminatory taxes that had some impact on imports, was not couched in terms of a broad prohibition of every tax, but prohibited States only from laying “Imposts or Duties,” which historically connoted exactions directed only at imports or commercial activities as such. The Court concluded that its reliance a century earlier in Low v. Austin “upon the Brown dictum . . . was misplaced.” 423 U. S., at 283. Chief Justice Taney’s opinion in the License Cases, 5 How. 504 (1847), was carefully analyzed, with the Court concluding that that opinion had been misread in Low. “[Precisely contrary” to the reading it was given in Low, Chief Justice Taney’s License Cases opinion was authority “that nondiscriminatory ad valorem property taxes are not prohibited by the Import-Export Clause.” 423 U. S., at 301. It followed, this Court concluded, that “Low v. Austin was wrongly decided” and “therefore must be, and is, overruled.” Ibid. Hooven I was directly cited only once in Michelin, and then only in a footnote in which the Court stated that it found it unnecessary to address the assertion in Hooven I that Congress could consent to state nondiscriminatory taxation of imports even were such taxes within the prohibition of the Import-Export Clause. See 423 U. S., at 301, n. 13. While we acknowledge that Hooven I was not expressly overruled in Michelin, the latter case strongly implies that the foundation of the former had been seriously undermined.
It is apparent, and indeed clear, that Michelin, with its overruling of Low v. Austin, adopted a fundamentally different approach to cases claiming the protection of the Import-Export Clause. We said precisely as much in Washington Revenue Dept. v. Association of Wash. Stevedoring Cos., 435 U. S. 734 (1978):
“Previous cases had assumed that all taxes on imports and exports and on the importing and exporting processes were banned by the Clause. ... So long as the goods retained their status as imports by remaining in their import packages, they enjoyed immunity from state taxation. . . .
“Michelin initiated a different approach to Import-Export Clause cases. It ignored the simple question whether the tires and tubes were imports. Instead, it analyzed the nature of the tax to determine whether it was an ‘Impost or Duty.’ 423 U. S., at 279, 290-294. Specifically, the analysis examined whether the exaction offended any of the three policy considerations leading to the presence of the Clause:
‘The Framers of the Constitution thus sought to alleviate three main concerns . . . : the Federal Government must speak with one voice when regulating commercial relations with foreign governments, and tariffs, which might affect foreign relations, could not be implemented by the States consistently with that exclusive power; import revenues were to be the major source of revenue of the Federal Government and should not be diverted to the States; and harmony among the States might be disturbed unless seaboard States, with their crucial ports of entry, were prohibited from levying taxes on citizens of other States by taxing goods merely flowing through their ports to the other States not situated as favorably geographically.’ Id., at 285-286 (footnotes omitted).
“The ad valorem property tax there at issue offended none of these policies.... The Court therefore concluded that the Georgia ad valorem property tax was not an ‘Impost or Duty,’ within the meaning of the Import-Export Clause . . . .” Id., at 752-754.
See also id., at 762 (opinion concurring in part and concurring in result).
To repeat: we think it clear that this Court in Michelin specifically abandoned the concept that the Import-Export Clause constituted a broad prohibition against all forms of state taxation that fell on imports. Michelin changed the focus of Import-Export Clause cases from the nature of the goods as imports to the nature of the tax at issue. The new focus is not on whether the goods have lost their status as imports but is, instead, on whether the tax sought to be imposed is an “Impost or Duty.” See P. Hartman, Federal Limitations on State and Local Taxation, § 5:4 (1981); Hellerstein, State Taxation and the Supreme Court: Toward a More Unified Approach to Constitutional Adjudication?, 75 Mich. L. Rev. 1426, 1427-1434 (1977). Cf. Montana v. United States, 440 U. S. 147 (1979).
Hooven I held that, under the Clause, a nondiscriminatory state ad valorem personal property tax could not be imposed until the imported goods had lost their status as imports by being removed from their original packages. This decision was among the progeny of Low v. Austin for it, too, was decided on the original-package doctrine. Thus, Hooven I is inconsistent with the later ruling in Michelin that such a tax is not an “Impost or Duty” and therefore is not prohibited by the Clause. Although Hooven I was not expressly overruled in Michelin, it must be regarded as retaining no vitality since the Michelin decision. The conclusion of the Supreme Court of Ohio that Hooven I retains current validity in this respect is therefore in error. A contrary ruling would return us to the original-package doctrine. So that there may be no misunderstanding, Hooven I, to the extent it espouses that doctrine, is not to be regarded as authority and is overruled.
J — I
A
Respondent Hooven, however, argues that because the Court in Michelin did not expressly overrule Hooven I, it must follow that state-law principles of collateral estoppel bar the imposition of an ad valorem tax upon Hooven’s raw materials inventory.
We reject the suggestion that we are confronted, in the present posture of the case, with a claim of collateral estoppel under state, as distinguished from federal, law. Hooven I was a decision concerned with the application and impact of the Import-Export Clause upon the Ohio tax. The issue, thus, was one of a federal constitutional barrier. The Supreme Court of Ohio certainly so viewed it. It referred to both Hooven I and Michelin in federal constitutional terms and it described the issue before it as whether the contested tax “may constitutionally be assessed” in light of the Import-Export Clause. 4 Ohio St. 3d, at 171, 447 N. E. 2d, at 1297. And it viewed collateral estoppel in the light of precepts set forth in Commissioner v. Sunnen, 333 U. S. 591 (1948), a federal income tax case. From this premise, the Ohio court moved to its judgment that the levy of the tax was “barred by the doctrine of collateral estoppel.” 4 Ohio St. 3d, at 173, 447 N. E. 2d, at 1299.
Collateral estoppel, therefore, was applied as a matter of federal, not state, law. We perceive in this case no state-law overtones that, by any stretch of the imagination, could serve to insulate the case from review here. We are concerned with federal issues and a contention that a state court disregarded a federal constitutional ruling of this Court. The issue, then, is reviewable here. See Deposit Bank v. Frankfort,, 191 U. S. 499 (1903); Stoll v. Gottlieb, 305 U. S. 165 (1938); Toucey v. New York Life Ins. Co., 314 U. S. 118, 129, n. 1 (1941).
B
We move on to respondent’s collateral-estoppel argument. It is true, of course, that the parties in Hooven I were the same parties as those before us in the present case. It is true that the property sought to be taxed for 1976 and 1977 identifies with the property sought to be taxed for 1938, 1939, and 1940 in Hooven I. And it is true that the tax involved is the same Ohio nondiscriminatory ad valorem personal property tax. The parties, the tax, and the goods imported and their containers are the same. The Tax Commissioner does not dispute this. Tr. of Oral Arg. 12. Collateral-estoppel concepts, therefore, might have an initial appeal.
The years involved in this tax case, however, are not the same tax years at issue in Hooven I. Because of this, Commissioner v. Sunnen, supra, is pertinent and, indeed, is controlling. That case concerned licenses granted by a patent owner and his assignment of interests in the royalty agreements to his wife. An earlier decision of the Board of Tax Appeals, involving the same facts, questions, and parties but different tax years, was held not to be conclusive under the doctrine of collateral estoppel because certain intervening decisions of this Court made manifest the error of the result that had been reached by the Board. 333 U. S., at 602-607. The reason for not applying the collateral-estoppel doctrine in the present case is even stronger than that in Sunnen, for here the constitutional analysis of the earlier case is repudiated by this Court’s intervening pronouncement.
Because the Supreme Court of Ohio did not apply the principles of Sunnen, its judgment must be vacated and the case remanded. Failure to follow Sunnen’s dictates would lead to the very tax inequality that the admonition of that case was designed to avoid. Hooven then would be immune forever from tax on its imported goods because of an early decision based upon a now repudiated legal doctrine, while all other taxpayers would have their tax liabilities determined upon the basis of the fundamentally different approach adopted in Michelin. See Sunnen, 333 U. S., at 599.
Petitioner, therefore, is not barred by collateral estoppel in asserting the increases in tax for 1976 and 1977.
IV
The case is before us without a developed factual record. Hooven takes the position that it is entitled to an opportunity to demonstrate that the facts of this case are significantly different from those of Michelin, so that the result in that case is not controlling here. Hooven suggests that in Michelin, the tires had been mingled with domestically manufactured tires and had been arranged and stored for sale and delivery; moreover, the tires were finished goods. Here, according to Hooven, its imported fibers are not for sale, are not finished goods, and are destined for incorporation into a manufacturing process. Hooven further asserts that, once a factual record has been developed, a court will be in a position to examine the case in the light of any other constitutional provision respondent is then in a position to invoke, including the Foreign Commerce Clause.
Any development of the record, of course, should take place in the state courts and first be evaluated there. Accordingly, we make no judgment on the merits of Hooven’s constitutional claims. The judgment of the Supreme Court of Ohio is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Because the respondents there, the county Tax Commissioner and Tax Assessors, did not cross-petition for certiorari, the Georgia courts’ ruling that tubes still in corrugated shipping cartons were immune from the tax was not before this Court for review. Michelin Tire Corp. v. Wages, 423 U. S., at 279. n. 2.
Since Michelin, Hooven I has been cited by this Court only twice. See California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97, 111 (1980), and Kleppe v. New Mexico, 426 U. S. 529, 540 (1976). Neither citation bears upon the issue before us in the present case.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_appel1_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 appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
CHEVROLET MOTOR CO. v. GLADDING.
No. 2934.
Circuit Court of Appeals, Fourth Circuit.
June 27, 1930.
William H. Hudgins, of Baltimore, Md., for appellant.
Robert R. Carman, of Baltimore, Md. (Gerald W. Hill and G. C. A. Anderson, both of Baltimore, Md., on the brief), for appellee.
Before PARKER and NORTHCOTT, Circuit Judges, and HAYES, District Judge.
HAYES, District Judge.
This is an action for damages for breach of contract. Chevrolet Motor Company (appellant) entered into the contract with Ray Y. Gladding (appellee) on August 2, 1926. The contract was in writing and consisted of a “Memorandum,” “Appendix,” and an “Order” covering a period of twelve months. The pertinent provisions of these instruments are printed in the margin.
The contract contained three provisions for its termination at the option of appellant, It could he canceled without notice if appellee became insolvent, upon 10 days’ notice if be did not exclusively represent seller, and upon 60 days’ notice if any question arose which threatened the mutually satisfactory business relationship.
On September 27, 1926, the appellant notified appellee of the cancellation of the contract, effective ten days later because dealer was not exclusively representing the seller. hTo other reason was assigned. The parties had mutually agreed upon 134 cars to be furnished under the contract during the year which were to be delivered in stated quantities and models during e'ach month of the year; 36 of these had been shipped before the cancellation of the contract.
The appellant contends that the contract is unenforceable for want of consideration and mutuality, and relies on the principles announced in the following cases: In re Charles Wacker Co. (D. C.) 244 f. 483; Standard Motor Co. v. Shockey, 139 Md. 136, 114 A. 869; Interstate Iron & Steel Co. v. Northwestern Bridge Co. (C. C. A.) 278 F. 50; Oakland Motor Car Co. v. Indiana Auto Co. (C. C. A.) 201 F. 499; Velie Motor Car Co. v. Kopmeier (C. C. A.) 194 F. 324.
We think this contract has features distinguishing it from each of the authorities cited, and that its construction should be determined by the following eases: Ellis v. Dodge Brothers (C. C. A.) 246 F. 764; Moon Motor Car Co. v. Moon Motor Car Co., Inc., (C. C. A.) 29 F.(2d) 3; Buick Motor Co. v. Thompson, 138 Ga. 282, 75 S. E. 354.
The parties intended to make a eontraet •for the sale of automobiles and parts. The seller required dealer to establish a place •of business and equip it with parts in order to conduct a service station satisfactory to seller. It agreed to sell him cars and parts at standard dealer’s discount, and they mutually agreed on the number of ears for the year at 134, specifically describing them. Dealer testified he intended to perform the contract accordingly, and the manager of seller testified he expected performance. Seller had required dealer to carry a stock of parts which at the time of the contract amounted to about $1,800. The seller took back $626 of the parts, and refused to take the remainder. The contract provided that the seller, in event the eontraet was terminated, would take at cost unused automobiles and such of the parts as he could accept. So long as the eontraet was in force, the dealer was permitted to use the name “Chevrolet,” and advertising in the territory was paid by both in order to promote sales. The provisions of the contract and the acts of the parties themselves are consistent only with a construction of a mutual contract imposing reciprocal obligations and equally binding. The clause agreeing not Jo cancel the contract except upon 60 days’ notice shows that the dealer should have that time as seller’s dealer to dispose of his cars and parts with all the selling advantages of an accredited dealer. The eontraet exacted an investment by the dealer, and protected him agains the hazards of the termination of the contract without a notice of 60 days except for the other causes not material here.
It is contended that the seller could cancel the order for any month without incurring liability, but this privilege does not carry a right to act arbitrarily. The contract properly 'construed confers no discretionary right on seller to refuse to sell the cars and parts. If the seller did not regard the contract as binding it to performance, why did it make the provisions for the cancellation?
Clause 11 relates to automobiles ordered in excess of allotment. Such orders when accepted, by seller “shall be deemed to he subject to all the conditions to which orders for motor vehicles under said allotment are subject. And if seller shall accept from any other Dealer orders in excess of the monthly allotment of such other Dealer, such acceptance by Seller shall not render Seller liable to Dealer for any loss or damage because of the failure of Seller to ship any orders or order to Dealer.” If the seller did not intend to be bound to ship the cars ordered on the allotment and did not think it was bound to do so, it is difficult to apprehend why it expressly absolved itself from liability for failure to ship accepted orders in excess of the allotment. This clanse confirms our construction of the contract holding that it is not lacking in mutuality or consideration. [3,4] Appellant contends that, if the contract is enforceable, the damages should have been limited to such as accrued within 60 days, for, it eonténds, the seller had the right to cancel the contract on 60 days’ notice when any question arose which threatened the mutually satisfactory business relationship; that such a question had arisen. These questions were properly presented by request for instructions and exception to the court’s refusal to give them. No such defense was pleaded or proven. Nor was the contract canceled under this provision. It was canceled on 10 days’ notice for the alleged failure of dealer to exclusively represent seller. Dealer insisted that he was not interested in the sale of other ears; seller contended he was, and offered evidence to show that he furnished finances and negotiated a contract for his sons for the sale of other cars. For this reason seller denied a breach of the contract. That was the issue raised; it was the issue to which the evidence was directed, it was the issue to be tried. While there was persuasive evidence on this issue in favor of appellant’s contentions, the evidence was conflicting, it was a jury question, and the jury found in favor of appellee. We find no error in the charge of the court nor in its refusal to give the requested instructions.
When a party to a contract elects to cancel it under one or more alternative provisions conferring such a privilege, he should assign his cause and abide by it. He cannot assign one cause and cancel it, then, after being sued for wrongful cancellation, come into court and say he may have erred in respect of the cause assigned, but another cause does exist, and he is not liable. This court in Luekenbach Co. v. Grace, 267 F. 676, 679, said: “But the further and equally conclusive answer is found in the settled rule of law that one who breaches his contract for reasons specified at the time will not be permitted afterwards, when sued for damages, to set up other and different defenses.” Wall Grocer Co. v. Jobbers’ Overall Co., 264 F. 71 (C. C. A. 4th Circuit); McCreary v. Strongman (C. C. A.) 6 F.(2d) 441; Robb v. Crawford, 56 App. D. C. 394, 16 F.(2d) 339; Ohio Railway Co. v. McCarthy, 96 U. S. 258, 24 L. Ed. 693.
While the contract might have been terminated for various reasons before its performance was completed, the appellant eliminated these questions when it elected to cancel for the reason assigned, which the jury finds groundless. The court under appropriate instructions submitted the correct principles applicable to the damages recoverable.
Error is assigned to the ruling of the court sustaining objection to a question asked by appellant as to the trade meaning of the word “Exclusive.” It does not appear what the witness would have said. This constitutes no reversible error. Maryland Casualty Co. v. Simmons (C. C. A.) 2 F.(2d) 29. [8,9] The court admitted over appellant’s objection a letter written by Gladding’s banker to Mr. Hatch, appellant’s manager. The letter was dated July 28, 1926, and the contract was not finally consummated until August 2. Mr. Hatch had stated voluntarily that he read a letter about that time (July 28, 1926) from Mr. Gladding’s bank to the effect that Mr. Gladding had loaned his boys $2,000. Without deciding that the letter was competent, we are unable to see anything in it which prejudiced the appellant. It is true the banker expressed the opinion that the loan would not impair the financial ability of Mr. Gladding, nevertheless appellant has not contended that Mr. Gladding was not financially able to perform his contract. Since it could not affect the result, its admission does not constitute reversible error. Appellate courts as a rule do not grant new trials except where it is apparent the trial court has committed error which is capable, at least, of affecting the result.
The judgment below is affirmed.
A. Excerpts from Memorandum.
(1) Seller hereby grants to Dealer the concession to sell new Chevrolet automobiles, chassis, parts and accessories in the territory (but not elsewhere) described and set forth in the ‘appendix’ hereto, and which appendix is made a part of this agreement as fully as if it and all the matters therein contained were embodied in this Agreement.
(2) ¡Dealer hereby accepts the above concession and agrees to make all sales hereunder in accordance with this agreement. Dealer further agrees to work and develop to the satisfaction of Seller the aforementioned territory and not to sell any of such automobiles or chassis outside thereof. Should any such automobile or chassis sold by Dealer be used in the territory of another Dealer, Dealer agrees to abide by the decision of Seller regarding the division of compensation due Dealer in whose territory such automobile or chassis is used.
(3) It is agreed that this agreement does not constitute Dealer, Associate Dealer or Parts Depot the agent or legal representative of Seller for any purpose whatsoever. Dealer is not granted any right or authority to assume or to create any obligation or responsibility, expressed or implied, in behalf or in the name of the Seller, or to bind seller in any manner or thing whatsoever.
(3) (4) This agreement shall continue in force and govern all relations and transactions between the parties hereto until cancelled or terminated, sa'id cancellation to be governed entirely as set forth in the Appendix, which is made a part of this agreement, as stated above.
Any cancellation or termination of this agreement shall also operate as a cancellation of all order for standard automobiles, chassis, parts, equipment or accessories which may not have been shipped prior to receipt of notice of such cancellation or termination by Dealer, but will not release Dealer from payment of any sum which may then he owing Seller, or payment for'any special chassis or equipment for same which may have been ordered by (Dealer and not shipped by Seller prior to such notice of cancellation or termination. It is understood that any automobile or chassis which may have been ordered by Dealer and which differs in any way from the Standard specifications therefor as adopted by Seller or special equipment of any type shaJll be considered as special.
(6) Seller agrees that for so long a time as Dealer shall continue to sell new Chevrolet automobiles, chassis, parts and accessories in a manner and to an extent and quality satisfactory to Seller and while this agreement shall be and remain in effect, no other or different person, firm or corporation will be granted the privilege of selling same products in the aforesaid territory, except in such territories a‘s Seller may designate, it being understood that in the event of such exception Seller is convinced that non-exclusive representation is essential in order to secure from such designated territory a proper volume of business. Seller expressly reserves the right to sell any of its products to tie United States or any foreign government or any department or bureau thereof, or the American Red Cross, without any obligation to pay Dealer any commissions or other charges upon such sales.
(7) Dealer shall pay to Seller upon each’ and every shipment of new Chevrolet automobiles, chassis, parts or equipment, Dealer’s price from Seller in effect at the time of such shipment and as is set forth in price list attached to this agreement, together with the amount of any Federal, State or Municipal tax which seller has paid or agreed to pay on any such automobiles or chassis.
(8) Dealer shall whenever requested by Seller, notify Seller of his estimated or expected requirements of new Chevrolet automobiles and chassis for such number of months succeeding the date of such notification as Seller may designate. Such estimate will be used by Seller as a basis to determine Dealer’s monthly allotment.
(4) (10) If for any reason Seller does not ship during any month the orders specified for that month, such unshipped orders for that month may he can-celled by Seller and be deducted from the Allotment to the Dealer as specified for that month and in such case the Seller and'Dealer will be released from any further liability for such month on such unfilled order.
(11) Any order submitted by Dealer in excess of his allotment as provided in the Appendix, may he accepted by Seller at its option and when so accepted shall he deemed to be subject to all the conditions to which orders for motor vehicles under said allotment are subject. And if Seller shall accept from any other Deailer orders in excess of the monthly allotment of such other Dealer, such acceptance by Seller shall not render Seller liable to Dealer for any loss or damage because of the failure of Seller to ship any orders or order to Dealer.
(12) Dealer agrees to maintain a place of business aJhd sales room and service station satisfactory to 'Seller, and Seller shall have the right at all reasonable times in business hours to inspect said place of business and sales room and service station, and to inspect all records and accounts of Dealer relating to the sale and servicing of new Chevrolet automobiles, chassis, parts and accessories. Dealer agrees, so long as this agreement shall he and remain in effect, at his own expense to comply with each and all of the requirements that now or hereafter may be notified to him in writing by Seller relating to the advertising, sale and servicing by Dealer of new Chevrolet automobiles, chassis, parts and accessories.
(14) Seller will sell Dealer genuine Chevrolet repair parts, and hill same net cash payable the tenth (10th) of the month following date of billing, at a discount and terms specified on the Appendix of Price List hereto, or at such different discounts * and terms as may hereafter be established by Seller; provided Dealer shall carfy in stock genuine Chevrolet repair parts the amount and kind of which shall he specified by Seller from time to time as Seller may deem necessary to insure good service to owners of Chevrolet automobiles and chassis in Dealer’s territory. In stipulating the quantity of genuine Chevrolet parts'and accessories to he carried in stock by Dealer, Seller will be governed by the number of Chevrolet automobiles and chassis in Dealer’s territory to be serviced, plus Dealer’s accepted schedule as submitted from ’time to time. Seller shall have the right at any reasonable time in business hours to inspect and check over Dealer’s stock of repair and replacement parts and if in Seller’s judgment a sufficient quantity of parts for repair and replacement purposes are not then in Dealer’s stock, Dealer hereby agrees to immediately order such parts as may be recommended by Seller.
(17) In case of the termination of this agreement by either party Seller may, at its option within thirty days after such termination, re-purchase from Dealer at the price paid by Dealer plus the actual freight on shipments to Dealer, all or any part of the new Chevrolet automobiles, chassis, parts, or accessories on hand in Dealer’s place of business or in the possession of Dealer, and upon demand and the tender by Seller of the purchase price, Dealer shall be obligated to deliver such goods to Seller forthwith.
(19) Seller is entitled to the use of the word “Chev~ rolet” as applied to automobiles and chassis, and of the good will attached thereto: If the word “Chevrolet” is used in the name under which the Dealer’s business is conducted, or in any sign or advertising displayed by Dealer, Dealer will upofit termination of this agreement or upon the request of Seller, discontinue the use of the word “Chevrolet” in such name, sign, or advertising, and thereafter will not use either directly or indirectly in connection with any automobile business the word “Chóvrolet” or any other name, title or expression so nearly resembling the same as to be likely to lead to confusion or uncertainty or to deceive the public.
(20) This agreement constitutes a personal contract; and Dealer shall not transfer or assign same or any part thereof without Seller’s written consent.
(6) (21) In case Dealer is a co-partnership or a corporation, and disagreements of any nature shall arise between the members of the co-partnership or of the officers or managers of the corporation, whereby Seller deems its interest may be imperiled, or in case of the incapacity, death or insolvency of Dealer, or in case an application is made to have Dealer declared bankrupt, or in case a Receiver or Trustee is appointed for Dealer, then Seller may at its option cancel this agreement without any notice whatsoever to Dealer.
(26) It is understood that the parties may at any time during the continuance of this agreement agree upon and execute a new “Appendix” which shall be attached to this agreement and form part thereof as heretofore provided, as fully as if such “Appendix” had been executed and attached to this agreement at the time of the execution thereof.
Tha)t the price list referred to in the Seventh. Paragraph of the. foregoing agreement, issued by the defendant, in effect from August first, nineteen hundred and twenty-six to July thirty-first, nineteen hundred and' twenty-seven, and attached to said agreement was as follow»:
Dealers’ Discounts and Terms
Models “K” Series “V” and “Utility Express Truck”
(Chassis)
On Series “V” and/or “Utility Express Truck ('Chassis) New Cars,” a discount of twenty-four (24%) per cent, from the list prices as shown above, or which may subsequently be established, will apply from August 1, 1926, to July 31, 1927, unless otherwise advised:
Parts Discounts
Parts on Open Account
Parts will be hilled to dealers of record at a discount of 40% from current list prices on all shipments.
“Parts will be hilled in carload lots to dealers of record at a discount of 40% and 5% from current list prices, F. O. B. Dealer’s shipping point — sight draft against bill of lading — collection charges added.”
Miscellaneous
It is understood and agreed that our Standard Warranty as shown in your current selling agreement with this Company is null and void on any Chevrolet Model where parts not made or sold by us arc used in any replacement or otherwise.
All prices and discounts quoted are subject to the terms of your current selling agreement with this company.
It is understood and agreed that deliveries of all orders are subject to contingencies beyond our control, such as fires, strikes, embargoes, inability to secure material, labor transportation, etc.
This Price List cancels all previous Price Lists / and is subject to change without advance notice,
Chevrolet Motor Company
Price List No. M-3
Effective August 1st, 1926
(Superseding Price List M-2)
Chevrolet Motor Company
(The Dealer should attach this Price list to his agreement with this Company).
B. Excerpts from Appendix.
This regular appendix, dated August 2nd, 1926 which is an appendix to the Agreement executed bertween the parties hereto under date of August 2nd, 1926 and which it is agreed shall be part of and subject to all of the terms and provisions of said Agreement and shall cancel and supersede any previous appendix or appendices heretofore existing between the parties hereto.
Seller Agrees
to sell Dealer new Chevrolet automobiles and chassis, hereinafter described in Price List by Model, terms sight draft, with bill of lading attached (Payable with collection charges) F. O. B. Flint, Michigan, freight charges to be based on published rates •from Flint at the time of delivery and without right to reparation in accordance with price list issued by Chevrolet Motor Company from time to time and subject to the terms of said agreement for resale in the following specified territory and in no other, namely:
Non-exclusive selling rights in Dist Of Columbia; Maryland; Virginia except Dickenson, Wise, Lee, Scott, Russell & Washington Counties: Pennsylvania — Counties of Adams, FYanklin, York & in F*ulton County, Union, Bethel & Thompson Townships, & that part of Cumberland County lying south and west of the northeast lines of Hopewell & Southampton Townships; Delaware, Sussex County, Dist. #7 (Baltimore Hundred) & Dist. #5 (Little Creek Hundred) lying south of straight line running due east and west through town of Bacon: West Va1., the Counties of Berkeley, Grant, Hampshire, Hardy, Jefferson, Mercer, Mineral, Morgan & Pendleton; North Carolina, townships of Pelham, Dan. River & Milton, Caswell* County.
The Dealer agrees that he will use a standard method or system of Accounting for his business that will show his actual financial position each month and that he will furnish to Seller upon request a statement which shall show such financial position.
The Dealer agrees to purchase and erect immediately in a conspicuous place outside his Show Room, a standard Chevrolet electric sign, provided the erection of said sign is not prohibited by any local City Ordinance.
The Seller will add Five Dollars ($5.00) to the invoice of each new Chevrolet passenger car, commercial chassis and truck. The money collected from this source will establish a Chevrolet Dealers* Advertising Fund. (12) To this fund the Seller will contribute Two Dollars and fifty cents ($2.50) for each Five Dollars Collected from the above mentioned source. The money obtained in this manner for Dealer’s Advertising Fund will be spent by the Seller in the placement of Dealer’s local advertising through the channels of billboard, newspaper advertising, and such other methods of advertising as in the judgment of the Seller will be of benefit to its Dealers.
The Seller will put forth its best efforts to accomplish a proportional distribution of this advertising, and will particularly endeavor to expend the full amount paid by the Dealers in their respective vicinities. The portion of the fund contributed by the Seller will be used for advertising purposes for the Dealers which in the judgment of the Seller will he best calculated to still further add to the Dealers' interests. In carrying out this advertising program the Seller will as far as practicable arrange to place in the advertisement the local Dealer’s name and address. In cities where more than one Dealer is located the names of all Dealers will be carried, if in the judgment of the Seller this will he practicable; otherwise a slogan for the interest of all Dealers will be used.
Dealer agrees to purchase such Road Signs a>s are necessary to prqperly advertise his business on a mutually satisfactory basis as between the Dealer and Seller, it being understood that the cost of road signs is not to be met from the Chevrolet Dealers' Advertising Fund.
The Dealer further agrees in order to render proper service to his customers to buy such special tools as have been developed by Seller from suppliers as may be mutually satisfactory between Dealer and Seller after Seller -has made an examination of the service conditions in Dealer’s place of business and in his territory.
During the life of this Agreement and Appendix or until otherwise advised by Seller; the Dealer will, on forms provided by Seller furnish the Chevrolet Motors Company, not later than July 15th of each year, with a signed order, covering allotment of models by months, for the following season of twelve (12) months from August 1st next such signed order being a mutually agreed allotment between seller and dealer.
During the months of October, November, December, January, February, and March of each selling year, in. case the Dealer fails to accept and pay for models as allotted by months, then the S'eller will, in lieu of-shipping pursuant to such allotment supply the Dealer from time to time with models properly balanced so that he shall have on hand approximately 15% of the twelve (12) months’ supply specified in the shipping order. It being mutually intended hereby that the Dealer shall not at any time be required to carry unsold cars in excess of 15% of his yearly allotment, and that the Seller shall be entitled to ship up to that amount. Anything herein contained to the contrary notwithstanding. In any event, should the Dealer’s unsold stock in any of the months above mentioned equal 15% of his annual allotment, the Seller will discontinue shipping unless the Dealer desires more cars and Seller is able to furnish them.
It is further agreed that the seller will not in any (13) one of the above mentioned months, while building up the car stocks on the basis a's referred to above, ship the dealer cars to exceed (10) per cent, of the total annual quota as specified in the Dealers’ Shipping Order, unless the Dealer requests shipments in excess of said 10%. The Dealer agrees to keep the Seller advised at all times of the condition of his car stocks and the movement of same.
In further consideration of the full and complete exercise of all parts of this agreement and appendix, the seller agrees with the Dealer that should at any time any question arise that threatens to interfere with their mutually satisfactory business relationship, Seller will not cancel this Agreement except on sixty (60) days notice, with the further proviso that the only exception to the foregoing will be in the case of the Dealer not being an Exclusive Chevrolet Dealer, in which case this contract may be cancelled on ten days’ written «notice by registered mail. If cancelled, Seller is to have the privilege of repurchasing at cost of same to Dealer, less the charge for Chevrolet Dealers' Advertising Fund, any of Seller’s new current models which Dealer may have on hand in first class condition unsold and which have not been used. This does not apply to demonstrating cars, which will not be considered for repurchase by Seller.
“The Dealer agrees that he will sell Chevrolet cars at not more than the current list prices as may be put in effect from time to time by Seller, plus other usual charges, such ais wartax (if any in effect), proportionate double-decking charge (if any in effect), proportionate handling charge (if any in effect) and freight-charge as above specified for model as designated below.” Prices of various models are stated here.
“The Seller will, from time to time during the life of this Agreement and Appendix, make such arrangements with the Deader as will insure the Dealer against loss by reason of price decline of new unused Chevrolet cars and commercial vehicles on hand at time of such price reduction.”
C. Order.
Chevrolet Motor Company, a New Jersey Corporation.
Subject to terms of my our current selling agreement and appendix thereto with the Chevrolet Motor Company, please enter my, our order and ship monthly the cars specified below.
Name R. V. Gladding Address Pocomoke City, Md. Ship to “ “ “ Address " “ “ Ship via Penn. R. R.
Draw through Citizens Nat’l Bank, Pocomoke City, Md.
Superior
Any orders specified above and not shipped for any reason whatsoever during any current month may be automatically cancelled and deducted from above allotment, in accordance with terms of current selling agreement and appendix thereto.
R. V. Gladding,
Dealer.
O. W. Heatwole,
Chevrolet Representative.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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songer_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.
Michael O. WATSON, Petitioner-Appellant, v. A. R. JAGO, Superintendent, Respondent-Appellee.
No. 76-1979.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 3, 1976.
Decided and Filed June 14, 1977.
James R. Willis, Stephen O. Walker, Cleveland, Ohio, Michael O. Watson, for petitioner-appellant.
William J. Brown, Atty. Gen. of Ohio, Allen P. Adler, Columbus, Ohio, for respondent-appellee.
Before WEICK, PECK and LIVELY, Circuit Judges.
JOHN W. PECK, Circuit Judge.
Appellant Michael Watson was indicted by a Cuyahoga County, Ohio, grand jury for deliberate and premeditated murder in the first degree, in violation of former section 2901.01 of the Ohio Revised Code. At trial, appellant claimed self-defense. The jury found appellant guilty of the lesser included offense of murder in the second degree, and appellant was sentenced to life imprisonment. After appealing to the Cuyahoga County Court of Appeals and to the Ohio Supreme Court, appellant sought collateral review of his conviction in the federal district court by petition for writ of habeas corpus. The district court, however, denied the petition.
Appellant has brought this appeal, making several arguments in support of his petition. We reach only one, that appellant was denied due process of law under the Fourteenth Amendment when he was forced during the state court trial to defend against a charge of felony-murder, which was not contained in the indictment. Because we agree with appellant on this issue, we reverse and remand the case to the district court with instructions to grant the writ of habeas corpus.
I
On February 6, 1973, in the late afternoon, appellant and a friend, John Bell, entered the store of a Cleveland, Ohio grocer, William Dallas. Bell asked the grocer’s wife, who was working in the store along with her husband, for a six-pack of beer. Mrs. Dallas got the beer from the cooler and set it on the counter. William Dallas then came over and asked Bell for some identification to show that he was of age to buy the beer. A conversation concerning credentials followed. The conversation ended when appellant drew a pistol and shot Mr. Dallas twice. One bullet struck Dallas in his left arm. The other bullet struck Dallas in the head, killing him. Mrs. Dallas witnessed the shooting.
According to Mrs. Dallas, immediately before the shooting, appellant had said to Mr. Dallas that he had credentials and had asked whether Mr. Dallas wanted to see them. According to appellant and Bell, however, Mr. Dallas had pulled a gun, and appellant claimed that he had fired in self-defense. Most of the store owners in the area were armed, and on that day, Mr. Dallas had carried a gun in the pocket of his white butcher-type apron. The police later found the gun owned by Mr. Dallas on the floor, under the victim’s body. That gun had not been fired.
Immediately after the shooting, appellant and Bell fled the scene without the beer in a red 1964 Cadillac, which had transported appellant and Bell to the store and which had carried two other friends. A description and the license plate number of the automobile were given to the police by a witness in the vicinity of the store. A couple of hours later, the automobile was stopped. Three males were arrested, but appellant escaped on foot. Six days later, on February 12,1973, appellant surrendered to the police.
Appellant was indicted for deliberate and premeditated first degree murder only. Nevertheless, at the state court trial, the prosecutor in his opening statement, after reading the indictment for deliberate and premeditated murder, asserted that:
“... the evidence... will convince you beyond a reasonable doubt that this man Watson [appellant] did in fact maliciously, premeditatively and while in the act of a robbery murder Willie Dallas.”
Defense counsel, before making his opening statement, moved to dismiss the indictment. He argued that it was an infringement of a defendant’s right to notice of criminal charges to be brought against him by the State for the prosecutor to present a case on the basis of felony-murder when the indictment specified only a charge of first degree murder with deliberate and premeditated malice and did not include a charge of felony-murder. The prosecutor, when asked by the Court to reply to this argument, stated that premeditated murder and felony-murder were both first degree mur-. der and that the indictment, by charging first degree murder, did not have to include a statement that the indictment was for felony-murder for a defendant to be prosecuted on that charge. The trial court overruled the motion to dismiss, and the trial proceeded with the presentation of the State’s case.
The prosecutor called several witnesses: Mrs. Dallas, the wife of the victim; a witness who was near the scene of the crime; Willie Waldon and Gerald Ford, friends of appellant who waited in the Cadillac when the killing took place; Peter Becker, a police detective who interrogated Ford after the shooting; and a police officer who arrived at the scene of the crime shortly after the killing. Much of the questioning focused on the possible robbery.
When the prosecution stated that it would rest its case, defense counsel, out of the jury’s hearing, moved to withdraw the charge of first degree murder from the jury’s consideration. Defense counsel argued that there was no evidence to support a possible jury verdict of first degree murder, first, because there was no evidence of premeditation or deliberation on appellant’s part and secondly, because there was no evidence to show the commission of a robbery. The prosecutor disagreed, responding that the evidence did show a premeditated killing and that he had proven a prima facie case of robbery. The Court denied the defense motion.
After a short recess, the prosecutor in proceedings between the Court and counsel in the Court’s chambers, requested the Court not to charge the jury on first degree felony-murder. The prosecutor stated that the proof showed that some of the elements of armed robbery were present and that such facts were relevant with respect to the complete circumstances of the case.
Defense counsel immediately protested. He reminded the Court that at the start of the trial he had moved for the exclusion of any reference to a felony-murder because the indictment did not mention felony-murder. He further argued that because the Court allowed the trial to proceed with the inclusion of the felony-murder charge and because the defense had patterned its cross-examination in large part on the refutation of inferences supporting a charge of felony-murder, to drop the felony-murder charge would be prejudicial since it would preclude the defense counsel from talking about what he had tried to establish on cross-examination.
The prosecutor replied that the effect of not charging the jury on felony-murder was “simply to remove what basically and normally would [have] be[en] one count of the indictment.” (State Court Trial Transcript 171.) The prosecutor denied that there could be prejudice in removing that one count since there was evidence to support a verdict of deliberate and premeditated first degree murder. The evidence of a robbery was characterized as “ancillary” to the deliberate and premeditated murder.
The Court agreed with the prosecution and made a tentative ruling that the jury would be charged only on deliberate and premeditated first degree murder. Defense counsel stated for the record that it was a strange situation for the State to start out by saying that it would prove felony-murder along with premeditated murder, to deny that there had to be a separate indictment for felony-murder from premeditated murder, to spend a great part of its case trying to prove felony-murder, and then, after resting its case, to seek withdrawal of the felony-murder charge and admit that a separate indictment was needed for felony-murder. Nevertheless, the Court adhered to its tentative decision to charge only deliberate and premeditated first degree murder.
The trial proceeded with the defense calling appellant and John Bell and the prosecution calling Mrs. Dallas in rebuttal. After the Court denied certain defense motions, the Court charged the jury on deliberate and premeditated first degree murder as charged in the indictment. The jury found appellant not guilty of deliberate and premeditated first degree murder but guilty of the lesser included offense of second degree murder.
Appellant appealed unsuccessfully to the Cuyahoga County, Ohio Court of Appeals and to the Ohio Supreme Court. His case is now before us because the district court denied his petition for a writ of habeas corpus. The question which we reach deals with the fact that appellant was forced to defend against a charge of felony-murder that was not brought by the grand jury in the indictment. There are two main issues with respect to this question: (1) whether there was a constructive amendment to the indictment, and (2) whether, if there was a constructive amendment, it violated appellant’s constitutional rights under the Fourteenth Amendment in this state court, as opposed to federal court, trial.
II
Under the Fifth Amendment’s provision that no person shall be held to answer for a capital crime unless on the indictment of a grand jury, it has been the rule that after an indictment has been returned its charges may not be broadened except by the grand jury itself. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). See Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Norris, 281 U.S. 619, 622, 50 S.Ct. 424, 74 L.Ed. 1076 (1930). In 1887, the Supreme Court in Bain, supra, 121 U.S. at 9-10, 7 S.Ct. 781, held that a defendant could only be tried upon the indictment as found by the grand jury and that language in the charging part could not be changed without rendering the indictment invalid. In Stirone, supra, 361 U.S. at 217, 80 S.Ct. at 273, the Supreme Court stated that Bain “stands for the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” This rule has been reaffirmed recently several times in this Circuit. United States v. Maselli, 534 F.2d 1197, 1201 (6th Cir. 1976); United States v. Pandilidis, 524 F.2d 644 (6th Cir. 1975), cert. denied, 424 U.S. 933, 96 S.Ct. 1146, 47 L.Ed.2d 340 (1976). Although the language in Bain is broad, it has been recognized that Bain and Stirone do not prevent federal courts from changing an indictment as to matters of form or surplus-age. Russell v. United States, supra, 369 U.S. at 770, 82 S.Ct. 1038; United States v. Hall, 536 F.2d 313, 319 (10th Cir. 1976); United States v. Dawson, 516 F.2d 796, 801 (9th Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 80 (1975); Stewart v. United States, 395 F.2d 484, 487-89 (8th Cir. 1968); United States v. Fruchtman, 421 F.2d 1019, 1021 (6th Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 39, 27 L.Ed.2d 86 (1970); United States v. Huff, 512 F.2d 66 (5th Cir. 1975).
In Gaither v. United States, 134 U.S.App. D.C. 154, 413 F.2d 1061, 1071 (1969), this definition of an amendment prohibited by Stiro,ne and Bain, as opposed to the concept of a variance in proof from the indictment, appears:
An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.
These definitions have been quoted with approval by several courts of appeal. United States v. Pelose, 538 F.2d 41, 45 n. 8 (2d Cir. 1976); United States v. Somers, 496 F.2d 723, 743 n. 38 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); United States v. Bursten, 453 F.2d 605, 607 (5th Cir. 1971), cert. denied, 409 U.S. 843, 93 S.Ct. 44, 34 L.Ed.2d 83 (1972).
This distinction between an amendment and a variance is critical because a variance is subject to the harmless error rule, Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), whereas an amendment prohibited by Stirone and Bain is prejudicial per se. United States v. Bryan, 483 F.2d 88, 96 (3d Cir. 1973); United States v. DeCavalcante, 440 F.2d 1264, 1271 (3d Cir. 1971);. Gaither v. United States, supra, 413 F.2d at 1072. Sometimes, however, there is a problem in identifying when an amendment is made to an indictment. That problem occurs when the charging terms of an indictment have not been literally changed but have been effectively altered by events at trial. United States v. Somers, supra, 496 F.2d at 744.
Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252, involved a “constructive” amendment. The defendant was found guilty, but the Supreme Court reversed the conviction, stating that the defendant’s right to be tried only on charges presented in an indictment returned by a grand jury had been destroyed even though the indictment had not been formally changed. Stirone v. United States, supra, 361 U.S. at 217, 80 S.Ct. 270.
Under Stirone, the question to be asked in identifying a constructive amendment is whether there has been a modification at trial in the elements of the crime charged. United States v. Somers, supra, 496 F.2d at 744; United States v. DeCavalcante, supra, 440 F.2d at 1272; United States v. Silverman, 430 F.2d 106, 111 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971). Such a modification would result in a constructive amendment. Of course, if a different crime was added to the charges against which the defendant had to meet, there would have been a constructive amendment. United States v. Sir Kue Chin, 534 F.2d 1032, 1036 (2d Cir. 1976); United States v. Holt, 529 F.2d 981 (4th Cir. 1975).
Applying this test to the present case, there clearly was a constructive amendment made to the indictment if appellant is correct in stating that felony-murder was added to the charges against which appellant had to defend at the state trial. Under Ohio law, a felony-murder conviction cannot be sustained under an indictment charging first degree murder with premeditated and deliberate malice. The Ohio Supreme Court in State v. Ferguson, 175 Ohio St. 390, 195 N.E.2d 794 (1964), held that although felony-murder and premeditated murder were both included in the same paragraph of the then existing first degree murder statute, felony-murder and premeditated murder constituted separate offenses. For appellant to be convicted of felony-murder he would have had to be indicted for that crime.
The question that the present case poses is whether, under the facts of this case, felony-murder was effectively added to the charges against which appellant had to defend. The district court held that there was no factual basis from which to conclude an amendment had been made to the indictment, even though the prosecutor, during the State’s case, improperly tried to prove felony-murder. The district court reasoned, and on appeal appellee contends, that there was no amendment to the indictment because the prosecutor’s opening statement included a reading of the indictment and because the trial court’s charge to the jury was only for deliberate and premeditated first degree murder and did not include a charge of felony-murder.
However, the prosecution and defense counsel throughout the State’s case relied on the trial court’s ruling and sought respectively to prove and negate commission of a robbery at the time of the shooting. On cross-examination, defense counsel elicited from Mrs. Dallas the statements that neither appellant nor Bell said “stick it up,” that neither appellant nor Bell gave any indication that they were robbing or attempting to rob the store, that neither appellant nor Bell took anything of value in the store, and that neither appellant nor Bell acted — until the shooting — as other than normal customers.
In response, the prosecution called Henry Towns, a witness in the vicinity of the store. Towns described seeing appellant and Bell run up a street away from the area of the grocery store and enter a waiting red 1964 Cadillac, which quickly sped away from the scene. Towns further testified that he saw either appellant or Bell with something under his arm and that he thought that the bar next to the Dallas grocery store had been robbed.
After brief testimony from an intervening witness, the prosecution called Gerald Ford. The prosecution’s sole purpose in calling and vigorously questioning Ford was to prove a robbery. After the prosecution was granted permission to cross-examine Ford as a hostile witness, he was asked whether in the car after the shooting if appellant had admitted to his friends that in the store he told William Dallas that it was a “stickup.” Ford first denied that appellant had said anything about a stickup and then asserted that he could not remember. The prosecutor read from Ford’s statement, which was taken by police after he was arrested and which incriminated the appellant. Ford said that he had signed the statement but repeated his claim that he did not remember that he had stated anything about a robbery. In permitting the prosecutor to cross-examine Ford as a hostile witness, the Court gave as its “principal reason” for allowing the cross-examination the fact that the State in its opening statement contended that the killing took place during an attempted robbery.
When cross-examined by defense counsel, Ford denied that there was any conversation among the four friends in the Cadillac about an effort to rob the grocery store. Ford also testified that the statement he gave was made under pressure of possible criminal charges against him at a time when he was not free to leave the police station.
The prosecution also called two police detectives, Peter Becker, who was one of the two officers who took Ford’s statement, and William Vargo, who was an officer who arrived at the scene of the crime shortly after the killing. On direct examination, Becker was questioned about the nature of his interrogation of Ford to show that the statement was freely given. On cross-examination, Becker admitted that Ford never said that any of his three companions in the Cadillac on the day of the shooting ever stated to Ford that appellant and Bell had the intention of robbing the store. Vargo admitted on cross-examination that when he turned over the dead body of William Dallas, he saw that the right hand of Dallas was inches away from where his gun lay on the floor. Shortly thereafter, the prosecution stated that it would not ask that the Ford statement be formally received into evidence.
It thus clearly appears that the strategy of counsel was vitally affected by the trial court’s ruling allowing the prosecution to prove felony-murder. The trial proceeded on the basis that, under the Ohio first degree murder statute, former Ohio Revised Code § 2901.01, to uphold a conviction of first degree murder, the State had to prove that appellant purposely killed another person and that appellant either killed with deliberation and premeditation or killed during the commission of a felony. State v. Farmer, 156 Ohio St. 214, 102 N.E.2d 11 (1951); Robbins v. State, 8 Ohio St. 181 (1857); Note, The Felony Murder Rule in Ohio, 17 Ohio St. L.J. 130 (1956). A major portion of the trial, during the State’s case, concerned the possible robbery and not facts going to a determination of premeditation. The trial court ruling that the State could prove felony-murder was critical to defense strategy because appellant at trial claimed self-defense, which is not a defense to felony-murder.
The trial court thus permitted a constructive amendment and then, upon request of the prosecution, permitted a withdrawal of the amendment. As the prosecutor aptly put it, when he asked the trial court not to charge the jury on felony-murder, the effect was “simply to remove what basically and normally would [have] be[en] one count of the indictment.” The Ohio grand jury had not put such a felony-murder count in the indictment.
Ill
Because the law of a constructive amendment has developed in the context of federal court trials and the Fifth Amendment, it must be determined whether appellant’s constitutional rights under the Fourteenth Amendment were violated in his state court trial. The problem stems from the fact that the rule against amendments contained in Ex Parte Bain, supra, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849, and Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252, rests on the Fifth Amendment’s guarantee of a grand jury indictment before a person can be held to answer for a capital crime. Ex Parte Bain, supra, 121 U.S. at 10, 13, 7 S.Ct. at 786, 788, made clear the Fifth Amendment basis for the rule:
If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner’s trial for a crime, and without which the Constitution says, “no person shall be held to answer,” may be frittered away until its value is almost destroyed.
[A]fter the indictment was changed it was no longer the indictment of the grand jury who presented it. Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the Constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists.
The Fifth Amendment’s guarantee of a grand jury indictment in cases of capital crimes, however, has never been incorporated into the Fourteenth Amendment and hence is not applicable to the states. In Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment did not require a grand jury indictment in a prosecution by the State of California for a capital crime. While it is true that Hurtado once stood in a line of Supreme Court cases that refused to incorporate Bill of Rights guarantees relating to criminal procedure into the Fourteenth Amendment and while it is true that such older precedent, except for Hurtado, has been overruled and most of the Bill of Rights guarantees relating to criminal procedure have been incorporated into the Fourteenth Amendment as fundamental rights, Hurtado remains good law. Branzburg v. Hayes, 408 U.S. 665, 688 n. 25, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Picard v. Connor, 404 U.S. 270, 273, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Beck v. Washington, 369 U.S. 541, 545, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); Saunders v. Buckhoe, 346 F.2d 558, 559 (6th Cir. 1965).
In addition, even if a state adopts a grand jury system, federal constitutional requirements, binding in federal criminal cases are not binding on the states, Alexander v. Louisiana, supra, 405 U.S. at 633, 92 S.Ct. 1221, except with respect to the racial or national composition of grand juries. Carter v. Jury Commission, 396 U.S. 320, 330, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970). Thus, with respect to amendments, federal courts have viewed their legality as “primarily a matter of state law.” United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 425 (3d Cir. 1975). See Henderson v. Cardwell, 426 F.2d 150, 152 (6th Cir. 1970); Stone v. Wingo, 416 F.2d 857, 859 (6th Cir. 1969).
By statute, Ohio law allows certain amendments. Ohio Revised Code § 2941.30 at the time of appellant’s trial provided, and now provides:
The court may at any time before, during, or after a trial amend the indictment, information, or bill of particulars, in respect to any defect, imperfection, or omission in form of substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. If any amendment is made to the substance of the indictment or information or to cure a variance between the indictment or information and the proof, the accused is entitled to a discharge of the jury on his motion, if a jury has been impaneled, and to a reasonable continuance of the cause, unless it clearly appears from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that his rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury. In case a jury is discharged from further consideration of a case under this section, the accused was not in jeopardy. No action of the court in refusing a continuance or postponement under this section is reviewable except after motion to and refusal by the trial court to grant a new trial therefor, and no appeal based upon such action of the court shall be sustained, nor reversal had, unless from consideration of the whole proceedings, the reviewing court finds that the accused was prejudiced in his defense or that a failure of justice resulted.
In the present case the Ohio Revised Code § 2941.30 would not permit an amendment that changed the indictment to add another, different crime. See Breinig v. State, 124 Ohio St. 39, 42-43, 176 N.E. 674 (1931); Hasselworth v. Alvis, 76 Ohio Law Abs. 238, 143 N.E.2d 862 (1956); Horsley v. Alvis, 281 F.2d 440 (6th Cir. 1960). In no way was Ohio Revised Code § 2941.30 involved in the present case. According to Breinig, such a far reaching amendment as occurred in the present case would violate fundamental laws, cloaking the defendant with the right under the Ohio State Constitution to “demand the nature and cause of the accusation against him.” 124 Ohio St. at 42-43, 176 N.E.2d at 676.
More important to appellant’s petition for a writ of habeas corpus is the fact that an amendment to an indictment in certain cases can implicate rights under the United States Constitution which are applicable to the states, such as fair notice of criminal charges, double jeopardy, and effective assistance of counsel. See United States ex rel. Wojtycha v. Hopkins, supra, 517 F.2d 425. This Court in United States v. Pandili-dis, supra, 524 F.2d at 648, recognized that:
. the rules governing the content of indictments, variances and amendments are designed to protect three important rights: the right under the Sixth Amendment to fair notice of the criminal charge one will be required to meet, the right under the Fifth Amendment not to be placed twice in jeopardy for the same offense, and the right granted by the Fifth Amendment, and sometimes by statute, not to be held to answer for certain crimes except upon a presentment or indictment returned by a grand jury.
There is no question that the Fourteenth Amendment encompasses the right to fair notice of criminal charges. The Supreme Court in In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948), in dealing with the Due Process Clause of the Fourteenth Amendment, stated that:
A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence..
Likewise, in Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948), the Supreme Court declared that:
No principle of procedural due process is more clearly established than that of notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.
See United States v. Maselli, supra, 534 F.2d 1197, 1201; United States v. Beard, 436 F.2d 1084, 1086-88 (5th Cir. 1971); Salinas v. United States, 277 F.2d 914, 916 (9th Cir. 1960). Also, under the Fourteenth Amendment, states are obliged to observe the prohibition against double jeopardy, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and allow counsel sufficient time to prepare a defense. Powell v. Alabama, 287 U.S. 45, 59, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
To allow the prosecution to amend the indictment at trial so as to enable the prosecution to seek a conviction on a charge not brought by the grand jury unquestionably constituted a denial of due process by not giving appellant fair notice of criminal charges to be brought against him. See DeJonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278 (1937). As a matter of law, appellant was prejudiced by the constructive amendment. See Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252; United States v. DeCavalcante, supra, 440 F.2d 1264; Gaither v. United States, supra, 134 U.S.App.D.C. 154, 413 F.2d 1061. The fact that the charge to the jury only included first degree premeditated murder according to the indictment could not cure the prejudice to the appellant. Furthermore, an amendment cannot properly be justified by a prosecuting attorney on the ground that defense counsel should have sought a bill of particulars. Russell v. United States, supra, 369 U.S. at 769-70, 82 S.Ct. 1038; United States v. Norris, supra, 281 U.S. at 622, 50 S.Ct. 424.
The order of the district court is reversed, and the case is remanded to the district court with instructions to grant the writ of habeas corpus, conditioned on the State’s right to retry the appellant. See Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).
. Appellant presented to the district court and to this Court four contentions. First, due process was denied appellant when the prosecutor introduced, as substantive proof of guilt, testimony showing that appellant had exercised his right to remain silent at the time of arrest. Second, due process and effective assistance of counsel were denied appellant when he was forced to defend against charges not brought by the grand jury. Third, due process was denied appellant when the prosecutor asked inflammatory questions without a reasonable belief that such questions would produce admissible evidence. Fourth, due process was denied appellant when the state trial court required him to prove affirmatively, by the preponderance of the evidence, self-defense.
. Appellant’s fourth contention, regarding the burden of proof he had to shoulder on the issue of self-defense, was never presented to the state courts. Also, appellant’s third contention, regarding prosecutorial misconduct, was not presented in the application for leave to the Ohio Supreme Court. With respect to these contentions, appellant apparently has not exhausted his state remedies. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Appellant did exhaust his state remedies as to his first contention, that the prosecutor’s elicitation of testimony from a police detective showing that appellant had exercised his rights to remain silent and to retain counsel at time of arrest was introduced as substantive proof of guilt and thus, in view of the circumstances of the questioning, was, under Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), harmful unconstitutional prosecutorial comment upon an accused’s assertion of his constitutional rights [as distinguished from proof of an accused’s silence at time of arrest offered for impeachment purposes, held unconstitutional in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)]. We have not reached that contention, however, because of our disposition of the case on the ground that appellant was forced to defend against a charge of felony-murder when the indictment specified only premeditated first degree murder.
. Former Ohio Revised Code § 2901.01 provided as follows:
No person shall purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery, or burglary, kill another.
Whoever violates this section is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommends mercy, in which case the punishment shall be imprisonment for life.
Murder in the first degree is a capital crime under Sections 9 and 10 of Article 1, Ohio Constitution.
. Appellee also responds to appellant’s argu- ■ ment by stating that it is not properly before us because it was not raised in the Ohio courts and that it is a different argument than presented in the district court. Appellee’s position is without merit and refuted by a review of the record. Appellant raised his objection to the constructive amendment before the Ohio courts and the district court, and it was the same objection as presented here on appeal.
. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), acknowledged that the right to be free from unreasonable searches and seizures had been incorporated in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), and then incorporated the right to have excluded from a criminal trial any evidence illegally obtained, overruling Wolf v. Colorado, supra, on that point. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_casetyp1_9-3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "miscellaneous".
Charles L. EDGENS, Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Appellee.
No. 71-1887.
United States Court of Appeals, Fourth Circuit.
Feb. 9, 1972.
James B. Stephen, Spartanburg, S. C., and George H. Thomason, on brief, for appellant.
L. Patrick Gray, III, Asst. Atty. Gen., John K. Grisso, U. S. Atty., Kathryn H. Baldwin and Thomas J. Press, Attys., Dept, of Justice, on brief, for appellee.
Before HAYNSWORTH, Chief Judge, and RUSSELL and FIELD, Circuit Judges.
PER CURIAM:
James B. Stephen, an attorney at law, appeals from an order of the district court which allowed him an attorney’s fee of $2,500.00, but denied the full amount of his request.
Stephen represented Charles L. Edg-ens, a social security claimant, in the district court and succeeded in obtaining an award for Edgens in the amount of $15,-584.20. Thereafter, Stephen petitioned the district court to approve an attorney’s fee equal to 25% of the accrued benefits or $3,896.05, the maximum fee allowable under 42 U.S.C.A. § 406(b) (1). The district court, after reviewing the entire record and considering all the circumstances of the case, awarded Stephen a $2,500.00 fee.
We have examined the briefs, appendix, and the record. We cannot say that the district court abused its discretion.
Accordingly, we find oral argument unnecessary and affirm the judgment below.
Affirmed.
Question: What is the specific issue in the case within the general category of "miscellaneous"?
A. miscellaneous interstate conflict
B. other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicity discusses conflict of state power vs federal power)
C. attorneys (disbarment; etc)
D. selective service or draft issues (which do not include 1st amendment challenges)
E. challenge to authority of magistrates, special masters, etc.
F. challenge to authority of bankruptcy judge or referees in bankruptcy
G. Indian law - criminal verdict challenged due to interpretation of tribal statutes or other indian law
H. Indian law - commercial disputes based on interpretation of Indian treaties or law (includes disputes over mineral rights)
I. Indian law - Indian claims acts and disputes over real property (includes Alaska Native Claims Act)
J. Indian law - federal regulation of Indian land and affairs
K. Indian law - state/local authority over Indian land and affairs
L. Indian law - tribal regulation of economic activities (includes tribal taxation)
M. other Indian law
N. international law
O. immigration (except civil rights claims of immigrants and aliens)
P. other
Q. not ascertained
Answer:
|
songer_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Harry A. NOYES, Appellant, v. Conway P. COE, Commissioner of patents, Appellee.
No. 8819.
United States Court of Appeals District of Columbia.
Argued May 15, 1945.
Decided May 28, 1945.
Mr. Herbert A. Baker, of Washington, D. C., with whom Mr. William M. Cushman, of Washington, D. C, was on the brief, for appellant.
Mr. E. L. Reynolds, of Washington, D. C., with whom Mr. W. W. Cochran, Solicitor, United States Patent Office, of Washington, D. C, was on the brief, for appellee.
Before MILLER, EDGERTON, and ARNOLD, Associate Justices.
PER CURIAM.
The findings and judgment of the trial court find full support in the record. Appellant has failed to meet the burden imposed upon a plaintiff in a Section 4915 proceeding and is not entitled to a patent.
Affirmed.
35 U.S.C.A. § 63; Abbott v. Coe, 71 App.D.C. 195, 197, 198, 109 F.2d 449, 451, 452; Daniels v. Coe, 73 App.D.C. 54, 58, 116 F.2d 941, 945; Morrison v. Coe, 75 U.S.App.D.C. 219, 220, 127 F.2d 737, 738.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_r_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.
Hans RASMUSSEN, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
No. 86-3471.
United States Court of Appeals, Fifth Circuit.
March 10, 1987.
Raymond W. Hepper, Steven Shapiro, Chief, Civil Trial Section, Southern Region, Justice Dept., Tax Div., William D.M. Holmes, Tax Div., U.S. Dept, of Justice, Michael L. Paup, Chief, Appellate Sec., Roger M. Olsen, Asst. Atty. Gen., Jonathan S. Cohen, Washington, D.C., for defendant-appellant.
Herman C. Hoffmann, Jr., Hurley & Hoffman, New Orleans, La., for plaintiffappellee.
Before THORNBERRY, GEE, and REAVLEY, Circuit Judges.
THORNBERRY, Circuit Judge:
The United States appeals the district court’s judgment in favor of taxpayer Hans Rasmussen on Rasmussen’s claim for refund of overpaid federal income tax. We agree with the United States that Rasmussen did not satisfy the mitigation provisions of the Internal Revenue Code, and the statute of limitations therefore bars his claim.
On October 23, 1984, Hans Rasmussen, as sole shareholder and liquidator of Canal Marine Repairs, Inc. (“Canal”), filed this action to recover $84,235 in corporate income taxes paid by Canal for its taxable year ended April 30, 1978. Canal sold all its assets and adopted a plan of liquidation in May 1977, and received a certificate of liquidation from the State of Louisiana in December 1977. On July 10, 1978, Canal filed its federal income tax return for its taxable year ended April 30,1978. On that return, it reported the sale of the assets and paid $84,504 in tax.
Rasmussen did not report any gain or loss from the liquidation of Canal on his individual return. As the result of an audit, the Internal Revenue Service (“Service”) alleged that Rasmussen, individually, owed capital gains tax on Canal’s liquidation because he had actually or constructively received the proceeds of the liquidation. In November 1981, Rasmussen consented to the adjustments to his tax liability and paid the additional individual income tax due.
On October 13, 1982, Rasmussen filed a claim for refund on behalf of Canal seeking to recover the corporate income tax paid on the sale of Canal’s assets. Rasmussen argued that because the Service had determined that Canal had distributed the proceeds of the liquidation to him, I.R.C. § 337 applied to the liquidation. Under I.R.C. § 337, Canal did not owe tax on the liquidation and therefore, it overpaid its federal income tax for the taxable year ended April 30, 1978. The Service denied the claim because Rasmussen filed it more than three years after he had filed the return for Canal’s taxable year ended April 30, 1978. See I.R.C. § 6511(a)
On October 23, 1984, Rasmussen filed suit in the U.S. District Court to recover the tax that Canal paid on its liquidation. The complaint alleged that his claim for refund fell within the mitigation provisions of the Code. I.R.C. §§ 1311-1314. The complaint also alleged that I.R.C. § 337 applied to Canal’s liquidation and that as a result, Canal had overpaid its corporate income tax.
The government moved to dismiss the complaint because Rasmussen’s claim was not timely and therefore did not confer jurisdiction on the district court. The government contended that the mitigation provisions were inapplicable because Rasmussen did not satisfy the specific statutory requirements. The district court denied the government’s motion to dismiss and held that I.R.C. § 337 applied to the transaction.
No taxpayer may sue the United States for a refund of federal income taxes paid until “a claim for refund ... has been duly filed with the Secretary, according to the provisions of law in that regard____” I.R.C. § 7422(a). Generally a taxpayer must file a claim for refund within three years from the time the return was filed or two years from the time the tax was paid, whichever is later. I.R.C. § 6511(a). Rasmussen stipulated that he filed his claim for refund more than three years after he filed the return and paid the tax for Canal’s taxable year ended April 30, 1978.
In certain narrowly tailored situations the mitigation provisions of the Internal Revenue Code provide relief from the application of the general three-year statute of limitations:
(a) GENERAL RULE. — If a determination (as defined in section 1313) is described in one or more of the paragraphs of section 1312 and, on the date of the determination, correction of the effect of the error referred to in the applicable paragraph of section 1312 is prevented by the operation of any law or rule of law, other than this part and other than section 7122 (relating to compromises), then the effect of the error shall be corrected by an adjustment made in the amount and in the manner specified in section 1314.
I.R.C. § 1311. The government argues that § 1311 does not apply to Rasmussen’s claim for three reasons: (1) Rasmussen never received a “determination” within the meaning of I.R.C. § 1313; (2) Rasmussen’s claim satisfied none of the “circumstances of adjustment” as defined in I.R.C. § 1312; and (3) the Service did not maintain an inconsistent position within the meaning of I.R.C. § 1311(b). We agree with the government that Rasmussen never received a “determination” within the meaning of I.R.C. § 1313.
Section 1313 defines the word “determination” to include four things:
(1) a decision by the Tax Court or a judgment, decree, or other order by any court of competent jurisdiction, which has become final;
(2) a closing agreement made under section 7121;
(3) a final disposition by the Secretary of a claim for refund____
(4) under regulations prescribed by the Secretary, an agreement for purposes of this part, signed by the Secretary and by a person, relating to the liability of such person (or the person for whom he acts) in respect of a tax under this subtitle for any taxable period.
I.R.C. § 1313(a). Rasmussen argues that, “Form 870, evidencing [his] personal tax liability, and his subsequent payment of the deficiency, constituted a final determination by the Commissioner. In making this final determination as to Rasmussen’s personal tax liability based on the corporation’s liquidation status, the Government made a final determination respecting the corporation’s tax liability as well.” The district court accepted Rasmussen’s argument.
Both Rasmussen and the district court ignore the statutory definition of “determination” in I.R.C. § 1313. Rasmussen stipulated that there was neither a Tax Court decision, nor a judgment of any other court, nor a closing agreement, nor a final disposition of a refund claim, nor an agreement between Rasmussen and the Secretary as defined in § 1313(a)(4).
Rasmussen cites cases for the proposition that the mitigation provisions are remedial in nature and should be construed to do equity. The government cites cases for the proposition that the provisions should be strictly construed. In any case,
[t]his Circuit has held that when applying the mitigation statutes the facts of each case must fit “into the concrete, detailed requirements set out in the statute.” United States v. Rachal, 312 F.2d 376, 383 (5th Cir.1962). Moreover, taxpayer has the burden of proving that the mitigation statutes apply. United States v. Rushlight, 291 F.2d 508, 514 (9th Cir.1961).
Cocchiara v. United States, 779 F.2d 1108, 1112 (5th Cir.1986). Because neither the district court nor Rasmussen can fit the facts of this case into the statutory definition of “determination,” we reverse the district court’s judgment in favor of Rasmussen and remand the case with instructions to dismiss. We do not reach the government’s alternative arguments because the lack of a “determination” disposes of the case.
REVERSED AND REMANDED.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_civproc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
TED HICKS AND ASSOCIATES, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
No. 77-3084
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
May 8, 1978.
G. Michael Pharis, Baton Rouge, La., for petitioner.
Elliott Moore, Deputy Assoc. Gen. Counsel, N.L.R.B., Peter M. Bernstein, Ruah D. Lahey, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, N.L. R.B., Washington, D. C., for respondent.
Before BROWN, Chief Judge, and COLEMAN and VANCE, Circuit Judges.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
Ted Hicks & Associates, Inc. (Hicks), a building contractor, petitions to set aside an order of the National Labor Relations Board (NLRB). The crux of the controversy concerns the interpretation of a prehire memorandum agreement between Hicks and Carpenters Local 1098 (Union). We agree with the NLRB’s interpretation and enforce its order.
In 1969, the Union executed an areawide collective bargaining contract with the Baton Rouge Chapter of the Associated General Contractors of America, Inc. (AGC), a multiemployer bargaining group. In May 1974, a new two-year contract went into effect between the Union and the AGC. It was negotiated pursuant to a provision in the 1969 contract that provided:
This agreement . . . shall remain in full force and effect through March 31, 1972, the anniversary date hereof and from year to year thereafter unless either party, at least ninety (90) days prior to any anniversary date, notify the other party of its desire to modify or terminate same.
Hicks, which was not a member of the AGC, signed a memorandum agreement with the Union on October 11, 1974, stating that both parties would be bound by all provisions of the 1969 collective bargaining contract between the Union and the AGC. The memorandum, moreover, explained that Hicks would abide by “any modifications, extensions, or renewals” of that contract. From October 11, 1974 to May 21, 1976, Hicks adhered to the terms of the 1974 agreement, which was then in effect, and contributed to the Union’s welfare, education, and pension funds.
In 1976, the Union notified the AGC that it wanted to terminate the expiring 1974 contract and negotiate a new agreement. In May 1976, the Union and AGC executed another collective bargaining contract covering a subsequent two-year period. Hicks refused to comply with this agreement, and as a result, the NLRB held the company in violation of the National Labor Relations Act, § 8(a)(1), (a)(5), 29 U.S.C.A. § 158(a)(1), (a)(5).
Hicks argues that the memorandum agreement does not bind the company to all future agreements between the Union and the AGC. It contends, moreover, that the 1969 contract is irrelevant, and it is bound only by the 1974 agreement in effect at the time the memorandum was signed. The NLRB argues that the 1969 contract, which Hicks specifically agreed to follow, was the base contract, and the 1974 and 1976 agreements were only modifications. See NLRB v. R. J. Smith Construction Co., Inc., 1976, 178 U.S.App.D.C. 109, 545 F.2d 187.
The Board’s interpretation of a collective bargaining agreement will stand if it is supported by the record and has a reasonable basis in law. Newspaper Production Co. v. NLRB, 5 Cir., 1974, 503 F.2d 821, 830. We believe that the NLRB’s interpretation in this case meets this standard. Cf. NLRB v. Beckham, Inc., 5 Cir., 1977, 564 F.2d 190 (substantial evidence supported NLRB’s finding that employer was bound by multiemployer bargaining agreement). Hicks offers no explanation, indeed it never attempts an explanation, why it would sign a memorandum agreement in October 1974, stating that it adhered to a 1969 contract, if the 1969 contract had no bearing on the 1974 agreement. Examination, furthermore, of the three Union-AGC contracts — 1969, 1974, and 1976 — reveals that they are nearly identical, except for changes in certain economic terms. It was reasonable, therefore, for the NLRB to conclude that the 1969 agreement was the base contract, and the 1974 and the 1976 agreements were modifications of that base. Thus, the Union’s notice to the AGC in 1974 merely signaled an end to the terms in the 1974 contract and not an end to the Union’s relation with Hicks.
In the alternative, Hicks contends that the 1974 contract is still in effect because it received no notice that the Union wanted to renegotiate this contract. Although Hicks did not receive notice, the Union complied with the requirements of the 1974 contract in notifying the AGC. More importantly, the memorandum agreement does not stipulate that the Union must notify Hicks if it seeks to alter the 1969 contract. Cf. NLRB v. R. J. Smith Construction Co., supra, 545 F.2d at 192 (employer did not comply with termination provisions of prehire memorandum agreements). The memorandum in this case requires only that the Union and Hicks adhere to modifications of the 1969 agreement, which is what the Union did in notifying the AGC.
ENFORCED.
. The full text of the October 11, 1974 memorandum agreement is as follows:
This Agreement is made by and among the undersigned, hereinafter called “EMPLOYER”, “UNION”, or “TRUST(S)”, as the case may be
1. EMPLOYER and UNION agree to comply with, abide by, and be bound by all of the provisions of the collective-bargaining agreement heretofore entered into between the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION 1098 and the BATON ROUGE CHAPTER, ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., dated March 28, 1969, and any modifications, extensions, or renewals thereof with the same force and effect as though the said collective bargaining agreement was set forth here in full.
2. EMPLOYER agrees to become a party to and be bound by all the terms and provisions of the agreements establishing:
a. CARPENTERS LOCAL NO. 1098 WELFARE FUND, being that Agreement and Declaration of Trust dated August 1, 1969,
b. CARPENTERS LOCAL 1098 PENSION TRUST, being that Agreement and Declaration of Trust dated March 31, 1970,
c. LOCAL 1098 EDUCATIONAL AND TRAINING PROGRAM TRUST, being that Agreement and Declaration of Trust dated April 30, 1970, with the same force and effect as though the agreements were set forth here in full. Without in anywise limiting the generality of the foregoing, EMPLOYER does irrevocably designate and appoint the employers mentioned in the various Trust Agreements as its attorneys in fact for the selection, removal, and substitution of Trustees as provided in said agreement(s) and does hereby agree to make payments covering all of his employees as required by the collective bargaining agreement and the agreements establishing said trusts and does hereby ratify, approve and consent to all matters heretofore done in connection with the creation and administration of such trusts.
3. TRUST(S) agree(s) that EMPLOYER is granted the right to participate in said agreement(s), subject to all the terms and conditions thereof, with the same effect as though he were originally a party thereto.
. Although the memorandum agreement contains no expiration date, the Board’s decision explains how Hicks or the Union could end the agreement:
Inasmuch as the memorandum agreement did not contain an expiration date or express provisions regarding its termination, it is necessary to determine how an end to that agreement could be achieved by the parties. We find that the memorandum agreement by its terms incorporates the provisions of the 1969 agreement, and successor agreements modifying it, including the 1974 agreement which then was effective. Hence, we further find that Respondent was obligated to give notice to the Union at least 90 days prior to the desired date for termination of the memorandum agreement, in accordance with the provisions of the incorporated 1974 contract. By the same token, had the Union desired to terminate the memorandum agreement with Respondent and negotiate a separate 1976 contract, it would have been obligated to give at least 90 days’ notice to Respondent of the proposed termination date. Note that in so finding we reject any construction of our holding that such notice of termination could be by termination of the AGC-Union bargaining agreements. 232 NLRB No. 113 at 7 n.5 (Sept. 30, 1977), R. at 83.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
sc_adminactionstate
|
06
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the state agency associated with the administrative action that occurred prior to the onset of litigation.
CONTAINER CORPORATION OF AMERICA v. FRANCHISE TAX BOARD
No. 81-523.
Argued January 10, 1983 —
Decided June 27, 1983
Franklin C. Latcham argued the cause for appellant. With him on the briefs was Prentiss Willson, Jr.
Neal J. Gobar, Deputy Attorney General of California, argued the cause for appellee. With him on the brief was George Deukmejian, Attorney General.
Briefs of amici curiae urging reversal were filed by Marlow W. Cook, Lee H. Spence, and Robert L. Ash for Allied Lyons p. 1. c. et al.; by J. Elaine Bialczak for Coca-Cola Co.; by George W. Beatty and William L. Goldman for Colgate-Palmolive Co.; by James H. Peters, Paul H. Frankel, and Jean A. Walker for the Committee on State Taxation of the Council of State Chambers of Commerce; by Valentine Brookes and Lawrence V. Brookes for EMI Limited et al.; by William H. Allen, John B. Jones, Jr., and Mark I. Levy, for the Financial Executives Institute; by Neil Papiano and Dennis A. Page for Firestone Tire & Rubber Co.; and by Jeffrey G. Balkin, pro se, for Jeffrey G. Balkin et al.
Briefs of amici curiae urging affirmance were filed by David H. Leroy, Attorney General of Idaho, Theodore V. Spangler, Jr., Deputy Attorney General, and David L. Wilkinson, Attorney General of Utah, for the State of Idaho et al.; by Tyrone C. Fahner, Attorney General, Fred H. Montgomery, Special Assistant Attorney General, and Lloyd B. Foster for the State of Illinois; by Michael J. Rieley, Special Assistant Attorney General, for the State of Montana; by Jeff Bingaman, Attorney General, and Lisa Gillard Gmuca, Assistant Attorney General, for the State of New Mexico; by Robert Abrams, Attorney General, Francis V. Dow, Assistant Attorney General, and Peter H. Schiff for the State of New York; by Robert 0. Wefald, Attorney General, and Kenneth M. Jakes, Assistant Attorney General, for the State of North Dakota; by Dave Frohnmayer, Attorney General, Stanton F. Long, Deputy Attorney General, William F. Gary, Solicitor General, and Theodore W. de Looze, Assistant Attorney General, for the State of Oregon; by William D. Dexter, Wilson Condon, Attorney General of Alaska, James R. Eads, Jr., J. D. MacFarlane, Attorney General of Colorado, CarlR. Ajello, Attorney General of Connecticut, Richard S. Gebelein, Attorney General of Delaware, David H. Leroy, Attorney General of Idaho, and Theodore V. Spangler, Jr., Deputy Attorney General, Linley E. Pearson, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, Francis X. Bellotti, Attorney General of Massachusetts, Frank K. Kelley, Attorney General of Michigan, Warren R. Spannaus, Attorney General of Minnesota, John Ashcroft, Attorney General of Missouri, Paul L. Douglas, Attorney General of Nebraska, Gregory H. Smith, Attorney General of New Hampshire, Jeff Bingaman, Attorney General of New Mexico, Rufus L. Edmisten, Attorney General of North Carolina, M. C. Banks, Deputy Attorney General, Robert 0. Wefald, Attorney General of North Dakota, and Albert R. Hausauer, Assistant Attorney General, Dave Frohnmayer, Attorney General of Oregon, and David L. Wilkinson, Attorney General of Utah, for the Multistate Tax Commission et al.; by Richard B. Geltman and Tany S. Hong, Attorney General of Hawaii, for the National Governors’ Association et al.; by Charles F. Brannan for the National Farmers Union; for Citizens for Tax Justice et al.; and by Frank M. Keesling, pro se.
Briefs of amici curiae were filed by Lloyd N. Cutler and William T. Lake for the Government of the Kingdom of the Netherlands; by John J. Easton, Jr., Attorney General, and Paul P. Hanlon for the State of Vermont; by Francis D. Morrissey and Peter B. Powles for the Canadian Imperial Bank of Commerce et al.; by Don S. Harnack and Richard A. Hanson for Caterpillar Tractor Co.; by Joanne M. Garvey and Roy E. ■ Crawford for the Committee on Unitary Tax; by John S. Nolan for the Confederation of British Industry; by Norman B. Barker for Gulf Oil Corp.; by Anthon S. Cannon, Jr,, for the International Bankers Association in California et al.; by Kenneth Heady for Phillips Petroleum Co.; by John R. Hupper and Paul M. Dodyk for Shell Petroleum N. V.; by Norman B. Barker and Dean C. Dunlavey for Sony Corp. et al.; and by Joseph H, Guttentag, Carolyn E. Agger, and Daniel M. Lewis for the Union of Industries of the European Community.
Justice Brennan
delivered the opinion of the Court.
This is another appeal claiming that the application of a state taxing scheme violates the Due Process and Commerce Clauses of the Federal Constitution. California imposes a corporate franchise tax geared to income. In common with a large number of other States, it employs the “unitary business” principle and formula apportionment in applying that tax to corporations doing business both inside and outside the State. Appellant is a Delaware corporation headquartered in Illinois and doing business in California and elsewhere. It also has a number of overseas subsidiaries incorporated in the countries in which they operate. Appellee is the California authority charged with administering the State’s franchise tax. This appeal presents three questions for review: (1) Was it improper for appellee and the state courts to find that appellant and its overseas subsidiaries constituted a “unitary business” for purposes of the state tax? (2) Even if the unitary business finding was proper, do certain salient differences among national economies render the standard three-factor apportionment formula used by California so inaccurate as applied to the multinational enterprise consisting of appellant and its subsidiaries as to violate the constitutional requirement of “fair apportionment”? (3) In any event, did California have an obligation under the Foreign Commerce Clause, U. S. Const., Art. I, §8, cl. 3, to employ the “arm’s-length” analysis used by the Federal Government and most foreign nations in evaluating the tax consequences of intercorporate relationships?
i — i
A
Various aspects of state tax systems based on the “unitary business” principle and formula apportionment have provoked repeated constitutional litigation in this Court. See, e. g., ASARCO Inc. v. Idaho State Tax Comm’n, 458 U. S. 307 (1982); F. W. Woolworth Co. v. Taxation & Revenue Dept., 458 U. S. 354 (1982); Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U. S. 207 (1980); Mobil Oil Corp. v. Commissioner of Taxes, 445 U. S. 425 (1980); Moorman Mfg. Co. v. Bair, 437 U. S. 267 (1978); General Motors Corp. v. Washington, 377 U. S. 436 (1964); Butler Bros. v. McColgan, 315 U. S. 501 (1942); Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm’n, 266 U. S. 271 (1924); Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113 (1920).
Under both the Due Process and the Commerce Clauses of the Constitution, a State may not, when imposing an income-based tax, “tax value earned outside its borders.” ASARCO, supra, at 315. In the case of a more-or-Iess integrated business enterprise operating in more than one State, however, arriving at precise territorial allocations of “value” is often an elusive goal, both in theory and in practice. See Mobil Oil Corp. v. Commissioner of Taxes, supra, at 438; Butler Bros. v. McColgan, supra, at 507-509; Underwood Typewriter Co. v. Chamberlain, supra, at 121. For this reason and others, we have long held that the Constitution imposes no single formula on the States, Wisconsin v. J. C. Penney Co., 311 U. S. 435, 445 (1940), and that the taxpayer has the “‘distinct burden of showing by “clear and cogent evidence” that [the state tax] results in extraterritorial values being taxed....’” Exxon Corp., supra, at 221, quoting Butler Bros. v. McColgan, supra, at 507, in turn quoting Norfolk & Western R. Co. v. North Carolina ex rel. Maxwell, 297 U. S. 682, 688 (1936).
One way of deriving locally taxable income is on the basis of formal geographical or transactional accounting. The problem with this method is that formal accounting is subject to manipulation and imprecision, and often ignores or captures inadequately the many subtle and largely unquantifiable transfers of value that take place among the components of a single enterprise. See generally Mobil Oil Corp., supra, at 438-439, and sources cited. The unitary business/ formula apportionment method is a very different approach to the problem of taxing businesses operating in more than one jurisdiction. It rejects geographical or transactional accounting, and instead calculates the local tax base by first defining the scope of the “unitary business” of which the taxed enterprise’s activities in the taxing jurisdiction form one part, and then apportioning the total income of that “unitary business” between the taxing jurisdiction and the rest of the world on the basis of a formula taking into account objective measures of the corporation’s activities within and without the jurisdiction. This Court long ago upheld the constitutionality of the unitary business/formula apportionment method, although subject to certain constraints. See, e. g., Hans Rees’ Sons, Inc. v. North Carolina ex rel. Maxwell, 283 U. S. 123 (1931); Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm’n, supra; Underwood Typewriter Co. v. Chamberlain, supra. The method has now gained wide acceptance, and is in one of its forms the basis for the the Uniform Division of Income for Tax Purposes Act (Uniform Act), which has at last count been substantially adopted by 23 States, including California.
B
Two aspects of the unitary business/formula apportionment method have traditionally attracted judicial attention. These are, as one might easily guess, the notions of “unitary business” and “formula apportionment,” respectively.
(1)
The Due Process and Commerce Clauses of the Constitution do not allow a State to tax income arising out of interstate activities — even on a proportional basis — unless there is a “ ‘minimal connection’ or ‘nexus’ between the interstate activities and the taxing State, and ‘a rational relationship between the income attributed to the State and the intrastate values of the enterprise.’ ” Exxon Corp. v. Wisconsin Dept. of Revenue, supra, at 219-220, quoting Mobil Oil Corp. v. Commissioner of Taxes, supra, at 436, 437. At the very-least, this set of principles imposes the obvious and largely self-executing limitation that a State not tax a purported “unitary business” unless at least some part of it is conducted in the State. See Exxon Corp., supra, at 220; Wisconsin v. J. C. Penney Co., supra, at 444. It also requires that there be some bond of ownership or control uniting the purported “unitary business.” See ASARCO, supra, at 316-317.
In addition, the principles we have quoted require that the out-of-state activities of the purported “unitary business” be related in some concrete way to the in-state activities. The functional meaning of this requirement is that there be some sharing or exchange of value not capable of precise identification or measurement — beyond the mere flow of funds arising out of a passive investment or a distinct business operation— which renders formula apportionment a reasonable method of taxation. See generally ASARCO, supra, at 317; Mobil Oil Corp., supra, at 438-442. In Underwood Typewriter Co. v. Chamberlain, supra, we held that a State could tax on an apportioned basis the combined income of a vertically integrated business whose various components (manufacturing, sales, etc.) operated in different States. In Bass, Ratcliff & Gretton, supra, we applied the same principle to a vertically integrated business operating across national boundaries. In Butler Bros. v. McColgan, supra, we recognized that the unitary business principle could apply, not only to vertically integrated enterprises, but also to a series of similar enterprises operating separately in various jurisdictions but linked by common managerial or operational resources that produced economies of scale and transfers of value. More recently, we have further refined the “unitary business” concept in Exxon Corp. v. Wisconsin Dept. of Rev enue, 447 U. S. 207 (1980), and Mobil Oil Corp. v. Commissioner of Taxes, 445 U. S. 425 (1980), where we upheld the States’ unitary business findings, and in ASARCO Inc. v. Idaho State Tax Comm’n, 458 U. S. 307 (1982), and F. W. Woolworth Co. v. Taxation & Revenue Dept., 458 U. S. 354 (1982), in which we found such findings to have been improper.
The California statute at issue in this case, and the Uniform Act from which most of its relevant provisions are derived, track in large part the principles we have just discussed. In particular, the statute distinguishes between the “business income” of a multijurisdictional enterprise, which is apportioned by formula, Cal. Rev. & Tax. Code Ann. §§25128-25136 (West 1979), and its “nonbusiness” income, which is not. Although the statute does not explicitly require that income from distinct business enterprises be apportioned separately, this requirement antedated adoption of the Uniform Act, and has not been abandoned.
A final point that needs to be made about the unitary business concept is that it is not, so to speak, unitary: there are variations on the theme, and any number of them are logically consistent with the underlying principles motivating the approach. For example, a State might decide to respect formal corporate lines and treat the ownership of a corporate subsidiary as per se a passive investment. In Mobil Oil Corp., 445 U. S., at 440-441, however, we made clear that, as a general matter, such a per se rule is not constitutionally required:
“Superficially, intercorporate division might appear to be a[n]... attractive basis for limiting apportionability. But the form of business organization may have nothing to do with the underlying unity or diversity of business enterprise.” Id., at 440.
Thus, for example, California law provides: Even among States that take this approach, however, only-some apply it in taxing American corporations with subsidiaries located in foreign countries. The difficult question we address in Part V of this opinion is whether, for reasons not implicated in Mobil, that particular variation on the theme is constitutionally barred.
“In the case of a corporation... owning or controlling, either directly or indirectly, another corporation, or other corporations, and in the case of a corporation... owned or controlled, either directly or indirectly, by another corporation, the Franchise Tax Board may require a consolidated report showing the combined net income or such other facts as it deems necessary.” Cal. Rev. & Tax. Code Ann. §25104 (West 1979).
(2)
Having determined that a certain set of activities constitute a “unitary business,” a State must then apply a formula apportioning the income of that business within and without the State. Such an apportionment formula must, under both the Due Process and Commerce Clauses, be fair. See Exxon Corp., supra, at 219, 227-228; Moorman Mfg. Co., 437 U. S., at 272-273; Hans Rees’ Sons, Inc., 283 U. S., at 134. The first, and again obvious, component of fairness in an apportionment formula is what might be called internal consistency — that is, the formula must be such that, if applied by every jurisdiction, it would result in no more than all of the unitary business’ income being taxed. The second and more difficult requirement is what might be called external consistency — the factor or factors used in the apportionment formula must actually reflect a reasonable sense of how income is generated. The Constitution does not “invalidat[e] an apportionment formula whenever it may result in taxation of some income that did not have its source in the taxing State... Moorman Mfg. Co., supra, at 272 (emphasis added). See Underwood Typewriter Co., 254 U. S., at 120-121. Nevertheless, we will strike down the application of an apportionment formula if the taxpayer can prove “by ‘clear and cogent evidence’ that the income attributed to the State is in fact ‘out of all appropriate proportions to the business transacted... in that State,’ [Hans Rees’ Sons, Inc.,] 283 U. S., at 135, or has ‘led to a grossly distorted result,’ [Norfolk & Western R. Co. v. State Tax Comm’n, 390 U. S. 317, 326 (1968)].” Moorman Mfg. Co., supra, at 274.
California and the other States that have adopted the Uniform Act use a formula — commonly called the “three-factor” formula — which is based, in equal parts, on the proportion of a unitary business’ total payroll, property, and sales which are located in the taxing State. See Cal. Tax & Rev. Code Ann. §§25128-25136 (West 1979). We approved the three-factor formula in Butler Bros. v. McColgan, 315 U. S. 501 (1942). Indeed, not only has the three-factor formula met our approval, but it has become, for reasons we discuss in more detail infra, at 183, something of a benchmark against which other apportionment formulas are judged. See Moorman Mfg. Co., supra, at 282 (Blackmun, J., dissenting); cf. General Motors Corp. v. District of Columbia, 380 U. S. 553, 561 (1965).
Besides being fair, an apportionment formula must, under the Commerce Clause, also not result in discrimination against interstate or foreign commerce. See Mobil Oil Corp., supra, at 444; cf. Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 444-448 (1979) (property tax). Aside from forbidding the obvious types of discrimination against interstate or foreign commerce, this principle might have been construed to require that a state apportionment formula not differ so substantially from methods of allocation used by other jurisdictions in which the taxpayer is subject to taxation as to produce double taxation of the same income and a resultant tax burden higher than the taxpayer would incur if its business were limited to any one jurisdiction. At least in the interstate commerce context, however, the anti-discrimination principle has not in practice required much in addition to the requirement of fair apportionment. In Moorman Mfg. Co. v. Bair, supra, in particular, we explained that eliminating all overlapping taxation would require this Court to establish not only a single constitutionally mandated method of taxation, but also rules regarding the application of that method in particular cases. 437 U. S., at 278-280. Because that task was thought to be essentially legislative, we declined to undertake it, and held that a fairly apportioned tax would not be found invalid simply because it differed from the prevailing approach adopted by the States. As we discuss infra, at 185-187, however, a more searching inquiry is necessary when we are confronted with the possibility of international double taxation.
n
5»
Appellant is m the business of manufacturing custom-ordered paperboard packaging. Its operation is vertically integrated, and includes the production of paperboard from raw timber and wastepaper as well as its composition into the finished products ordered by customers. The operation is also largely domestic. During the years at issue in this case — 1963, 1964, and 1965 — appellant controlled 20 foreign subsidiaries located in four Latin American and four European countries. Its percentage ownership of the subsidiaries (either directly or through other subsidiaries) ranged between 66.7% and 100%. In those instances (about half) in which appellant did not own a 100% interest in the subsidiary, the remainder was owned by local nationals. One of the subsidiaries was a holding company that had no payroll, sales, or property, but did have book income. Another was inactive. The rest were all engaged — in their respective local markets — in essentially the same business as appellant.
Most of appellant’s subsidiaries were, like appellant itself, fully integrated, although a few bought paperboard and other intermediate products elsewhere. Sales of materials from appellant to its subsidiaries accounted for only about 1% of the subsidiaries’ total purchases. The subsidiaries were also relatively autonomous with respect to matters of personnel and day-to-day management. For example, transfers of personnel from appellant to its subsidiaries were rare, and occurred only when a subsidiary could not fill a position locally. There was no formal United States training program for the subsidiaries’ employees, although groups of foreign employees occasionally visited the United States for 2-6 week periods to familiarize themselves with appellant’s methods of operation. Appellant charged one senior vice president and four other officers with the task of overseeing the operations of the subsidiaries. These officers established general standards of professionalism, profitability, and ethical practices and dealt with major problems and long-term decisions; day-to-day management of the subsidiaries, however, was left in the hands of local executives who were always citizens of the host country. Although local decisions regarding capital expenditures were subject to review by appellant, problems were generally worked out by consensus rather than outright domination. Appellant also had a number of its directors and officers on the boards of directors of the subsidiaries, but they did not generally play an active role in management decisions.
Nevertheless, in certain respects, the relationship between appellant and its subsidiaries was decidedly close. For example, approximately half of the subsidiaries’ long-term debt was either held directly, or guaranteed, by appellant. Appellant also provided advice and consultation regarding manufacturing techniques, engineering, design, architecture, insurance, and cost accounting to a number of its subsidiaries, either by entering into technical service agreements with them or by informal arrangement. Finally, appellant occasionally assisted its subsidiaries in their procurement of equipment, either by selling them used equipment of its own or by employing its own purchasing department to act as an agent for the subsidiaries.
B
During the tax years at issue in this case, appellant filed California franchise tax returns. In 1969, after conducting an audit of appellant’s returns for the years in question, appellee issued notices of additional assessments for each of those years. The respective approaches and results reflected in appellant’s initial returns and in appellee’s notices of additional assessments capture the legal differences at issue in this case.
In calculating the total unapportioned taxable income of its unitary business, appellant included its own corporate net earnings as derived from its federal tax form (subject to certain adjustments not relevant here), but did not include any income of its subsidiaries. It also deducted — as it was authorized to do under state law, see supra, at 167, and n. 1 — all dividend income, nonbusiness interest income, and gains on sales of assets not related to the unitary business. In calculating the share of its net income which was appor-tionable to California under the three-factor formula, appellant omitted all of its subsidiaries’ payroll, property, and sales. The results of these calculations are summarized in the margin.
The gravamen of the notices issued by appellee in 1969 was that appellant should have treated its overseas subsidiaries as part of its unitary business rather than as passive investments. Including the overseas subsidiaries in appellant’s unitary business had two primary effects: it increased the income subject to apportionment by an amount equal to the total income of those subsidiaries (less intersubsidiary dividends, see n. 5, supra), and it decreased the percentage of that income which was apportionable to California. The net effect, however, was to increase appellant’s tax liability in each of the three years.
Appellant paid the additional amounts under protest, and then sued in California Superior Court for a refund, raising the issues now before this Court. The case was tried on stipulated facts, and the Superior Court upheld appellee’s assessments. On appeal, the California Court of Appeal affirmed, 117 Cal. App. 3d 988, 173 Cal. Rptr. 121 (1981), and the California Supreme Court refused to exercise discretionary review. We noted probable jurisdiction. 456 U. S. 960 (1982).
H-I I — I HH
, <T ^
We address the unitary business issue first. As previously noted, the taxpayer always has the “distinct burden of showing by ‘clear and cogent evidence’ that [the state tax] results in extraterritorial values being taxed.” Supra, at 164. One necessary corollary of that principle is that this Court will, if reasonably possible, defer to the judgment of state courts in deciding whether a particular set of activities constitutes a “unitary business.” As we said in a closely related context in Norton Co. v. Department of Revenue, 340 U. S. 534 (1951):
“The general rule, applicable here, is that a taxpayer claiming immunity from a tax has the burden of establishing his exemption.
“This burden is never met merely by showing a fair difference of opinion which as an original matter might be decided differently.... Of course, in constitutional cases, we have power to examine the whole record to arrive at an independent judgment as to whether constitutional rights have been invaded, but that does not mean that we will re-examine, as a court of first instance, findings of fact supported by substantial evidence.” Id., at 537-538 (footnotes omitted; emphasis added).
See id., at 538 (concluding that, “in light of all the evidence, the [state] judgment [on a question of whether income should be attributed to the State] was within the realm of permissible judgment”). The legal principles defining the constitutional limits on the unitary business principle are now well established. The factual records in such cases, even when the parties enter into a stipulation, tend to be long and complex, and the line between “historical fact” and “constitutional fact” is often fuzzy at best. Cf. AS ARCO, 458 U. S., at 326-328, nn. 22, 23. It will do the cause of legal certainty little good if this Court turns every colorable claim that a state court erred in a particular application of those principles into a de novo adjudication, whose unintended nuances would then spawn further litigation and an avalanche of critical comment. Rather, our task must be to determine whether the state court applied the correct standards to the case; and if it did, whether its judgment “was within the realm of permissible judgment.”
B
In this case, we are singularly unconvinced by appellant’s argument that the State Court of Appeal “in important part analyzed this case under a different legal standard,” F. W. Woolworth, 458 U. S., at 363, from the one articulated by this Court. Appellant argues that the state court here, like the state court in F. W. Woolworth, improperly relied on appellant’s mere potential to control the operations of its subsidiaries as a dispositive factor in reaching its unitary business finding. In fact, although the state court mentioned that “major policy decisions of the subsidiaries were subject to review by appellant,” 117 Cal. App. 3d, at 998, 173 Cal. Rptr., at 127, it relied principally, in discussing the management relationship between appellant and its subsidiaries, on the more concrete observation that “[h]igh officials of appellant gave directions to subsidiaries for compliance with the parent’s standard of professionalism, profitability, and ethical practices.” Id., at 998, 173 Cal. Rptr., at 127-128.
Appellant also argues that the state court erred in endorsing an administrative presumption that corporations engaged in the same line of business are unitary. This presumption affected the state court’s reasoning, but only as one element among many. Moreover, considering the limited use to which it was put, we find the “presumption” criticized by appellant to be reasonable. Investment in a business enterprise truly “distinct” from a corporation’s main line of business often serves the primary function of diversifying the corporate portfolio and reducing the risks inherent in being tied to one industry’s business cycle. When a corporation invests in a subsidiary that engages in the same line of work as itself, it becomes much more likely that one function of the investment is to make better use — either through economies of scale or through operational integration or sharing of expertise — of the parent’s existing business-related resources.
Finally, appellant urges us to adopt a bright-line rule requiring as a prerequisite to a finding that a mercantile or manufacturing enterprise is unitary that it be characterized by “a substantial flow of goods.” Brief for Appellant 47. We decline this invitation. The prerequisite to a constitutionally acceptable finding of unitary business is a flow of value, not a flow of goods. As we reiterated in F. W. Wool worth, a relevant question in the unitary business inquiry is whether ‘“contributions to income [of the subsidiaries] resulted] from functional integration, centralization of management, and economies of scale.’” 458 U. S., at 364, quoting Mobil, 445 U. S., at 438. “[Substantial mutual interdependence,” F. W. Woolworth, supra, at 371, can arise in any number of ways; a substantial flow of goods is clearly one but just as clearly not the only one.
C
The State Court of Appeal relied on a large number of factors in reaching its judgment that appellant and its foreign subsidiaries constituted a unitary business. These included appellant’s assistance to its subsidiaries in obtaining used and new equipment and in filling personnel needs that could not be met locally, the substantial role played by appellant in loaning funds to the subsidiaries and guaranteeing loans provided by others, the “considerable interplay between appellant and its foreign subsidiaries in the area of corporate expansion,” 117 Cal. App. 3d, at 997, 173 Cal. Rptr., at 127, the “substantial” technical assistance provided by appellant to the subsidiaries, id., at 998-999, 173 Cal. Rptr., at 128, and the supervisory role played by appellant’s officers in providing general guidance to the subsidiaries. In each of these respects, this case differs from ASARCO and F. W. Woolworth, and clearly comes closer than those cases did to presenting a “functionally integrated enterprise,” Mobil, supra, at 440, which the State is entitled to tax as a single entity. We need not decide whether any one of these factors would be sufficient as a constitutional matter to prove the existence of a unitary business. Taken in combination, at least, they clearly demonstrate that the state court reached a conclusion “within the realm of permissible judgment.”
> > — (
We turn now to the question of fair apportionment. Once again, appellant has the burden of proof; it must demonstrate that there is “‘no rational relationship between the income attributed to the State and the intrastate values of the enterprise, Exxon Corp., 447 U. S., at 220, quoting Mobil, supra, at 437, by proving that the income apportioned to California under the statute is “out of all appropriate proportion to the business transacted by the appellant in that State,” Hans Rees’ Sons, Inc., 283 U. S., at 135.
Appellant challenges the application of California’s three-factor formula to its business on two related grounds, both arising as a practical (although not a theoretical) matter out of the international character of the enterprise. First, appellant argues that its foreign subsidiaries are significantly more profitable than it is, and that the three-factor formula, by ignoring that fact and relying instead on indirect measures of income such as payroll, property, and sales, systematically distorts the true allocation of income between appellant and the subsidiaries. The problem with this argument is obvious: the profit figures relied on by appellant are based on precisely the sort of formal geographical accounting whose basic theoretical weaknesses justify resort to formula apportionment in the first place. Indeed, we considered and rejected a very similar argument in Mobil, pointing out that whenever a unitary business exists,
“separate [geographical] accounting, while it purports to isolate portions of income received in various States, may fail to account for contributions to income resulting from functional integration, centralization of management, and economies of scale. Because these factors of profitability arise from the operation of the business as a whole, it becomes misleading to characterize the income of the business as having a single identifiable ‘source.’ Although separate geographical accounting may be useful for internal auditing, for purposes of state taxation it is not constitutionally required.” 445 U. S., at 438 (citation omitted).
Appellant’s second argument is related, and can be answered in the same way. Appellant contends:
“The costs of production in foreign countries are generally significantly lower than in the United States, primarily as a result of the lower wage rates of workers in countries other than the United States. Because wages are one of the three factors used in formulary apportionment, the use of the formula unfairly inflates the amount of income apportioned to United States operations, where wages are higher.” Brief for Appellant 12.
Appellant supports this argument with various statistics that appear to demonstrate, not only that wage rates are generally lower in the foreign countries in which its subsidiaries operate, but also that those lower wages are not offset by lower levels of productivity. Indeed, it is able to show that at least one foreign plant had labor costs per thousand square feet of corrugated container that were approximately 40% of the same costs in appellant’s California plants.
The problem with all this evidence, however, is that it does not by itself come close to impeaching the basic rationale behind the three-factor formula. Appellant and its foreign subsidiaries have been determined to be a unitary business. It therefore may well be that in addition to the foreign payroll going into the production of any given corrugated container by a foreign subsidiary, there is also California payroll, as well as other California factors, contributing — albeit more indirectly — to the same production. The mere fact that this possibility is not reflected in appellant’s accounting does not disturb the underlying premises of the formula apportionment method.
Both geographical accounting and formula apportionment are imperfect proxies for an ideal which is not only difficult to achieve in practice, but also difficult to describe in theory. Some methods of formula apportionment are particularly problematic because they focus on only a small part of the spectrum of activities by which value is generated. Although we have generally upheld the use of such formulas, see, e. g., Moorman Mfg. Co. v. Bair, 437 U. S. 267 (1978); Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113 (1920), we have on occasion found the distortive effect of focusing on only one factor so outrageous in a particular case as to require reversal. In Hans Rees’ Sons, Inc. v. North Carolina ex rel. Maxwell, supra, for example, an apportionment method based entirely on ownership of tangible property resulted in an attribution to North Carolina of between 66% and 85% of the taxpayer’s income over the course of a number of years, while a separate accounting analysis purposely skewed to resolve all doubts in favor of the State resulted in an attribution of no more than 21.7%. We struck down the application of the one-factor formula to that particular business, holding that the method, “albeit fair on its face, operates so as to reach profits which are in no just sense attributable to transactions within its jurisdiction.” Id.,at 134.
The three-factor formula used by California has gained wide approval precisely because payroll, property, and sales appear in combination to reflect a very large share of the activities by which value is generated. It is therefore able to avoid the sorts of distortions that were present in Hans Rees’ Sons, Inc.
Of course, even the three-factor formula is necessarily imperfect. But we
Question: What is the state of the state agency associated with the administrative action?
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58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
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.
Luba WANG, formerly known as Lillian Murashek, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 294, Docket 27277.
United States Court of Appeals Second Circuit.
Argued April 2, 1962.
Decided April 30, 1962.
Samuel W. Sherman, New York City, for plaintiff-appellant.
Philip J. Ryan, Jr., Asst. U. S. Atty., S. D. N. Y., New York City (Robert M. Morgenthau, U. S. Atty., and Eugene R. Anderson, Asst. U. S. Atty., New York City, on the brief), for defendant-appellee.
Before CLARK, HINCKS, and FRIENDLY, Circuit Judges.
PER CURIAM.
Undoubtedly this action for veteran life insurance is time-barred under 38 U.S.C. § 784(b), requiring action within six years after the right has accrued unless plaintiff can show that the time was suspended by her filing of a claim. Her brother, then in service, took out the policies in 1942 and 1943; but they lapsed for nonpayment of the premiums when he left the service in 1946. He died on July 17, 1949, and she did not make formal claim until 1957. She relies, however, on two letters she wrote the Veterans Administration—one in 1949 and one in 1950—asking for information as to the policies and the possibility that nonpayment of the premiums was excused by his service disability at the time. In each case the Veterans Administration answered stating that no benefits were payable, since the insurance had lapsed for nonpayment of the premiums, but stating that she could apply for waiver of payment for disability and sending her the appropriate forms to fill out. See the opinion below, D.C.S.D.N.Y., 196 F.Supp. 240, at 241-242. But she took no further action until 1957.
While no particular form is necessary for the presentation of a claim under 38 U.S.C. § 784, the courts have uniformly held that requests for information, without demand of payment, do not constitute a claim for purposes of suspending the running of the statute of limitations. We so held quite explicitly in Werner v. United States, 2 Cir., 86 F.2d 113; and other eases so holding are cited in the opinion below, D.C.S.D.N.Y., 196 F.Supp. 240, at 243. The district court was therefore correct in dismissing the complaint.
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_circuit
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Robert G. COX, Appellant, v. UNITED STATES of America, Appellee.
No. 17033.
United States Court of Appeals Eighth Circuit.
Nov. 5, 1962.
Robert G. Cox, appellant, pro se.
F. Russell Millin, U. S. Atty., Kansas City, Mo., and John Harry Wiggins, Asst. U. S. Atty., Kansas City, Mo., for appel-lee.
Before VOGEL and VAN OOSTER-HOUT, Circuit Judges, and VAN PELT, District Judge.
VAN PELT, District Judge.
This case, brought under Title 28 U.S. C.A. § 2255,- raises the claim that appellant, who appears pro se, is being unlawfully incarcerated. Appellant asks the vacation and reversal of the conviction under which sentence was imposed.
Appellant Cox and five others were indicted upon three counts in the Western District of Missouri. Following a trial and conviction, Cox appealed to this court. The affirmance is reported as Cox v. United States, 8 Cir., 284 F.2d 704. The opinion sets forth the contents of the indictment, a brief recital as to the evidence, and fully discusses the claimed errors.
Thereafter, a motion to vacate and set aside judgment and sentence was filed which began the proceedings now in this court.
Appellant claimed in the trial court that:
1) during the original trial testimony was received in the judge’s chambers in his absence; and
2) the trial judge was aware before the verdict was reached of the contents of a probation report relating to appellant’s prior criminal record and his so-called “ill name among his neighbors,” in violation of his rights under Rule 32 (c) of the Federal Rules of Criminal Procedure.
In this court he claims violation of his constitutional rights under both the Fifth and Sixth Amendments to the Constitution, by the trial judge’s receipt of testimony of government witnesses and a co-defendant in the court’s chambers in his absence. Appellant alleges that he was denied permission to go into the court’s chambers in violation of Rule 43, Federal Rules of Criminal Procedure.
With reference to the second point he now claims that the trial judge was so prejudiced that a fair trial with due process of law was impossible and that the trial judge had been his “bitter enemy” for the last sixteen years.
The trial court denied relief. We affirm.
The transcript of the testimony at the trial shows that on the first afternoon, after an objection by appellant’s counsel that the government counsel was trying to impeach a government witness, the court announced a ten minute recess. The presiding judge then said: “Come into chambers, gentlemen.” The official transcript then recites :
“(Whereupon, the following proceedings were had in court chambers, out of the presence and hearing of the jury:)”.
The trial judge then asked the Assistant United States Attorney what he was trying to do and whether he was surprised. Upon hearing the answer he then asked the attorney to read into the record the grand jury testimony to which he was referring. The questions and answers read are set forth in the transcript as is the objection of counsel for appellant Cox, the objection being: “My only objection was that he is impeaching his own witness.” This objection was overruled. This was assigned as error and is discussed in this court's prior opinion in this case.
Objection was not made at any time that the appellant Cox was not present. Error was not assigned in the former appeal raising the objection that the appellant Cox had not been present. The record nowhere gives support for appellant’s contention that he was denied the right to be present. It does not appear that he asked to be present.
It is clear from reading the record that this was a conference with the attorneys and was not a part of the actual trial before the jury. It was held at the Court’s invitation to permit the trial judge to find out what government counsel was trying to do by his questioning, and, as it developed, to acquaint the trial judge with the nature of the testimony the government intended to offer. After returning to the courtroom, in the presence of the appellant and the jury, the questions and answers read to the court in chambers, were read. The recess and the proceeding in chambers were to protect the rights of the appellant Cox by not allowing a witness to be questioned in the jury’s presence about matters which did not affect his testimony and which did not refresh his recollection. Such conferences are usual trial court procedure. Frequently, a trial judge will ask for an exhibit such as the grand jury transcript, take it to his chambers and alone and out of the presence of counsel, will read it and prepare for a ruling. The proceeding here was no different except that the judge had counsel present and instead of reading the transcript himself had counsel read it.
As stated, the record does not bear out appellant’s claim that he was denied the right to be present. No request to be present is shown and objection was not made as to his absence when the trial resumed. He was not deprived of any of his rights in the trial before the jury.
This court, in Glouser v. United States, 296 F.2d 853, had before it in a Section 2255 appeal, a claimed violation of Rule 43, Federal Rules of Criminal Procedure, and held that the right to be present could be waived and further that the test “under a § 2255 proceeding is whether the appellant was deprived of the substance of a fair trial.” We conclude that the proceedings which occurred in chambers were not in the nature of a trial at which, under Rule 43, the defendant is entitled to be present. It is not unusual for a judge to call counsel into chambers and discuss matters of evidence, the form of questions, instructions proposed, and other matters looking to a more orderly trial, without having a defendant present. Appellant’s help was not needed by the judge in order to make a ruling. His presence could hinder an orderly discussion. This conference was not a part of the trial within the meaning of Rule 43.
We hold that appellant was not deprived of the substance of a fair trial in the holding of this conference in his absence.
Other courts have reached similar conclusions. In Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, the United States Supreme Court held, Mr. Justice Cardozo speaking for the G'ourt, that the defendant in a murder trial was not assured, under the Fourteenth Amendment, the right to be present when the jury inspected the scene of the alleged crime. This was true even though at the view “the essential features may be pointed out by the counsel.” It was there said:
“ * * * The Fourteenth Amendment has not said in so many words that he must be present every second or minute or even every hour of the trial. If words so inflexible are to be taken as implied, it is only because they are put there by a court, and not because they are there already, in advance of the decision. Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. It is fairness with reference to particular conditions or particular results. ‘The due process clause does not impose upon the States a duty to establish ideal systems for the administration of justice, with every modern improvement and with provision against every possible hardship that may befall.’ Ownbey v. Morgan, [256 U.S. 94] supra, p. 110 [41 S.Ct. 433, 65 L.Ed. 837], What is fair in one set of circumstances may be an act of tyranny in others. This court has not yet held that even upon a trial in court the absence of a defendant for a few moments while formal documents are marked in evidence will vitiate a judgment. * Cf. Commonwealth v. Kelly, 292 Pa. 418, 141 Atl. 246.” 291 U.S. at pages 116, 117, 54 S.Ct. at page 336.
The footnote which appears at this point refers to two cases relied upon by appellant, namely, Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262, and Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 as follows:
“"What was said in Hopt v. Utah, supra, and Schwab v. Berggren, supra [143 U.S. 442, 12 S.Ct. 525, 36 L.Ed. 218] on the subject of the presence of a defendant was dictum, and no more. See this opinion, ante, p. 106 [54 S.Ct. 332, 78 L.Ed. 678]. We may say the same of Lewis v. United States, supra, with the added observation that it deals with the rule at common law and not with constitutional restraints.”
The Snyder case was followed by Johnson v. United States, 318 U.S. 189, 201, 63 S.Ct. 549, 555, 87 L.Ed. 704, where Mr. Justice Douglas, speaking for the Court, stated:
“It is claimed that the expulsion of petitioner from the court room while counsel were arguing the question of the propriety of the cross-examination on his 1938 income deprived him of his right to be present during the trial. Cf. Snyder v. Massachusetts, 291 U.S. 97 [54 S.Ct. 330, 78 L.Ed. 674]. It is also urged that petitioner was denied the advice of counsel in that the court directed that when he resumed the stand he do so without having an opportunity to confer with his counsel about claiming the privilege. But there is a simple answer to these objections. Not only were no exceptions taken to these rulings; it also appears that they did not result in a loss of the privilege which the court had indicated it would recognize.”
There is no difference of substance between objections relating to the propriety of cross-examination, and objections dealing with the propriety of impeachment or refreshment of recollection, so far as the right of a defendant to be present is concerned. The Court of Appeals for the Tenth Circuit has said:
“The final question is whether conferences of the court and counsel on questions of law at the bench or in chambers, out of hearing of the appellant and the jury, denied appellant his constitutional right to be present at every stage of the trial. In the first place, neither appellant nor his counsel made a specific request for appellant to be present at these conferences, and no complaint or objection was lodged to the practice. He therefore cannot complain of any possible prejudice. Steiner v. United States, 5 Cir., 134 F.2d 931, certiorari denied 319 U.S. 774, 63 S.Ct. 1439, 87 L.Ed. 1721. Moreover, it is settled law that the exclusion of a defendant and a jury from the courtroom .during argument on a question of law does not violate defendant’s constitutional right to be present at every step of the proceedings. United States v. Johnson, 3 Cir., 129 F.2d 954, 144 A.L.R. 182, affirmed on other grounds, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704.” Deschenes v. United States, 10 Cir., 224 F.2d 688, 693.
The Court of Appeals for the Fourth Circuit discussed the right of the defendant to be present at all steps of the trial in Parker v. United States, 184 F.2d 488, 490, and said:
« * * * The right to be pi'esent at all stages of the trial is no more sacred than the right to be confronted by accusing witnesses or to have a common law jury of twelve try the case; and there can be no question but that these may be waived. Grove v. United States, 4 Cir., 3 F.2d 965; Eury v. Huff, 4 Cir., 141 F.2d 554. Proceeding with the trial without objection and with full knowledge of the facts constitutes such waiver as clearly as anything could. As said by Mr. Justice Douglas in Johnson v. United States, 318 U.S. 189, 201, 63 S.Ct. 549, 555, 87 L.Ed. 704: ‘Any other coúrse would not comport with the standards for the administration of criminal justicé.,, We'cannot permit an' accused to' elect to pursue one course at the trial and then, when that has proved to be unprofitable, to insist olí' appeal that the course which he rejected at thé trial be reopened to him. ' However unwise the first choice may have been, the range of waiver' is, wide. Since the protection which could have been obtained was plainly waived, the accused cannot now be heard to charge the court with depriving him of a fair trial. The court only followed the course which he himself helped to chart and in which he acquiesced until the case was argued on appeal. The fact that the objection did not appear in the motion for new trial or in the assignments of error makes clear that the point now is a “mere afterthought.” ’ ”
The Parker case was relied upon by the Court of Appeals for the Second Circuit in United States ex rel. Shapiro v. Jackson, 263 F.2d 282, 283, where it is said:
“It is relator’s claim, albeit thus belated, that, after the jury had retired at the close of his trial, they returned to the courtroom while he was not present and at their request the testimony of three witnesses was read to them. We are unable to discover any injustice or prejudice in this claimed defect; the reading of the testimony on the jury’s request was quite proper, and relator was present and represented by counsel throughout the testimony at the trial. Even in the federal courts limited exceptions to an accused’s absolute right to be present throughout his trial are permitted. See United States v. Switzer, 2 Cir., 252 F.2d 139,143-144; Parker v. United States, 4 Cir., 184 F.2d 488.”
Further citation of authority would seem unnecessary. Competent counsel did not raise the point now relied upon in the previous appeal. Language of the Parker case, supra, is in point.
“Applicable also is what was said by, us in Crowe v. United States, 4 Cir., 175 F.2d 799, 801, as follows: ‘This is not the case of an accused who has been denied counsel and who has failed to assert his constitutional rights at the proper time because of ignorance, but of one who has had the assistance of able counsel who knew how to raise and would have raised upon the original trial the questions that he is now raising, if there had been any substance to them.’ ” 184 F.2d 488, 490.
Appellant’s claim on this point is without merit.
Appellant’s second contention, as above outlined, is that the trial judge was prejudiced against him. In his brief in this court he enlarges upon the claim made in the trial court as to the judge’s knowledge of the contents of the probation report, and suggests that the trial judge for sixteen years had been a “bitter enemy” of the appellant.
We note that no attempt was made to disqualify the trial judge and the claim of bias or prejudice was not mentioned in the prior appeal to this court. We shall not give credence to the arguments and complaints of appellant relating to the claimed bias and prejudice of the trial judge by repeating them here. A brief filed by a lawyer containing such ill founded charges would be stricken and he could properly be cited for contempt. See Barnes v. United States, 9 Cir., 241 F.2d 252.
It has been well said by Circuit Judge Frank of the Second Circuit in the case of In re J. P. Linahan, Inc., 138 F.2d 650:
“Democracy must, indeed, fail unless our courts try cases fairly, and there can be no fair trial before a judge lacking in impartiality and disinterestedness. If, however, ‘bias’ and ‘partiality’ be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank ■ piece of paper. We are born with predispositions; and the process of education, formal and informal, . creates attitudes in all men which . affect them in judging situations, : attitudes which precede reasoning in particular instances and which, ■ therefore, by definition, are prej-.. udices. Without acquired ‘slants,’ pre-conceptions, life could not go on. Every habit constitutes a pre-judgment; were those pre-judgments which we call habits absent in any person, were he obliged to treat every event as an unprecedented crisis presenting a wholly new problem he would go mad. Interests, points of view, preferences, are the essence of living. Only death yields complete dispassionateness, for such dispassionateness signifies utter indifference. * * * An ‘open mind,’ in the sense of a mind containing no pre-conceptions whatever, would be a mind incapable of learning anything, would be that of an utterly emotionless human being, corresponding roughly to the psychiatrist’s descriptions of the feeble-minded.
*■*•**•**
“ * * * Much harm is done by the myth that merely by putting on a black robe and taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine. The concealment of the human element in the judicial process allows that element to operate in an exaggerated manner; the sunlight of awareness has an antiseptic effect on prejudices. Freely avowing that he is a human being, the judge can and should, through self-scrutiny, prevent the operation of this class of biases.” 138 F.2d 651, 652, 653.
Judge Gibson, who was not the trial judge, in ruling on this application, stated that there was no indication that the judge who sentenced Cox had had a ■presentence ■ report before him prior to receiving the verdict. We agree with ■this finding. • Thus, there was nothing to indicate that Rule' 32(c), Federal Rules of Criminal Procedure, had been violated. .The fact that the trial judge, when a judge in the state courts of Missouri .some'-sixteen or eighteen years before, :had sentenced appellant on a criminal •charge t and that he still remembered appellant’s prior criminal record, or, as appellant says, his “ill name among his neighbors” in no way disqualified him.
We agree with the statement in Barnes v. United States, 241 F.2d 252, 254, as follows:
“ * * * The conduct of the trial judge and his rulings in a former case are not the basis for disqualification here. All of the rulings in former cases, as well as the attitude of the judge, could have been raised upon appeal in such cases. Because a judge has decided one case against a litigant is no reason why he cannot sit in another.” .
The complaints against the distinguished judge who heard the original case and sentenced appellant upon his conviction following the jury’s verdict of guilty, are entirely without merit.
We affirm the trial court.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
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.
McCREARY COUNTY, KENTUCKY, et al. v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY et al.
No. 03-1693.
Argued March 2, 2005
Decided June 27, 2005
Mathew D. Staver argued the cause for petitioners. With him on the briefs were Erik W. Stanley, Rena M. Lindevald-sen, Bruce W. Green, and Mary E. McAlister.
Acting Solicitor General Clement argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Keisler, Deputy Assistant Attorney General Katsas, Patricia A Millett, Robert M. Loeb, and Lowell V. Sturgill, Jr.
David A. Friedman argued the cause for respondents. With him on the brief were Lili R. Lutgens and Steven R. Shapiro
Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Troy King, Attorney General of Alabama, Kevin C. New-som, Solicitor General, and Charles B. Campbell, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Charles J. Crist, Jr., of Florida, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Phill Kline of Kansas, Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, Jim Hood of Mississippi, Jim Petro of Ohio, Gerald J. Pappert of Pennsylvania, Henry McMaster of South Carolina, Greg Abbott of Texas, Mark L. Shurtleff of Utah, Jerry W. Kilgore of Virginia, and Patrick J. Crank of Wyoming; for the State of Minnesota et al. by Mike Hatch, Attorney General of Minnesota, and John S. Garry, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Lisa Madigan of Illinois, Thomas J. Miller of Iowa, Jeremiah W. (Jay) Nixon of Missouri, Patricia A Madrid of New Mexico, W. A Drew Edmondson of Oklahoma, and Peggy A Lauten-schlager of Wisconsin; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Francis J. Manion, and Walter M. Weber; for the American Legion by Kelly Shackelford and Philip B. Ond-erdonk, Jr.; for the American Liberties Institute et al. by Frederick H. Nelson; for the Ashbrook Center for Public Affairs et al. by Steven C. Seeger; for the Becket Fund for Religious Liberty by Anthony R. Pi-carello, Jr.; for the Conservative Legal Defense and Education Fund et al. by Herbert W. Titus and William J. Olson; for the Eagle Forum Education & Legal Defense Fund by Douglas G. Smith and Phyllis Schlajly; for Faith and Action et al. by Bernard P. Reese, Jr.; for the Family Research Council, Inc., et al. by Robert P. George; for the Foundation for Moral Law, Inc., by Benjamin D. DuPré and Gregory M. Jones; for Judicial Watch, Inc., by Paul J. Orfanedes and Meredith L. Cavallo; for the Pacific Justice Institute by Peter D. Lepiscopo; for the Rutherford Institute by John W. Whitehead; for the Thomas More Law Center by Edward L. White III; and for Wallbuilders, Inc., by Barry C. Hodge.
Briefs of amici curiae urging affirmance were filed for American Atheists by Robert J Bruno; for the American Humanist Association et al. by Elizabeth L. Hileman; for Americans United for Separation of Church and State et al. by William M. Hohengarten, Ian Heath Gershengorn, Ayesha Khan, Richard B. Katskee, and Judith E. Schaeffer; for the Anti-Defamation League et al. by Jeffrey R. Babbin, Aaron S. Bayer, Kenneth D. Heath, Frederick M. Lawrence, Daniel S. Alter, and Steven M. Freeman; for the Atheist Law Center et al. by Pamela L. Sumners and Larry Darby; for the Baptist Joint Committee et al. by Douglas Laycock, Jeffrey P. Sinensky, K Hollyn Hollman, and Marc D. Stern; for the Council for Secular Humanism et al. by Ronald A Lindsay; for the Freedom from Religion Foundation by James A Friedman and James D. Peterson; and for Legal Historians and Law Scholars by Steven K Green.
Julie Underwood filed a brief of amici curiae for the National School Boards Association et al.
Justice Souter
delivered the opinion of the Court.
Executives of two counties posted a version of the Ten Commandments on the walls of their courthouses. After suits were filed charging violations of the Establishment Clause, the legislative body of each county adopted a resolution calling for a more extensive exhibit meant to show that the Commandments are Kentucky’s “precedent legal code,” Def. Exh. 1 in Memorandum in Support of Defendants’ Motion to Dismiss in Civ. Action No. 99-507, p. 1 (ED Ky.) (hereinafter Def. Exh.. 1). The result in each instance was a modified display of the Commandments surrounded by texts containing religious references as their sole common element. After changing counsel, the counties revised the exhibits again by eliminating some documents, expanding the text set out in another, and adding some new ones.
The issues are whether a determination of the counties’ purpose is a sound basis for ruling on the Establishment Clause complaints, and whether evaluation of the counties’ claim of secular purpose for the ultimate displays may take their evolution into account. We hold that the counties’ manifest objective may be dispositive of the constitutional enquiry, and that the development of the presentation should be considered when determining its purpose.
I
In the summer of 1999, petitioners McCreary County and Pulaski County, Kentucky (hereinafter Counties), put up in their respective courthouses large, gold-framed copies of an abridged text of the King James version of the Ten Commandments, including a citation to the Book of Exodus. In McCreary County, the placement of the Commandments responded to an order of the county legislative body requiring “the display [to] be posted in ‘a very high traffic area’ of the courthouse.” 96 F. Supp. 2d 679, 684 (ED Ky. 2000). In Pulaski County, amidst reported controversy over the propriety of the display, the Commandments were hung in a ceremony presided over by the county Judge-Executive, who called them “good rules to live by” and who recounted the story of an astronaut who became convinced “there must be a divine God” after viewing the Earth from the moon. Dodson, Commonwealth Journal, July 25, 1999, p. Al, col. 2, in Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction in Civ. Action No. 99-509 (ED Ky.) (internal quotation marks omitted). The Judge-Executive was accompanied by the pastor of his church, who called the Commandments “a creed of ethics” and told the press after the ceremony that displaying the Commandments was “one of the greatest things the judge could have done to close out the millennium.” Id., at A2, col. 3 (internal quotation marks omitted). In both Counties, this was the version of the Commandments posted:
“Thou shalt have no other gods before me.
“Thou shalt not make unto thee any graven images.
“Thou shalt not take the name of the Lord thy God in vain.
“Remember the sabbath day, to keep it holy.
“Honor thy father and thy mother.
“Thou shalt not kill.
“Thou shalt not commit adultery.
“Thou shalt not steal.
“Thou shalt not bear false witness.
“Thou shalt not covet.
“Exodus 20:3-17.” Def. Exh. 9 in Memorandum in Support of Defendants’ Motion to Dismiss in Civ. Action No. 99-507 (ED Ky.) (hereinafter Def. Exh. 9).
In each County, the hallway display was “readily visible to... county citizens who use the courthouse to conduct their civic business, to obtain or renew driver’s licenses and permits, to register ears, to pay local taxes, and to register to vote.” 96 F. Supp. 2d, at 684; American Civil Liberties Union of Kentucky v. Pulaski County, 96 F. Supp. 2d 691, 695 (ED Ky. 2000).
In November 1999, respondents American Civil Liberties Union of Kentucky et al. sued the Counties in Federal District Court under Rev. Stat. § 1979, 42 U. S. C. § 1983, and sought a preliminary injunction against maintaining the displays, which the ACLU charged were violations of the prohibition of religious establishment included in the First Amendment of the Constitution. Within a month, and before the District Court had responded to the request for injunction, the legislative body of each County authorized a second, expanded display, by nearly identical resolutions reciting that the Ten Commandments are “the precedent legal code upon which the civil and criminal codes of... Kentucky are founded,” and stating several grounds for taking that position: that “the Ten Commandments are codified in Kentucky’s civil and criminal laws”; that the Kentucky House of Representatives had in 1993 “voted unanimously... to adjourn... ‘in remembrance and honor of Jesus Christ, the Prince of Ethics’ that the “County Judge and... magistrates agree with the arguments set out by Judge [Roy] Moore” in defense of his “display [of] the Ten Commandments in his courtroom”; and that the “Founding Father[s] [had an] explicit understanding of the duty of elected officials to publicly acknowledge God as the source of America’s strength and direction.” Def. Exh. 1, at 1-3, 6.
As directed by the resolutions, the Counties expanded the displays of the Ten Commandments in their locations, presumably along with copies of the resolution, which instructed that it, too, be posted, id., at 9. In addition to the first display’s large framed copy of the edited King James version of the Commandments, the second included eight other documents in smaller frames, each either having a religious theme or excerpted to highlight a religious element. The documents were the “endowed by their Creator” passage from the Declaration of Independence; the Preamble to the Constitution of Kentucky; the national motto, “In God We Trust”; a page from the Congressional Record of February 2, 1983, proclaiming the Year of the Bible and including a statement of the Ten Commandments; a proclamation by President Abraham Lincoln designating April 30,1863, a National Day of Prayer and Humiliation; an excerpt from President Lincoln’s “Reply to Loyal Colored People of Baltimore upon Presentation of a Bible,” reading that “[t]he Bible is the best gift God has ever given to man”; a proclamation by President Reagan marking 1983 the Year of the Bible; and the Mayflower Compact. 96 F. Supp. 2d, at 684; 96 F. Supp. 2d, at 695-696.
After argument, the District Court entered a preliminary injunction on May 5, 2000, ordering that the “display... be removed from [each] County Courthouse IMMEDIATELY” and that no county official “erect or cause to be erected similar displays.” 96 F. Supp. 2d, at 691; 96 F. Supp. 2d, at 702-703. The court’s analysis of the situation followed the three-part formulation first stated in Lemon v. Kurtzman, 403 U. S. 602 (1971). As to governmental purpose, it concluded that the original display “lack[edj any secular purpose” because the Commandments “are a distinctly religious document, believed by many Christians and Jews to be the direct and revealed word of God.” 96 F. Supp. 2d, at 686; 96 F. Supp. 2d, at 698. Although the Counties had maintained that the original display was meant to be educational, “[t]he narrow scope of the display — a single religious text unaccompanied by any interpretation explaining its role as a foundational document — can hardly be said to present meaningfully the story of this country’s religious traditions.” 96 F. Supp. 2d, at 686-687; 96 F. Supp. 2d, at 698. The court found that the second version also» “clearly lack[ed] a secular purpose” because the “Count[ies] narrowly tailored [their] selection of foundational documents to incorporate only those with specific references to Christianity.” 96 F. Supp. 2d, at 687; 96 F. Supp. 2d, at 699.
The Counties filed a notice of appeal from the preliminary injunction but voluntarily dismissed it after hiring new lawyers. They then installed another display in each courthouse, the third within a year. No new resolution authorized this one, nor did the Counties repeal the resolutions that preceded the second. The posting consists of nine framed documents of equal size, one of them setting out the Ten Commandments explicitly identified as the “King James Version” at Exodus 20:3-17, 145 F. Supp. 2d 845, 847 (ED Ky. 2001), and quoted at greater length than before:
“Thou shalt have no other gods before me.
“Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water underneath the earth: Thou shalt not bow down thyself to them, nor serve them: for I the LORD thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me.
“Thou shalt not take the name of the LORD thy God in vain: for the LORD will not hold him guiltless that taketh his name in vain.
“Remember the sabbath day, to keep it holy.
“Honour thy father and thy mother: that thy days may be long upon the land which the LORD thy God giveth thee.
“Thou shalt not kill.
“Thou shalt not commit adultery.
“Thou shalt not steal.
“Thou shalt not bear false witness against thy neighbour.
“Thou shalt not covet thy neighbour’s house, thou shalt not covet th[y] neighbor’s wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor anything that is th[y] neighbour’s.” App. to Pet. for Cert. 189a.
Assembled with the Commandments are framed copies of the Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star Spangled Banner, the Mayflower Compact, the National Motto, the Preamble to the Kentucky Constitution, and a picture of Lady Justice. The collection is entitled “The Foundations of American Law and Government Display” and each document comes with a statement about its historical and legal significance. The comment on the Ten Commandments reads:
“The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country. That influence is clearly seen in the Declaration of Independence, which declared that ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.’ The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition.” Id., at 180a.
The ACLU moved to supplement the preliminary injunction to enjoin the Counties’ third display, and the Counties responded with several explanations for the new version, in-eluding desires “to demonstrate that the Ten Commandments were part of the foundation of American Law and Government” and “to educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government.” 145 F. Supp. 2d, at 848 (internal quotation marks omitted). The court, however, took the objective of proclaiming the Commandments' foundational value as “a religious, rather than secular, purpose” under Stone v. Graham, 449 U. S. 39 (1980) (per curiam), 145 F. Supp. 2d, at 849, and found that the assertion that the Counties’ broader educational goals are secular “crumble[s]... upon an examination of the history of this litigation,” ibid. In light of the Counties’ decision to post the Commandments by themselves in the first instance, contrary to Stone, and later to “accentuate]” the religious objective by surrounding the Commandments with “specific references to Christianity,” the District Court understood the Counties’ “clear” purpose as being to post the Commandments, not to educate. 145 F. Supp. 2d, at 849-850 (internal quotation marks omitted).
As requested, the trial court supplemented the injunction, and a divided panel of the Court of Appeals for the Sixth Circuit affirmed. The Circuit majority stressed that under Stone, displaying the Commandments bespeaks a religious object unless they are integrated with other material so as to carry “a secular message,” 354 F. 3d 438, 449 (2003). The majority judges saw no integration here because of a “lack of a demonstrated analytical or historical connection [between tfle Commandments and] the other documents.” Id., at 451. They noted in particular that the Counties offered no support for their claim that the Ten Commandments “provided] the moral backdrop” to the Declaration of Independence or otherwise “profoundly influenced” it. Ibid, (internal quotation marks omitted). The majority found that the Counties’ purpose was religious, not educational, given the nature of the Commandments as “an active symbol of religion [stating] ‘the religious duties of believers.’ ” Id., at 455. The judges in the majority understood the identical displays to emphasize “a single religious influence, with no mention of any other religious or secular influences,” id., at 454, and they took the very history of the litigation as evidence of the Counties’ religious objective, id., at 457.
Judge Ryan dissented on the basis of wide recognition that religion, and the Ten Commandments in particular, have played a foundational part in the evolution of American law and government; he saw no reason to gainsay the Counties’ claim of secular purposes. Id., at 472-473. The dissent denied that the prior displays should have any bearing on the constitutionality of the current one: a “history of unconstitutional displays can[not] be used as a sword to strike down an otherwise constitutional display.” Id., at 478.
We granted certiorari, 543 U. S. 924 (2004), and now affirm.
II
Twenty-five years ago in a case prompted by posting the Ten Commandments in Kentucky’s public schools, this Court recognized that the Commandments “are undeniably a sacred text in the Jewish and Christian faiths” and held that their display in public classrooms violated the First Amendment’s bar against establishment of religion. Stone, 449 U. S., at 41. Stone found a predominantly religious purpose in the government’s posting of the Commandments, given their prominence as “ ‘an instrument of religion,’ ” id., at 41, n. 3. (quoting School Dist. of Abington Township v. Schempp, 374 U. S. 203, 224 (1963)). The Counties ask for a different approach here by arguing that official purpose is unknowable and the search for it inherently vain. In the alternative, the Counties would avoid the District Court’s conclusion by having us limit the scope of the purpose enquiry so severely that any trivial rationalization would suffice, under a standard oblivious to the history of religious government action like the progression of exhibits in this case.
A
Ever since Lemon v. Kurtzman summarized the three familiar considerations for evaluating Establishment Clause claims, looking to whether government action has “a secular legislative purpose” has been a common, albeit seldom dis-positive, element of our cases. 403 U. S., at 612. Though we have found government action motivated by an illegitimate purpose only four times since Lemon, and “the secular purpose requirement alone may rarely be determinative..., it nevertheless serves an important fimetion.” Wallace v. Jaffree, 472 U. S. 38, 75 (1985) (O’Connor, J., concurring in judgment).
The touchstone for our analysis is the principle that the “First Amendment mandates governmental neutrality between religion and religion, and between religion and nonre-ligion.” Epperson v. Arkansas, 393 U. S. 97, 104 (1968); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15-16 (1947); Wallace, supra, at 53. When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 335 (1987) (“Lemon’s ‘purpose’ requirement aims at preventing [government] from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters”). Manifesting a purpose to favor one faith over another,, or adherence to religion generally, clashes with the “understanding, reached... after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens....” Zelman v. Simmons-Harris, 536 U. S. 639, 718 (2002) (Breyer, J., dissenting). By showing a purpose to favor religion, the government “sends the... message to... nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members-’” Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 309-310 (2000) (quoting Lynch v. Donnelly, 465 U. S. 668, 688 (1984) (O’Connor, J., concurring)).
Indeed, the purpose apparent from government action can have an impact more significant than the result expressly decreed: when the government maintains Sunday closing laws, it advances religion only minimally because many working people would take the day as one of rest regardless, but if the government justified its decision with a stated desire for all Americans to honor Christ, the divisive thrust of the official action would be inescapable. This is the teaching of McGowan v. Maryland, 366 U. S. 420 (1961), which upheld Sunday closing statutes on practical, secular grounds after finding that the government had forsaken the religious purposes behind centuries-old predecessor laws. Id., at 449-451
B
Despite the intuitive importance of official purpose to the realization of Establishment Clause values, the Counties ask us to abandon Lemon's purpose test, or at least to truncate any enquiry into purpose here. Their first argument is that the very consideration of purpose is deceptive: according to them, true “purpose” is unknowable, and its search merely an excuse for courts to act selectively and unpredietably in picking out evidence of subjective intent. The assertions are as seismic as they are unconvincing.
Examination of purpose is a staple of statutory interpretation that makes up the daily fare of every appellate court in the country, e. g., General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 600 (2004) (interpreting statute in light of its “text, structure, purpose, and history”), and governmental purpose is a key element of a good deal of constitutional doctrine, e. g., Washington v. Davis, 426 U. S. 229 (1976) (discriminatory purpose required for Equal Protection violation); Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333, 352-353 (1977) (discriminatory purpose relevant to dormant Commerce Clause claim); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (discriminatory purpose raises level of scrutiny required by free exercise claim). With enquiries into purpose this common, if they were nothing but hunts for mares’ nests deflecting attention from bare judicial will, the whole notion of purpose in law would have dropped into disrepute long ago.
But scrutinizing purpose does make practical sense, as in Establishment Clause analysis, where an understanding of official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts. Wallace, 472 U. S., at 74 (O’Connor, J., concurring in judgment). The eyes that look to purpose belong to an “ ‘objective observer,’ ” one who takes account of the traditional external signs that show up in the “ ‘text, legislative history, and implementation of the statute,’” or comparable official act. Santa Fe, supra, at 308 (quoting Wallace, supra, at 76 (O’Connor, J., concurring in judgment)); see also Edwards v. Aguillard, 482 U. S. 578, 594-595 (1987) (enquiry looks to “plain meaning of the statute’s words, enlightened by their context and the contemporaneous legislative history [and] the historical context of the statute,... and the specific sequence of events leading to [its] passage”). There is, then, nothing hinting at an unpredictable or disingenuous exercise when a court enquires into purpose after a claim is raised under the Establishment Clause.
The cases with findings of a predominantly religious purpose point to the straightforward nature of the test. In Wallace, for example, we inferred purpose from a change of wording from an earlier statute to a later one, each dealing with prayer in schools. 472 U. S., at 58-60. And in Edwards, we relied on a statute’s text and the detailed public comments of its sponsor, when we sought the purpose of a state law requiring creationism to be taught alongside evolution. 482 U. S., at 586-588. In other cases, the government action itself bespoke the purpose, as in Abington, where the object of required Bible study in public schools was patently religious, 374 U. S., at 223-224; in Stone, the Court held that the “[p]osting of religious texts on the wall serve[d] no... educational function,” and found that if “the posted copies of the Ten Commandments [were] to have any effect at all, it [would] be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments.” 449 U. S., at 42. In each case, the government’s action was held unconstitutional only because openly available data supported a commonsense conclusion that a religious objective permeated the government’s action.
Nor is there any indication that the enquiry is rigged in practice to finding a religious purpose dominant every time a case is filed. In the past, the test has not been fatal very often, presumably because government does not generally act unconstitutionally, with the predominant purpose of advancing religion. That said, one consequence of the corollary that Establishment Clause analysis does not look to the veiled psyche of government officers could be that in some of the cases in which establishment complaints failed, savvy officials had disguised their religious intent so cleverly that the objective observer just missed it. But that is no reason for great constitutional concern. If someone in the government hides religious motive so well that the “ ‘objective observer, acquainted with the text, legislative history, and implementation of the statute,’ ” Santa Fe, 530 U. S., at 308 (quoting Wallace, supra, at 76 (O’Connor, J., concurring in judgment)), cannot see it, then without something more the government does not make a divisive announcement that in itself amounts to taking religious sides. A secret motive stirs up no strife and does nothing to make outsiders of non-adherents, and it suffices to wait and see whether such government action turns out to have (as it may even be likely to have) the illegitimate effect of advancing religion.
C
After declining the invitation to abandon concern with purpose wholesale, we also have to avoid the Counties’ alternative tack of trivializing the enquiry into it. The Counties would read the cases as if the purpose enquiry were so naive that any transparent claim to secularly would satisfy it, and they would cut context out of the enquiry, to the point of ignoring history, no matter what bearing it actually had on the significance of current circumstances. There is no precedent for the Counties’ arguments, or reason supporting them.
1
Lemon said that government action must have “a secular... purpose,” 403 U. S., at 612, and after a host of cases it is fair to add that although a legislature’s stated reasons will generally get deference, the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective. See, e. g., Santa Fe, supra, at 308 (“When a governmental entity professes a secular purpose for an arguably religious policy, the government’s characterization is, of course, entitled to some deference. But it is nonetheless the duty of the courts to 'distinguís [h] a sham secular purpose from a sincere one’”); Edwards, 482 U. S., at 586-587 (“While the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham”); id., at 590, 594 (referring to enquiry as one into “preeminent” or “primary” purpose); Stone, supra, at 41 (looking to the “pre-eminent purpose” of government action).
Even the Countie'sown authority confirms that we have not made the purpose test a pushover for any secular claim. True, Wallace said government action is tainted by its object “if it is entirely motivated by a purpose to advance religion,” 472 U. S., at 56, a remark that suggests, in isolation, a fairly complaisant attitude. But in that very case the Court declined to credit Alabama’s stated secular rationale of “accommodation” for legislation authorizing a period of silence in school for meditation or voluntary prayer, given the implausibility of that explanation in light of another statute already accommodating children wishing to pray. Id., at 57, n. 45 (internal quotation marks omitted). And it would be just as much a mistake to infer that a timid standard underlies the statement in Lynch v. Donnelly that the purpose enquiry looks to whether government “activity was motivated wholly by religious considerations,” 465 U. S., at 680; for two cases cited for that proposition had examined and rejected claims of secular purposes that turned out to be implausible or inadequate: Stone, supra, at 41; Abington, 374 U. S., at 223-224. See also Bowen v. Kendrick, 487 U. S. 589, 602 (1988) (using the “motivated wholly by an impermissible purpose” language, but citing Lynch and Stone). As we said, the Court often does accept governmental statements of purpose, in keeping with the respect owed in the first instance to such official claims. But in those unusual cases where the claim was an apparent sham, or the secular purpose secondary, the unsurprising results have been findings of no adequate secular object, as against a predominantly religious one.
2
The Counties’ second proffered limitation can be dispatched quickly. They argue that purpose in a case like this one should be inferred, if at all, only from the latest news about the last in a series of governmental actions, however close they may all be in time and subject. But the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government’s actions and competent to learn what history has to show, Santa Fe, 530 U. S., at 308 (objective observer is familiar with ‘“implementation of’ ” government action (quoting Wallace, supra, at 76 (O’Connor, J., concurring in judgment))); Edwards, supra, at 595 (enquiry looks to “the historical context of the statute... and the specific sequence of events leading to [its] passage”); Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 780 (1995) (O’Connor, J., concurring in part and concurring in judgment) (“[T]he reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the religious display appears”). The Counties’ position just bucks common sense: reasonable observers have reasonable memories, and our precedents sensibly forbid an observer “to turn a blind eye to the context in which [the] policy arose.” Santa Fe, supra, at 315.
hH
This case comes to us on appeal from a preliminary injunction. We accordingly review the District Court’s legal rulings de novo, and its ultimate conclusion for abuse of discretion. Ashcroft v. American Civil Liberties Union, 542 U. S. 656 (2004).
We take Stone as the initial legal benchmark, our only case dealing with the constitutionality of displaying the Commandments. Stone recognized that the Commandments are an “instrument of religion” and that, at least on the facts before it, the display of their text could presumptively be understood as meant to advance religion: although state law specifically required their posting in public school classrooms, their isolated exhibition did not leave room even for an argument that secular education explained their being there. 449 U. S., at 41, n. 3 (internal quotation marks omitted). But Stone did not purport to decide the constitutionality of every possible way the Commandments might be set out by the government, and under the Establishment Clause detail is key. County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 595 (1989) (opinion of Blackmun, J.) (“[T]he question is what viewers may fairly understand to be the purpose of the display. That inquiry, of necessity, turns upon the context in which the contested object appears” (internal quotation marks and citation omitted)). Hence, we look to the record of evidence showing the progression leading up to the third display of the Commandments.
A
The display rejected in Stone had two obvious similarities to the first one in the sequence here: both set out a text of the Commandments as distinct from any traditionally symbolic representation, and each stood alone, not part of an arguably secular display. Stone stressed the significance of integrating the Commandments into a secular scheme to forestall the broadcast of an otherwise clearly religious message, 449 U. S., at 42, and for good reason, the Commandments being a central point of reference in the religious and moral history of Jews and Christians. They proclaim the existence of a monotheistic god (no other gods). They regulate details of religious obligation (no graven images, no sabbath breaking, no vain oath swearing). And they unmistakably rest even the universally accepted prohibitions (as against murder, theft, and the like) on the sanction of the divinity proclaimed at the beginning of the text. Displaying that text is thus different from a symbolic depiction, like tablets with 10 roman numerals, which could be seen as alluding to a general notion of law, not a sectarian conception of faith. Where the text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious point of view. The display in Stone had no context that might have indicated an object beyond the religious character of the text, and the Counties’ solo exhibit here did nothing more to counter the sectarian implication than the postings at issue in Stone. See also County of Allegheny, supra, at 598 (“Here, unlike in Lynch [v. Donnelly], nothing in the context of the display detracts from the creche’s religious message”). Actually, the posting by the Counties lacked even the Stone display’s implausible disclaimer that the Commandments were set out to show their effect on the civil law. What is more, at the ceremony for posting the framed Commandments in Pulaski County, the county executive was accompanied by his pastor, who testified to the certainty of the existence of God. The reasonable observer could only think that the Counties meant to emphasize and celebrate the Commandments’ religious message.
This is not to deny that the Commandments have had influence on civil or secular law; a major text of a majority religion is bound to be felt. The point is simply that the original text viewed in
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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sc_decisiontype
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
ROCK v. ARKANSAS
No. 86-130.
Argued March 23, 1987
Decided June 22, 1987
Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Stevens, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which White, O’Connor, and Scalia, JJ., joined, post, p. 62.
James M. Luffman argued the cause and filed briefs for petitioner.
J. Steven Clark, Attorney General of Arkansas, argued the cause for respondent. With him on the brief was Clint Miller, Assistant Attorney General.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, and Shirley A. Nelson and Garrett Beaumont, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging affirmance.
David M. Heilbron and Christopher Berka filed a brief for the Product Liability Advisory Council et al. as amici curiae.
Justice Blackmun
delivered the opinion of the Court.
The issue presented in this case is whether Arkansas’ evidentiary rule prohibiting the admission of hypnotically refreshed testimony violated petitioner’s constitutional right to testify on her own behalf as a defendant in a criminal case.
I
Petitioner Vickie Lorene Rock was charged with manslaughter in the death of her husband, Frank Rock, on July 2, 1983. A dispute had been simmering about Frank’s wish to move from the couple’s small apartment adjacent to Vickie’s beauty parlor to a trailer she owned outside town. That night a fight erupted when Frank refused to let petitioner eat some pizza and prevented her from leaving the apartment to get something else to eat. App. 98, 103-104. When police arrived on the scene they found Frank on the floor with a bullet wound in his chest. Petitioner urged the officers to help her husband, Tr. 230, and cried to a sergeant who took her in charge, “please save him” and “don’t let him die.” Id., at 268. The police removed her from the building because she was upset and because she interfered with their investigation by her repeated attempts to use the telephone to call her husband’s parents. Id., at 263-264, 267-268. According to the testimony of one of the investigating officers, petitioner told him that “she stood up to leave the room and [her husband] grabbed her by the throat and choked her and threw her against the wall and... at that time she walked over and picked up the weapon and pointed it toward the floor and he hit her again and she shot him.” Id., at 281.
Because petitioner could not remember the precise details of the shooting, her attorney suggested that she submit to hypnosis in order to refresh her memory. Petitioner was hypnotized twice by Doctor Bettye Back, a licensed neuropsychologist with training in the field of hypnosis. Id., at 901-903. Doctor Back interviewed petitioner for an hour prior to the first hypnosis session, taking notes on petitioner’s general history and her recollections of the shooting. App. 46-47. Both hypnosis sessions were recorded on tape. Id., at 53. Petitioner did not relate any new information during either of the sessions, id., at 78, 83, but, after the hypnosis, she was able to remember that at the time of the incident she had her thumb on the hammer of the gun, but had not held her finger on the trigger. She also recalled that the gun had discharged when her husband grabbed her arm during the scuffle. Id., at 29, 38. As a result of the details that petitioner was able to remember about the shooting, her counsel arranged for a gun expert to examine the handgun, a single-action Hawes.22 Deputy Marshal. That inspection revealed that the gun was defective and prone to fire, when hit or dropped, without the trigger’s being pulled. Tr. 662-663, 711.
When the prosecutor learned of the hypnosis sessions, he filed a motion to exclude petitioner’s testimony. The trial judge held a pretrial hearing on the motion and concluded that no hypnotically refreshed testimony would be admitted. The court issued an order limiting petitioner’s testimony to “matters remembered and stated to the examiner prior to being placed under hypnosis.” App. to Pet. for Cert, xvii. At trial, petitioner introduced testimony by the gun expert, Tr. 647-712, but the court limited petitioner’s own description of the events on the day of the shooting to a reiteration of the sketchy information in Doctor Back’s notes. See App. 96-104. The jury convicted petitioner on the manslaughter charge and she was sentenced to 10 years’ imprisonment and a $10,000 fine.
On appeal, the Supreme Court of Arkansas rejected petitioner’s claim that the limitations on her testimony violated her right to present her defense. The court concluded that “the dangers of admitting this kind of testimony outweigh whatever probative value it may have,” and decided to follow the approach of States that have held hypnotically refreshed testimony of witnesses inadmissible per se. 288 Ark. 566, 573, 708 S. W. 2d 78, 81 (1986). Although the court acknowledged that “a defendant’s right to testify is fundamental,” id., at 578, 708 S. W. 2d, at 84, it ruled that the exclusion of petitioner’s testimony did not violate her constitutional rights. Any “prejudice or deprivation” she suffered “was minimal and resulted from her own actions and not by any erroneous ruling of the court.” Id., at 580, 708 S. W. 2d, at 86. We granted certiorari, 479 U. S. 947 (1986), to consider the constitutionality of Arkansas’ per se rule excluding a criminal defendant’s hypnotically refreshed testimony.
II
Petitioner’s claim that her testimony was impermissibly excluded is bottomed on her constitutional right to testify in her own defense. At this point in the development of our adversary system, it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense. This, of course, is a change from the historic common-law view, which was that all parties to litigation, including criminal defendants, were disqualified from testifying because of their interest in the outcome of the trial. See generally 2 J. Wigmore, Evidence §§576, 579 (J. Chadbourn rev. 1979). The principal rationale for this rule was the possible untrustworthiness of a party’s testimony. Under the common law, the practice did develop of permitting criminal defendants to tell their side of the story, but they were limited to making an unsworn statement that could not be elicited through direct examination by counsel and was not subject to cross-examination. Id., at §579, p. 827.
This Court in Ferguson v. Georgia, 365 U. S. 570, 573-582 (1961), detailed the history of the transition from a rule of a defendant’s incompetency to a rule of competency. As the Court there recounted, it came to be recognized that permitting a defendant to testify advances both the “ ‘detection of guilt’” and “‘the protection of innocence,’” id., at 581, quoting 1 Am. L. Rev. 396 (1867), and by the end of the second half of the 19th century, all States except Georgia had enacted statutes that declared criminal defendants competent to testify. See 365 U. S., at 577 and n. 6, 596-598. Congress enacted a general competency statute in the Act of Mar. 16, 1878, 20 Stat. 30, as amended, 18 U. S. C. § 3481, and similar developments followed in other common-law countries. Thus, more than 25 years ago this Court was able to state:
“In sum, decades ago the considered consensus of the English-speaking world came to be that there was no rational justification for prohibiting the sworn testimony of the accused, who above all others may be in a position to meet the prosecution’s case.” Ferguson v. Georgia, 365 U. S., at 582.
The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that “are essential to due process of law in a fair adversary process.” Faretta v. California, 422 U. S. 806, 819, n. 15 (1975). The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony:
“A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.” (Emphasis added.) In re Oliver, 333 U. S. 257, 273 (1948).
See also Ferguson v. Georgia, 365 U. S., at 602 (Clark, J., concurring) (Fourteenth Amendment secures “right of a criminal defendant to choose between silence and testifying in his own behalf”).
The right to testify is also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call “witnesses in his favor,” a right that is guaranteed in the criminal courts of the States by the Fourteenth Amendment. Washington v. Texas, 388 U. S. 14, 17-19 (1967). Logically included in the accused’s right to call witnesses whose testimony is “material and favorable to his defense,” United States v. Valenzuela-Bernal, 458 U. S. 858, 867 (1982), is a right to testify himself, should he decide it is in his favor to do so. In fact, the most important witness for the defense in many criminal cases is the defendant himself. There is no justification today for a rule that denies an accused the opportunity to offer his own testimony. Like the truthfulness of other witnesses, the defendant’s veracity, which was the concern behind the original common-law rule, can be tested adequately by cross-examination. See generally Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 71, 119-120 (1974).
Moreover, in Faretta v. California, 422 U. S., at 819, the Court recognized that the Sixth Amendment
“grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be ‘informed of the nature and cause of the accusation,’ who must be ‘confronted with the witnesses against him,’ and who must be accorded ‘compulsory process for obtaining witnesses in his favor.’” (Emphasis added.)
Even more fundamental to a personal defense than the right of self-representation, which was found to be “necessarily implied by the structure of the Amendment,” ibid., is an accused’s right to present his own version of events in his own words. A defendant’s opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness.
The opportunity to testify is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony. In Harris v. New York, 401 U. S. 222, 230 (1971), the Court stated: “Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.” Id., at 225. Three of the dissenting Justices in that case agreed that the Fifth Amendment encompasses this right: “[The Fifth-Amendment’s privilege against self-incrimination] is fulfilled only when an accused is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’... The choice of whether to testify in one’s own defense... is an exercise of the constitutional privilege.” Id., at 230, quoting Malloy v. Hogan, 378 U. S. 1, 8 (1964). (Emphasis removed.)
Ill
The question now before the Court is whether a criminal defendant’s right to testify may be restricted by a state rule that excludes her posthypnosis testimony. This is not the first time this Court has faced a constitutional challenge to a state rule, designed to ensure trustworthy evidence, that interfered with the ability of a defendant to offer testimony. In Washington v. Texas, 388 U. S. 14 (1967), the Court was confronted with a state statute that prevented persons charged as principals, accomplices, or accessories in the same crime from being introduced as witnesses for one another. The statute, like the original common-law prohibition on testimony by the accused, was grounded in a concern for the reliability of evidence presented by an interested party:
“It was thought that if two'persons charged with the same crime were allowed to testify on behalf of each other, ‘each would try to swear the other out of the charge.’ This rule, as well as the other disqualifications for interest, rested on the unstated premises that the right to present witnesses was subordinate to the court’s interest in preventing perjury, and that erroneous decisions were best avoided by preventing the jury from hearing any testimony that might be perjured, even if it were the only testimony available on a crucial issue.” (Footnote omitted.) Id., at 21, quoting Benson v. United States, 146 U. S. 325, 335 (1892).
As the Court recognized, the incompetency of a codefendant to testify had been rejected on nonconstitutional grounds in 1918, when the Court, refusing to be bound by “the dead hand of the common-law rule of 1789,” stated:
“ ‘[T]he conviction of our time [is] that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court....’” 388 U. S., at 22, quoting Rosen v. United States, 245 U. S. 467, 471 (1918).
The Court concluded that this reasoning was compelled by the Sixth Amendment’s protections for the accused. In particular, the Court reasoned that the Sixth Amendment was designed in part “to make the testimony of a defendant’s witnesses admissible on his behalf in court.” 388 U. S., at 22.
With the rationale for the common-law incompetency rule thus rejected on constitutional grounds, the Court found that the mere presence of the witness in the courtroom was not enough to satisfy the Constitution’s Compulsory Process Clause. By preventing the defendant from having the benefit of his accomplice’s testimony, “the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.” (Emphasis added.) Id., at 23.
Just as a State may not apply an arbitrary rule of competence to exclude a material defense witness from taking the stand, it also may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony. In Chambers v. Mississippi, 410 U. S. 284 (1973), the Court invalidated a State’s hearsay rule on the ground that it abridged the defendant’s right to “present witnesses in his own defense.” Id., at 302. Chambers was tried for a murder to which another person repeatedly had confessed in the presence of acquaintances. The State’s hearsay rule, coupled with a “voucher” rule that did not allow the defendant to cross-examine the confessed murderer directly, prevented Chambers from introducing testimony concerning these confessions, which were critical to his defense. This Court reversed the judgment of conviction, holding that when a state rule of evidence conflicts with the right to present witnesses, the rule may “not be applied mechanistically to defeat the ends of justice,” but must meet the fundamental standards of due process. Ibid. In the Court’s view, the State in Chambers did not demonstrate that the hearsay testimony in that case, which bore “assurances of trustworthiness” including corroboration by other evidence, would be unreliable, and thus the defendant should have been able to introduce the exculpatory testimony. Ibid.
Of course, the right to present relevant testimony is not without limitation. The right “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Id., at 295. But restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve. In applying its evidentiary rules a State must evaluate whether the interests served by a rule justify the limitation imposed on the defendant’s constitutional right to testify.
IV
The Arkansas rule enunciated by the state courts does not allow a trial court to consider whether posthypnosis testimony may be admissible in a particular case; it is a per se rule prohibiting the admission at trial of any defendant’s hypnotically refreshed testimony on the ground that such testimony is always unreliable. Thus, in Arkansas, an accused’s testimony is limited to matters that he or she can prove were remembered before hypnosis. This rule operates to the detriment of any defendant who undergoes hypnosis, without regard to the reasons for it, the circumstances under which it took place, or any independent verification of the information it produced.
In this case, the application of that rule had a significant adverse effect on petitioner’s ability to testify. It virtually prevented her from describing any of the events that occurred on the day of the shooting, despite corroboration of many of those events by other witnesses. Even more importantly, under the court’s rule petitioner was not permitted to describe the actual shooting except in the words contained in Doctor Back’s notes. The expert’s description of the gun’s tendency to misfire would have taken on greater significance if the jury had heard petitioner testify that she did not have her finger on the trigger and that the gun went off when her husband hit her arm.
In establishing its per se rule, the Arkansas Supreme Court simply followed the approach taken by a number of States that have decided that hypnotically enhanced testimony should be excluded at trial on the ground that it tends to be unreliable. Other States that have adopted an exclusionary rule, however, have done so for the testimony of witnesses, not for the testimony of a defendant. The Arkansas Supreme Court failed to perform the constitutional analysis that is necessary when a defendant’s right to testify is at stake.
Although the Arkansas court concluded that any testimony that cannot be proved to be the product of prehypnosis memory is unreliable, many courts have eschewed a per se rule and permit the admission of hypnotically refreshed testimony. Hypnosis by trained physicians or psychologists has been recognized as a valid therapeutic technique since 1958, although there is no generally accepted theory to explain the phenomenon, or even a consensus on a single definition of hypnosis. See Council on Scientific Affairs, Scientific Status of Refreshing Recollection by the Use of Hypnosis, 253 J. A. M. A. 1918, 1918-1919 (1985) (Council Report). The use of hypnosis in criminal investigations, however, is controversial, and the current medical and legal view of its appropriate role is unsettled.
Responses of individuals to hypnosis vary greatly. The popular belief that hypnosis guarantees the accuracy of recall is as yet without established foundation and, in fact, hypnosis often has no effect at all on memory. The most common response to hypnosis, however, appears to be an increase in both correct and incorrect recollections. Three general characteristics of hypnosis may lead to the introduction of inaccurate memories: the subject becomes “suggestible” and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to “confabulate,” that is, to fill in details from the imagination in order to make an answer more coherent and complete; and, the subject experiences “memory hardening,” which gives him great confidence in both true and false memories, making effective cross-examination more difficult. See generally M. Orne et al., Hypnotically Induced Testimony, in Eyewitness Testimony: Psychological Perspectives 171 (G. Wells & E. Loftus, eds., 1984); Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif. L. Rev. 313, 333-342 (1980). Despite the unreliability that hypnosis concededly may introduce, however, the procedure has been credited as instrumental in obtaining investigative leads or identifications that were later confirmed by independent evidence. See, e. g., People v. Hughes, 59 N. Y. 2d 523, 533, 453 N. E. 2d 484, 488 (1983); see generally R. Udolf, Forensic Hypnosis 11-16 (1983).
The inaccuracies the process introduces can be reduced, although perhaps not eliminated, by the use of procedural safeguards. One set of suggested guidelines calls for hypnosis to be performed only by a psychologist or psychiatrist with special training in its use and who is independent of the investigation. See Orne, The Use and Misuse of Hypnosis in Court, 27 Int’l J. Clinical and Experimental Hypnosis 311, 335-336 (1979). These procedures reduce the possibility that biases will be communicated to the hypersuggestive subject by the hypnotist. Suggestion will be less likely also if the hypnosis is conducted in a neutral setting with no one present but the hypnotist and the subject. Tape or video recording of all interrogations, before, during, and after hypnosis, can help reveal if leading questions were asked. Id., at 336. Such guidelines do not guarantee the accuracy of the testimony, because they cannot control the subject’s own motivations or any tendency to confabulate, but they do provide a means of controlling overt suggestions.
The more traditional means of assessing accuracy of testimony also remain applicable in the case of a previously hypnotized defendant. Certain information recalled as a result of hypnosis may be verified as highly accurate by corroborating evidence. Cross-examination, even in the face of a confident defendant, is an effective tool for revealing inconsistencies. Moreover, a jury can be educated to the risks of hypnosis through expert testimony and cautionary instructions. Indeed, it is probably to a defendant’s advantage to establish carefully the extent of his memory prior to hypnosis, in order to minimize the decrease in credibility the procedure might introduce.
We are not now prepared to endorse without qualifications the use of hypnosis as an investigative tool; scientific understanding of the phenomenon and of the means to control the effects of hypnosis is still in its infancy. Arkansas, however, has not justified the exclusion of all of a defendant’s testimony that the defendant is unable to prove to be the product of prehypnosis memory. A State’s legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case. Wholesale inadmissibility of a defendant’s testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all post-hypnosis recollections. The State would be well within its powers if it established guidelines to aid trial courts in the evaluation of posthypnosis testimony and it may be able to show that testimony in a particular case is so unreliable that exclusion is justified. But it has not shown that hypnotically enhanced testimony is always so untrustworthy and so immune to the traditional means of evaluating credibility that it should disable a defendant from presenting her version of the events for which she is on trial.
In this case, the defective condition of the gun corroborated the details petitioner remembered about the shooting. The tape recordings provided some means to evaluate the hypnosis and the trial judge concluded that Doctor Back did not suggest responses with leading questions. See n. 3, supra. Those circumstances present an argument for admissibility of petitioner’s testimony in this particular case, an argument that must be considered by the trial court. Arkansas’ per se rule excluding all posthypnosis testimony infringes impermissibly on the right of a defendant to testify on his own behalf.
The judgment of the Supreme Court of Arkansas is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
It is so ordered.
Another officer reported a slightly different version of the events:
“She stated that she had told her husband that she was going to go outside. He refused to let her leave and grabbed her by the throat and began choking her. They struggled for a moment and she grabbed a gun. She told him to leave her alone and he hit her at which time the gun went off. She stated that it was an accident and she didn’t mean to shoot him. She said she had to get to the hospital and talk to him.” Tr. 388.
See also id., at 301-304, 337-338; App. 3-10.
Doctor Back’s handwritten notes regarding petitioner’s memory of the day of the shooting read as follows:
“Pt states she & husb. were discussing moving out to a trailer she had prev. owned. He was ‘set on’ moving out to the trailer — she felt they should discuss. She becfame] upset & went to another room to lay down. Bro. came & left. She came out to eat some of the pizza, he wouldn’t allow her to have any. She said she would go out and get [something] to eat he wouldn’t allow her — He pushed her against a wall an end table in the corner [with] a gun on it. They were the night watchmen for business that sets behind them. She picked gun up stated she didn’t want him hitting her anymore. He wouldn’t let her out door, slammed door & ‘gun went off & he fell & he died’ [pt looked misty eyed here — near tears]” (additions by Doctor Back). App. 40.
The full pretrial order reads as follows:
“NOW on this 26th day of November, 1984, comes on the captioned matter for pre-trial hearing, and the Court finds:
“1. On September 27 and 28,1984, Defendant was placed under hypnotic trance by Dr. Bettye Back, PhD, Fayetteville, Arkansas, for the express purpose of enhancing her memory of the events of July 2, 1983, involving the death of Frank Rock.
“2. Dr. Back was professionally qualified to administer hypnosis. She was objective in the application of the technique and did not suggest by leading questions the responses expected to be made by Defendant. She was employed on an independent, professional basis. She made written notes of facts related to her by Defendant during the pre-hypnotic interview. She did employ post-hypnotic suggestion with Defendant. No one else was present during any phase of the hypnosis sessions except Dr. Back and Defendant.
“3. Defendant cannot be prevented by the Court from testifying at her trial on criminal charges under the Arkansas Constitution, but testimony of matters recalled by Defendant due to hypnosis will be excluded because of inherent unreliability and the effect of hypnosis in eliminating any meaningful cross-examination on those matters. Defendant may testify to matters remembered and stated to the examiner prior to being placed under hypnosis. Testimony resulting from post-hypnotic suggestion will be excluded.” App. to Pet. for Cert. xvii.
When petitioner began to testify, she was repeatedly interrupted by the prosecutor, who objected that her statements fell outside the scope of the pretrial order. Each time she attempted to describe an event on the day of the shooting, she was unable to proceed for more than a few words before her testimony was ruled inadmissible. For example, she was unable to testify without objection about her husband’s activities on the morning of the shooting, App. 11, about their discussion and disagreement concerning the move to her trailer, id., at 12, 14, about her husband’s and his brother’s replacing the shock absorbers on a van, id., at 16, and about her brother-in-law’s return to eat pizza, id., at 19-20. She then made a proffer, outside the hearing of the jury, of testimony about the fight in an attempt to show that she could adhere to the court’s order. The prosecution objected to every detail not expressly described in Doctor Back’s notes or in the testimony the doctor gave at the pretrial hearing. Id., at 32-35. The court agreed with the prosecutor’s statement that “ninety-nine percent of everything [petitioner] testified to in the proffer” was inadmissible. Id., at 35.
The removal of the disqualifications for accused persons occurred later than the establishment of the competence to testify of civil parties. 2 J. Wigmore, Evidence § 579, p. 826 (J. Chadbourn rev. 1979). This was not due to concern that criminal defendants were more likely to be unreliable than other witnesses, but to a concern for the accused:
“If, being competent, he failed to testify, that (it was believed) would damage his cause more seriously than if he were able to claim that his silence were enforced by law. Moreover, if he did testify, that (it was believed) would injure more than assist his cause, since by undergoing the ordeal of cross-examination, he would appear at a disadvantage dangerous even to an innocent man.” Id., at 828.
The Arkansas Constitution guarantees an accused the right “to be heard by himself and his counsel.” Art. 2, § 10. Rule 601 of the Arkansas Rules of Evidence provides a general rule of competency: “Every person is competent to be a witness except as otherwise provided in these rules.”
Ferguson v. Georgia struck down as unconstitutional under the Fourteenth Amendment a Georgia statute that limited a defendant’s presentation at trial to an unsworn statement, insofar as it denied the accused “the right to have his counsel question him to elicit his statement.” 365 U. S., at 596. The Court declined to reach the question of a defendant’s constitutional right to testify, because the case did not involve a challenge to the particular Georgia statute that rendered a defendant incompetent to testify. Id., at 572, n. 1. Two Justices, however, urged that such a right be recognized explicitly. Id., at 600-601, 602 (concurring opinions).
Before Ferguson v. Georgia, it might have been argued that a defendant’s ability to present an unsworn statement would satisfy this right. Once that procedure was eliminated, however, there was no longer any doubt that the right to be heard, which is so essential to due process in an adversary system of adjudication, could be vindicated only by affording a defendant an opportunity to testify before the factfinder.
This right reaches beyond the criminal trial: the procedural due process constitutionally required in some extrajudicial proceedings includes the right of the affected person to testify. See, e. g., Gagnon v. Scarpelli, 411 U. S. 778, 782, 786 (1973) (probation revocation); Morrissey v. Brewer, 408 U. S. 471, 489 (1972) (parole revocation); Goldberg v. Kelly, 397 U. S. 254, 269 (1970) (termination of welfare benefits).
On numerous occasions the Court has proceeded on the premise that the right to testify on one’s own behalf in defense to a criminal charge is a fundamental constitutional right. See, e. g., Nix v. Whiteside, 475 U. S. 157, 164 (1986); id., at 186, n. 5 (Blackmun, J., concurring in judgment); Jones v. Barnes, 463 U. S. 745, 751 (1983) (defendant has the “ultimate authority to make certain fundamental decisions regarding the case, as to whether to... testify in his or her own behalf”); Brooks v. Tennessee, 406 U. S. 605, 612 (1972) (“Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right”).
Numerous state procedural and evidentiary rules control the presentation of evidence and do not offend the defendant’s right to testify. See, e. g., Chambers v. Mississippi, 410 U. S., at 302 (“In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence”); Washington v. Texas, 388 U. S. 14, 23, n. 21 (1967) (opinion should not be construed as disapproving testimonial privileges or nonarbitrary rules that disqualify those incapable of observing events due to mental infirmity or infancy from being witnesses).
The rule leaves a trial judge no discretion to admit this testimony, even if the judge is persuaded of its reliability by testimony at a pretrial hearing. Tr. of Oral Arg. 36 (statement of the Attorney General of Arkansas).
The Arkansas Supreme Court took the position that petitioner was fully responsible for any prejudice that resulted from the restriction on her testimony because it was she who chose to resort to the technique of hypnosis. 288 Ark. 566, 580, 708 S. W. 2d 78, 86 (1986). The prosecution and the trial court each expressed a similar view and the theme was renewed repeatedly at trial as a justification for limiting petitioner’s testimony. See App. 15, 20, 21-22, 24, 36. It should be noted, however, that Arkansas had given no previous indication that it looked with disfavor on the use of hypnosis to assist in the preparation for trial and there were no previous state-court rulings on the issue.
See, e. g., Contreras v. State, 718 P. 2d 129 (Alaska 1986); State ex rel. Collins v. Superior Court, County of Maricopa, 132 Ariz. 180, 207-208, 644 P. 2d 1266, 1293-1294 (1982); People v. Quintanar, 659 P. 2d 710, 711 (Colo. App. 1982); State v. Davis, 490 A. 2d 601 (Del. Super. 1985); Bundy v. State, 471 So. 2d 9, 18-19 (Fla. 1985), cert. denied, 479 U. S. 894 (1986); State v. Moreno, 68 Haw. 233, 709 P. 2d 103 (1985); State v. Haislip, 237 Kan. 461, 482, 701 P. 2d 909, 925-926, cert. denied, 474 U. S. 1022 (1985); State v. Collins, 296 Md. 670, 464 A. 2d 1028 (1983); Commonwealth v. Kater, 388 Mass. 519, 447 N. E. 2d 1190 (1983); People v. Gonzales, 415 Mich. 615, 329 N. W. 2d 743 (1982), opinion added to, 417 Mich. 1129, 336 N. W. 2d 751 (1983); Alsbach v. Bader, 700 S. W. 2d 823 (Mo. 1985); State v. Palmer, 210 Neb. 206, 218, 313 N. W. 2d 648, 655 (1981); People v. Hughes, 59 N. Y. 2d 523, 453 N. E. 2d 484 (1983); Robison v. State, 677 P. 2d 1080, 1085 (Okla. Crim. App.), cert. denied, 467 U. S. 1246 (1984); Commonwealth v. Nazarovitch, 496 Pa. 97, 110, 436 A. 2d 170, 177 (1981); State v. Martin, 101 Wash. 2
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
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, Plaintiff-Appellee, v. Robert Paul NEMETH, Defendant-Appellant.
No. 20024.
United States Court of Appeals, Sixth Circuit.
Aug. 18, 1970.
Charles E. Peyton (Court Appointed) Louisville, Ky., for appellant on brief.
John L. Smith, U. S. Atty., Louisville, Ky., for appellee on brief.
Before WEICK, CELEBREZZE and PECK, Circuit Judges.
PER CURIAM.
Appellant was observed by two Louisville police officers outside a Louisville bank at 2:15 a. m. on February 10, 1969. The officers testified that as they approached appellant he was standing beside the bank’s night deposit box and that as soon as he saw them, he made a motion as though he were throwing something away and began walking rapidly away from the bank. After questioning appellant about his actions and his reason for being in the area at that time of night and receiving vague and unsatisfactory answers, the police arrested appellant on loitering and disorderly conduct charges. Subsequent investigation at the bank disclosed that $750' was missing from the night deposit box, and an envelope scoop device bearing appellant’s fingerprint was found inside the night deposit box. Appellant was then indicted, tried and convicted by a jury of violation of 18 U.S.C. § 2113(b), larceny of a federally insured bank. This appeal followed.
Appellant did not take the witness stand or offer any evidence in his defense at the trial. The government’s case against him consisted principally of the circumstances of his arrest, of the fact that $750 was missing from the bank’s night deposit box, and of the fact that appellant’s fingerprint was on the envelope device found inside the night deposit box. The government’s final witness was an FBI agent who, after testifying that he was familiar with the method of committing larceny of bank night deposit boxes by the use of wires and envelope scoop devices, testified that appellant had a prior conviction of the same offense with which he was charged in this case. All of the pertinent testimony on this point is contained in the following:
“Q. [By the U. S. Att’y.] Mr. Doma-lewski, [FBI Agent] are you familiar with the defendant, Robert Paul Nemeth?
“A. Yes, I am.
“Q. And how long have you been familiar with him, sir?
“A. I have had knowledge of Robert Paul Nemeth for approximately five years.
“Q. And in what way?
“A. Mr. Nemeth was first brought to my attention in connection with activity of which I had an interest.
“Q. All right; has he been convicted before ?
“Mr. Peyton: [Defense Counsel] Objection, Your Honor.
“By the Court: Overruled.
“Mr. Peyton: Move that the jury be discharged.
“By the Court: Overruled. I will give the jury an admonition at the right time.
“Q. Has Mr. Nemeth been convicted under the same statute before, using that same kind of device?
“A. Yes, sir; he has.”
Although the trial judge immediately instructed the jury in substance that evidence of a prior conviction could not be considered as evidence of guilt of the offense charged, the testimony, and the manner in which it was presented, was so prejudicial that appellant’s conviction must be reversed and a new trial ordered.
The general rule is that evidence of prior criminal activity is inadmissible to prove the commission of a later offense. The only exceptions to that rule are that when intent, motive or lack of mistake are in issue, evidence of prior similar and related offenses tending to show a consistent pattern of conduct is admissible if accompanied by appropriate cautionary instructions. E. g., Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919 (1949); Gilstrap v. United States, 389 F.2d 6, 9-10 (5th Cir. 1968); Zamora v. United States, 369 F.2d 855, 858-859 (10th Cir. 1966), cert. denied, 386 U.S. 913, 87 S.Ct. 863, 17 L.Ed.2d 785 (1967); United States v. Kirkpatrick, 361 F.2d 866, 868 (6th Cir. 1966); Kowalchuk v. United States, 176 F.2d 873, 878 (6th Cir. 1949). Furthermore, in order to show a consistent pattern of conduct relating to the offense charged, the evidence must be of prior similar acts reasonably near in time to the offense charged. Gilstrap v. United States, supra; Whaley v. United States, 324 F.2d 356, 358 (9th Cir. 1963), cert. denied, 376 U.S. 911, 84 S.Ct. 665, 11 L.Ed.2d 609 (1964).
Here there was no showing where or by what means the appellant committed the prior act, nor was it shown to be related in point of time or otherwise to the offense charged. From all that appears in this testimony, appellant had one prior conviction for the same offense. Presumably this was within the five year period prior to his trial in this case, although even this is not clear. If such is an accurate reflection of the record, even proper evidence of facts concerning a prior offense would be inadmissible as too remote in time. Finally, the manner in which the evidence was presented to the jury was particularly objectionable since the only thing stressed in the instruction to the jury was the agent’s hearsay statement that appellant had a prior conviction of the same offense. Evidence of this fact even if properly documented, would clearly be inadmissible where the defendant does not testify and his character is not otherwise in issue. Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892); United States v. Rudolph, 403 F.2d 805, 807 (6th Cir. 1968).
Since the substance and the pres-. entation of the evidence here was clearly inadmissible and prejudicial, the trial judge’s cautionary instruction immediately following the agent’s testimony cannot be held to have cured the error. As stated above, properly authenticated evidence of prior offenses is admissible only if accompanied by appropriate instructions.' However, otherwise proper cautionary instructions cannot supply the first element of the exceptions to the general rule, i. e., authenticated evidence of prior similar offenses tending to show a consistent pattern of conduct.
The remaining issues raised by appellant are either without merit or consideration of them is unnecessary in light of the disposition of this ease.
The judgment of the District Court is reversed and the case is remanded with instructions to grant the appellant a new trial.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_r_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.
Gladys G. HOLLOWAY et al., Appellants, v. BRISTOL-MYERS CORPORATION.
No. 71-1479.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 20, 1972.
Decided July 26, 1973.
Rehearing Denied Nov. 7, 1973.
Karen W. Ferguson, Chicago, Ill., for appellants.
Gilbert H. Weil, New York City, with whom William G. Greif, Washington, D. C., was on the brief, for appellee.
Before LEVENTHAL, ROBINSON and ROBB, Circuit Judges.
LEVENTHAL, Circuit Judge:
The central ruling in this case holds that private actions to vindicate rights asserted under the Federal Trade Commission Act may not be maintained.
Claiming to represent the interests of the consuming public and advertising audience, the appellants brought this class action against Bristol-Myers Corporation, the manufacturer of Excedrin, a widely sold non-prescription analgesic compound. They allege in essence that Bristol-Myers’ representations in a variety of advertisements — that Excedrin is and has been shown to be a more effective pain relieving agent than common aspirin — are false, deceptive and materially misleading; and that, in reliance upon them, persons have been and will be induced to purchase Excedrin in preference to other, equally effective and less expensive analgesics, to their pecuniary loss.
The complaint was grounded on three basic theories: a statutory action based on sections 5, 12 and 14 of the Federal Trade Commission Act (hereafter “Act”), as amended, 15 U.S.C. §§ 45, 52 and 54; a common law action for deceit; and an equitable claim that appellee’s advertisements constitute a public nuisance. Appellants sought declaratory and injunctive relief, together with damages, both compensatory and punitive.
The District Court dismissed appellants’ statutory and equitable claims for failure to state a claim upon which relief could be granted and their common law claims for want of jurisdictional amount. We affirm.
A. Broad Overview of the Issue of Private Actions to Enforce the Federal Trade Commission Act
The central question is whether consumers and members of the public at large may bring a private action to enforce §§ 5, 12 and 14 of the Act, as amended, which prohibit “unfair or deceptive acts or practices in commerce” (§ 5(a)), including “any false advertisement... which is likely to induce, directly or indirectly the purchase of. drugs” (§ 12(a)(1)), violations of which are misdemeanors if made “with intent to defraud or mislead” (§ 14(a)). The issue has been much discussed by scholars. We join in the analysis of the well-reasoned opinion of Judge Jones, that an action of this nature may not be maintained Holloway v. Bristol-Myers Corp., 327 F.Supp. 17 (D.D.C., 1971). We add our opinion primarily to enlarge on the well-nigh dispositive history and structure of the legislation, and in part to amplify and redefine the core analysis.
The Act nowhere purports to confer upon private individuals, either consumers or business competitors, a right of action to enjoin the practices prohibited by the Act or to obtain damages following the commission of such acts. On careful examination of the Act and its legislative history, both when passed in 1914 and amended in 1938, we find strong indication that Congress did not contemplate or intend such a private right of action.
Appellants contend that the courts should, by implication of law, recognize and entertain such an action as a necessary adjunct to the enforcement of the statute’s prohibitions.
Appellants point to numerous instances in which civil remedies have been implied as judicially-fashioned corollaries to various Federal regulatory statutes. The opinion of Judge Jones analyzes a number of these precedents, including particularly the leading case of J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). In broad outline, the rationale for implying a private right of action rests upon: (1) a Federal statutory or constitutional prohibition against the acts complained of; (2) inclusion of the defendant in the class upon which the duty of statutory compliance has been imposed; (3) legislative intent to place the party claiming injury within the ambit of the statute’s protection or to confer a substantive benefit or immunity upon him; (4) injury or threatened harm proximately resulting from the defendant’s breach of duty; and (5) unavailability or ineffectiveness of alternative avenues of redress.
These factors are necessary but not sufficient conditions, and their combined presence does not automatically warrant the implication of a private right of action. The core of our decision rejecting implication of a private action lies in our analysis of the ramifications of the asserted private remedy and a comparison of these with the policies and objectives sought to be advanced by Congress. This analysis is conjoined with a further discussion of factors (3) and (5), legislative intent and ineffectiveness of the means provided by Congress for effectuating its objective.
Judicial implication of ancillary Federal remedies is a matter to be treated with care, lest a carefully erected legislative scheme — often the result of a delicate balance of Federal and state, public and private interests — be skewed by the courts, albeit inadvertently. This caution is especially apposite in situations where, as here, the substantive prohibitions of the statute are inextricably intertwined with provisions defining the powers and duties of a specialized administrative body charged with its enforcement and where Congress has superimposed a structure of Federal law upon the existing system of common law remedies for fraud and deceit without preempting or superseding the latter.
B. The 1914 Statute
The Federal Trade Commission was created in 1914 as part of a two-pronged effort by Congress to improve enforcement of the anti-trust laws. One branch of this program consisted of specifically prohibiting certain types of conduct — i. e.: price discrimination, price fixing, exclusive dealing, anti-competitive mergers and acquisitions, and interlocking directorates — that tended to encourage the formation of monopolies. These detailed prohibitions were set forth in the Clayton Act, 15 U.S.C. §§ 12-27, which became law on October 15, 1914. In this area, Congress provided a maximum of enforcement authority: criminal penalties, see 15 U.S.C. § 24; actions brought by the Justice Department to enjoin violations, see 15 U.S.C. § 25; authorization to the FTC and certain other agencies to issue cease and desist orders to restrain violations by enterprises subject to their respective jurisdictions, see 15 U.S.C. § 21. In addition, the Clayton Act expressly authorized private actions, both for treble damages and equitable relief, by any “person who shall be injured in'his business or property by reason of anything forbidden in the antitrust laws,” 15 U. S.C. §§ 15, 26, and provided that judgments obtained by the United States against the same defendant shall be prima facie evidence of a statutory violation in any subsequent private litigation, see 15 U.S.C. § 16.
Congress recognized, however, that any attempt at an exhaustive catalogue of anti-competitive practices would only tempt those bent upon thwarting or cireumventing the anti-trust laws to adopt new and different artifices to achieve the same ends. The legislature felt, moreover, that there was need for action of an early, preventive nature, to strike down devices and schemes in their incipieney, before they became entrenched in structure and industrial concentration. These factors suggested a statute whose prohibitions were couched in broad, generic terms, permitting application in a wide variety of commercial contexts and coping with evasive tactics. Yet this breadth of prohibition carried with it a danger that the statute might become a source of vexatious litigation. Expertise was called for, both to identify trade practices that posed the threat of monopoly and to avoid using the statute as a vehicle for trivial or frivolous claims. There was, furthermore, a need to develop a central and coherent body of precedent, construing and applying the statute in a wide range of factual contexts, so as to define its operative reach. Finally, it would be of assistance to create a specialized forum where businessmen whose methods had been called into question could voluntarily revise their practices without the need to resort to the courts. It was in response to these needs that, on September 26, 1914,.Congress passed the Federal Trade Commission Act and established the Federal Trade Commission.
As enacted in 1914, section 5(a) of this Act provided:
Unfair methods of competition in commerce are hereby declared unlawful.
The [Federal Trade] Commission is hereby empowered and directed to prevent persons, partnerships, or corporations... from using unfair methods of competition in commerce.
These two paragraphs follow immediately upon one another, both in the same enumerated subsection. The Act continued, § 5(b):
Whenever the Commission shall have reason to believe that any such person, partnership, or corporation has been or is using any unfair methods of competition in commerce, and if it shall appear to the Commission that a proceeding by it in respect thereof would be in the interest of the public, it shall serve upon such person, partnership, or corporation a complaint.... (emphasis supplied)
The statute went on to detail a procedure whereby the FTC, following notice and hearing, might enter an order directing the respondent to cease and desist from the practice complained of and was empowered to seek enforcement of its order in an appropriate Court of Appeals.
Although the Federal Trade Commission Act and the Clayton Act were coordinate statutes, both furthering the same general objective of avoiding monopoly and concentrations, different means of implementation were selected by Congress, each uniquely geared to the substantive prohibitions of the respective acts. The focus of the Trade Commission Act was a highly specialized administrative body to which Congress delegated a wide range of visitorial powers in the field of potentially anti-eompetitive trade practices. Whereas the Clayton Act, with its relatively specific prohibitions, was accompanied by a broad range of enforcement devices, including private actions, the Federal Trade Commission Act, with its broadly framed proscription, was intended to be the exclusive domain of the specialized agency expressly charged with its enforcement and created for that purpose. The Commission was entrusted with a broad responsibility and discretion, prosecutorial in part, judicial in part (to enter orders of restraint), linked and subject to a determination that cease and desist proceedings and orders would further the public interest. As the Supreme Court declared: “Section 5... does not provide private persons with an administrative remedy for private wrongs.” Private persons were given no right to file a complaint, and the only participation by private interests that was contemplated was that of intervention, on leave and a showing of good cause, as set forth in § 5(b):
Any person, partnership, or corporation may make application, and upon good cause shown may be allowed by the Commission, to intervene and appear in [a cease and desist] proceeding by counsel or in person.
Finally, in 1926 the Court gave short shrift to the effort of a private party to append a claim of “unfair methods of competition” under § 5 to an anti-trust complaint, and held that such relief “must be afforded in the first instance by the [Commission.” Moore v. New York Cotton Exchange.
C. The Wheeler-Lea Amendments of 1938
We now consider whether the 1914 preclusion of private actions was altered by subsequent amendments to the Act.
In the course of enforcing the 1914 Act, the FTC became aware that deceptive advertising posed a substantial threat to free competition, by diverting trade to those who used such methods in the hope of securing a trade monopoly. The Commission began several proceedings and issued cease and desist orders, upheld in a series of notable decisions, that false labeling and dishonest merchandising and advertising techniques constituted “unfair methods of competition in commerce” within the meaning of § 5
However, an impediment to FTC jurisdiction and enforcement arose in the form of a judicial decision interpreting “methods of competition” to require that the FTC demonstrate the fact of injury to a competitor as a condition to section 5 proceedings. FTC v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587, 75 L.Ed. 1324 (1931). Not only did this complicate problems of proof and increase the cost of proceedings, but it reportedly served to stifle enforcement of the Act in industries where competition was virtually non-existent or where all members of the trade used equally reprehensible selling tactics. Accordingly, the Commission sought amendatory legislation making clear the FTC’s authority to pursue deceptive acts without the need to show adverse competitive impact. These recommendations were embodied in bills introduced in the 74th and 75th Congresses to add to section 5 an express and unqualified prohibition against “unfair or deceptive acts or practices in commerce.”
During the same period of the 1930s, Congress was engaged in a comprehensive revision of the Food and Drug laws. In addition to seeking stricter control over the sale of adulterated and misbranded products intended for human consumption, sponsors of this reform legislation, led by Senator Royall S. Copeland of New York, sought to bring all advertising of food, drugs and cosmetics within the purview of the Food and Drug Administration. Legislation was proposed making the dissemination of false advertising a misdemean- or and declaring it a public nuisance, subject to restraint by District Court injunction. These potent measures were opposed by Members of Congress, particularly in the House, and by representatives of the affected industries, who considered a standard or per se liability inappropriate for advertising claims as to which medical opinion might be divided, who favored retention of FTC jurisdiction in all fields of promotional activity, and who were mistrustful of any attempt to vest in the Food and Drug Administration and the Secretary of Agriculture broad, plenary authority to control the dissemination of advertising matter. There resulted a Congressional impasse that threatened to block the passage of any reform of the Food and Drug laws.
The deadlock was broken in the 75th Congress. In March 1937, the Senate passed first S. 5, to amend the Food and Drug Act so to provide FDA jurisdiction over food, drug, and cosmetic advertising, and later S. 1077, to provide the amendments to the Federal Trade Commission Act that the FTC had sought. Both bills were referred to the House Committee on Interstate and Foreign Commerce. As in prior Congresses, the House was unwilling to accede to the advertising controls embodied in the Senate food and drug bill. Instead of merely striking the offending provisions from S. 5, the House Committee took the further step of revising these paragraphs and engrafting them onto the Trade Commission Act amendments, thus placing in the hands of the FTC exclusive control over food, drug, and cosmetic advertising. This legislative amalgam, denominated the Wheeler-Lea Amendments to the Federal Trade Commission Act, passed the House in January 1938, was adopted by the Conference Committee, passed the Senate, and was signed into law by President Roosevelt on March 21, 1938. Thereafter, shorn of the one-time impediment of the controversial advertising provisions, the Food, Drug, and Cosmetic Act became law on June 25, 1938.
The resulting amendments to the Federal Trade Commission Act contain six provisions relating to advertising. The first of these embodied the general modification of § 5 which the FTC had sponsored in its effort to overrule the Raladam case. The remaining five provisions, dealing expressly with food, drug and cosmetic advertising, were transplanted from the Senate’s Food and Drug bill. Section 12 made unlawful the dissemination of false advertising for any food, drug, or cosmetic, and declared it an “unfair or deceptive act or practice” within the meaning of § 5. Supplemental means to enforce § 12 were provided. Section 13 gave the FTC authority to seek temporary injunctions to restrain violations of § 12 while cease and desist proceedings were pending. Under § 14 violations of § 12 that were willful or committed in connection with the sale of injurious products were made punishable as misdemeanors. Under § 5 (Í) the United States was authorized to recover a civil penalty from any defendant who violated a final FTC cease and desist order. But under § 16, these punitive measures were conditioned upon FTC certification to the Attorney General of probable liability. Finally, a definitional section, § 15, paralleled the definitions in the Food, Drug and Cosmetic Act.
The reasons why Congress chose the FTC Act, rather than the Food, Drug, and Cosmetic Act, as the vehicle for regulating the advertising of medicinal products are amply documented in the committee reports. The various alternative forms of regulation were the subject of extensive — and sometimes acrimonious — floor debate.
The Wheeler-Lea Amendments represented a shift in emphasis, from the control of deceptive advertising practices as an incident of antitrust regulation to the avowed purpose of protecting the consumer from fraud. But in moving to achieve this goal Congress deliberately chose to entrust the regulation of advertising to an existing body, the Federal Trade Commission, whose methods and procedures were familiar and well established. Although the Wheeler-Lea Amendments extended fhe Commission’s authority and added sanctions to its arsenal, Congress plainly intended these augmented powers to be exercised within the institutional matrix created by the 1914 Act. Indicative of this fundamental policy judgment are frequent references in the legislative history to the Trade Commission’s expertise in dealing with commercial practices, its ability to act as a buffer in securing voluntary compliance through informal proceedings, and its sound discretion in determining when formal enforcement measures were necessary Congress voiced approval of the Commission’s record in shaping the fluid contours of generalized statutory policy pronouncements into meaningful and coherent rules of business conduct, and it felt that the agency’s experience in making concrete the proscriptions of the 1914 Act against “unfair methods of competition” rendered the FTC particularly well suited to the responsibility of giving life to the broad standard of “deceptiveness” as applied to advertising. Until such an administrative refinement of definition could take place, Congress pointedly rejected any effort to hold business accountable to judicially imposed liability.
The 1938 action by Congress in amending the Federal Trade Commission Act was in a context where that Act had been interpreted by the Supreme Court in Moore v. New York Cotton Exchange to hold that actions under § 5 must be brought by the FTC and not by private parties. A thorough ventilation of consumer interests and needs accompanied the 1938 amendments. Congress turned its attention to section 5 in two impprtant respects, to overrule the Raladam precedent, and to incorporate the npw food, drug and cosmetic provisions into the “unfair or deceptive acts or practices” prohibition; but Congress made no move to alter the Moore interpretation that precluded private enforcement of § 5.
The conclusion is inescapable that Congress intended enforcement of the Wheeler-Lea Amendments to rest wholly and exclusively with the Federal Trade Commission, following the pattern laid down in the 1914 Act.
D. Judicial Latitude for Implication of Private Remedies
Appellants contend that the courts should look not to the form of the statute but to the social objectives sought to be furthered by it, and they argue that only through private rights of action can meaningful consumer protection against fraud and deceptive advertising be achieved. Similar contentions have been relied upon in other cases. But in the case at bar this court’s latitude for judicial constructs is limited. We are considering an Act in which ends and means, the social ends to be fostered and the administrative means of achieving those objectives, are inseparably interwoven into a unified and comprehensive statutory fabric. Both are the product of a legislative balance which took into account not only consumer protection but also interests of the businesses affected, with particular concern for tempered enforcement, the orderly development of commercial standards, and freedom from multiplicious litigation.
1. Problems of compatibility of public and private enforcement
We now consider various problems that might be presented to the public enforcement of the Act if private actions were given a full head of steam.
a. The Act gives the Commission a broad range of flexible enforcement powers available for use, as deemed necessary in the FTC’s sound discretion and expert judgment. Inherent in the exercise of this discretion is the interplay of numerous factors: the relative seriousness of the departure from accepted trade practices, its probable effect on the public welfare, the disruption to settled commercial relationships that enforcement proceedings would entail, whether action is to be taken against a single party or on an industry-wide basis, the form such action should take, the most appropriate remedy, the precedential value of the rule of law sought to be established, and a host of other considerations. Above all, there is need to weigh each action against the Commission’s broad range policy goals and to determine its place in the overall enforcement program of the FTC.
Private litigants are not subject to the same constraints. They may institute piecemeal lawsuits, reflecting disparate concerns and not a coordinated enforcement program. The consequence would burden not only the defendants selected but also the judicial system. It was to avoid such possibilities of lack of coherence that Congress focused on the FTC as an exclusive enforcement authority.
b. The enforcement scheme embodied in the Federal Trade Commission Act, stresses the Commission’s role in providing certainty and specificity to the board proscriptions of the Act. The FTC, as a quasi-judicial tribunal, has the ability to provide for the centralized and orderly development of precedent applying the regulatory statute to a diversity of fact situations. The FTC is also available to act in an advisory capacity to those who are anxious to comply with the terms of the Act. This benefits not only advertisers, through certainty as to the applicable standard of conduct, but also consumers, by serving as a firm legal springboard for future FTC enforcement actions. These advantages would be endangered if thus central administrative tribunal were replaced by the various Federal courts invoked by private parties, even assuming that procedural devices for the control of class actions and the consolidation of multi-district litigation, plus the broad application of principles of collateral estoppel, might alleviate the extremes of inconsistency and multiplicity.
c. In its 1938 selection of the FTC as the appropriate body to prevent deceptive advertising, Congress contemplated use of that agency’s proven capability of resolving trade practice controversies without the need to resort to litigation, and its procedural machinery to encourage voluntary compliance. The courts, on the other hand, have at their disposal only relatively rudimentary devices to promote settlements. More important, they lack the expertise and knowledge of business practices needed to evaluate whether any settlement by the parties is in furtherance of the broad public interest that is the foundation of the Act.
d. While the FTC’s special expertise may not be raised as a barrier inhibiting the kind of judicial review of agency action that Congress prescribed and contemplated, it does and should inhibit the notion that a court may be injected into the pertinent subject-matter directly, without the benefit of FTC consideration. The Commission has developed a fund of knowledge as to the probable impact upon purchasers of particular advertising representations, and in recent years has been active in the evolution of new and innovative remedies to correct false advertising and to undo the effects of deceptive trade practices. These reflect the FTC’s familiarity with advertising and merchandising techniques, and their effective use is furthered by the FTC’s continuing involvement in both evolving and policing remedies.
c. Perhaps some of these disadvantages could be remedied in part by FTC intervention in private proceedings, or through judicial use of the “supple” doctrine of primary jurisdiction. But this could not retain the FTC’s ability to control matters to be litigated in accordance with its priorities, to select its enforcement goals, and to husband its administrative and manpower resources. The effect of requiring the Commission to intervene whenever it felt that a private litigant might stray from its policies, impair its precedents, or disadvantageous^ compromise meritorious litigation makes it part hostage to private concerns, part competitor (in a race to the courthouse), and risks not only its resources but the extent of its contribution to the public interest.
2. The asserted need for a damages remedy
We turn to appellants’ contention that, because the FTC has no power to award damages to those victimized by false advertising, the courts must make compensatory damages recoverable in private actions. In general, or at least in many instances, the purpose and objective of Federal statutory prohibitions are likely to be furthered by judicial implication of compensatory remedies. But this generality is overridden as to the problem before us by the plain choice of Congress. This Act does not purport to affect a consumer’s right to obtain damages in a common law action sounding in fraud or deceit, or in any expansion of that action that may evolve in common law jurisprudence. As for an action based on the Trade Commission Act, we are controlled by the Congressional purpose that this should not serve as a vehicle for redressing essentially private grievances. Realistically, any action to recover the excess price ascribable to unfounded claims is likely to involve small sums per consumer, and to be significant more as a deterrent than as a compensatory mechanism. But in 1938 Congress considered matters of deterrence and rejected several proposals for potent alternatives, e. g., liability of advertisers on a per se basis for civil penalties in all cases of misleading representations. The 1938 amendments relied instead on the FTC’s cease and desist procedures, and their provision of opportunity for voluntary compliance and informal administrative conflict resolution. We are controlled by the balance struck by Congress.
3. The claimed ineffectiveness of the Commission
Appellants urge that, because of insufficient staff and competing demands in other spheres of its jurisdiction, the Commission is simply unable to provide effective enforcement in the field of false advertising. In this connection, they point to the fact that the Commission began an investigation of non-prescription pain relievers in the 1950’s; that in 1961 complaints were filed against the appellee herein and other manufacturers, which were later withdrawn by the agency; that in 1967 rule-making proceedings were instituted, only to be terminated in 1971 without the issuance of findings; and that there was no Commission action between January, 1971 and the argument of this appeal in September, 1972.
In the particular case, as it happens, the Commission moved on February 23, 1973, with issuance of complaints against Bristol-Myers and two other makers of non-prescription analgesics and their respective advertising agencies. But taking the matter broadly in terms of general need for private actions, and putting aside any consideration of the reasons that may have impelled the FTC to proceed with extreme caution in preparing enforcement proceeding against three of the nation’s largest advertisers, the thrust of appellants’ charge is misdirected. It is tantamount to a broad scale attack upon the Commission’s effectiveness as an agency. Yet it is raised in a suit to which the Commission is not a party.
Charges like appellants’ are no novelty. Similar comments were made during the Congressional debates on the very legislation that gave the Commission jurisdiction over food, drug and cosmetic advertising. Like complaints have been voiced on subsequent occasions. Yet Congress, has not seen fit to alter the statutory plan established in 1938.
4. The doctrine of Case v. Borak
We have given full consideration to Case v. Borak, holding that private actions would lie to redress violations of § 14(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78n(a), governing proxy disclosures.
Case v. Borak relied upon the general jurisdictional provision contained in § 27 of the SEC Act, 15 U.S.C. § 78aa. The presence of this provision reduced the degree of “judicial implication” brought to bear in developing a private remedy, since it provided a firm basis from which to begin the process of extrapolation. In contrast, the jurisdictional provisions of the Federal Trade Commission Act are specific, and expressly relate only to enforcement proceedings brought by the Commission or the Attorney General, or the review thereof.
In Case, the Supreme Court referred to the difficulties faced by the SEC in examining the thousands of proxy statements filed annually and to that agency’s limited resources. Significantly, the SEC intervened in Case v. Borak as amicus curiae, bringing to the Court’s attention its limited resources and urging the recognition of private remedies as an adjunct to its own enforcement powers. In the matter before us, the FTC has not sought intervention, and we have reason to believe, as already noted, that the private remedy might well lie athwart rather than alongside the Commission’s enforcement programs.
The SEC is primarily a clearance agency, and once its clearance responsibilities have been carried out and the proxy statement, registration statement, or the like has been permitted to become effective, there is little danger that an intervening private suit will derail the Commission’s ongoing administrative processes. In the case of the Trade Commission, the corporation’s dissemination of materials represents not the end of a (clearance) proceeding but the beginning of administrative scrutiny and a potential enforcement problem. It is this that underlies the problem, already discussed, that private actions may disrupt or incommode the FTC’s own investigative or prosecutorial activities, say, by being brought at the wrong time, or against the wrong party, or in the wrong sequence, or without regard to settlement choices, etc.
5. The judicial role under the Act
The role of the courts in the enforcement of the Federal Trade Commission Act is one that comes into play primarily only after the Commission has set its administrative processes in motion. The court’s role is not one of direct enforcement but one related to the administrative process — in part supervisory and in part collaborative.
A fair reading of the statute and its legislative history evinces a plain intent by Congress to make the administrative program for enforcing the Federal Trade Commission Act an exclusive one. When a court fairly perceives how the legislature accomplished a resolution of the balance of forces, including compromise and concession, the court must abide the result without using its own scales to weigh the strength of the component vectors. To imply a private right of action to enforce the Federal Trade Commission Act — however desirable or logical this might appear in the abstract — would be contrary to the legislative'design which we discern to have been deliberately wrought.
E. The Common Law Claims
As to appellants’ common law and equity claims, we are in complete accord with the ruling of Judge Jones.
Appellants’ common law claims for money damages must be dismissed for want of the $10,000 amount in controversy necessary to establish jurisdiction under 28 U.S.C. § 1332. The individuals comprising the class of appellants each suffered damages of minuscule proportions, “perhaps less than $5.-00” (Appellants’ Br. at 20). These claims cannot be aggregated merely because they are raised in a class action. Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). If appellants wish to pursue any common law claims, they must have recourse to the Article I courts established by Congress for the District of Columbia.
Concerning the claim based on general “equity” jurisprudence, there is no precedent for treating allegedly deceptive advertising as a “public nuisance,” amenable to injunctive relief. Such a radical doctrine could brook much mischief, including a multitude of inconsistent state prohibitions and requirements. We have no warrant for conjecturing that the District of Columbia Court of Appeals would 'embark on such a course.
We need not dwell long on the possibility of an appeal to a federal equity jurisprudence. In 1938 Congress specifically rejected a proposal for the use of court injunctions against a “nuisance” of false drug advertising in interstate commerce, and instead relied on the FTC for enforcement.
Affirmed.
. The complaint is framed in terms of three classes: (1) those persons who were induced to purchase Excedrin in reliance upon Bristol-Myers’ advertising representations; (2) those members of the advertising audience “who desire not to be subjected to false, misleading and deceptive advertisements”; and (3) those consumers and purchasers of analgesics who purportedly are being and will be misled unless dissemination of Bristol-Myers’ advertisements is restrained. The first two classes are represented by named individuals. Two consumer protection organizations, claiming to act on behalf of their members, represent the third class. The District Court found reason to question the standing of the nominal plaintiffs to represent these classes. Holloway v. Bristol-Myers Corp., 327 F.Supp. 17, 23-24 (D.D.C., 1971), citing Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). We find it unnecessary either to explore this matter or to distinguish between the various classes, which will, for purposes of this opinion, be treated as having interests that merge.
. Appellants seize on certain language in the District Court’s opinion to characterize it as a dismissal for want of subject matter jurisdiction. We do not read it thus.
Under 28 U.S.C. § 1337, the district courts are given
original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.
Plainly, this language applies to the Federal Trade Commission Act. Such jurisdiction lies without regard to the amount in controversy, or the citizenship of the parties. See Peyton v. Railway Express Agency, Inc., 316 U.S. 350, 62 S.Ct. 1171, 86 L.Ed. 1525 (1942); Bloomfield S.S. Co. v. Sabine Pilots Ass’n, 262 F.2d 345 (5th Cir., 1959), cert. dismissed, 368 U.S. 802, 82 S.Ct. 20, 7 L.Ed.2d 15 (1961).
Although, as will appear, we hold that the Act does not ground a private action, appellants’ invocation of the Act in support of a claim that is not plainly insubstantial or frivolous on its face suffices as an invocation of § 1337 jurisdiction. The District Court so held, and properly so. See Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).
. 15 U.S.C. § 45(a).
. 15 U.S.C.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America ex rel. David WHITTEN, Appellant, v. Warren PINTO, Superintendent Rahway State Prison Farm, Rahway, New Jersey, Appellee.
No. 17189.
United States Court of Appeals Third Circuit.
Submitted Feb. 7, 1969.
Decided March 4, 1969.
David Whitten, pro se.
Matthew J. Scola, Asst. Prosecutor, Newark, N. J. (Joseph P. Lordi, County Prosecutor of Essex County, Newark, N. J., on the brief), for appellee.
Before HASTIE, Chief Judge, and GANEY and SEITZ, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
Appellant, a state prisoner, appeals the district court’s denial without an evidentiary hearing of his request for a writ of habeas corpus. Although appellant raised several issues before the district court, on this appeal he challenges only the correctness of the determination that his federal constitutional right to effective representation by counsel was not violated. The district court made this determination from an examination of the state trial transcript. No question of exhaustion of state remedies is involved.
Appellant alleges that several months before trial he requested the state court to appoint counsel for him and that such counsel was not “assigned” until the day of trial. He further asserts that his counsel contacted him for the first time directly before the opening of the trial and that their consultation lasted for no longer than twenty minutes. He contends that the inadequacy of the time given him to consult counsel before deciding whether or not to waive a jury trial and counsel’s lack of time to prepare a defense deprived him of his constitutional rights.
We cannot find in the record, which includes the state trial transcript, any official indication of the date of the appointment of appellant’s counsel in the state criminal proceedings. It is important to establish this fact because it may determine whether, as appellant contends, there was a belated appointment of counsel. This court has recently held that, where it is found that the appointment of counsel was belated, the burden rests upon the State to establish by appropriate means that the defendant was not prejudiced thereby. United States ex rel. Mathis v. Rundel, 394 F.2d 748 (1968); United States ex rel. Chambers v. Maroney, 408 F.2d 1186 (Jan. 22, 1969). Since the district court did not have the benefit of these cases, we think it is appropriate here to vacate the judgment and remand the matter for a determination of the issue raised on appeal after the record is appropriately supplemented.
We note that appellant has also made the related contention that he had inadequate consultation with counsel. He asserts that the consultation only related to the decision as to whether to waive a jury trial and that there was no private consultation with regard to the issues of the case. Appropriate disposition of this contention must also be made by the district court.
The judgment of the district court will be vacated and the matter remanded for proceedings consistent with this opinion.
. Appellant signed a written waiver and, when questioned by the State trial judge, said that he understood the consequences thereof.
. We need not here decide whether the application of the belated appointment rule involves factors other than the time lapse between appointment of counsel and trial; e. g., the nature of the charges and the types of defenses involved.
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_9
|
19
|
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.
CALIFORNIA v. KRIVDA et al.
No. 71-651.
Argued October 10, 1972
Decided October 24, 1972
Russell Iungerich, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, William E. James and S. Clark Moore, Assistant Attorneys General, and William R. Pounders, Deputy Attorney General, joined by John D. LaBelle for the State of Connecticut and by the following Attorneys General: William J. Baxley of Alabama, Gary K. Nelson of Arizona, Ray Thornton of Arkansas, Duke W. Dunbar of Colorado, W. Laird Stabler, Jr., of Delaware, Robert L. Shevin of Florida, Arthur K. Bolton of Georgia, George Pai of Hawaii, W. Anthony Park of Idaho, Theodore L. Sendak of Indiana, Richard C. Turner of Iowa, Jack P. F. Gremillion of Louisiana, Francis B. Burch of Maryland, á. F. Summer of Mississippi, Robert L. Woodahl of Montana, Clarence A. H. Meyer of Nebraska, Robert List of Nevada, Warren B. Rudman of New Hampshire, George F. Kugler, Jr., of New Jersey, Louis J. Lefkowitz of New York, Helgi Johanneson of North Dakota, William J. Brown of Ohio, J. Shane Creamer of Pennsylvania, Richard J. Israel of Rhode Island, Daniel R. McLeod of South Carolina, Gordon Myland of South Dakota, David M. Pack of Tennessee, Crawford C. Martin of Texas, Vernon B. Romney of Utah, James M. Jeffords of Vermont, Andrew P. Miller of Virginia, Rom-ald H. Tonkin of the Virgin Islands, Slade Gorton of Washington, Robert W. Warren of Wisconsin, and Clarence A. Brimmer of Wyoming.
Roger S. Hanson, by appointment of the Court, 406 U. S. 904, argued the cause for respondents. With him on the brief was George R. Milman.
Briefs of amici curiae were filed by William J. Scott, Attorney General, and James B. Zagel, Assistant Attorney General, for the State of Illinois; by Frank G. Car-rington, Jr., Alan S. Ganz, Glen Murphy, and Wayne W. Schmidt for Americans for Effective Law Enforcement, Inc., et al.; by Melvin L. Wulf, Sanford J. Rosen, Joel M. Gora, A. L. Wirin, Fred Okrand, and Lawrence R. Sperber for the American Civil Liberties Union et al.; by Sheldon Portman and Rose Elizabeth Bird for the California Public Defenders Assn.; and by Theodore A. Gottfried and Marshall J. Hartman for the National Legal Aid and Defender Assn.
Per Curiam.
On the basis of evidence obtained in a police search of respondents’ trash, respondents were charged with possession of marihuana in violation of § 11530 of the California Health & Safety Code. The Supreme Court of California affirmed the superior court’s judgment of dismissal and order suppressing the evidence on the grounds that, under the circumstances of this case, respondents “had a reasonable expectation that their trash would not be rummaged through and picked over by police officers acting without a search warrant.” People v. Krivda, 5 Cal. 3d 357, 366-367, 486 P. 2d 1262, 1268 (1971) (en banc). We granted certiorari. 405 U. S. 1039.
After briefing and argument, however, we are unable to determine whether the California Supreme Court based its holding upon the Fourth and Fourteenth Amendments to the Constitution of the United States, or upon the equivalent provision of the California Constitution, or both. In reaching its result in this case, the California court cited pertinent excerpts from its earlier decision in People v. Edwards, 71 Cal. 2d 1096, 458 P. 2d 713 (1969) (en banc), which relied specifically upon both the state and federal provisions. 5 Cal. 3d, at 367, 486 P. 2d, at 1269. Thus, as in Mental Hygiene Dept. v. Kirchner, 380 U. S. 194, 196-197 (1965), “[wjhile we might speculate from the choice of words used in the opinion, and the authorities cited by the court, which provision was the basis for the judgment of the state court, we are unable to say with any degree of certainty that the judgment of the California Supreme Court was not based on an adequate and independent nonfederal ground.” We therefore vacate the judgment of the Supreme Court of California and remand the cause to that court for such further proceedings as may be appropriate. Mental Hygiene Dept. v. Kirchner, supra; Minnesota v. National Tea Co., 309 U. S. 551 (1940); State Tax Comm’n v. Van Cott, 306 U. S. 511 (1939). We intimate no view on the merits of the Fourth and Fourteenth Amendment issue presented.
Question: What is the issue of the decision?
01. comity: civil rights
02. comity: criminal procedure
03. comity: First Amendment
04. comity: habeas corpus
05. comity: military
06. comity: obscenity
07. comity: privacy
08. comity: miscellaneous
09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals
10. assessment of costs or damages: as part of a court order
11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules
12. judicial review of administrative agency's or administrative official's actions and procedures
13. mootness (cf. standing to sue: live dispute)
14. venue
15. no merits: writ improvidently granted
16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit
17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals)
18. no merits: adequate non-federal grounds for decision
19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law)
20. no merits: miscellaneous
21. standing to sue: adversary parties
22. standing to sue: direct injury
23. standing to sue: legal injury
24. standing to sue: personal injury
25. standing to sue: justiciable question
26. standing to sue: live dispute
27. standing to sue: parens patriae standing
28. standing to sue: statutory standing
29. standing to sue: private or implied cause of action
30. standing to sue: taxpayer's suit
31. standing to sue: miscellaneous
32. judicial administration: jurisdiction or authority of federal district courts or territorial courts
33. judicial administration: jurisdiction or authority of federal courts of appeals
34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753)
35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court
36. judicial administration: jurisdiction or authority of the Court of Claims
37. judicial administration: Supreme Court's original jurisdiction
38. judicial administration: review of non-final order
39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision)
40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question)
41. judicial administration: ancillary or pendent jurisdiction
42. judicial administration: extraordinary relief (e.g., mandamus, injunction)
43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal)
44. judicial administration: resolution of circuit conflict, or conflict between or among other courts
45. judicial administration: objection to reason for denial of certiorari or appeal
46. judicial administration: collateral estoppel or res judicata
47. judicial administration: interpleader
48. judicial administration: untimely filing
49. judicial administration: Act of State doctrine
50. judicial administration: miscellaneous
51. Supreme Court's certiorari, writ of error, or appeals jurisdiction
52. miscellaneous judicial power, especially diversity jurisdiction
Answer:
|
sc_certreason
|
L
|
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.
SHELL v. MISSISSIPPI
No. 89-7279.
Decided October 29, 1990
Per Curiam.
The motion of petitioner for leave to proceed informa pau-peris and the petition for a writ of certiorari are granted. To the extent that the Mississippi Supreme Court relied on the “especially heinous, atrocious, or cruel” aggravating factor in affirming petitioner’s death sentence, its decision is reversed. See Maynard v. Cartwright, 486 U. S. 356 (1988). Although the trial court in this case used a limiting instruction to define the “especially heinous, atrocious, or cruel” factor, that instruction is not constitutionally sufficient. See Godfrey v. Georgia, 446 U. S. 420 (1980); Cartwright v. Maynard, 822 F. 2d 1477, 1489-1491 (CA10 1987) (en banc), aff’d, 486 U. S. 356 (1988). The case is remanded to the Mississippi Supreme Court for further consideration in light of Clemons v. Mississippi, 494 U. S. 738 (1990).
It is so ordered.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_method
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
Richard MARTINEZ, Plaintiff-Appellant, v. Curt STAUDT and Darrin White, who are Grand Junction Police Officers, Defendants-Appellees, United States of America, Amicus Curiae.
No. 85-1728.
United States Court of Appeals, Tenth Circuit.
Oct. 19, 1987.
Before Honorable WILLIAM J. HOLLOWAY, Jr., Honorable MONROE G. McKAY, Honorable JAMES K. LOGAN, Honorable STEPHANIE K. SEYMOUR, Honorable JOHN P. MOORE, Honorable STEPHEN H. ANDERSON, Honorable DEANELL R. TACHA, and Honorable BOBBY R. BALDOCK, Circuit Judges.
Upon consideration of a stipulation of the parties for dismissal, the court orders the appeal in this case dismissed with prejudice.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
sc_authoritydecision
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
DAVIS v. MICHIGAN DEPARTMENT OF THE TREASURY
No. 87-1020.
Argued January 9, 1989
Decided March 28, 1989
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Marshall, Blackmun, O’Connor, and Scalia, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 818.
Paul S. Davis, pro se, argued the cause and filed briefs for appellant.
Michael K. Kellogg argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Rose, Deputy Solicitor General Merrill, David English Car-mack, and Steven W. Parks.
Thomas L. Casey, Assistant Solicitor General of Michigan, argued the cause for appellee. With him on the brief were Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Richard R. Roesch and Ross H. Bishop, Assistant Attorneys General.
Joseph B. Scott and Michael J. Kotor filed a brief for the National Association of Retired Federal Employees as amicus curiae urging reversal.
Justice Kennedy
delivered the opinion of the Court.
The State of Michigan exempts from taxation all retirement benefits paid by the State or its political subdivisions, but levies an income tax on retirement benefits paid by all other employers, including the Federal Government. The question presented by this case is whether Michigan’s tax scheme violates federal law.
I
Appellant Paul S. Davis, a Michigan resident, is a former employee of the United States Government. He receives retirement benefits pursuant to the Civil Service Retirement Act, 5 U. S. C. §8831 et seq. In each of the years 1979 through 1984, appellant paid Michigan state income tax on his federal retirement benefits in accordance with Mich. Comp. Laws Ann. §206.30(l)(f) (Supp. 1988). That statute defines taxable income in a manner that excludes all retirement benefits received from the State or its political subdivisions, but includes most other forms of retirement benefits. The effect of this definition is that the retirement benefits of retired state employees are exempt from state taxation while the benefits received by retired federal employees are not.
In 1984, appellant petitioned for refunds of state taxes paid on his federal retirement benefits between 1979 and 1983. After his request was denied, appellant filed suit in the Michigan Court of Claims. Appellant’s complaint, which was amended to include the 1984 tax year, averred that his federal retirement benefits were “not legally taxable under the Michigan Income Tax Law” and that the State’s inconsistent treatment of state and federal retirement benefits discriminated against federal retirees in violation of 4 U. S. C. § 111, which preserves federal employees’ immunity from discriminatory state taxation. See Public Salary Tax Act of 1939, ch. 59, §4, 53 Stat. 575, codified, as amended, at 4 U. S. C. § 111. The Court of Claims, however, denied relief. No. 84-9451 (Oct. 30, 1985), App. to Juris. Statement A10.
The Michigan Court of Appeals affirmed. 160 Mich. App. 98, 408 N. W. 2d 433 (1987). The court first rejected appellant’s claim that 4 U. S. C. § 111 invalidated the State’s tax on appellant’s federal benefits. Noting that §111 applies only to federal “employees,” the court determined that appellant’s status under federal law was that of an “annuitant” rather than an employee. As a consequence, the court concluded that § 111 “has no application to [Davis], since [he] cannot be considered an employee within the meaning of that act.” Id., at 104, 408 N. W. 2d, at 435.
The Michigan Court of Appeals next rejected appellant’s contention that the doctrine of intergovernmental tax immunity rendered the State’s tax treatment of federal retirement benefits unconstitutional. Conceding that “a tax may be held invalid ... if it operates to discriminate against the federal government and those with whom it deals,” id., at 104, 408 N. W. 2d, at 436, the court examined the State’s justifications for the discrimination under a rational-basis test. Ibid. The court determined that the State’s interest in “attracting and retaining . . . qualified employees” was a “legitimate state objective which is rationally achieved by a retirement plan offering economic inducements,” and it upheld the statute. Id., at 105, 408 N. W. 2d, at 436.
The Supreme Court of Michigan denied appellant’s application for leave to appeal. 429 Mich. 854 (1987). We noted probable jurisdiction. 487 U. S. 1217 (1988).
II
Appellant places principal reliance on 4 U. S. C. § 111. In relevant part, that section provides:
“The United States consents to the taxation' of pay or compensation for personal service as an officer or employee of the United States ... by a duly constituted taxing authority having jurisdiction, if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation.”
As a threshold matter, the State argues that § 111 applies only to current employees of the Federal Government, not to retirees such as appellant. In our view, however, the plain language of the statute dictates the opposite conclusion. Section 111 by its terms applies to “the taxation of pay or compensation for personal services as an officer or employee of the United States.” (Emphasis added). While retirement pay is not actually disbursed during the time an individual is working for the Government, the amount of benefits to be received in retirement is based and computed upon the individual’s salary and years of service. 5 U. S. C. § 8339(a). We have no difficulty concluding that civil service retirement benefits are deferred compensation for past years of service rendered to the Government. See, e. g., Zucker v. United States, 758 F. 2d 637, 639 (CA Fed.), cert. denied, 474 U. S. 842 (1985); Kizas v. Webster, 227 U. S. App. D. C. 327, 339, 707 F. 2d 524, 536, (1983), cert. denied, 464 U. S. 1042 (1984); Clark v. United States, 691 F. 2d 837, 842 (CA7 1982). And because these benefits accrue to employees on account of their service to the Government, they fall squarely within the category of compensation for services rendered “as an officer or employee of the United States.” Appellant’s federal retirement benefits are deferred compensation earned “as” a federal employee, and so are subject to § 111.
The State points out, however, that the reference to “compensation for personal services as an officer or employee” occurs in the first part of § 111, which defines the extent of Congress’ consent to state taxation, and not in the latter part of the section, which provides that the consent does not extend to taxes that discriminate against federal employees. Instead, the nondiscrimination clause speaks only in terms of “discriminat[ion] against the officer or employee because of the source of the pay or compensation.” From this the State concludes that, whatever the scope of Congress’ consent to taxation in the first portion of § 111, the nondiscrimination clause applies only to current federal employees.
Although the State’s hypertechnical reading of the nondiscrimination clause is not inconsistent with the language of that provision examined in isolation, statutory language cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme. See United States v. Morton, 467 U. S. 822, 828 (1984). When the first part of §111 is read together with the nondiscrimination clause, the operative words of the statute are as follows: “The United States consents to the taxation of pay or compensation ... if the taxation does not discriminate . . . because of the source of the pay or compensation.” The reference to “the pay or compensation” in the last clause of § 111 must, in context, mean the same “pay or compensation” defined in the first part of the section. Since that “pay or compensation” includes retirement benefits, the nondiscrimination clause must include them as well.
Any other interpretation of the nondiscrimination clause would be implausible at best. It is difficult to imagine that Congress consented to discriminatory taxation of the pensions of retired federal civil servants while refusing to permit such taxation of current employees, and nothing in the statutory language or even in the legislative history suggests this result. While Congress could perhaps have used more precise language, the overall meaning of § 111 is unmistakable: it waives whatever immunity past and present federal employees would otherwise enjoy from state taxation of salaries, retirement benefits, and other forms of compensation paid on account of their employment with the Federal Government, except to the extent that such taxation discriminates on account of the source of the compensation.
1 — 1 HH hH
Section 111 was enacted as part of the Public Salary Tax Act of 1939, the primary purpose of which was to impose federal income tax on the salaries of all state and local government employees. Prior to adoption of the Act, salaries of most government employees, both state and federal, generally were thought to be exempt from taxation by another sovereign under the doctrine of intergovernmental tax immunity. This doctrine had its genesis in McCulloch v. Maryland, 4 Wheat. 316 (1819), which held that the State of Maryland could not impose a discriminatory tax on the Bank of the United States. Chief Justice Marshall’s opinion for the Court reasoned that the Bank was an instrumentality of the Federal Government used to carry into effect the Government’s delegated powers, and taxation by the State would unconstitutionally interfere with the exercise of those powers. Id., at 425-437.
For a time, McCulloch was read broadly to bar most taxation by one sovereign of the employees of another. See Collector v. Day, 11 Wall. 113, 124-128 (1871) (invalidating federal income tax on salary of state judge); Dobbins v. Com missioners of Erie County, 16 Pet. 435 (1842) (invalidating state tax on federal officer). This rule “was based on the rationale that any tax on income a party received under a contract with the government was a tax on the contract and thus a tax ‘on’ the government because it burdened the government’s power to enter into the contract.” South Carolina v. Baker, 485 U. S. 505, 518 (1988).
In subsequent cases, however, the Court began to turn away from its more expansive applications of the immunity doctrine. Thus, in Helvering v. Gerhardt, 304 U. S. 405 (1938), the Court held that the Federal Government could levy nondiscriminatory taxes on the incomes of most state employees. The following year, Graves v. New York ex rel. O’Keefe, 306 U. S. 466, 486-487 (1939), overruled the Day-Dobbins line of cases that had exempted government employees from nondiscriminatory taxation. After Graves, therefore, intergovernmental tax immunity barred only those taxes that were imposed directly on one sovereign by the other or that discriminated against a sovereign or those with whom it dealt.
It was in the midst of this judicial revision of the immunity doctrine that Congress decided to extend the federal income tax to state and local government employees. The Public Salary Tax Act was enacted after Helvering v. Gerhardt, supra, had upheld the imposition of federal income taxes on state civil servants, and Congress relied on that decision as support for its broad assertion of federal taxing authority. S. Rep. No. 112, 76th Cong., 1st Sess., 5-9 (1939); H. R. Rep. No. 26, 76th Cong., 1st Sess., 2-3 (1939). However, the Act was drafted, considered in Committee, and passed by the House of Representatives before the announcement of the decision in Graves v. New York ex rel. O’Keefe, supra, which for the first time permitted state taxation of federal employees. As a result, during most of the legislative process leading to adoption of the Act it was unclear whether state taxation of federal employees was still barred by intergovernmental tax immunity despite the abrogation of state employees’ immunity from federal taxation. See H. R. Rep. No. 26, swpra, at 2 (“There are certain indications in the case of McCulloch v. Maryland, 4 Wheat. 316 (1819), . . . that . . . Federal officers and employees may not, without the consent of the United States, be subjected to income taxation under the authority of the various States”).
Dissatisfied with this uncertain state of affairs, and concerned that considerations of fairness demanded equal tax treatment for state and federal employees, Congress decided to ensure that federal employees would not remain immune from state taxation at the same time that state government employees were being required to pay federal income taxes. See S. Rep. No. 112, supra, at 4; H. R. Rep. No. 26, supra, at 2. Accordingly, §4 of the proposed Act (now §111) expressly waived whatever immunity would have otherwise shielded federal employees from nondiscriminatory state taxes.
By the time the statute was enacted, of course, the decision in Graves had been announced, so the constitutional immunity doctrine no longer proscribed nondiscriminatory state taxation of federal employees. In effect, § 111 simply codified the result in Graves and foreclosed the possibility that subsequent judicial reconsideration of that case might reestablish the broader interpretation of the immunity doctrine.
Section 111 did not waive all aspects of intergovernmental tax immunity, however. The final clause of the section contains an exception for state taxes that discriminate against federal employees on the basis of the source of their compensation. This nondiscrimination clause closely parallels the nondiscrimination component of the constitutional immunity doctrine which has, from the time of McCulloch v. Maryland, barred taxes that “operat[e] so as to discriminate against the Government or those with whom it deals.” United States v. City of Detroit, 355 U. S. 466, 473 (1958). See also McCulloch v. Maryland, supra, at 436-437; Miller v. Milwaukee, 272 U. S. 713, 714-715 (1927); Helvering v. Gerhardt, supra, at 413; Phillips Chemical Co. v. Dumas Independent School Dist., 361 U. S. 376, 385 (1960); Memphis Bank & Trust Co. v. Gamer, 459 U. S. 392, 397, and n. 7 (1983).
In view of the similarity of language and purpose between the constitutional principle of nondiscrimination and the statutory nondiscrimination clause, and given that § 111 was consciously drafted against the background of the Court’s tax immunity cases, it is reasonable to conclude that Congress drew upon the constitutional doctrine in defining the scope of the immunity retained in § 111. When Congress codifies a judicially defined concept, it is presumed, absent an express statement to the contrary, that Congress intended to adopt the interpretation placed on that concept by the courts. See Midlantic National Bank v. New Jersey Dept. of Environmental Protection, 474 U. S. 494, 501 (1986); Morissette v. United States, 342 U. S. 246, 263 (1952). Hence, we conclude that the retention of immunity in § 111 is coextensive with the prohibition against discriminatory taxes embodied in the modern constitutional doctrine of intergovernmental tax immunity. Cf. Memphis Bank & Trust, supra, at 396-397 (construing 31 U. S. C. §742, which permits only ‘“nondiscriminatory’” state taxation of interest on federal obligations, as “principally a restatement of the constitutional rule”).
On its face, § 111 purports to be nothing more than a partial congressional consent to nondiscriminatory state taxation of federal employees. It can be argued, however, that by negative implication §111 also constitutes an affirmative statutory grant of immunity from discriminatory state taxation in addition to, and coextensive with, the pre-existing protection afforded by the constitutional doctrine. Regardless of whether § 111 provides an independent basis for finding immunity or merely preserves the traditional constitutional prohibition against discriminatory taxes, however, the inquiry is the same. In either case, the scope of the immunity granted or retained by the nondiscrimination clause is to be determined by reference to the constitutional doctrine. Thus, the dispositive question in this case is whether the tax imposed on appellant is barred by the doctrine of intergovernmental tax immunity.
IV
It is undisputed that Michigan’s tax system discriminates in favor of retired state employees and against retired federal employees. The State argues, however, that appellant is not entitled to claim the protection of the immunity doctrine, and that in any event the State’s inconsistent treatment of Federal and State Government retirees is justified by meaningful differences between the two classes.
A
In support of its first contention, the State points out that the purpose of the immunity doctrine is to protect governments and not private entities or individuals. As a result, so long as the challenged tax does not interfere with the Federal Government’s ability to perform its governmental functions, the constitutional doctrine has not been violated.
It is true that intergovernmental tax immunity is based on the need to protect each sovereign’s governmental operations from undue interference by the other. Graves, 306 U. S., at 481; McCulloch v. Maryland, 4 Wheat., at 435-436. But it does not follow that private entities or individuals who are subjected to discriminatory taxation on account of their dealings with a sovereign cannot themselves receive the protection of the constitutional doctrine. Indeed, all precedent is to the contrary. In Phillips Chemical Co., supra, for example, we considered a private corporation’s claim that a state tax discriminated against private lessees of federal land. We concluded that the tax “discriminate[d] unconstitutionally against the United States and its lessee,” and accordingly held that the tax could not be exacted. Id., at 387 (emphasis added). See also Memphis Bank & Trust, supra; Moses Lake Homes, Inc. v. Grant County, 365 U. S. 744 (1961); Collector v. Day, 11 Wall. 113 (1871); Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842). The State offers no reasons for departing from this settled rule, and we decline to do so.
B
Under our precedents, “[t]he imposition of a heavier tax burden on [those who deal with one sovereign] than is imposed on [those who deal with the other] must be justified by significant differences between the two classes.” Phillips Chemical Co. v. Dumas Independent School Dist., 361 U. S., at 383. In determining whether this standard of justification has been met, it is inappropriate to rely solely on the mode of analysis developed in our equal protection cases. We have previously observed that “our decisions in [the equal protection] field are not necessarily controlling where problems of intergovernmental tax immunity are involved,” because “the Government’s interests must be weighed in the balance.” Id., at 385. Instead, the relevant inquiry is whether the inconsistent tax treatment is directly related to, and justified by, “significant differences between the two classes.” Id., at 383-385.
The State points to two allegedly significant differences between federal and state retirees. First, the State suggests that its interest in hiring and retaining qualified civil servants through the inducement of a tax exemption for retirement benefits is sufficient to justify the preferential treatment of its retired employees. This argument is wholly beside the point, however, for it does nothing to demonstrate that there are “significant differences between the two classes” themselves; rather, it merely demonstrates that the State has a rational reason for discriminating between two similar groups of retirees. The State’s interest in adopting the discriminatory tax, no matter how substantial, is simply irrelevant to an inquiry into the nature of the two classes receiving inconsistent treatment. See id., at 384.
Second, the State argues that its retirement benefits are significantly less munificent than those offered by the Federal Government, in terms of vesting requirements, rate of accrual, and computation of benefit amounts. The substantial differences in the value of the retirement benefits paid the two classes should, in the State’s view, justify the inconsistent tax treatment.
Even assuming the State’s estimate of the relative value of state and federal retirement benefits is generally correct, we do not believe this difference suffices to justify the type of blanket exemption at issue in this case. While the average retired federal civil servant receives a larger pension than his state counterpart, there are undoubtedly many individual instances in which the opposite holds true. A tax exemption truly intended to account for differences in retirement benefits would not discriminate on the basis of the source of those benefits, as Michigan’s statute does; rather, it would discriminate on the basis of the amount of benefits received by individual retirees. Cf. Phillips Chemical Co., supra, at 384-385 (rejecting proffered rationale for State’s unfavorable tax treatment of lessees of federal property, because an evenhanded application of the rationale would have resulted in inclusion of some lessees of state property in the disfavored class as well).
V
For these reasons, we conclude that the Michigan Income Tax Act violates principles of intergovernmental tax immunity by favoring retired state and local government employees over retired federal employees. The State having conceded that a refund is appropriate in these circumstances, see Brief for Appellee 63, to the extent appellant has paid taxes pursuant to this invalid tax scheme, he is entitled to a refund. See Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239, 247 (1931).
Appellant also seeks prospective relief from discriminatory taxation. With respect to this claim, however, we are not in the best position to ascertain the appropriate remedy. While invalidation of Michigan’s income tax law in its entirety obviously would eliminate the constitutional violation, the Constitution does not require such a drastic solution. We have recognized, in cases involving invalid classifications in the distribution of government benefits, that the appropriate remedy “is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class.” Heckler v. Mathews, 465 U. S. 728, 740 (1984). See Iowa-Des Moines National Bank, supra, at 247; see also Welsh v. United States, 398 U. S. 333, 361 (1970) (Harlan, J., concurring in judgment).
In this case, appellant’s claim could be resolved either by extending the tax exemption to retired federal employees (or to all retired employees), or by eliminating the exemption for retired state and local government employees. The latter approach, of course, could be construed as the direct imposition of a state tax, a remedy beyond the power of a federal court. See Moses Lake Homes, Inc. v. Grant County, 365 U. S., at 752 (“Federal courts may not assess or levy taxes”). The permissibility of either approach, moreover, depends in part on the severability of a portion of §206.30(l)(f) from the remainder of the Michigan Income Tax Act, a question of state law within the special expertise of the Michigan courts. See Louis K. Liggett Co. v. Lee, 288 U. S. 517, 540-541 (1933). It follows that the Michigan courts are in the best position to determine how to comply with the mandate of equal treatment. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
As a result of a series of amendments, this subsection has been variously designated as (l)(f), (l)(g), and (l)(h) at times relevant to this litigation. This opinion will refer only to the current statutory designation, §206.30(l)(f).
In pertinent part, the statute provides:
“(1) ‘Taxable income’. . . means adjusted gross income as defined in the internal revenue code subject to the following adjustments:
“(f) Deduct to the extent included in adjusted gross income:
“(i) Retirement or pension benefits received from a public retirement system of or created by an act of this state or a political subdivision of this state.
“(iv) Retirement or pension benefits from any other retirement or pension system as follows:
“(A) For a single return, the sum of not more than $7,500.00.
“(B) For a joint return, the sum of not more than $10,000.00.” Mich. Comp. Laws Ann. § 206.30(l)(f) (Supp. 1988).
Subsection (f)(iv) of this provision exempts a portion of otherwise taxable retirement benefits from taxable income, but appellant’s retirement pay from all nonstate sources exceeded the applicable exemption amount in each of the tax years relevant to this case.
The State suggests that the legislative history does not support this interpretation of § 111, pointing to statements in the Committee Reports that describe the scope of § 111 without using the phrase “service as an officer or employee.” The language of the statute leaves no room for doubt on this point, however, so the State’s attempt to establish a minor inconsistency with the legislative history need not detain us. Legislative history is irrelevant to the interpretation of an unambiguous statute. United Air Lines, Inc. v. McMann, 434 U. S. 192, 199 (1977).
The dissent argues that this tax is nondiscriminatory, and thus constitutional, because it “draws no distinction between the federal employees or retirees and the vast majority of voters in the State.” Post, at 823. In Phillips Chemical Co., however, we faced that precise situation: an equal tax burden was imposed on lessees of private, tax-exempt property and lessees of federal property, while lessees of state property paid a lesser tax, or in some circumstances none at all. Although we concluded that “[ujnder these circumstances, there appears to be no discrimination between the Government’s lessees and lessees of private property,” 361 U. S., at 381, we nonetheless invalidated the State’s tax. This result is consistent with the underlying rationale for the doctrine of intergovernmental tax immunity. The danger that a State is engaging in impermissible discrimination against the Federal Government is greatest when the State acts to benefit itself and those in privity with it. As we observed in Phillips Chemical Co., “it does not seem too much to require that the State treat those who deal with the Government as well as it treats those with whom it deals itself.” Id.., at 385.
We also take issue with the dissent’s assertion that “it is peculiarly inappropriate to focus solely on the treatment of state governmental employees” because “[t]he State may always compensate in pay or salary for what it assesses in taxes.” Post, at 824. In order to provide the same after-tax benefits to all retired state employees by means of increased salaries or benefit payments instead of a tax exemption, the State would have to increase its outlays by more than the cost of the current tax exemption, since the increased payments to retirees would result in higher federal income tax payments in some circumstances. This fact serves to illustrate the impact on the Federal Government of the State’s discriminatory tax exemption for state retirees. Taxes enacted to reduce the State’s employment costs at the expense of the federal treasury are the type of discriminatory legislation that the doctrine of intergovernmental tax immunity is intended to bar.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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sc_petitionerstate
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05
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
MABRY, COMMISSIONER, ARKANSAS DEPARTMENT OF CORRECTION v. JOHNSON
No. 83-328.
Argued April 16, 1984
Decided June 11, 1984
John Steven Clark, Attorney General of Arkansas, argued the cause for petitioner. With him on the briefs was Alice Ann Burns, Deputy Attorney General.
Jerrold J. Ganzfried argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Gloria C. Phares.
Richard Quiggle, by appointment of the Court, 465 U. S. 1003, argued the cause and filed a brief for respondent.
Justice Stevens
delivered the opinion of the Court.
The question presented is whether a defendant’s acceptance of a prosecutor’s proposed plea bargain creates a constitutional right to have the bargain specifically enforced.
In the late evening of May 22, 1970, three members of a family returned home to find a burglary in progress. Shots were exchanged resulting in the daughter’s death and the wounding of the father and respondent — one of the burglars. Respondent was tried and convicted on three charges: burglary, assault, and murder. The murder conviction was set aside by the Arkansas Supreme Court, Johnson v. State, 252 Ark. 1113, 482 S. W. 2d 600 (1972). Thereafter, plea negotiations ensued..
At the time of the negotiations respondent was serving his concurrent 21- and 12-year sentences on the burglary and assault convictions. On Friday, October 27, 1972, a deputy prosecutor proposed to respondent’s attorney that in exchange for a plea of guilty to the charge of accessory after a felony murder, the prosecutor would recommend a sentence of 21 years to be served concurrently with the burglary and assault sentences. On the following day, counsel communicated the offer to respondent who agreed to accept it. On the next Monday the lawyer called the prosecutor “and communicated [respondent’s] acceptance of the offer.” App. 10. The prosecutor then told counsel that a mistake had been made and withdrew the offer. He proposed instead that in exchange for a guilty plea he would recommend a sentence of 21 years to be served consecutively to respondent’s other sentences.
Respondent rejected the new offer and elected to stand trial. On the second day of trial, the judge declared a mistrial and plea negotiations resumed, ultimately resulting in respondent’s acceptance of the prosecutor’s second offer. In accordance with the plea bargain, the state trial judge imposed a 21-year sentence to be served consecutively to the previous sentences.
After exhausting his state remedies, respondent filed a petition for a writ of habeas corpus under 28 U. S. C. §2254. The District Court dismissed the petition, finding that respondent had understood the consequences of his guilty plea, that he had received the effective assistance of counsel, and that because the evidence did not establish that respondent had detrimentally relied on the prosecutor’s first proposed plea agreement, respondent had no right to enforce it. The Court of Appeals reversed, 707 F. 2d 323 (CA8 1983), over Judge John R. Gibson’s dissent. The majority concluded that “fairness” precluded the prosecution’s withdrawal of a plea proposal once accepted by respondent. Because of a conflict in the Circuits, coupled with our concern that an important constitutional question had been wrongly decided, we granted certiorari, 464 U. S. 1017 (1983). We now reverse.
Respondent can obtain federal habeas corpus relief only if his custody is in violation of the Federal Constitution. A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution. Only after respondent pleaded guilty was he convicted, and it is that conviction which gave rise to the deprivation of respondent’s liberty at issue here.
It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked. It is also well settled that plea agreements are consistent with the requirements of voluntariness and intelligence — because each side may obtain advantages when a guilty plea is exchanged for sentencing concessions, the agreement is no less voluntary than any other bargained-for exchange. It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired. In Brady v. United States, 397 U. S. 742 (1970), we stated the applicable standard:
“‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e. g. bribes).”’ Id., at 755 (quoting Shelton v. United States, 246 F. 2d 571, 572, n. 2 (CA5 1957) (en banc) (in turn quoting 242 F. 2d 101, 115 (Tuttle, J., dissenting to panel opinion)), rev’d on other grounds, 356 U. S. 26 (1958).
Thus, only when it develops that the defendant was not fairly apprised of its consequences can his plea be challenged under the Due Process Clause. Santobello v. New York, 404 U. S. 257 (1971), illustrates the point. We began by acknowledging that the conditions for a valid plea “presuppose fairness in securing agreement between an accused and a prosecutor. . . . The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known.” Id., at 261-262. It follows that when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand: “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id., at 262.
Santobello demonstrates why respondent may not successfully attack his plea of guilty. Respondent’s plea was in no sense induced by the prosecutor’s withdrawn offer; unlike Santobello, who pleaded guilty thinking he had bargained for a specific prosecutorial sentencing recommendation which was not ultimately made, at the time respondent pleaded guilty he knew the prosecution would recommend a 21-year consecutive sentence. Respondent does not challenge the District Court’s finding that he pleaded guilty with the advice of competent counsel and with full awareness of the consequences — he knew that the prosecutor would recommend and that the judge could impose the sentence now under attack. Respondent’s plea was thus in no sense the product of governmental deception; it rested on no “unfulfilled promise” and fully satisfied the test for voluntariness and intelligence.
Thus, because it did not impair the voluntariness or intelligence of his guilty plea, respondent’s inability to enforce the prosecutor’s offer is without constitutional significance. Neither is the question whether the prosecutor was negligent or otherwise culpable in first making and then withdrawing his offer relevant. The Due Process Clause is not a code of ethics for prosecutors; its concern is with the manner in which persons are deprived of their liberty. Here respondent was not deprived of his liberty in any fundamentally unfair way. Respondent was fully aware of the likely consequences when he pleaded guilty; it is not unfair to expect him to live with those consequences now.
The judgment of the Court of Appeals is
Reversed.
The petition was referred to a Magistrate who conducted an evidentiary-hearing and made recommended findings of fact and conclusions of law, which the District Court subsequently adopted.
Compare Virgin Islands v. Scotland, 614 F. 2d 360 (CA3 1980), and United States v. Greenman, 700 F. 2d 1377 (CA11), cert. denied, 464 U. S. 992 (1983), with Cooper v. United States, 594 F. 2d 12 (CA4 1979).
This ease is not moot despite the fact that respondent has been paroled. Respondent remains in the “custody” of the State, see Jones v. Cunningham, 371 U. S. 236 (1963); see generally Justices of Boston Municipal Court v. Lydon, 466 U. S. 294, 300-302 (1984); Hensley v. Municipal Court, 411 U. S. 345 (1973); and whether respondent must serve the sentence now under attack consecutively to his prior sentences will affect the date at which his parole will expire under state law, see Ark. Stat. Ann. § 43-2807(c) (Supp. 1983). Respondent’s challenge to the duration of his custody therefore remains live.
E. g., Townsend v. Sain, 372 U. S. 293, 312 (1963). In pertinent part, the habeas statute provides:
“The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U. S. C. § 2254(a).
Under Arkansas law, there is no entitlement to have the trial court impose a recommended sentence since a negotiated sentence recommendation does not bind the court, see Varnedare v. State, 264 Ark. 596, 599, 573 S. W. 2d 57, 60 (1978); Marshall v. State, 262 Ark. 726, 561 S. W. 2d 76 (1978); Ark. Rule Crim. Proc. 25.3(c); there is a critical difference between an entitlement and a mere hope or expectation that the trial court will follow the prosecutor’s recommendation, see Olim v. Wakinekona, 461 U. S. 238, 248-251 (1983); Jago v. Van Curen, 454 U. S. 14, 19-21 (1981) (per curiam); Connecticut Board of Pardons v. Dumschat, 452 U. S. 458, 465-467 (1981); Meachum v. Fano, 427 U. S. 215, 226-227 (1976).
See Boykin v. Alabama, 395 U. S. 238 (1969); Kercheval v. United States, 274 U. S. 220, 223 (1927).
See Tollett v. Henderson, 411 U. S. 258, 266-267 (1973); North Carolina v. Alford, 400 U. S. 25, 31 (1970); Parker v. North Carolina, 397 U. S. 790, 797-798 (1970); McMann v. Richardson, 397 U. S. 759, 772 (1970); Brady v. United States, 397 U. S. 742, 747-748 (1970). See also Henderson v. Morgan, 426 U. S. 637 (1976); Menna v. New York, 423 U. S. 61 (1975) (per curiam).
See Corbitt v. New Jersey, 439 U. S. 212, 219-220, 222-223 (1978); Bordenkircher v. Hayes, 434 U. S. 357, 363 (1978); Blackledge v. Allison, 431 U. S. 63, 71 (1977); Santobello v. New York, 404 U. S. 257, 260-261 (1971). For example, in Brady v. United States we wrote:
“For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious — his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages — the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant’s guilt or in which there is substantial doubt that the State can sustain its burden of proof. It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on pleas of guilty, a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury.” 397 U. S., at 752 (footnotes omitted).
See also 404 U. S., at 266 (Douglas, J., concurring); id., at 269 (Marshall, J., concurring in part and dissenting in part).
Respondent suggests that the prosecutor’s withdrawal of the initial offer undermined his confidence in defense counsel, in violation of his Sixth Amendment right to counsel. This argument is simply at odds with reason. Prosecutors often come to view an offense more seriously during the course of pretrial investigation for reasons entirely unrelated to what defense counsel has done or is likely to do. See United States v. Goodwin, 457 U. S. 368, 381 (1982). We fail to see how an accused could reasonably attribute the prosecutor’s change of heart to his counsel any more than he could have blamed counsel had the trial judge chosen to reject the agreed-upon recommendation, or, for that matter, had he gone to trial and been convicted. The District Court and the Court of Appeals concluded that counsel effectively advised respondent; that is all the Constitution requires. See United States v. Cronic, 466 U. S. 648, 656-657, n. 19 (1984); Tollett v. Henderson, 411 U. S., at 266-268; Parker v. North Carolina, 397 U. S., at 797-798; McMann v. Richardson, 397 U. S., at 770-771.
Indeed, even if respondent’s plea were invalid, Santobello expressly declined to hold that the Constitution compels specific performance of a broken prosecutorial promise as the remedy for such a plea; the Court made it clear that permitting Santobello to replead was within the range of constitutionally appropriate remedies. See 404 U. S., at 262-263; see also id., at 268-269 (Marshall, J., concurring in part and dissenting in part). It follows that respondent’s constitutional rights could not have been violated. Because he pleaded after the prosecution had breached its “promise” to him, he was in no worse position than Santobello would have been had he been permitted to replead.
Santobello itself rejected the relevance of prosecutorial culpability: “It is now conceded that the promise to abstain from a recommendation was made, and at this stage the prosecution is not in a good position to argue that its inadvertent breach of agreement is immaterial. The staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know what the right hand is doing’ or has done. That the breach of agreement was inadvertent does not lessen its impact.” Id., at 262. Cf. United States v. Agurs, 427 U. S. 97, 110 (1976).
Question: What state is associated with the petitioner?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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